Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Ltd [2001] NSWIRComm 21 PROSECUTOR WorkCover Authority of New South Wales (Inspector Rech) PARTIES : DEFENDANT Walter Construction Group Ltd FILE NUMBER: IRC 5406 of 2000 CORAM: Marks J CATCHWORDS : Occupational Health and Safety Act prosecution - Dismissal of charge at close of prosecution case - Held no tribunal could safely convict. LEGISLATION CITED : Occupational Health & Safety Act 1983 s 14(1) CASES CITED : The Queen v Prasad (1979) 23 SASR 161 HEARING DATES: 12/21/2000; 01/05/2001; 02/02/2001 DATE OF JUDGMENT: 02/23/2001 PROSECUTOR Mr P M Skinner of counsel SOLICITORS WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT Mr S J Archer and with him Mr R E Dubler of counsel SOLICITORS Corrs Chambers Westgarth JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Friday 23 February 2001 Matter No IRC 5406 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RECH) v WALTER CONSTRUCTION GROUP LTD Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT ON WHETHER UNSAFE TO CONVICT 1 The prosecutor Inspection Rick Rech of the WorkCover Authority of New South Wales initially brought three prosecutions against the defendant Walter Construction Group Ltd arising out of an incident which occurred on 24 October 1997 at Botany. In a judgment given on 13 December 2000 I dismissed the charges in Matters Nos IRC 5404 and 5405 of 1999 holding that the defendant had no case to answer in each of them. I held that there was a case to answer in the third matter, the subject of these proceedings, but invited the parties to make written submissions as to whether the proceedings should nevertheless be dismissed because on the state of the evidence no reasonable tribunal could safely convict the defendant. In taking this approach I relied on the authority of a line of cases typified by The Queen v Prasad (1979) 23 SASR 161. 2 Before dealing with the evidence I should first deal with some submissions made by Mr Skinner of counsel who appeared for the prosecutor which concerned the appropriate and proper approach to be taken to the evidence having regard to the state of the proceedings; the prosecution case had closed and the defendant had not stated whether it would go into evidence. Mr Skinner's submissions centred around the approach to the acceptance of facts and the drawing of inferences upon those facts. 3 I propose to approach the evidence and the state of the evidence without having regard to the fact that the defendant has not at this stage made any determination as to whether or not it will go into evidence. As I understand the approach which is typified by Prasad and the other cases to which I referred at some greater length in my judgment of 13 December 2000, the exercise involves an evaluation of the evidence including its weight and reliability in determining whether any reasonable tribunal could safely convict on it. This examination is one which I have instigated and which I am entitled to instigate at this stage of the proceedings as is made clear in Prasad and the other relevant authorities. Accordingly, the position taken by the defendant in terms of any evidentiary case which it may or may not wish to mount becomes irrelevant. This point applies also to any inferences which may be drawn from the factual circumstances. 4 The charge brought against the defendant under s 15(1) of the Occupational Health and Safety Act 1983 is in the following terms: On 24 October 1997 at 30 Friendship Road, Botany in the State of New South Wales, the defendant contravened Section 15(1) of the Occupational Health and Safety Act 1983, in that being an employer it failed to ensure the health, safety and welfare at work of all its employees and in particular Neil Peter, Neville Ngawati, Peter Brownett, Robert McMekin, Phil Trainor, Julian Osmond, Barnie Osmond, Bruce Lindop, Darryn Wenlock, John Eldridge, Mark Bunk and Willy Ross. 5 The particulars of the charge are as follows: The defendant failed to maintain plant, to wit, a 16mm nominal diameter wire rope, which was one of two ropes supporting the Access Shaft Manrider, to ensure that it was safe and without risks to health. In particular, it failed to detect corrosion in the rope and ensure that all portions of the rope were adequately lubricated. 6 In my earlier judgment I set out the evidence given in connection with this and the other charges which were dismissed. In terms of this charge I repeat the observations made in my earlier judgment that there must be a causal nexus between the breach alleged against the defendant and the risk to health and safety identified by the prosecution. 7 I will not repeat the factual circumstances against which this charge has been brought which are adequately summarised in my earlier judgment. In summary, the evidence as it related to the alleged failure by the defendant to maintain the rope by failing to detect corrosion and to ensure that all portions were adequately lubricated was to the following effect: (a) When Mr Hess inspected the site the day after the accident he said that one end of the broken steel wire rope was frayed and looked rusty, although some of the "rust" could easily be rubbed off by hand. (b) There is evidence that the material which appeared to be rust was an extrusion of ironstone and wash from the walls of the shaft. (c) Inspections carried out by Mr Hess on a number of occasions gave no indication that the rope had not been adequately lubricated. Daily inspection reports produced to Mr Hess by the defendant indicated that the rope had been lubricated. (d) Inspection of the rope immediately after the incident by Messrs Ngawati and Teraki was to the effect that shortly after the incident the rope appeared well lubricated and there had never previously been any signs of any corrosion, defect or other anomaly. (e) Evidence from Mr Mace was that the rope was subject to daily visual inspections with further and more detailed inspections carried out weekly and monthly. The rope was greased monthly and detailed records were kept by the defendant. (f) Evidence of Mr Brownett was that shortly after the incident the rope appeared on its external surface to be well lubricated with no signs of obvious brown rust but the hemp core was not very moist. (g) Tests carried out by the prosecution expert Mr Ng showed that the rope was generally in good condition with negligible corrosion and only moderate wear on the crown wires except at the break and about four metres below the break where there was an area which was dry and indicated lack of lubricant. However Mr Ng was unable to say whether the lack of internal lubrication was due to omission during manufacture or as a result of incorrect maintenance procedures. Mr Ng conceded that the lack of corrosion on the adjacent section of rope which was not broken at the same corresponding distance from the cage equally supported the possibility of a manufacturing problem. 8 The prosecution evidence given by its expert Mr Ng was that there were two possibilities as to why the rope failed. One, lack of lubrication during the course of maintenance, would demonstrate guilt on the part of the defendant. The other, lack of lubrication during the manufacturing process would exculpate the defendant. Mr Ng was unable to state in his expert opinion as to which of these factors caused the rope to break. Taking this evidence in conjunction with the remainder of the evidence which I have summarised it seems to me that it is more likely than not that the lack of lubrication which caused the rope was to break was lack of lubrication in the hemp core rather than to the exterior of the rope. This is indicative of a manufacturing problem, and there is no evidence that the defendant ought reasonably to have been aware of this defect given the external state of the rope and its systematic inspection processes and given also the fact that the rope was not very old at the time that the incident occurred. 9 On the state of the evidence I cannot be satisfied beyond a reasonable doubt that the rope broke as a result of any failure on the part of the defendant to maintain it either by failing to detect corrosion or by ensuring that all portions were adequately lubricated. Accordingly, the prosecution has failed to prove the charge to the requisite standard of proof and the charge should be dismissed, because no tribunal could safely convict the defendant. 10 There seems no reason why the defendant should not have the benefit of a costs order in its favour. As I have not heard any argument as to costs I will, however, reserve costs. ORDERS 11 I make the following orders: 1. The summons in Matter No 5406 of 1999 is dismissed. 2. Costs are reserved. -------------- 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.