Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure t/as Australian Inland Energy and Water [2003] NSWIRComm 408 Prosecutor: PARTIES : Inspector Belley Defendant: Australian Inland Energy Water Infrastructure t/as Australian Inland Energy and Water FILE NUMBER: IRC 709 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of not guilty - application for permanent stay of proceedings refused - insufficient evidence to be satisfied beyond reasonable doubt that there was a failure to identify hazard as pleaded - failure to be satisfied beyond reasonable doubt that there was a failure to control risk as pleaded - defence under section 53 of the Act established - summons dismissed - costs to be determined. LEGISLATION CITED : Occupational Health and Safety Act 1983 Jago v District Court of NSW (1989) 168 CLR 23 Walton v Gardiner (1993) 177 CLR 378 Rodney Morrison v Joy Manufacturing Co Pty Ltd (2002) NSWIR Comm 366 McMartin v Broken Hill Company Pty Ltd (1988) 100 IR 241 Inspector Davies v Prospect Electricity, unreported, 9 November 1992 WorkCover Authority (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 CASES CITED : Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 State Rail Authority v Dawson (1990) 37 IR 110 WorkCover Authority (Inspector Farrell) v Ross Colin Morrison (2001) NSWIR Comm 325 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 WorkCover Authority of NSW (Inspector Mayo Ramsay) v Maitland CC (1998) 83 IR 362 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Australia) Pty Ltd (1999) 101 IR 239 Kennedy-Taylor(NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 HEARING DATES: 05/05/2003; 05/06/2003; 05/07/2003; 05/08/2003; 05/09/2003; 07/10/2003; 07/11/2003 DATE OF JUDGMENT: 11/21/2003 Prosecutor: Ms L McManus of counsel Solicitors: Mr J Hanby WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr B Docking of counsel Solicitors: Ms K Keady Buckworth Keady Lawyers JUDGMENT: - 58 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 21/11/2003 WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure t/as Australian Inland Energy and Water IRC Matter No. 709/2002 Prosecution pursuant to s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT NSWIRComm 408 1 By way of an amended summons filed in Court on 8 May 2003, the defendant has been charged with an offence under s15(1) of the Occupational Health and Safety Act 1983. The defendant has pleaded not guilty to the charge. 2 The offence charged alleges that the defendant: Failed to ensure the health, safety and welfare at work of all of its employees, in particular Craig Salisbury and John Collins, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: The defendant failed to provide or maintain systems of work that were safe and without risks to health in relation to the installation of a voltage recorder (polylogger) at Crystal Lane Sub 1. The system of work was unsafe in that: a) There was a failure to identify the hazard and assess and control the risk in relation to the metal framework surrounding the bus bars prior to the installation of the polylogger. i) The hazard referred to in a) is the hazard of the earthed metal framework around the bus bars. ii) The risk referred to in a) is the risk arising from attaching the uninsulated voltage clamp to the bolt on the bus bars in the vicinity of the metal framework. (iii) There was a failure to identify the hazard in that the Hazard Risk Assessment completed for Crystal Lane 2 and Blende Sub 3 was relied on for Crystal Lane Sub 1. The Hazard Risk Assessment form did not identify the hazard of the earthed metal framework surrounding the bus bars at Crystal Lane Sub 1. (iv) There was a failure to control the risk in that: 1. there was a failure to ensure that Mr Collins and Mr Salisbury were made aware of the difference between Crystal Lane Sub 1, Crystal Lane Sub 2 and Blende Sub 3 in the configuration of the metal framework and the bus bars; 2. There was a failure to ensure that the uninsulated voltage clamps were attached securely and in a safe position in that the uninsulated voltage clamp was attached in a position where the uninsulated voltage clamp made contact with the bus bar and with the earthed metal frame; 3. There was a failure to ensure that Mr Salisbury adequately insulated the framework; 4. There was a failure to ensure that Mr Salisbury wore insulated gloves. As a result of the defendant's failure Mr Craig Salisbury and Mr John Collins were placed at risk of injury. Interlocutory proceedings 3 The amended summons arises as a consequence of interlocutory proceedings before me in which counsel for the defendant, by way of notice of motion, sought orders from the Court in the following terms: 1. The proceedings shall be permanently stayed. 2. Alternatively, the prosecutor shall: a. Make an election as to which alleged contravention (including its specified aspects) is relied upon so as to ensure that there is not any overlap or multiplication; b. The other alleged contraventions in the order shall be permanently stayed. 3. In the further alternative, if the prosecutor refuses to make the election, the proceedings shall be permanently stayed. 4. The prosecutor is not permitted to expand any further the aspects of each failure beyond those that WorkCover previously communicated to the defendant's lawyers on or about 30 May 2002 and 30 July 2002. 5. Costs of the motion to the defendant in any event. 6. Such other order as the Court considers appropriate. 4 After hearing submissions on the motion I gave extempore judgment in which I concluded, in part: I am not persuaded that the prosecution in this matter can be properly described as vexatious in that the offence as charged has been instituted without sufficient grounds. However, the prosecution's inability to date to properly clarify the position in relation to the alleged contraventions and supporting particulars relied upon could properly be described as vexatious in the sense that it has caused annoyance and cost and delay to the defendant, in particular, but to the Court as well. For those reasons I am of the view that the prosecution is to be required to elect which alleged contravention or contraventions it is to rely upon in support of the offence charged under s15(1). Further, the prosecution is to identify with precision and finality those further and better particulars in support of each of the alleged contraventions that it relies upon. In saying that, the prosecution cannot sustain its continuing to plead the same further and better particulars to more than one alleged contravention. In identifying and clarifying those alleged contraventions and relevant further and better particulars the prosecution should, it seems to me, confine itself to those matters identified by it in the original order and in the correspondence to the defendant's solicitors of 30 May 2002 and 30 July 2002 as well as those matters contained in the prosecution brief pertaining to the alleged contraventions relied upon. 5 The amended summons was subsequently filed before me on 8 May last. Further application for permanent stay 6 At the conclusion of the substantive proceedings before me, counsel for the defendant, as his primary submission, made an application that the Court permanently stay the proceedings as an abuse of process. Quite properly, the determination of that matter is necessary before any consideration of the substantive issues can be undertaken. 7 The grounds relied upon in support of the application for a permanent stay of proceedings were identified by counsel for the defendant as follows: (i) My previous findings in the notice of motion referred to above. (ii) That the prosecution acted upon 'without prejudice' communications. (iii) That counsel for the prosecution had advised the defendant's instructing solicitor during the course of the substantive proceedings before me that the proceedings might not continue because the witnesses had been discussing the case amongst themselves. (iv) Discussions occurred between counsel for the prosecutor and a witness during his re-examination without leave of the Court. (v) Overall, having regard to the cumulative impact of the above factors and in the interests of the victims and the community, a permanent stay of proceedings is justified. 8 In the course of preparing the prosecution brief in this matter, representatives of the prosecution, including counsel who appeared before me for the prosecution, participated in a conference with representatives of the defendant pursuant to the Guidelines in the Premier's Memorandum 97-26: Litigation Involving Government Authorities. The defendant, as a State owned corporation, had agreed to be bound by the Guidelines. Memorandum 97-26 sets out Guidelines in relation to civil and criminal proceedings involving Government authorities. Relevantly, the Guidelines state: The guidelines apply both to civil and criminal proceedings. They are based on the general principle that litigation between Government authorities is undesirable and should be avoided whenever possible. Where litigation does occur, Government authorities should take steps, as set out in the guidelines, to consult with the authority against which litigation has been commenced and attempt to reach agreement on as many factual and legal issues as possible, to ensure only matters which need to be resolved by the Court are left in issue. 9 At 1.3 of the Guidelines: These guidelines do not apply to State Owned Corporations or local government authorities. However, as the guidelines and the principles underpinning them provide a sound approach to the management of litigation by publicly owned enterprises, State Owned Corporations are encouraged to adopt the guidelines as part of their policy. Similarly, prosecution agencies are urged to apply the principles of the guidelines to State Owned Corporations. The defendant had adopted the Guidelines as part of its management policy. 10 The Premier's Conference (as it was described before me) between the parties took place on 19 June 2002. As a result of matters raised at that Conference, Inspector Belley decided to further interview the two workers, Salisbury and Collins, they being the two workers identified as exposed to particular risk in the charge before the Court. 11 On behalf of the defendant, exception was taken by its solicitors to that course. In correspondence to WorkCover dated 12 July 2000 the defendant's solicitors requested: In view of the fact that statements have already been taken from the employees and that this intention was not raised at the Premier's Conference on 19 June 2002 could you please advise the purpose of seeking further interviews from the relevant employees? 12 In responding to that request on 17 July 2002 WorkCover stated: Inspector Belley proposes to interview the two workers Messrs Salisbury and Collins in relation to matters raised at the Premiers Conference. WorkCover has a duty to investigate all matters raised in relation to its prosecutions. We will provide statements to you once they become available. 13 The issue resurfaced between the parties in May 2003 when the defendant's solicitors wrote to WorkCover, stating in part: Fourthly, you are aware that WorkCover and its chosen counsel participated in a meeting and apparently considered other communications involving the defendant or its representatives in relation to the Premier's Memorandum procedure. Further, the defendant's involvement was expressly on a 'without prejudice' basis. We put you on notice that if there has been or is any attempt by the prosecutor or her representatives to use directly or derivatively any information provided by the defendant or its representatives as part of this process, that it will be considered by the defendant to be an abuse of process and improper or unfair conduct on the part of the prosecutor. 14 WorkCover responded to that issue on 7 May 2003 as follows: You have raised the issue of 'without prejudice communications' arising from the Premiers Conference on 26 June 2002. We confirm that the statements of Mr John Collins dated 22 July 2002 and Mr Craig Salisbury dated 7 August 2002 arose as a result of the Conference. These statements were served on you. We advise that, unless you consent, we do not intend to rely upon, or to adduce evidence from, the above statements as part of our case at the hearing to commence 8 May 2003. Apart from these statements we are unaware of any other 'without prejudice communications' which may be used in evidence. 15 Following my interlocutory judgment, the substantive proceedings commenced before me on 8 May 2003. The matter was ultimately concluded in July 2003. No issue was raised by counsel for the defendant as to the matters canvassed between the parties in the above correspondence until final submissions at the conclusion of proceedings and after all evidence had been adduced. 16 The prosecution's position in relation to the use of 'without prejudice' communications was re-stated in correspondence to the defendant's solicitors dated 13 June 2003, when this matter was part heard before me. 17 That the prosecution saw fit to restate its position on that matter was because of further correspondence from the defendant's solicitors dated 2 June 2003, which stated: We refer to proceedings in this matter before her Honour Staunton J. finishing 9th May 2003. After the morning tea adjournment on Friday 9th May 2003, counsel for the prosecution raised concerns that the witnesses for the prosecution had been discussing the case between themselves. Counsel for the prosecution advised that such were her concerns, that WorkCover may need to consider its position in the continuation of the case. Furthermore, WorkCover is yet to provide the undertaking in the terms sought in our letters dated 1st and 6th May 2003. In the response of WorkCover dated 7th May 2003 it was said, "You have raised the issue of "without prejudice communications" arising from the Premiers Conference on 26th June 2002. We confirm that the statements of Mr John Collins dated 22 July 2002 and Mr Craig Salisbury dated 7 August 2002 arose as a result of the Conference. These statements were served on you." Thus, we are inclined to renew the application for a permanent stay given the cumulative nature of the vexatious and oppressive conduct of the prosecutor and her representative, WorkCover. As a result of the above, and the evidence that has been put before the Court, if the prosecutor intends to discontinue these proceedings, please advise in writing no later than 4pm CST, Tuesday 10th June 2003. 18 WorkCover's response of 13 June 2003 stated: We refer to your letter of 2 June 2003 and our letter of 6 June 2003. We advise that we do not intend to discontinue these proceedings and that this matter will continue, as listed, before Staunton J at the Industrial Relations Commission on 10 July 2003 at 10am. You have quoted our letter dated 7 May 2003. As stated in that letter, we do not intend to rely on the statements of Mr John Collins dated 22 July 2002 or Mr Craig Salisbury dated 7 August 2002. Further, we reiterate that we are unaware of any other 'without prejudice' communications which may or will be used as evidence in this matter. It is not out intention, or at any time in the future, to use "without prejudice" communications arising from the Premiers Conference in these criminal proceedings. 19 The sequence of events I have just outlined underscores some of the tension between the parties that infected the proceedings before me. As well, counsel for the defendant saw fit to formally complain before me on 9 May last that he had observed counsel for the prosecution coming out of a coffee shop with a witness who was being re-examined by her, and that such discussions during re-examination had occurred without leave of the Court. 20 Lest it be thought otherwise it should be said that I do not consider the latter issue as one meriting serious consideration in support of an application for a stay of the substantive proceedings before me. While strictly speaking perhaps counsel for the prosecution should have sought leave of the Court to confer with Mr Corney while he was in re-examination, I do not consider that her actions in doing so without such leave was anything other than an oversight. No adverse inference can be drawn from it. 21 The decision to stay proceedings in a criminal prosecution is not one that should be lightly considered. As was stated in Jago v District Court of NSW (1989) 168 CLR 23 at 34: A permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay will accordingly be very rare. To justify permanent stay of criminal proceedings there must be a fundamental difficulty which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. 22 Counsel for the defendant also relied on the decision of the High Court in Walton v Gardiner (1993) 177 CLR 378. In that matter the majority of the High Court upheld a decision of the New South Wales Court of Appeal to stay proceedings against three medical practitioners in relation to complaints of misconduct on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process. Earlier complaints in 1986 had been stayed by the Court of Appeal because of prolonged delay in bringing the complaints after the relevant facts were known. Fresh complaints in 1991 raised issues that substantially overlapped those that had been stayed in the earlier proceedings. The majority decision (Mason CJ, Deane J, Dawson J) agreed (at 392) that the Court had power to stay proceedings: ... if it is satisfied that the continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct. 23 Further, at pp392-93, their Honours stated: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within a jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do got give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. 24 There is nothing in the proceedings before me that parallels the factual circumstances giving rise to the stay granted in Walton v Gardiner. Nor are there circumstances before me such as identified by their Honours in the above passage such as to ground unacceptable injustice or unfairness towards the defendant. True it is that the prosecutor sought additional statements from two critical prosecution witnesses following 'without prejudice' discussions between the parties and after the defendant had been charged. On behalf of the prosecutor it was acknowledged that the decision to obtain the additional statements from Mr Salisbury and Mr Collins arose as a result of the 'without prejudice' discussions with the defendant. Having done that, the prosecution served the additional statements but indicated at the same time it did not intend to rely on them unless consented to by the defendant. 25 It is clear no such consent was given. Mr Salisbury and Mr Collins gave evidence before me. Statements taken from both men shortly after the accident in October 2000 were tendered. No issue was taken to the tender of those statements at that time nor to any background circumstances relevant to their evidence before me. 26 In support of his stay application counsel for the defendant also relied on the decision of Marks J in Rodney Morrison v Joy Manufacturing Co Pty Ltd (2002) NSWIR Comm 366. In that interlocutory judgment his Honour stayed the prosecution proceedings primarily on the 'tangible prejudice' that he found arose when the solicitor retained to act for the prosecutor was a partner in the firm of solicitors appointed to represent the defendant in workers compensation and public liability insurance claims. His Honour held that the retention of the particular solicitor by the prosecution and the refusal by the solicitor to cease acting for the prosecutor constituted an abuse of process not capable of being cured. At paras [32] and [33] his Honour said: In these proceedings the prosecutor has permitted and, it seems, encouraged his solicitors to continue to act for him in the full knowledge that those solicitors have come into possession of information which they have gained as solicitors representing the defendant. This information must on any account arguably have some potential and actual relevance to matters which may arise for consideration in these proceedings, as I have previously discussed. There is therefore, in my opinion, tangible evidence of prejudice attaching to the defendant. Prejudice may, equally, be intangible. This was described by Ipp J in the Supreme Court of Western Australia in Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357 in the following terms: 'In a trial involving serious charges, lasting many months, covering many complex issues, there could be an incalculable and prejudicial effect upon the state of mind, and therefore the demeanour, of a defendant who knows that prosecuting counsel has been briefed by the very firm of solicitors whom he previously consulted to advise him on several of the very issues which form the subject matter of the prosecution. Such prejudice would be intangible, but, nevertheless, very real.' 27 No such situation prevails here. There was no evidence before me of any 'tangible prejudice' such as that confronting his Honour in Rodney Morrison v Joy Manufacturing Co Pty Ltd. 28 Reliance was also placed by counsel for the prosecution on the views expressed by me in my interlocutory extempore judgment in these proceedings and earlier referred to. That judgment arose from a notice of motion brought on behalf of the defendant seeking a stay of proceedings. 29 While I was somewhat critical of the prosecution in the way in which it pleaded the original offence charged, there was not such a 'fundamental difficulty' that went to the root of the charge before me that could not be relieved by the nature of the orders I made on that occasion. In other words, there was no significant difficulty in the substantive matter before me to warrant the permanent stay sought by the defendant. Nor is there now. Nothing that has been raised by counsel for the prosecution at the conclusion of the substantive proceedings renders this matter an exceptional case justifying a permanent stay in that the prosecution of the charge against the defendant has become an instrument of oppression. 30 Accordingly, the defendant's application that the proceedings before me be permanently stayed is refused. Relevant background and facts to the charge before me 31 It is not in dispute that, at the time of the accident giving rise to the offence under s15(1), the defendant was a statutory state owned corporation. Further, the defendant employed Mr Craig Salisbury and Mr John Collins at all relevant times and the events giving rise to the charge arose at the defendant's place of work. 32 The defendant's role in the provision of electrical services covers an area of 155,000 square kilometres in far western New South Wales. The work being undertaken by Mr Collins and Mr Salisbury on 12 October 2000 was at a number of electrical substations at Broken Hill. 33 Overall, within its geographic area of operations, the defendant has responsibility for a significant number of electrical substations. There are two types of substations - a kiosk substation and a pole substation. Within the defendant's area of operations there are approximately 50 kiosk substations and approximately 3000 pole substations. The difference between the two was explained by Mr Jamieson, Regional Manager for the defendant at the relevant times, as follows: A pole mounted substation has the transformer, which is the main part of the substation, mounted on a pole structure, some distance off the ground, and generally has exposed conductive parts on it, whereas the ground mounted (kiosk) substation has those enclosed to keep the public away from the danger parts. Other than that, their function is very similar. 34 Mr Jamieson further confirmed that in relation to both types of substations, accessible conductive parts are always earthed. 35 On 12 October 2000 Mr Salisbury and Mr Collins were employed as electrical technicians by the defendant. Both were acknowledged as qualified, competent and experienced employees. Mr Salisbury was a fully qualified electrician and had commenced work with the defendant in 1994. He has also received additional training with the defendant in a multitude of other job areas. 36 Mr Collins has been employed by the defendant since about 1984. His background included qualifications initially as a linesman and subsequently as an electrical technician. 37 As part of his qualifications and experience, Mr Salisbury has an Electrical Qualified Supervisor's Certificate. That certificate entitles him to work without supervision as a fully qualified electrician and, subject to obtaining a contractor's licence, Mr Salisbury is qualified to work as a self-employed electrician. 38 On 12 October 2000 Mr Salisbury and Mr Collins were working as a team of two under the supervision of Mr Peter Corney. Mr Corney's position with the defendant was that of Superintendent Technical. In that position Mr Corney was responsible for eight employees made up of technicians and apprentices. On a daily basis those eight employees were generally worked as four teams of two persons. 39 The work undertaken by Mr Collins and Mr Salisbury on 12 October 2000 involved attendance at an electrical low voltage distribution box (LVDB) and a number of electrical substations in the town of Broken Hill. The substations were identified generally by reference to the street or place where they were located. For example, evidence was received of substations referred to as Crystal Lane Sub 1, Crystal Lane Sub 2 and Blende Sub 3 - all references to street names in Broken Hill. As well, there is evidence of substations at locations identified as Willyama and Woolworths as sites within the township of Broken Hill. 40 On 12 October 2000 Mr Collins and Mr Salisbury were involved in measuring the current at the three substations, Crystal Lane Sub 1, Crystal Lane Sub 2 and Blende Sub 3 in order to prepare for maintenance work at Crystal Lane Sub 2. As Mr Corney explained in para [11] of his statement: The work was to involve load (current) checking of low voltage currents to tie Blende Sub 3, Crystal Lane Sub 1 and Crystal Lane Sub 2 via the low voltage distribution box (DB) situated in Crystal Lane adjacent to the Town Square. 41 In his evidence Mr Corney further explained the nature of the work to be performed thus: We intended to close the fuses and links at each of the supply points and the DB to parallel the circuits between Crystal Lane Sub 2, Crystal Lane Sub 1 and Blende Sub 3. The purpose of the exercise was to determine the load on each of the substations so we could, at a later date, carry out maintenance at Crystal Lane Sub 2. To do maintenance on Crystal Lane Sub 2 we had to take it out of service, which meant pulling the high voltage supply and the low voltage output from that substation which would have then left Crystal Lane Sub 1 and Blende Sub 3 supplying the load into the LV distribution box. 42 The work to be undertaken by Mr Collins and Mr Salisbury was commenced at the LVDB. Mr Corney accompanied them to that site. The LVDB was identified as photo 17 in exhibit 1 and was described as being situated at the 'northern end of the Musician's Club car park.' 43 On arrival at the LVDB, the three employees, Mr Corney, Mr Collins and Mr Salisbury undertook a risk assessment of the job to be performed encompassing the LVDB and the relevant substations. They completed, as required, a Hazard Risk Assessment (HRA) form. As Mr Corney further stated in para [11] of his statement: We filled out a Hazard Risk Assessment on taking load readings for the above sub stations. The low voltage tie was made between Crystal Lane Sub 1 and Crystal Lane Sub 2 via the LV (Low Voltage) links at the DB. Then the LV fuses at Crystal Lane Sub 2 to the DB were checked closed at the Sub. Then the LV links in the DB to Crystal Lane Sub 2 were closed. The Blende Sub 3 Crystal Lane LV feed fuses were checked closed at Blende Sub 3. Then the Blende Sub 3 LV links at the DB were closed. John and Craig then installed (a) Polylogger at Blende Sub 3 on the Crystal Lane feed. At that time I was at Crystal Lane Sub 2 awaiting Craig's return. John remained at Blende Sub 3 to monitor current on the Polylogger. On Craig's return to Crystal Lane Sub 2 we obtained current readings on the LV circuits. 44 While reference was made to Crystal Lane Sub 1 in Mr Corney's explanation of the overall work to be performed by Mr Collins and Mr Salisbury that day, no mention is made of it on the HRA form which identifies LVDB Town Square, Blende Sub 3 and Crystal Lane Sub 2 as the job locations for that day. For ease of understanding a copy of that HRA form which was exhibit 9 before me is attached to this judgment. The risk assessment undertaken and the HRA form completed by Mr Corney, Mr Collins and Mr Salisbury identified the hazards as live LV (low voltage) and traffic. 45 Initially, in order to undertake the task of checking the load on each of the substations, Mr Collins and Mr Salisbury utilised a multimeter. A multimeter is a load (or current) measuring device. As Mr Corney described the process: Q. When you measure the current, what do you have to do? A. You normally measure the current with a hand held clamp metre or it can be measured using a current transformer attached to another instrument, like a clamp metre or a polylogger. Q. Did you say attached to a multimeter or a polylogger? A. Yes, they are all current measuring devices. 46 A multimeter, like a polylogger, is a device for measuring electrical load (current). The difference between a multimeter and a polylogger is that a multimeter is a hand held device that is clamped to an insulated cable in the substation whereas a polylogger requires a voltage source to operate and is clamped on a live connection in a substation. The use of both pieces of equipment has the common identifiable hazard of working in the vicinity of live low voltage. More precise evidence about the function of a polylogger was given by Mr Richard Clarke, an expert witness called by the defendant. Mr Clarke's qualifications as an expert with qualifications and experience in mechanical and electrical engineering were not challenged by the prosecution. 47 On the morning of 12 October 2000 and, it would seem, after they had undertaken work at the LVDB and Crystal Lane Sub 2, Mr Collins and Mr Salisbury installed a polylogger at Blende Sub 3 in order to undertake voltage recording. At the time the HRA form had been completed earlier that morning, there was no intention to utilise a polylogger. On that point Mr Corney gave evidence as follows: Q. Was there any intention to attach a voltage recorder on a bus bar at DB town square, Blende Sub 3 or Crystal Sub 2? A. There was no intention to put one at the distribution box, there was no intention to put one at Crystal Lane Sub 2, but we had one prepared to put in at Blende Sub 3. Q. So, does that mean that you did, when you filled out this form, you did intend for a voltage recorder to be attached on a bus bar at Blende Sub 3? A. I can't honestly recollect that but I would have thought no, but I'm just trying to - and I have tried a few times to get whether we had the polylogger ready to go at that stage or we installed, we had it to go at a later date. I know originally we were just going to take instantaneous load readings. Q. And instantaneous load readings, remember they are the current readings, are they? A. Taken with a hand held clamp reader, yes. Q. Are you able to say one way or the other whether it was intended at the time the form was filled out? A. No, I would say no. 48 In order to set up the polylogger to a voltage source at a substation, it is necessary to identify a suitable location on the live low voltage structure to which a clamp may be attached. 49 In installing the polylogger at Blende Sub 3, Mr Collins and Mr Salisbury did so without any apparent difficulty or untoward events. In utilising a polylogger at Blende Sub 3, no additional entry was made on the HRA form that had been completed earlier that day. 50 In attaching a clamp to the relevant part of the live bus bar at Blende Sub 3, the evidence is that Mr Collins and Mr Salisbury used small clamps. The relevance of the small clamps as distinct from bigger clamps (both of which were in evidence before me) will be explained in more detail later in this judgment. 51 Installing a polylogger by attaching one clamp to a live voltage source was a task that Mr Collins and Mr Salisbury were familiar with. As Mr Salisbury responded in his statement: Q. How often had you worked near live low voltage in a substation? A. It is a major part of my job. 52 After completing the mornings work on October 12, Mr Corney's statement then explains the following relevant sequence of events in his statement thus: At this time it was getting close to lunch so I left Craig and John to close the access to Crystal Lane Sub 2 and we returned to the depot for lunch. After lunch we discussed the results with Peter Jamieson and Peter suggested we monitor the voltage at Crystal Lane Sub 2 and the voltage current at Crystal Lane Sub 1. As there were no Polyloggers available I arranged for another technician to remove some in-service Polyloggers and return them to the Depot for downloading of information onto the computer and then cleared. We required some 2000 Amp CTs (Current Transformers) which had been previously installed at Blende Sub 3 in the morning. Craig and John removed these and installed 500 Amp CTs in their place. At this stage one Polylogger had been downloaded ready for use, which Craig and John picked up along with the connection equipment and proceeded to install at Crystal Lane Sub 1. The other Polylogger was in the process of being downloaded and I was to meet them in the lane when they finished Crystal Lane Sub 1 so they could install the third Polylogger at Crystal Lane Sub 2. 53 Mr Collins and Mr Salisbury returned to the defendant's main depot at lunchtime. While there, the above discussion with Mr Jamieson occurred including his suggestion that they monitor the voltage at Crystal Lane Sub 1 and Crystal Lane Sub 2. At that time, Mr Jamieson was Regional Manager Northern with the defendant. Accordingly, Mr Salisbury and Mr Collins collected another polylogger and set of clamps from the open cupboard where that equipment was kept. In doing so, they took a set of large clamps notwithstanding that there is evidence that pairs of small clamps were available. 54 On arrival at Crystal Lane Sub 1, Mr Collins and Mr Salisbury initially went to the front doors of the substation. According to Mr Collins: We realised we couldn't put the clamps on the current transformer down there so we just closed the doors and went around to the side. 55 The side door was opened. According to Mr Salisbury, he and Mr Collins would have discussed the risks and hazards of the task before them. However, they did not complete an additional HRA form nor add to the one that had been completed and signed by them at the commencement of work that day. As Mr Salisbury stated: A. We would have discussed the risks and hazards, we do that on all the jobs and always have. Q. It is made clear, is it not, that the process you described has to be done irrespective of whether you fill out a form or a piece of paper? A. Yes 56 After opening the side doors of the substation at Crystal Lane Sub 1, Mr Salisbury described the events that followed thus: When we arrived we got the polylogger out of the van, opened the side doors of the Sub and I installed the CT's (current transformers) first. I then attached the neutral clamp to the neutral bus bar. I think I have put one voltage clamp on the C phase and went to get another one when the explosion happened. I think the clamp has dropped slightly and this has caused the clamp to contact the metal frame that is earthed. This caused a difference in potential and caused the explosion. 57 Mr Collins' evidence substantially corroborates that sequence of events. As a result of the accident, Mr Salisbury sustained severe burns to his arms and the upper part of his torso. He has returned to work with the defendant and gave evidence before me. Relevant Principles 58 In entering its plea of not guilty, the defendant raises a defence under s53 of the Act. As well, counsel for the defendant submitted that, on an assessment of the objective facts in the matter, 'the potential risk arose out of the inexplicable inadvertence or, putting it another way, the casual and causal actions of Salisbury and/or Collins.' Reliance was placed on the decisions of the Court in SRA v Dawson (1990) 37 IR 110; McMartin v Broken Hill Company Pty Ltd (1988) 100 IR 241; Inspector Davies v Prospect Electricity, unreported, 9 November 1992 and WorkCover Authority (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182. 59 The starting point for considering this matter must be to have regard to the nature of the offence created under s15(1) of the Act. It is restating a general principle long established that 's15 imposes an absolute liability on an employer subject to s53 which provides for a defence in certain, identified circumstances': Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359. In Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 452 that obligation is expressed as: 'the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety.' 60 The meaning of 'ensure' in the context of s15 enunciated by Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470 has been consistently adopted in decisions of this Court. 61 Notwithstanding the absolute nature of the defendant's liability it is still necessary for the prosecution to establish beyond reasonable doubt each of the elements of the offence. As the Industrial Commission in Court Session said in State Rail Authority v Dawson (1990) 37 IR 110 (at 120-121): The mere fact that an accident occurs involving an employee, but without more does not establish liability in an employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. 62 It is not necessary for the prosecution to prove a causal link between the failure as identified and the precise accident but rather that the failure as identified created a potential risk to safety. As was stated by Walton J VP in WorkCover Authority (Inspector Farrell) v Ross Colin Morrison (2001) NSWIR Comm 325 at para [43] It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident. 63 The prosecution have particularised the offence charged in a way that I can only describe as unnecessarily confusing. That is, the primary failure as particularised in sub paragraph (a) of the charge is then broken down into alleged sub failures (as I would describe them) identified as sub paragraphs (a) (iii), (a) (iv) 1, (a) (iv) 2, (a) (iv) 3 and (a) (iv) 4. I propose to deal with them in the order in which they are so enumerated. (a) (iii) Failure to identify the hazard in that the Hazard Risk Assessment completed for Crystal Lane Sub 2 and Blende Sub 3 was relied on for Crystal Lane Sub 1. The Hazard Risk Assessment Form did not identify the hazard of the earthed metal framework surrounding the bus bars at Crystal Lane Sub 1. 64 The prosecution contended that Mr Collins and Mr Salisbury relied on the initial HRA form completed on the morning of 12 October 2000 as the relevant HRA form for the task of installing the polylogger at Crystal Lane Sub 1 later that day. As that form discloses there is no reference to Crystal Lane Sub 1 on that form. Nor is there any reference to the use of a polylogger. The prosecution contends that the failure of Mr Collins and Mr Salisbury to complete a separate HRA form for the work undertaken at Crystal Lane Sub 1 or to add Crystal Lane Sub 1 to the HRA form already completed represents a failure by the defendant to maintain a safe system of work in identifying hazards and risks in the defendant's workplace. 65 The primary evidentiary focus of the prosecution as to the defendant's failure to identify the hazard of the earthed metal framework at Crystal Lane Sub 1 was on the Hazard Risk Assessment form and the absence of any reference on that form to Crystal Lane Sub 1. 66 Despite a suggestion to the contrary, I am satisfied that there was only ever one Hazard Risk Assessment form completed for all of the tasks undertaken on 12 October 2000 by Mr Collins and Mr Salisbury. Indeed, on the evidence before me, when the form was completed on the morning of 12 October 2000, the intention had been to measure load (current) at a number of substations utilising a multimeter. 67 What was not contemplated on the morning of 12 October 2000 in discussions between Mr Corney, Mr Salisbury and Mr Collins, was the use of the polylogger. As the Hazard Risk Assessment form identifies, the equipment contemplated was a multimeter. While both are electrical measuring devices, the distinction between a multimeter and a polylogger has already been explained at para [46] above. The decision to use a polylogger was clearly made during the morning of 12 October 2000 in relation, in the first instance, to voltage measurement at Blende Sub 3. It is clear on the evidence of Mr Collins and Mr Salisbury that they did install a polylogger at Blende Sub 3 on the morning of 12 October 2000. If there was any issue they were unclear about, it was whether they had used small or large clamps to do so. On the evidence of Mr Corney which I accept, it was small clamps. No reference is made in the Hazard Risk Assessment form to the use of a polylogger at Blende Sub 3 nor any additional hazard identification arising from its use there. No issue was taken by the prosecution to that omission as constituting any failure on the part of the defendant in relation to that particular aspect of the work being performed by Mr Collins and Mr Salisbury on 12 October 2000. Like Crystal Lane Sub 1, Blende Sub 3 also had a live bus bar/metal frame structure although on the one photograph of Blende Sub 3 before me, it is a vertical as opposed to the horizontal configuration of Crystal Lane Sub 1. 68 There was no suggestion that the installation of a polylogger at Blende Sub 3 on 12 October 2000 was undertaken in anything other than a competent and safe manner. 69 In other words, accepting the prosecution's contention that the completion or otherwise of the Hazard Risk Assessment form is the determinant of the defendant's failure to identify the hazard of an earthed metal framework around live bus bars prior to the installation of a polylogger, then the defendant also failed in relation to Blende Sub 3. 70 On the evidence before me that Mr Collins and Mr Salisbury had no difficulty in identifying the earthed metal framework as distinct from the live bus bars at Blende Sub 3 without any need to make specific reference to that on the Hazard Risk Assessment form. I believe they were able to make that distinction primarily because of their skill and experience as qualified electrical technicians, their familiarity with the installation of a polylogger generally and their training by the defendant in relation to hazard and risk assessment. They knew they were working with live low voltage and the need to take account of the earthed metal frame. 71 In addition, in exhibit 21 before me are a number of HRA forms completed either by Mr Collins or Mr Salisbury before 12 October 2000. Of the six instances between 3 August 2000 and 4 October 2000 where Mr Collins or Mr Salisbury were involved in installing or removing a polylogger, the main hazards identified were live low voltage and traffic . In other words it is clear that whether using a multimeter or a polylogger, live low voltage was a common hazard identified. That point was confirmed by Mr Corney in his statement as follows:- Q32. Were the hazards of live low voltage and traffic identified on Form 15270 (attached) the same for all the jobs Craig Salisbury and John Collins had done on 12/10/2000? A. Basically yes because when the form was completed the discussion involved the opening and closing of LV links and fuses and the adjacent exposed live bus bar. This was discussed at two places, the form was filled out at the distribution box and discussion took place at Crystal Sub 2. In his evidence before me, Mr Corney adhered to that view. 72 Does the absence of any mention of Crystal Lane Sub 1 on the Hazard Risk Assessment form establish a failure on the part of the defendant to identify the hazard of the earthed metal framework at Crystal Lane Sub 1? On first considerations and without more, it would appear so. But, to be satisfied as to that assertion beyond reasonable doubt, it seems to me that one would have to be satisfied that the absence of any mention of Crystal Lane Sub 1 on the Hazard Risk Assessment form constituted the fundamental evidence of that failure. 73 In the first instance, it is abundantly clear that the defendant's system of work in relation to hazard identification and risk control started with an educational process. That is, employees undertook a programme of training and instruction about identifying hazards and controlling risk in the workplace. Mr Collins and Mr Salisbury had undertaken that programme. As part of that hazard and risk assessment procedure training, employees were instructed to undertake a hazard and risk assessment at the commencement of the work to be undertaken and then complete a Hazard Risk Assessment form. As 4.3 in the defendant's documented procedure states: The work crew ..... is to carry out a worksite safety assessment in accordance with this procedure and record the findings on the assessment form provided , refer Appendix A (emphasis added). Appendix A is the HRA form. 74 If anything, the completion of the form is documented evidence that the hazard risk assessment process has been undertaken. As the relevant documented procedure further states: It must be emphasised that the purpose of completing the HRA is to perform a hazard assessment to identify all hazards, assess and prioritise the risks, and to select control measures to control the risks, prior to doing the work. DO NOT JUST FILL IN THE FORM. The form is arranged to simplify the assessment process as much as possible, while still considering all the possible hazards and available controls. If all the perceived hazards are not listed for your task (this will be the case in most instances), then please write them into the 'other' section of the form and continue on the rear of the form if necessary. If you feel that there is something missing from the form, please contact your immediate supervisor, your regional manager or the manager network, who can arrange to have the form reviewed and amended. 75 As well, the Hazard Risk Assessment form constituted a starting point for the purposes of an administrative audit to ensure compliance by employees with the defendant's hazard and risk assessment system. On the evidence of Mr Jamieson, this administrative audit was supplemented by random audits in the workplace. 76 The accepted procedure for the completion of a Hazard Risk Assessment form in relation to work to be performed was explained by Mr Jamieson in his statement as follows: Q13. Can you tell me when one of these forms should be completed? A. Yes, it should be completed before the start of any works to be carried out on or near and in a number of other circumstances where there is perceived to be a risk. Q14. Have you had any input on the risk controls listed on the HRA form? A. I had the task of reviewing the HRA procedure nine months ago but the form itself was not reviewed at that time. The procedure and the form are being reviewed again at present. Q15. Do you know why Craig, John and Peter completed only one form for the 3 or 4 different jobs they were doing on that day? A. No, I don't know. Q16. Was it common practice to complete one Hazard and Risk Control Assessment (HRA) form for the day or the job even if different sites were being visited? A. Yes, in some instances, but only when the tasks were similar at each site and each site was similar. The requirement was still to review the assessment at each site even if there was no requirement to fill out a new sheet at each site. This has been reviewed and considerably tightened since the accident. Q17. If the work groups are self-supervising how would you know if each site is being assessed for hazards? A. We require that the HRA sheets are submitted with the timesheets and the jobs on the timesheets are compared to the HRA forms filled out. Prior to the accident I can't say how rigorously this was being done but it has tightened up since then. Random audits are also carried out and there was not one occasion when a HRA form hadn't been filled out as far as I am aware. Q18. If you look at the form 15270, Crystal Lane Sub 1 is not even listed, so how could they have assessed the hazards at that site? A. They certainly could have assessed the hazards of the site but there is no evidence that the hazards have been assessed. 77 In relation to his comment 'This has been reviewed and considerably tightened since the accident,' Mr Jamieson elaborated thus: Q. I want you to explain what you actually mean as considerably tightened up since the accident? A. The procedure as written at the time of the accident allowed for single hazard and risk assessment record to be used to record hazard and risk assessments carried out at more than one site. But it was not clear as to when that procedure was modified to make filling out all fresh records mandatory at each site, with a list of about four specific exclusions, where multiple sites could be recorded on one sheet. Q. So there was no tightening up of the methodology? A. No, that is correct. 78 On the evidence of both Mr Corney and Mr Jamieson, it is clear that the defendant put considerable emphasis on the methodology of hazard and risk assessment rather than simply insisting that employees complete a form and tick boxes. As Mr Jamieson explained: The form could be filled out quite properly without performing any of the methodologies. That would not help keep someone safe. If the methodology is carried out, someone can work quite safely whether or not it is recorded on the form. From that I would deduce that the methodology is the important part, and the form, although important, is not what is going to keep people safe. 79 Mr Collins and Mr Salisbury both agreed that the emphasis of their training and instruction in relation to hazard risk assessment was on methodology and not just completion of the Hazard Risk Assessment form. As Mr Salisbury said as to whether or not he and Mr Collins would have discussed the risks and hazards at Crystal Lane Sub 1: We would have discussed the risks and hazards, we do that on all the jobs and always have. 80 On that issue Mr Collins evidence was more equivocal though no less confirmatory as to the requirement for him to undertake the hazard risk assessment at the workplace. As he said: Q. And opposite that is a paragraph - do you see the last sentence says 'This risk assessment does not replace the assessment to be done by employees immediately prior to the work?' A. Yes. Q. Do you see what I am referring to? A. Yes. Q. And you understood, didn't you, that you had to conduct a process of - whatever team members were there had to look at the hazards or risks, identify them and then work out what were the control or minimisation measures for the identified hazards and risks? A. Yes. Q. You understood that from this training? A. Yes. Q. And if you look over the next page, to page 5 of 15, opposite 4.5 - can you read 4.5 until the words in bold, to yourself? A. Where did you say to read up to? Q. The words concluding with in bold 'Do not just fill in the form.' You have read those four lines? A. Yes. Q. You knew as early as 26 May 2000 what is set out opposite 4.5 in those four lines was what you had to do - it was not optional. It was mandatory - it was mandatory when you went somewhere like Crystal Lane Sub 1? A. Yes. Q. And it was not something you forgot on the afternoon of the accident? A. Well, I just can't recall whether we did it or not. We may have done it. We may have done it. Q. I will deal with it in two stages. You may very well have gone through that process of identifying all hazards, assessments and prioritising the risks and selecting the control measures to control the risks prior to the work being done at Crystal Lane Substation 1, is that what you are saying? A. Oh, I just don't remember discussing it at all. I don't know. Q. The second part of that is - you have already said, because this is what you told Mr Corney - you thought one of you had filled in the form as the second part, the end part of the process, that's right is it? A. Yes. Q. Is it the effect of your earlier evidence that at least you certainly did not do the mandatory part of the risk assessment process because you didn't even look into the side doors, that's right isn't it? A. Yeah I - yeah, I can't remember discussing that with Craig, no. Q. And you can't remember looking in the side doors to the horizontal earthed metal bars because I think you have already agreed if you had looked you would have seen them? A. Yes. 81 I am satisfied that Mr Salisbury and Mr Collins did not add Crystal Lane Sub 1 to the HRA on 12 October 2000 predominantly because the installation of a polylogger at Crystal Lane Sub 1 did not, in their assessment, constitute a different hazard from the hazards they had earlier assessed in the tasks they had already performed at the LVDB, Crystal Lane Sub 2 and Blende Sub 3 as part of the overall job performed that day. My reason for that conclusion is that on the evidence before me, particularly in exhibit 21, consistently before 12 October 2000, when installing or removing a polylogger, the common denominator hazards assessed by Mr Collins and Mr Salisbury were live low voltage and traffic. That was the hazard identified in the HRA form completed on the morning of 12 October 2000. To the extent that any specific consideration in the nature of hazard risk assessment was undertaken by Mr Collins and Mr Salisbury immediately prior to the commencement of work at Crystal Lane Sub 1, I am of the view that it would have been minimal at best. 82 I believe that Mr Collins and Mr Salisbury did not view the task they were to undertake at Crystal Lane Sub 1 as significantly different from the work they had already undertaken that day and, based on past hazard risk assessments of similar work undertaken, the risks and hazards were the same. In short, they considered the HRA form completed earlier that day as relevantly identifying the hazards and risks they had to confront at Crystal Lane Sub 1. That they did not actually write in Crystal Lane Sub 1 on the HRA form cannot, of and by itself, constitute a failure on the part of the defendant to have in place a system of work that, in a methodological as well as a documented process, systematically identified hazards and risks in the workplace. As well, that methodological and documented process had been underpinned by formal instruction and training, was extensively documented and was subject to ongoing administrative and random workplace audits. 83 More significant in my view as to the failure as particularised is the prosecutor's contention that the HRA form specifically failed to identify the hazard of the earthed metal framework surrounding the bus bars at Crystal Lane Sub 1. That is correct. But that assertion on the part of the prosecutor presupposes, in my view, that the earthed metal framework surrounding the bus bars at Crystal Lane Sub 1 constituted a hazard that was a stand alone hazard that warranted specific consideration over and above the hazard and risk assessment that would be expected to be undertaken by the defendant's employees when installing a polylogger generally. 84 All the evidence before me points to the fact that, when installing or removing a polylogger prior to 12 October 2000, a consistent and seemingly correct hazard and risk assessment identified live low voltage and traffic as constant hazards. There is also evidence that the consistent configuration of the defendant's substations was of live bus bars supported by an earthed metal framework. It is axiomatic and agreed as such that in electrical work the metal framework would be earthed. The evidence of Mr Clarke, the expert witness, was that the configuration of the live bus bars and earthed metal framework at Crystal Lane Sub 1 were in accordance with all relevant industry standards. True it is that Mr Collins seemed to suggest that the configuration of the bus bars and metal framework at Crystal Lane Sub 1 was one he was not familiar with although he had performed work at Crystal Lane Sub 1 prior to 12 October 2000. When pressed he agreed that the principle of the metal framework being earthed was a fundamental and basic principle of his electrical training and experience and that on the day he simply failed to notice it. 85 In short, I am of the view that there is insufficient evidence before me to be satisfied beyond reasonable doubt that the failure as particularised has been established. 86 If I am wrong as to my conclusions up to this point in relation to the alleged failure as particularised then the defendants contentions as to a defence under s53(a) of the Act must, in my view, succeed. That is a matter I will return to later in my judgment. (a)(iv)1 Failure to control the risk in that there was a failure to ensure that Mr Colins and Mr Salisbury were made aware of the difference between Crystal Lane Sub 1, Crystal Lane Sub 2 and Blende Sub 3 in the configuration of the metal framework and the bus bars. 87 Essential to the prosecutions contention in relation to the hazard of the earthed metal framework at Crystal Lane Sub 1 is, as I understand it, that the earthed metal framework at Crystal Lane Sub 1 was of such a different configuration from those other substations particularised that, in considering the installation of a polylogger at Crystal Lane Sub 1, specific mention should have been made by the defendant of that fact. In other words, as I understand it, the configuration at Crystal Lane Sub 1 was so different from those other substations mentioned that in installing a polylogger, it constituted a specific risk in addition to the known hazards and risks of installing a polylogger generally requiring access to live low voltage. 88 There was evidence before me that the defendant's substations located around the township of Broken Hill were all similar in their function but differed somewhat in their configuration. In the kiosk type substations the live low voltage bus bars are located within each substation supported by a metal frame structure. All the live bus bars are identified by colours. Those substations of which photos were before me showing their bus bars/metal frame earthed structure were Crystal Lane Sub 1, Blende Sub 3, Willyama and Woolworths. It is clear that they are only some of the defendant's substations at Broken Hill. Those substations at Broken Hill are in turn only a part of the total number of the defendant's substations overall. 89 There was no expert evidence before me that could assist in understanding exactly what the risk was, if any, inherent in the different configurations of the live bus bars/earthed metal framework of the various substations. The expert evidence of Mr Clarke was that the bus bar/metal frame configuration at Crystal Lane Sub 1 conformed in all respects with relevant industry standards. There was no evidence, photo or otherwise, about Crystal Lane Sub 2 that enables me to make any comparisons as to differences between it and Crystal Lane Sub 1 as to configuration. In relation to Blende Sub 3 there was one photograph. 90 If I had to express a view simply be looking at comparative photos as between Blende Sub 3 and Crystal Lane Sub 1 it would be that at Blende Sub 3 the metal framework/live bus bar structure was in a vertical configuration whereas at Crystal Lane Sub 1 it appears to be a horizontal configuration. I make that observation advisedly in the absence of any expert evidence about that. As well, all the photos of the Crystal Lane Sub 1 configuration were taken at a time immediately following the accident. Because of that, the relevant area in the substation is blackened by the effects of the fire that occurred and the relevant bus bars had been cut off at one end. 91 Certainly, by comparison, the bus bar/metal framework at Blende Sub 3 appeared 'clearer' and, from the one view of the single photograph before me, more accessible than the situation at Crystal Lane Sub 1. Having said that it should also be noted that, in viewing Crystal Lane Sub 1 from the front doors of the substation, access appears clear and unobstructed. For reasons never fully explained, Mr Collins and Mr Salisbury made the decision to install the polylogger at Crystal Lane Sub 1 by approaching the metal frame/live bus bar configuration via the side door of the substation. That approach is more restricted both as to space and height. There was also evidence before me from Mr Corney and Mr Clarke that, in their view, in addition to the location selected by Mr Salisbury and Mr Collins, there were at least four other more accessible and suitable places that Mr Salisbury could have placed the clamp to secure a live voltage source at Crystal Lane Sub 1. Mr Collins agreed to that as did Mr Salisbury although he demurred in relation to one of the sites identified. 92 In the absence of any evidence, I can make no comparison as between Crystal Lane Sub 1 and Crystal Lane Sub 2 which is one of the substations specifically referred to in the particularised failure. 93 To the extent that I can properly do so, there are photos of the Willyama and Woolworths substations showing the metal framework/bus bar configuration. Again there are minor differences in the shape of the configuration but, to the untrained eye, nothing so significantly dissimilar from the common approach in all of the substations. If anything, the configuration of those substations appear more like Crystal Lane Sub 1 than Blende Sub 3. 94 The evidence of Mr Salisbury was that he was unfamiliar with the configuration of the metal framework at Crystal Lane Sub 1 although he had performed work at Crystal Lane Sub 1 prior to 12 October 2000. In saying that, he agreed that a basic safety principle for electrical work is you assume every metal structure is earthed. In relation to the metal framework at Crystal Lane Sub 1 he simply said: Believe it or not we never noticed it or I never noticed this framework; it is hard to believe I know but I didn't notice it. 95 In short, Mr Salisbury accepted that it was an 'oversight' on his part that he missed the framework. 96 Installing a polylogger was not something that was seen as unusual in the course of work undertaken by Mr Collins and Mr Salisbury. As Mr Collins agreed, in terms of the breadth of his experience, installing a polylogger was fairly routine and uncomplicated and involved working with live low voltage. That much is clear from the diverse Hazard Risk Assessment forms completed in relation to work undertaken involving Mr Collins and Mr Salisbury prior to 12 October 2000. For example, in exhibit 21 there is evidence that Mr Salisbury or Mr Collins were involved in installing or removing a polylogger as follows: · 3/8/2000: Tibooburra School · 18/8/2000: Waterboard, Mica Street and Crystal Sub 2 · 30/8/2000: Voltage recording: 621 McGowan Street · 31/8/2000: 153 Bourke Street · 7/9/2000: BHWP Sub: Mica Street · 4/10/2000: Mica Sub 2 97 Although not mentioned for comparison purposes in the prosecutors pleadings, evidence was elicited from Mr Corney, Mr Salisbury and Mr Collins as to the differences and similarities between Crystal Lane Sub 1, Willyama and Woolworths substations. Photos of the latter two were before me. The evidence given was sufficient to conclude in my view that there are what I would characterise as minor differences in configuration between all of these 3 substations - as there is with Blende Sub 3. 98 It has to be remembered that the defendant oversees some 50 kiosk substations and approximately 3000 pole substations. On the limited evidence of Mr Jamieson I understand that each of the 50 kiosk substations have the same functional role but may indeed differ marginally in their configuration, having regard to considerations of location, space and so on. There is evidence upon which I could be satisfied that Mr Collins and Mr Salisbury had worked at any number of the defendant's kiosk substations prior to 12 October 2000. There is no evidence before me as to the configuration of the defendant's 50 kiosk substations that would suggest such significant differences between any of them or as between the three specifically mentioned in the failure as particularised. 99 In my view there is no conclusive evidence that I can discern as to what the prosecution relies upon in precise terms as to the differences in configuration as between the three substations denoted in the pleadings that substantiates a failure on the part of the defendant. Indeed there is no evidence at all about the configuration of Crystal Lane Sub 2. If I was to express a view about the configuration of the defendant's substations of which some evidence, photo or orally, was received, it is that there are some minor differences between them but not of such a significant or fundamental nature requiring specific mention of Crystal Lane Sub 1 as distinct from any other. What was required was a proper hazard and risk assessment of a structure and procedure that was universally applicable to all of the defendant's substations. That was in place. 100 In all the circumstances I could not be satisfied beyond reasonable doubt that the prosecution have successfully established this failure as particularised. (iv) 2 Failure to control the risk in that there was a failure to ensure that the uninsulated voltage clamp was attached securely and in a safe position. 101 To understand what happened at Crystal Lane Sub 1 on 12 October 2000, much assistance is gained by reference to the photographs that were in evidence before me. Reference to a number of those photographs shows that the live copper bus bars at Crystal Lane Sub 1 were supported by a metal frame structure. That metal frame structure surrounded each of the bus bars such that the gap between the top and bottom of the metal frame and the bus bar was between 40-50 millimetres. At regular intervals along the bus bar a number of bolts protrude. The distance between the live bus bar and the metal frame running horizontally was approximately 25 millimetres. That is, the distance the bus bar sat behind the metal framework. According to the evidence of Mr Clarke, which was not challenged, the requisite approved standard for clearance between the bus bar and the metal frame on the latter plane, was 'about 12 or 13 millimetres, in old terms, half an inch.' 102 The role of the metal frame and the need for it to be earthed was also explained by Mr Clarke as follows: Q. How in your experience are such bus bars supported? A. Bus bars are required to be strongly supported because of the electrical forces that can occur usually either inside or outside and there is usually a non metallic insulating material - it can be sheet timber or some of the plastic materials and then that material is then supported by metal, usually steel. Q. Why is metal, usually steel, involved as part of this support arrangement you just described? A. It is strong and cheap. Q. And why did you say it needs to be strong? A. Again I say that while it is just sitting there the weight of the bus bar is not particularly onerous or heavy and fairly light supports could do that but if there is an electrical short circuit outside the bus bars there can be huge magnetic forces that can pull the bus bars together or apart and the bus bars have to be supported in a very strong manner by metal through insulating materials so that they don't distort on the occurrence of a short circuit outside the cubicle or switchboard concerned. Q. Have you heard the expression angle iron frame in the context of this type of arrangement? A. Angle irons are often used as they are an efficient structural steel supporting system and yes, a frame in the bus bar arrangement are to sit by themselves, a frame rather than to say piece be supported by a box outside a frame is required to hold the angle irons in place. Q. You looked at the photos, was there the use of angle irons for this Crystal Lane Substation 1? A. Appeared to be, yes. Q. Have you considered whether one could use sheet metal instead of angle irons in this sort of structure? A. Sheet metal can be used externally but then sheet metal in the configuration probably would not have been strong enough. Q. Now, whatever the metal be, in your experience and qualification, is there a need for the metal to be earthed? A. Yes, there is a number of reasons why the metal needs to be earthed. First of all, for the application of a person who might be near it, a person needs to know whether the material is either earthed or potentially some of the wires. And it is the practice and it is also in the rules that all metal which is exposed, which can be touched or can be nearby, is formally and strongly earthed. 103 As well, in relation to the issue of clearance, Mr Clarke explained: Q. The distance of 25 millimetre, how does that match up with those Australian Standards to which you refer? A. The normal distance can be down to about 12 or 13 millimetres, in old terms half an inch. And the distance is for electrical purposes to allow sufficient space to not allow the electricity to jump or for insulating material to leave a distance, a tracking distance that takes half an inch or 12 millimetres electricity to go from one live bar to an earthed piece of material. So this distance of half an inch, 12 millimetres, is what is in the rules to be safe to be sufficient to stop the electricity tracking across say, dirty insulating material. 104 Against that background, what Mr Salisbury did and the consequences that followed was not disputed. In applying the clamp to the live bus bar in the place that he did, he attached it to one of the bolts coming through the bus bar. They are readily identified by reference to Photo 6 in exhibit 1. In doing so, Mr Salisbury used one of the large clamps he had retrieved from the defendant's depot at lunchtime. The large clamps were insulated on the handle but had a 70 millimetre exposed metal clamp. In affixing the clamp to the bolt of the bus bar on the horizontal plane, it would seem that the weight of the clamp was such that once Mr Salisbury released his hold on the clamp, it tilted downwards and the exposed metal of the clamp came into contact with the earthed metal framework. At that point, to use Mr Salisbury's words: This caused a difference in potential and caused the explosion. 105 Evidence was given about the use of different sized clamps in the type of work performed by Mr Collins and Mr Salisbury on 12 October. It is clear that two sizes of clamps were available and, as described before me, they were small or large clamps. The precise dimensions were not made clear to me but as was described by Mr Corney: The larger ones were mainly designed and supplied for attaching to either a line or a link or a bus bar where you have got adequate clearance to open it right out or put it so it's not going to be too close to another phase or something of a different potential (Indicated); whereas with the small one, you can get, go into a smaller area, a much tighter position. Q. And that is why the rubber casing is on the actual grip part itself, is that right? A. Yes, the rubber insulation is right through and basically up on to the clamp section. 106 As was evidenced by visual inspection, apart from size, the small clamps were insulated right up into the grip of the clamp whereas the larger ones were insulated on the handle of the clamp only. 107 The prosecution did not plead the size of the clamps as a factor in the failure as particularised. That factor was and is significant in my view. The emphasis is on the clamps being attached securely and in a safe position. As I understand the evidence, prima facie the clamp was placed in a secure and safe position. What I mean by that is that while the place chosen by Mr Salisbury to place the clamp may not have been the location of choice of Mr Corney or Mr Clarke in terms of accessibility, it was a suitable place to put the clamp in order to access a live low voltage source. The failure as pleaded suggests that the clamp was placed in a position 'where the uninsulated voltage clamp made contact with the bus bar and with the earthed metal frame.' As I understand the evidence, the clamp did not make simultaneous contact with the live bus bar and the earthed metal frame when Mr Salisbury first applied the clamp to the bolt of the bus bar. It was only when he released his hold of the clamp and the weight of the clamp caused it to tilt vertically downwards where it came into contact with the earthed metal frame. 108 As earlier indicated, the live bus bar/metal framework configuration was in accordance with all relevant industry standards and, on the evidence before me, not so significantly different in configuration from the other substations operated by the defendant. 109 The real issue in the matter, in my view, is not that Mr Salisbury placed the clamp in an unsafe place. Nor, on one view, did the clamp fail to attach securely to the bolt of the live bus bar. What is abundantly clear is that, to start with, Mr Salisbury chose to use large clamps. The large clamps were insulated up to a point but after he had placed the clamp Mr Salisbury released his grip and the weight of the clamp caused it to tilt downwards. In doing so, the uninsulated portion of the clamp hit the earthed metal framework and the arcing phenomena occurred. 110 In my view, the prosecution have not established the failure as particularised. That is, a failure to control the risk by ensuring the uninsulated voltage clamp was attached securely and in a safe position. To start with, the larger voltage clamp used was insulated in part. Next, there is no evidence upon which I could be satisfied beyond reasonable doubt that the location selected by Mr Salisbury to place the clamp was, of and by itself, unsafe. The location selected only became unsafe and insecure to the extent that Mr Salisbury chose to use the larger clamp in the way that he did. That is not an issue that the prosecution raises relevant to the failure as particularised. 111 In all the circumstances, I could not be satisfied beyond reasonable doubt that the failure as particularised has been established. 112 If I am wrong in my conclusions up to this point in relation to the alleged failure as particularised then the defendant's contentions as to a defence under s53(a) of the Act must, in my view, succeed. I will return to that later in my judgment. (a) (iv) 3 Failure to control the risk in that there was a failure to ensure that Mr Salisbury adequately insulated the framework. 113 An amount of evidence was received about the use of insulation mats or sheets that may have been able to be placed around the earthed metal framework prior to Mr Salisbury attempting to place the clamp on the bolt of the live bus bar. The critical evidence about this matter was given by Mr Clarke, the expert called by the defendant. In Mr Clarke's opinion, the application of insulation material to the earthed metal frame in the situation at Crystal Lane Sub 1 would, of itself, be 'extremely difficult and quite hazardous.' As he explained: In that particular insulation, insulation of bare earth metal would have been extremely difficult and quite hazardous. The amount of work required to insulate the angle irons and other metal, particularly the angle iron near the live bus bar, would have taken quite a long time, probably in the order of an hour or so. And it would have brought the person trying to insulate the bare metal in close contact with the bare metal. They would have to go into the switchboard further than they did or the kiosk which contains the switchboard so that applying insulation by the usual form is wrapping it with plastic or rubber sheet and then tying off with cable ties would have been quite impractical and indeed rather dangerous in that situation of that switchboard. 114 Mr Clarke's evidence on that issue was not challenged by the prosecution. In final submissions, counsel for the prosecution conceded, properly in my view, on the evidence before me, that I could not be satisfied beyond reasonable doubt that insulating the earthed metal framework was a procedure that could be safely carried out as a means of controlling the risk. As such, I could not be satisfied as to the alleged failure by the defendant as particularised. In the alternative, even if I could be so satisfied, on the evidence of Mr Clarke, the procedure of insulating the metal framework was, quite simply, not reasonably practicable in the circumstances of Crystal Lane Sub 1. 115 In my view, the failure as particularised is not made out. (a) (iv) 4 Failure to control the risk in that there was a failure to ensure that Mr Salisbury wore insulated gloves. 116 There is clear evidence before me that the defendant provided insulated gloves to its employees including Mr Collins and Mr Salisbury and a clear expectation on the part of the defendant that its employees would use them as appropriate in the course of their work. The evidence in relation to the latter proposition is to be found in the first instance by reference to the HRA form. By training and by reference to the HRA form, employees of the defendant are required to consider specific safety equipment including insulated gloves that may be required to be used by them as part of the system of hazard and risk assessment. 117 Mr Salisbury and Mr Collins both had gloves with them on the job at Crystal Lane Sub 1 but both had left them in the work van that they used to drive to the work site. According to Mr Salisbury, the reason why he did not put his gloves on at Crystal Lane Sub 1 was because of the insulated tool he was using. In other words, he did not believe that the insulated gloves were necessary because of the insulation on the handle of the clamp that he used. Mr Salisbury also conceded that the wearing of such insulated gloves had been reinforced many times over by the defendant and that it was not his (Mr Salisbury's) expectation that a person such as Mr Corney 'had to be over his shoulder' to tell him to wear the insulated gloves provided. As well, Mr Collins conceded as follows: Q. In terms of the gloves, at the time of the accident with Mr Salisbury, you didn't have gloves on? A. That is correct. Q. What had happened, you had left both your orange gloves and your leather gloves in the Mitsubishi van? A. Yes. Q. You knew that Australian Inland required you and Mr Salisbury to wear gloves for the sort of work that was being done at Crystal Lane substation? A. Yes. We tended, even with doing switchboard work, it was probably old hat, but we wore gloves for insulated tools. Q. You know the box was ticked earlier in the day to wear gloves? A. Yes. Q. You knew that Australian Inland required you to wear at Crystal Lane Sub 1, your insulated gloves, that is why you ticked the box? A. Yes, we ticked that to do the job earlier on this HRA form, but when it comes to using voltage recorders, unless we are doing live wire work, we more or less just rely on the insulation of the gloves. Q. You had never got Mr Corney's permission to do that? A. That is correct. Q. Because you would know that is not allowed? OBJECTION Q. No one from Australian Inland ever gave you permission not to wear insulated gloves when performing that type of work, did they? A. No. 118 The defendant contended in effect that the procedure to be undertaken at Crystal Lane Sub 1 was so fundamental that qualified electricians such as Mr Collins and Mr Salisbury did not need to be further instructed or supervised as to how to do it and whether or not to wear gloves. As well, working with live low voltage was a procedure they were familiar with and very experienced in handling. 119 In my view, more relevant to this failure as alleged is the issue of causation. On the basis of the expert evidence of Mr Clarke, the failure by Mr Salisbury to wear his insulated gloves did not cause the risk to safety that occurred. What occurred at Crystal Lane Sub 1 was that Mr Salisbury applied the clamp to the bolt on the live bus bar on the horizontal plane. When he released his grip on the clamp it tilted vertically downwards and a portion of the uninsulated part of the clamp came into contact with the earthed metal frame structure. What occurred then is known as arcing. As Mr Clarke explained: In the context of the incident that occurred at the substation, the arcing occurred because there was a connection between live electric bus bar and earth metal which caused electric current to flow and then the electric current flowed and caused an arc to commence which then was able to be sustained without the clamp being in contact. It sustained then whether the voltage clamp was in place or not. Q. In terms of what started that process of arcing, what was it that made the connection? A. Well, from what I have read and looking at the photos, the voltage clamp was applied to the bolt and nut at the end - at the back of the bus bar. It then moved or perhaps it was not applied straight in the first place and it moved so as well as being in contact with the nut or bolt, it then came in contact with the earthed frame, the angle iron. 120 There was no dispute that the phenomena that Mr Clarke described did occur. Given that, it was also his expert opinion that the failure by Mr Salisbury to wear insulated gloves bore no relationship with the risk to safety that occurred when the clamp slipped. As Mr Clarke explained, having insulated gloves on does not control the phenomena of arcing one bit at all. The gloves are there for a quite different purpose. As Mr Clarke explained: The gloves will assist in preventing electric shock to the person but they will serve no purpose whatever in preventing the clamps, the voltage clamps, coming in contact with the bare metal and live metal . 121 The risk to safety as pleaded by the prosecution is 'the risk (to safety) arising from attaching the uninsulated voltage clamp to the bolt on the bus bars in the vicinity of the metal framework.' The evidence is that the failure by Mr Salisbury to wear insulated gloves is not causally related to the risk to safety as pleaded. Even if it were so, there is no evidence upon which I could be satisfied beyond reasonable doubt that a failure by Mr Salisbury to wear insulated gloves caused the risk to safety as pleaded by the prosecution. 122 Accordingly, this failure as particularised is not made out. Defence raised under s53 of the Act 123 In relation to the specific failures as particularised, I have concluded that the prosecution have failed to establish the failures as alleged and particularised as (a) (iii), (a) (iv) 1, (a) (iv) 2, (a) (iv) 3 and (a) (iv) 4. In relation to failure (a) (iii) and (a) (iv) 2 as particularised, I have also concluded that if my primary conclusion is wrong, the defendant is entitled to succeed in raising a defence under s53(a) of the Act. I now turn to consider s53 of the Act relevant to the defences raised. 124 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 him 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 he had no control and against the happening of which it was impracticable for him to make provision. 125 As is well settled, the statutory defences provided by s53 places a civil onus on the defendant having regard to the provisions of s53(a) or s53(b): See Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 457. 126 On behalf of the defendant it was submitted that the system of work in place was a safe system and that the defendant had established that it had done all that was reasonably practicable to establish, maintain, promulgate and police that safe system via the hazard risk assessment process. That system of work, it was submitted, was sufficiently systematic and comprehensive and was being proactively implemented and audited in the workplace: See Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57. 127 What is meant by 'reasonably practicable' has been considered as having regard to whether an event could be considered reasonably foreseeable. See WorkCover Authority of NSW (Inspector Mayo Ramsay) v Maitland CC (1998) 83 IR 362 where Hill J said 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 foreseeable foresight. 128 As is well settled, while this does not detract from an employer's obligation to implement a proactive approach to safety, it has also been observed that it would not generally be practicable to take measures to guard against a detriment to safety that was not reasonably foreseeable. See WorkCover Authority of NSW (Inspector Glass) v Kellogg (Australia) Pty Ltd (1999) 101 IR 239 and Kennedy-Taylor(NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 at para [68]. 129 The nub of the defence raised on behalf of the defendant went squarely to the issues of Mr Salisbury and Mr Collins as widely experienced and well qualified employees undertaking a relatively straightforward and simple task as part of their work as electrical technicians. Further, they were performing a task they had performed many times before. They acknowledged that the hazards they had to be mindful of, that is, working near a live low voltage source and an earthed metal frame encompassed the most basic principles of their electrical training. As well, they had received formal training and ongoing assessment in relation to hazard and risk assessment that was established, maintained, promulgated and audited on an ongoing basis. That is, the defendant's HRA process. All in all, it was submitted, the defendant had done all that was reasonably practicable to guard against a detriment to safety by way of instruction and training when coupled with the experience of the employees concerned. In all the circumstances, it was not reasonably foreseeable that Mr Collins and Mr Salisbury would depart from an established and known safe procedure in undertaking their work at Crystal Lane Sub 1. They had been given the fullest extent of instruction, training and supervision that could reasonably be expected to be provided given the nature of, and the circumstances under which their work was performed. See Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) at para [57]. 130 Underpinning all of the above, the defendant points to its documented hazard and risk assessment procedure supplemented by training and auditing as evidence of a proactive approach to safety and risk assessment in the workplace. There are parallels here with the workplace situation encountered by the Court in its earlier decisions in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 and State Rail Authority v Dawson (1990) 37 IR 110. That is, employees who are acknowledged as experienced and highly competent inexplicably do something in the workplace that is contrary to their own experience and knowledge and which the employer could not, having regard to their training, experience and system of work, have expected that employee to do. As was observed in Cullen: In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged. 131 The system of work in relation to hazard and risk assessment in the defendant's workplace clearly provided for a safe system of work to be followed. 132 The evidence before me clearly disclosed that the defendant had undertaken a number of steps that could objectively be pointed to as discharging its obligation to provide a safe system of work generally, and in particular the identification of hazards by way of ongoing risk assessment by its employees. 133 In the first instance the defendant identified a document prepared by it, titled Hazard and Risk Assessment (HRA) Procedure AIE-2. That document had been issued in April 2000 and its employees, including Mr Salisbury and Mr Collins, had undertaken a five hour training programme in relation to its introduction and familiarisation. In that document, the defendant has identified subject headings with diverse control measures staff were expected to follow in order to control all workplace risks associated with identified hazards. By subject heading, only for the purposes of this judgment, those control measures are identified as: · Eliminate hazard · Substitute the hazard · Isolate the hazard from the worker · Isolate the worker from the hazard · Train the worker 134 Section 4 of the document sets out the procedure that underpins the defendant's approach to Hazard and Risk Assessment. That section states as follows: 4. PROCEDURE 4.1 A Hazard and Risk Assessment (HRA) will generally be carried out by AIE personnel or accredited designers for projects on which they are preparing designs or costings, with control measures identified, recorded and incorporated into the design and costing of the project, and will be supplied to supervisors and field staff for reference. AIE staff or accredited service providers undertaking the construction works must undertake their risk assessment by listing the identified hazards on the Hazard and Risk Control Assessments form (Appendix A) prior to commencing works. 4.2 (a) AIE supervisors may undertake their own safety risk assessment of a worksite to facilitate the programming of sufficient man power, time and resources to complete the works. Any identified control measures shall be recorded and provided to field staff for reference. This risk assessment does not replace the assessment to be done by employees immediately prior to the work. The supervisor shall also ensure time is allocated so that field staff are free to carry out a worksite safety risk assessment prior to the commencement of work. In the case of fault and emergency works, once the site and nature of work is known, staff will carry out an assessment prior to commencing the task. (b) Supervisors of contractors are responsible for ensuring that the contractors have completed their own worksite safety risk assessment. 4.3 The work crew, (which may be only an individual, either from AIE or a contractor), is to carry out a worksite safety assessment in accordance with this procedure and record the findings on the assessment form provided, refer Appendix A. All members of the work crew are to participate in the assessment and measures as identified are to be implemented. REMEMBER all members of staff are responsible for their own safety and the safety of those they work with. Whatever your status within the work crew you should diligently apply yourself to this task and encourage others to do so as well. If for any reason there is an unexpected change to the worksite environment which significantly impacts upon the risks as previously identified, a review of the assessment will be undertaken by the work crew to ensure any new or altered hazards are identified and appropriate control measures taken. All members of the work crew are to be made aware of any changes by the leading hand or person deemed in charge of the crew. Anyone who attends a worksite after the assessment has been completed will be informed of the findings of the assessment and all control measures taken, and, if joining the crew, must sign the assessment form. 4.4 Upon completion of works, if any staff member has reason to be concerned as to the effectiveness of the worksite safety assessment and/or any control measures taken, they must bring it to the attention of their supervisor at the earliest opportunity. 4.5 It must be emphasised that the purpose of completing the HRA is to perform a hazard assessment to identify all hazards, assess and prioritise the risks, and to select control measures to control the risks, prior to doing the work. DO NOT JUST FILL IN THE FORM. The form is arranged to simplify the assessment process as much as possible, while still considering all the possible hazards and available controls. If all the perceived hazards are not listed for your task (this will be the case in most instances), then please write them into the 'other' section of the form and continue on the rear of the form if necessary. If you feel that there is something missing from the form, please contact your immediate supervisor, your regional manager or the manager network, who can arrange to have the form reviewed and amended. 135 In addition, the HRA procedure also required - All work, including repetitive work such as tree trimming, pole inspections, should be assessed using the Hazard and Risk Control Assessments form (sample in Appendix A). · General hazards present at the worksite are to be listed in the general overall hazard identification box which must be completed for every job. In the case of repetitive works, an initial assessment must be completed at the commencement of the works. However, if the hazards or risks alter (as perceived by the work crew) or there is a change in the work crew, a review of the assessment will be undertaken by the work crew to ensure any new or altered hazards are identified and appropriate control measures taken. If the changes are extensive, a new assessment should be completed. 136 It is clear that hazard and risk assessment procedures were in place, were documented in some considerable detail and had been the subject of in-service education on the part of the defendant. There was also an audit process to back up the hazard and risk assessment procedures. The Hazard Risk Assessment form formed part of that audit process. To start with, the completed Hazard Risk Assessment form was sent into the defendant's administrative section in order to audit compliance. As well, there was a random audit undertaken at the defendant's worksites. As Mr Jamieson stated in evidence: Q. How did you actually do these audits? Did you go to the Hazard Risk Assessment forms on a random basis and have a look at them? A. No. In fact this was done by picking a job at random. Q. Picking a job? A. Visiting the job on site, and checking the documentation live at the site, whilst the job was being carried out, talking to people, looking at what they are doing and asking them to take you through exactly what processes they would put in place, what they meant by those on the form, and identifying anything that way. Q. So you looked at the form at the site at the time that you went? A. That is correct, so when you got to the site for the job, either you got there right at the start of the job which was probably there, and you basically watched the job right through the discussion process, the filling out of the form. More often you got to the job while the job was ongoing, and the form was already filled out, along with any documentation, and you would stop the job, bring people together and ask them to take you through how they had completed the paper work, how they had carried out the identification process, what they had put in place. You have picked box A, show us what you have done. Q. When you do this audit, do the employees know you are going to do it? A. No, it was a random audit, which is partly why you will see the same people were audited five times. Some people were working in the same period. It was purely a random process that on any one day the auditor would take the daily job list, find out where the crew were working, and it was unannounced on site. 137 Mr Collins and Mr Salisbury were familiar with the audit process and in the seven month period preceding the accident on 12 October 2000, both had been audited on a number of occasions. 138 I am satisfied that, in a constructive and proactive way, the defendant has demonstrated it has done all that it could to put in place a system of work that has as its starting point a hazard identification and risk assessment process. The components of that process are a structured methodological approach, training and instruction, documentation as well as relevant and ongoing workplace audits and review. 139 In relation to the hazard of the earthed metal frame at Crystal Lane Sub 1, it is difficult to conceive precisely what it is that the defendant could make provision for as to its presence in addition to the hazard and risk assessment process in place. The presence of the earthed metal framework at Crystal Lane Sub 1 was not unique to that substation. Indeed, the live conductive parts being supported by an earthed metal frame was, as I understood the evidence, an integral part of all the defendants substations of which there were approximately 3000 of the pole variety and 50 of the kiosk type. It was accepted that it was a most fundamental principle of basic electrical work that metal structures would be earthed. Mr Collins and Mr Salisbury knew that. They did not, having regard to their considerable qualifications and overall experience, as well as their prior experience in installing and removing polyloggers, require direct supervision and instruction about what was, on any view, the most basic of principles in the work of an electrical technician. 140 Even if they did require assistance and were of the view that they did in relation to identifying the earthed metal frame at Crystal Lane Sub 1, Mr Corney was readily available for consultation. They did not seek such assistance because, in my view, they did not consider they needed supervisory assistance to undertake the task they were to perform at Crystal Lane Sub 1 which was one they had done many times before. 141 Against that background, it was not reasonably foreseeable, in my view, that Mr Salisbury would not notice the earthed metal frame and that he would choose to place the clamp as he did and that the clamp would inadvertently tilt downwards in the way that it did. 142 Nevertheless, it is clear on the evidence before me, given that Mr Salisbury chose to place the clamp in the place that he did on the bolt of the live bus bar, that space, weight and insulation considerations would have made it obvious that the smaller clamps would have been a preferred and more appropriate size clamp to use. Mr Salisbury and Mr Collins had selected larger clamps when they collected the necessary equipment at the defendant's depot at lunchtime on 12 October prior to proceeding to Crystal Lane Sub 1. 143 The evidence is that small clamps were available. Indeed, Mr Collins and Mr Salisbury had used the smaller clamps when they had safely installed another polylogger at Blende Sub 3 on the morning of October 12, although it must be said that neither could specifically recall that. The evidence as to the size of the clamps used by Mr Collins and Mr Salisbury at Blende Sub 3 was given by Mr Corney who had returned to Blende Sub 3 on the afternoon of October 12 to remove the clamps and identified the smaller clamps as the ones in place. 144 Mr Corney gave evidence that the small clamps had been introduced by the defendant some six months before the accident. He confirmed that they were brought in for the specific purpose of working in areas that were awkward or where there were dangers in close proximity to where work was being performed. A training session had been conducted by Mr Corney at the defendant's premises at the time of the introduction of the small clamps. Mr Salisbury had no recollection of that training session and while Mr Collins remembered it, he could not remember any particular details about it. 145 In addition to the size of the clamps used, at issue is the position in which the clamp was placed by Mr Salisbury. There was unchallenged evidence from Mr Corney and the expert, Mr Clarke, that Mr Salisbury could have chosen a number of other seemingly more accessible positions on which to place the clamp. When questioned about those places, Mr Salisbury demurred in relation to one location identified. In relation to the other locations he agreed they would have been suitable alternative positions but qualified that evidence on the basis that the photo was not clear. Mr Collins also agreed with alternative locations as indicated to him. 146 In addition to their considerable experience and acknowledged competence, they had been able to access assistance from Mr Corney at any time if they had any doubts as to any aspect of the work they were performing. Their experience and knowledge as well as their training in hazard and risk assessment were such that it was their judgment call as to whether they needed that assistance. 147 No issue was taken by the prosecution as to the overall level of expertise and competence of Mr Collins and Mr Salisbury nor to the issue of the adequacy or otherwise of training, instruction and supervision provided by the defendant. They were, by all accounts, seen as experienced and competent employees, fully qualified in the work they were performing on 12 October 2000. The work of measuring load (current) by the use of the multimeter for measuring voltage by use of a polylogger, was work they were familiar with and had performed before. As Mr Collins stated in evidence: Q. And in terms of your breadth and depth of experience, installing the polylogger was fairly routine and uncomplicated, working live on electrical equipment, wasn't it? A. Yes. Q. From your day to day work you were constantly involved in having to work with live electrical equipment? A. Yes. 148 As well, Mr Salisbury confirmed that his work required him to identify on the job hazards with live electrical equipment on a daily basis. 149 In evidence before me, neither Mr Collins nor Mr Salisbury sought to suggest otherwise than that, in the first instance, what they had failed to do at Crystal Lane Sub 1 on 12 October 2000 was to remember the most basic principle of their electrical training. That is, that the metal frame surrounding the bus bar would be earthed. Mr Clarke, the expert witness explained it thus: Q. Have you come up with your own analogy concerning whether these sort of qualified and trained electrical technicians needed to be told about the hazards and risk alleged by the prosecutor? A. They were qualified and trained. Trained and experienced trade persons. The analogy that I might give is a simple analogy, is that when a carpenter is using a hammer to drive a nail in you don't have to tell the carpenter each time not to put his finger on top of the nail so that one hits the finger instead of the nail … It's one of the most fundamental and basic things in an electrical person's training: what's live, what's dead, what's earthed. What you touch and what you don't touch. 150 Mr Salisbury candidly conceded in cross examination: Q. And I am going to come in detail to some principles of electrical training and safety - I am not trying to be difficult but you knew from the early days of your training as an apprentice right through to getting a supervisor's certificate and up until the day of the accident, a basic safety principle for electrical work is you assume every metal structure is earthed? A. Correct. Q. There is no other assumption that you would have made, the metal structure was earthed? A. No. Q. You agree with me? A. Yes. Q. That means you did look at the metal horizontal framework I have been talking about. You must have realised the only assumption you could make was that it was earthed? A. Believe it or not, we never noticed it or I never noticed this framework; it is hard to believe, I know, but I didn't notice it. Q. I am not being critical of Australian Inland; you accept that was your mistake; you didn't notice that was obvious and based on your qualifications, training and experience, you should have noticed it? A. Yes. Q. Other than it being an inexplicable oversight on your behalf, you have no explanation why you missed the metal framework running horizontally for which you have to take the clamps in a horizontal plane. A. I wanted to know what answer to give to you; it is basically an oversight of mine that I missed that framework. Q. You accept that? A. Yes I do. 151 In his evidence, Mr Collins conceded that some time after the accident, he said to Mr Corney words to the effect of 'We made a blue' accepting, it would seem, that what had happened on 12 October 2000 had been the result of a momentary inadvertence on the part of he and Mr Salisbury. 152 All in all, the defendant was, I believe, entitled to rely on the judgment, training and experience of Mr Salisbury and Mr Collins as to where best to place the clamp. It was a procedure both men were entirely familiar with and one they had done many times before. The defendant had in place a documented and thorough hazard and risk assessment process that had been supplemented by training and instruction and maintained by regular and random workplace audits. Both employees had been audited on a number of occasions prior to 12 October 2000. 153 As well, the defendant had made available smaller clamps for its employees to use in the circumstances confronting Mr Salisbury and Mr Collins at Crystal Lane Sub 1 on 12 October 2000. Both men knew small clamps were available and they had been used by them on the morning of 12 October 2000 at Blende Sub 3. There is evidence that additional pairs were available at the defendant's depot when Mr Collins and Mr Salisbury returned there for lunch on 12 October 2000 prior to proceeding to Crystal Lane Sub 1 to install a polylogger. 154 I am satisfied, taking all of the above into account, that the defendant has discharged the onus required in raising a defence under s53(a) of the Act in relation to the failures particularised and identified as (a) (iii) and (a) (iv) (2) in the offence before me. 155 Having regard to all of the above, the summons is dismissed. I will hear further from the parties on the question of costs. 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.