Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Mansell v Daniel Josef [2003] NSWIRComm 374 PARTIES : Workcover Authority of NSW (Inspector Mansell) Daniel Josef FILE NUMBER: IRC 5496 and IRC 5497 of 1999 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 09/15/2003; 09/16/2003; 09/17/2003; 09/18/2003; 09/19/2003; 10/07/2003; 10/08/2003; 10/09/2003; 10/10/2003; 10/27/2003; 10/28/2003; 10/29/2003; 10/30/2003 EXTEMPORE JUDGMENT DATE : 10/30/2003 Prosecutor: Mr M J Joseph SC with Mr P M Skinner Solicitors: Moray and Agnew LEGAL REPRESENTATIVES: Defendant: Mr J R Young of counsel Solicitors: James Legal JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ Date: 30 October 2003 Matter No IRC 5496 and 5497 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MANSELL) v DANIEL JOSEF Prosecutions under section 19(a) of the Occupational Health and Safety Act 1983 JUDGMENT [2003]NSWIRComm 374 CHARGE 5497 of 1999 1 Daniel Richard Josef is charged that between 10 November 1995 and 4 December 1995 at Kogarah in the state of New South Wales, being an employee of Josef & Sons Contracting Pty Ltd, while at work he, contrary to s19(a) of the Occupational Health & Safety Act 1983, failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that he did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. 2 The offences which are compendiously charged are particularised as follows: 11. The Defendant took no steps to remove a charged gas supply line from a construction area where earthmoving machines were operated. 12. The Defendant failed to prevent the operation of the earthmoving machinery on the construction area close to the charged gas supply line. 14. The Defendant failed to adequately protect the charged gas supply line on the KSU. 15. The Defendant failed to adequately identify the charged gas supply line on the KSU. 16. The Defendant failed to adequately mark the charged gas supply line on the KSU. 3 The evidence before me is that at the time the works at Kogarah were undertaken, Mr Daniel Josef was employed by Josef & Sons Contracting Pty Limited as a supervisor. After leaving school, he commenced work with Josef & Sons Contracting as a plant operator and progressed to the position of project manager at the time of the Kogarah job. His work entailed supervising all the jobs being worked on. 4 On 9 November 1995, Daniel Josef telephoned AGL and requested that the gas service be disconnected. He did not at that time arrange to meet Mr Princi from AGL in order that he may direct the place at which the gas supply line should be disconnected. Mr Bolger, the project manager employed by Abigroup Contractors Pty Ltd, said that it was not unusual for subcontractors to arrange that a service line be disconnected at a particular place. At the time Mr Daniel Josef made this phone call, it may be safely assumed that he knew or ought to have known the scope of the works. 5 In a statement taken from the defendant by Inspector Maltby on 8 February 1996 this question and answer were recorded: Q. Were you responsible for having the gas disconnected at Railway Parade? A. Yes. 6 It was within the control of Mr Daniel Josef to ask Mr Princi that the gas be disconnected at a place remote from the site. Mr Princi has said that this could be easily done. It was also within the control of Mr Daniel Josef that even if the gas were not disconnected from the site, the course and position of the gas line upon the site could have been identified by a small amount of excavation and the line clearly marked. 7 It was also within the control of Mr Daniel Josef that he may have prevented the operation of earthmoving machinery on the construction area close to the charged gas supply line. That is, if he had so chosen, as project manager, all demolition activities carried out relatively close to the charged gas supply line could have been carried out with handtools rather than heavy earthmoving machinery. 8 I do not for a moment accept that Mr Daniel Josef acted reasonably in failing to take these elementary precautions. 9 Mr Young for Mr Daniel Josef has submitted that because Mr Daniel Josef did not know when Mr Princi was to arrive to disconnect the gas supply on 10 November, it was not possible for him to control the place of disconnection. Given the gravity of the events which have occurred because of the signal failure on the part of Mr Daniel Josef, I regard this submission as bordering upon the absurd. The defendant is convicted of the offences charged in matter 5497. CHARGE 5496 of 1999 10 In relation to charge number 5496 of 1999, the same failures are alleged as against Daniel Josef. It is common ground that the offences relate to the events of 4 December 1995. Because it is agreed that Mr Daniel Josef was not on site on 4 December 1995, no act or omission on his part which caused danger on that day may be identified as additional to those acts and omissions for which he presently stands convicted. In that circumstance, the prosecution does not press for conviction in relation to the offences charged in summons matter 5496 and I find the defendant not guilty. 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.