Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Inspec Guillarte) v Peter John Genner & Anor [2000] NSWIRComm 8 revised - 21/02/2000 PARTIES : PROSECUTION: WorkCover Authority of NSW (Inspec Guillarte) DEFENDANTS: Peter John Genner and Genner Constructions Pty Ltd FILE NUMBER: IRC4891-4900 of 1998 CORAM: Kavanagh J Occupational Health and Safety Act 1983 - s15 prosecutions Liability - employee killed at roadside CATCHWORDS : Summons and particulars - specify breach Prosecutions against Peter John Genner stood over generally On the facts as to liability three summonses dismissed two offences proven LEGISLATION CITED : Occupational Health and Safety Act 1983 Insp Davies v Prospect Electricity (unreported, Fisher CJ, No. CT91/747) CASES CITED : McMartin v The Broken Hill Proprietary Company Limited (unreported, Supreme Court of NSW, Grove J, 20002 of 1986, 5 February 1988) State Rail Authority v Dawson (1990) 37 IR 110 HEARING DATES: 11/08/1999; 11/09/1999; 11/10/1999; 11/12/1999; 12/01/1999 DATE OF JUDGMENT: 02/23/2000 PROSECUTOR: Mr P.M. Skinner (Barrister) SOLICITOR Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr R. J.Grady (Barrister) SOLICITOR Peta Bollinger JUDGMENT: 1 The prosecutions are brought by Inspector Guillarte on behalf of WorkCover Authority of NSW ("the prosecutor") under the provisions of s15(1) of the Occupational Health and Safety Act 1983 ("the Act"). The matters were listed for hearing in relation to five prosecutions against the corporation, Genner Constructions Pty Limited ("the defendant") and a further five prosecutions pleaded against Peter John Genner under s 50(1) of the Act in his capacity as a director of the company bearing his name. 2 Counsel for the prosecution, Mr Skinner, after the matters had been set down for hearing for five days, made application the five prosecutions pleaded personally against Peter John Genner be stood over generally, informing the Court the prosecutor intended to only proceed with the prosecutions pleaded against the corporation. The application was by consent and granted. 3 The charges pleaded against the defendant are as follows: Re IRC98/4896 On 13 September 1996 at a roadworks construction site on the eastern shoulder and verge of Moss Vale Road, Burradoo, in the state of NSW approximately 100 metres south of Eridge Park Road, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular Kenneth Edward Ingram contrary to s 15(1) of the Occupational Health and Safety Act 1983 in that it failed to provide systems of work, for the conducting of roadworks, that were safe and without risk to health. The relevant particulars provided are: 2. The defendant failed to provide systems of work for the conducting of roadworks which were safe and without risks to health. 3. The defendant failed to provide systems of work which ensured appropriate control of all vehicular movements to and from the worksite. Re IRC98/4897 On 13 September 1996 at a roadworks construction site on the eastern shoulder and verge of Moss Vale Road, Burradoo, in the state of NSW approximately 100 metres south of Eridge Park Road, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular Kenneth Edward Ingram contrary to s15(1) of the Occupational Health and Safety Act 1983 in that it failed to maintain systems of work, for the conducting of roadworks construction, that were safe and without risk to health. The relevant particulars provided are: 2. The defendant failed to maintain systems of work for the conducting of roadworks which were safe and without risks to health. 3. The defendant failed to maintain systems of work which ensured appropriate control of all vehicular movements to and from the worksite. Re IRC98/4898 On 13 September 1996 at a roadworks construction site on the eastern shoulder and verge of Moss Vale Road, Burradoo, in the state of NSW approximately 100 metres south of Eridge Park Road, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular Kenneth Edward Ingram contrary to s15(1) of the Occupational Health and Safety Act 1983 in that it failed to provide such training at the aforesaid roadworks constructions site as may be necessary to ensure the health and safety at work of the defendant's employees, more particularly the said Kenneth Edward Ingram. The relevant particulars provided are: 2. The defendant failed to provide such training at the aforesaid roadworks construction site as may be necessary to ensure the health and safety at work of its employees. 3. The defendant failed to provide appropriate training to control all vehicular movements to and from the worksite. Re IRC98/4899 On 13 September 1996 at a roadworks construction site on the eastern shoulder and verge of Moss Vale Road, Burradoo, in the state of NSW approximately 100 metres south of Eridge Park Road, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular Kenneth Edward Ingram contrary to s15(1) of the Occupational Health and Safety Act 1983 in that it failed to provide such supervision of the aforesaid roadworks constructions site as may be necessary to ensure the health and safety at work of the defendant's employees, more particularly the said Kenneth Edward Ingram. The relevant particulars provided are: 2. The defendant failed to provide appropriate supervision of the aforesaid roadworks construction site as may be necessary to ensure the health and safety at work of its employees. 3. The defendant failed to provide appropriate supervision to control all vehicular movements to and from the worksite so as to ensure the health and safety of employees at the site. Re IRC98/4900 On 13 September 1996 at a roadworks construction site on the eastern shoulder and verge of Moss Vale Road, Burradoo, in the state of NSW approximately 100 metres south of Eridge Park Road, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular Kenneth Edward Ingram contrary to s15(1) of the Occupational Health and Safety Act 1983 in that it failed to provide such instruction at the aforesaid roadworks constructions site as may be necessary to ensure the health and safety at work of the defendant's employees, more particularly the said Kenneth Edward Ingram. The relevant particulars provided are: 2. The defendant failed to provide such instruction at the aforesaid roadworks construction site as may be necessary to ensure the health and safety at work of its employees. 3. The defendant failed to provide instructions to ensure appropriate control of all vehicular movements to and from the worksite. 4 Kenneth Edward Ingram, the employee of the defendant suffered fatal injuries when struck by vehicle registration number LUT 601 and trailer registration number G81923 whilst working at the aforesaid roadworks construction site. 5 The defendant therefore is charged with failing to provide a safe system of work, failing to maintain the system of work, failing to provide training, failing to provide appropriate supervision and failing to provide proper instruction particularly as to vehicle movements to and from the worksite. The charges all relate to the same incident. 6 There was a limited agreed statement of facts tendered which relevantly reads: 4. At all material times Kenneth Edward Ingram ("the deceased") was an employee of the first defendant. 5. At approximately 10.45am on 13 September, 1996 ("the said date") the deceased received fatal injuries when he was struck and run down by motor lorry registered number LUT-601 (hauling trailer registered number G-81923) ("the fatal accident"). 6. The fatal accident occurred at the site of roadworks being undertaken on the eastern shoulder and verge of Moss Vale Road, Burradoo, approximately 200 metres south of the intersection of Eridge Park Road ("the worksite"). The roadworks were undertaken to widen 85 metres of the eastern shoulder of Moss Vale Road by a width of 1.2 metres. 7. At the time of being struck by motor lorry LUT-601 the deceased was positioned at the eastern extremity of the southbound vehicular lane/cycleway surface. 8. At all material times the worksite was a workplace conducted by the first defendant. 9. Present at the worksite at the time of the fatal accident were (i) Frank Olesen (the driver of the motor lorry LUT-601), (ii) Keith Holzigal (a self-employed grader/roller operator engaged by the first defendant pursuant to contract) and (iii) the deceased. 10. Keith Holzigal was a person with approximately 32 years roadworking experience at the said date and is the holder of a Traffic Controller's Certificate No. 1767, issued by the Roads and Traffic Authority in June, 1996. 11. In order to enter the worksite on the said date motor lorry LUT-601 (and trailer G-81923) was driven north along Moss Vale Road to a point opposite the worksite. The driver Frank Olesen then executed a right turn across the southbound lane of Moss Vale Road and positioned the motor lorry on the worksite facing in a northerly direction. 12. The fatal accident occurred when the motor lorry LUT-601 (after discharging its load) commenced to exit the worksite by moving in a northerly or north-westerly direction across the southbound traffic lane of Moss Vale Road. 13. At the worksite location the roadway curves slightly to the west (right curve when travelling south). 14. A traffic controller should normally supervise the manoeuvres (both entry and exit) described in paragraphs 11 and 12 above, particularly where a heavy vehicle is involved. 15. The motor lorry LUT.601 (with trailer G-81923 attached) was the second gravel lorry to arrive at the worksite on the said date. 16. As at the said date the drivers of vehicles travelling along the southbound traffic lane of Moss Vale Road had an uninterrupted view of the worksite for a distance of over 475 metres. 17. The motor lorry LUT-601 was equipped with a red-coloured bug deflector mounted at the front extremity of the engine bonnet. The said bug deflector eliminated the driver's forward view over the nose of the bonnet for a distance of approximately 19 metres in front of the vehicle. 18. On the said date Inspectors of the Workcover Authority attended the worksite and took 17 photographs of the worksite (marked W-1 to W-17, inclusive - attached hereto), a further 13 photographs of the gravel lorry LUT-601 and views from the interior thereof (marked W-18 to W-30, inclusive – attached hereto) and various further photographs (marked P001 to P044, inclusive – attached hereto). 19. The Australian Standards applicable to the worksite are AS 1742.3 – 1996 ("the 1996 standard") and AS 1742.3 – 1985 ("the 1985 standard"). The 1996 standard did not commence publication until 5 May, 1996 (as detailed inside front cover thereof) and the Field Guide SAA HB81.2 – 1996 titled "Short-term Rural Works, Daytime Only" did not commence publication until 5 July, 1996. 7 The defendant through its Counsel, Mr Grady, pleaded not guilty to the charges but put before the Court a concession from the above facts, namely: It is conceded to bring a truck or a heavy vehicle on to the site in the manner in which it was done that morning and to direct a truck to leave the site by that manner should have required a flag person to be traffic controller. So that much is agreed. 8 Mr Genner, a major shareholder of the company, conducted the affairs of the company. He submits there was a safe system of work in place and Mr Ingram, the deceased, who he identifies as his "supervisor" in charge of the site on the day, approved a variation to the safe system of work put in place by the employer which system would have provided the safe access and departure of trucks from the worksite. Mr Genner submits the variation caused the tragic death of Mr Ingram. 9 Mr Grady, outlined the corporation's defence as follows: The defendant's defence hinges on whether or not he can rely on what he says is a tried, tested and well trained supervisor to carry out certain specific instructions, directed immediately at that point as to how the trucks were to be allowed to come on to the site and how they should have been directed to leave, which was totally opposed to the manner in which the manoeuvre was subsequently undertaken. 10 The prosecutor called Christopher Andrew Chadwick, an inspector duly appointed under the Act and employed by the WorkCover Authority. Inspector Chadwick went to the worksite and identified various photographs taken at the site on the day of the accident by the WorkCover Authority and the Police. Inspector Chadwick opined Mr Ingram was struck by the right hand side wheels of the heavy truck as it left the road site where it had dropped a load of roadfill gravel. The vehicle was driven by Frank Olesen, who was employed by J & A Mulready Pty Limited. The truck was owned by Mulreadys. 11 Mr Genner gave evidence on behalf of the defendant. He is a qualified fitter and turner who has conducted this company since 1980. The company operates as a road works and subdivision contractor. Mr Genner has an RTA traffic controller's certificate and the RTA management planner's certificate although the latter he obtained after the accident. Mr Genner is an experienced employer in roadworks construction - the type of work being undertaken on the day of the accident. 12 The company at the relevant time operated with three foremen, of whom the deceased was one. On the afternoon before the fatality, Mr Genner revealed he had directed workmen to put up road work signs at the worksite and to deliver the appropriate equipment for the job. He also went to the site on dusk with Mr Ingram to instruct on the work to be done. This fact, when revealed in evidence, came as a surprise to Counsel but on examination was contained in the statement by Mr Genner to the Police taken one month after the accident. It was therefore not a statement of recent invention. 13 Mr Genner gave sworn evidence as to the system of work he had in place. He said the drivers of the trucks were expected to approach the worksite, pass it, do a U-turn at Eridge Park Road and come back to the worksite entering it with the line of traffic. He conceded once the variation required the trucks crossing over the oncoming traffic to enter the site different traffic signage was required as well as the presence of flagmen on the road to warn the oncoming traffic of heavy vehicles crossing. 14 As to the site visit Mr Genner said: We went out to the site. I physically showed him [Mr Ingram] where we had to start and finish. I put a paint mark on the road. I explained to him about Eridge Park Road and I said, 'Come down 20 or 30 metres from the turn and put your first sign up so when they come around the corner they have plenty of time to focus on the sign there.' Then I told him to put another sign halfway between there and the work site. Then we drove to Prior's Hotel and drove back to get an idea of the site distance and we came around the right hand turn and I said, 'Ken, put a right hand sign there,' and we drove further. 15 He indicated in exhibited photographs of the site where he put the white line. The line was visible on the photographs. Mr Genner was then asked: Q. Was there any further instruction? When you say to bring the trucks in from Eridge Park Road - A. He is bringing them in with the flow of traffic. That was the instruction I gave him, to bring it in from Eridge Park Road. 16 Mr Genner ordered the quantity of road base material being delivered by phone from Mr Brian Duff at the local quarry. When Mr Duff asked for the address for the deliveries, Mr Genner said: A. ... I said Moss Vale Road, and you will have to enter from Eridge Park Road. 17 Mr Duff of Concrite Quarries Pty Ltd does not recall and denies this conversation. He recorded the order as follows: 175 tonnes DGD 20 Genner const., CRN Moss Vale and Eridge Park Road 10 a.m. 18 Mr Duff was asked: Q. Were you given any specific delivery instructions by Genner? A. Not to my knowledge. The only instruction was what was written on the daily diary sheet. 19 He was later asked: Q. Did you give instructions to them [the drivers] that day other than what is shown in your diary? A. Only what was wrote on their loading docket which was wrote on their loading docket, the corner of Moss Vale and Eridge Park Road. 20 And in cross examination by Mr Grady: Q. Is it possible that you might have overlooked to record something after being given specific instructions about your location of a delivery site, if someone said words to the effect: get them to come in from Eridge Park or from Eridge? A. No. The reason why, there wouldn't have been any other instructions wrote down, is because I know there is no other access into that road. It is a ten tonne road and you can't do a U-turn in the middle of the road with a semi-trailer. Q. But you can at the intersection of Moss Vale Road and Eridge Park Road? A. I wouldn't believe so. I wouldn't like to turn a trailer around into a garage. 21 Later again: Q. What I suggest to you is that Mr Genner rang you and ordered the road base material and that he advised you of the location at Moss Vale Road and I suggest that he said words to the effect: get them to come in from Eridge Park or from Eridge? A. No, if that had been the case it would have been wrote on the diary. I am saying I wrote on the diary at that stage what the instructions were, the corner of Eridge Park and Moss Vale Road. .... Q. You have Moss Vale Road and then corner Moss Vale Road and Eridge Park Road and what I am suggesting to you is that the actual site was not at the corner of those two roads and you were telling me it is where those two roads used to intersect, is that so? A. Yes that is so. 22 Mr Genner's relationship with Mr Holzigal, a grader operator on contract to Mr Genner on site that day, becomes important. He had known Mr Holzigal for approximately fifteen years. They worked together at Abignano's Construction where Mr Holzigal was driving a large bulldozer and Mr Genner was a foreman for the company. Mr Holzigal was a subcontractor who worked in a de facto permanent relationship with the defendant company for many years. Mr Holzigal had been to RTA Safety Training Course paid for by Mr Genner. 23 Mr Holzigal made the decision to change the entrance of the delivery trucks onto the worksite. He was asked: Q. Did you direct the other drivers? A. That is correct, I directed the drivers to the site. . . . Q. Was there any discussion between you and Mr Ingram as to who was to be base supervisor? A. He was working for Genner Constructions. There was no discussion as to who was to be the supervisor. Q. You had already put the road signs out at the time he got there? A. Yes. ... Q. So there was nothing unusual about you doing that? A. No, it was quite a common occurrence. 24 When asked what he knew of the job to be done he said: A. Both Ken and Peter told me there would be trucks coming up with a concrete supply from the quarry. Q. When did Ken tell you that? A. That morning. Q. Do you remember anyone telling you, either Ken or Peter or anyone else, by which method the trucks were to enter the site? A. Ken told me that Peter had asked him to bring the trucks to Eridge Park Road and tip them and turn them around into the traffic, because of the wind and the safety factor of watching the trucks with your back to the traffic, I decided to bring them in on the southern approach and tip them in the northbound traffic direction. Q. That is what Ken told you? A. No, he told me Peter wanted to bring them in from Eridge Park Road end. We had a discussion and Ken said, 'You do it your way, Keith'. 25 When asked when this discussion occurred he said: A. I can't remember whether it was after or before but we had discussed it at some stage. Whether it was when he came back after the roller - actually, it was after, because we were sitting down at smoko discussing what was going on the site as far as the traffic movements went. Q. So Ken said, 'You do it your way, Keith' and your way was? A. I told Ken I was going to bring the trucks across the traffic and tip them facing northwards rather than tip them facing southwards. So I was facing away from the trucks for my own safety as well as visibility for the trucks . . . A. . . . and if I was standing at the rear of the trucks I would have been copping spray. The original way Peter asked me to stand, I would have been copping the blue metal and spray from the trucks tipping. 26 Mr Holzigal was waiting at the site for the trucks when they arrived and he signalled the first truck across. He demonstrated how he waved the driver to come across the traffic and into the site. There is a culture of signals understood by drivers, graders and labourers on site in relation to the various alternative movement of trucks. This was demonstrated by Mr Holzigal. Mr Holzigal also signalled the second truck, driven by Mr Olesen, across the traffic onto the site. 27 Given the change in procedure for the trucks to enter across traffic, Mr Holzigal was asked did this new procedure not require a flagman and was it not Genner Construction's policy to supply a flagman for such conditions? His reply was: A. That is correct. On this site at that time of day I believe the amount of traffic did not warrant a flag person. There was only a total of seven loads on that day and between 9 a.m. and 3 p.m. at Moss Vale it's pretty quiet so far as a semi country road is concerned. and in cross-examination: Q. Whose decision do you say that it was to actually bring the trucks in across the flow of traffic? A. I discussed it with Ken prior to the trucks arriving and we decided it would be best tipping, the safest on that day at that time, it would be safest to bring the trucks in that way so we'd have full visibility and for our own safety and so on and so forth. 28 Mr Holzigal agreed he had a mobile phone and could have called for traffic controllers but he did not think it was necessary. He acknowledged he knew about the "buddy" system which involved protection for a worker who works near oncoming traffic by having another worker stand beside him. 29 In Mr Holzigal's view no site is perfectly safe: further it was his opinion when you have "live" traffic there is always a reasonable possibility of an accident. When asked about the trucks leaving the site Mr Holzigal took responsibility for directing the drivers onto the site but said he was not responsible for directing them from the site. He acknowledged this was a serious incident but when asked what should have been done on this site he answered: A . I thought we had done everything possible, your Honour, for the site. Q. Do you still say that? A. Yes, I have been to many safety induction lectures on the site and they still don't bring up anything contrary to what we did. 30 Mr Skinner for the prosecution made application, after Mr Holzigal completed his evidence and was cross examined, for leave to have Mr Holzigal declared hostile for the purpose of further cross-examination. After argument the parties agreed to leave being granted. Mr Skinner challenged Mr Holzigal's oral evidence that the deceased said: Keith, you do it the way you want to. 31 Mr Skinner put to Mr Holzigal he had not included in any statement he gave either to the WorkCover Authority nor to the police that Mr Ingram said: Keith, you do it your way. 32 Mr Holzigal's reply was the WorkCover interview was traumatic, although he conceded the interview with the police was not so. He agreed to the fact that in neither statement did he mention this conversation with the deceased. 33 There is convincing evidence about what the deceased was doing at the time he was struck by the lorry. Mr Smith, the first truck driver to enter and leave the site says that as he drove from the site his lorry dislodged one of the witches hats which he noted from his rear vision mirror. He proceeded to Eridge Park Road and did a U-turn driving back past the site. He says at that stage the witches hat had been "replaced" and he did not know where the deceased was. It is agreed it would have been impossible for the witches hat to right itself. Whether he was still hammering in the witches hats or had completed the task, Mr Ingram was performing duties at the roadside at the time he was struck by the truck. 34 Mr Holzigal gave evidence: A. The last time I saw him when the first truck tipped, he was over at the water truck. He was always a fellow who was moving on the site and you had to watch to see where he was. He was always on the move. Q. Did you see him with a sledge hammer in his hand at any time that morning? A. After I had tipped Frank Olesen's truck, I passed Ken walking towards the front of Frank's truck, second truck tipping, he had the sledge hammer then. Q. Ken was coming back towards Frank's truck. When he was walking past you did he say anything to you that you can remember? A. He passed momentarily and said that once Frank had gone he was going to nail that witches hat down. Q. Did you see him after that? A. Well, I walked to the grader and he walked past the truck and I didn't see him until after the accident. 35 Mr Frank Olesen, the truck driver says: A. . . . As I got out of the truck to clean the cleats and the tail board, Ken walked past as I got out and we passed the time of the day. Q. Do you remember what he said? A. Something to the effect: it's a great day to fly a kite. Q. Was that a relevant remark? A. Yes, because it was a very blustery, windy, cold day. Q. Did you notice anything that he was carrying? A. He was carrying a big sledge hammer. Q. Did he tell you what he was going to do with the sledge hammer A. No. 36 He was later asked: Q. Prior to entering the cabin, did you not see Mr Ingram? A. No. Q. Did you wonder where he had gone at all? A. It never occurred to me. 37 What is clear from the evidence is the two persons still on the site, Mr Holzigal and Mr Olesen, both knew Mr Ingram was around the site of the truck and near the road as it moved off but did not think about his position. 38 Mr Genner's evidence was as follows: Q. I would suggest to you that going about the task of nailing down witches hats is something that you would expect him to do as part of his duties on the site that day? A. The nailing down of the witches hats happened long before the trucks were to arrive. Q. He was re-nailing at least one, was he not, hammered it in? A. I believe that is what caused the accident, yes. Q. You would expect this sort of thing he would do when the hats had been blown over in the windy conditions that were prevailing that day, quite often as his normal duties that is what he was doing? A. The safety of the job, yeah. ... Q. The evidence is clear that Mr Holzigal said, and the truck drivers have all said Mr Holzigal directs them on the site? A. Yes. Q. Having got them on and told them where to tip the load he did not do anything about directing them off the site. Is that right? A. That is right. Q. The engines running, they have never been turned off. Correct? A. That is right. Q. That would have been quite normal. The engines did not get turned off? A. That is right. Q. He does not get a warning from the engines going on? A. No. Q. They do not blow the horns. Mr Holzigal tells us 'Why should they?' Do you remember that? A. I do. Q. It was a windy day? A. Yes but had the job been done the way it was instructed this would have never have happened. Q. Do you agree it was a windy day? A. Very windy. Q. Mr Ingram out on that truck (sic) must have been relying on Mr Holzigal to be directing him? A. Sorry I don't know. I was not there. Q. It would be a reasonable assumption for him to have in his head while he was on that truck (sic) to be assuming that the other man on site was keeping an eye out for him surely? A. I don't know. It was totally out of character for Mr Ingram to do what he done. It was out of character for Mr Holzigal to have done what he done. Q. What was out of character for Mr Holzigal? A. Directing the trucks across the traffic. Q. You heard him give evidence. He did not give any indication at all that it was unusual what he did, did he? A. It is unusual for our company to bring trucks across traffic. Q. He did not say anything about it when he was in the witness box to indicate it was unreasonable, did he? A. I don't believe - Q. He was not even asked a question about it? A. Well I didn't ask the questions. 39 As to the aspect of a blind spot some 19 metres long on the trucks, Mr Genner opined: A. The truck coming into the site which is approximately two metres wide, two and a half metres wide maximum, is only the width of the truck and all she is doing is she is pulling on to the verge, he has got his instructions to tip his load and then he is leaving. These are professional drivers. It is no different to pulling up and buying a hamburger at the local shop and taking off again. It is no different. Q. I suggest to you that these professional drivers nonetheless had an 18 metre blind spot with their heavy vehicle. Would you agree with that. It is in the agreed facts? A. Say that again please. Q. The 18 metre blind spot, are you aware of that? A. I am aware that there is a blind spot on some trucks. Q. I am suggesting to you that these trucks on site needed assistance from a man on the ground to deal with that 18 metre blind spot where there could have been someone on that site within that 18 metres. Do you agree with that or not? A. No. Q. I would suggest to you that for example the questions you heard by your counsel to Miss (sic) Johnston earlier in the day about there being 500 metres clear vision up the road, has got nothing to do with the risk that this man was at when he was at the witches hat which was the 18 metres blind spot, that he needed direction there. Would you agree with that or not? A. No. .... 40 It was Mr Genner's expressed view once Mr Holzigal had made the decision to bring the trucks across the traffic he should have rung Mr Genner. He revealed Mr Holzigal had a phone in his truck and should have used it to contact him. 41 Grant Lee Johnston, a consulting engineer, gave expert evidence on behalf of the prosecution. He said: There were sufficient resources to permit the trucks to enter in a northbound direction but Mr Ingram undertaking that particular task continuously unsupported and unsupervised on the edge of a 90 kilometres an hour grading in my opinion was an unsafe practice in itself. 42 He drew a distinction between the entry and exits of the truck on the one hand and the safety factors flowing from that and the safety factors going to the quite separate task of a man hammering down witches hats on the edge of a busy road. 43 He agreed once the trucks were brought in from the north the driver would not see somebody on the roadway due to the truck's blind spot. It was his view as this was a short term job the road signage was as good or better than that required under the Australian Standard. He opined once the system was alerted to bring the trucks across traffic given the volume of traffic on the road there should have been two flagmen, one placed in each direction on the road to direct traffic. 44 Mr Johnston opined: 1. Mr Ingram did not have the specific qualifications or training in relation to the use and interpretation of traffic control standards and had not completed the traffic controller's course. 2. The most appropriate methodology was to protect the road worker working on the road edge by having the worker follow behind a vehicle, and mounting the witches hats behind the vehicle. 3. Alternatively to use the buddy system to assist in ensuring the safety of the worker from errant vehicles and also alert the road worker to any other potential difficulties. 45 In a supplementary report he opined when Mr Ingram was hammering the witches hats he should have been protected by the "buddy system" where an additional worker is assigned to protect a worker near moving traffic. Mr Johnston agreed allowing the vehicles to enter from the northbound lane across traffic was in itself unsafe and the minor benefits associated with the dust nuisance would not outweigh the respective hazards. For this task to be performed safely he opined there had to be traffic controllers to facilitate the movement of the vehicles and there should have been consideration given to the exit procedures to assist the trucks. 46 Mr Genner opined once the vehicles were permitted to enter the site in such an unsafe manner it necessitated a diagonal departure from the site across the southbound lane of traffic creating a further hazard and one which caused the death of Mr Ingram. 47 Associate Professor W.O. Yandell gave expert evidence in support of the defendant company. It was his view generally the work site was safe, and the accident was in all probability due to human error and the failure of those on the site to follow instructions. It was his view the accident would not have occurred if both the following actions had not taken place; if the trucks had not driven on to the site in a northerly direction against the oncoming southbound traffic; if the deceased had not decided to nail down an errant witches hat in the front left of the truck out of the sight of the driver. 48 Professor Yandell for the defendant made an assumption the truck would normally drive along the shoulder then turn across the southbound lane at the end of the line of witches hat however, since the driver could not see the last few witches hats, he drove across them. It was the Professor's view the driver cut across the oncoming traffic as sharply as possible to reduce the truck's exposure to oncoming traffic. Therefore, the Professor's view was the deceased would not have expected this sudden left turn over the witches hats and as the driver would not have seen the last few witches hats nor the deceased, he unknowingly then drove over both. 49 In his further updated report the Professor did not agree with the proposition that "a buddy system" to protect against an errant vehicle was the issue. 50 There was other significant evidence given of Mr Genner's good character from those who had the opportunity to observe and evaluate the competence and safety consciousness of Mr Genner and his company. Putting aside the evidence of Mr Holzigal, Mr Currell, a project manager of vast experience in conducting and overseeing roadside worksites, gave evidence of Mr Genner's management skills and incidentally gave evidence that the deceased was a most competent supervisor. He was not perceived by Mr Currell as simply a labourer on site. Similarly, Mr Tooth, a Council Inspector mirrored the observation and praise of Mr Currell in respect of both Mr Genner and the defendant's company. SUBMISSIONS 51 The prosecutor submits the issue of safety on this site was not a question of adequate warnings given by the signage to the passing traffic. Rather, the central issue was the safety of the site from the perspective of the workers particularly in relation to vehicle movements to and from the site. The prosecution directs the Court's attention to the risk which was created by the movement of the two large delivery trucks into and off the site. The blind spot on the trucks became relevant in relation to the truck's departure from the worksite. 52 The prosecution first attacked Mr Genner's evidence that the truck drivers were instructed they had to come in from the north. On Mr Genner's own evidence such an instruction would have had to be given to drivers by Mr Duff. However, Mr Duff categorically denied he was ever asked or had given an instruction to this effect. The quarry docket which was relied on by the defendant he insisted was related to the delivery site. 53 The prosecutor submits while Mr Genner alleged it was the standing practice of drivers to come in with the flow of traffic onto a work site the drivers in evidence did not agree with him. The prosecutor further submits that the Court should not accept Mr Genner's basic defence that there was in place a safe system of work for the movement of the vehicles on and off this worksite The prosecutor raised issues as to the credit of Mr Genner in relying on this defence. 54 The defendant addressed questions of credit raised in relation to Mr Genner. The defendant submits the evidence of the prior good character of Mr Genner and evidence in criminal proceedings touching on the character of the defendant is always admissible especially when considering the question of veracity of a defendant as to guilt or innocence (Alexander Stuart & Sons Limited v Robinson (1921) 29 CLR 234 and see s110 of the Evidence Act 1996). The defendant submitted the court should bear in mind the good character of Mr Genner when considering the question of his company's liability. 55 The defendant relies on the principle that in circumstances where the defendant is a corporation the evidence of good character of a director, being the director who is the controlling mind of the corporation, is admissible (King v Murphy (1985) 4 NSWLR 48; (1985) 63 ALR 53). 1. As a factor affecting the likelihood of the company through Mr Genner committing the breach; and 2. In assessing the credibility of the explanations offered by Mr Genner in circumstances where he has given evidence, the credibility of Mr Genner as a witness is relevant. 56 The defendant further submitted the central issue in this prosecution is the supervision or lack thereof of the movement of the gravel lorries to and from the site. The traffic plan devised by Mr Genner was simple and as agreed by all, effective and safe had it been followed. The defendant submits the deceased knew of the defendant company's practice and policy regarding the entry and exist of lorries on to a work site for many years. The deceased had never disregarded these instructions before. The defendant submits the failure of the deceased was to adopt Mr Holzigal's suggestion they reverse the access of the trucks to the site, as well as Mr Ingram's failure to contact Mr Genner so that the appropriate signage and traffic controllers could be assigned to the site. 57 The defendant relies on the defence under s53 of the Act: 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. 58 It is the defendant's submission that the corporation had in place at this work site a safe and proper system of work. It was a simple but tried and proven, safe system. It was the inadvertence or casual act of the deceased to observe this practice that caused the breach under s15 of the Act. It relies on the defence under s53 submitting that the offence was due to causes over which Mr Genner, representing the defendant, had no control and against the happening of which it was impractical for him to make provisions. CONSIDERATION 59 I am satisfied from the state of the evidence that it was company policy for the drivers to enter worksites with the flow of traffic. From the weight of the evidence and given the fact the site was visited by Mr Genner the day before the accident I am persuaded there was in place a proper procedure to bring the trucks into the site with the flow of traffic. This procedure was altered on the day of the accident because it was a very windy day and Mr Holzigal determined it would be safer, and at least less inconvenient in regard to the job he had to perform, to bring the drivers across the traffic. It was arising out of this determination of Mr Holzigal that the risks to safety occurred and Mr Ingram lost his life. 60 The Court finds there is evidence sufficient to support the proposition that the system in place was for the trucks to approach the work site in the direction of the traffic. The type and location of the warning signs put out at the site; the visit of Mr Genner to the site with Mr Ingram to plan this placement and the placement of the witches hats on the road edge to delineate the worksite are all persuasive pieces of evidence. The signage, while correct, was signage in support of traffic coming on to the site with the line of traffic. I accept Mr Genner's proposition that there was a system of work in place in relation to the movement of trucks onto and off the worksite that would have been safe had it not been varied. However, this finding does not dismiss all charges laid against the corporation. 61 I am not satisfied that a system of work which requires large trucks to do U-turns across traffic is safe. The summons before the Court relates to the vehicles' movements on and off the site. Therefore it limits by its particulars the offence. However, one of the truck drivers, Mr Olesen, and Mr Duff, from the Quarry, both gave evidence it was unsafe to require a load carrying truck to do a U-turn at a small intersection like Eridge Park Road. That part of the system put in place by Mr Genner was unsafe but I do not make findings based on this part of the system as the summons and the charge as particularised have limited the offence to the movement of the vehicles onto and off the site. 62 Further, evidence by both Inspector Chadwick and Mr Johnston, the expert called by the Prosecution, put the proposition if a worker was required to work on the roadside, as was Mr Ingram, then he needed personal protection through the "buddy" system. The defence suggests there was no need for the "buddy" because there was a clear view to the north, and further, had the trucks entered from the north the presence of Mr Ingram on the site at the road side would have been clear to the truck driver. 63 As the charges before the Court have been particularised as relating only to the access to and exit from the worksite by the heavy vehicles the question of where and how the trucks turned and the need for a "buddy" support system are not facts relevant to the charge. 64 As to the fact the trucks have a red plastic bug deflector on the bonnet which adds to a high vehicle's blind spot, for some considerable 19 metres, this was not a matter over which the defendant had any control. The Court however finds it quite disturbing to learn that a vehicle which fails to comply with Australian Standards and from which a driver is unable to observe the first nineteen metres in front of him, is able to pass annual registration checks and remain on the road. It was clear from the evidence that there were no rules of procedure put in place by the lorry owners and/or drivers to address this blind spot problem. Certainly a system of work requiring a driver to walk to the front of his lorry and look to see if all is clear when a blind spot exists would be the minimum required. Up to the time Mr Olesen, the driver, gave evidence, some years after this accident causing death, nothing had been done to correct this system. 65 While it is clear that Mr Holzigal was never given any direct instructions by Mr Genner their long working relationship confirmed a common trust. Mr Holzigal knew he was altering a system of work in place. The prosecutor invites the court to approach Mr Holzigal's evidence as to his conversation at the morning tea break with Mr Ingram with caution, even scepticism. The court is more than sceptic: it rejects entirely the evidence of Mr Holzigal as to this conversation. The Court finds that part of Mr Holzigal's evidence is, in common parlance, a "verbal" by Mr Holzigal of Mr Ingram, the deceased. The Court finds Mr Holzigal assumed control of the site and took it upon himself to determine how the drivers were to access the site. Once this unsafe system of work was directed, and there were no flagmen, all persons on this site was exposed to severe risk as they went about their normal tasks. When the deceased went to hammer the witches hats down, he informed men on the site, yet no one assumed responsibility for protecting him. The company's defence is Mr Ingram was the foreman on site and safety was his responsibility. 66 Mr Holzigal while taking full responsibility for directing the trucks onto the site, denies he had any responsibility for their exit procedures. Part of the problem in this case is the very strange relationship of the Contractor, Mr Holzigal, to the defendant company and Mr Genner. As Mr Holzigal did almost all his work for the defendant company and the defendant company paid for him to do training courses, what existed was really a quasi employment relationship. While evidence confirms Mr Ingram was a very competent and experienced foreman on the site, on the day of the accident he gave way to Mr Holzigal in all matters of safety and clearly assumed the task of a labourer on site. As to this situation the defendant says simply Mr Ingram did not perform his duty and therefore the defendant company is not guilty of the breach. 67 The defendant submits Mr Ingram, while not formally trained, had the most effective and enduring method of training which is "on the job" training. The defendant relies for support for this proposition on the evidence of WorkCover Inspector Chadwick and the expert engineer, Mr Johnston: that "on the job training" is the best type of training. 68 In the case of an unskilled or semi-skilled worker such as Mr Ingram, I reject this submission. While nothing is as effective as a one-on-one instruction there was no evidence of any training programme on safety awareness formalised by the defendant during Mr Ingram's long employment. Mr Genner says he gave safety training on a one-on-one instruction with Mr Ingram while on the job over many years. He relies specifically on the instruction he gave on the site on the day before the accident to Mr Ingram. Further, Mr Genner was unable to produce any document of the defendant addressing safety procedures either directed to general site safety or task specific safety procedures. 69 As to the defence under s53 of the Act the defendant only has to raise a reasonable doubt as to the proof of the case alleged (Cullen v SRA (1989) 31 IR 207 per Fisher P at 210; State Rail Authority v Dawson (1990) 37 IR 110). 70 The defendant relies upon the words of Fisher CJ in Insp Davies v Prospect Electricity (unreported, Fisher CJ, No. CT91/747) in his defence to this charge: It is a version of the infinite regression of supervision argument which if accepted would mean that every well trained tradesman should be supervised or observed by a superior trained tradesman, and he seemingly in turn should be supervised himself by someone higher. The "lack of instruction" submission relied upon founders upon the same practical argument. No fully trained and experienced tradesman needs to be told to cross the road safely, or to be accompanied by a supervisor to ensure he does so ... The sole cause of the accident was that through some inexplicable inadvertence the two men did not attend to a safe system of work which they had undoubtedly been thoroughly taught and for many years had consistently followed, which failure led directly to a fatal accident which was in the full sense of the word, an accident. 71 The defendant therefore submits the accident occurred because of causes over which it had no control or in respect of which it was impracticable for the defendant to make provision. 72 In McMartin v The Broken Hill Proprietary Company Limited (unreported, Supreme Court of NSW, Grove J, 86/20002, 5 February 1988) said (at 11): In my view the defendant has demonstrated that it reached the limits of practicality in a practical sense in ensuring the presence of a pair of men to undertake this task. I am accordingly persuaded that, more probably than not, the fact which would otherwise give rise to the commission of the offence were due to causes over which the employer had no control and against the happening of which it was impracticable for it to make provision. 73 The defendant submits this case should be distinguished from a judgment of this Court in WorkCover Authority (Inspector Mulligan) v SRA of New South Wales (IRC No. 99/236, Kavanagh J, 21 May 1999, unreported but on appeal) In an examination of a complicated and involved system of communication where a number of employees were required to render the system effective, breakdowns in communication from lack of training led the court to find the breach proven. In that case the employees had to be blindly obedient. The defendant submits in this set of facts there was a simple practice and procedure in place and the "hands on" experience of these workers over many years was effective. The defendant submits the Commission should come to the same view as the Full Bench did in Dawson: . . . the facts well establish, on the probabilities, that the defendant laid down a safe and proper practice, and the evidence did not suggest the defendant had failed to use due diligence to see that the practice was observed. It seems to us to be established that the statutory defences available under s 53 are both made out in the situation of a casual failure by a supervisor to perform the duties and functions laid down by the employer. 74 In relation to each of the charges I have considered the s53 defence and the evidence directed to this defence. I note the defence raises a different onus "as to the probabilities" FINDINGS As to Summons No 4896 of 1998 : that the defendant failed to provide systems of work for the conduct of road works that was safe and without risk to health by ensuring appropriate control of all vehicular movements to and from the worksite: 75 I am not persuaded, on the onus, that the prosecutor has proven beyond reasonable doubt that there was not in place a safe system of work for the conducting of road works that was safe and without risk to health by ensuring appropriate control of all vehicular movements to and from the site. There is much in this system of work adopted by the corporation, on close analysis, that was unsafe such as requiring heavy loaded vehicles to do U-turns on busy roads. However, the summons limits the charge to the vehicle movements to and from the worksite. I am satisfied as to that aspect of this system of work there was a safe procedure in place. 76 I am persuaded had the system of work in place been conducted in accordance with the procedures established by Mr Genner, there would have been a safe access and egress from this worksite without risk to the health and safety of Mr Ingram. 77 The charge is dismissed. As to Summons No 4897 of 1998 : that the defendant failed to maintain systems of work for carrying out the road work construction that was safe and without risks to health by ensuring appropriate control of all vehicular movements to and from the worksite: 78 I am satisfied the defendant did continue to maintain the system of work for carrying out road work construction in the control of all vehicular movements from the worksite. From Mr Genner's visitation to the site the day before the accident and the delivery of signage to the worksite both the evening before and in the early morning on the day of the accident, there is before the court a clear indication that not only was there in place a safe system of work for the entrance and exit of vehicles but this system continued to be maintained to a rigorous standard. 79 The charge is dismissed. As to Summons No 4899 of 1998 : that the defendant failed to provide appropriate supervision of the aforesaid roadworks construction site as may be necessary to ensure the health and safety at work of its employees in the control of all vehicular movements: 80 I am persuaded that the defendant did provide the appropriate supervision for carrying out the road works construction. I am persuaded that had the work been properly conducted it would have been safe and without risk to health. The fact is Mr Genner went out with Mr Ingram the afternoon before the task to discuss the work procedures to be followed. Mr Genner not only attended at the work site with Mr Ingram but marked the site with Mr Ingram. Mr Genner also provided the proper equipment including road signage and witches hats. Such evidence persuades the Court that the appropriate supervision was conducted by Mr Genner. 81 The charge is dismissed. As to summons No 4898 of 1998 : that the defendant failed to provide appropriate training to control all vehicular movements to and from the worksite and summons No 4900 of 1998 : that the defendant failed to provide such instructions to ensure appropriate control of all vehicular movements to and from the worksite: 82 I am persuaded the defendant did not properly train and instruct as to the appropriate control of all vehicle movements to and from the worksite. 83 I am further persuaded that the defendant has not established to the requisite standard a defence to these charges. 84 The entire environment on this work site reflects the court's concern that Mr Ingram was not properly trained in the procedures to be followed when there was alteration of work procedures as to the access and exit of vehicles to the site. There is a foreseeable and obvious risk that windy conditions could affect road site works which involve the use of loose materials. There was no evidence before the Court there was in place any proper training given to Mr Ingram once the established procedure was varied. 85 Further, Mr Genner bears the responsibility for the way the working relationships on his work site are conducted. He chooses to sub-contract rather than employ Mr Holzigal but it is clear from the evidence Mr Holzigal assumed the responsibility on this site and Mr Ingram, the employee of Mr Genner, was neither appropriately trained nor instructed in how to meet the problem when Mr Holzigal assumed control. Mr Genner suggests Mr Holzigal had a phone so Mr Ingram or Mr Holzigal should have called him. Mr Holzigal was not Mr Genner's employee. Mr Genner cannot have it both ways. He cannot put obligations on Mr Holzigal but then say Mr Holzigal is an independent contractor for whom Mr Genner holds no responsibility, nor any responsibility for his actions. 86 In any event Mr Genner is responsible for the safety of the system of work he put in place as to the vehicle movements on and off the site and such a system must involve the proper training of his employees and the appropriate instruction to all persons involved in the system of work including his employees and others on his work site. If the system of work involves the activities of persons who are not his employees, Mr Genner has a responsibility under s15 to ensure they are properly instructed in the appropriate procedures to ensure his employees' safety from risk of injury. 87 An examination of this tragic event reveals Mr Ingram was not properly instructed nor trained to meet the situation where Mr Holzigal assumed control. He was further not trained nor instructed in what to do if a necessary variation to an established system of work was made. 88 The company through Mr Genner failed to properly instruct other persons he made an integral party of his system of work involved in the procedures for entrance and exit of heavy vehicles from the site. Mr Genner submits he asked Mr Duff to instruct the drivers to enter the site with the traffic from the north. This is categorically denied by Mr Duff. The quarry dockets provide no support for this proposition. There was no contemporaneous statement from Mr Genner in his statements to WorkCover or the Police that he had so instructed Mr Duff. Mr Genner further alleged the approach from the north in the line of traffic was standard practice of the drivers. However both drivers, Mr Smith and Mr Olesen did not concede that it was unusual to enter the work site as they did across the traffic flow. There was no instruction given to the drivers about access and exit procedures on this worksite. Yet they were integral contributors to Mr Genner's safe system of work. 89 Mr Holzigal gives no evidence of any particular conversation with Mr Genner about access to this worksite. He admits he changed the procedures, he knew flagmen were therefore required, yet he determined it was a quiet part of the day so they would not be necessary. He had no hesitation in changing a work system without approval. He felt free to do so. He was not properly instructed. 90 The long time working relationship of all the workers on this site brings before the court a focus on the vital need for training and instruction as to safety on work sites. There should be no situation where personal relationships get in the way of safe working systems especially when such puts at risk an employee's safety. Safe working procedures must take into account situations which require variation. There was not a single document Mr Genner could put before the court defining any of the defendant's systems of work, his training of workers or the instructions he gave to both his workers or others on his worksite. He was left to plead "on the job training". But on the job training is not sufficient especially when Mr Genner himself proposed: Mr Ingram was our supervisor on site and it was his instruction to bring the trucks in from the north. If they changed it, they should have rung my ute. Q. I would suggest to you that on a two man site such as this, at least Mr Ingram's role on that site was, he had multiple duties did he not? A. He was a leading hand. . . . Q. I suggest to you that flexibility is essential, is it not, on a site like this? A. To the point that any decision-making should have gone through Ken, it may have gone through Ken, I don't know. Q. Can you tell the court of any procedures your company had in place to ensure that some sort of hierarchy was preserved, to ensure that everyone knew that Ken would be the supervisor and so on? A. Do we have anything in place? Q. Yes. There is no formal policy anywhere so employees are always aware who the boss, supervisor of the subcontractors? A. No but an employee always over-rides a subcontractor now. Q. Why do you say that? A. Because that is just the way it is. Q. You cannot point to anything your company had in place to say that was told to everyone? A. I don't know that it was usual with any company. Q. It is a culture that develops? A. An employee has authority over a subcontractor. A subcontractor is something you dismiss when you finish with him. 91 Mr Genner added in his defence: Our whole company operates verbally. Our instructions to and from council is usually verbally. 92 The obligations of an employer under s15(1) of the Act is to ensure the health, safety and welfare at work of its employees in this case, Mr Ingram. The failure by the defendant to properly train or to properly instruct Mr Ingram, its employee, and to properly instruct both the drivers, Mr Smith and Mr Olesen and the grader driver, Mr Holzigal on the safe system of access and exit to this worksite seriously contributed to the circumstances leading to Mr Ingram's death. 93 The evidence makes clear any training or instruction given to Mr Ingram was always verbal. Although I have accepted on the balance of the evidence that there was a safe system in place related to the vehicle entrance and exit from this worksite, I do not accept that the appropriate training and instruction on site safety related to vehicle access and exit has ever been provided by the defendant company to Mr Ingram or the appropriate instruction was ever given to other workers on the site. Such neglect of a basic responsibility of an employer to properly train and instruct on safe working was a significant contributing factor to this tragic accident which cost Mr Ingram, from all the evidence a fine, hard working man, his life. 94 I find further the defendant has failed on the onus under s53 to prove the accident occurred because it was impractical for the defendant to make provision for the appropriate training of its employees and the appropriate supervision of all workers on this site. 95 I find these charges proven. 96 As to summonses numbered IRC4896 of 1998, IRC4897 of 1998 and IRC4899 of 1998 I find the defendant not guilty. As to summonses numbered IRC4898 of 1998 and IRC4900 of 1998 I find the charges proven. 97 I grant leave to re-list matters pleaded in summonses numbers IRC4898 of 1998 and IRC4900 of 1998 for submissions as to Penalty. *********** 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.