Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Mansell v Bernath Adler [2003] NSWIRComm 377 PARTIES : WorkCover Authority of NSW (Inspector Mansell) Bernath Adler FILE NUMBER: IRC 5500 and IRC 5501 of 1999 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 09/15/2003; 09/16/2003; 09/17/2003; 09/18/2003; 09/19/2003; 10/07/2003; 10/08/2003; 10/09/2003; 10/10/2003; 10/27/2003; 10/28/2003; 10/29/2003; 10/30/2003 EXTEMPORE JUDGMENT DATE : 10/30/2003 Prosecutor: Mr M J Joseph SC with Mr P M Skinner Solicitors: Moray and Agnew LEGAL REPRESENTATIVES: Defendant: Mr J R Young Solicitors: James Legal JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ Date: 30 October 2003 Matter No IRC 5500 and 5501 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MANSELL) v BERNATH ADLER Prosecution under section 19(a) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 377 CHARGE 5501 of 1999 1 Mr Bernath Adler is charged that between 20 November 1995 and 4 December 1995 he, being an employee of Josef & Sons Contracting Pty Limited, while at work, contrary to s19(a) of the Occupational Health & Safety Act 1983, failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work, in that he did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. 2 I incorporate by reference, the facts found by me in paragraphs numbers 6 to 33 in my judgment in relation to charge number 5488 of 1999, WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2003] NSWIRComm 375 ( 29 October 2003). 3 The several offences within the charge are alleged to be constituted by Mr Adler's failure (1) to disconnect the gas supply line at a position remote from the site and (2) to adequately identify, protect or mark the charged gas supply line and (3) to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line. 4 Mr Adler was retained by Josef & Sons Contracting Pty Ltd and exhibit J36 includes a letter of his engagement. It is in the following terms: Following our conversations from previous days I accept to supervise the demolition of concrete stairs at Kogarah Station as your temporary employee with an hourly rate of $40.00/hour. You may pay me at the time you will receive the payment from Abigroup. 5 Mr Adler is an engineer and it may be expected that his expertise was called upon by Josef & Sons Contracting Pty Ltd in relation to engineering problems which may occur during the demolition of the concrete stairs to the north end of the demolition site. Notwithstanding this particular expertise, it has become apparent from the evidence that Mr Adler did exercise some general powers of supervision from time to time and also performed informally some managerial tasks. For instance, he signed an inspection checklist prepared by Abigroup Contractors Pty Ltd in relation to the demolition of the shops. 6 Notwithstanding this evidence of functions which went beyond the exercise of engineering skills, the prosecution have not proved that beyond reasonable doubt Mr Adler had the control of the site to such an extent that he was able to determine the position at which the gas supply line may be closed, nor has it been established beyond reasonable doubt that the responsibilities for which Mr Adler was engaged or permitted to exercise included the task of marking the route of the gas line as it passed through the demolition site. 7 Because a contravention of s19(a) is predicated upon control of the circumstances giving rise to danger, I am not satisfied beyond reasonable doubt that in respect of the particulars pleaded, other than particular 12, Mr Adler can be guilty of the charge. 8 Upon concentration on particular 12 that "the Defendant failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line", it is necessary to identify with some precision not the generality of danger posed by the presence of the charged gas supply line, but the particular danger as it emerged from day to day. The prosecution relies upon the work carried out by Mr Begg between 21 and 24 November when Mr Begg operated his grader with its pneumatic pick and bucket to demolish the shops. 9 There is no evidence upon which I may find beyond reasonable doubt that when Mr Begg commenced this work, Mr Adler was on site and in a position to supervise Mr Begg and take steps to deter him from his task. I accept that on the 24th, the last day upon which Mr Begg worked, Mr Adler was present. By that last day, however, Mr Begg had completed his operations along the frontage of the shops close to the charged gas supply line and was operating from the rear of the site upon footings removed some distance from the ground in which the gas pipe lay. 10 I am not persuaded beyond reasonable doubt that on that day Mr Begg operated either his pneumatic pick or his bucket close to the charged gas supply line in a manner as would constitute a danger. There is no evidence that on that day when Mr Adler was present any vehicle passed over the charged gas line at the ramp. More than that, one single passage of a vehicle over the charged gas line, in the evidence of Mr Trethewy, would not create such vibration as to cause a risk that the gas line may be dislodged by vibration; rather, it was a pattern of conduct of repeated passages of vehicles which would lead to the creation of that danger. The offences charged in matter number 5501 are not proven beyond reasonable doubt and I find the defendant not guilty. CHARGE 5500 of 1999 11 Mr Bernath Adler is further charged pursuant to charge number 5500 of 1999 in that on 4 December 1995 at Kogarah in the state of New South Wales, he, being an employee of Josef & Sons Contracting Pty Ltd, whilst at work, contrary to s19(a) of the Occupational Health and Safety Act 1983 failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work, in that he did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. 12 For reasons given in matter 5501, I have not been persuaded that it was within the area of Mr Adler's control to ensure that the gas line was turned off at a position remote from the site, or that the course of the line be marked upon the site. 13 The thrust of the present prosecution case is the offence particularised in paragraph 14: The Defendant failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line. 14 I am satisfied upon the evidence that Mr Adler occupied a position of authority upon the site, and, that had he given directions to Mr Campbell on the day in question, he had cause to believe those instructions would have been obeyed. That is the evidence of Mr Campbell himself, who, at page 468 of the transcript, gave this evidence: Q. By Mr Adler, if you had been told not to work in an area? A. I would have obeyed it. 15 The record of interview with Mr Adler, conducted by Detective Senior Constable Roberts, 20 March 1996, discloses that Mr Adler, before Mr Campbell commenced work upon the batter, spoke to Mr Campbell in these terms- Question 99: I told him specifically not to work in the area where even, it wasn't any more marked, in the area where I knew approximately the gas pipe. 16 Although this question is put in the context of the work having been done on the Saturday 2 December 1995, the work to which Mr Adler was directing Mr Campbell obviously related to the work in construction of the batter. 17 It is true that Mr Adler did not tell Mr Campbell why he should not work in the area because, in answer to question 103 he said this: I told him not to touch the area specifically...Abigroup to clean the mess they have done with their ramp. Question 104: Right. Did you indicate to him that there was a disconnected gas pipe in that end or not? A. No. Question 106:. Right. A. I mentioned "Don't touch from here", there are some services or something, I don't want it. 18 There is however evidence from Mr Campbell that, at an earlier point in time of the construction of the works, he had been told that the stake with coloured bunting marked the termination of a gas supply line. 19 Mr Adler, upon the evidence, was present on the site until 11 o'clock on Monday 4 December 1995. On any view of the evidence, that is a time before which Mr Campbell had started the work which eventually dislodged the gas pipe. 20 I cannot, upon that evidence, find that beyond reasonable doubt Mr Adler failed in a duty to take reasonable care for the health and safety of persons at the place of work; in that he failed to prevent the operation of the earthmoving machinery at a position close to the charged gas supply line. 21 I find the offence not proved and I find the defendant not guilty. 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.