District Court New South Wales Medium Neutral Citation: SafeWork NSW v Stitt [2024] NSWDC 255 Hearing dates: 11-13, 15, 18-20 March 2024; 30 May 2024 Date of orders: 28 June 2024 Decision date: 28 June 2024 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) I find the defendant guilty of the s 32 offence. (2) The matter will be listed for sentence on a date convenient to the parties. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – death of worker Legislation Cited: Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulation 2017 Cases Cited: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 Texts Cited: 2011 WorkCover NSW Guide to Erecting, Altering and Dismantling Scaffolds Part 2 Scaffolding Part 3: Prefabricated and tube-and-coupler scaffolding AS 1576.3:2015 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Jason Stitt (Defendant) Representation: Counsel: C Magee (Prosecutor) M Baroni (Defendant) Solicitors: Legal, Department of Customer Service (Prosecutor) Barry Nilsson Lawyers (Defendant) File Number(s): 2021/256592 Publication restriction: None Judgment Introduction 1. Jason Reid Stitt (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Todd Connell to a risk of death or serious injury contrary to s 32 of the Act. 2. On 9 September 2019, Mr Connell, Cristobal Rivera and another worker (Adam), workers engaged by Mr Stitt, erected a mobile scaffold tower (the scaffold) at 16 Longworth Avenue, Point Piper (the property) for the purpose of carrying out work relating to the installation of a flue on a gas hot water heater. The scaffold had been hired from Kennards Hire at Waverley. The scaffold could be erected, altered and/or dismantled by a person or persons who did not hold a high risk work licence (HRWL) for scaffolding work, so long as it was erected such that there was no risk of a person or object falling more than 4m from a work platform or the structure: cls 5, 81 and Table 3.1 of Schedule 3 Work Health and Safety Regulation 2017 (the Regulations). It was common ground that none of the relevant workers held a HRWL for scaffolding. The scaffold was erected next to a wall on the western side of the house, close to the boundary, that was about 3 storeys high. As erected, the scaffold stood 8.65m high, with 2 work platforms positioned more than 4m above the ground of the property and the neighbouring property. 3. On 11 September 2019 Mr Connell and Mr Rivera attended the property to dismantle the scaffold. During the course of dismantling the scaffold, Mr Connell attempted to pass a work platform weighing about 25 kilograms to Mr Rivera who was standing outside of the scaffold on top of a 2.7m high wall on the boundary (the boundary wall). When Mr Rivera said that he was off-balance and could not hold the work platform, Mr Connell tried to hold the weight of the work platform and in so doing leaned on the horizontal brace of the scaffold (ledger) that had been installed as a handrail on the second highest work platform. The ledger gave way and Mr Connell fell about 5.75m to the ground in number 14 Longworth Avenue. Mr Connell suffered serious head injuries in the fall and died a few days later. 4. The defendant did not put in issue Elements 1 and 2 of the charge which are set out at [210] below. The issues in the case are: 1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [16] of the Summons? (Element 3) 2. Did the defendant's breach of duty expose Ms Connell to a risk of death or serious injury? (Element 4) 1. For the reasons that follow, I am satisfied beyond reasonable doubt that the defendant failed to take some of the reasonably practicable steps to ensure the health and safety of Mr Connell particularised in [16] of the Summons, and that those failures exposed Mr Connell to a risk of death or serious injury. It follows that I find the defendant guilty of the s 32 offence. Facts Background 1. The defendant is a licensed builder operating as a sole trader, under the business name ReidStitt Constructions (RSC). The defendant's business consisted mainly of renovating private residences in the eastern suburbs of Sydney. 2. Mr Connell was employed by Tasman Labour Hire Pty Ltd (TLH) as a casual labourer. He held a construction white card. Mr Connell had been regularly placed to work with the defendant by TLH at the property since 2015. TLH placed Mr Connell with the defendant on 9 September 2019 and 11 September 2019. TLH was informed that on 9 September 2019 Mr Connell would be making a 100mm penetration through a concrete roof eave to enable a flue to be installed by others. The works included the erection of a mobile scaffold platform, making the penetration and then dismantling the scaffold. TLH considered Mr Connell to be a good worker and to have experience in the construction of mobile scaffold towers. 3. The defendant gave evidence that he usually used Mr Connell on finishing projects because that work suited his skillset. 4. Mr Rivera came to Australia on a student visa in March 2017. In about July 2018, he was employed by TLH as a casual labourer and placed with the defendant shortly afterwards. He held a white card but had no experience in, or qualifications for, construction work. In about December 2018, Mr Rivera told the defendant that he wanted to be paid more and he was advised to get an Australian Business Number (ABN) so that he could be engaged by the defendant as a contractor. From about February 2019, Mr Rivera entered into a contract with the defendant to provide his services at an hourly rate. Mr Rivera sent an invoice to the defendant by email each Friday and was paid on the same day. 5. Between about July 2018 and 9 September 2019, Mr Rivera worked regularly with Mr Connell on RSC sites, including at the property. In that period, Mr Rivera assisted Mr Connell to erect and dismantle scaffolding from time to time. Mr Rivera described the scaffolding erected on these prior occasions as "classic scaffolding", being "scaffolding without wheels", which I understood to mean not mobile scaffolds. 6. Mr Rivera gave evidence that prior to 9 September 2019, he was not provided with a Safe Work Method Statement (SWMS) for the work he was undertaking for RSC and he did not understand what a SWMS was. In particular, he was not provided with a SWMS for scaffolding work. He was never asked to sign a document relating to the erection of scaffolding. Mr Rivera gave evidence that he was not provided with fall prevention equipment such as a harness and lanyard. 7. From about 2015, RSC was engaged to undertake building work at the property. In 2018, the property was purchased by Neville Crichton, with the renovation works still in progress. Mr Crichton contracted with RSC to continue the renovation works and to undertake other work from time to time. 8. When the defendant first started work at the property, he put together an "OH&S Folder" for the property. The defendant gave evidence that the OH&S Folder contained the safety documents relevant to that site, including the relevant SWMSs and contact details for workers including their white card numbers and a record of their qualifications. He conducted toolbox talks (TBTs) each day with workers on an RSC site. If he was not on site, TBTs were delivered by the site foreman. TBTs were not documented. 9. In about March 2018, Mr Crichton engaged Devex Systems Pty Ltd trading as Floor Heat Australia (Devex) to install an underfloor heating system at the property. The quote for the installation of the system was accepted by the defendant on behalf of Mr Crichton. The system pumped heated water through a series of underfloor pipes. The gas-powered water heater for the system was housed in an enclosed shelter on a wall on the western side of the property, about 2-3 metres above the ground. It was initially fitted with a flue that extended about 100mm above the water heater. 10. Following the installation of the system, Mr Crichton received complaints from his neighbour that the flue of the water heater was noisy when the underfloor heating system was being used. Mr Crichton contacted Devex and asked them to resolve the problem. 11. Blake Sutton, an installation manager at Devex, attended the property to conduct a site inspection and to conduct maintenance on the system on or about 11 August 2019. He measured up to provide a quote to extend the flue about 6-8m up the wall of the house and through the concrete soffit of the roof. When he returned to the office he spoke to Jean-Baptiste Bailleux, Devex's technical manager, about the quote to be provided to Mr Crichton. Mr Sutton informed Mr Bailleux that scaffolding was required at the property to enable the Devex workers to attach the flue to the wall of the house up to the soffit. 12. On 30 August 2019 Mr Bailleux provided a quote by email to Mr Crichton to extend the flue to the roof of the property. Devex's email provided as follows: Please find attached your quotation to bring the flue terminal to the roof…Please note that this quote doesn't include roof penetration, core holes, or scaffolding (this is to be provided by the builder). 1. It was Devex's usual practice to require the client to arrange for scaffolding if it was required to undertake their work. 2. After receiving the Devex quote, Mr Crichton spoke to the defendant and asked him to undertake the necessary work to install the flue in co-operation with Devex. Mr Crichton did not recall discussing with the defendant the specifics of what was required from him. Rather, he put the defendant in touch with Devex with the intention that they would arrange the work between them. 3. The defendant's evidence was that Mr Crichton called him on 3 September 2019 and told him that he needed a core hole drilled to put the flue through, and "banged on about a couple of other defects" that the defendant had not rectified. The defendant's evidence was he knew precisely where the core hole had to go and he devised a plan to put up a single width scaffold to catch the concrete core to prevent it from hitting the equipment below. 4. There was no evidence of any contact between the defendant and Devex prior to 9 September 2019. The scaffold available for hire from Kennards Hire 1. On 3 September 2019, the defendant telephoned Kennards Hire at Woollahra (Kennards) to hire a 5m single width mobile scaffold. Kennards at Woollahra did not have the scaffold in stock but made arrangements to supply the scaffold from its Waverley branch. 2. The defendant gave evidence that he chose the aluminium scaffold for the task because it was lightweight and unlikely to cause damage to the tiled pathway underneath where it was to be installed. 3. In 2019, Kennards hired mobile scaffolds out to customers as a package and did not permit customers to hire individual scaffold components. The 5m single width mobile scaffold available from Kennards, and supplied in this case, was an Oldfields 2600 series which consisted of the following components: 1. 8 single width (700mm wide) extensions, being the end piece of the scaffold. Each extension was 1500mm high and consisted of 3 transoms (or rungs) that were 500mm apart; 2. 12 diagonal braces with blue C-hook couplers on each end that were secured onto the transoms by a spring loaded latch; 3. 12 horizontal braces with yellow C-hook couplers on each end that were secured to the extensions by a spring-loaded latch (ledgers); 4. 3 (570mm x 2400mm) aluminium framed plywood working platforms with a trap-door at one end; 5. 4 castor and leg assemblies; 6. 1 plan brace with green C-hook couplers on each end that were secured to the extensions by a spring-loaded latch; 7. 4 toeboards; 8. 4 outriggers with red markings; 9. 2 (2400mm) internal ladders; and 10. 1 (3000mm) internal ladder. 1. The diagrams of mobile scaffolds displayed on the Kennards website were all the same and they did not actually or necessarily depict the mobile scaffold being hired. For example, on 18 November 2019 the Kennards webpage referring to the 5m single width mobile scaffold, actually depicted a 5m double width mobile scaffold. 2. When erected as designed, the Oldfields 5m single width platform could be constructed to a height of 6m plus the height of the castors. The manufacturer's instructions required the highest work platform to be installed at a height of 5m with two handrails at 5.5m and 6.0m (plus the height of the castors). In order to comply with the Regulations, the highest work platform could only be installed to a height where there was a risk of a person or object falling no more than 4m, when erected by a person or persons who did not hold a HRWL. 3. In 2019, Kennards had a practice of advising customers who hired scaffolds that if it was to be erected to a height of more than 4m that the customer would need a licensed scaffolder to erect and dismantle it. If the customer asked for the details of a licensed scaffolder, they would be referred to Oldfields who could supply, erect and dismantle the scaffold. At the relevant time, the Kennards website page for the 5m single width scaffold contained the following wording: A licensed scaffolder is required for the erection, alteration or dismantling of a mobile scaffold where there is a risk that a person or object could fall more than 4 metres from the platform of the structure. 1. For a customer who had supplied their email address to Kennards, the Kennards computer system would send out the Hire Contract Conditions and the Kennards General Safety Brochure once the customer had placed an order. For hire of scaffolds, the system would also send out the Advanced Scaffold Guide. Michael Egan, the branch manager of Kennards at Waverley in 2019, gave evidence that these documents were sent by the Kennards computer system but that the system did not permit retrieval of those emails for the purpose of the proceedings. 2. The order for the hire of a 5m single width mobile scaffold in the Kennards computer system generated a delivery docket for the components referred to in [24] above. A driver would then load the components listed on the delivery docket onto a truck for delivery to the customer. 3. In 2019 it was not common practice for Kennards to supply components that were not listed on the delivery docket. 4. The drivers carried an electronic device referred to as a "PDA". On delivery, the PDA would display a Customer Alert screen that provided: All components supplied must be used & erected according to operators instructions*****scaffold over 4m or with a potential fall height of 4m, must be erected/dismantled by a certified person. 1. The customer or the driver was required to select "yes" on this screen to be allowed to proceed. If the driver selected yes, he or she could only do so after explaining the Customer Alert screen to the customer. If the customer selected yes, it was presumed that they had read the Customer Alert screen before doing so. 2. The customer was then asked to sign on the screen of the PDA with their finger below the following words: By signing below you acknowledge that the hire is provided under and governed by the Hire Contract Conditions and this Hire Schedule certify that the equipment is received in good order and condition and that you have read and understood the Hire Contract Conditions immediately before signing. The Hire Contract Conditions have been agreed with you. If you are an account customer and in any event visit your local Kennards Hire store and online at kennards.com.au. 1. The diagonal braces and ledgers were stored at Kennards in packs of 4, with the C-hook couplers attached to short pieces of aluminium tubing of the same diameter as the extensions. The 1500mm extensions were stored in twos, stacked at double height. There were also 1100mm extensions that were stored the same way as the 1500mm extensions. The 1100mm extensions were referred to as "safety ends" because they provided a handrail for completed scaffolds. 2. In 2019 Kennards had in place a Ready for Hire Procedure (RFHP) with respect to each hired item. In respect of mobile scaffolds, the RFHP required the components to be checked and washed down when they were received back from hire. Relevantly, the C-hooks couplers were to be inspected for damage, corrosion, deformation and to see that they worked correctly. The spring-loaded latch mechanism was required to be opened and attached to a piece of frame tube and checked that it did not become detached from the frame tube using "moderate to heavy force". 3. There was a RFHP Checklist for scaffold components provided for use at Kennards branches and the RFHP was also depicted in a series of photographs on a placard that was displayed in the yard of the Kennards branch at Waverley where the mobile scaffold components were stored. 4. Mr Egan agreed in cross-examination that the RFHP inspections of mobile scaffold tower components could only pick up obvious defects, but that would include if the spring-loaded latch on the C-hook coupler was not working correctly. 5. In 2019 Kennards did not keep a record of RFHP inspections of equipment, but it did conduct detailed triannual audits of each branch that examined compliance with the RFHPs. The RFHP audit was conducted by randomly selecting 50 pieces of equipment and having the auditors check if they were in fact ready for hire in accordance with the relevant RFHP. Stuart Dean, the Chief Operating Officer of Kennards, gave evidence that the average compliance rate across all branches in Australia with the RFHPs was 92%, meaning that on average, 8% of equipment checked was not ready for hire in accordance with the relevant RFHP. Mr Dean was unaware of the compliance rate for the Waverley branch in 2019. 6. The instructions for the erection of the scaffold were set out on a sticker attached to the underside of the work platforms. The Tower Erection Procedure (TEP) provided as follows: This procedure is for assembly of towers with platforms typically at 2m intervals, up to 4m high. Only certified scaffolders are allowed to assemble towers over 4m high and must comply with local statutory regulations, which may differ from State to State. 1. For mobile Scaffolds, insert castors into two base frames and lock (castors may be adjustable). For non-mobile scaffold, insert adjustable bases into two base end frames. 2. Attach at least one horizonal brace (yellow) to the frame upright just above the first rung with the snap hook facing outwards. The frame is now self-supporting – See Fig. 1. 3. Add another horizontal brace (yellow) stand up the opposite base end frame and attach the other end of the two horizonal braces (yellow). 4. Install a plan brace (red) to diagonally opposite uprights below the first rung. 5. Check that the scaffold base is square – See Fig. 2. 6. Level the base in both the horizonal and vertical directions by adjusting the castors or base plates with a spirit level. 7. Install two diagonal braces to stabilise the base frames (typically 2m high). 8. Install the next end frames on top of each of the two base frames and install the diagonal brace (blue) above and below the joining point of the base end frames. 9. Install one platform as a temporary platform approximately 1m from the ground between both end frames. 10. Erect the ladder access platform nominally 1m above the temporary platform which should be staggered. This is part of the first working platform and will act as fall prevention. Install an access ladder through the opening section of platform – See Fig. 4. 11. Erect horizontal braces (yellow) as guardrails and mid rails for the working platform whilst standing on the temporary platform. See Fig. 4. 12. Remove the temporary platform and place it above to complete the working platform. The working platform should now include the ladder access platform and the access ladder – See Fig. 5. 13. If working height is expected to exceed 3 times the least base dimension, outriggers must be fitted. For a 0.7m wide towers outrigger must be fitted where height exceed 2 times the least base dimension. If outriggers are not used then tower is to be stabilised by installing ties to a suitable structure. 14. Access the first working platform via the internal ladder. 15. Repeat the above process installing working platforms with ladders at nominally 2m intervals – See Fig. 5. 16. Install Toeboards at working platform levels. 17. Tower is now complete with top working platform at 4m height , as shown in Fig. 6. 18. Before using the scaffold, the scaffold must be checked to make sure that it is built correctly and stands vertical. If in doubt, ask your supplier. Events of 9-11 September 2019 – lay evidence 1. As a result of there being a factual dispute as to what occurred in the period 9-11 September 2019, I have set out the evidence of the lay witnesses relevant to this period and will make findings on the evidence later. Evidence of Cristobal Rivera 1. At 7.00am on Monday 9 September 2019 Mr Rivera arrived at another RSC site at 3 Attunga Street, Woollahra (the Attunga Street site). The defendant told Mr Rivera that he was needed to assist Mr Connell to erect a scaffold at the property. A short time later the defendant drove Mr Rivera and Adam to the property. 2. Mr Rivera gave evidence that the defendant told him that Mr Connell was going to drill a hole in the roof and that they would need to catch the piece of concrete that came out to avoid damaging the air conditioning system underneath. The defendant told Mr Rivera that they were going to install a chimney through the hole in the roof. 3. Mr Rivera gave evidence that he arrived at the property at about 7.40am and that Mr Connell arrived a few minutes later. Mr Rivera gave evidence that the defendant and Mr Connell had a discussion as to where the scaffold was to be erected. When they arrived, the scaffold had not been delivered to site, but it arrived on a Kennards truck a short time later. 4. Mr Rivera gave evidence that the scaffold was unloaded by the truck driver onto the street at the front of the property. By that time there had been discussions as to where the scaffold was to be erected, which was next to the neighbour's house where the air conditioning system faced the beach. Mr Rivera gave evidence that the defendant, Mr Connell, Adam and himself then carried the components of the scaffold to where the scaffold was to be erected. 5. Mr Rivera gave evidence that there was no SWMS discussed or given to him about erecting the scaffold. He was not given any instructions on how to erect the scaffold from Kennards. There was no specific discussion about the hazards and dangers of erecting the scaffold, but there was a usual instruction given every morning, that if he felt unsafe in doing a task to say something and another way would be found to do the task. 6. Mr Rivera gave evidence that there was discussion to the effect that the scaffold would be built up to get close to where the core hole was to be drilled in the soffit. Mr Rivera gave evidence that he saw the instructions on the work platform of the scaffold but did not read them because he thought he knew how to erect the scaffold. When the scaffold components had been carried down, Mr Rivera gave evidence that they were not checked to see if they were safe to use and he did not notice anything unusual about them. 7. Mr Rivera accepted in cross-examination that he was told by the defendant that the scaffold was being erected to protect the air conditioning unit. He also agreed that the workers did not need to use the scaffold to reach the roof to drill the core hole. Mr Rivera did not accept in cross-examination that the defendant instructed the workers that the scaffold was to be built to a height of no more than 4m or that they were not to use the scaffold for any purpose after it had been erected. To the contrary, Mr Rivera understood that a purpose of erecting the scaffold was to stand on it and catch the concrete core hole and Mr Connell told him to do that. 8. Mr Rivera gave evidence that the defendant stayed for a few minutes while they began to erect the scaffold, before leaving the property. 9. Adam and Mr Rivera passed components of the scaffold to Mr Connell who was putting them together and this included the installation of the handrails. The components were installed by hand and there was a "click" sound when the handrails were put into place. 10. The workers got up to the higher parts of the scaffold by climbing up the outside of the scaffold and installing an internal ladder supplied with the scaffold, on the outside of the extensions. No internal ladders were installed on the scaffold. For the higher levels, the braces and ledgers were passed up through the middle of the scaffold, but the work platforms were passed up on the outside of the scaffold between the wall on the boundary and the scaffold. On occasions this required Mr Rivera to stand on top of the boundary wall to pass up components. Mr Connell instructed Mr Rivera to stand on the wall to pass up components and to pass the work platforms on the outside of the scaffolding, because those actions would make the job easier. When standing on top of the boundary wall, Mr Rivera was 2.7m above the ground of the property and 3.3m above the ground of the neighbouring property. At times he had both feet on top of the wall and at other times he had one foot on the wall and one foot on the scaffold. Mr Rivera gave evidence that he had trouble keeping his balance and that where he was standing was unsafe. 11. Mr Rivera gave evidence that they continued to build the scaffold to the height of about 7m and that it took all morning to erect. 12. Mr Rivera gave evidence that the defendant returned to the property on 9 September 2019 after the scaffold was erected but before they drilled the core hole. In cross-examination, Mr Rivera accepted that he may have been mistaken about the defendant returning to the property on 9 September 2019. 13. After the scaffold was erected, Mr Connell, Adam and Mr Rivera tried to catch the concrete from the core hole. Mr Connell instructed Mr Rivera to stand on the middle work platform and to try to catch the concrete core hole in a bucket. Mr Rivera climbed up the outside of the scaffold using the ladder and held the bucket out with his arms. He tried to position the bucket close to the corner where the hole was being drilled, but there was a gap and he could not get close enough to catch the concrete. The concrete fell into a bin that Mr Connell had put on top of the water heater as a fail-safe. 14. The workers then cleaned up the area and left the property at about 2.30pm. Mr Rivera did not attend the property on 10 September 2019. 15. On 11 September 2019 Mr Rivera was at work at the Attunga Street site when he received a text message from Mr Connell asking for his help to dismantle the scaffold at the property. Mr Rivera agreed, and Mr Connell came and picked Mr Rivera up. 16. When they arrived at the property they went immediately to where the scaffold was. Mr Rivera did not notice any changes to the scaffold, from how it had been left on 9 September 2019. 17. Mr Connell proceeded to the highest level of the scaffold to remove components and hand them down to Mr Rivera. There was no discussion about how to undertake the task safely and Mr Rivera was not given a SWMS for the task of dismantling the scaffold. 18. Mr Rivera stood on top of the boundary wall to receive the dismantled components from Mr Connell. Mr Connell instructed Mr Rivera that he would hand the components of the scaffold down on the outside of the scaffold because that was the best way to undertake the task. Mr Connell instructed Mr Rivera to receive the components and put them on the work platform underneath where Mr Connell was standing. 19. Mr Connell first took off the handrails. At this time Mr Rivera was standing on top of the boundary wall below Mr Connell. Mr Rivera gave evidence that he had trouble maintaining his balance while he was standing on top of the boundary wall but could manage to handle the ledgers and braces in that position. 20. Mr Rivera was balancing on the boundary wall with one foot on the scaffold and the other foot on top of the boundary wall. At this time, Mr Connell tried to pass down the work platform that had been previously installed as the highest work platform of the scaffold. Mr Connell passed the work platform on the outside of the scaffold to Mr Rivera. When Mr Connell tried to pass the work platform down, Mr Rivera said to him that he was off balance. At this time Mr Connell was holding the work platform on the outside of the scaffold trying to transfer the weight of it to Mr Rivera. When Mr Rivera said that he could not take it, Mr Connell tried to hold the weight of the work platform. When he did so he leant on the handrail that was installed on the level he was standing. The handrail gave way and Mr Connell, the work platform and the handrail fell into the neighbouring property. After the fall, Mr Rivera climbed down the scaffold and tried to get to Mr Connell to render assistance. 21. Mr Connell fell over the top of the boundary wall and onto a paved pathway in the neighbouring property suffering serious head injuries which subsequently proved fatal. 22. A partial view of the incident was recorded by a surveillance camera on the side of the house. The footage depicts the lower half of Mr Rivera standing on the boundary wall and receiving the work platform from above him. At times, the work platform is rested on a lower handrail and at others it is not. It appears to be falling away from the scaffold at times. The incident happens quickly and only the work platform and the ledger can be seen to fall towards 14 Longworth Avenue. The footage supports the finding that Mr Connell was standing towards the western end of the work platform above Mr Rivera when he is handing the other work platform down to him. The precarious position of Mr Rivera standing on the boundary wall is clearly depicted and the footage supports his evidence that he was having trouble with maintaining his balance where he was directed to stand by Mr Connell. 23. At the time when Mr Connell fell, Mr Rivera indicated in a record of interview conducted on 10 October 2019 that Mr Connell was standing close to the western end of the work platform in a position that would have been directly above where Mr Rivera was seen to be standing on the video footage. Credit 1. Mr Rivera gave evidence by audio-visual link from Spain. English was not his first language and at times he used expressions consistent with a slightly different meaning to what I think he was intending to convey. On critical issues he was confident in his evidence in chief. He was prepared to make concessions in cross-examination out of an abundance of caution, but there was some hesitation in those concessions. Overall, I formed the opinion that for the most part, his evidence in chief was more reliable than those concessions. I am satisfied that Mr Rivera was doing his best to tell the truth and I accept his evidence. Evidence of Blake Sutton 1. Mr Sutton gave evidence that he attended the property on 9 September 2019 at the request of his manager, Mr Broughton, to undertake the work of installing the flue. He arrived at about 7.30am and saw the defendant, Mr Connell and another man were already present. Mr Sutton had met the defendant and Mr Connell when installing the system at the property in 2018. 2. Mr Sutton's evidence was that he had a discussion with the defendant to the effect that the scaffolding had not arrived on site yet and where the scaffolding needed to be erected. Mr Sutton gave evidence that he told the defendant that the scaffold needed to be as close to the wall as possible to allow for the installation of brackets to secure the flue. Mr Sutton gave evidence that the defendant told him that the defendant would contact him when the scaffold arrived. Mr Sutton gave evidence that he told the defendant that he would come back to the property once the scaffold had been erected and that the defendant told him that he would let him know. Mr Sutton then left the property. 3. Later that day Mr Sutton received a phone call from Mr Connell informing him that the scaffold was completed and ready for him to start the work. When challenged on this point in cross-examination, Mr Sutton denied that he received a call from Mr Broughton to this effect. He recalled it was Mr Connell that called him and that he had recorded that in the statements taken from him in the course of the investigation. 4. At about 7.30am on 10 September 2019, Mr Sutton returned to the property with Baxter King, an installer employed by Devex. Neither the defendant, nor Mr Connell, were on site. Mr Sutton went to where the scaffold was erected and saw that it was on a 45-degree angle to the building with three work platforms in place. He did not see a scaffolding tag on the scaffold. 5. He climbed up the side of the scaffold to the second work platform to see if he could reach the wall where the brackets needed to be installed to hold the flue in place. There were no internal ladders installed on the scaffold. Mr Sutton reached out with the drill but could not reach the wall. 6. Mr Sutton contacted his manager, Mr Broughton to tell him about the problem. He decided to install the lower part of the flue and to feed the pipe sections through the core hole in the soffit and to leave the installation of the brackets to hold the flue in place until another time when he could get access to the wall. 7. Mr Sutton and Mr King accessed the lower platform of the scaffold which was 3.2m above the ground to get access to the top of the water heater to install the lower part of the flue. Mr Sutton and Mr King completed their work at the property at about 11.00am. Before leaving the site, Mr Sutton took some photographs of the work he had done and the scaffold. Credit 1. Mr Sutton gave evidence in a straight-forward and honest manner. There was no reason to doubt his evidence. I accept that it was possible that his evidence was based on his understanding and assumptions of how the work was to be completed and that this may have differed from the defendant's knowledge. However, for reasons that I will come to, I am satisfied that his evidence was largely consistent with the objective evidence. Evidence of Inspector Kevin Murphy 1. At about 9.40am on 11 September 2019, Inspector Kevin Murphy from SafeWork NSW arrived at the property after being told that there had been a fall from height at 14 Longworth Avenue. Inspector Murphy took photographs and measurements and spoke to the defendant. 2. Inspector Murphy located a small piece of the C-hook coupler that had broken off from the end of the ledger on the ground closest to the eastern side of the scaffold. Inspector Murphy photographed the broken piece of the C-hook coupler in situ before moving it to take close-up photographs. 3. Inspector Murphy gave evidence that the rungs on the extensions of the scaffold were 500mm apart. He measured the scaffold from the ground to the top as being 8.65m in height. The scaffold had two work platforms in place, the lowest being 3.2m from the ground and the higher one being 5.15m from the ground. 4. Inspector Murphy identified that a number of the ledgers were installed with the C-hook couplers facing into the scaffold. His understanding was that the C-hook couplers should have been installed facing outwards. 5. He measured the top of the boundary wall as 2.7m above the ground at the property and 3.3m above the ground of 14 Longworth Avenue. 6. Inspector Murphy was told that the working platform and the ledger that fell at the time of the incident, were moved to allow emergency services to get access to Mr Connell to treat his injuries. Those items had been stored on the grass on the harbour side of 14 Longworth Avenue. 7. Inspector Murphy made notes in his official notebook of the information provided to him and measurements he took at the time of his attendance. 8. Inspector Murphy spoke to the defendant. The defendant told Inspector Murphy that he was a builder operating as a sole trader and that the scaffold was erected to install a flue for a heated floor system. The defendant told Inspector Murphy that the SWMS for the site, the induction for the workers and workers compensation records were stored at his office. He told Inspector Murphy that workers were inducted into the site by him on the day before, and he had observed the scaffold being erected, but was not present that morning when the scaffold was being dismantled. 9. Inspector Murphy then made notes about the components used in the scaffold. Inspector Murphy observed that the ledger that detached in the incident had a faulty spring-loaded latch at one end and the C-hook coupler at the other end was broken. 10. Later, Inspector Murphy issued a Prohibition Notice to the defendant and an Improvement Notice. The defendant made arrangements to have the scaffold dismantled by a licensed scaffolding contractor. Credit 1. There was very little challenge to Inspector Murphy's evidence. He presented as a truthful witness and I accept his evidence. Evidence of Jason Stitt 1. A few days before 9 September 2019, the defendant decided to use Mr Connell to install the scaffold at the property because he had experience with that kind of work for RSC. The defendant spoke to Mr Connell on 6 September 2019 and told him that he had to drill a core hole in the concrete roof and stop the concrete core from smashing into the equipment below. He also spoke to Scott Parker from TLH about the work required to be undertaken by Mr Connell. 2. The defendant's evidence was that he did not know what would happen after the core hole was drilled, because no-one had spoken to him about that, including Mr Crichton. The defendant gave evidence that he arranged to do the work on 9 September 2019 because that is when he told Mr Crichton that he would undertake the work. 3. At about 6.50am on 9 September 2019 the defendant arrived at the Attunga Street site. He told Mr Rivera, who was present, that he would be required to assist Mr Connell to erect a platform at another site. Mr Connell arrived and then drove himself to the property. 4. The defendant drove Mr Rivera to the property. On the way, the defendant told Mr Rivera that he would be assisting Mr Connell to erect "a restricted-height scaffold" and then to drill a core hole in the roof and to protect the equipment below where the hole was to be drilled. 5. The defendant and Mr Rivera arrived at the property at about 7.30am. Mr Connell and Adam arrived shortly afterwards. The defendant unlocked the security gate and walked to where the scaffold was to be erected with the three workers. 6. The defendant then gave the following evidence in chief: Q. What did you do then? A. I gave them a full risk assessment over what we like to call a SWMS (said as "swims") on working at heights over 2 metres. So I basically – I did not have a copy of the SWMS, but I – because I write it, I know exactly word for word what it says. … Q. What did you say to them? A: I said to all three of them, once we got to the area, we had to erect a restricted-height scaffold, so we're work – this is known as working at heights over 2 metres. So I've taken them through the risk, the SWMS, which is involved at working at heights over 2 metres. So if you look at our recommendations in our SWMS, it shows exactly what I had to show to them. I had to show what were the risk: the biggest risk was falling. Q. What instructions did you give them in relation to erecting the scaffold? A. The clearest of clear instructions was they were to assist Todd Connell. Q. To do what? A. To build a restricted-height scaffold. Q. How? A. How? Mr Rivera was to pass in the components, and he was not to enter the scaffold. 1. The defendant gave evidence that he instructed the workers to erect the scaffold on an angle to protect the equipment underneath where the hole was to be drilled and to put the platform just above the water heater which was about 2.8m above the ground. It had to be installed on an angle because of the position of the aluminium louvre housing for the equipment. He gave evidence that it was "obvious" that the platform could not be above 4m, because that was what was being delivered. 2. The defendant gave evidence that he instructed the workers to install two platforms, one just above the equipment and one at 4m to be used to catch the debris from the core hole being drilled. The defendant had also taken a garbage bin with insulation inside it to be used to catch the debris. It was intended that it would be wedged into the corner using some cross-braces. 3. The defendant gave evidence that he instructed the workers to erect the scaffolding in accordance with the SWMS "Use Mobile Scaffold" which included instructions that the scaffold could only be erected to a height of 4m and in accordance with the manufacturer's instructions. The defendant gave evidence that he also took the workers through the SWMS "Working at heights over 2 metres". The defendant gave evidence that the TBT at the site where the scaffold was to be erected took "a good 15-20 minutes". 4. The defendant gave evidence that he then took Mr Connell up onto the roof to show him where the core hole was to be drilled. When he was finished, he went back down to where the scaffold was to be erected and found Mr Rivera and Adam staring at the harbour. He gave evidence that he went through the systems with them again. 5. At about 8.30am the Kennards truck arrived to deliver the scaffold. The defendant described that the braces were usually delivered in packs of four with the C-hook couplers attached to a piece of tubing. 6. The defendant gave evidence that at some time Mr Sutton arrived and they had a brief conversation. He told Mr Sutton that he was there to put the core hole in the roof. He said Mr Sutton looked perplexed and that he said to Mr Sutton, "look, I don't know anything about why you're here", because he did not contact him. Mr Sutton asked him about where the core hole was going and the defendant told him. The defendant gave evidence that there was no further discussion. He thought that the discussion with Mr Sutton occurred just before he and Mr Connell got onto the roof. 7. The defendant gave evidence that he left the site at about 9.00am and from that time on, Mr Connell was in charge. He went back to the Attunga Street site. Mr Connell called the defendant in the mid-afternoon (about 2.00pm or 2.30pm) to say that he had drilled the core hole successfully and that they were cleaning up. He told Mr Connell to go to the Blake Street site the next day to continue the work he had been doing the week before. The defendant did not expect the scaffold to be dismantled on 9 September 2019 because it was close to the end of the day when the core drilling was completed. Kennards had advised that they could not pick up the scaffold the following day, so the defendant was content to leave it in place until 11 September 2019. 8. The defendant gave evidence that he did not return to the property or see the scaffold until after the incident on 11 September 2019. He could not understand the height of the scaffold when he saw it because it was taller than the mobile scaffold tower that he had ordered and must have contained additional components. 9. On 11 September 2019, the defendant instructed Mr Connell to return to the property to dismantle the scaffold. He instructed Mr Connell over the telephone to follow the SWMS in reverse, that Mr Rivera would give him a hand and that Mr Connell was the only one to be on the scaffold. The defendant gave evidence that he instructed Mr Rivera to assist Mr Connell in dismantling the scaffold and to take it to the front of the property to be collected by Kennards. 10. The defendant gave evidence that he did not have any discussions with anyone from Devex. He gave evidence that if he had understood that he was installing a scaffold for the purpose of installing the flue that he would have contacted a licensed scaffolder to install modular scaffolding because it would have been much higher than 4m. He expected that it would have cost about $7,000 to supply, install and dismantle that kind of scaffold. 11. The defendant gave evidence that he understood Mr Connell to be highly experienced at erecting restricted-height scaffolds, estimating that he would have erected between 50-100 scaffolds on sites controlled by the defendant over the years. 12. In cross-examination, the defendant denied that Mr Crichton told him what was required by Devex to install the flue, stating that they only spoke about drilling the core hole in the roof. He denied that he was not telling the truth when he gave evidence that he only hired the scaffold for the purpose of protecting the equipment underneath the core hole. He denied that before 9 September 2019 that he knew that Devex required the erection of scaffolding for the installation of the flue components to the wall of the house. 13. The defendant accepted that it was possible to erect the 5m single width mobile scaffold that he hired from Kennards to a height of more than 4m, and that would have required the involvement of a licensed scaffolder. The defendant accepted that Mr Crichton would not have had an issue with the cost of using a licensed scaffolder, if the defendant thought that it was necessary to do so. 14. The defendant accepted that he would have been required to use a licensed scaffolder if he had been asked to provide scaffolding for the purpose of installing the flue but maintained that those were not his instructions. 15. The defendant agreed that after the incident he was called to the property, met with Inspector Murphy and answered some questions. He agreed that he provided his contact details to Inspector Murphy and told him that he was a builder, operating as a sole trader. He denied telling Inspector Murphy that the scaffold was erected to install the flue for a heated floor system, stating that he did not recall saying that. He agreed that he told Inspector Murphy that Mr Connell was a labour hire worker and that he had been using TLH to supply workers for 7 years. He agreed that he told Inspector Murphy that the SWMS, induction material and workers compensation details were kept in his office. He agreed that he told Inspector Murphy that Mr Connell was not a licensed scaffolder. 16. The defendant agreed in cross-examination that he told Inspector Murphy that the scaffold had been erected to install the flue because: That was a simple explanation of why the scaffold was there, there was (sic) several tasks had to be performed to put a flue in. Our task was to put a core hole in, but there was no mention of the scaffold for anybody else to use. 1. The defendant accepted that he did not explain his position to Inspector Murphy, partly because the conversation happened shortly after the incident. He reiterated, in his evidence, that the scaffold was not set up for Devex to use, because he did not speak to anyone from Devex. 2. The defendant accepted that he told Inspector Murphy that he was present when the scaffold was erected on 9 September 2019, but he only stayed for a few minutes and saw Mr Connell and Mr Rivera setting out the base of the scaffold. 3. The defendant gave evidence in cross-examination that the SWMSs prepared by him were "site-specific". He agreed that they were generic SWMSs that bore the address of the property and his evidence was that made them site-specific. He accepted that the documents were not amended to include risks specific to the location of the work on the boundary between the two properties. He agreed that he did not prepare a SWMS to deal with the erection of the scaffold on 9 September 2019, incorporating the unique features of where it was to be erected. 4. In cross-examination, the defendant gave evidence that after the workers had finished their assessment of the site being over 2m, he gave site specific instructions as to where he wanted the outriggers and the braces of the scaffold put. He denied that there was very little instruction as to how the scaffold was to be erected, stating that his earlier evidence was that they spoke for about 30 minutes about how the scaffold was "to be erected site specific". 5. The defendant denied that Mr Sutton told him that the scaffold was required for the Devex workers to attach the flue to the wall, accepting that Mr Sutton may have told Mr Connell that. He denied telling Mr Sutton that the scaffold had not arrived on site yet, or that he would let Mr Sutton know when it was erected. He disagreed that Mr Sutton said he would be back when the scaffold was erected. 6. The defendant gave evidence that his conversation with Mr Sutton was brief and he said: We've got to put a core in. I don't know what you are doing here. 1. The defendant gave evidence that he was annoyed by Mr Sutton's presence and he did not seek any explanation from him. 2. The defendant denied the proposition that he did not go through the SWMS with the workers on 9 September 2019. He accepted that he and the workers knew that the TEP was on a sticker on the underside of the work platform and that he provided no express instructions on how to erect the scaffold because the SWMS directed the workers to follow the manufacturer's instructions. 3. The defendant denied coming back to see the scaffold on 9 September 2019 after it was erected. He denied that the scaffold was left in place for the Devex workers to use, stating that Mr Connell was required at the Blake Street site the following day and that's why the scaffold was left erected and not dismantled on 10 September 2019. 4. The defendant stated that he regularly reviewed the SWMS and signed them after each review. The documents did not disclose what, if anything, was amended at those times. The defendant gave evidence that the content of the SWMSs was not changed. He explained that where the SWMS relating to the erection of a mobile scaffold indicated a signature had been applied to it on 9 February 2015, 15 February 2016 and 13 February 2017 bore a reference to the 2017 Regulations which came into force on 29 September 2017, that the document "might have been updated in the office". Credit 1. In assessing the defendant's evidence, I am required to warn myself that there is no obligation on the defendant to prove any fact or issue that is in dispute. The burden of proving the offence always rests with the prosecutor. The defendant is presumed to be innocent until the prosecutor persuades the Court that the defendant is guilty beyond a reasonable doubt. The fact that the defendant gave evidence does not alter the burden of proof. The defendant does not have to prove that his version of events is true. 2. The defendant's evidence came across as being largely reconstructed from established events and contemporaneous documents. As a witness, he appeared to be very reactive to evidence from other witnesses or sources that he believed supported his case. 3. His evidence contained a number of internal inconsistencies. For example, as set out at [90] above, the defendant gave evidence that it was "obvious" that the scaffold could not be erected to a height of more than 4m, because that was the package that was being delivered. However, he knew by reference to the Kennards documents that evidence was not true. It was not until cross-examination that he conceded that he knew that the 5m single width mobile scaffold package that he ordered from Kennards could be erected, in accordance with the manufacturer's instructions, with the highest work platform installed at a height of 5m. 4. He presented as an advocate for his own cause and gave the impression that he had an interest in giving the evidence that he did. An example of this was his multiple uses of the term "restricted-height scaffold" when giving evidence. This is not a term defined by the legislation and there was no evidence from any other witness that it was a term ordinarily used by the defendant. For example, it was not put to Mr Rivera that it was a term ordinarily used by the defendant. It was not a term used by the defendant in his conversation with Inspector Murphy. My firm impression was that the defendant employed the term in a manner to persuade me that it was a term that he regularly used and was understood by the workers to mean a scaffold that could be erected without the engagement of a licensed scaffolder. 5. The defendant's evidence lacked meaningful content on a number of critical topics. For example, when the defendant was asked to tell the Court what he told the workers about erecting the scaffold on 9 September 2019 his evidence was imprecise and was comprised of a number of high-level assertions including the following. The defendant gave evidence that he was able to take the workers through the content of the SWMSs in detail, notwithstanding that he did not have the documents with him, because he was the author of both of the documents and knew them intimately. Despite this assertion, he did not give any answer in evidence that relayed the content of either document. In other words, his evidence did not rise above the assertion that he conveyed the content of the SWMSs to the workers. When pressed for what instructions he gave the workers, he responded, "the clearest of clear instructions". 6. The defendant gave evidence that demonstrated a lack of understanding of relevant legislative requirements, including the following. First, the defendant gave evidence that he instructed the workers to erect the scaffold with the lowest work platform just above the equipment (about 2.85m above the ground) and the second and highest work platform at a height of 4m. This involved a risk of a person or object falling more than 4m into 14 Longworth Avenue, because the ground level of the neighbouring property was 600mm lower than the property. Accordingly, the instructions given by the defendant related to "scaffolding work" as defined by the Regulations and that work could only be done by a licensed scaffolder. Second, the defendant gave evidence quoted at [87] above, that conflated the tasks of conducting a risk assessment and instructing workers on the content of SWMSs. Third, the defendant gave evidence that demonstrated that he did not understand the obligations in clause 300 of the Regulations for the SWMS for high risk construction work to be prepared taking into account the circumstances of the particular workplace. The defendant's evidence was that the SWMSs used by him were "site-specific" because he recorded the address of the property on them, but he accepted that they were generic documents and were not amended to take into account the risks presented by the location of the work at the property. 7. I am satisfied that the defendant made two prior inconsistent statements to Inspector Murphy. First, that the scaffold was erected for the purpose of installing the flue. And second, that he observed the scaffold being erected. I do not accept his evidence that tried to explain these statements in a manner that was consistent with his evidence. 8. I do not accept that the SWMS "Use Mobile Scaffold" presented and relied on by the defendant was an authentic document. On its face, the document sought to convey that it had it had been compiled and reviewed by reference to the 2017 Regulations on a number of occasions before those Regulations came into existence and or force. I do not accept the defendant's explanation for this anomaly, that it was a result of an update in the office. 9. In my view, the defendant's evidence was untruthful in a number of respects. Bearing in mind the onus of proof, that is not sufficient to establish his guilt. I am required to put those aspects of his evidence to one side and to decide on the basis of the evidence in the prosecution case if the offence is proven beyond reasonable doubt. Expert evidence The cause of the incident – opinion of Dr Helliar and Professor Cortie 1. The defendant retained Dr Allan Helliar, a metallurgist and mechanical engineer to provide an expert opinion on the cause of the failure of the ledger. 2. The prosecution retained Emeritus Professor Michael Cortie, a metallurgical, materials physics and nanotechnology consultant to respond to the evidence of Dr Helliar. 3. Both Dr Helliar and Professor Cortie were highly qualified. They gave concurrent evidence and were exemplars of highly professional expert witnesses. In the end, they agreed on all but one factual issue which I am in a position to determine taking into account all of the evidence. As a result of the extent of their agreement, it is not necessary to set out their evidence in detail, but it is sufficient to summarise their evidence by setting out a series of propositions. 4. The main question the experts were asked to address was whether the initiating cause of the incident was the fracture of the C-hook coupler due to a previously undetectable metallurgical fault in it. 5. By the end of their evidence, the experts agreed that the C-hook coupler broke by reason of the bending force applied to it following the detachment of the C-hook coupler at the other end of the ledger by reason of the faulty spring-loaded latch. In other words, the fracture of the C-hook coupler was a consequence of the incident, rather than the initiating cause of it. 6. The experts agreed that the C-hook coupler with the faulty spring-loaded latch detached from the extension first, as a result of the force applied to it by Mr Connell. The experts agreed that this initiating event would not have been possible if the C-hook coupler had been installed facing outwards, in accordance with instruction 2 in the TEP. 7. Clause D6.1 of the Australian Standard Scaffolding Part 3: Prefabricated and tube-and-coupler scaffolding AS 1576.3:2015 (the Australian Standard) required that the ledger was to be capable of withstanding a horizontal force of 1100 Newtons or 110kg when installed. In the event that the C-hook coupler was installed facing inwards, the spring-loaded latch was required to resist that amount of force and both experts assumed that, as manufactured, the spring-loaded latch would have been capable of doing so. Professor Cortie described that amount of horizontal force as significant and unlikely to have been exerted on the facts as known to him. He gave evidence that assuming Mr Connell weighed 85kg and the work platform weighed 25kg, for a total of 110kg, Mr Connell would not have been exerting 110kg of horizontal force on the ledger because when he was standing, most of the force of his weight was exerted as downwards force rather than horizontal force. Dr Helliar agreed with this analysis. On this basis, the experts agreed that either the spring-loaded latch was faulty prior to being installed or that it was not properly attached when the scaffolding was erected. Both experts agreed that the simplest and thereby the most probable explanation was that the spring-loaded latch was in the same faulty condition at the time it was installed as it was when it was located after the incident, because the fault explains what actually occurred in the incident, that is, that the spring-loaded latch detached. Taking into account all of the evidence, I am satisfied that the spring-loaded latch was faulty at the time that it was installed and was not capable of functioning as intended by reason of the fault in it. I find that the fault in the spring-loaded latch was readily observable at the time that it was installed. I find that it became detached from the extension as a result of the weight applied to the ledger by Mr Connell leaning against it while trying to control the passing of the work platform to Mr Rivera. I am satisfied that this occurred notwithstanding the requirements of Kennards' RFHP relating to the scaffold. It is clear from the evidence of Mr Dean that the RFHPs were not 100% effective and not every piece of equipment available for hire was subjected to an audit. Further, for the reasons at [194]-[197] relating to the mistaken supply of additional components for the scaffold, I am also satisfied that Kennards' systems could and did breakdown from time to time. 8. If I am wrong in my finding that the spring-loaded latch was faulty at the time that it was installed and the spring-loaded latch failed at the time of the incident by reason of a previously undetectable fault in it, I find that the ledger would not have detached if it was installed with the C-hook coupler facing outwards. 9. Once one end of the ledger detached, Mr Connell's bodyweight and the weight of the work platform applied a horizontal and downwards force on the ledger, which remained attached at the other end, causing the ledger to act as a lever. This applied a rotational force to the C-hook coupler that remained attached to the extension (bending moment) causing the C-hook coupler to fracture, leading to the ledger becoming detached and falling with Mr Connell. 10. Both experts examined the fracture site and a cross-section of the failed C-hook coupler. Both agreed that it displayed areas of shrinkage, porosity and dendrites. Dr Helliar initially opined that the amount of porosity may have weakened the C-hook coupler making it more prone to failure. Professor Cortie disagreed that the observed condition weakened the C-hook coupler to the extent that it was "out of specification" and opined that in any event the amount of the rotational force applied to the C-hook coupler was certain to cause the fracture of a full-strength C-hook coupler on the assumption that Mr Connell was standing more than 1400mm away from the fractured C-hook coupler. In the witness box, Dr Helliar agreed with Professor Cortie's opinion. 11. The only area of disagreement between the experts was which end of the ledger had the faulty spring-loaded latch and detached first. Dr Helliar opined that the faulty spring-loaded latch was installed at the eastern end of the scaffold and that the C-hook coupler that fractured was installed at the western end of the scaffold. Dr Helliar opined that the broken piece of the C-hook coupler ended up where it was found by ricocheting off the boundary wall or other surfaces. Professor Cortie opined that the faulty spring-loaded latch was installed at the western end of the scaffold close to where Mr Connell was standing and trying to pass the work platform to Mr Rivera, because at that point Mr Connell would have applied the most rotational force to the C-hook coupler installed at the eastern end of the scaffold making it more likely to fracture. 12. I am satisfied that the faulty spring-loaded latch was installed at the western end of the scaffold for the reasons that follow. First, the video footage depicts Mr Rivera being positioned at the western end of the scaffold to receive the work platform from above and Mr Rivera nominated in his interview with SafeWork that was where he was standing. At that point, the scaffold was very close to the boundary wall that Mr Rivera was standing on. Second, by reason of the shape and weight of the work platform, in order to pass it down to Mr Rivera, Mr Connell would have to have been standing very close to directly above Mr Rivera, if not directly above him. Third, it is much more likely that the faulty spring-loaded latch detached from the extension because the horizontal force of Mr Connell's weight was applied close to where it was ineffectually attached to the extension. Fourth, this position maximised the amount of rotational force applied to the C-hook coupler attached to the eastern extension of the scaffold, making it much more likely to fracture in the way that it did. On Professor Cortie's analysis, the minimum tensile strength of the C-hook coupler was required by the Australian Standard to be between 130 and 290 Megapascals (MPa). If Mr Connell was standing within 900mm or less from the western end of the scaffold, Professor Cortie estimated an applied force of between 340 and 544 MPa, which was more than sufficient to cause the fracture of the C-hook coupler at the eastern end of the scaffold. If the converse was true, Professor Cortie estimated that Mr Connell would have applied between 68 and 159 MPa, which would not have been likely to cause the C-hook coupler to fracture. Finally, the location of the broken part of the C-hook coupler was found at the bottom of the eastern end of the scaffold, directly beneath where it failed. I find this to be much more likely than Dr Helliar's speculative opinion on this point. The scaffolding experts Paul Gooding 1. The prosecution qualified Paul Gooding, a Head Teacher of Rigging and Scaffolding courses for TAFE New South Wales as an expert on the erection and dismantling of scaffolding. Mr Gooding is familiar with the content of the courses taught to enable persons to qualify for a HRWL for scaffolding in New South Wales and is contracted by SafeWork NSW to assess applicants for a HRWL in scaffolding. Mr Gooding has been a licensed scaffolder since about 1997 and had worked in the industry full-time until about 2014. 2. On the assumption that the mobile scaffold tower in the case was erected to a height of 8.65m, Mr Gooding opined that the minimum requirement for a person erecting, altering or dismantling the scaffold was a HRWL in basic scaffolding: Table 3.1 of Schedule 3 of the Regulations. The relevant training course to obtain a HRWL in basic scaffolding is the National Training Unit of Competency CPCCLSF2001A – Licence to erect, alter and dismantle scaffolding basic level (the UOC). 3. Mr Gooding based his opinions on the content of the knowledge and performance criteria of the UOC and set out the relevant requirement with respect to each opinion expressed. I will not repeat that he did so, unless it is necessary to do so. 4. Mr Gooding opined that a licensed scaffolder should have conducted an inspection of all of the components of the scaffold to ensure that they were in working order and did not have any indicators of damage to them, such as cracks, bends, distortions or twists, prior to the erection of the scaffold. This would have included a functional test of the spring-loaded latch on the C-hook couplers of the ledgers and braces. Any components found to be faulty should have been isolated and not used in the erection of the scaffold. 5. Mr Gooding opined that the components of the scaffold should have been inspected by a licensed scaffolder on delivery of the scaffold components, when they were separated into their various categories, and during the erection of the scaffold. 6. Mr Gooding stated that the primary hazards associated with erecting scaffolding are: 1. falls from height; 2. structural collapse of the scaffold; and 3. manual handling tasks. 1. The incorrect installation of ledgers carries with it a high risk of falling from height and care must be taken to ensure that ledgers are installed in the correct orientation and that they are not defective. 2. Mr Gooding opined that a licensed scaffolder should have identified the correct placement of the C-hook coupler at the time of installation. A licensed scaffolder should have installed the ledgers on the scaffold in accordance with instruction 2 of the TEP with the C-hook couplers facing outwards because in that orientation the C-hook coupler provided a secondary safeguard by pushing against the vertical component of the scaffold, which would have prevented the detachment of the C-hook coupler if the spring-loaded latch failed because it was defective. 3. Mr Gooding opined that the incorrect installation of the ledger created a risk that if a worker leaned against it that it could detach because there was no secondary mechanism that prevented it from doing so. 4. Mr Gooding opined that the mobile scaffold tower was an incorrect type of scaffolding for the task required, because there was no need for it to be able to be repositioned. 5. In cross-examination, Mr Gooding did not accept that a person with experience of constructing mobile scaffolds over an extended time was necessarily competent to do so. He reasoned that this is because they may be doing it incorrectly over the extended time, as a consequence of a lack of proper training. 6. In the course of erecting a scaffold, Mr Gooding gave evidence that he would have expected that both a person picking up a component to be handed up for installation and the installer, should have undertaken a functional assessment of the component before it was installed. 7. Mr Gooding accepted that in the erection of a single width mobile scaffold of the kind involved in the incident, that the work platforms would need to have been handed up on the outside of the scaffold because they could not fit through the trapdoors of the installed work platforms, but that the braces and ledgers could have been passed up internally. 8. Mr Gooding presented as an excellent witness. All of his opinions were based on his expertise and were logically sound and I accept his evidence. David Dundon 1. The defendant qualified David Dundon, a self-employed safety advisor to provide an expert report on the scaffold. 2. Mr Dundon opined in his report that there was insufficient information in the TEP and the Australian Standard, as to: 1. whether the C-hook couplers should have been installed facing inwards to the scaffold or outwards to the scaffold; and/or 2. the possibility that a spring-loaded latch might "pop-off" if the C-hook coupler was installed facing inwards. 1. Mr Dundon stated that in his experience he had not heard of a spring-loaded latch detaching as occurred in the incident. 2. Mr Dundon noted that the only reference to the need to install ledgers facing outwards was instruction 2 of the TEP, leaving a worker to interpret if that instruction applied to all the remaining ledgers, in the context that there was no warning in the TEP, that all ledgers must be installed facing outwards to prevent a C-hook coupler from disconnecting. 3. Mr Dundon stated that where a mobile scaffold can be hired and erected without a HRWL in scaffolding, there was an onus on the suppliers to provide easy to interpret instructions with clear diagrams to clearly explain the hazards and the serious consequences of installing components in the wrong orientation. Mr Dundon also noted that the TEP did not include a reference to the 2011 WorkCover NSW Guide to Erecting, Altering and Dismantling Scaffolds Part 2 (the Guide) that provided helpful information for the planning of the erection of scaffolds. Mr Dundon opined that instructions for the scaffold published after the incident were much clearer in that they specified at instruction 2 and instruction 12 that the yellow horizontal braces (which I have referred to as ledgers) must always be installed facing outwards with a clear depiction of that in Figure 1. 4. Mr Dundon stated that he could not tell if the spring-loaded latch on the C-hook coupler was faulty when it was installed without a photograph of it taken before the incident. He could not say if it was visually inspected before it was installed or if the fault would have been visually apparent. He disagreed with Inspector Kent's opinion that the fault in the spring-loaded latch would have been apparent and that the ledger could not be installed securely. 5. Mr Dundon opined that it would have been obvious to a worker installing the ledger if the spring-loaded latch was not working properly because it would have been loose at that end when it was installed. He reasoned, by implication, that a worker would not have installed the ledger in those circumstances. Mr Dundon reasoned that the fault therefore must not have been discernible, because the worker installing it would have known it was not securely attached and would not have left it in that state. 6. Mr Dundon accepted that it was possible that the fault in the spring-loaded latch may not have been apparent on inspection and if that was true, even a licensed scaffolder would not have been able to identify such a fault. 7. Mr Dundon opined that if the spring-loaded latch was operating as designed it should have been sufficient to hold the ledger in position, even if it was installed with the C-hook coupler facing inwards, because the Australian Standard required the guardrail to withstand a horizontal outwards or downward force of 1100 Newtons at the midspan. This coincided with Dr Helliar's opinion. Mr Dundon stated: …if the latch was not defective it follows that it would be sufficiently strong enough to remain in place, even with the load of a person leaning on the [ledger]. 1. Mr Dundon did not express an opinion on whether the scaffold was suitable for the purpose it was erected for, stating that the failure of the ledger was not related to that purpose. Mr Dundon did not believe that the scaffold was otherwise unstable. 2. Mr Dundon's report continued to comment on the opinions of Inspector Kent, Professor Cortie and Mr Gooding. It is not necessary to canvas those comments for the reasons that follow. 3. First, the opinion of Inspector Kent as to the cause of the incident was subsumed by the agreement between Dr Helliar and Professor Cortie, who were both far more qualified to opine on that issue than Inspector Kent. Inspector Kent's observations of certain matters were relevant qualifying material considered by Dr Helliar and Professor Cortie, but I do not rely on his opinion to independently to prove the cause of the incident. Second, Mr Dundon's comments on Professor Cortie's reports called into question the validity of some of the assumptions made by Professor Cortie and the conclusions based on those assumptions. For the reasons given, Dr Helliar agreed with Professor Cortie's opinions and did not take issue with the matters raised by Mr Dundon. Dr Helliar had superior expertise to Mr Dundon on those matters and I prefer the joint position of Dr Helliar and Professor Cortie on those issues. Finally, the criticisms made of Mr Gooding's report stand or fall on the acceptance of Mr Dundon's opinions on their own merit and I will deal with these matters. 4. In cross-examination, Mr Dundon gave evidence that a licensed scaffolder asked to erect a mobile scaffold of the sort involved in the incident, without ever coming across it before, may read the instructions that came with it, but would have an understanding of how to erect it anyway. He agreed that a licensed scaffolder in those circumstances should read the instructions, but that the instructions supplied were not clear and a licensed scaffolder may not be in any better position than a worker who did not have a HRWL in basic scaffolding. Mr Dundon's evidence was that if he was supervising a worker erecting a mobile scaffold of the kind involved in the incident that he would have to read the instructions to determine if the worker was creating a risk to their own health and safety by installing a component in a particular way. 5. Mr Dundon agreed that a licensed scaffolder was required to erect a scaffold, if there were no internal ladders installed and a worker was required to climb the extensions to a height of over 4m to erect the scaffold. 6. Mr Dundon did not agree that the design of the C-hook coupler, if installed facing outwards, obviously provided a safeguard against the failure of the spring-loaded latch. He stated that it should have been clearly stated that if installed facing inwards there was a risk that the C-hook coupler could detach. 7. Mr Dundon did not agree that a worker erecting a mobile scaffold should conduct a functional test of a spring-loaded latch before installing a ledger, because if there was a fault in it, the fault would be obvious because it would be loose when you "gave it a little bit of a shake" to test it was properly attached. 8. Mr Dundon agreed that if the scaffold was erected to a height of more than 4m, then a licensed scaffolder was required, irrespective of the intended height of the scaffold. 9. Mr Dundon agreed that a licensed scaffolder should seek further information from the supplier of the scaffold if they were in doubt about how the components were to be put together, but they may not do so. Mr Dundon accepted that he knew that the C-hook coupler should be installed facing outwards because it offered an extra layer of protection, because of his experience, but not everyone would realise that. 10. Mr Dundon agreed that he would expect a licensed scaffolder to look at the safety information provided with a scaffold, to follow the manufacturer's instructions and to seek further information if they were in doubt about the proper way to erect the scaffold. He also accepted that a licensed scaffolder would be able to detect a fault in a spring-loaded latch by performing a simple functional test, which he demonstrated in the witness box, and that a licensed scaffolder would have put the component aside and not used it if it failed the functional test. 11. Mr Dundon agreed that the scaffold as erected, with the orientation of the C-hook couplers, missing ledgers and the location of some ledgers in the wrong position, called into question the competence of the person erecting it to do so safely and that the scaffold was not suitable to be used to attach the flue to the wall of the house. 12. In response to my questions, Mr Dundon agreed that the photographs of the scaffold as erected demonstrated a general failure to comply with the TEP. 13. This was apparent from the photographs in the following respects, when compared to the requirements of the TEP. First, the bottom ledger was installed with the C-hook coupler facing inwards in contravention of instruction 2 in the TEP that explicitly provided that the C-hook coupler was required to face outwards, Second, there was no second ledger installed at the bottom of the scaffold: instruction 3 of the TEP. This was of necessity because a ledger could not be installed on the southern edge of the scaffold due to the presence of the aluminium louvre doors that enclosed the air conditioning unit, hot water service and the water heater. Third, there was no plan brace installed at the bottom of the scaffold: instruction of 4 the TEP. Fourth, the base of the scaffold was not necessarily square: instruction 5 of the TEP. Fifth, the cross-braces were not installed in accordance with instruction 7 or Figure 3 of the TEP. Sixth, the internal ladders were not installed in accordance with instruction 10 of the TEP. 14. Taking into account the photographs depicting how the scaffold was erected, the steps in the TEP and the evidence of Mr Rivera that he did not refer to the instructions in the TEP, I find that Mr Connell did not have regard to, follow or rely on the instructions in the TEP when erecting the scaffold. 15. It follows that Mr Dundon's evidence about the inadequacy of the TEP was irrelevant to the determination of the case. In any event, I do not accept that evidence. In my view, point 2 of the TEP made it clear that the C-hook coupler was to be installed facing outwards. If there was any doubt as to whether that instruction applied to the other ledgers, it would have been incumbent on the worker erecting the scaffold to seek clarification of the instruction from Kennards or Oldfields. Further, it should have been obvious to anyone with practical experience in the construction industry that the design of the C-hook coupler was intended to provide redundancy in the event that the latch failed. 16. I do not accept Mr Dundon's evidence that Mr Connell would not have installed the ledger if the spring-loaded latch was defective. This opinion was clearly outside of Mr Dundon's expertise. 17. Overall, I found there to be an internal inconsistency in Mr Dundon's evidence. He opined that a licensed scaffolder should have read the instructions in the TEP, but then tried to justify the position that a licensed scaffolder may not do so, while also contending that the instructions in the TEP should have been clearer. 18. Taking into account all of the evidence, I prefer the evidence of Mr Gooding and accept Mr Gooding's evidence wherever it conflicts with Mr Dundon's evidence. Inspector Joshua Kent 1. The prosecutor instructed Inspector Joshua Kent to prepare a number of expert reports as to the cause of the incident. Inspector Kent's relevant expertise is an engineer and as a member of the committee responsible for the relevant Australian Standard. 2. For the reasons I have already given, Inspector Kent's evidence was relevant to the observations he made of the faulty spring-loaded latch after the incident as some of those observations were relied on by Dr Helliar and Professor Cortie. I do not need to rely on Inspector Kent's opinion as to the cause of the incident, because it coincides with the agreed position of Dr Helliar and Professor Cortie who were eminently more qualified to express their opinions vis-à-vis Inspector Kent and in addition they were entirely independent of SafeWork NSW and thereby their opinions carried considerably more weight than Inspector Kent's could have. 3. Inspector Kent gave evidence that when he examined the ledger that detached in the incident that the spring-loaded latch on the C-hook coupler that had not fractured was faulty. He assumed for the balance of his reports that the spring-loaded latch was faulty when the scaffold was erected, but accepted that he did not know for sure. He considered that it may not have been attached properly when erected and pointed to a photograph of a diagonal brace that did not appear to be properly secured, to support that opinion. Inspector Kent also later accepted that the spring-loaded latch may have become damaged and thereby faulty as a result of the fall from height in the incident. 4. Inspector Kent gave evidence in cross-examination that it would have been very difficult for Mr Connell to have exerted a horizontal force of 110kg to the ledger in the manner described by the evidence of Mr Rivera. He agreed that the three alternative causes of the incident were that Mr Connell exerted more than 110kg of horizontal force to the ledger, the spring-loaded latch was faulty and the fault caused it to detach under the load applied by Mr Connell or that the latch was not connected properly onto the extension when the scaffold was erected and that caused it to detach under the load applied by Mr Connell. 5. Inspector Kent agreed that the first and second set of instructions in the TEP could have been written with less ambiguity when it came to the requirement that the C-hook couplers should face outwards. His evidence was that reference to the diagrams made the position clearer. He was not aware of any safety alert on the topic issued by SafeWork NSW. 6. Inspector Kent opined that the C-hook couplers should have been installed facing outwards or downwards to prevent the ledgers detaching if the latch failed for any reason, and that was a design feature of them. 7. It is not necessary to make any findings about the evidence of Inspector Kent. Findings of fact 1. Based on all of the evidence, I make the following findings of fact, in addition to those I have already made. The instructions given to the workers on 9 September 2019 1. I accept Mr Rivera's evidence that he was not given any instructions by the defendant on 9 September 2019 prior to erecting the scaffold: 1. as to the height that the scaffold was to be erected to; and 2. on the content of the SWMS "Use Mobile Scaffold" or the SWMS "Working at heights over 2 metres". 1. I accept Mr Rivera's evidence that there was discussion about erecting the scaffold to a height to get as close as possible to the soffit. 2. I also accept Mr Rivera's evidence that the defendant did not instruct him to erect the scaffold to a height of no more than 4m and that the workers were not to use the scaffold for any purpose after it was erected. The workers did in fact, in accordance with Mr Rivera's understanding of the purpose of erecting the scaffold, stand on the second highest work platform which was 5.15m above the ground level of the property to try to catch the concrete core in a bucket during the drilling process. 3. I do not accept the defendant's evidence that he instructed the workers to erect the scaffold by reference to the SWMS "Use Mobile Scaffold" that included the instruction that the scaffold could only be erected to a height of no more than 4m and in accordance with the manufacturer's instructions. I pause to note that the SWMS "Use Mobile Scaffold" did not contain the instruction that a mobile scaffold had to be erected in accordance with the manufacturer's instructions. I also do not accept the defendant's evidence set out in [89] above, that prior to the arrival of the scaffold at the property, that he gave the workers a full risk assessment and took them through the content of the two relevant SWMSs, for the reasons that follow. 4. First, he had an interest in giving that evidence. Second, it was in conflict with the evidence of Mr Rivera, who did not have an interest in giving his evidence and whose evidence I have accepted and prefer on this issue. Further, the evidence of Mr Rivera was in stark contrast to the defendant's evidence. Mr Rivera gave evidence that he did not understand what a SWMS was and this cannot be reconciled with the defendant's evidence. Mr Rivera's evidence was supported by the lack of objective evidence that any worker had ever been trained on either SWMS, such as the existence of a copy of the document signed by a worker to acknowledge that training. Third, for the reasons given, the defendant's evidence lacked any meaningful content or precision on this issue and he conflated the task of conducting a risk assessment and instructing the workers on the content of the SWMSs. Fourth, for the reasons given, I do not accept that the defendant used the term "restricted-height scaffold" in the conversation with the workers. Fifth, Mr Connell was regarded to be a good worker and I find that it would have been highly unlikely for Mr Connell to erect the scaffold to a height in direct contravention of the defendant's clear instructions. 5. Even if I did accept the defendant's evidence on this point, which I do not, it is clear that the defendant instructed the workers to carry out scaffolding work that was required to be performed by a licensed scaffolder. The defendant gave evidence that he instructed the workers to erect the scaffold using two work platforms, with one being positioned just above the equipment which he said was about 2.85m above the ground, and one at 4m. On the defendant's own evidence, this involved a risk of a person or object falling more than 4m because the ground level of 14 Longworth Avenue was about 600mm below the ground level of the property. The scaffold was to be, and in fact, installed next to the boundary wall and at a height exceeding the boundary wall of 2.7m, such that there was a risk of a person or object falling over the boundary wall 4.6m into the neighbouring property. The incident was evidence of the existence of that risk, which actually came home. 6. I do not accept the defendant's evidence that he instructed the workers to comply with the manufacturer's instructions in the TEP on 9 September 2019, because on his own evidence he was present at the start of the erection process and was in a position to see for himself that Mr Connell did not comply with the TEP, by not: 1. facing the C-hook coupler outwards (instruction 2 of the TEP); 2. installing a second ledger at the base of the scaffold (instruction 3 of the TEP); 3. installing a plan brace at the base of the scaffold (instruction 4 of the TEP). 1. I accept the evidence of Mr Rivera that he did not refer to the TEP because he thought he knew how to erect the scaffold. The height of the scaffold 1. An issue arose during the hearing that it should not have been possible to construct the scaffold to the height of 8.65m, as measured by Inspector Murphy, using the components usually supplied by Kennards in the single width 5m mobile scaffold tower package. 2. No challenge was made by either party to the measurements of Inspector Murphy. The photographs of the scaffold support the proposition that the measurements were correct. 3. Having carefully reviewed the photographs of the scaffold taken by Mr Sutton on 10 September 2019 and by the police and Inspector Murphy after the incident, I make the following findings: 1. Inspector Murphy's measurement of the height of the scaffold was consistent with the measurement estimated by counting the number of rungs in the extensions installed on the scaffold that were 500mm apart and adding an estimate of 450mm for the height of the castors and the top part of the highest extensions; 2. the photographs depict that the scaffold was erected, with two 1100mm extensions being installed at the top of each side of the scaffold, adding 2200mm to what otherwise would have been a maximum height of 6m; 3. the 1100mm extensions can be identified as the top extensions installed on the photograph at page 175 of Exhibit 1; 4. Kennards, in error, supplied the 4 x 1100mm extensions when it delivered the scaffold to the property; 5. the supply of the extra extensions resulted in there being insufficient braces and ledgers for the scaffold to be erected as intended to the additional height and this was consistent with how the scaffold was erected. 1. I am satisfied that the scaffold was erected to the height that it was because: 1. the defendant failed to properly instruct the workers as to the height that the scaffold was to be erected to; and 2. Kennards provided additional components for the scaffold that should not have been supplied with the single width 5m mobile scaffold package. 1. The overall height of the scaffold was largely irrelevant because it was not in dispute that the top two work platforms were installed at a height from which a person or object could fall more than 4m and that Mr Connell actually fell 5.75m into the neighbouring property. The defendant's knowledge 1. The defendant knew that the 5m single width mobile scaffold package could be erected with a work platform higher than 4m, thereby requiring a person with a HRWL for scaffolding to erect, alter or dismantle it. There were a number of sources of this knowledge. First, that information was conveyed to the defendant by Kennards, on its website and in the contractual documents given to the defendant in the course of the hire transaction. Second, that warning appeared in the TEP which was affixed to the work platforms. Third, the defendant accepted in his own evidence that he had experience with this type of scaffold and that he was aware on 9 September 2019 that the scaffold could be erected to a height that required the engagement of a licensed scaffolder. Fourth, the defendant gave evidence that it was necessary to give instructions to the workers to erect the scaffold with the highest working platform at no higher than 4m above the ground, to comply with the relevant legislation and that he gave those instructions to the workers. 2. I accept Mr Rivera's evidence that the defendant attended the property on 9 September 2019 after the scaffold had been erected but before the core hole was drilled. At that time, I am satisfied that the defendant saw the scaffold and thereby became aware that there was a risk of a person or object falling more than 4m, and thereafter knew that a licensed scaffolder was required to dismantle the scaffold. The purpose of the scaffold 1. There was a dispute over the intended purpose of the scaffold. The prosecution contended that it was erected for the purpose of installing the flue and that this included its use by Devex to secure the flue to the wall of the house up to the soffit as contemplated in Devex's quote. The defendant contended that the scaffold was erected to protect the utilities by using it as a platform to catch the concrete core and that he did not intend that it would be used by Devex to install the flue. 2. Each party had a number of persuasive arguments in support of their respective positions. 3. The prosecution contended that its case theory was consistent with the evidence of Mr Rivera, Mr Sutton and what the defendant told Inspector Murphy on the day of the incident. 4. The defendant contended that by reason of the position of the aluminium louvre housing for the equipment that the scaffold had to be installed on an angle to the wall and it was impossible for a person accessing the scaffold to get close enough to the wall to attach the flue to the wall using screws and clips. Further, the standard 5m mobile scaffold package would not have reached a sufficient height to undertake that task. The defendant pointed out that there was no evidence that the defendant knew about Devex's requirement for Mr Crichton to provide scaffolding for the work and there was no evidence of any contact between Devex and the defendant prior to 9 September 2019. 5. It is possible that Mr Sutton and the defendant conducted themselves on 9 September 2019 based on their own understanding of what was to occur. However, I was impressed by Mr Sutton as a witness and found his version to be more plausible and corroborated to some extent by the evidence of Mr Rivera, the evidence of Inspector Murphy and by Mr Connell calling Mr Sutton later in the day to inform him that the scaffold had been erected and was ready to use. 6. I do not accept the defendant's version of his conversation with Mr Sutton because it does not make sense. I find that it would have been much more likely for there to have been a discussion as to when Mr Sutton would complete his work and how that work would be done. I prefer the evidence of Mr Sutton that he told the defendant that he would need to use the scaffold to install the flue and consistent with that, Mr Sutton came back to the property on 10 September 2019 to undertake that work. 7. If I am wrong on my finding about the discussion between the defendant and Mr Sutton, and in the alternative, there was no communication or a miscommunication between Mr Sutton and the defendant, it is of no consequence. Even if I accept that the defendant subjectively intended to erect the scaffold to a restricted height for a limited purpose, for the reasons given I am satisfied that he did not convey that to the workers, leading to the erection of the scaffold to a height where there was a risk of a person or object falling more than 4m, and to the workers accessing it to catch the core. Further, the defendant failed to take any steps to inform other persons at the property that the scaffold was not to be accessed for any purpose, such as by marking it with danger tape and signage indicating that it was not to be used as a working platform. The Elements of the Offence 1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt. 2. Section 32 of the Act 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. 1. The elements of the s 32 offence involving a breach of the s 19(1) duty are: * Element 1 The defendant was conducting a business or undertaking (PCBU); * Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of: 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 2. while the workers were at work in the business or undertaking; * Element 3 The defendant failed to comply with its health and safety duty; and * Element 4 The failure exposed an individual to a risk of death or serious injury. The Relevant Law 1. The offence is one of strict liability: s 12A of the Act. 2. A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking (PCBU), including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: s 7 of the Act. 3. A duty provided for by the Act is not transferable: s 14 of the Act. 4. The content of the duty is set out in s 19 of the Act, which 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, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. … (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. 1. The inclusive list of specific obligations set out in s 19(3) of the Act have each been identified at common law. 2. The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 3. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury. 4. The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67]. 5. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6]. 6. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: s 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it. 7. "Reasonably practicable" is defined in s 18 of the Act. The court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about: 1. the risk, and 2. ways of eliminating or minimising the risk, and 3. the availability and suitability of ways to eliminate or minimise the risk, and 1. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk. 1. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33]. 2. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] (Gleeson CJ, Gummow and Hayne JJ). 3. The phrase "exposed to risks" contained in s 8(2) Occupational Health and Safety Act 2000 has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess. 4. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]. 5. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] (Gaudron J). 6. The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] (French CJ, Gummow, Hayne and Crennan JJ). 7. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 8. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 (Hill J) and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32]. 9. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 (Dixon CJ). If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable. 10. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practicable to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129]. 11. One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51]. 12. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice was observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E. 13. The question of what is reasonably practicable is also a question of fact, determined by the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f. 14. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control the risk and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. Clause 3 of Schedule 4 of the Act provides that an industry code of practice approved and enforced under Part 4 of the Occupational Health and Safety Act 2000 immediately before the repeal of that Act is taken to be an approved code of practice under Part 14 of the Act. 15. Part 3.1 of the Regulations (clauses 32-38) applies to a PCBU who has a duty under the Regulations to manage risks to health and safety. Clause 34 requires a duty holder to identify foreseeable hazards that could give rise to risks to health and safety. Clause 35 of the Regulations requires a duty holder to eliminate risks to health and safety so far as is reasonably practicable and if it is not reasonably practicable to eliminate risks to minimise those risks so far as is reasonably practicable. Clause 36 of the Regulations sets out the hierarchy of control measures to be implemented to minimise risk as: substitution, isolation, engineering controls, administrative controls and provision of personal protective equipment (PPE). Clause 37 of the Regulations requires a duty holder who implements control measures to ensure they are maintained, fit for purpose, suitable for the nature and duration of the work and installed, set up and used correctly. Clause 38 of the Regulations requires a duty holder to revise its control measures to maintain, so far as is reasonably practicable, a work environment that it without risk to health or safety. 16. Clause 78 of the Regulations specifically states that a PCBU at a workplace must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to that person or any other person. 17. Clause 79 of the Regulations applies where it is not possible to eliminate the risk of a fall to which clause 78 applies. Clause 79(3) relevantly provides that: (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by-- (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. Examples : 1 Providing temporary work platforms. 2 Providing training in relation to the risks involved in working at the workplace. 3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs. Note : A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose. 1. Clause 79(5) defines "fall prevention device" to include: (a) a secure fence, and (b) edge protection, and (c) working platforms, and (d) covers. 1. Clause 81 of the Regulations provides that a person must not carry out high risk work unless the person holds a high risk work licence for that class of high risk work. Item 1 of Table 3.1 of Schedule 3 of the Regulations provides that a basic scaffolding HRWL is required for scaffolding work involving modular or prefabricated scaffolds. "Scaffolding work means erecting, altering or dismantling a temporary structure that is or has been erected to support a platform and from which a person or object could fall more than 4 metres from the platform or the structure": clause 5 of the Regulations. 2. Clause 291(a) of the Regulation defines "high risk construction work" as including construction work that "involves a risk of a person falling more than 2 metres." This triggers the application of clause 299(2) of the Regulation, which requires a person carrying out high risk construction work to prepare a SWMS that must: (a) identify the work that is high risk construction work, and (b) specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and (c) describe the measures to be implemented to control the risks, and (d) describe how the control measures are to be implemented, monitored and reviewed. 1. Clause 299(3) of the Regulations provides: A safe work method statement must-- (a) be prepared taking into account all relevant matters, including-- (i) circumstances at the workplace that may affect the way in which the high risk construction work is carried out, and (ii) if the high risk construction work is carried out in connection with a construction project--the WHS management plan that has been prepared for the workplace, and (b) be set out and expressed in a way that is readily accessible and understandable to persons who use it. 1. Clause 300 of the Regulations provides: (1) A person conducting a business or undertaking that includes the carrying out of high risk construction work must put in place arrangements for ensuring that high risk construction work is carried out in accordance with the safe work method statement for the work. Maximum penalty-- (a) in the case of an individual--70 penalty units, or (b) in the case of a body corporate--345 penalty units. (2) If high risk construction work is not carried out in accordance with the safe work method statement for the work, the person must ensure that the work-- (a) is stopped immediately or as soon as it is safe to do so, and (b) is resumed only in accordance with the statement. Maximum penalty-- (a) in the case of an individual--70 penalty units, or (b) in the case of a body corporate--345 penalty units. Causation 1. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]. 2. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378. 3. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130]. 4. A finding of causation requires a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [226] (Cavanagh J). Consideration Issue 1 - Did the defendant fail to comply with his health and safety duty by failing to take the steps particularised in [16] of the Summons? (Element 3) 1. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37]. 2. In order to find Element 3 established, I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [16] of the Summons and that the steps were reasonably practicable. 3. I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures in [16] of the Summons were reasonably practicable. The pleaded risk 1. The pleaded risk was the risk of workers falling from a height of greater than 2m while undertaking scaffolding work at the property. 2. The risk did not need to be so specific. I am satisfied that this was a deliberate forensic choice to identify the work as high risk construction work as defined by cl 291 of the Regulations and to incorporate the requirement for there to be a site specific SWMS for that work: cl 299 of the Regulations. The likelihood of the risk occurring 1. The likelihood of the risk occurring was high. The lowest platform of the scaffold was 3.2m above the ground. The second platform was 5.15m above the ground and there was a higher platform installed which was removed before its height could be measured. 2. The risk of a fall was increased by the failure of Mr Connell to erect the scaffold by following the instructions in the TEP. The risk of a fall was also increased by the method of erecting the scaffold that was employed by Mr Connell. 3. The risk of a fall was also increased by reason of the supply of additional extensions by Kennards. This permitted the scaffold to be erected to a height greater than the intended 6m. As a result, the scaffold was supplied with insufficient ledgers and cross-braces to provide adequate fall protection and stability for the height it was erected to. The degree of harm 1. The degree of harm that could eventuate involved a risk of death. The defendant's knowledge of the risk 1. The risk of a fall from height from scaffold was obvious. 2. The defendant knew that the Regulations provided that the scaffold could not be erected to a height where there was a risk of falling more than 4m, unless it was erected by a person with a HRWL for scaffolding. The defendant's knowledge of the ways of eliminating or minimising the risk 1. The defendant gave evidence that he retained licensed scaffolders to erect and dismantle scaffolding on every RSC site. The defendant was familiar with the legislative requirements to have scaffolding work undertaken by a licensed scaffolder and to have scaffolding certified by a licensed scaffolder before it was used and at regular intervals thereafter. Cost of the particularised measures 1. It was not contended that the cost of any of the particularised measures set out in [16] of the Summons was grossly disproportionate to the risk. The defendant accepted in his evidence that cost was no impediment to safety, that he could have passed the cost of engaging a licensed scaffolder onto Mr Crichton and that Mr Crichton would have paid for a licensed scaffolder to permit the work to be undertaken safely. Reasonably practical steps 1. I will now turn to consider the pleaded particulars of breach of duty. 16(a) Failure to engage a person with a HRWL in basic scaffolding to carry out the scaffolding work at the property 16(b) Not to direct a worker without a HRWL in basic scaffolding to carry out the scaffolding work at the property 1. These particulars of breach can conveniently be dealt with together. 2. The pleaded measures required no more than the defendant comply with his legal obligations to engage a licensed scaffolder to undertake the scaffolding work or to not require an unlicensed person to undertake the scaffolding work. 3. It was common ground that the scaffold was erected to a height where there was a risk of a fall of more than 4m. In fact, Mr Connell fell 5.75m to the ground in the neighbouring property from a work platform that was installed 5.15m above the ground of the property. 4. It was also common ground that the defendant did not engage a person with a HRWL in basic scaffolding to erect or dismantle the scaffold. 5. The defendant knew that he was required to engage a licensed scaffolder if the scaffold was to be erected, such that there was a risk of a person or object falling more than 4m from a platform or the structure. The defendant engaged licensed scaffolders in the course of his work at all RSC sites. The engagement of a licensed scaffolder would have involved negligible inconvenience to the defendant and incurred no expense to him because the cost of the licensed scaffolder could have been passed on to Mr Crichton. 6. For the reasons given, I am satisfied that the defendant failed to give adequate instructions to the workers to ensure that the scaffold was not erected to a height that required the engagement of a licensed scaffolder. 7. For the reasons given, I accept Mr Rivera's evidence that the defendant returned to the site on 9 September 2019 and saw the scaffold after it was erected. At that time, the defendant saw that the scaffold was erected to a height well above what was permitted by the Regulations and knew that it would be necessary to engage a licensed scaffolder to dismantle it. 8. The defendant instructed Mr Connell and Mr Rivera to dismantle the scaffold, when he knew that would breach the Regulations because neither of them held a HRWL for scaffolding. 9. If I am wrong on the finding that the defendant saw the erected scaffold on 9 September 2019, the defendant failed to adequately supervise the workers. They were permitted to erect the scaffold in breach of the Regulations and then to dismantle it, without any supervision by him in the period of 9-11 September 2019. The evidence was that RSC was engaged on three sites that were geographically proximate to each other. The defendant could have returned to the property at minimal inconvenience and expense in the relevant period to check that the scaffold had been erected by the workers in accordance with his instructions. He was required to ensure that there was no risk to the health and safety of the workers that he intended to use to dismantle the scaffold. It was common ground that if he had seen the scaffold as it was erected, that the defendant was required to engage a licensed scaffolder to dismantle it. The defendant's reasonable foreseeability argument 1. The defendant contended that it was his intention on 9 September 2019 that the scaffold was being erected only to protect the utilities, it did not need to be erected to a height where there was a risk of a person or object falling more than 4m (thereby requiring a licensed scaffolder to be engaged) and he specifically instructed the workers to erect it with the highest work platform at a height of 4m. In other words, the defendant had no intention or belief that the workers would engage in "scaffolding work" as defined by cl 5 of the Regulations. 2. In those circumstances, the defendant contended that it was not reasonably foreseeable that: 1. the workers would disobey his clear instructions; 2. that the scaffold would be erected to a height that posed the risk of a person or object falling more than 4m; and therefore, 3. it was not reasonably practicable for him to have taken these particularised measures because they were each only required where scaffolding work was being undertaken. 1. The defendant's argument based on reasonable foreseeability is rejected for the following reasons. 2. First, I have found against the defendant on the factual basis for the argument. I have rejected the proposition that the defendant gave the workers clear instructions that the highest working platform was to be installed at 4m. If I am wrong on that finding, for the reasons given, the defendant's instructions he admitted to giving, involved the workers undertaking scaffolding work, because there was the risk of a fall into the neighbouring property of 4.6m. In the absence of proper instructions from the defendant, Mr Connell and Mr Rivera did engage in scaffolding work by erecting the scaffold to a height of 8.65m. Whilst I accept that the defendant could not have known that Kennards would supply additional components for the scaffold enabling the workers to erect the scaffold to the height that they did, the defendant knew that the workers could erect the scaffold to a height that required the engagement of a licensed scaffolder and that steps needed to be taken to avoid that possibility. 3. Second, the reasonably foreseeability of reasonably practicable steps cannot be solely based on a defendant's subjective belief or intent. The defendant knew that the standard 5m mobile scaffold package could be erected to a height that required the engagement of a licensed scaffolder. The defendant was also put on notice of that through the content of the Kennards documentation. The defendant was legally obliged not to instruct the unlicensed workers to erect, alter or dismantle the scaffold if there was risk that a person or object could fall more than 4m. The defendant could not simply rely on his understanding of Mr Connell's experience and competence for erecting a mobile scaffold because he was required to consider risks that could arise from Mr Connell's inadvertence and/or disobedience. The evidence as to the failure of Mr Connell to follow the TEP and about the method employed to erect the scaffold demonstrated that any reliance placed by the defendant on Mr Connell's expertise and competence was misplaced. I accept that the evidence established that Mr Connell was a good and obedient worker. This supports my conclusion that the defendant did not instruct Mr Connell to erect the scaffold to a "restricted height", because if he did, I am satisfied that Mr Connell would have complied with those instructions. 4. Third, the reality of the situation was that the scaffold was erected to a height that required the engagement of a licensed scaffolder to erect, alter and/or dismantle it, and the intended purpose of the scaffold was irrelevant. The risk of falling from the scaffold in this case was posed to the workers instructed to erect and dismantle it. 5. I am satisfied beyond reasonable doubt that the steps pleaded in [16](a) and (b), were reasonably practical steps that should have been taken by the defendant. 16(c) Failure to devise, implement and enforce a system of work for the scaffolding work that addressed the steps to be taken including, reading the installation instructions, specified how ledgers were to be installed as handrails and identifying the risk of installing ledgers in the wrong orientation 1. For the reasons given, I accept Mr Rivera's evidence that the workers were not properly instructed on how to erect or dismantle the scaffold at the property. I have also rejected the defendant's evidence that he took the workers in some detail through the SWMSs. 2. There was no objective evidence that the workers had ever been trained on the content of the SWMSs. There was no provision for the workers to sign either document to acknowledge that they had been trained on the document. 3. The work involved in the erection and dismantling of the scaffold was high risk construction work because it involved a risk of person falling more than 2m. 4. The defendant was required to have in place a SWMS and to ensure that the high risk construction work was undertaken in accordance with the SWMS. Neither of the SWMSs relied on by the defendant were devised to take into account the circumstances of the workplace at the property. 5. The SWMS "Use Mobile Scaffold" did not contain the direction that the workers were required to read the manufacturer's instructions and to erect the scaffold in accordance with those instructions. 6. The SWMS "Use Mobile Scaffold" did not make any reference to the type of mobile scaffold being used at the property or contain any instruction on the installation of the ledgers with the C-hook couplers. 7. I am satisfied beyond reasonable doubt that the step pleaded in [16](c) was a reasonably practicable step that should have been taken by the defendant. 16(d) Failure to require a competent person to inspect the scaffold to confirm it had been erected correctly 1. For the reasons given, I am satisfied that the defendant returned to the property on 9 September 2019 and saw the scaffold after it had been erected. I am satisfied that he knew from that point in time that the scaffold had been erected to a height where there was a risk of a person or object falling more than 4m. 2. Clause 225 of the Regulations required the defendant to have the scaffold assessed and certified by a licensed scaffolder. He did not do so. 3. The defendant's evidence was that he engaged licensed scaffolders on every RSC site and he was familiar with the legislative requirements to have scaffolds inspected before they were first used and regularly thereafter. 4. The inspection of the scaffold by a licensed scaffolder was a step that was well known to the defendant, would have involved little inconvenience to him and did not involve any expense because he could have passed the cost of an inspection onto Mr Crichton. 5. I am satisfied that a licensed scaffolder would have identified that the ledgers installed with the C-hook couplers facing inwards were installed incorrectly and that a licensed scaffolder would have re-installed them correctly. I am also satisfied that in re-installing the ledger that became detached that the licensed scaffolder would have identified if the spring-loaded latch at the eastern end of the scaffold was broken or incompletely attached and that a licensed scaffolder would have identified the ledger as defective and removed it from the scaffold or re-attached it securely. 6. I am satisfied beyond reasonable doubt that the step pleaded in [16](d) was a reasonably practicable step that should have been taken by the defendant. 7. If I am wrong on my finding referred to in [268] above, then for the reasons set out at [270] above and [300]-[302] below, I am satisfied that the defendant should have supervised the workers by returning to the property after the scaffold was erected to ensure that it was safe for them to dismantle. 8. To the extent that the defendant's reasonable foreseeability argument is applicable to this pleaded measure, I would reject it for the reasons in [271]-[276] above. 16 (e) Failure to provide adequate supervision of the workers carrying out the scaffolding work at the property 1. Whether there has been a failure to provide adequate supervision is a question of fact in each case. The circumstances to be considered will ordinarily include, at least: 1. the nature of the work the worker is required to undertake; 2. the extent of the worker's training and prior experience in the performance of such work; 3. the identity of co-workers with whom the worker will be performing the work and the extent of the training and experience of those co-workers: Vibro-Pile at [149]. 1. For the reasons given, the defendant knew that the 5m mobile scaffold package from Kennards could be erected to a height that required the engagement of a licensed scaffolder and that if he was using unlicensed workers to erect the scaffold that precautions needed to be taken to ensure that it was erected in compliance with the Regulations. 2. The defendant also knew that he had provided no instructions as to the height that the scaffold was to be erected to. 3. The defendant knew that Mr Connell had experience in erecting scaffolding, that he was not licenced and that he had received no formal training on the erection and dismantling of scaffolding. 4. The defendant knew that Mr Rivera had very little experience in the construction industry and that he required supervision. The defendant assigned Mr Connell to supervise Mr Rivera's work and directed Mr Rivera to follow Mr Connell's instructions. 5. The defendant knew or ought to have known that where the scaffold was to be erected was in a confined space, close to the boundary wall and in an area where there was a risk of falling into the neighbouring property where the ground level was 600mm lower than the property. 6. For the reasons given, I am satisfied that the defendant returned to the property on 9 September 2019 and saw the scaffold after it was erected. From this point in time he was aware that it exceeded the height provided for by the Regulations, such that: 1. a licensed scaffolder needed to be engaged to dismantle it; or 2. he could not use unlicensed workers to dismantle it. 1. If I am wrong on my finding that the defendant returned to the property on 9 September 2019 after the scaffold had been erected, then I am satisfied that he should have gone back to the property prior to 11 September 2019 to inspect the scaffold prior to requiring the workers to dismantle it. 2. The defendant's duty extended to ensuring that the safety of the workers was not put at risk by their negligence or disobedience of his instructions. 3. The evidence was that RSC was engaged on three sites in the same area of Sydney. It would have caused the defendant little inconvenience and expense to return to the property after the scaffold was erected to inspect it and to ensure that his directions had been complied with and to satisfy himself that it could be dismantled by unlicensed workers. 4. I am satisfied beyond reasonable doubt that the step pleaded in [16](d) was a reasonably practicable step that should have been taken by the defendant. Conclusion on Issue 1 1. I am satisfied beyond reasonable doubt that the defendant breached the health and safety duty that he owed to Mr Connell by failing to take the steps pleaded in [16](a)-(e) of the Summons. Issue 2- Did the defendant's breach of duty expose Mr Connell to a risk of death or serious injury? (Element 4) 1. The principles set out at [244] to [247] above were not in dispute. 2. The prosecution alleged that Mr Connell was exposed to the risk on 11 September 2019 when he attended the property to dismantle the scaffold, and that is the relevant time at which causation must be established. To the extent that events on 9 September 2019 are discussed below, those matters are relevant to the state of the scaffold on 11 September 2019. 3. It was common ground that the defendant did not engage a licensed scaffolder to erect or dismantle the scaffold, and that Mr Connell and Mr Rivera did not hold a HRWL for scaffolding. 4. The scaffold was erected by the workers to a height of 8.65m, with two work platforms being installed at a height of more than 4m above the ground. The lowest of these was 5.15m off the ground and the other was higher. 5. The workers did not install the internal ladders on the scaffold and they climbed the rungs of the extensions to reach the work platforms. This also posed a risk of a person or object falling more than 4m while climbing the extensions. 6. The defendant could not have known prior to the delivery of the scaffold components that Kennards would erroneously provide additional components for the scaffold that would enable it to be erected to a height of 8.65m. 7. However, the defendant knew that scaffold he ordered from Kennards could be erected to a height where a licensed scaffolder was required to be engaged and that precautions were required to be taken to prevent unlicensed workers from doing so. Mr Connell fell from a work platform installed at 5.15m above the ground level of the property. If Kennards had supplied the standard components for the 5m single width mobile scaffold package they could have been erected (contrary to the TEP) with a work platform installed at that height. 8. I am satisfied that the scaffold was erected to the height that it was because the defendant failed to provide any instructions or adequate instructions to the workers about the height that the scaffold was to be erected to or how it should be erected. In doing so, he permitted unlicensed workers to conduct scaffolding work using their own ad hoc method. 9. The defendant contended that the instructions in the TEP were ambiguous and it was not clear from reading them that the C-hook coupler should have been installed facing outwards. He also contended that there was no warning in the TEP that a ledger might become detached if installed facing inwards and that this was not the subject of any SafeWork Safety Alert or referred to in the Australian Standard. 10. I reject the defendant's contention on the instructions in the TEP for the reasons that follow. First, instruction 2 of the TEP was clear that the first ledger installed was to be installed with the snap hook facing outwards and this was unambiguously depicted in Figure 1. I do not accept that the failure to specify that the C-hook coupler should be attached in the same orientation, created a choice for the installer to erect the scaffold as they chose to. Second, for the reasons given, Mr Connell and Mr Rivera did not rely on the TEP when erecting the scaffold, such that any ambiguity in the instructions, if there was any, had no causative impact. Third, it should have been obvious to a person with the construction experience of the defendant, and even Mr Connell, that the C-hook of the coupler was a design feature intended to prevent the ledger from becoming detached if outwards force was applied to it. Fourth, a licensed scaffolder would have known that the C-hook coupler had to be installed facing outwards. 11. The workers did not comply with the TEP, resulting in the incorrect installation of some of the ledgers with the C-hook couplers facing inwards. This was a significant and substantial cause of the ledger becoming detached when the spring-loaded latch failed. There were three possible reasons for the spring-loaded latch becoming detached from the western end of the scaffold. First, the spring-loaded latch was faulty when it was installed by Mr Connell. Second, the spring-loaded latch was not attached properly by Mr Connell. Or third, the spring-loaded latch failed at the time that Mr Connell leant against it. I will deal with each of these in turn. 12. I find the first reason for the failure to be the most likely explanation because the spring-loaded latch was broken when it was examined immediately after the incident. Mr Rivera gave evidence that he did not perform a functional test on any of spring-loaded latches before handing the ledgers to Mr Connell. I accept Mr Gooding's evidence that a licensed scaffolder would have been trained to perform such a functional test on the spring-loaded latches at least twice in the erection process and to exclude any faulty ones. I am not satisfied that the Kennards RFHPs and its auditing process were foolproof and would have prevented the supply of a ledger with a faulty spring-loaded latch as part of the mobile scaffold package. The supply by Kennards of additional components for the scaffold demonstrates that its procedures were fallible. I am satisfied that Mr Connell and Mr Rivera failed to identify the faulty spring-loaded latch at the time that the ledger was installed because they were not adequately trained to erect the scaffold because: 1. they were not licensed scaffolders; and 2. the defendant failed to adequately instruct them to follow the instructions in the TEP. 1. Further, I am not satisfied that Kennards had a usual practice of delivering four ledgers attached to a piece of end tubing as described in the defendant's evidence. The defendant contended that it would have been obvious that the spring-loaded latch was broken before it was installed because it could not have remained attached to the piece of end tubing and it follows that it would have been rejected for use by the workers and not installed as part of the scaffold. Mr Egan's evidence was that Kennards used the pieces of end tubing to store the ledgers and to test the spring-loaded latches, and if you tried "to lift [a bundle of four] with a broken clip, they just come apart", but he was not asked if the ledgers were attached to the pieces of end tubing when they were delivered. I am satisfied that this part of the defendant's evidence, that became central to an important argument on behalf of the defendant, was not put to the relevant witness because the defendant's evidence evolved during the course of the case as he latched onto pieces of evidence that could be moulded to support his case. 2. The second possible reason for the ledger becoming detached was that the spring-loaded latch was not properly engaged when it was installed by Mr Connell. I find that this possibility is less likely because it does not explain why the spring-loaded latch was faulty when it was examined after the incident. It is possible that it was damaged in the fall, but the experts and Inspector Kent opined that this was unlikely because the mechanism was encased in the ledger and thereby protected from any impact. 3. The third possible reason for the spring-loaded latch becoming detached was that it failed at the time of the incident. I accept the evidence of Dr Helliar and Professor Cortie on this point. I find that this possibility is very small and it was very unlikely. Whilst I accept that it cannot be excluded, it does not cause me to have a reasonable doubt about whether the prosecution has proven causation. 4. Irrespective of the reason for the failure of the spring-loaded latch at the western end of the scaffold, the ledger would not have been able to become detached if the C-hook coupler had been installed facing outwards in accordance with instruction 2 of the TEP. 5. I am satisfied that if the defendant had engaged a licensed scaffolder to erect the scaffold that Mr Connell would not have been exposed to the risk because a licensed scaffolder would have installed the ledgers with the C-hook couplers facing outwards and would not have installed the ledger with the faulty spring-loaded latch. 6. I am satisfied that if the defendant had engaged a licensed scaffolder to dismantle the scaffold on 11 September 2019 that Mr Connell would not have been exposed to the risk, because he would not have been required to access the scaffold at all and would not have been exposed to the risk. 7. I am also satisfied that the defendant saw the scaffold on 9 September 2019 after it was erected to a height of 8.65m and he knew from that time that a licensed scaffolder was required to be engaged to dismantle it, but failed to do so. If I am wrong on this finding, I find that the defendant failed to adequately supervise the workers by failing to return to the property to inspect the scaffold to ensure that his instructions had been carried out and that he should have known that the scaffold had been erected to a height of 8.65m and that a licensed scaffolder was needed to dismantle it. 8. If there had been any causative significance of the supply of additional components by Kennards up to that point in time, it was rendered nugatory by the defendant becoming aware, or failing to discover, that the scaffold had been erected in breach of the Regulations, for whatever reason, and thereafter needed to be dismantled by a licensed scaffolder. 9. I am not satisfied beyond reasonable doubt that the defendant's failure to have a competent person inspect the scaffold after it was erected was a cause of Mr Connell being exposed to the risk of serious injury or death. Assuming that such an inspection had been arranged and the scaffold was rectified and certified to be safe for use, it was not intended to be used by Mr Connell after 9 September 2019. The simple fact was that the scaffold had been erected to a height that required the engagement of a licensed scaffolder to dismantle it and so Mr Connell could not have been required to do so. In this scenario, it is likely that the defendant would have complied with his legal obligations and engaged a licensed scaffolder to dismantle the scaffold. Conclusion on Issue 2 1. I am satisfied beyond reasonable doubt that the defendant's failure to take the steps in [16](a), (b), (c) and (e) of the Summons were each a significant or substantial cause of Mr Connell being exposed to a risk of death or serious injury. Orders 1. The orders I make are as follows: 1. I find the defendant guilty of the s 32 offence. 2. The matter will be listed for sentence on a date convenient to the parties. ********** 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: 01 July 2024