Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Chadwick v Ernest Mitchell [2004] NSWIRComm 62 PROSECUTOR Inspector Christopher Chadwick PARTIES : DEFENDANT Ernest Alfred Mitchell FILE NUMBER: IRC 6454 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 16(2) of the Occupational Health and Safety Act - Construction Industry - Fall from roof - Plea of not guilty - Whether persons not employed by defendant were exposed to risks arising from the conduct of the defendant's undertaking - Charge dismissed LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 03/08/2004; 03/09/2004 DATE OF JUDGMENT: 03/19/2004 PROSECUTOR Ms A F Backman of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr G J Bellew of counsel Solicitor: Mr D Mockler Stewart Cuddy & Mockler JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 19 March 2004 Matter No IRC 6454 of 2002 INSPECTOR CHRISTOPHER CHADWICK v ERNEST ALFRED MITCHELL Prosecution under section 16(2) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 62 1 This prosecution arises out of an incident on 18 April 2001 when Jack Robert Scott slipped and fell about 5.4 metres from the roof of the Unanderra's stationmaster's cottage and suffered serious injuries including a broken arm, broken leg and facial injuries. At the time, Mr Scott was painting the roof of the cottage pursuant to a sub-contract with Bruce's Brush Painting Services Pty Ltd. Bruce's Brush Painting had contracted with Denbur Constructions Pty Ltd ("Denbur") to provide labour, tools, materials and equipment necessary to carry out and complete all internal and external painting of the cottage. Denbur was the head contractor engaged to renovate and restore the residence to its 1888 style. 2 Proceedings were instituted against Denbur and Bruce's Brush Painting under the Occupational Health and Safety Act 1983. Those defendants entered pleas of guilty. However, the present case involves the prosecution of Ernest Alfred Mitchell ("the defendant") under s 16(2) of the Act. Mr Mitchell, trading as Emco Building Consultants, was alleged to be the project manager on the site. Mr Mitchell pleaded not guilty. 3 In an application for order Inspector Christopher Chadwick ("the prosecutor") of the WorkCover Authority of New South Wales alleged that: Ernest Alfred Mitchell (in partnership with Carol L Mitchell) trading as Emco Building Consultants of No. 1 Stansbury Street, Emu Plains 2750 in the State of New South Wales ("the defendant"), being self-employed, on 18 April 2001 at No 1 Berkeley Road, Unanderra, New South Wales FAILED TO Ensure that persons not in the defendant's employment, in particular, Jack Robert Scott, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work, contrary to Section 16(2) of the Occupational Health and Safety Act 1983. The particulars of the charge are: a) At all material times the defendant was self-employed; b) At all material times Jack Robert Scott ("Scott"), trading as Mr Jack Robert Scott ABN 68501772056, was self-employed and sub-contracted to Bruce's Brush Painting Services Pty Ltd ("Bruce's Brush Painting") to paint the roof of the former Station Master's Residence ("the residence") located at No 1 Berkeley Road, Unanderra, New South Wales ("the site"); c) At all material times Scott was exposed to the risk of falling off the roof of the said residence while painting; d) At all material times Denbur Constructions Pty Ltd ("Denbur") was head contractor with its undertaking to renovate and restore the residence to its 1888 style, including the external painting of the residence in accordance with Specification No 2000/1230 as completed by Denbur on 20 June and 21 July, 2000 ("the works"); e) At all material times the defendant's undertaking was to co-ordinate, as a project manager, with Denbur the taking possession and protection of the said site and meeting all safety requirements and organising other sub-contractors in regards to the works at the site; f) At all material times Bruce's Brush Painting's undertaking was to provide labour, tools, materials and equipment necessary to carry out and complete all internal and external painting of the residence; g) The defendant failed to provide at the said site a safe system of work for working at height painting the roof of the said residence; h) As a result of the said failure Jack Robert Scott was placed at risk of injury and suffered actual injuries. 4 As already noted, the defendant pleaded not guilty to the charge under s 16(2) of the Act, which provides: (2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. Background facts 5 The contest in these proceedings was whether the alleged risk to safety arose from the conduct of the defendant's undertaking. It was the defendant's contention that neither had he been appointed as a project manager for the restoration of the residence nor had he evolved into that role. The defendant contended that he was merely a conduit for the directions of others. Much of the evidence in the proceedings, therefore, went to the question of whether Mr Mitchell was the project manager for the site to the extent it could be said that the restoration of the residence was his undertaking and the site was his place of work. 6 The defendant had been employed by the State Rail Authority ("SRA") for many years in various positions. In 1991 the defendant was appointed as the Rail Estate Maintenance Supervisor with responsibility for managing Rail Estate's (SRA's property group) properties. In that role he had gained considerable expertise and experience in the renovation and restoration of the SRA's heritage buildings scattered throughout the State. In 1995 he accepted voluntary redundancy and set up a business in partnership with his spouse as a consultant concentrating on renovation and restoration of heritage buildings. Eighty per cent of his work came from the SRA. There was no issue that the defendant was a self-employed person. 7 On 13 January 2000 Rail Estate, headed by Dr Stuart Sharp, contracted an architect, David Sheedy, to provide a conservation assessment of the Unanderra stationmaster's cottage ("the residence") to determine whether it should be placed on the SRA's heritage register and to prepare a scope of works. As part of his contract, Mr Sheedy was to engage the defendant for a fixed fee of $3,836 "to assist in the identification of problems, including the stormwater drainage and sewerage system, to prepare a scope of works which can be subsequently handed to a project manager for implementation and supervision of the works." Mr Sheedy accepted the contract, including the requirement to engage Mr Mitchell on the terms proposed. 8 On 3 March 2000 the defendant sent Mr Sheedy an 8-page document outlining the scope of work for the residence. The document dealt with external painting of the residence including the painting of the roof. The defendant's "scope of work" was incorporated in toto into Mr Sheedy's conservation assessment report to the SRA in March 2000. 9 On 12 April 2000 the defendant sent by facsimile to Dermit (sic) Duncan, Corporate Services, Contracts Management Unit, SRA, a document entitled "State Rail Authority Request to Proceed to Tender (AM3)". The document set out amongst other matters: (i) the project details including the scope of the project, the estimated overall project cost ($60,000). The scope of the project included "general external painting"; (ii) the project management nominating Dr Sharp as the "project owner"; (iii) that Mr Sheedy was the responsible person "to prepare a heritage study …"; (iv) that tenders would be called to undertake the necessary restoration and repair work. 10 The AM3 document had been signed by Dr Sharp on 20 March 2000. The defendant had prepared the document and according to his evidence this was done at the request of Dr Sharp because, the defendant said, Dr Sharp was "undermanned" and because he, the defendant, had previous experience in preparing AM3s. 11 In May 2000 an advertisement was placed in the Sydney Morning Herald inviting tenders for the project. In the advertisement the client representative was nominated as "Stuart Sharp/Ern Mitchell". The defendant said in his evidence he was not aware of the advertisement prior to it being inserted in the newspaper. On 22 June 2000 the defendant was appointed by the SRA to sit on the evaluation committee to evaluate the tenders for the project. In his capacity as one of the two members of the committee the defendant recommended Denbur as the successful tenderer. 12 The tender specification document provided that: Tenderers must submit an acceptable Site-specific Safety Management Plans/Safe Work Method Statements (for low risk) which complies with the requirements of the NSW Government OHS&R Management Systems Guidelines 3rd edition. 13 On 6 October 2000 the SRA generated a document entitled "Submission for Approval" recommending that CMR Consultants (Australia) Pty Ltd be appointed to assist in the maintenance of heritage structures for $71,005.00 for the financial year 2000/2001. This submission was approved by SRA on 11 October 2000. In January 2001 CMR produced a document entitled "SRA of NSW Maintenance and Restoration of Heritage Assets NSW Financial year 2000/2001 Programme Procedure Manual". Emco Building Consultants was listed in the Manual as one of the "Miscellaneous Project Managers". Under the heading "Site Specific Project Managers" at 1.4.4 of the Manual the work of project managers was described and included preparation of schedule of works, preparation of the AM3 and AM4 documentation, issuing of tenders, preparing and forwarding completed AM4 document to CMR, managing the construction phase of the project, site visits and recommending progress payments. Mr Mitchell had prepared the scope of works, the AM3 and AM4 documents, evaluated the tenders for the project visited the site at Unanderra and approved progress payments. 14 On 2 January 2001 the defendant received a facsimile direction from CMR to appoint Denbur as the successful tenderer to undertake the work on the residence. The facsimile attached an AM4 document, namely an "SRA Request to Award Contract". Under the heading "Project Strategies" the AM4 stated: The contractor is to coordinate with the project manager Emco Building Consultants to take possession of the site, protect the site during the construction period, to meet all safety requirements and organise other sub-contractors. 15 The defendant had prepared the AM4, again at the request of Dr Sharp and for the same reasons that he prepared the AM3. However, as to the reference to Emco being the project manager Mr Mitchell said that when he prepared the document he was, at the same time, preparing another AM4 in relation to Bowenfels where he had been appointed project manager and he simply performed an electronic cut and paste by taking what he had written on the Bowenfels AM4 and transferred it to the Unanderra AM4, without giving any thought to the question of whether he was in fact the project manager in relation to that site. 16 Also attached to the facsimile sent to Mr Mitchell on 2 January 2001 was a Local Purchase Order ("LPO") B4002210 dated 20 December 2000 and made out to Denbur in the sum of $87,230.00. On 4 January 2001 the defendant sent by facsimile to Denbur the LPO B4002210. On the facsimile cover sheet the defendant instructed Denbur in the following terms: Could you please contact this office and advise when your company will commence work. An (sic) WorkCover work method statement is required to be prepared and held on site at all times during the work. It must be prepared before any work is commenced. 17 In relation to this instruction the defendant said in his oral evidence that he gave it at the request of CMR. 18 On 16 January 2001 Denbur wrote to Mr Mitchell indicating it would be in a position to commence work on 5 February 2001 and asking that a joint site meeting take place "to discuss project access, contract administration, anomalies if any etc." On 6 February 2001 Mr Mitchell wrote to Denbur enclosing architect details of joinery and mouldings. 19 On 7 February 2001 Denbur sent the defendant seven "Safe Working Method Statements as required by you". One of the seven SWMS's was headed "Painting". It was a generic document copied from another source with Denbur's name copied on to the top of the pages. The document did not address any safety requirements in relation to painting roofs. The defendant received the SWMS's, read them and left them on his desk. The defendant said in his evidence that he noticed that the SWMS's did not address painting the roof of the residence but he did nothing further in this regard. Mr Mitchell, of course, was well aware that the roof of the residence was to be painted because he referred to this in the scope of work he prepared for Mr Sheedy. 20 On 20 February 2001 Mr Mitchell attended a site meeting with Mr Ken Hope of Denbur and another contractor to Denbur. Mr Mitchell gave a number of directions at that meeting in connection with the repair of the residence. During March and April 2001 and prior to the date of the accident, there was correspondence between Mr Mitchell and Denbur regarding additional costs and work to be done in relation to the residence where Denbur ask to be advised whether the additional costs were acceptable. On 28 March 2001 Denbur submitted its first progress payment claim in a letter addressed to CMR. It would appear, however, that the letter and attached invoice went first to Mr Mitchell who then forwarded the invoice to CMR with the advice that "the work is 60% complete and has been done in a satisfactory manner and payment is recommended." In relation to the progress payment Mr Mitchell said he simply signed a letter prepared by his wife without checking to see whether the claimed progress had been made and the payment warranted. 21 On the day of the accident Mr Scott was not provided with any kind of safety mechanism or equipment to enable him to carry out the painting work on the roof of the residence in a safe manner. 22 Mr Mitchell said in his evidence in chief that: · He was never asked by Mr Sheedy, the SRA or CMR to be the project manager; · He had no input into how the work was carried out on the site; · He had no input into who was contracted, or subcontracted by Denbur to do work on the site; · He had no role in engaging any tradespersons at the site; · He had given no undertaking to any person to coordinate with Denbur to take possession of or to protect the site; · He did not undertake to any person that he would be responsible for meeting safety requirements at the site or for organising subcontractors. Consideration 23 There was no evidence that the defendant was appointed, in the sense of being assigned in any formal way, as a project manager for the restoration of the residence. It was the prosecution's case, however, that Mr Mitchell came to assume that role. The prosecution contended that the defendant's role evolved into that of project manager "tasked with the specific responsibility (among other tasks) to coordinate with Denbur during the construction period, to protect the site and to meet all safety requirements" and thereby the defendant was conducting an undertaking. 24 The principal question in this case, therefore, is whether the defendant was conducting an undertaking in the manner contended for by the prosecution or whether he was merely a conduit or go-between for the passing of information or instructions from some other person, who might be regarded as conducting an undertaking at the site, to the contractors on the site as contended for by the defendant. 25 At the request or direction of the SRA the defendant was initially engaged by Mr Sheedy "to assist in the identification of problems, including the stormwater drainage and sewerage system, to prepare a scope of works which can be subsequently handed to a project manager for implementation and supervision of the works." The defendant was to be paid a fixed fee for this work. The intention, therefore, appears to have been that the defendant would only have a limited role to play in relation to the restoration of the residence and thereafter a project manager would take over. 26 Mr Mitchell's role, however, expanded beyond that originally envisaged and he became involved in the tender process, prepared the AM3 and AM4 documents, was named in documents as a project manager, attended site meetings and liaised with Denbur. The fee paid to Mr Mitchell did not envisage this additional work and it would appear that he performed the work out of consideration for his longer term relationship with the SRA. If the SRA and Mr Mitchell had considered the defendant to have been the project manager responsible for more than merely the scope of works and identifying problems, presumably there would have been a contract or arrangement whereby the defendant was paid more than the fee agreed upon, which specifically did not envisage Mr Mitchell performing the work of a project manager. 27 In relation to the tender process, it does not seem to me that Mr Mitchell's involvement can lead to any conclusion other than by appointing him to the evaluation committee the SRA was taking advantage of Mr Mitchell's knowledge and expertise as to who might be an appropriate contractor given the type of work to be undertaken at the residence. It does not lead to the conclusion that Mr Mitchell was assuming the role of project manager for the site. 28 In relation to the preparation of the AM3 and AM4 documents Mr Mitchell said that he did not prepare the documents on the basis that it was part of his responsibility as a project manager but because he was requested to do so by Dr Sharp. In relation to the reference in the AM4 document to Emco being the project manager, Mr Mitchell said he simply adopted what he had typed on the Bowenfels AM4, where he had been appointed as a project manager, but that this was not a reflection of the true position in relation to Unanderra. In this respect, there was evidence that Mr Mitchell did, in fact, prepare the Unanderra and Bowenfels AM4's at the same time. 29 The evidence suggests that Mr Mitchell merely completed the AM3 and AM4 forms because of a request that he do so because Rail Estate was short-handed and given his knowledge and experience as to how such tasks were to be performed. In the absence of any other material to support the contention that this is to be regarded as reflecting part of the defendant's role as a project manager for Unanderra, the evidence relating to the AM3 and AM4 is that he completed the forms for the reasons he gave in his evidence and nothing further may be inferred. The defendant gave an explanation as to why he was described as a project manager for Unanderra in the AM4 document. The explanation is credible. 30 The reference in CMR's Programme Procedure Manual to Emco being a "miscellaneous project manager - various" does not establish that Mr Mitchell was the project manager for the Unanderra site. Mr Mitchell said that he was from time to time engaged by the SRA as a project manager on other SRA work sites and the entry in the Manual is consistent with this fact. 31 There was the matter of progress payments. Apparently the progress payment invoices from Denbur were sent to Mr Mitchell who then signed off on them and forwarded the invoices to CMR. Mr Mitchell's explanation was that he had told Denbur to send any documentation to him and he would ensure it went to the appropriate person at State Rail. Mr Mitchell said that in signing off on the invoices he simply did so because his wife put them in front of him and that he did not form any view as to whether the progress claimed by the defendant had actually been achieved so as to warrant payment. The defendant's explanation regarding the progress payments, which is a function associated with the role of a project manager, troubles me. I do not find it to be very convincing. If it were true that this was the approach Mr Mitchell generally took to claims for progress payments when State Rail had in fact appointed him to the position of project manager, I would have thought it was a matter of some concern. However, the fact that Mr Mitchell signed off on project payments is not sufficient, in my opinion, to establish that the defendant was a project manager or coordinator in relation to work on the Unanderra site such as to bring him within s 16(2) of the Act. 32 Another matter that troubled me was a facsimile message from Mr Mitchell from Denbur dated 4 January 2001 whereby Mr Mitchell said: Could you please contact this office and advise when your company will commence work. An (sic) WorkCover work method statement is required to be prepared and held on site at all times during the work. It must be prepared before any work is commenced. 33 In response to this message Denbur sent to Mr Mitchell safe work method statements, Mr Mitchell read them, noticed that they did not address the painting of the roof but did not send the statements on to CMR and, in fact, left the documents sitting on his desk without following up on what was an important omission. Again, one would have to question Mr Mitchell's sense of responsibility in any role as a project manager. However, it would appear that his reminder to Denbur about the requirement for safe work method statements was not something done on his own initiative as a manager or coordinator but emanated from a direction by CMR to appoint Denbur to undertake the work and determine when they were able to commence the physical work. It is logical in this context that Mr Mitchell would remind Denbur about the need for safe work method statements because the AM4 document provided that: Contractor will be required to submit a Work Method Statement & Risk Assessment suitable to meet WorkCover requirements before any work is commenced. All work is to be carried (sic) by qualified personal (sic) to meet railway standards. 34 It is true that it was Mr Mitchell who prepared the AM4 but at the request of Dr Sharp and partly for the reason that Mr Mitchell had previous experience in preparing what is primarily a pro forma document with a significant amount of standard provisions including, I consider, the provisions relating to health and safety. There was nothing site specific about the health and safety provisions in the AM4 document that could be said to point to the conclusion that Mr Mitchell had a particular responsibility for the site in that respect. 35 Mr G J Bellew of counsel for the defendant submitted that: It is clear from Inspector Chadwick's evidence that during the course of his investigation, he became aware of the fact that there were a number of separate individuals within the SRA who played significant roles in this particular project. It is also clear that by the time that he had conducted his interviews with the defendant in the latter part of 2001, Inspector Chadwick was on notice that the defendant had variously reported to, and dealt with, Stuart Sharp and Mark Atkinson from the SRA and Chris Pratt from CMR, in the course of this particular job. Notwithstanding his knowledge of such matters, Inspector Chadwick declined to interview any of these persons. Indeed, the only representative of the SRA whom he interviewed was a person who, he conceded, was not in any way involved in the project. His suggestion that he did so because this was the "person provided by the SRA" ought not be accepted. Further, it became clear in the course of cross examination that Inspector Chadwick had specifically enquired of the SRA representative whether there had been any document appointing the defendant as project manager, and was told that there had not. The defendant has given evidence of various conversations with Messrs Sharp, Atkinson and Pratt, and of the various directions he was given by them from time to time. In circumstances where the prosecutor has not taken steps to interview such persons, the evidence of the defendant as to those matters ought be accepted. In particular, the Court should accept the defendant's evidence that he was never, at any stage, asked by any person within the SRA to act as the Project Manager or indeed to do anything over and above those duties which were set out in the original Brief. On the whole of the evidence, Messrs. Sharp, Pratt and Atkinson were all material witnesses. The only inference which can be drawn from the fact that they were not called is that their evidence would not have assisted the prosecutor's case. 36 I agree with the defendant's submissions in this respect. 37 In considering the purposes of s 16(2) of the Occupational Health and Safety Act, one of them is to sheet home a responsibility for safety at a workplace. So that if a self-employed person is conducting an undertaking, that person has to ensure that other persons that are not employees are not exposed to risks to their health and safety arising from the undertaking while they are at the self-employed person's place of work. 38 As to Mr Mitchell, I consider that the Unanderra site can be regarded as his place of work; he was contracted by Mr Sheedy to carry out work on the site and did so. The critical question, however, is whether Mr Mitchell was conducting an undertaking at the site and that arising from that undertaking persons who were not in Mr Mitchell's employment were exposed to risks to their health and safety. It may be accepted that Mr Mitchell was conducting an undertaking on the site. At a minimum he was contracted "to assist in the identification of problems, including the stormwater drainage and sewerage system, to prepare a scope of works which can be subsequently handed to a project manager for implementation and supervision of the works." He visited the site on a number of occasions in furtherance of his obligations under his contract with Mr Sheedy. It could not be said, however, that the risk to which Mr Scott was exposed arose out of Mr Mitchell's undertaking as described in the contract or arrangement with Mr Sheedy. 39 The prosecutor, however, alleged in the particulars of the charge against Mr Mitchell and in the opening address that the defendant's undertaking was to "co-ordinate, as a project manager, with Denbur the taking possession and protection of the said site and meeting all safety requirements and organising other sub-contractors in regards to the works at the site". This was the charge that the defendant had to meet. 40 Whilst there were some indicators that Mr Mitchell was more than merely a conduit for information between Denbur, State Rail and CMR, the evidence falls short of proving beyond reasonable doubt that he was conducting an undertaking at the Unanderra site that involved a coordinating role as a project manager with the responsibility of ensuring that all safety requirements were met, including ensuring that persons were not exposed to risks to their health and safety. 41 There was no evidence at all that Mr Mitchell was appointed to the role of a project manager for the Unanderra site. He was initially contracted to assist Mr Sheedy and his fee was in respect of that role and nothing else. Mr Mitchell was asked by Dr Sharp to perform some additional work such as completing the AM3 and AM4 documentation but this could not be regarded as a tacit appointment as a project manager with responsibility for occupational health and safety. 42 Mr Mitchell referred to himself as project manager in the AM4 document but he provided a credible explanation as to why this did not mean that he was, in fact, such a manager. The defendant's reminder to Denbur that it needed to provide safe work method statements may be seen as no more than part of asking Denbur when it could commence work (as the defendant was asked to do by CMR) and in the process reminding Denbur in accordance with the AM4 document that before it could do so it had to have safe work method statements. 43 There was some evidence that Mr Mitchell visited the site on a number of occasions but there was not sufficient to show that he was acting as a coordinator as alleged in the charge, as distinct from his limited contracted role to provide assistance to the architect in restoring the residence. 44 The arrangements that State Rail and CMR had in place for supervising the work at the Unanderra site, and particularly health and safety, were at best slipshod and at worst non-existent. Mr Mitchell was clearly involved in the process and acted as an indispensable link in the chain of communications between Denbur, CMR and State Rail but I am unable on the evidence to find that the prosecutor has made out his charge under s 16(2) of the Act. The charge is dismissed. _______________________________ 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.