Industrial Relations Commission of New South Wales in Court Session CITATION : Guillarte v Industrial Galvanizers Corporation [2002] NSWIRComm 192 PROSECUTOR Inspector Guillarte PARTIES : DEFENDANT Industrial Galvanizers Corporation Pty Ltd FILE NUMBER: IRC 4174 and 4175 of 2001 CORAM: Boland J CATCHWORDS : Occupational health and safety - Section 16(1) of the Occupational Health and Safety Act 1983 - Plea of not guilty - Galvanising plant - Use of electric overhead crane to transport structural steel beam - Risk to persons working on factory floor - Defence under s 53 of Occupational Health and Safety Act 1983 - Reasonably foreseeable - Offence proven LEGISLATION CITED : Evidence Act 1995 Occupational Health and Safety Act 1983 Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Page v Woolworths Ltd (unreported, Peterson J, CT93/1044, 9 September 1994) Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 CASES CITED : Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182 WorkCover Authority of New South Wales (Insp Vierow) v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 WorkCover Authority of New South Wales (Insp Kelsey) v The University of Sydney (unreported, Hill J, 2 April 1997) HEARING DATES: 07/08/2002; 07/09/2002; 07/11/2002 DATE OF JUDGMENT: 08/09/2002 PROSECUTOR: Mr M P Cahill of counsel Solicitor: Mr N Correy Moray & Agnew LEGAL REPRESENTATIVES: Mr P M Kite SC of counsel and Mr M L Shume of counsel Solicitor: Mr P Cutrone Sparke Helmore JUDGMENT: - 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 9 August, 2002 Matter No. IRC 4174 of 2001 INSPECTOR GUILLARTE v INDUSTRIAL GALVANIZERS CORPORATION PTY LTD Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 Matter No. IRC 4175 of 2001 INSPECTOR GUILLARTE v INDUSTRIAL GALVANIZERS CORPORATION PTY LTD Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 These matters involve prosecutions by Inspector Corrie Guillarte, an Inspector of the WorkCover Authority of New South Wales ("the prosecutor"), of Industrial Galvanisers Corporation Pty Ltd ("the defendant") for breaches of s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. 2 At the commencement of the hearing it was indicated to the Court that the prosecution under s 15(1) would not be proceeding. The Court dismissed the prosecution by consent with no order as to costs. 3 The remaining matter is the prosecution under s 16(1) of the Occupational Health and Safety Act. That section imposes the obligation on an employer to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work." 4 The prosecution under this section arose from an incident that occurred on 3 July 1999 at the premises of the defendant at 20-22 Amax Avenue, Girraween in the State. An overhead travelling crane was transporting a structural steel beam or girder that measured 15 metres in length, was approximately 1.2 metres wide and weighed approximately 4.7 tonnes. Whilst being positioned to be weighed, it was alleged the steel beam struck a metal jig stand situated on the floor of the factory premises that supported a jig beam. The jig stand toppled and the jig beam fell onto Mr Lasalo Iosefa causing him serious injury. 5 The allegation contained in the application for order was that the defendant failed Contrary to section 16(1) of the Occupational Health & Safety Act, 1983, to ensure that persons not in its employment, and in particular, Lasalo Iosefa, were not exposed to risks to their health and safety arising from the conduct of its undertaking, to wit the galvanizing of metal products, at the defendant's place of work, in that: 1. The defendant was at all material times on 3 July 1999 an employer. 2. At all material times the defendant conducted its business involving the galvanizing of metal products from its galvanizing plant at 20-22 Amax Avenue, Girraween in the state of New South Wales ("the premises"). 3. The premises was comprised of an enclosed structure which had approximate dimensions of 93 metres in length and 22.75 metres in width. The height internally of the premises was about 10 metres from the floor surface to the level of the roof trusses. 4. At all material times there was situated within the premises an overhead travelling crane which was used for the purpose of transporting metal products around the premises. 5. There was a maintenance platform, for the overhead travelling crane which was used for the purpose of transporting metal products around the premises. 6. There was a maintenance platform, for the overhead travelling crane, which platform protruded within the walls of the premises. 7. At all material times there was a metal jig stand which rested upon the floor of the dressing area of the premises and was supported by its own weight but was not affixed to the floor in anyway. 8. The said jig stand was at all material times on 3 July 1999 supporting a jig beam, which beam was used to attach metal products to it during the galvanizing process. 9. The jig beam rested on the jig stand and was supported there by the force of its own weight and was not affixed to the jig stand in any way. 10. Mr Cetin was at all material times on 3 July 1999 working in the dressing area of the premises near to the jig stand. 11. At all material times Mr Cetin was working with another non-employee of the defendant, Lasalo Iosefa ("the workmate"), in carrying out his duties. 12. At all material times on 3 July 1999 Geoffrey Wolfgang Matthew Bischof ("the crane operator") was operating the said overhead travelling crane and was using it to transport a structural steel beam which measured 15 metres in length and was approximately 1.2 metres wide and weighed approximately 4.7 tonnes. It was being transported above and across the dressing area to the weighing scale. 13. At about 9.50am on the 3 July 1999 the structural steel beam was being manoeuvred by the crane operator to position it on the weighing scale when it struck the jig stand and caused it to topple. 14. At the time the jig stand toppled it had the jig beam resting upon it. At the same time Mr Cetin and the workmate were near to the jig stand carrying out their duties. When the jig stand toppled the jig beam fell onto the workmate and pinned him to the floor causing serious injury to him. 15. The non-employee workmate sustained serious injury as a consequence of the incident. 16. Mr Cetin did not sustain any injury in the incident but was at risk of injury by virtue of being in proximity to the jig stand when it toppled with the jig beam upon it. 17. At all material times the system of work adopted by the defendant for the conduct of its undertaking was unsafe because: i) In the transporting of a large structural steel beam above and across the dressing area there was a risk of it bumping the jig stand on the floor of the premises below it. ii) The existence of the crane maintenance platform protruding internally within the premises created obstruction with respect to the movement of the aforesaid structural steel beam. a iii) The movement of the said large structural steel beam within the confines of the premises having regards to the beam's dimensions, in relation to the size of the premises, involved a safety risk because of the proximity of the beam to the jig stand and the crane maintenance platform whilst it was being transported. iv) The jig stand was at all material times at risk of toppling over if bumped by objects being transported by the overhead crane because it was not properly affixed to the floor of the premises. v) The crane operator continued to operate the overhead travelling crane in transporting a large structural steel beam even though there were persons working in the dressing area. vi) There was no proper warning or marshalling system to prevent persons returning to the dressing area to work prior to the overhead travelling crane completing the carriage of a large structural steel beam above and across it. 6 The defendant made certain admissions and indicated certain facts were not in dispute. These were as follows: 1. Corrie Guillarte is an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under section 48 of the said Act to institute proceedings in this matter. 2. Industrial Galvanizers Corporation Pty Ltd (ACN: 49 000 545 415) is a company duly incorporated and having its registered office at 312 Pacific Highway, Hexham in the State of New South Wales. 3. The defendant was an employer. 4. At all material times, the defendant conducted its business involving the galvanizing of metal products from its galvanising plant at 20-22 Amax Avenue Girraween in the State of New South Wales. 5. The above premises were a place of work. 6. The defendant did not employ Lasalo Iosefa. In addition, we consider the following facts are not in dispute: 1) The defendant was at all material times on 3 July 1999 an employer. 2) At all material times the defendant conducted its business involving galvanising metal products from its galvanising plant at 20-22 Amax Avenue, Girraween in the State of New South Wales. 3) The premises was comprised of an enclosed structure which had approximate dimensions of 93 metres in length and 22.65 metres in width. 4) The height internally of the premises was about 10 metres from the floor surface to the level of the roof trusses. 5) At all material times there were situated within the premises an overhead travelling crane which was used for the purpose of transporting metal products around the premises. 6) There was a maintenance platform, for the overhead travelling crane, which platform protruded within the walls of the premises and which was located at the southern end of the factor on the western wall at a height 6.5 metres above the ground and is approximately 1800mm wide. 7) At all material times on 3 July 1999 Geoffrey Wolfgang Matthew Bischof ("the crane operator") was operating the said overhead travelling crane and was using it to transport a structural steel beam which measured 15 metres in length and was approximately 1.2 metres wide and weighed approximately 4.7 tonnes. It was being transported above and across the dressing area to the weighing scales. 7 The defendant pleaded not guilty. The Evidence 8 Mr M Cahill of counsel appeared for the prosecutor. Mr P Kite SC and Mr M Shume of counsel appeared for the defendant. Mr Cahill called a number of witnesses as follows: · The prosecutor, Inspector Corrie Guillarte. · Lasalo Iosefa who, on 3 July 1999 was employed by a labour hire company, Integrated Workforce, and who was working at the defendant's premises when struck by the jig beam. · Samet Cetin, who was also employed by Integrated Workforce on 3 July 1999 and who, on that day, was working with Mr Iosefa. · Peter Aramini, supervisor, employed by the defendant on 3 July 1999. · Geoffrey Bischof, crane driver, employed by the defendant on 3 July 1999. · Christopher Dobson, production manager, employed by the defendant on 3 July 1999. It should be noted that Mr Dobson was declared an unfavourable witness for the prosecution pursuant to s 38 of the Evidence Act 1995. 9 The prosecutor also tendered information regarding induction processes, notes taken by the prosecutor relating to the incident, a report on the incident by Miller Millston Ferris, consulting engineers, and a record of interview with Mr Graham Choice, a director of the defendant. 10 The defendant did not call any oral evidence. The defendant tendered a guide for electric overhead crane drivers issued by the WorkCover Authority in April 1992. Both parties tendered photographs of the scene of the accident and various plans and diagrams were also tendered. 11 As the name suggests, the factory at Girraween was a galvanising plant. The factory was approximately 93 metres long (running north-south), approximately 22.6 metres wide (running east-west) and had an internal height of about 10 metres. At the southern end of the building located on the eastern and western walls were two crane maintenance platforms approximately 1.8 metres wide. The distance between the ground and the underside of the platforms was approximately 6.5 metres. The distance between the platforms (measuring east to west) was approximately 16 metres. 12 There were four pendant controlled electric overhead cranes running in a north-south direction that were used to transport product to and from various treatment tanks located at various points in the factory. The overhead crane allegedly involved in the incident on 3 July 1999 was the crane located at the southern end of the factory. The distance from the floor to the underside of this crane was approximately 7.7 metres. The crane beam had two hooks for lifting and lowering that could be moved independently of each other in an east-west direction. 13 Near the southern wall at about the centre of the factory was a set of heavy-duty scales used for weighing product. The two scales each measured approximately 1.2 by 1.8 metres and the centreline (east-west) of the scales was at a point about 2 metres from the southern wall of the factory. Approximately 3.5 metres from the southwestern corner of the southern wall was the southern end of a jig stand that was fixed to the western wall. The jig stand consisted of a steel beam about 13 metres long supported by three steel posts 2.3 metres high, spaced about 6 metres apart. Approximately 6.2 metres to the east of the jig stand fixed to the western wall was another jig stand of the same dimensions. This jig stand was freestanding. The steel posts supporting the eastern jig stand were welded onto base plates, which in my opinion would have prevented the stand toppling over unless struck by a considerable force. After the alleged incident on 3 July 1999 the base plates were bolted to the floor of the factory. The area where the jig stands were located was known as the "dressing area". On the basis of the photographic evidence, and the evidence of various witnesses including Inspector Guillarte, Mr Cetin and Mr Bischof I have taken the dressing area to be that area depicted in the photograph numbered "1" in exhibit "A". 14 The purpose of the jig stands was to provide a structure upon which to rest jig beams. The jig beams weighed approximately 300 kg and straddled the two jig stands with end plates fitting over the edges of the jig stands having the effect, to some extent, of locking the jig beams and jig stands together. The jig beams were transported by the overhead crane by hooking into lifting lugs on the beams. The lifting lugs were 600-700 mm high. Hanging from the jig beams were product that had been galvanised. After the jig beams were placed on the jig stand the galvanised product was removed from the beams, dressed and stacked. 15 On 3 July 1999 Mr Iosefa and Mr Cetin were engaged in dressing and stacking the galvanised product in the dressing area. Also on that day Mr Bischof was engaged in moving large structural steel beams or girders from the northern end of the factory to the southern end for weighing. This involved using the overhead crane to lift and transport the girders over the top of the dressing area in order to position the girders so that they could be placed on the scales. Mr Bischof had carried out this operation successfully with one such girder under the supervision of Mr Aramini. Mr Aramini then left the area. Mr Bischof repeated the lift with a second structural steel girder. Before moving the steel girder over the dressing area Mr Bischof indicated to the workers in the dressing area to move to a position so that the girder did not pass overhead of the workers. The workers did so. After the girder passed over the dressing area Mr Cetin and Mr Iosefa moved back to the dressing area. It was alleged that whilst Mr Bischof was positioning the girder for weighing, it struck the eastern jig stand causing it to topple over. As it did so the jig beam resting on the jig stands crashed to the floor. Mr Cetin and Mr Iosefa were under the jig beam at the time. Mr Cetin managed to scramble to safety but Mt Iosefa was hit by the jig beam as it fell, causing him serious injury. 16 The evidence does not reveal how the girder hit the jig stand, but a reasonable inference to be drawn from the evidence was that the jig stand was knocked over by the girder as it was being positioned for weighing. 17 An aerial view sketch of the layout of the southern end of the factory is set out in annexure A. The sketch is not to scale. Consideration 18 In Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994), Peterson J identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s 16(1). These elements may be paraphrased as follows: 1. the defendant was an employer; 2. there were persons not employees exposed to risks to their health or safety; 3. the risk arose from the conduct of the defendant's undertaking; and 4. the exposure to risk was at the defendant's place of work. 19 The identification by Peterson J of these four elements was cited with approval by the Full Bench in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at 88. 20 The only issues arising out of whether each of the elements have been proved are: 1) Whether there was a risk to health and safety; and 2) Whether the defendant failed to ensure that Mr Iosefa was not exposed to that risk. 21 In relation to the other elements of the offence, the defendant has admitted that it was an employer; that Mr Iosefa was not employed by the defendant; and, that the premises where the incident occurred was the defendant's place of work. It was also uncontested that Mr Iosefa was working at the defendant's place of work at the time the incident occurred on 3 July 1999 and that on that day the defendant was conducting an undertaking. 22 I turn to the first issue of whether there was a risk or detriment to safety. The procedure adopted by the defendant for transporting and weighing large items, such as the structural steel girder, involved the crane operator hooking up the girder, raising it to the required height, which in this case was about 15 cm above the lifting lugs of the jig beam, and moving it in a southern direction, over the dressing area, to the southern load limit of the overhead crane. Before transporting the girder over the dressing area the crane operator would advise employees in that area to move from underneath the load's path. After the load had passed, employees would, on their own initiative and in the absence of further instruction, move back to their work in the dressing area. The load would then be lowered so that it was more manageable and positioned so that it could be lowered further onto the scales. Positioning might involve moving the load east or west. Whilst operating the crane the operator would stand on the southern side of the load. 23 Once Mr Bischof had moved the girder over the dressing area and before positioning the girder to lower it onto the scales, the girder was at a height where the centreline (running east-west) of the girder was about level with the top of the eastern jig stand and at a distance estimated to be somewhere between 20 cm and 1 metre from that jig stand. 24 In my opinion, the situation described above represented a clear risk to health and safety. The risk was constituted by the following elements: 1) The presence of a long and heavy load in a suspended state in reasonably close proximity to the eastern jig stand, which was freestanding. It may be noted that at the time of the incident there was only one jig beam resting on the jig stands. One jig beam would not have had the effect of "locking" the jig stand/jig beam structure together. 2) The crane operator, as a matter of practice, stood on the southern side of the load, thereby obscuring his view as to how close the load was to the eastern jig stand. 3) Employees working in the dressing area, as a matter of practice, moved back to their work area (underneath any jig beams resting on the jig stands) after any load had passed overhead but before it was lowered to the scales. 25 These elements created a risk of the load striking the eastern jig stand causing it to topple over, thereby causing the jig beam to fall on a person or persons working underneath. 26 The next question is whether the defendant failed to ensure that Mr Iosefa was not exposed to risks to his health and safety. This has to be looked at in the light of the particulars of the charge. 27 The relevant particulars are those set out in par 17 of the application for order. The first particular was in the following terms: 17 At all material times the system of work adopted by the defendant for the conduct of its undertaking was unsafe because: (i) In the transporting of a large structural steel beam above and across the dressing area there was a risk of it bumping the jig stand on the floor of the premises below it. 28 Whilst it was the case that the girder in question was transported at a height of about 15 cm above the lifting lugs of the jig beam and, therefore, left little room for operator error, the evidence was that whenever a load was transported across the dressing area, employees were advised by the crane operator beforehand to move from underneath the path of the load to an area adjacent to the western wall. Mr Iosefa was aware of the requirement to move from underneath the path of a load and did so. It could not be said, in those circumstances, Mr Iosefa was exposed to risks to his health and safety. 29 The second particular was that: (ii) The existence of the crane maintenance platform protruding internally within the premises created obstruction with respect to the movement of the aforesaid steel beam. 30 It does not seem to me that either the eastern, western or a combination of both crane maintenance platforms could be said to constitute an unsafe system of work thereby exposing Mr Iosefa to a risk to his health and safety. Certainly, the presence of the platforms meant that any load measuring 15 metres would have to be handled with considerable care but the distance between the two platforms was approximately 16 metres, providing room for a crane operator to manoeuvre the girder between the two platforms. In that sense I do not consider the platforms created an obstruction. The two platforms could, however, limit the extent to which the girder could be moved in an easterly or westerly direction if the girder was at a height where such movement might cause the girder to collide with one of the platforms. But the evidence was that any movement of the girder in an easterly or westerly direction would not occur until after the crane operator had moved the crane over the dressing area and was positioning the girder to set it down on the scales. And at that stage the girder was below the floor of the maintenance platforms. 31 The third particular was that: (iii) The movement of the said large structural steel beam within the confines of the premises having regard to the beam's dimensions, in relation to the size of the premises, involved a safety risk because of the proximity of the beam to the jig stand and the crane maintenance platform whilst it was being transported. 32 The inference to be drawn from this particular is that in transporting the girder across the top of the dressing area, a risk to health and safety arises from the limited space in which to manoeuvre the girder between the jig stand and the crane maintenance platform. I consider that the observations I made in relation to the first particular, apply with equal force to the third particular. 33 The fourth and fifth particulars were that: (iv) The jig stand was at all material times at risk of toppling over if bumped by objects being transported by the overhead crane because it was not properly affixed to the floor. (v) The crane operator continued to operate the overhead travelling crane in transporting a large structural steel beam even though there were persons working in the dressing area. 34 Mr Kite submitted that particulars one and four had to be read together and as such were to be understood as referring to a situation where the load was being transported "above and across the dressing area". Mr Kite referred to his cross-examination of Inspector Guillarte where he contended that the Inspector agreed with this interpretation of how the particulars were to be read and understood. It does not seem to me that the Inspector did in fact agree with such an interpretation. The first particular does deal with the situation of the beam being transported above and across the dressing area and I agree that no risk arises. The fourth particular, however, refers to the jig stand "at all material times" being at risk of toppling over if bumped by an object being transported by the overhead crane. 35 In my opinion, this is where the risk lay. Once the crane passed above and across the dressing area, the usual practice was for employees to return to their workstations in the dressing area notwithstanding the fact that the crane's load had not been grounded. This is referred to in the fifth particular. 36 I consider that the proximity of the eastern jig stand to the girder as it was being positioned by a crane operator standing on the southern side of the beam, and thus whose view of the jig stand was obscured, represented a real risk that the girder might connect with the jig stand knocking it over and, in turn, bringing down the jig beam on any worker who had returned to his workstation under the jig beam. In this case it was Mr Iosefa who was exposed to the risk. 37 The sixth particular was that: (vi) There was no proper warning or marshalling system to prevent persons returning to the dressing area to work prior to the overhead travelling crane completing the carriage of a large structural steel beam above and across it. 38 This particular suffers the same problem as the first particular; there was no risk whilst a load was being transported above and across the dressing area. 39 Although in this case only two of the six particulars have been made out, what the prosecution is required to establish, in a criminal proceeding, are the essential elements of the offence charged. It is not necessary to establish each of the particulars: Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 at 484; WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182 at 197-198. 40 Particulars (iv) and (v), in my view, contained substantive allegations as to failure on the part of the defendant. Given that these have been made out I find that the essential elements of the offence have been proved beyond reasonable doubt. The defendant is, therefore, guilty of an offence under s 16(1) of the Occupational Health and Safety Act in relation to the charge brought in these proceedings unless it is able to make out a defence under s 53 of the Act. Defence under s 53 of the Act 41 Section 53 of the Act provides: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that- (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence; or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 42 As Walton J, Vice President observed in Cleary Bros at 203: 76. To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake Personnel at 457; Kennedy Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 at 82 and Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at 102. 43 In this case, the defendant relied on the first limb of s 53, namely, that it was not reasonably practicable to comply with the Act. Mr Kite referred to WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 259 where Walton J, Vice President said: To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case. It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have. 44 Mr Kite also referred to the judgment of Peterson J in WorkCover v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 at pars [26] to [28]: …I am satisfied on balance that the circumstances of this accident were not reasonably foreseeable, the aspect relied on by Mr. Corsaro and therefore it was not reasonably practicable to make provision in this regard. The truck was reversing slowly, over a long distance. Its reversing light and beeper were functioning. I would infer that the surrounding road noise impacted upon the ability of Messrs. Watson and Tseganis to hear the approach of the truck, not until it was within 7 to 10 metres distance. Nevertheless, there was sufficient time, upon Mr. Watson's warnings, for Mr. Tseganis to get out of its path yet this he failed to do. This could not be foreseen. The circumstances of the vehicle's reversing were unusual in the context of work of this type, because of the site layout, but not in the ordinary course of truck operations. One constantly sees large vehicles reversing on public streets, across public footpaths and in public places such as service stations and parking areas, and into loading bays. It is the light and beeper which are intended to give warning of the manoeuvre which enable this to occur. In the circumstances of this case it seems to me obvious that had a person been made available, as the charge contemplates, to guide the truck driver, this sad event would not have occurred. However, it is apposite to recall the words of Hill J. in WorkCover Authority (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR362 at 381. "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of reasonable foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight." 27. I consider this is an accident which no reasonable person, considering the possibility of risk to workers such as Messrs. Watson and Tseganis, would have formed the opinion that a truck control person was necessary. The combination of the 'buddy' policy with the warning devices on the vehicle would be, in prospect, sufficient. 28. I find the defendant has made out a defence under s. 53; I find the defendant not guilty and dismiss the charge. 45 Mr Kite submitted that the risk constituting the offence in this matter was not reasonably foreseeable and, therefore, it was not reasonably practicable to take steps to avoid the risk. He contended that when one considers the complex chain of events constituting the risk, it was not easily explicable in hindsight let alone foreseeable. It was further contended that the system of work the subject of the charge had been in place for 19 years without incident. 46 It is not a question of whether an employer did envisage a particular danger but rather whether it should have: Kellogg at 259. Further, the test of foreseeability is not whether a lawyer or engineer could reasonably have foreseen the risk that existed but whether or not the ordinary juryperson or reasonable observer could have done so. The standard of foreseeability is objective but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable: Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 364 and WorkCover Authority of NSW (Insp Kelsey) v The University of Sydney (unreported, Hill J, 2 April 1997). 47 Moreover, the obligation on an employer to ensure the health and safety of persons at work is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk to safety has arisen and requires remedy: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210; Shannon v Comalco at 364. The Act also requires a pro-active approach and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: Nelmac citing Hill J in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. 48 The risk presented by a girder 15 metres long, weighing 4.7 tonnes and suspended within 1 metre of a jig stand upon which rested a 300 kg jig beam with persons working underneath that beam, would, in my opinion, be readily apparent to a reasonable observer. The force of impact on the stand that could potentially be applied by the girder if it came into contact with the stand would easily overcome the locking effect of a single jig beam and the base plates of the jig stand. It would only take a relatively slight misjudgement on the part of a crane operator to cause the girder to come into contact with the jig stand, especially where the view of the operator of the distance between the girder and the stand was obscured. 49 In Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 the Full Bench considered the defence under s 53(a). At par [71] the Full Bench stated: 71 Walton J, Vice-President recently dealt with the s 53(a) defence in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182. After considering the decision of the High Court in Slivak v Lurgi (Aust) Pty Ltd (2001) 75 ALJR 481; 103 IR 52, his Honour held, at 206 - 207: [87] It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. We consider the above comments by his Honour correctly state the position as to this defence. 50 One simple remedial measure taken by the defendant following the incident was to bolt the eastern jig stand to the floor. Mr Dobson, an engineer, expressed the opinion that this measure would not have prevented the accident. However, Miller Milston and Ferris, consulting engineers, who provided a report to the defendant regarding the incident, stated: We inspected the area of the plant shown in Figure 1 on the 16th September and noted that since 3rd July the large steel plate assemblies at the base of the columns to frame 2 have been bolted into the concrete floor. The effect of this is to considerably reduce the possibility of a similar accident occurring again. 51 In any event, even if I were to accept Mr Dobson's opinion over that of the consulting engineers (which I do not) I consider that the defendant has failed to discharge the onus of showing that the costs, difficulty or trouble required to avoid or overcome the risks to safety in the workplace, outweighed those risks. 52 I find that the defence under s 53 has not been made out. I find the offence proven. I will hear submissions on penalty on a date to be fixed. 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.