Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Mansell v Robert Josef [2003] NSWIRComm 375 PARTIES : WorkCover Authority of NSW (Inspector Mansell) Robert Josef FILE NUMBER: IRC 5488 and IRC 5489 of 1999 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 09/15/2003; 09/16/2003; 09/17/2003; 09/18/2003; 09/19/2003; 10/07/2003; 10/08/2003; 10/09/2003; 10/10/2003; 10/27/2003; 10/28/2003; 10/29/2003 EXTEMPORE JUDGMENT DATE : 10/29/2003 Prosecutor: Mr M J Joseph SC with Mr P M Skinner Solicitors: Moray and Agnew LEGAL REPRESENTATIVES: Defendant: Mr J R Young of counsel Solicitors: James Legal JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ Date: 29 October 2003 Matter No IRC 5488-5489 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MANSELL) v ROBERT JOSEF Prosecutions under section 50(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 375 CHARGE No 5488 of 1999 1 Mr Robert Josef is charged in matter 5488 of 1999 that on 4 December 1995 at Kogarah, in the State of New South Wales, he was a director concerned in the management of Josef & Sons Contracting Pty Ltd, which corporation contravened s15(1) of the Occupational Health and Safety Act 1983 in that being an employer it then failed to ensure the health, safety and welfare at work of all its employees, and, in particular, Bruno Brdaric, Hasan Alagic, Chris Stoeski, Daniel Josef, Gorco Trajcevski and Bernath Adler, in that it: (i) failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was affected [sic] in a position which was safe and without risks to health; (ii) failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; (iii) failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; (iv) failed to provide and maintain a system for performing work that was safe and without risks to health in an area where a charged gas supply line was situated; (v) failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area where a charged gas supply line was located; (vi) failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished; (b) that was not adequately protected or identified; (c) where earthmoving machines were operated. (vii) failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line; (b) the risks associated with work adjacent to the charged gas supply line; (c) the type of work that might be carried out adjacent to the charged gas supply line. 2 The summons lists 27 particulars of contravention of s15(1). Some of these particulars merely are descriptive of that which occurred. 3 One omission of the company upon which the prosecution relies is contained within particular 14, which alleges that the company did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 4 I have before me no evidence upon which a finding may be made of such an allegation and of the offence there particularised. I find the defendant not guilty. 5 Further particulars of contravention of s15 by Josef and Sons Contracting Pty Ltd are as follows: The company failed to prevent the operation of earthmoving machinery on a construction area close to the charged gas supply line. The company failed to adequately protect the charged gas supply line on the KSU. The company failed to adequately identify the charged gas supply line on the KSU. The company failed to adequately mark the charged gas supply line on the KSU. The company failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. The company failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. THE EVIDENCE 6 At approximately 2pm on Monday 4 December 1995, a violent explosion burst through the glass front of the Family Amusement Zone games parlour in Railway Parade, Kogarah. 7 As a result of this explosion, Mina Barkhoum and Gregory Maybury sustained burns so extensive as to cause their death. At least 16 other persons suffered burns and lacerations. 8 The explosion occurred because some time after 1pm that day, Mr Robert Campbell, an employee of Josef and Sons Contracting Pty Ltd, operating a mechanical excavator on a demolition site 15 metres to the north, snagged a length of charged gas pipe and pulled it free from its seat in an elbow under the pavement in front of the Family Amusement Zone. Escaping gas, at a pressure of 210 kilopascals, then percolated into the games parlour where it was ignited, probably by the electrical operation of an amusement machine. The Contracts 9 On 18 October 1995, Abigroup Contractors Pty Limited (Abigroup) contracted with the State Rail Authority to perform certain works so as to improve the amenity of the Kogarah Railway Station. Part of those works involved the demolition of three shops standing between Railway Parade and the railway line immediately to the south of the eastern entrance to the station. The ground upon which they stood was to be transformed into a pedestrian plaza. 10 On 8 November 1995 Abigroup, by facsimile, accepted an offer made the previous day by Josef & Sons Contracting Pty Limited to demolish the shops and remove the paving blocks from the footpath in front of them together with some ancillary work, for $84,000. The acceptance was conditional upon receiving details of current insurance cover and a method statement for approval by WorkCover. This method statement was provided at some time prior to 10 November 1995, under the letterhead of Josef & Sons Pty Limited. 11 Pursuant to the method statement, the subcontractors undertook to carry out the works in strict compliance with Australian Standard 201-1991, "Demolition of Structures". Clause 1.7.2.3(a) of this Standard required that a demolisher identify the type, location and extent of any underground service. In clause 1.2(a) of Appendix 1 of the Standard, a demolition checklist suggested that the demolisher identify "any or any potentially hazardous ... condition". Clause 1.3 suggested that the demolisher "identify and locate supply mains (water, electricity, gas) and the extent of reticulation". (Emphasis added) 12 Josef & Sons Contracting Pty Ltd had, at an earlier time, contracted to perform similar work at the Westmead Railway Station. In that contract the company undertook to "take all possible steps to ascertain the location of all underground services (ie cables, pipes and the like)" and that notwithstanding the information provided by the SRA reports and inquiries to public utilities, it should "assume that unrecorded services may be encountered and take all necessary precautions". 13 The method statement itself asserted that "all services will be terminated prior to any demolition work commencing". The Site 14 Commencing some 6 metres south of the station entrance the shops comprised, from the north, a fruit market (number 3 Railway Parade), a fish shop (number 7) and a gift shop (number 9), and extended over a frontage of approximately 22 metres (exhibit J2, tab 4, plan 960-084). 15 To the south of the shops to be demolished remained - again in order from the north - the Mei Yee dress shop (number 11), the Family Amusement Zone (number 13), a tobacconist (number 15) and the Oasis Seafood Cafe (number 17). The northern wall of the Mei Yee dress shop constituted the southern boundary of the works. The Gas Line 16 The fish and chip shop, number 7, was connected to a gas supply. The underground gas line servicing this connection originated to the east of Railway Parade, crossing that road at right angles in an east west direction, to a point approximately 1.2 metres from the east face of the Family Amusement Zone, and 5 metres south of the southern boundary of the demolition site. 17 A right angle elbow joint there directed the service line under the footpath, north along Railway Parade for a distance of approximately 15 metres along the face of the Mei Yee dress shop, into the demolition site, past the gift shop, to a position directly in front of the fish shop. 18 A further right angle elbow directed the service into the fish shop. This gas supply line did not extend beyond that shop. The service line in front of the fish shop was approximately 40 to 50 centimetres below the paving blocks which were to be removed. The Involvement of Josef and Sons Contracting Pty Ltd and The Defendant 19 Robert Josef carried on a business in the demolition industry through the agency of two corporations, Josef & Sons Pty Limited, which company owned most of the plant, and Josef & Sons Contracting Pty Limited, which entered contracts to perform the work. Mr Josef was a director of each company and regularly visited the Kogarah site. 20 It is agreed by the prosecution and Mr Robert Josef, that Robert Josef, as director of Josef & Sons Contracting Pty Ltd, performed management and supervisory roles in relation to the Kogarah site. 21 It is also agreed that Josef & Sons Contracting Pty Ltd there employed Daniel Josef, Christopher Stoeski as foreman, Bruno Brdaric, Hasan Alagic, Bernath Adler, as a supervisor, Gorco Trajcevski and Dennis Gorham. 22 On 1 November 1995 Mr Robert Josef and Mr Luis Bustamante, the site manager, and Mr Maurice Bolger, the project manager - both employed by Abigroup - attended upon the site with the relevant plans. They discussed the scope of the works, the boundaries of the works at which hoardings were to be erected, and disconnection of services, including gas, electricity and water. At this meeting Mr Josef was asked to provide a method statement. 23 On or about 8 November 1995 Josef & Sons Contracting Pty Limited occupied the site and commenced the works by the erection of hoardings and provision of amenities. On Friday, 10 November 1995, Mr John Princi, an employee of AGL, at the telephone request of Daniel Josef, a project manager employed by Josef & Sons Contracting Pty Ltd, disconnected the gas service to the fish shop at number 7 Railway Parade. 24 He did this by unearthing and temporarily clamping the gold-coloured flexible plastic gas pipe, cutting the pipe on the shop side of the clamp, and fixing a red plastic cap to the cut end before releasing the clamp. The cap was fixed approximately 1.5 metres from the elbow joint which directed the service line into the premises. 25 Significantly, neither Mr Daniel Josef nor anyone else from Josef and Sons Contracting Pty Limited arranged to meet Mr Princi to advise him of the scope of the works, or to arrange that the gas supply be disconnected at a place remote from the site. No-one then marked the route of the charged gas line from that point at which it entered the demolition site level with the northern wall of the Mei Yee dress shop, to where it ended at the cap. 26 The demolition works commenced on Monday 13 November 1995. The awnings of the shops were first removed and then the internal fittings. By Tuesday 21 November, only the outer brick walls of the shops were standing. The demolition of those walls was sublet by Josef & Sons Contracting Pty Ltd to Reid's Demolitions, and on that day Mr Alfred Begg, an employee of Reid's, attended upon the site with a 6-tonne tracked excavator to effect further demolition. 27 Over the next three and a half days Mr Begg demolished, first, the walls and then the concrete floors and footings of the shops. He operated initially from the pavement at street level, east of the shops, and then, after traversing a ramp he built from demolition spoil at the south end of the site, from the lower western railway boundary of the site. As he worked, the spoil was loaded by bobcat into trucks and taken away. By Friday 24 November his work was completed. 28 Employees of Josef & Sons Contracting Pty Ltd next removed the paving blocks of the footpath in front of the former building alignment. In the course of this work, the capped section of yellow plastic gas line that formerly serviced the fish shop was exposed. A star picket, dressed with coloured plastic bunting, was driven into the ground at that spot by Mr Christopher Stoeski, the foreman employed by Josef & Sons Contracting Pty Ltd. No other measure was taken to mark the route of the gas line over the site to that point, or to cut the supply at a place remote from the site. Thereafter, heavy vehicles crossed the ramp constructed by Mr Begg, passing 300 to 500mm above the charged gas line, subjecting that line to vibration and possible damage. 29 On 4 December 1995 that work which remained outstanding was the clearing of rubbish and the construction of a batter. The ground upon which the shops had been constructed sloped in a westerly direction from Railway Parade down to the railway line. Removal of the buildings revealed a vertical face slightly more than one metre high along the eastern edge of the excavation. Safe practice required that the dangers posed by this drop be eliminated by transformation of this face into a sloping batter at 45 degrees from the vertical. 30 The usual method of doing this was that the operator of a mechanical excavator would cut into the earth at the top of the bank and transfer that earth to the bottom before tamping it with his bucket to mould the formerly vertical profile into one that sloped at the required angle. 31 At about 1pm on Monday 4 December Mr Robert Campbell, an employee of Josef & Sons Contracting Pty Ltd, was directed by his foreman, Christopher Stoeski, to construct the batter. 32 Mr Campbell approached his task with his excavator at the top of the bank facing southwards, drawing the bucket toward him to fill it before slewing and depositing the fill at the base of the earth wall. At some time in the course of the work, the retracting tines of the bucket struck with force the transverse capped section of the gas pipe, which operated as a hook or purchase. Because the nearby elbow remained fast, the excavator pulled the longitudinal section of pipe from its seat 15 metres away in the elbow joint below the front of the Family Amusement Zone, permitting the escape of gas which later ignited. FINDINGS 33 I am satisfied, upon the totality of the evidence before me, that each material fact canvassed in this summary has been proved beyond reasonable doubt. DEFENCES 34 In defence to the charges Mr Young contends that Josef & Sons Contracting Pty Ltd had no control over the place at which the gas line was to be cut, and was, therefore, compelled to work upon a site with a charged gas line, and could not discharge the contractual obligations in a manner different to that disclosed in the evidence; that is, the company operated pursuant to a safe system of work. 35 In particular, Mr Young submits that the company could not mark the route of the gas line across the demolition site because of the absence of plans by AGL, and the impossibility of investigation by digging up the earth from the point at which the gas line had been capped, tracing its route to the point at which it entered the site. 36 As to control, Mr Young relies upon the evidence of Mr Maurice Bolger, the project manager employed by Abigroup. At one point in his evidence Mr Bolger said that it was appropriate that Josef & Sons Contracting Pty Ltd determine when the gas should be disconnected, but that as to the place of disconnection, that was a matter to be agreed upon between Abigroup and AGL. 37 The evidence of Mr Bolger, however, included the following exchange, at page 172.40: HIS HONOUR: Just pausing there, I am in doubt. Who decides, not in this contract but in other similar contracts, the point at which the service will be interrupted? A. If it's not clear in the documentation specifically where the services might be removed to, then it wouldn't be uncommon for the contractor or the subcontractor to ask the question of the client where these services could be or where they would like them removed to: that is very common. Q. So that it could be either, in this particular case, the SRA or Abigroup or Josef? A. Yes. 38 I find that Josef and Sons Contracting Pty Ltd had control over the place at which the gas supply was to be cut. 39 I reject entirely, the submission of Mr Young, that it was not possible to mark the route of the gas line because of the absence of plans, or the difficulty of investigation by digging. The evidence of Mr Princi is that the gas line was buried no more than about 300mm below the surface of the pavers, which pavers were to be removed pursuant to the contract. I find that Josef and Sons Contracting Pty Ltd unreasonably failed to mark the route of the gas line on the site. 40 I further find that Josef & Sons Contracting Pty Ltd did not propose a clear method of dealing with the hazard in the work method statement, that the company failed to adequately protect the charged gas supply line, and failed, upon the evidence, to provide to all persons engaged in the work adequate information about the location of the charged gas supply line. It is patently apparent that when Josef & Sons Contracting Pty Ltd itself failed to identify the course of the gas line, it could not make necessary information available to the persons who were working upon the site. 41 The only system of work devised, instituted and maintained by Josef and Sons Contracting Pty Ltd, at least after about 20 November, was that the cap, which marked the end of the gas line, was marked by a star picket dressed with bunting. I accept that Josef & Sons Contracting Pty Ltd did advise its employees, at some time, that that picket and that bunting was to mark the point at which a gas line terminated. This method of ensuring the safety of its employees against the dangers posed by the gas line was wholly inadequate. 42 A safe system would require the cutting of the gas supply remote from the site. Pursuant to Australian Standard 2601-1991 "The Demolition of Structures", clause 2.1.10 reads: "Services within the structure not required to be maintained during demolition work shall be properly disconnected and sealed off before any stripping or demolition commences". 43 Because of the imprecision of the zone of influence, a term of soil mechanics which relates to the vulnerability of earth to movement created by gravitational forces, heavy machinery ought not have operated upon Railway Parade within one or two metres of the vertical face of the wall which was later exposed. 44 I find that Josef and Sons Contracting Pty Ltd failed to devise, institute and maintain a safe system of work. CAUSATION 45 Mr Young submits that I would not be satisfied upon the criminal onus that it was the excavator which snagged the gas pipe on 4 December, and that the cause of the dislodgement of the pipe is unknown. An alternative cause was at one time considered by the expert, Mr Trethewy, that is, that because of vibration within the pipe caused by vehicles passing over the ramp constructed by Mr Begg at the southern end of the site, the elbow joint in front of the amusement centre slowly failed. 46 Mr Trethewy, when he was given an opportunity to inspect the pipe itself, rejected this speculation. He was of the opinion that the pipe had been torn from its seat by a force to be measured in multiples of 100 kilograms. Mr Young, because of the limited number of test results, criticises his final conclusion that it was in the order of 400 kilograms, but that is not to the point. It required some force. 47 There is evidence that the pipe, at the elbow joint, bore markings consistent with abrasions caused by the tine of a forklift, but, most significantly, it is the coincidence in time of the work of the excavator and the detection of gas which leaves me in no doubt that it was the excavator that caused the rupture. 48 A further submission by Mr Young is that if the failure of Josef & Sons Contracting Pty Ltd was merely a failure to supervise the work of Mr Campbell, that failure could not be causative of the creation of the danger because Mr Campbell was a highly experienced driver, and the employer had no cause to believe that he would not exercise due care. He relies upon WorkCover Authority of NSW v Filrose Pty Ltd, [1999] NSWIRComm 390 (unreported Marks J 31 August 1999). I am not persuaded that that case is in any way in point. 49 Given the system with which Josef & Sons Contracting Pty Ltd approached the task, I don't believe that even supervision to ensure that Mr Campbell did not operate his bucket closer than one metre or so from the marked stake, would have had any effect. The fundamental problem, of course, was that no-one at Josef & Sons Contracting Pty Ltd knew about the elbow which commenced about 1.5 metres from the stake, which comprised the hidden trap. No-one from Josef & Sons Contracting Pty Ltd had taken the care to chart the course of the pipe. 50 Finally, Mr Young submits that I could not upon the evidence find that Mr Campbell was ignorant of the existence and the position of the charged gas line, or that he was directed to work near that line. His actions and their consequence, in this submission, were not caused by any act or omission on the part of Josef and Sons Contracting Pty Ltd. I do not accept this submission. 51 It follows from that which I have already said that not only was Mr Campbell ignorant of the position of the charged gas line in relation to its elbow, so was everyone else who worked on the site. I do find that Mr Campbell was directed to work near the gas line and that this direction caused the risks to safety on 4 December 1995. 52 Attacks have been made upon the reliability of Mr Campbell because of the circumstance that he gave inconsistent statements to both WorkCover and to the police in relation to the events and further, that Mr Campbell lied on oath when giving evidence to the Coroner. It is further submitted that imprecision in the recollection of Mr Campbell, concerning the events of 4 December, disclosed in his evidence, cast a cloud of unreliability upon everything that he said. 53 It is relevant here to note that it is the uncontradicted evidence of Mr Campbell that he lied to the police and he lied to the Coroner because of a direct invitation by Mr Josef that he so do. 54 Mr Campbell, when he gave evidence before me, used the word "mistake" in relation to his evidence before the Coroner and in relation to the statement he made to WorkCover and the police in the earlier period. The word "mistake" used by Mr Campbell in that context was quite plainly to describe that which he regarded as a moral lapse. It was a mistake to accept the invitation of Mr Josef to give false evidence. I was impressed by the manner in which he gave evidence, and by his candour, and I accept him entirely as a witness of truth. I find that those matters upon which he had no detailed recollection concerning the events of 4 December do not establish that his evidence was either internally inconsistent, or that he was unreliable. STATUTORY DEFENCES 55 It having been established that Josef & Sons Contracting Pty Ltd was in contravention of s15(1), and that Mr Robert Josef was a director concerned in the management of the corporation, the only question remaining is whether, pursuant to s50(1)(a), a provision since repealed, Mr Josef may escape liability if the contravention by Josef & Sons Contracting Pty Ltd occurred without his knowledge. 56 I should interpolate here that I am persuaded, upon the evidence, that the star picket and bunting was in place when Mr Campbell operated his excavator on 4 December. 57 I find that Mr Campbell, at an earlier time, had been told that the star picket indicated the terminus of a live gas line, but I find that those facts are irrelevant to his operation of his excavator bucket, at a position over a metre from the picket, at which place he did not have any cause to believe the charged gas line constituted a danger. 58 Did Mr Josef know, or have cause to know, of the additional risk created by the acts of the 4th? In one sense, this question is irrelevant. Prior to the 4th, Mr Josef knew that there was, upon the site, a charged gas line and he knew, because he had organised its presence upon the site, that an 8-tonne excavator would work upon the site. He knew that the work to be included on that day included the construction of the batter from an earthen wall. 59 He had cause to know that because the earthen wall extended south beyond the star picket that, in the normal course of events, an operator directed to construct the batter would work relatively closely to the terminus of a charged gas line, the route of which was unknown. 60 In his record of interview with Detective Senior Constable Bourchier, on 29 February 1996, exhibit J5, Mr Robert Josef confirmed that he was present on the 4 December 1995, that on that morning there was a vertical wall and that the excavator driver, Mr Campbell, was to create a batter from that wall. 61 Mr Young submits that when Mr Campbell stated at one point that he was not aware that he had snagged the line, he must have been lying. This is because such a statement is inconsistent with the evidence of Mr Hatzikiriakos, who said after he smelt gas he approached the site and saw various men at the excavator, with the gas line suspended upon the bucket. That evidence is, to my mind, compatible with the perceptions of Mr Campbell. For some time after the smell of gas was noticed, the men on the site did not know the source of this gas. Having looked at the end which remained capped, they saw no reason to suppose that the gas was escaping from that pipe. I believe it was only slowly realised, that, because of the pulling of the line, the gas was escaping from a remote place. 62 In any event, the credibility of Mr Campbell is irrelevant to the central question. This is because even if Mr Campbell had been directed, as was suggested in cross-examination, not to work near the position of the gas pipe marked by the stake, work consistent with such instructions over one metre from the stake would still have snagged the gas line. 63 Other than in respect of particular 14 I find the offences contained in charge 5488 proved. 64 I think in fairness to the prosecution, I should also record Mr Joseph's further submissions. Mr Joseph submits that on 4 December a higher degree of vigilance was called for by Josef & Sons Contracting Pty Ltd than was required before that date. This was because further work was to take place in and around the gas line on that day. It was because of this additional act, rather than previous omissions, that the instruction given to Mr Campbell to construct the batter, created an additional risk to the risk of casual encounter posed by the gas line at earlier times. It is for this act, Mr Joseph says, that a separate offence is charged. CHARGE No 5489 of 1999 65 It follows from the findings which I have made in matter number 5488 that the company contravened s16(1) of the Occupational Health and Safety Act 1983 on 4 December 1995 and that Mr Robert Josef is guilty as charged pursuant to s50(1) of the Occupational Health and Safety Act 1983. 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.