Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Mansell v Christopher Stoeski [2003] NSWIRComm 373 PARTIES : Workcover Authority of NSW (Inspector Mansell) Christopher Stoeski FILE NUMBER: IRC 5498 and IRC 5499 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 of counsel Solicitors: James Legal JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ Date: 30 October 2003 Matter No IRC 5498 and 5499 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MANSELL) v CHRISTOPHER STOESKI Prosecutions under section 19(a) of the Occupational Health and Safety Act 1983 EX TEMPORE JUDGMENT [2003]NSWIRComm 373 CHARGE NUMBER 5498 of 1999 1 In matter number 5498 of 1999 Mr Christopher Stoeski is charged that between 10 November 1995 and 4 December 1995 at Kogarah in the State of New South Wales he, being an employee of Josef & Sons Contracting Pty Limited, whilst 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 The period, 10 November 1995 to 4 December 1995, excludes 4 December when other events occurred which are the subject of another charge. 3 The offences of which Mr Stoeski stands charged are that (1) he took no steps to remove a charged gas supply line from a construction area where earthmoving machines were operated and (2) he failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line. 4 The danger latent in the presence of a charged gas supply line became actual when on or about 21 November 1995 Mr Begg commenced to demolish the shops in Railway Parade. Mr Stoeski was not aware of the presence of the charged gas line before that activity commenced. In a statement made by Mr Stoeski at the Kogarah police station on 5 December 1995, he said that when work commenced on the site on or about 10 November, he spoke to Robert Josef and said, "Is the gas cut off?" and that Mr Robert Josef said, "Yes". 5 Mr Stoeski said that the first time he saw the gas pipe exposed was when the excavator operated by Mr Begg pulled away the footings from the fish and chip shop and he saw a gas pipe of yellow plastic conduit to which a red cap was attached. The pipe became further exposed when the soil subsided under the pavers on the footpath. 6 After the excavator of Mr Begg exposed the gas pipe by work on the shop frontages along Railway Parade, that excavator moved to the lower level and worked upon the footings which were more remote. There is no evidence from which I may find beyond reasonable doubt that after the exposure of the gas pipe Mr Begg operated his excavator, by way of pneumatic pick or bucket, close to the exposed gas pipe. Given the obvious danger posed by the presence of the gas line, I would think that such activity by Mr Begg would have been improbable. 7 Whatever Mr Stoeski might reasonably have done after the exposure of the gas pipe is a question for a later charge. However, because there is no evidence that work was done close to the gas pipe, after Mr Stoeski discovered its existence, I am not persuaded, in relation to the offences which constitute this charge, that he failed to take reasonable care. 8 I note Mr Joseph's submission that there was a cast gas fitting outside the fish and chip shop which ought to have put Mr Stoeski on notice that at some time a gas line entered that shop. However, I am not persuaded on the criminal onus that he knew that the gas had not been disconnected at a more remote place. The offences are not proven and I find the defendant not guilty. CHARGE NUMBER 5499 of 1999 9 Mr Christopher Stoeski is charged 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. 10 This charge is pleaded compendiously, and the particulars disclose several discrete offences. It is sufficient to here note that the defendant is charged with the following offences; That he failed to adequately identify the charged gas supply line on the KSU. That he failed to adequately mark the charged gas supply line on the KSU. That on 4 December 1995 he instructed Robert Campbell to operate an excavator. 11 Mr Stoeski was the foreman upon the site who was in charge of the men and the works. It is true that it was not until on or about 23 November that he discovered that a charged gas supply line ran through the site. He then, together with Mr Bustamante of Abigroup Contractors Pty Ltd, marked the terminus of that gas line with a picket stake marked with bunting. Thereafter he took no steps to identify the course of the charged gas line through the site to the point at which it terminated. 12 Knowing there was a charged gas supply line and ignorant of its course, Mr Stoeski directed Mr Robert Campbell to operate an excavator, with a bucket, at a place where it was not unlikely that the gas line would be located. 13 As I understand the defence of Mr Young, it is that no duty fell upon Mr Stoeski to himself interrupt the gas supply at a place remote from the site; the danger was constituted by that omission, further acts or omissions by Mr Stoeski did not increase that danger and were causally irrelevant. 14 I do not accept these submissions. 15 It was within the control of Mr Stoeski to nullify the dangers created by the earlier failure of Mr Daniel Josef to interrupt the gas supply line at a place remote from the site. 16 It was unreasonable for Mr Stoeski to fail to take the simple and obvious steps of identifying the course of the gas line, of marking that course, and of preventing Mr Robert Campbell from operating his grader at any place remotely near where the gas line was located. 17 The offences are proven. I find the defendant guilty as charged. 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.