Industrial Court of New South Wales CITATION: Inspector Sara Bestre v Jontari Pty Ltd and Inspector Sara Bestre v Tempo Services Ltd [2006] NSWIRComm 373 PROSECUTOR: Inspector Sara Bestre PARTIES: DEFENDANTS: Jontari Pty Ltd and Tempo Sevices Ltd FILE NUMBER(S): IRC 5843 & 5844 of 2005 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1), s 8(2), s 28(a), s 28(b) - prosecution of cleaning contractor and wholly owned subsidiary providing labour to perform the contract - cleaners working early morning and late afternoon shifts - work performed in separate areas of school - lack of established systems of communication between cleaners working in separate areas of school - isolated location of school - risk of assault of cleaners not adequately addressed by safety system - system of "team cleaning" introduced after incident of assault - lack of adequate risk assessment - defences raise suggested impossibility of preventing assault by young and powerful intruder intent on criminal enterprise - defence addresses wrong issue by focusing upon the incident rather than the particulars of charge - offences proved - statutory defences raised - steps taken after incident indicate defendants able to comply with provisions of the Act - evidence does not establish that commission of offence due to causes over which defendants had no control and against the happening of which it was impractical for the defendants to make provision - defences fail. Cullen v State Rail Authority (1989) 31 IR 207 at 209 CASES CITED: Inspector Jessica Doyle v Gignen Pty Ltd and Tempo Services Ltd [2006] NSWIRComm 374 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 HEARING DATES: 23/10/06, 24/10/06, 25/10/06, 26/10/06 DATE OF JUDGMENT: 11/29/2006 PROSECUTOR: Mr R Reitano of counsel SOLICITORS: WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANTS: Mr J Phillips SC with Ms F Hancock of counsel SOLICITORS: Ebsworth & Ebsworth JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 29 November 2006 Matter No IRC 5843 of 2005 INSPECTOR SARA BESTRE v JONTARI PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 5844 of 2005 INSPECTOR SARA BESTRE v TEMPO SERVICES LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 373 BACKGROUND 1 Bonnells Bay Public School sits in large acreage surrounded by bush and in a somewhat isolated position from the town of Morisset. In November 2003, cleaning services were provided to the school by Tempo Services Ltd ("Tempo") under a contract with the State Contracts Control Board ("the Board"). At this time, Tempo used a number of subsidiary companies including Jontari Pty Ltd ("Jontari") to provide labour in order to fulfil its contractual arrangements with the Board. At Bonnells Bay school, two cleaners were rostered, generally working split shifts involving a morning shift and an afternoon shift and working at times that meant the cleaners generally arrived separately at the school. On 20 November 2003, Mrs Priscilla Jean King was employed by Jontari as a cleaner working at the Bonnells Bay school: Mrs Mary Hajnal was employed as the other cleaner at the school and generally started later than Mrs King. 2 On 20 November 2003, Mrs King commenced work and later admitted Mrs Hajnal to the school: she commenced duties in another area to that in which Mrs King performed her normal duties. At approximately 6.00 am, an unknown male entered the administration block of the school and assaulted Mrs King, putting his hands around her throat and dragging her into the Principal's office. In the course of demanding money, the intruder threw Mrs King to the ground, got on top of her causing her glasses to be knocked off and again put his hands around her throat. The intruder, after being informed money was not kept on the premises, attempted to sexually assault Mrs King and then left the premises. The incident was investigated by the WorkCover Authority. 3 On 14 November 2005, Inspector Sara Bestre commenced proceedings against Jontari alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 and also commenced proceedings alleging a breach of s 8(2) of the Act by Tempo. Allowing for differences in the statutory provisions, they were, however, both particularised in the same way and in the following terms: (a) a failure to provide and maintain a safe system of work for cleaners working alone and/or in isolated areas; (b) a failure to provide an adequate communication system for cleaners working alone and/or in isolated areas; (c) a failure to properly assess the risks of cleaners working alone and/or in isolated areas; (d) a failure to provide adequate supervision to cleaners so as to ensure their health and safety while at work; (e) a failure to adequately inform cleaners of the risks of working alone or in isolated areas and to provide them with adequate instruction and training of systems of work or procedures so as to ensure their health and safety while at work; (f) as a result of these failures Mrs King and other persons working at the site were placed at risk of injury. To these charges both companies entered pleas of not guilty. The hearing of these two prosecutions was immediately followed by the hearing of two further prosecutions concerning Tempo and another of its wholly owned subsidiaries, Gignen Pty Ltd. All four matters dealt with the alleged risk to cleaners working alone in circumstances of relative isolation and proceeded upon the same particulars. A significant proportion of the evidence and submissions were common to both cases: the judgment in this matter should therefore be read in conjunction with the judgment in Inspector Jessica Doyle v Gignen Pty Ltd and Tempo Services Ltd [2006] NSWIRComm 374. THE EVIDENCE 4 The contract between the Board and Tempo, amongst other things, dealt with safety in Clause 17. Prior to the commencement date, the contractor was to devise and propose to the Board an occupational health safety and rehabilitation management system that accorded with the New South Wales Government Occupational Health and Safety and Rehabilitation Systems Guidelines. The contractor's occupational health and safety management system was not to be implemented without the prior written approval of the Board. If the contractor failed to propose an occupational health and safety management system or if the Board disapproved of the contractor's proposal then the Board could devise or procure an alternative occupational health and safety management system and direct the contractor to implement that system. The contractor was obliged to comply with such directions. Under sub-clause 17.2, the contractor was to avoid causing personal injury or death to any person on or adjacent to the worksite and was to ensure that staff, sub-contractors and suppliers similarly avoided causing personal injury to or death of such persons. There were specific provisions in relation to ensuring ladders, scaffolding and other equipment used in the performance of the contract were securely stored when not in use. 5 Mrs King said that she had been employed by Jontari and working for Tempo as a cleaner for between nine to ten years in a permanent capacity. Prior to that, she had worked at other schools as a casual for the Government Cleaning Service. On 20 November 2003, Mrs King was employed in cleaning duties at the Bonnells Bay Public School. Her hours involved her arriving at 4.45 am and finishing at 9.00 am and then resuming at 2.00 pm and finishing at 6.00 pm. The morning shifts were worked initially by herself and the other cleaner would arrive at 6.00 am and work for two hours. Her routine was generally to open the front door, enter the office area, turn off the alarm, lock the front door from the inside and then begin work. All cleaning equipment was in a room outside the administration block. On this particular morning she arrived at the school between 4.30 am and 4.45 am, had entered the administration block, turned off the alarm, had made herself a cup of tea and opened the side door which allowed access to the cleaners' room where the equipment was stored. It was possible that she had opened a window next to the side door that gave access to the cleaners' room, but she could not recall whether that had actually occurred. Mrs King obtained the necessary equipment for mopping out the canteen situated a little way from the administration block. Having completed that task, she returned to vacuum the administration block. She was performing this vacuuming task at about 5.40 am or later, at a time after Mrs Hajnal had arrived; she was working more than three rooms away, quite a way from where Mrs King was working. While performing her task, Mrs King noticed that her vacuum cleaner had stopped. She walked back to the power point to see if the plug had been dislodged. At this stage, a person she had not seen before came from the interview room, placed a hand around her throat and carried her to the Principal's office. She was assaulted in the Principal's office by this person, who said he only wanted money and asked her where it was. She told him there was no money at the school and bit his hand. This intruder, who covered his face, told her to be quiet and to stay where she was. Mrs King stayed in the room for a time until she thought the intruder had left, then ran down the corridor looking for Mrs Hajnal to see if she was alright. Mrs King had blood all over her. Mrs Hajnal took her to the office where the police and ambulance were contacted: Mrs King was ultimately taken to the police station. 6 Mrs Hajnal usually arrived at approximately 6.00 am. Mrs King saw her arrive at work on this day, let her in the front door to sign the attendance book in the office after which she left by the side door to do her work. 7 Mrs King said she did not have a personal alarm, was not told about such a device, nor was she given one nor had she asked for one. She was not told by Tempo or anyone she worked for, including her area managers, about what she should do if she was attacked and was never told that she should not work alone. She was not told anything about locking the door of the room in which she was cleaning. Her supervisor at that time was Mrs Lynette Joy Thomas. At the time of the incident, Mrs King said she had not been given training about the dangers associated with working alone nor had she been told about any precaution she should take when working by herself. No one had ever told her about the security arrangements that applied to the school. 8 In cross-examination, Mrs King said she had originally worked for the Government Cleaning Service before working for Tempo. She had worked casually at Morisset Primary and Morisset High Schools and had been made permanent when taking up work with Tempo. She had worked for Tempo for nine or ten years originally starting on a two-hour shift but later taking up the longer hours position and in both positions working at the Bonnells Bay school. She had received no training from the Government Cleaning Service but the employees working there had shown her how to perform the work. 9 For the last five or six years, she had been given the keys to open the Bonnells Bay school as she was the first person to arrive at the school each morning. She opened the school and turned off the alarm. The school was not within the town area, was some distance from any major settlement and there was nothing around it but bush. There were extensive school grounds with a lot of trees within those grounds. There was an oval at the back of the school and the school was surrounded by a one-metre wire fence but there were no gates. 10 On 20 November 2003, Mrs King parked in the carpark which had a gate that she opened to enable the teachers to enter the parking area when they arrived. There was a distance of approximately 20 to 30 metres from where she parked her car to the front of the administration block. 11 When Mrs King first started employment with Tempo she received some training, such as how to use the polisher and strip the floors. There was no other training through the area manager although she accepted that a document entitled "Cleaner Training Record" was one which she had signed in a discussion with the area manager, whom she identified as Mrs Thomas. Mrs King had signed that document in November 2002 and it was also signed by a Ms Leanne Davis. Mrs King remembered another person being present and speaking to her about the document as it related to the Bonnells Bay school. Mrs King said that they sat down, had a cup of tea and Ms Davis asked her if she could perform the various duties listed. When Mrs King acknowledged that she could perform any particular type of work, that part of the document was signed. The woman performing this task told Mrs King that this was an induction although Mrs King could not remember everything that was said. In relation to equipment safety, the person asked her if she knew how to use the vacuum without tags and Mrs King told her that she could. Mrs King kept all her chemicals in one room but she did not have a register of what chemicals were kept on site. She thought there was a site folder in relation to chemicals. The person conducting this discussion had brought a copy of the Employee Handbook: Mrs King thought that it was contained within a big folder - someone brought the folder to the school for the staff to sign and she left the folder in the room with their cleaning equipment. Mrs King signed a document agreeing that she had received the handbook, read it and would abide by the policies set out in it. Mrs King was able to identify a cleaner's handbook that she had been given, but she did not know if it was the one that had been given to her at the meeting in November 2002. 12 Mrs King accepted that she was obliged to follow the company's policies and procedures. She had a number of keys to perform her work and understood that one of the reasons the school was locked was to protect the client's property and to protect herself. She would open the administration block in the morning, close the door behind her and lock it. She would then turn off the alarm. Mrs King agreed that she could also lock the side door every time she went out or came in but this took a lot of time and there was not a lot of time to clean the school. The school's general assistant, Mr Keith Litchfield, had keys to all the rooms. 13 Over the years that Mrs King had been at the school, nothing like the present incident had ever happened to her, nor had she heard of anything like this happening to anyone else at that school. She had been trained to operate the school's alarm using a code. The window next to the side door was not locked by a key but was a sliding window with a plastic clip to open it. 14 Mrs King agreed that the intruder could have entered the school from a number of directions and there was nothing to stop him getting over a fence or through the open gates. On this particular day, Mrs King agreed that Mrs Hajnal must have arrived before 6.00 am - her best recollection was that Mrs Hajnal had arrived approximately 20 minutes before the attack. She came in the front door. 15 The side door was unlocked by Mrs King to reach the cleaners' room and to get her equipment for mopping but she did not lock that side door behind her although she accepted that she could have done so. Having obtained the mopping equipment, she then went to the canteen to mop the floor. The canteen was in a separate building to the administration block. Mrs King opened the canteen and had been mopping the floor for approximately ten minutes when she took her cleaning equipment to the administration office to mop out the toilets, the sickroom and the staff room. Mrs King then had to go to the cleaners' room to get the vacuum cleaner and did so by going out the side door taking her mop and bucket and bringing back the vacuum cleaner. In her estimation, it took about five minutes or less to go to the cleaners' room and come back to the administration block. 16 A document entitled "Working Alone" had been seen previously by Mrs King but she could not place exactly when she had seen it. She was not sure whether she had seen it before or after the incident, but did not think she had seen it before the incident. Her work was mostly performed alone. Mrs King had never travelled to work with another person working at the school as suggested by that document: where she parked had ultimately been lit and the pathway was lit although the lights were not always working. The document referred to securing the building when she arrived for her shift and she understood that she was to close the door behind her and lock it. That was a commonsense thing to do and she did that when she arrived at the school. The document spoke of her always wearing her personal identification, however she had no such personal identification apart from a uniform which she wore. In accordance with this document, she had always used the one entry point to gain entry to the school, being the front door and she would lock it behind her when she entered the building. As to being aware of emergency telephone numbers, she thought that 000 was the number she was aware of, but there was no other security number of which she was aware. Mrs King said that she did not have a mobile telephone at work with her and she used the office telephone. Any suggestion by Mrs Hajnal that Mrs King had a mobile telephone was wrong. She had been given a mobile telephone by her husband not long after the attack but she did not have it while working at the school. 17 Mrs King said she could not remember being told to lock the building in which she was working, such as the administration block, which was one building. 18 On the morning of the incident, no other door had been left open in the administration block other than the side door. However, Mrs King had left the canteen open as she had been told to do because of deliveries by the baker and others - if the canteen was not left open, Mrs King would have to return constantly to open the door, and the Principal had told her to leave the door open. Mrs King accepted that she left the side door open contrary to the instructions given in the document entitled "Working Alone". That door had been left open because she was going in and out all the time. In 13 years working at the school, she felt confident and not threatened by possible attacks. 19 The intruder had appeared suddenly without any prior warning and Mrs King said that she had no cause to think that anything had gone wrong during the course of the morning. She thought that he might have come out of the interview room approximately 10 feet from the side door. He had grabbed her very strongly and had pushed her and carried her to the Principal's office. He was a big man between 180 and 185cms tall and she thought that he was in his thirties. Mrs King was about 5'3" or 5'4", weighing approximately 60kgs and was between 52 and 53 years of age at the time of the incident. She tried to kick him but she had no real ability to fight the attacker - he was too big and too strong although she screamed until he told her to shut up. Mrs King accepted that she had no time to telephone anybody nor did she think she would have had time to activate a duress alarm. The whole incident took probably no more than a few minutes. Mrs King thought her screams could not be heard by Mrs Hajnal because of the distance at which she was working. 20 The side door had not been left open for the general assistant Mr Litchfield as he had a key to that door. Mrs King left the side door open so that she, Mrs Hajnal or whoever worked there and who wanted to come in could use the side door. If the door was locked and somebody wanted to come in they could knock, but Mrs King might not be there to let them in. Sometimes, teachers came in early and the door was open. 21 There was a blue folder kept in the office and Mrs King had access to it. There was a message system where supplies could be ordered and, although she could use it as a means of communication with the area manager, it had not been used for that purpose. Mrs King accepted that there was a book in the folder that could be used for the purpose of leaving messages for the area manager. Mrs King did not believe that she had seen a book entitled "Tempo Safe Work Practices". 22 In re-examination, Mrs King said that nobody from Tempo had ever told her to lock the side door nor had she received a document telling her to lock the side door. No one ever told her to check the side door. When Mrs King arrived in the morning she did not check to see if the windows or the side door were locked or unlocked. No one had told her to do that and she had locked up the night before - unless the Principal was still present, she would lock the building. She was never instructed to do anything in relation to the window next to the side door when she arrived at work or when she left. Mrs King had only worked one or two days with Mrs Hajnal when the incident occurred. She had never operated a duress alarm. The document entitled "Working Alone" was one that she could not remember anybody sitting down to go through it with her. 23 Mr James John King was Mrs King's husband and was present in Court while his wife gave evidence. He stated that he had given his wife a mobile telephone after he had purchased a new mobile telephone and that was after the incident that occurred on 20 November 2003. His mobile telephone had become wet so he purchased another and swapped the SIM card over and his wife used his old mobile telephone. Prior to 20 November 2003, to his knowledge, his wife did not have a mobile telephone. In cross-examination, Mr King said that he purchased the new mobile telephone in December 2003 or January 2004. Mr King said he was positive that his wife had been given the mobile telephone after the incident and that she did not have a mobile telephone at the time of the incident. 24 Ms Sara Bestre was a Senior Inspector with the WorkCover Authority when the present proceedings were commenced. She had commenced employment with the Authority in approximately January 2001. She was attached to a particular team involved with service industries, including areas such as cleaning, hospitality and financial services. Cleaning was always part of the work. She had also investigated hotels, clubs, sporting facilities, areas of manufacturing, banks, building societies and the work was varied. Ms Bestre had taken photographs in relation to the incident at approximately 4.30 am. She had attended the site at that time because she wanted to see the nature of the lighting and the surroundings at approximately the same time that the cleaners would be at work. She attended that site alone but had made arrangements for the cleaners to be there when she arrived. In relation to Mrs King, in the nine or ten years working at the school and approximately three years with the Government Cleaning Service, while nothing like that had happened to her in the past, there were other incidents including an afternoon a few months prior to the incident when a group of boys had acted in a somewhat threatening manner to her in the playground while she was alone. The boys had pulled their pants down and Mrs King reported that fact, but no one was particularly concerned about the incident. Ms Bestre was not aware of similar assaults at that school but had dealt with an incident at another school and was aware that there were other schools where there were incidents involving cleaners. Two years previously she had investigated a high school at Blacktown where Tempo was the employer and the cleaner had been assaulted on a number of occasions. The assaults had not been undertaken by students but by people coming into the school grounds after hours. Ms Bestre had issued Improvement Notices to the company about that situation which might have been issued to a subsidiary of Tempo. The person involved did not have an extended period of time off work and a decision was made not to conduct a full investigation and to issue a number of Improvement Notices to the school, to Tempo and the subsidiary company involved. In relation to this incident at Bonnells Bay school, Ms Bestre could not remember if an Improvement Notice was issued to the Department of Education: no proceedings had been commenced against the Department. 25 The school was in a relatively isolated area with a low level fence around it and no gates. Ms Bestre accepted that people who were not authorised to do so could easily gain access to the school. She also accepted that there were many industries where people worked alone. In her experience of the service industry, employers who had workers working alone had a system in place in case of an emergency. They would usually recommend that there be a telephone available. There were telephones at the Bonnells Bay school which could be used during the time that Mrs King was there. Ms Bestre was unable to recall other circumstances where the WorkCover Authority had prosecuted an employer because a cleaner had been attacked. Ms Bestre could not agree that the work of cleaners could be regarded as low risk in terms of being in danger of attack. She accepted that there might be other areas of employment where there were higher risks of attack by third parties, especially where large amounts of money were kept. 26 The circumstances of the assault on Mrs King were known to Ms Bestre and the fact that the intruder had come suddenly upon Mrs King. Allowing for those circumstances, Ms Bestre thought there was an opportunity to use a duress alarm if it had been supplied. If working alone, the alarm could sound to a base for action. It might be that, if the incident was over in a few minutes, assistance might not arrive in time but the circumstances of a response were unknown. Ms Bestre was aware that there was a local security firm that patrolled the area and that Tempo had not investigated using that form of assistance for their cleaners. She did not suggest that every cleaner working in New South Wales needed a supervisor or a security guard to be present. 27 The document entitled "Working Alone" was not regarded by Ms Bestre as a form of risk assessment but rather a "mixture". A risk assessment identified risks, assessed them and then offered particular control measures. The document partly did that: importantly, the document put the onus back on the cleaner to ensure their own safety. It was commonsense that, when working alone, persons would lock themselves in but there might be a number of considerations. It was also, according to Ms Bestre, incumbent on the employer to check that the system worked and was actually being applied. She would have written this document in very different terms. There were aspects of the document that the cleaners could do nothing about: if there was no lighting in the parking area or on the path to the building what was the cleaner to do? If there was no public transport, what was the cleaner to do? 28 The Improvement Notices issued to Tempo were dated 16 March 2005 and the proceedings against the companies were commenced on 14 December 2005. On 17 February 2005, Ms Bestre had applied for an occupational health and safety management position with Tempo and by 1 March 2005 she had been informed that her application was unsuccessful. Ms Bestre felt there was no conflict of interest in remaining involved in the proceedings against Tempo since she had discussed the situation with her supervisor and had already performed a large amount of work for the investigation by the time her application for employment was unsuccessful. For those reasons she decided to continue with the matter. She rejected any suggestion that she was biased against Tempo because she had failed in her job application. 29 The WorkCover Authority had become aware of this incident because Mr King made contact with it and raised the matter. Within WorkCover there was a cleaning project looking at long-term claims in the cleaning industry when this issue involving Mrs King arose. At one stage another Inspector, Derek Pryor, was involved in the matter. Ms Bestre was aware of another incident that happened subsequently at Llandillo public school, involving an assault on a cleaner and occurring in mid-October 2004. Ms Bestre did not think proceedings were commenced in relation to the Bonnells Bay incident after WorkCover became aware of the Llandillo incident and as far as she could recall, the two incidents were treated separately although there were some common features. 30 In relation to the WorkCover project dealing with cleaners, one issue looked at was the security of cleaners working alone. Ms Bestre said that there were a number of presentations made to various groups and one of the issues spoken about was cleaners working in isolated situations. These isolated situations had been identified as a risk group. She could not recall there being any directives issued as a result of the work of that project team, but there were a number of professional associations involved with cleaning that were spoken to and given information about concerns relating to cleaners working in isolated situations. 31 Mrs Hajnal had been employed by Tempo or one of its subsidiaries as a cleaner for a few years and on 20 November 2003, was working at the Bonnells Bay Primary School. She had worked on prior occasions at the school in a casual capacity and had also worked with Mrs King at the school on a few occasions. 32 On the day of the incident, Mrs Hajnal arrived at the school between 5.15 am and 5.20 am. Mrs King usually kept a lookout for her and Mrs Hajnal would normally go to the side door that would either be open or it would be opened for her by Mrs King. They had a cup of tea and Mrs King would then unlock the cleaning room. Mrs Hajnal went to her normal section to undertake her normal routine which was a few blocks down from the administration block. Mrs King would normally continue cleaning the administration area. Mrs Hajnal could not see Mrs King from where she worked because there was a building between them even though they were probably 100 or 150 feet apart. 33 Mrs Hajnal was vacuuming a classroom when she noticed Mrs King at the door trying to get her attention. Mrs Hajnal opened the door and Mrs King said that she had just been attacked and had come down to see whether Mrs Hajnal was alright. Mrs King had lost her glasses and could not ring the police because she could not see the numbers so Mrs Hajnal walked her back to the administration block in order to call the police. Mrs King had blood on her face, looked very distraught and was shaking. When they worked in their separate areas they never had to communicate with each other although Mrs Hajnal thought they could use a mobile telephone. Mrs Hajnal had a mobile telephone but did not know whether Mrs King had one: normally, they did not have to communicate with each other from their separate work areas They each had a key to the cleaners' room and, if they needed anything they would go back to the cleaning room and open it. 34 Prior to 20 November 2003, most of the job training that Mrs Hajnal had received was on the job training at Morisset High School. The head cleaner showed her how to use the products and the equipment and that was about it. There was no real training in the safety aspects of working as a cleaner although the head cleaner did explain where to wear gloves and other matters. There was no training about working alone and Mrs Hajnal was not told anything about what to do with the doors of the building in which she was cleaning once she entered those buildings. She had always worked on her own and was not told anything about whether she should work on her own or not but both cleaners had their own sections. 35 After the incident, there was a change and Mrs Hajnal was told to keep the doors locked while working and was told that by the area manager, Mrs Thomas. Another change was that after arriving at the school, she was to wait until the other cleaner arrived so they could unlock the buildings together. At no time before the incident was Mrs Hajnal offered a duress alarm, although she was later offered a duress alarm at another site. Ultimately, Mrs Hajnal did not receive the alarm. 36 In cross-examination, Mrs Hajnal said that normally at every site the employees would exchange telephone numbers with the head cleaner. She thought that, when Mrs King was going on holidays, they had met and given each other telephone numbers and thought she had Mrs King's home telephone number and the mobile telephone number as well. Mrs Hajnal knew that Mrs King had provided her telephone numbers and had told private detectives that she could communicate with Mrs King using a mobile telephone. 37 Whether Ms Hajnal entered the school by the front door or the side door depended upon where Mrs King was when she saw her arriving. She did not have keys to the building. In approximately two years of working for Tempo she had not heard of a similar incident that had happened at the school to Mrs King and she had no warning that it would happen on that day: she did not see anyone acting suspiciously around the school. 38 Mrs Hajnal was shown a copy of the "Working Alone" document and did not think that she had seen it before but she was not sure. She could not recall receiving a document like that with her payslips. 39 When she started at Tempo, Mrs Hajnal was not given an induction at Morisset High School and was not told about the job by a trainer or an area manager or given an explanation of the work. After she had applied for the job, she was told to start work at Morisset High School and went to that school to meet the head cleaner. She had been told that the head cleaner would show her what she had to do and how to use the equipment and the chemicals. Mrs Hajnal said she had three months on the job training with the head cleaner instructing her what to do. The head cleaner told her that she had to be careful not to leave doors unlocked because people might be inside and steal things and the doors needed to be locked as well for her own safety. These things were discussed between them and about how other people had been attacked before and previous break-ins and other events. Mrs Hajnal did not remember exactly what had been said by the head cleaner but she thought that, at the time they started work in the morning when it was so dark, she naturally felt uncomfortable leaving doors unlocked or open. She had observed other cleaners working at the Morisset school locking themselves in the building. 40 After the police had been contacted following the assault on Mrs King, they arrived some ten or fifteen minutes later. After 20 November 2003, one change in the work was to keep the doors locked where she was working but she would normally do that especially at that time of the morning, and would not feel comfortable if the doors were not locked. Mrs Hajnal said she might have had doors unlocked at times or open when it was lighter, or when there were people around, as teachers and children arrived at school. The side door was not always open. Sometimes, she would enter the building by the side door and it would be opened for her by Mrs King. Mrs Hajnal did not know whether the side door was to be left open after she started work becauses she would go to her own area and Mrs King then worked in the area she usually cleaned. In doing that work, Mrs Hajnal did not have to come back through the side door. 41 Mrs Thomas had been employed as a cleaner by Tempo from 1988 and was later engaged as an area manager. In 2003, she was an area manager and part of her responsibilities related to the Bonnells Bay school. Mrs Thomas was not required to participate in making risk assessments and did not perform a risk assessment in relation to the Bonnells Bay school. She saw employees at the school when dropping off chemicals and equipment they had asked for and once a month she performed a quality assurance exercise. 42 Prior to the incident, the measures in place to deal with the safety of cleaners included a work safety book that the cleaners were to read. Those books were distributed in 2002 and, by mid-2002, trainers were sent to talk to the cleaners about the content and to have them sign off. However, Mrs Thomas was not involved in this training. There were also conversations with the cleaning staff about security on site if it arose but she did not recall having such a conversation with Mrs King. 43 After the incident she was told by Jim Johansen from Tempo that the cleaners were to work together and in the same room - this was not done prior to the incident involving Mrs King. Mrs Thomas could not recall any other changes being introduced although, for a few weeks after the incident, security guards were at the school to escort the cleaners into the building. She was not involved in any investigation conducted by Tempo into this incident nor was she aware of any such investigation. She was not required by Tempo management to do anything in response to the incident but, after the incident, a newsletter was sent to the cleaners dealing with security. 44 Prior to the incident involving Mrs King, there were personal alarms available if requested by cleaners but not everyone had them. The alarms made a loud noise but there were no other types available and this did not change after the incident. It remained an option for cleaning staff after the incident to seek a personal alarm if they wished to do so. 45 In cross-examination, Mrs Thomas said that in 1997 she had applied for and been successful in obtaining a full-time training position with Tempo. It was about this time that the company had won the contract for the cleaning of schools. She conducted classes dealing with work at schools, manual handling, the use of chemicals, security and safety in the schools. Cleaners were told that they had to know about the alarm system, the opening and closing of buildings and that rooms were to be locked while they were working in that area. This was a requirement of Tempo. 46 As the area manager, Mrs Thomas performed quality assurance assessments, employed people, attended sites to see if work was being performed safely and to inspect the equipment being used. She noted any problems at the site and checked security matters. Her normal hours were 5.00 am to 4.00 pm although, from time to time, depending on the circumstances and needs, they could extend to 6.00 pm. 47 For eight years, Mrs Thomas had been the area manager for the Lake Macquarie area taking in the Bonnells Bay school. There were over 100 sites in that area and the average number of area employees was between 200 - 300. She controlled the hiring of new staff, performed interviews, used the blue folder to explain the work, the chemicals used and explained issues such as manual handling and security. The Tempo booklet entitled "Safe Work Practices" was kept in a blue folder at each site. People were asked to read this document. 48 The number of people employed at a site depended on the nature of the work to be performed and there were usually one, two or more cleaners used on site. There were a number of sites where only one person worked. There had been no risk assessment carried out for the security of the one person sites. Mrs Thomas gave instructions to cleaners to close areas in which they were working to stop break-ins, the stealing of equipment such as computers and the starting of fires. After the incident, the cleaners were requested to work in the same room together but she was not aware if that practice continued. 49 Mrs Thomas knew of no circumstances where a cleaner had been attacked in the Lake Macquarie area or in any other part of New South Wales. Prior to the incident involving Mrs King, no one had raised any concerns about safety at the Bonnells Bay school or in the Lake Macquarie area. 50 It was after the incident involving Mrs King, in approximately June 2004 that Mrs Thomas transferred to Taree. When the Safe Work Practices book was distributed during 2002, Mrs Thomas could not recall any particular instructions being given about the Bonnells Bay school. A usual school building was one large building with internal classrooms and an entrance at the front and back of the building. The Bonnells Bay school was not contained within one school building and there were a number of buildings to be cleaned. 51 Ms Patricia Jane Peters was the Principal at Bonnells Bay school and had held that position for five years including during 2003. Tempo had the cleaning contract for the school some two years prior to her appointment. There had been no discussions with Tempo at the school about the security of the cleaners nor were there any discussions with Tempo about risks associated with the cleaners' early hours of commencement. Ms Peters had informal discussions with the cleaners about work practices and about the benefit of working in pairs in the morning. These were informal discussions since she was in no position to give a direction to them. In her experience, working in pairs was expected by Tempo but she understood that it was difficult to do the work that way because of the short time available to clean the school. Ms Peters had no specific recollection of talking to Mrs King about these matters. 52 Ms Peters had not performed any risk assessment regarding the work of the cleaners but there was a policy that the teachers were to lock the doors and the windows to reduce the risk of intruders being on the premises when the cleaners arrived. 53 When the alarm was activated, a security firm would answer the call and the security company inspected the premises and conducted patrols while the school was vacant during holiday periods. For a few weeks after the incident involving Mrs King, security guards escorted the cleaners onto the site. Security screens were also placed on the unguarded window next to the side door. Approximately 12 months after the incident, Ms Peters received a formal risk assessment from Mrs Davis from Tempo and this document was discussed. 54 In cross-examination, Ms Peters accepted that no similar occurrence had taken place prior to the incident involving Mrs King. The area in which the school was located was isolated with two major roads nearby but no housing and shops being a considerable distance away. People usually drove to get to the school. The cleaners had raised some concerns about security lighting but nothing about intruders or fears of intruders. The need to lock up the building was reinforced with the teachers ensuring that was done and that information was placed in the cleaners' pigeonholes and discussed with them. 55 There were no constant security patrols of the school area. The security company would respond if the alarm was activated. The security company performed random visits to the school. Ms Peters was not aware of any direction to the cleaners by Tempo that they were to keep the doors locked while working inside the building but she became aware of that being required after the incident. She did not know if that had been a requirement before the incident. She had received no complaint about the cleaners leaving windows or doors open or any safety concerns being raised about the cleaners working in the morning. 56 There was a communications book available to be used by the cleaners and also Ms Peters to raise matters with Tempo. She used that book from time to time. The cleaners had access to telephones in the administration block and there was a list of emergency numbers and the school security number beside the telephone. Ms Peters understood that the cleaners were still working together in the morning. Ms Peters stated that Tempo had never asked about the random security patrols but did discuss that matter after the incident involving Mrs King. 57 Mrs Sandra Lee Small had been employed as a cleaner with Tempo and had worked for three or four years at Bonnells Bay school. She was not working during November 2003 because of a workplace injury. Prior to ceasing work because of her injury, her hours in 2003 at the school were 5.00 am to 7.00 am. She worked with Mrs King who was always at the school when she arrived. Mrs Small cleaned a particular part of the school namely two rows of classrooms at the back of the school consisting of a demountable and a brick building. Mrs King cleaned the administration office and the rest of the school. They cleaned some tables and floors together but on most days they would clean their own area alone. She did not work an afternoon shift at the school. 58 In relation to training, Mrs Small said that she had three hours at Morisset school which constituted an hour with each of the cleaners working there. She was shown what was needed to perform her cleaning task. In relation to security, she was told to lock the doors when entering a building and to keep the door locked if that door was locked when she arrived. She was told nothing about security arrangements at Bonnells Bay school and had not been told by Tempo how to look after her own security at the school. 59 She was told by Jim Johansen when she came back to the school in January 2004 that things would be different but when she resumed work nothing had changed. Sometime later Mr Leonard Benson and Ms Davis came to the school and told her that the cleaners had to work together or there would not be a job. Mrs Small could not recall when this happened. 60 Before the incident involving Mrs King, Mrs Thomas was her superior but Mrs Small had no discussions with her about safety at work - she did not deal with Mrs Thomas but a more junior person. She had seen Mrs Thomas delivering chemicals to the school but not very often. 61 When arriving in the morning, Mrs Small would use the side entrance into the administration block and could not remember if it was locked or unlocked but she did not have a key to that door. When they were both working at the school, the cleaners could not contact each other but would have to look for each other if contact was required. There were no personal alarms available until after the incident when Mr Benson issued an alarm to her. She put the alarm in her pocket but it would go off by itself. 62 In cross examination, Mrs Small said that the training she received at Morisset school was not "over-stated" but when a cleaner walked into a room they had to lock it. She had been told that the school had been broken into and that the doors were to be locked. She always had a mobile telephone with her because she usually did not have access to telephones in the classrooms. 63 While at Bonnells Bay school, she had raised no concerns about safety and had heard nothing like the incident involving Mrs King as having occurred before. She was aware that computers were stolen from schools and that there were broken windows but never a confrontation with an intruder. In performing her work, she doubled-checked the windows and doors after the teachers left but she did not know that the teachers were to ensure that these were locked - some were left open in any event. After the incident, she was told by Mr Johansen during a social contact that she was to lock up behind her in the areas she was cleaning. She did not know that she could obtain a duress alarm until after the incident involving Mrs King. A cleaner from Tempo had told her that she was not allowed to bring a mobile telephone to work but she refused to work without having access to her mobile telephone. 64 Mrs Philippa Swalwell had been employed by Tempo in April 2004. She had received no training when she started but walked around with another cleaner for a day. She had worked at the Bonnells Bay school and had worked with Mrs Small. They both started work at the same time and Mrs Small was usually at the school when Mrs Swalwell arrived. When she initially commenced work, there were separate areas to be cleaned. She cleaned the administration block and the first five blocks and Mrs Small did the rest of the work. Her hours were 5.00 am to 9.00 am and 2.00 pm to 6.00 pm. Mrs Small also worked the first shift but did not work the afternoon shift. 65 This work method changed when Mrs Swalwell was told that they were to team clean and work together in the one building. She could not recall when this change became operative but it was a few months after she started work at the school. At the beginning of her employment she used to walk to school but when the two of them were to start at the same time, Mrs Small drove her to school. She was informed by Ms Davis and another man that they were to do team cleaning and were to start work together. At the beginning, she had no personal alarm but later obtained such an alarm. 66 The alarm that had been provided did not work well and would go off in her pocket and could not be heard at a distance. Mrs Swalwell accepted that she had never been threatened at school and it was another cleaner who told her to lock herself in when she arrived and to lock up when she left. The side door to the administration block was opened by keys but it was always locked. 67 Mr Leitchfield had been employed for eight years as the general assistant at Bonnells Bay school. He knew Mrs King and that she arrived early in the morning. His normal commencing time was between 6.20 am and 6.30 am and he would see the cleaners during the morning. He had keys to the school although, from time to time, if he was with a cleaner she would let him into buildings. He would enter the administration block through the side door which was usually locked and he could not recall it being unlocked. He recalled that there were episodes of vandalism at the school that had from time to time become fairly regular, especially at weekends. 68 In cross-examination, Mr Litchfield said that he was not aware of any incident of assault that had occurred prior to the incident involving Mrs King. His practice was to lock doors behind him. He was aware of an elderly person, an ex-patient of Morisset Hospital, who rode his bicycle through the school. He said there was no arrangement for Mrs King to leave the side door open for him. Mr Litchfield said that the personal alarms were "pathetic" in sounding a warning. In his experience, the cleaners usually locked themselves in the classrooms while performing their duties. 69 Leonard John Benson was employed by Tempo as the Group General Manager for Government Cleaning Contracts. He was responsible for the company's contracts with the Government, including the cleaning of schools, police stations, offices under the Attorney-General's Department, TAFE colleges, premises occupied by WorkCover as well as having responsibility for commercial contracts. In this position he was responsible for operations, customer service and quality control and Regional General Managers reported to him. There were usually four Regional General Managers. Mr Phil Norris was the Regional General Manager for the area in which Bonnells Bay fell and was responsible for reporting to Mr Benson and, in turn, area managers reported to Mr Norris. 70 Mr Benson had no direct dealings with Mrs King or any of the cleaners employed at Bonnells Bay school. His dealings with Mrs Thomas came through four-weekly management meetings in the Hunter region with Mr Norris. Tempo had an occupational health and safety unit with a Group Risk Manager and an Occupational Health and Safety officer. 71 After the incident in November 2003, he personally took no steps to address that incident but spoke to Mr Norris who proposed plans and actions. He asked Mr Norris to keep him advised of those plans and proposed actions. He reviewed the incident with Mr Allen Evans, the Occupational Health and Safety officer and travelled to the site in October or November 2004. This review was undertaken because he became aware that WorkCover was making enquiries and continuing investigations. Mr Evans performed a risk assessment and made recommendations, including ensuring that team cleaning took place in the early morning part of the shift, that cleaners be instructed to lock themselves in buildings when working, to follow protocols in relation to outside cleaning and ensuring that they received duress alarms. Mr Benson observed that most of these steps had been implemented as a result of the November 2003 risk assessment undertaken by the area manager. 72 In relation to duress alarms, Mr Benson had some involvement in the decision making and implementation of the decision to make duress alarms available. They had been made available before 2004. Another person had looked at the duress alarms available so Mr Benson was not personally aware of the range of alarms available in 2004. Mr Benson had not analysed the procedures at Bonnells Bay school nor at any other specific school. 73 In June 1996, Mr Benson prepared a discussion paper dealing with the security of the cleaning staff. The paper noted that Tempo staff worked in a variety of locations from large complex multi-cleaner locations to remote single cleaner sites. The memorandum then stated: Many staff have expressed concern regarding their security/safety at school sites for the following reasons: · unauthorised persons on site; · having to work alone on a single cleaner site; · having to work alone in a remote area at a multi-cleaner site; · accessing areas where external lighting is inadequate - in some cases external lighting is installed but is not made available during cleaning hours · limited access to telephones - phones are generally available in administration areas however some staff worked considerable distances from this area or they may not have a key to access the administration area; · threats from unruly students during or after normal school hours. The document identified unauthorised persons on site as including people using school premises, verandas etc to sleep overnight, people found on the site who were alcohol or drug affected, people who repeatedly visited the site for no apparent reason, people who used the schools grounds as a thoroughfare, teenagers or children who utilised outdoor facilities on site and other persons on site. 74 All cleaning staff and area managers had been asked to provide feedback on security issues at school sites. There were 114 responses to the survey with 74 reporting unauthorised persons on site as a cause of concern, 47 reporting a lack of adequate lighting (in some cases, lighting was provided but not turned on because of costs factors), 26 reported concerns due to working alone at a single cleaner site or in a remote area at a multi-cleaner site and four respondents identified that there was no access to telephones. 75 Mr Benson's paper carried eight recommendations and all of them were acted upon except the recommendation to consider the issue of a rescue whistle to any cleaner who requested it. The recommendations included that a document jointly prepared by the company, the Department of School Education and the relevant trade union be developed entitled "Procedure to follow where an unauthorised person is identified at a school site". That document was to be issued to all staff. The Department was to advise on current initiatives to reduce the number of unauthorised persons on school sites after normal hours. Tempo area managers were to investigate those sites where telephone access was not currently available and were to discuss it with the school principal. A further recommendation was that Tempo was to investigate possible team cleaning and to review hours of duty at multi-cleaner sites where individual cleaners had raised concerns over security. Some adjustments to cleaning times and working routines had already been made as a result of the survey results. Reporting systems were also to be implemented to ensure that senior management were made aware of all serious incidents, for example, physical assaults. 76 In mid-October 1996, Mr Benson wrote a memorandum concerning cleaners' security, noting that discussions had been held with the Department of School Education and with the union regarding the safety of staff who were required to work alone in remote areas. The company and the union had discussed a series of guidelines that could be issued to reduce the risk to staff in these situations. A simple checklist was attached to the memorandum to be issued to all staff with their next payslips. Copies were also to be issued with an explanation to all area managers for their information. It was to be emphasised to area managers that every effort should be made to organise shift times and work routines to reduce the risk to staff in these situations. 77 The checklist document referred to in that memorandum was entitled "Working Alone - What you can do now!". The document contained the following 12 points: 1. Make sure your car is securely parked, locked and all windows closed. 2. Park in lighted area if possible. 3. Make sure there is adequate lighting to and from your vehicle and in your work area. 4. If you work with other cleaners where possible travel to and from work with them. 5. Secure the building when you arrive on shift. 6. Report broken door locks, windows, lights etc immediately. 7. When leaving work try not to walk through dark areas by yourself. 8. Always wear your personal identification. 9. Check workplace with area manager to see if it has a working alarm system and who will hear it. 10. Use only one entry point to the building (minimise entry points for intruders). 11. Check where closest phone is and learn the emergency service number. 12. Check public transport timetable to minimise time spent waiting for public transport. 78 A cleaner had raised the issue of unauthorised people on site when working alone which Mr Benson said led to discussions with the union and the issuing of the "Working Alone" document. The use of working in teams was implemented at a range of sites and consideration was to be given to the hours of duty to see if it was possible for employees to work together. A work schedule was developed for schools, including Bonnells Bay, and the teams approach was implemented everywhere. The intention was that the "Working Alone" document would be issued with payslips: Mr Benson did not recall if he followed that up to ensure that it was issued to all the employees. 79 In late October 1996, Mr Benson wrote a memorandum regarding the document "Procedure to follow where cleaners feel threatened at a school site". The memorandum noted that this procedure for cleaners to follow when they felt threatened at a school site had been developed through consultation with the Department and the union. Area managers were to ensure that a copy was hand delivered to each school site and that correct telephone numbers were inserted, that the principal and cleaning staff were aware of the procedure and that cleaning staff had access to a telephone during their working hours to call the emergency numbers. If there were any problems, the Regional Manager was to be advised. The memorandum finished as follows: Given the recent trend of violent activity, particularly at school sites, it is important that this procedure is effectively implemented at all schools prior to the end of Term 4. It may be appropriate to incorporate this activity with the changeover of site folder material. 80 The document entitled "Procedure to follow when you feel threatened at a school site" advised cleaners to go directly to the administration area and lock themselves in. If cleaners were working at a multi-cleaner site, they were to advise other staff and then proceed to the administration area and lock themselves in. They were to call the police or the security service where those numbers were provided, as well as the area manager's telephone number and advise of the actions taken remain inside. They were to write down a description of the person together with any other details of the incident in the communications book. They were to write details of the time, date and the time that any help arrived. They were to advise the Principal of the incident and those areas that were not cleaned during the shift when the incident occurred. They were to discuss any ideas they had to improve their security with their area manager. 81 The "violent activity" mentioned in Mr Benson's memorandum of late October 1996 was not activity he understood was directed at cleaners but was a reference to incidents where he understood a student had shot himself, and other episodes such as racial issues arising amongst students. He understood the procedure document had been hand delivered and when he visited sites he found it was the top document in the company folder that was kept at each site. 82 In March 1997, the Hunter Regional Manager Mr Norris had written an information newsletter to all staff dealing with, amongst other things, cleaners' security in which he stated: In recent months Tempo have issued guidelines to staff who work alone and procedures to follow when you feel threatened at work. In addition, Tempo have sourced and issued a small personal alarm for staff who believe they are exposed to this form of risk. If you consider it necessary to carry such alarm, you should contact your area manager to discuss this issue. Mr Benson said that the intention of using the alarm was the loud sound might frighten off the intruder. It could make people in the vicinity aware that an issue had arisen and the alarms were made available on request. Instructions about using the alarm would have been given by area managers. 83 Mr Norris as Hunter Regional Manager had also issued a document entitled "Working Alone- cleaners' security". The document was undated but stated: Recent events, both in Australia and overseas, have highlighted the need for all staff to take precautions to reduce the risk to their health and safety. Tempo have held discussions with your union and our clients to ensure that all practicable steps are taken to reduce such risks. Attached are some simple guidelines that cleaning staff should consider at their own workplace. Tempo will also be issuing procedures for staff to follow when they are feeling "threatened" by unauthorised persons on site. The procedures will be discussed with you by your area manager and will be displayed in a prominent position at your site. If you have any ideas how to further improve your security please discuss these with your area manager. The "Working Alone" document appeared to be attached to this memorandum. 84 In late November 2005, Mr Norris issued an information newsletter warning that there was an intruder in the Newcastle area over the past two months and that four incidents had been recorded of a male person approaching cleaning staff between the hours of 5.00 am and 6.30 am at school sites and exposing himself. There had been discussions with the police and the union as to how the matter might be dealt with and cleaners were asked to be alert and on the lookout for strangers when they entered the grounds of the worksite, especially in the morning. If there was a person who looked suspicious found on the site they were instructed not to leave their vehicles but to drive to a telephone and ring the police or the area manager, Ms McMahon. The newsletter then contained the following passage: As a general precaution, when arriving on site your (sic) should park your vehicle close to the entry point of the building you will be working in and be sure to secure the entry door behind you. Again, be alert when moving between buildings. If you see a stranger outside the building you are in, don't go outside but contact the police or your area manager. Personal alarms are available from your area manager. If you do not have one please contact Leesa on the number above and you will be issued with one and shown how it works and you should wear it whilst on duty. 85 Tempo had issued a number of handbooks for employees from 1994 but during 2003 a document entitled "Tempo - Safe Work Practices" had been issued by the company. It had been finalised late in 2002 and developed over a considerable period of time. At page 136 of that document there was a section headed "Safe Work Practice - Access and Site Security". The document said that employees would need keys, a security card and a personal alarm. The document then stated: If driving a vehicle park in an open well lit area as close as possible to the main entry. Use the paved walkways to enter and leave the site - do not take shortcuts over uneven ground. If lighting is poor report it to your area manager or the OH&S Help desk on 1800 453 664. Proceed to the Administration or sign on area. On entry deactivate security alarms as per the site procedures - all security codes must be treated as confidential. When inside buildings keep external doors locked where possible. Isolated areas should be cleaned during daylight where possible. Once individual rooms have been cleaned lock them as you leave unless otherwise directed by the client. Use the walkways provided to move around the site. When leaving the site ensure that all areas are locked and re-activate alarms systems as per the site procedures. Generally all keys are to be left on site in a secure area and only the entry keys are to be taken offsite. Never leave keys unattended - keep keys secure at all times. If you feel at risk personal alarms are available from your area manager on requested. 86 Mr Benson said that the only risk assessment conducted at Bonnells Bay before the incident involving Mrs King and relating to working alone were the work schedules that had been prepared prior to 2000. He was not aware of any other risk assessment after the incident other than the one prepared by the area manager and, later, the one prepared by Mr Evans. 87 In cross-examination, Mr Benson stated that, before working for Tempo, he had worked with the Government Cleaning Service for five years. He had also worked as a safety officer for the Water Board, had worked as a co-ordinator of safety for the Labor Council as well as being on the Rehabilitation Council of the WorkCover Authority. In 1994, Tempo had about 3,000 cleaning staff in New South Wales but that number would now be 4,000. Tempo had a number of subsidiary companies, Jontari being one of them. Jontari operated as a type of labour hire company - Tempo supervised the employees of Jontari. The Tempo handbooks for staff applied to both Tempo and Jontari employees. The area managers were employees of Tempo and controlled and directed the staff of Jontari. 88 In deciding how many cleaners were required for a site, an area manager would make an assessment and might refer to the previous Government arrangements at schools. In making this assessment, security was not an issue - the only relevant issues being the hours required for the work to be performed. 89 A cleaner's training record relating to Mrs King had been completed in November 2000. The supervisor/trainer who had signed that document was Ms Davis: she was not an area manager but a support officer for the area manager, Mrs Thomas. In 2003, the age profile of cleaners employed by Tempo showed that they were on average 55 years of age and 60 per cent of them were female. In relation to the "Working Alone" document issued with payslips, Mr Benson was not sure if the document was given to new starters. The folder kept on site had a copy of the Safe Working Practice, Guidelines for cleaning, a Work Certificate, an employee handbook, procedures for ordering, order forms and tags. Aspects of the folder were to be explained to the staff. In relation to duress alarms, staff were to be shown how to use them but it was a simple procedure of pulling a pin at the top of the alarm. 90 Mr Benson had visited the site of Mrs King's assault at the school sometime after it occurred. He did not know the details of the height and weight of the attacker or the age of that person. On being asked to assume that the person was approximately 187 cms tall and in his thirties, Mr Benson said that, given the circumstances in which he attacked Mrs King, he could see no steps that would deter such an attack. There was no point in locking the door inside because of the nature of the school and the cleaners having to move to other buildings. There was a good deal of outside work to be performed including cleaning bins, cleaning the canteen, cobwebbing and picking up in the playground. 91 Mr Benson had seen the duress alarms and thought they might be heard up to ten metres away but had not seen them demonstrated inside a room when he stood outside that room. He had seen no demonstration of them while a vacuum was in operation. There was no policy whether the cleaners could use earphones to listen to music or the radio while they worked. 92 Mr Benson regarded the discussion paper of June 1996, the Working Alone document of October 1996, the procedure to follow when one felt threatened at a school site of late October 1996, newsletters issued to the staff in 1997 together with the Working Alone document, as constituting risk assessments. They had become generic for area managers to develop work schedules when considering whether to introduce team cleaning. His expectation was that this occurred at Bonnells Bay and he spoke to area managers about implementation. 93 In relation to the Safe Work Practices document in operation at the time of Mrs King's incident, the matters dealt with at page 136 dealing with access and site security had been developed over a period of time and involved a number of employees who in turn, had suggested a number of the risks that were identified in that document. 94 A risk assessment - access and site security document had been developed at consultation meetings held in mid-2002. The consultative process was part of developing the Safe Work Practices book that identified dark unlit areas as a risk with possible assault, including assault of staff working alone. Possible causes identified were parking a car or walking around in the dark, walking around the site in darkness or cleaning in isolated areas in the dark. Control measures identified were: to park the car in a well lit area and if the lighting was poor, report it to the area manager; to ensure isolated areas were cleaned during daylight; to ensure working in a well lit area during darkness; if working alone to be supplied with a personal alarm; and, once inside the building, to lock the doors. Mr Benson did not believe that the control measures identified in this document would have prevented or stopped the assault involving Mrs King. 95 The Bonnells Bay school in November 2003 had been part of the Tempo contract for some nine years. Mr Benson said that schools operated 42 weeks per year with some cleaning work taking place during holidays for another two weeks. He was unaware of any similar incident to Mrs King occurring at this school nor at any of the other 350 to 400 schools in the zone. Many of those schools had one cleaner, although schools might have up to four cleaners or more. Tempo also employed security guards who operated through a separate division. In 2003, they were paid $27 per hour but Mr Benson was not aware if there was any minimum engagement. He was of the view that Tempo could not afford to supply security guards at schools as it could possibly double or triple the cost of providing cleaning services. There were large numbers of sites where only one cleaner was engaged. 96 Mr Benson said that he had been to the Bonnells Bay school once early in 2005 and after a risk assessment had been developed for the site, he had attended there with safety advisers. The work schedule developed in 2003 for the school set out the work to be performed on the morning shift and the afternoon shift by each employee, setting out start and finish times and setting out the times during which certain parts of the school would be cleaned by that person. There was no team cleaning introduced at Bonnells Bay at the time of Mrs King's incident. After that incident, team cleaning was introduced to reduce the level of risk at the site being the level of violence and possible assaults against staff. 97 The Safe Work procedure and page 136 of that booklet were meant to be kept in a folder on the site. He did not see it at Bonnells Bay prior to his visit in 2005. Mr Benson was of the view that the "Working Alone" document was a directive in its form although it was still being finalised. He was not sure how it was enforced and regarded it as advice to staff. There was also information passed on by way of newsletter which was advice to staff how to act. 98 Mr Benson was not aware of the WorkCover Authority's Improvement Notice issued to Tempo in relation to the Mitchell High School at Blacktown in 2002. That document identified the reasons for its issue as being the risk of injury (identified as knife attack and assault etc) due to working in an unsafe situation such as a cleaner at the Mitchell High School, Blacktown. The measures to be taken were identified as the performance of a risk assessment into the activity of working as a cleaner at the high school after normal school hours and to identify hazards within this position and to ascertain what control measures had been implemented to control or modify those hazards. Attention was drawn to Clause 2 of the Occupational Health and Safety Regulations 2001. 99 Mr Benson noted that there were 1500 school sites serviced by Tempo and another 800 Government sites. There was a very large number of single cleaner sites. DELIBERATION 100 The thrust of the prosecution case was, as identified by the risk assessment undertaken by Tempo in at least 2002, that cleaners working alone at schools faced the risk of possible assault. This was the nature of the risk referred to in the charge as particularised: the charge was not about the details of what happened on 20 November 2003. The defendants failed to ensure that cleaners were not exposed to this risk. 101 The evidence about the system of work was that Mrs King arrived alone and the other employee arrived later. To perform her work Mrs King went in and out the side door, worked alone in the administration block and was confronted by an intruder. The critical factor was that she was working alone in a system that was unsafe with windows and the side door being left open. There was no evidence of enforcing a safe system of closing the doors and windows. In relation to an adequate communication system, the telephone was in the administration block and although the cleaners may or may not have had their own mobile telephones and there were duress alarms available, the defendants' response ignored the word "adequate" in those particulars referring to a lack of "adequate communication". Here, the duress alarm could not be heard beyond a very limited range and there was no back-to-base alarm system. 102 The defendants' risk assessment was not a "proper" risk assessment as particularised in the charge. There should have been a risk assessment of the Bonnells Bay school and there was no evidence that such an assessment was undertaken before the incident involving Mrs King. Such a risk assessment needed to identify the use of the side door and leaving it open together with opening the windows next to the side door. The defendants' 2002 risk assessment identified as a control measure the supply of personal alarms for staff working alone, yet the evidence was that the defendants made the use of a duress alarm an option exercised by each employee rather than requiring them to have such alarms in their possession. The 2002 risk assessment did not identify the risk of leaving doors open, people breaking in or coming in through open windows. There had been no identification of the lack of effectiveness of the duress alarms made available. 103 The training available did not inform employees of the risks of working alone and procedures to ensure safety. The "Working Alone" document was not an instruction and from its very terms was clearly not training. Mrs King was unable to say whether this document had been given to her before the incident or whether it had been posted with her payslips. Mrs King was not trained in its terms nor were the terms explained to her. The "Working Alone" document did not ensure that the defendants knew where people were at any given time and did not instruct employees that they must lock every door as they left a building. 104 The training document was not training at all but, on Mrs King's evidence, was simply a document upon which she was asked whether she could perform certain tasks and to tick the appropriate box. Mrs King had not seen the Safe Work Practices document nor had she been taken through it especially in relation to that part of the document dealing with access and working within buildings. Much of that document left the final judgment to the employee with the advice to take certain steps "where possible". Even where this document advised that doors should be closed, such advice was qualified by the words "unless otherwise directed by the client". There was no training in dealing with the circumstances of an assault. It was clarified that the provision of "adequate" supervision did not require direct and present supervision but might include reminding employees of the system of work to be followed. The existence of the risk was demonstrated by five factors: there were female employees working alone; they were working early hours in the morning and partly in the dark; they were working in public places; they were working at regular times; and, they were working in an isolated area. 105 The case for the defendants took many courses and argued numerous propositions. At times the defence case suggested that the risk of assault faced by cleaners working in schools had not been contemplated and came as a complete surprise to the defendants given that, over a number of years, hundreds of employees working at hundreds of schools had not produced an incident of the nature faced by Mrs King. The defendants' case then focused upon the nature of the attack: here, a small woman in her 50s was grabbed without warning by a large, strong man in his 30s before she could say or do anything. It was submitted that, even if Mrs King had a duress alarm, she would have been unable to activate it, she was unable to get to the telephone in the administration block or use her own mobile telephone to stop the attack. The intruder obviously came to this isolated workplace not as a passer-by but with clear criminal intent. Closing the door or the window would not have kept such a person out - he could simply have broken the glass on the door or the glass in the window to gain entry. It was submitted that the prosecution case failed because it did not identify any causal link to the detriment of safety leading to a breach of the Act. 106 Should the prosecutor make out any part of its particularised case for a breach of the Act, then the defendants sought to make out a defence under both s 28(a) and (b), namely, that it was not reasonably practical for the defendants to comply with the Act or that the commission of the offence was due to causes over which the defendants had no control and against the happening of which it was impractical for the defendants to make provision. In relation to these defences, the defendants relied upon the long history of no similar attack and that, in any event, there was nothing that could be done to prevent an intruder breaking into a school, taking hold of an employee without warning before they could do anything about raising the alarm and before they could do anything about avoiding the attack. 107 The defendants put that the long history of the absence of similar incidents as occurred to Mrs King and the circumstances surrounding that incident left the Court with a particularly difficult case and one in which great care had to be taken in drawing the line as to where the defendants became liable because of obligations to their employees. It was suggested that this case had the potential to cause upheaval in the cleaning industry by imposing obligations on employers that were not possible to meet. It was emphasised, as found in State Rail Authority of New South Wales v Dawson (1990) 37 IR 110, that the mere fact that an accident occurred involving an employee and without more did not establish any liability in the employer; that was so unless some causal nexus was established between the breach of statutory duty and the detriment occasioned to the employee. Here, it could be said that the risks were speculative or unduly remote which was borne out by the history of there being no similar incident. In a related submission, it was put for the defendants that Mrs King knew she was to lock herself in the administration block while working and that she had not locked the side door because she was going in and out on at least two occasions to obtain cleaning equipment and material from the cleaners' room. It was said that this amounted to a casual act of negligence stemming from her apparent complacency about the safety of her surroundings. Her familiarity with the workplace over some 13 years of incident free work led to that complacency and the case was thus in the class considered by Fisher P in Cullen v State Rail Authority (1989) 31 IR 207 at 209. 108 In relation to the defences, it was submitted that, consistent with authority, the defence under s 28(a) was a balancing of considerations and the nature, likelihood and gravity of risk to safety of the offence had to be balanced against the cost, difficulty and trouble necessary to avert the risk. It could not be reasonably practicable to take precautions against a danger that was not known to exist. Reference was made to a number of common law cases dealing with the issue of reasonable foreseeability as being relevant to this part of the submission. In relation to the s 28(b) defence, it was open to conclude, having regard to the isolation of the school, that it was likely that Mrs King's intruder and attacker would continue his illegal purpose regardless of any measures taken by the defendants: the defendants had no relevant control and it was impracticable for them to make provision against such an unlikely and overwhelming attack. 109 Because of the similarity of facts and circumstances relied upon by the defendants, the distinct elements of the defence tended to merge into a proposition centred on the history of there being no previous similar incidents, the unexpected nature of the attack on Mrs King, the almost instantaneous overpowering of her by the intruder and the way these things could not have been foreseen nor anything be done about preventing them. It is appropriate therefore to deal initially with the issue of foreseeability. In June 1996, Tempo had prepared a discussion paper on the security of cleaning staff after many staff had expressed concern regarding their security and safety at school sites because of unauthorised persons on the site, having to work alone on single cleaner sites, having to work alone in remote area at a multi cleaner site, gaining access to areas where external light was inadequate and because of limited access to telephones. Many employees had reported unauthorised persons on sites as a cause for concern and had also reported working alone at a single cleaner site in a remote area as being a concern. A number of recommendations were formulated by Tempo together with the Department and the union. One of the recommendations was that Tempo was to investigate the possibility of team cleaning and to review the hours of duty but only at multi cleaner sites at which individual cleaners had raised their concerns over security. There was no explanation as to why this limited approach was taken; clearly, staff had conveyed their concerns to Tempo and an all embracing response was required. 110 The fact that a survey of staff occurred in 1996 and had been the subject of joint discussions between Tempo, the Department and the union indicated that the concerns expressed were not remote or speculative. Tempo did more than merely conduct the survey and take part in the joint discussions referred to earlier - it also issued the document "Working Alone". Curiously, that document gave little direction to the staff affected, although there were some of the 12 recommendations that might meet that description, for example, the advice to check the whereabouts of the nearest telephone, to memorise the emergency service numbers and to check public transport timetables to minimise time spent waiting for public transport. Other suggestions were simply to "make sure" there was adequate lighting where a vehicle was parked or in the work area, which were difficult to achieve without the client taking some action. The wearing of personal identification did not necessarily address any safety issue. Paragraph 5, heavily relied upon by the defendants, merely stated "secure the building when you arrive on shift". Mr Benson thought that paragraph meant no more than, when work was started, cleaners should lock the door behind them: that limited construction seems justified by the terms used. Mrs King did that without fail but that is not really the issue in the present proceedings. While this document is a combination of advice and suggestions and leaves, in some circumstances, action to be taken at the discretion of the employee, it was nevertheless a document produced in response to the concerns raised by Tempo staff about working alone in schools or in isolation. There was a lack of clear direction and instruction given by the defendants. 111 By March 1997, Tempo had introduced procedures to be followed when staff felt threatened at a school site. They were directed to go to the administration block, lock themselves in, contact the area manager and not go outside. The procedure and the information newsletter dealing with cleaners' security in March 1997 was a continuation of Tempo's response to the concerns of cleaners working at schools alone and in isolated areas. In the March 1997 information newsletter, Tempo announced that it had sourced and issued a small personal alarm for staff who believed they were exposed to this form of risk but, again, left it to staff to decide whether they considered it necessary to have such an alarm. Again, there was a lack of clear direction and instruction given by the defendants. 112 In late November 2001, another information newsletter warned of an intruder exposing himself at a number of sites in the Newcastle area. Staff were warned, again as a general precaution that, when they arrived at the site, to park their vehicles close to the entry point and to be sure to secure the entry door when going into the building. They were told to be alert when moving between buildings and, if they saw a stranger outside the building in which they were working, they were not to go outside but were to contact the police and their area manager. Again, they were reminded that personal alarms were available from the area manager and should staff not have one they could contact an area manager to be issued with one when they would be shown how it worked and were to wear it while on duty. This document also highlighted the various ways in which staff working alone at schools could be put at risk and indicated some of the measures taken by the defendants to address that risk. 113 In 2002, risk assessments and control measures were discussed at consultation meetings held at a number of sites throughout New South Wales and also in the Newcastle region. Thereafter, Tempo produced a risk assessment dealing with access and site security. That risk assessment identified dark and unlit areas as providing a risk and also possible assault as a risk. The document identified possible assault on staff members and to staff working alone in situations where they were parking a car in the dark or walking around the site in darkness or cleaning isolated areas in the dark. The control measures nominated included parking cars in well lit areas; ensuring isolated areas were cleaned during daylight hours; ensuring work was performed in a well lit area after dark, when working alone using a personal alarm and once inside a building locking the door. 114 The Tempo "Safe Work Practices" document, developed during 2002 and 2003, had a particular section in an otherwise lengthy document dealing with access and site security. This document spoke of needing keys, a security code and a personal alarm and mentioned parking in well lit areas and walking on paved walkways to gain access to the site. The document spoke of keeping "external doors locked where possible" and stated that isolated areas should be cleaned during daylight hours "where possible". Once individual rooms had been cleaned staff were to lock them as they left "unless otherwise directed by the client". Staff were advised that if they felt at risk personal alarms were "available from your area manager on request". The presence of this section in the Safe Work Practices document was also indicative of the responses made by Tempo to the concerns expressed by staff and the union. 115 In September 2002, the WorkCover Authority had issued an Improvement Notice to Tempo arising from an incident that occurred at the Mitchell High School, Blacktown. The reason stated for the issuing of the Notice was that people were possibly at risk of injury by a knife attack or assault due to working in an unsafe situation as a cleaner at the school. The Notice specified measures to be taken as including the performance of a risk assessment in the activity of working as a cleaner at the High School after normal school hours with the identified hazards within this position and what control measures had been implemented to control or modify the hazards. 116 This combination of documents demonstrated that by November 2003 there had been incidents occurring which raised fears for the safety of cleaners working alone at schools and that a number of Tempo's employees had raised concerns about their security while working alone. These documents make it abundantly clear that it was foreseeable that cleaners working alone in schools and in isolated areas were at risk of assault and that Tempo had taken some steps to address that risk. While it may be accurately stated by the defendants that in the previous 13 years no such incident had occurred at Bonnells Bay school, Tempo, as an employer of hundreds of cleaners, many of whom worked alone and worked alone in isolated areas, was aware of the potential for these cleaners to be subject to assault. Foreseeability is therefore not an issue in these two prosecutions. It appears that Tempo, acting on the concerns of its employees and having regard to at least two incidents, decided that the risk was relatively low and had addressed that risk as described above in various documents, including the "Working Alone" document and the Safe Work Practices document. It is not open, on the evidence, to accept the defendants' submission that in 2003 this attack occurred without warning and was a remote and unlikely event. 117 Having identified the risk of assault for cleaners working alone in schools and/or in isolated and dark areas, consideration needs to be given to what steps were adopted by the defendants to address that risk. It has already been observed that the "Working Alone" document hardly rated as an instruction in its general terms, and certainly did not constitute a directive to lock all internal doors when moving around a building or going in and out of a building to perform cleaning work. That document did no more than Mr Benson said it did, namely, that, once having gained access to the building at the commencement of work that door was to be locked. Mrs King was not sure that she received this document and there is no evidence that it was delivered directly to her or to the school. Mr Benson was unsure whether it was given to new starters. In any event, even if it had been delivered, it was of very limited value in providing instruction and protection to employees working alone at schools. It was not until the following year, 1997, that the duress alarms were identified by the defendants as being available but in circumstances where they were not a requirement and available only as an option with it being left to the employees to decide whether their circumstances warranted the use of an alarm. There was no evidence of tests being conducted to ascertain the effectiveness of these duress alarms nor was there evidence as to an assessment of duress alarms generally available, and what might be the most appropriate alarm for people working in isolation and/or by themselves. 118 The steps taken by the defendants to address this risk, even given the relatively low level of incidents reported, were unsatisfactory and did not adequately address the nature of the risk. These steps were to be contrasted with the more definite and clear instructions given in November 2004 through the newsletter, where cleaning staff were instructed, amongst other things, to discuss options for team cleaning and to discuss options with the area manager for cleaning external areas in remote demountable buildings in daylight hours. They were instructed that once inside the building they were to lock all doors and secure themselves inside during all shifts. They were not to open doors for anyone unless known to them or where there was clear identification. Again, if they wanted a personal alarm they could ask the area manager and were then to carry the personal alarm with them at all times. By 2004, team cleaning had been introduced at Bonnells Bay school with the teachers arriving at the same time and working together in the same areas. The risk assessment that took place at Bonnells Bay school in mid-2005 led the defendants to modify their risk identification assessment and to ensure that all area managers had been trained in the risk assessment process. Further training was to be provided in the implementation and use of the risk identification and assessment checklist for all area managers, whilst the quality management system was being revised to incorporate the new risk identification and assessment checklist together with a written procedure for its implementation. Area managers were to be instructed to involve all cleaning staff wherever possible at the site in the process. The induction training programmes were amended to enhance discussions on the risk of violence in the workplace and the measures taken to reduce those risks. The discussions were to include entering and leaving a site, locking the doors and security gates, procedures for cleaning external areas and communication procedures with other cleaners, managers and clients. A programme was introduced to extend these discussions with staff. 119 There was force in the submission made by the prosecutor that, following this incident, there were a number of measures that were then identified as being available to address the risk: team cleaning; the provision of effective alarms; the conduct of proper risk assessments; the use of induction training, especially relating to working alone; modifying work schedules to ensure cleaners worked together, and when working outside; changing work schedules so cleaners could start at the same time; moving necessary cleaning equipment from outside to an internal place where access could be gained within the security of the building; the use of security grilles on windows; the offering of training in non-violent responses to threatening behaviour and the provision of instruments such as walkie-talkies to permit communication between employees on site. These were simple and practical measures that addressed the risk that had been identified and known to exist since at least 1996. 120 The evidence shows that, at the time of the incident at Bonnells Bay school, the system of work was to have a cleaner arrive in the early hours of the morning alone and, on gaining access to the building, to lock the door behind her. It was not specified in any document that other doors were to be kept locked while working in the building although, one response from Mrs King suggested she was aware of that requirement. The so-called "requirement" was not found anywhere in the defendants' documents. The system in operation did not address the issue of opening windows and in what circumstances they might be opened. In relation to the present incident, Mrs King could have kept the side door closed but, in leaving open the window next to that door, the level of security obtained by locking the door was effectively nullified. None of this was addressed in the defendants' systems. Further, there was no evidence that a system of locking doors was enforced by management either at area manager level or above. There was no evidence of informal and unscheduled visits to ensure that all external doors were locked, nor was there evidence of reinforcement of that approach, especially when found not to be followed. In short, there were clear deficiencies in the defendants' system of work with the result that they failed to adequately address the risk of assault on cleaners working alone in dark areas and/or in isolation. 121 It should also be noted that from 1996, Tempo had decided to review working times to see if shifts could be re-organised so that staff would not be working alone in the early or late hours at isolated sites. Ultimately, team work was introduced only at the sites where staff had raised a concern. No reason was put forward for this limited approach and it is difficult to understand why this protective step was not taken in relation to all schools where there were present the elements of cleaners working alone in the early or late hours and in relatively isolated locations. There was something almost blinkered, or worse, possibly half-hearted, about these responses by the defendants - protection could be provided but only where cleaners complained or specifically requested assistance. This approach was taken while cleaners were also instructed to effectively look after themselves in certain circumstances identified by the defendants or to take an approach if it were permitted by the school, or if they thought it to be necessary. There was no guidance provided by the defendants as to where these measures may be necessary and there was no evidence of on-going inspections to identify these risks at individual locations. 122 Much of the defendants' case, unfortunately, focused upon the incident involving Mrs King rather than focusing upon the risk to safety exposed by the incident and the particulars of the charge. In adopting that approach, the defendants referred to the difficulty of protecting against an incident where, without any warning, a cleaner was quickly overpowered by a strong and younger male person intent on a criminal enterprise. It is to be noted that even on this approach there was no direction from the defendants that the side door should be kept locked and that windows be locked, nor was there any approach by the defendants to the Department to ensure that those windows were appropriately screened. The defendants then submitted that this intruder was clearly so intent on a course of criminal conduct that literally nothing would have kept him out of the building even had these precautions been adopted. There is, however, nothing of substance in the evidence to support that submission: evidence from lay witnesses without a basis for their views being established did not provide probative evidence. 123 Adopting the defendants' approach for the purposes of argument, this is not a case where the evidence showed that the intruder had housebreaking implements or other means by which to break into the building if the windows and side doors were locked. There seemed to be a suggestion in the submissions that, even without housebreaking implements an intruder so intent on gaining access to the building, would have simply smashed a window to gain access to the building and nothing could be done about that situation. This submission overlooked the fact that, if that action had been taken by an intruder, the noise of the break-in had the potential to alert those working in the building so that they could both take action to protect themselves and raise the alarm. If they had become aware of that type of activity, a duress alarm could have been activated (especially had there been a model more effective than the one issued by the defendants) and the cleaners could have locked themselves in a room and used the existing telephone system to raise the alarm. They might have also used an intercom or walkie-talkie system to communicate with each other that something was amiss, thus allowing a person working in a distant part of the building to take appropriate action and not come into the area of potential danger. I am also unable to accept the defendants' submissions that Mrs King had a mobile telephone available to her - the evidence does not support such a finding. Such a facility, even if present, was not part of the defendants' safety system. 124 The evidence showed that there had been no risk assessment conducted at Bonnells Bay school prior to this incident involving Mrs King, that there was not the type of supervision that might have drawn attention to the dangers of the system of work as it operated at that school, with its numerous buildings and the requirement to work inside and outside the building and to obtain access to cleaning materials outside the building. I am satisfied on the evidence that for each defendant a breach of the provisions of the Occupational Health and Safety Act 2000 has been established with Tempo being in breach of s 8(2) and Jontari being in a breach of s 8(1) of the Act. 125 In relation to the defences it is to be recalled that the onus rests upon the defendants to prove either the s 28(a) or (b) defence, although that proof need only meet the civil standard. In relation to the s 28(a) defence, that it was not reasonably practical for the defendant to comply with the provisions of the Act, the evidence shows that this was not a case where the danger was not known or where the precautions were simply disproportionate to the level of risk. The risk of assault occurring when cleaners were working, often alone and in isolated areas in the early morning or late evening hours, was clearly identified by the defendants' own employees from 1996 and was the subject of discussion thereafter until this particular incident in late 2003. The measures that were available to meet that identified risk were modest in their costs and there was no practical reason why they could not be implemented: indeed, the evidence shows that a number of steps were introduced after this incident. 126 The problem for the defendants was their concentration upon the particular incident involving Mrs King and their failure to address the general risk to employees as particularised in the charge. The defendants' case was accommodated by the often asked question - How could this attack be avoided? A number of the measures later adopted, such as team cleaning, locking of doors, screening of windows, bringing cleaning services inside and rescheduling the work so that outside work was not performed before teachers and students started to arrive, did address both the particular incident and the general risk. 127 The present case, however, could not be accurately described as involving a casual act of negligence by an employee acting contrary to a well-settled and appropriate safe system of work. The system of work, such as it was, was inconsistently applied by the defendants and was not consistently enforced. Some employees were informed or instructed to lock themselves inside a room while cleaning it while others appeared not to have been so instructed. There appears to have been little by way of an induction in relation to security and many of the security issues were left to the discretion of each employee, including whether or not they should have a duress alarm. The protection of team cleaning was not universally applied but was applied in a piecemeal fashion, being introduced in areas where employees themselves raised concerns as to the presence of unauthorised persons in the school grounds - apparently those who did not raise those concerns were not considered for the protection of team cleaning. Even the "Working Alone" document was not clearly required to be kept on each site but was sent out with payslips at one particular time and it was not known whether it was given to new employees after that time. This system of safety was simply inadequate quite apart from lacking uniform application. The defendants have not made out a defence under s 28(a). 128 For many of the same reasons referred to in the previous paragraphs, having regard to the manner in which the defendants argued their case, the defendants are not able to make out a defence under s 28(b). The defendants heavily rely upon the history of working at many sites with many employees over a number of years when no such incident had occurred and how impracticable it was for them to take steps to prevent an attack on a slightly framed and older woman by an athletic and young intruder intent on criminal behaviour. I have already concluded that the risk of assault of cleaners working at schools was foreseeable and had been discussed over some period of time by the defendants and therefore it was not a risk which was remote and unlikely. Again, the defence argument focused upon the particular incident rather than the general risk as particularised in the charge and ignored the extensive measures which were able to be taken after the incident to address the identified risk. This was not a case of a casual act of negligence by an employee failing to comply with a well-settled and appropriate safe system of work, thus leaving the defendants powerless to ensure the safety of the employees. The defendants have failed to establish a defence under s 28(b) of the Act. 129 The defences, in relying upon the absence of the same types of incident over several years of providing cleaning services to schools, are not sustainable in light of the evidence before the Court. 130 In each case, the defendants are found guilty of a breach of the Occupational Health and Safety Act 2000 as charged and particularised. The parties are to confer as to a suitable time to list the matter for sentencing and should contact my Associate regarding the further listing of the matter. 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.