Industrial Court of New South Wales CITATION: Inspector David Singh v ABB Australia Pty Ltd [2007] NSWIRComm 62 PROSECUTOR: Inspector David Singh PARTIES: DEFENDANT: ABB Australia Pty Ltd FILE NUMBER(S): IRC 7574 of 2004 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - alleged breach of s 8(2) - breach of s 10(1) alleged in the alternative - environmental scientist undertaking hazardous material inspection - working in roof of factory - alleged dangers of working at height and close to electrical lines powering overhead cranes - usual safety induction not carried out by defendant - no instruction given about working at height or near electrical lines - failure to ensure safety of non-employee - breach of s 8(2) established - alternative charge under s 10(1) not necessary to consider. CASES CITED: Inspector Twynam-Perkins v Maine Lighting (1995) 100 IR 240 at 257 HEARING DATES: 19/02/07, 20/02/07, 21/02/07, 22/02/07 DATE OF JUDGMENT: 22 March 2007 PROSECUTOR: Mr R Reitano of counsel SOLICITORS: DLA Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson SC with Mrs W Thompson of counsel SOLICITORS: Middletons JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 22 March 2007 Matter No IRC 7574 of 2004 INSPECTOR DAVID SINGH v ABB AUSTRALIA PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000, in the alternative prosecution under s 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 62 BACKGROUND 1 These proceedings involve prosecutions pleaded in the alternative alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000 or a breach of s 10(1) of the Act. The defendant in the proceedings is ABB Australia Pty Ltd ("ABB") which conducted an electrical and mechanical engineering business at 34 Bay Street Botany. The site contained a factory area approximately 100 metres long with 15 metre wide bays. The floors of the factory were concrete and the roof was constructed of corrugated iron gable. Approximately nine metres above the floor were overhead travelling cranes that were electrically operated. Access to the cranes was provided by a steel ladder. 2 The factory was owned by 34 Bay Street Pty Ltd, itself associated with Marsim Properties Pty Ltd, trading as Marsim Group Constructions ("Marsim Group"). The defendant ABB was the lessee of the premises: it was the joint position of the parties that the exact relationship between the Marsim Group and the defendant was of no material interest in the proceedings. It was sufficient to note that the Marsim Group was proposing to redevelop the site and that the defendant was moving out of the premises. The Marsim Group engaged Consulting Earth Scientists Pty Ltd ("CES") to undertake a soil and preliminary groundwater contamination investigation and a contaminated materials audit on the existing structure as a step prior to undertaking demolition of the factory. After an initial inspection in December 2002, two employees of CES, Ms Marija Jukic and Mr Steven McCormack attended the site to undertake these investigations. Mr McCormack, obtained access to the roof of the premises, came into contact with electric cables that powered the overhead cranes and was seriously injured. 3 Arising from the incident involving Mr McCormack, proceedings were commenced against ABB in the following terms: It is alleged that on 14 June 2003, the defendant, ABB Australia Pty Ltd ... , contravened s 8(2) of the Occupational Health and Safety Act 2000 in that on 14 January 2003 at 34 Bay Street Botany in the State of New South Wales (premises), a place of work, the defendant, being an employer, failed to ensure that persons not in its employment, in particular, Steven McCormack, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while at the defendant's place of work. Particulars of the defendant's contravention are as follows: 1. Failed to adequately restrict access to: 1.1 dangerous areas of the premises; 1.2 the overhead cranes at the premises being the means of approaching within the vicinity of live electrical wires at the premises; 2. Failed to provide adequate information and instruction in relation to: 2.1 overhead cranes; 2.2 work at heights; and 2.3 live electrical wires; so as to enable environmental audit work to be undertaken at the premises. As a result of the said failures, Steven McCormack was exposed to risk of serious injury. In relation to the s 10(1) offence, charged in the alternative, identical particulars were supplied. THE EVIDENCE 4 At the time of the incident, Mr Anthony Pavert was an Inspector with the WorkCover Authority and he conducted an investigation into the circumstances in which Mr McCormack was injured at the Bay Street premises. By reference to photographs in evidence, he described the area around the overhead cranes noting that there was a platform extending the width of the crane which had on the right hand side a railing also extending the length of the platform. There was no railing on the other side of the platform. Along the platform were covering hatches, an electric motor, a flywheel and also some holes through the platform floor. There were two holes in the floor that measured approximately 400 - 500mm square. It was possible to see through the holes to the amenities building below the crane. There was a nine metre fall from the gap in the cradle of the crane. Mr Pavert had walked along the platform to its end but did not step past signs at the end of the platform on to a beam running alongside the electrical cables that powered the crane. He said there was difficulty in gaining access to where Mr McCormack was found because it was necessary to grab hold of bracing on the wall for support and that was difficult. There was a risk of falling 9 metres at this point. 5 In cross-examination, Mr Pavert spoke of obtaining access to the crane and platform by way of a ladder. There was a landing at the top of the ladder and on that landing the roof was quite close to a person's head having regard to the fact that the premises had a multi-gabled roof. In his estimate, the roof was within half a metre and a person taller than himself might be able to touch the roof. At the top of the ladder, when standing on the platform immediately in front of the ladder, to the left was a sign with red writing, "DANGER - BEWARE OF ROOF BRACING". To the left of that sign was bolted roof bracing that was visible from the ladder. Standing on the crane platform at the top of the ladder looking to the left, a person could see the sign, "DANGER - BEWARE OF ROOF BRACING". Standing near the top of the ladder and looking along the crane to the right Mr Pavert said he could see signs at the other end of the crane platform. The top sign carried the words "DANGER - BEWARE OF ROOF BRACING", underneath it the second sign carried the words, "LIVE WIRES - DANGER LIVE WIRES". The roof was of sufficient height to allow a person to walk along the crane platform. Mr Pavert confirmed that he could see the signs and read them from the opposite end of the platform. There was a handrail and it was possible to walk along the platform from the top of the ladder to the two signs at the other end of the platform. Behind the signs was a larger whiteboard that overlapped the handrail, and the signs at both sides of the whiteboard. Mr Pavert described this as a protective board preventing contact with live electricity wires while walking on the platform. Mr Pavert said he had no complaint about the adequacy of that protective board. 6 At the end of the platform, running from behind the signs and the protective board from the right and extending to the left, was a metal beam of approximately 150mm. The beam was considerably narrower than the crane platform and did not have a handrail of any kind attached to it. In Mr Pavert's view, it would be quite difficult to get onto that beam from the crane platform as it would involve getting past the signs and the protective board. The gabled roof was low enough at this point to cause a person to be aware of the roof so as not to hit their head. There was nothing obvious to hold onto while on that beam except the wall bracing which was placed intermittently. It did not appear to Mr Pavert that the wall bracing had been placed there to support a person going onto the beam. He accepted that the beam was narrower than the platform and had no handrail like the platform handrail. There were two cranes parked next to each that were mirror images: both cranes had handrails and both had warning signs in the same terms. 7 Proceeding along the beam to the left of the platform was a yellow post that was horizontal from the beam. That post impeded movement past it and it was quite hard to get past the post as there was no handrail. The adjoining crane had a post at the same point and they were close together when the two cranes were at rest against each other. Mr Pavert confirmed that Mr McCormack had been rescued from the beam of the second crane, past the point of the second post along the beam of the crane. Mr Pavert identified the presence of certain overhead electric lights that were above the overhead cranes. 8 Marija Jukic was working for CES in January 2003, having been employed for about three years by that company as an environmental scientist. In the course of her work, she visited various types of sites, including commercial factory sites, for the purposes of performing an assessment in relation to potential contamination of the sites and remediating the contaminated site. 9 Ms Jukic recalled attending the site at 34 Bay Street Botany on 14 January 2003 with Mr McCormack. It was the second time she had been to the site having attended there a few weeks earlier when Mr McCormack was not present. At that time, she was with Mr Michael Petrozzi, who was the principal of CES. Also present were representatives of the Marsim Group. At this first visit, Ms Jukic met Mr Luciano Pigna of the defendant company and undertook a site walk with him. During the walk, the group discussed the history of the site, what it had been used for in the past and looked at certain areas thought to be of potential concern in relation to contamination. Ms Jukic could not remember what other matters were discussed. Everybody in the visiting group was present the whole time the discussions took place but she did not recall any discussions about safety. 10 The second occasion that Ms Jukic visited the site was when Mr McCormack had his accident. She believed she arrived at the site at approximately 9.00 am to perform an assessment by walking over the site and looking for contamination. After she arrived, the two of them went to the reception area and asked to see Mr Pigna, but he was not there. Mr Pigna had previously said that, if he was not there, to ask for Mr Glen Ford. Mr Ford's presence was requested. Mr Ford said that he had not expected them, although he was not surprised that Mr Pigna had not informed him of their arrival as there was a breakdown in communication because of the dislocation caused by the defendant moving out of the premises. Mr Ford was happy to show Ms Jukic and Mr McCormack around the site and conducted a "brief walk through" of the facility. 11 After leaving the reception area, the group went to the eastern part of the factory where it was evident that some machinery was being cleared out with some being stockpiled. As the group moved towards the western section of the factory they stopped to have a conversation and Mr McCormack explained what he had to do. Mr McCormack said that he needed to gain access to the roof to see what material it was made of. Mr Ford indicated he could obtain access to the roof by either one of two staircases on the southern end of the western wing of the building. Mr McCormack did not say anything else in relation to obtaining access to the roof. Ms Jukic explained that she needed to move around the site and intended to conduct a site walk: Mr Ford said that was "fine". Mr Ford said that if Ms Jukic needed any machinery switched off he would organise it. Ms Jukic did not believe that Mr Ford stated that there was nowhere on the site they could not go nor did she believe he said anything about safety while they were at the site. After this conversation, Mr Ford left the group to let them get on with their work. When Ms Jukic began her work, Mr McCormack was still outside the building. The next time she saw him he was lying across a girder near the roof, close to the central part of the building. Ms Jukic was shown some photographs and identified one set of stairs she thought Mr Ford had indicated as giving access to the roof. Ms Jukic said that, while some machines were being decommissioned and stockpiled, there was some machinery still in operation apparently working in the central section of the factory. She could not recall whether there was work being performed in other sections of the factory. 12 In cross-examination, Ms Jukic said that she had had little involvement in this project and that was only a few weeks before the first visit. She had been engaged on the project for a couple of days and that involved conversations with Mr Petrozzi about the potential contamination of the site, what might be found and what processes might be followed including soil testing. There were one or two such conversations but they were not very detailed beyond these matters. There were no detailed discussions about the work: Ms Jukic did not remember anything else being discussed. In relation to the first site visit, Ms Jukic said that she definitely did not have a conversation with Mr Pigna in relation to what actual work would be performed during the inspection process and did not recall if there was a conversation with anyone else while she was there. She did not recall Mr Pigna being engaged in a conversation with somebody else other than herself about the actual work to be performed during the inspection process. She discussed with Mr Pigna the historical use of the site but she could not recall whether that was a lengthy conversation. 13 It was not part of Ms Jukic's role during the first visit to the site to involve herself as to what hazardous materials might be there. Her role was not a complex role at that time and she looked for evidence of contamination and methods of cleaning up the contamination. At the first meeting at the site, she did not discuss with anyone about checking for hazardous materials since it was not her field. She did not recall there was much discussion about what was to be done at the site between first and second visits. In the period between visits, she discussed the work on the site with Mr Petrozzi and Mr McCormack, including equipment to be taken to the site. She spoke to Mr Petrozzi the day before the second visit, but did not think there was any other conversation in between the visits. The conversation with Mr Petrozzi was not lengthy: he said he had sent an email to the Marsim Group requesting details of safety equipment needed to be brought to the site. The response was that they were to bring standard personal protection equipment. She understood that meant steel capped boots, hard hat, safety gloves and a reflective vest. Mr Petrozzi reminded her to call Mr Pigna to check if it was all right to attend the site. 14 Mr Jukic said that Mr McCormack was a work colleague but they had never been involved in building work and ground assessment at the same time. They spoke to each other about transport arrangements for the visit and the fact that Ms Jukic had to ring Mr Pigna. They did not talk of the work to be performed the next day or their roles at the site. 15 Mr Petrozzi operated the business of CES which was reasonably small and he held the senior supervising role for the company's work. Ms Jukic was not aware of any discussion as to who else from the company was to attend the site that day. There was no discussion as to who would be responsible for the supervision of CES personnel at the site visit that day - Mr Petrozzi did not indicate that she should take a supervisory role at the site visit. There was no suggestion that the site visit be supervised by Mr McCormack. She could not recall any discussion with Mr Petrozzi about any aspect of safety in the conversation she had with him the day before the site visit. On the morning of the visit, Mr McCormack did not say to her that he was responsible for her supervision that day as a CES consultant. Mr Petrozzi did not raise anything about occupational health and safety standards or regulations in the course of the discussions Ms Jukic had with him about the second site visit. Mr Petrozzi did not mention to her anything about the occupational health and safety regulations of the defendant in any of those conversations. The only matter raised was that she contact Mr Pigna to ensure that it was safe or appropriate to come on site. 16 On the day of the visit, while they were at the reception area, Ms Jukic said they briefly explained what they were to do while speaking with Mr Ford. Mr Ford agreed to show them around the site and did not explain in detail what work was being performed in each bay but only vaguely described the situation. Some bays were vacant and some had stockpiled equipment. In general, Mr Ford pointed out where work was taking place or not taking place. Ms Jukic did not recall Mr Ford saying that, where there was no work being performed, they could have unlimited access. He did say that, if they wanted access, they could ask for machinery to be turned off. Mr Ford did not say that they could take samples in the areas where the machinery was disconnected and she did not recall him referring to them having "free access". He was happy for them to have access anywhere, if the machines were operating they were to check first. Ms Jukic had no recollection of Mr Ford saying fuses had been taken out of some machinery but not to make assumptions although it was possible he said something to that effect but she could not recall him mentioning fuses. Mr Ford did say that bays 3, 4 and 5 were still production areas but Ms Jukic did not recall him say that the overheard cranes were still working. Mr Ford did say that the forklifts were still working in the area. 17 Ms Jukic heard Mr McCormack ask Mr Ford about obtaining access to the roof. In essence, Mr McCormack said he was looking at the roofing material and wanted to see how it was made. She did not recall Mr Ford saying that in order to view the roof Mr McCormack could climb the access ladder and touch the roof from the platform. She did not recall Mr Ford saying that the crane had been parked there for two years or that the other cranes were still operating. Mr McCormack asked for access to the roof but did not ask for access to the lights in the roof. She did not know what was involved in Mr McCormack gaining access to the roof. It was after the accident that Mr McCormack referred to obtaining roof samples. She did not see trucks moving on the site. Mr Ford indicated, by using his hand, the ladder that would give access to the roof although they were then at some distance from that place. 18 Mr Petrozzi said that CES was his business and he had been employed full-time in that business since 1999. He had been involved in the 34 Bay Street Botany site since October-November 2002 and dealt with the developer of the site, the Marsim Group. The first time he had been on site was 13 December 2002, the purpose of that visit being to inspect the operations and plan work for January 2003. He attended the site with Ms Jukic, together with representatives of another company, a representative of the Marsim Group (Duncan McAndrew) and a representative from the defendant, Mr Pigna. Mr McCormack was not present. The visit occurred around midday and involved walking around the site and that exercise took between half to one hour. There were six people walking around the site including Mr Pigna. Mr Petrozzi could not recall Mr Pigna mentioning safety at the site during that time. There was a work programme developed for the work to be performed by CES which would have been sent to the Marsim Group. Mr Petrozzi did not return to the site before the incident. 19 In relation to the second visit, Mr Petrozzi had made general arrangements with Ms Jukic and Mr McCormack and with the Marsim Group but could not recall the details. He could not recall having any conversations with Ms Jukic, Mr McCormack or the defendant about this visit. In cross-examination, Mr Petrozzi accepted that the programme for the work his company was performing on the site was with the Marsim Group and that he had no dealing with the defendant except for the site inspection after CES had obtained the contract. The defendant was not a party to that contract. 20 In relation to the 13 December 2002 visit, CES needed to know the history of the use of the site and the walk through covered this aspect. Mr Petrozzi could not recall if the majority of discussion did not involve Mr Pigna, although Mr Pigna was involved in explaining the factory operation at that time and the earlier use of the factory. Mr Petrozzi had no recollection of the discussion of the work to be conducted by his company but he would have been surprised if Mr Pigna had not been given details of the work proposed by CES even though he could not recall all that was said. He was unable to say what was the content of any discussion he had with Mr Pigna. However, there were several people present and he would have discussed what CES was going to do at the site. 21 Between 13 December 2002 and the 14 January 2003 incident, there were discussions with Ms Jukic about the work to be performed on the second visit and a programme was prepared, but Mr Petrozzi could not recall what was said. Ms Jukic's work involved a standard process in which she was well versed and he could rely on her performing those tasks. He could not recall the specific aspects of what Mr McCormack was to do but it was standard work well within his capacity. He recalled there was an email from Mr McAndrew of the Marsim Group concerning the requirement to take standard personal protection equipment to the site for the second visit and he imagined he passed that requirement on to Ms Jukic. For that visit, he intended that only Ms Jukic and Mr McCormack would attend. He did not allocate a supervisory task between them because they had different jobs: neither of them was told that they were to supervise the other. Mr Petrozzi said he did not think he knew anything about the defendant's safety regime and therefore did not convey any such information to Ms Jukic and Mr McCormack for the purposes of this visit. Mr Petrozzi recalled that Ms Jukic telephoned Mr Pigna before she left the office for the site. He could not recall having any further conversations with her about the work. Apart from the email about providing personal protective equipment, Mr Petrozzi did not believe that he had any other information provided to him concerning the defendant's requirements on the site. 22 Mr McCormack had started with CES in August 2002 as a senior environmental engineer and in that role performed field work and supervision in assessing soil degradation and contamination. It was a day or two before the January 2003 visit to the 34 Bay Street Botany site that he knew he was to attend the site. Mr Petrozzi had told him to go to the site and to assess hazardous materials. 23 On the morning of the day of the visit to the site Mr McCormack met Ms Jukic and they proceeded to the reception area. Although Ms Jukic had details of who they were to meet they were told that person was running late and another person was arranged to help them. They then met Mr Ford when Ms Jukic explained what she was to do, then Mr McCormack explained that he was looking for asbestos and contamination but Mr Ford seemed to know generally what they were doing on the site. Mr Ford led them to the factory area and while they were standing on the western side of the factory, they had a discussion about where the two of them were going and what they would be doing. After Ms Jukic said what she was to do, Mr McCormack asked if he could inspect the roof. Mr Ford advised him to go to a crane he nominated saying that, although it was not working, there was a handrail and that Mr McCormack could inspect the roof from that vantage point. Mr Ford did not say anything about where they were not to go and gave no instructions. Mr Ford said nothing about the defendant's safety requirements at any time during their discussions. 24 Mr Ford then left, Ms Jukic went outside while Mr McCormack walked to the carpark. He began a hazardous material audit of the external cladding and also began observing the roof material. He was carrying a bucket containing a small number of tools and, after spending approximately ten minutes outside the factory, walked back inside. He began his inside assessments in the toilet amenities on the western side of the factory at the mezzanine level and, over a period of 15 minutes, inspected that area and took samples. He then went back downstairs conducting an inventory of the factory regarding the cladding and the nature of the ground. He noticed a fair degree of work going on with the use of forklifts and welding. He walked to the crane he was told he could use and saw two sets of stairs but, as he was not sure where they led, it was confusing. He walked up one set of stairs to a platform but that was not the right crane so he went to the other stairs that led to the crane. At the top of the stairs, he turned right and went to the middle of the crane using the handrail. He looked around, saw the lights, then walked further to the side of the crane from where he could reach the roof and inspect it. Mr McCormack noticed the fluorescent light fittings. He could see the factory floor and another crane about 4 metres away. 25 Mr McCormack went to inspect the light fittings and their capacitors and noticed that he could get to that point by walking around the side of the crane. He was aware of the height and its dangers, calculating the height to be 8 - 10 metres to the floor. He walked to the side of the crane on a beam approximately one foot wide. He held on to the steel frame on the side of the building and took 2 -3 steps and stepped over the wire. He could not then let go of the steel frame of the building and he began looking for electricity because it was coming through his hand and he had not noticed the 3 wires below. He had a cursory look and thought they were pulley wires. Mr McCormack felt a spasm, his hard hat fell off and hit the ground and he could not see anything. His vision then returned, the power stopped and he let go of the side of the building but felt weak. He held on because of the height, used the top cable to steady himself and then lay over the crane girder. He thought that the wall was alive with electricity but he was told it was the cables that were electrified. He noticed there were holes in his leg but there was no pain at the time. He was lowered to the ground and attended to by ambulance officers. While he was in hospital, Mr Ford visited him and expressed his sorrow. 26 While on the platform and before he went on to the side beam, Mr McCormack said he did not see any signs although he had since seen photographs of those signs in the area. His focus was on the roof. 27 A number of photographs were then shown to Mr McCormack. He noted that, at the top of the stairway, a photograph showed a chain across the access to the crane platform but that was not across the entrance when he walked on to the crane platform. He did not see the sign to the left and had turned to the right. He did not see the sign on the right but he walked in the direction of the sign looking at the roof facing out to the factory which was when he saw the light. He stepped over the end of the platform on to the yellow beam, holding on to the steel frame of the building. He did not recall seeing the white panel with the signs in front of it at the end of the crane platform. The white panel shown in the photographs did not stop him from going on to the crane beam - he regarded it as a pretty easy step to get on to that beam. He thought the wires shown in the photographs were cables to pull the crane. 28 In cross-examination, Mr McCormack said he was assessing the underside of the roof and conducting a physical inspection to see if it was single cladding. Before visiting the factory, he regarded himself as being well-experienced before joining Mr Petrozzi's company CES. His first involvement with the Bay Street site was when he was told in mid-January 2003 that he was to visit the site about two days before the visit took place. He was told that he was to undertake a hazardous materials assessment and he knew what was involved in that assessment. There was no discussion about the precise work to be performed: he was looking for asbestos and he knew what was involved in the task. Mr Petrozzi did not discuss with him a working method nor did anyone else. He had a general awareness of the project and that Ms Jukic would conduct a contamination search. There were only three people in the company and they discussed matters, so that he had an overview from what she was doing and knew that eventually he would become involved in the project. 29 Once he was aware of his involvement, he could not recall the number of discussions he had with Mr Petrozzi in relation to the project. He could not recall how many discussions he had with Ms Jukic but there was a discussion at least one or two days before the visit when they arranged to meet on the site. They did not discuss the roles to be taken by each of them or discuss the work that each would perform. Mr McCormack was to undertake hazard assessments and Ms Jukic was to perform contamination assessments. There was no real discussion of the work in which each was involved. 30 No one suggested that he would be supervising Ms Jukic nor that she would be supervising him. There was no suggestion that anyone else would be attending the site that day. He had been told to take personal protective equipment and knew what equipment was involved. The client had said that they should take the personal protective gear: that involved taking a hard hat, safety boots, glasses and a vest. Mr McCormack had that equipment. There was no discussion about supervision of CES employees and nothing was said about the defendant's occupational health and safety regulations. 31 Ms Jukic was the project manager and she liaised with the defendant company for access since that was not his role. In relation to the discussion at the reception area, Mr McCormack did not recall anything further being said. Ms Jukic had asked for Mr Pigna and was told that he was running late and that they would get someone else to assist. They were met by Mr Ford at the reception area where there was a brief discussion but Mr Ford appeared to be aware of what they were doing. Ms Jukic briefly spoke of what was involved and introduced Mr McCormack to Mr Ford. Mr McCormack did not recall precisely what was said by way of a general description of the work to be undertaken. He could not recall what was said in the discussion between himself and Mr Ford at the reception area but it was not detailed. 32 On leaving the reception area, Mr McCormack had no recollection of Mr Ford saying that parts of the factory were working and other parts were not working. He did not recall what he had said during this time but he was talking. Mr Ford did not mention decommissioned machinery or that there was machinery with fuses removed and that they had to be careful. He could not recall Mr Ford saying to contact him if they needed machinery turned off. 33 Mr Ford identified an overhead crane after Mr McCormack asked to inspect the roof. Mr Ford had pointed in the general direction of a crane. Prior to that, Mr Ford did not say that there were working cranes but Mr McCormack saw forklifts in the area and the whole site was in the process of decommissioning and being moved. There was work being performed, including welding, but there was no mention of trucks during this discussion. 34 It was possible to inspect the roof visually from a distance or from the factory floor but Mr McCormack could not recall the exact words he used to tell Mr Ford that he wanted a closer inspection. So far as he could recall, he asked if he could inspect the roof and Mr Ford responded by pointing out a crane. Prior to that, Mr McCormack said he had told Mr Ford in an overall way how he conducted his inspections. He could not recall what words he used but he was sure he mentioned obtaining access to the light fittings to give an overview. Although inspecting the roof was part of the work, Mr McCormack could not recall exactly what he said to Mr Ford about the work he was to perform. Mr McCormack then accepted that he did not mention obtaining access to the lights. Mr Ford referred to the crane and the presence of a handrail but Mr McCormack could not recall exactly what he said. Shortly after this discussion, Mr Ford left and nothing more was said about Mr McCormack's inspection of the roof. 35 In relation to the work performed in the amenities block, Mr McCormack said that he performed the same task although he could not recall if there were fluorescent lights there. He had taken wall samples and, if there were fluorescent lights, there he would have examined them but cannot recall if he did so. He did this work while the fluorescent lights were energised and had not asked for them to be turned off because it was not necessary. In order to inspect the capacitors it was not necessary to come into contact with the electricals. While on the platform of the crane, he was within 3-4 metres of the roof and had a clear view of it. While on the platform, Mr McCormack did not view the roof because he could not get samples or a close inspection of the roof. He wanted to get to the crane and close to the roof as he had discussed with Mr Ford. He carried his bucket, which was not strapped to him, up the stairs but he could not recall climbing the stairs or ladder. 36 From photographs shown to him, Mr McCormack said there was some confusion about the stairs as had been shown to him by Mr Ford. He recalled getting to the top of the ladder and on to the platform which was at the top of the stairs. When at the top of the stairs, he turned right to get on to the crane and the chains were not across the entrance to the crane. He did not have to remove anything or step over anything to get on to the crane. At the top of the stairs he did not inspect the roof because he wanted to get to the mid-point on the crane and was not looking closely at the roof in his peripheral vision. He did not remember the roof being close to his head at this point but agreed that his purpose in being there was to inspect the roof. He did not look and did not notice the height of the roof but he was worried about working at height. At the top of the stairs there was a railing to hold on to and it was secure. He did not recall his mindset, but was looking down minding his step and holding on and he did not look up to the roof in his peripheral vision. Mr McCormack said he did not see the sign at the top of the stairs to his left nor did he check to his left. He did not see the roof bracing and did not look to see if he might bump his head. He had not been to these premises before, so he looked to his right without knowing what was there and saw a length of crane platform. Looking down that platform, he did not see the signs shown in the photographs. He was watching his step and looking where to walk. He was not looking at the roof, he was looking out and looking for the handrail and walked down the crane beam about halfway, holding on to the handrail. He was looking for the handrail because Mr Ford told him it was there. He was not looking at his feet but ahead of his feet to see what was on the beam, such as electrical motors etc. 37 When he got mid-way on the platform just past the motor shown in photographs, Mr McCormack said he did not always use the handrail because the beam or crane platform was wide. The handrail was on his right and he presumed he held the bucket and his tools in his left hand but he could not remember doing so. At the mid-point on the platform, he put the bucket down and bent down. He then turned facing the factory but he did not recall when he put the bucket down. While on the beam, he glanced at the roof and looked across the factory at the lighting. He needed to go further over to sample the roof but he could tell by looking at it that it did not contain asbestos. Mr McCormack accepted that, from the floor, he had already formed the view that it was probably not asbestos which was obvious to his trained eye. Because he did not need a sample, he then concentrated on the lights. He recalled exactly when he decided when the roof was not a problem and agreed it was a simple and quick matter to determine. When he looked out to the lights, he looked down the factory and sought the closest light and counted them. He could not see all the lights which were to his right and left. He looked to his left, in the direction he had just come from and down the crane platform but he did not see the sign shown in the photograph. Mr Ford did not tell him that the roof was of corrugated iron. 38 Mr McCormack saw the light that he wanted and turned to his right and walked down the platform. He did not recall if he used the handrail but he intended to walk along the crane platform to its end. He did not see any sign and could not say how he missed the sign at the end of the platform. When asked if he was looking down the platform he had to have been looking straight at the signs, Mr McCormack said he must have been looking above the sign and did not see it. He was not then looking for the roof or the lights. He did not remember seeing the white panel but he must have seen it and he took no notice of it. When shown photographs of the crane platform, Mr McCormack said he did not see the signs but accepted that the handrail ended at the sign and that there was no other handrail after it. Mr Ford had told him that there was a handrail and where the handrail ended, he decided to go further where there was no rail. Mr Ford did not say to him to stop where the handrail stopped. At the end of the platform, he looked at the wall to see if he could hold on to the steel crossbars. Looking at the photographs, he was asked if he saw the signs because they were right in front of him. Mr McCormack said that he missed them. He noticed the cables when he stepped over them and said he passed the sign and the whiteboard which he recalled was simple and he did not remember it as being difficult. He then stepped on to a side beam about 1 foot wide where there was no handrail. He was aware of the height which worried him since now he was also standing on a narrow beam. Mr McCormack believed that he held on to a post near the sign to get on to the side beam although he could not recall precisely where it was. He did not go around the post to the left on to the beam, but stepped over the void to the left. He thought that was the way he gained access to the narrower beam. It was put to him that, from the photographs, it did not appear there was room to get past or squeeze past the whiteboard: Mr McCormack said he had no recollection of taking notice of that possibility. He agreed that he should have had regard for the whiteboard, but he had no regard for that board earlier when he was back along the main platform. He had no strong regard for it even though he recalled little of his time on the platform. As he now recalled it he had little regard for the whiteboard. He did not recall how the board was on the day, or whether or not he had looked at it. It was put to him on a number of occasions that he must have noticed the signs as well. Mr McCormack denied noticing the signs. He accepted that in going to the end of the platform and stepping over two posts in one stride was a risk he took. He judged it as not being difficult. He could not recall seeing a gap between the two cranes. He intended to go past the roof brace and duck under it. Although there was a sign on the other crane and it was visible in a photograph shown to him, Mr McCormack said he did not see that other sign that day. 39 Mr Ford told him that the crane was not in operation and it could be used for his inspection. Mr McCormack said he was not told that the cranes were operating or that they bump into each other. He was not warned about anything: he was referred to the handrails. Mr McCormack conceded that he had commenced personal injury proceedings and had joined the defendant company in those proceedings. It was put to him that he knew that his claim for damages would be compromised if he had seen the signs. Mr McCormack stated that he was not aware of that and had not been told so by his lawyers. Mr McCormack said he wished he had seen the signs because he would not have acted as he did on the day. He was now injured by electrical burns, he had 90 per cent loss of the use of his right leg and had dead tissue cut out. He now had less mobility and was restricted. 40 Mr Pigna was employed as the workshop manager by the defendant company. In that role, he oversaw the daily running of the workshop. The company was involved in electrical/mechanical engineering and repaired motors. No other business was conducted at the 34 Bay Street Botany site. The Marsim Group was the landlord and he had been dealing with one person from the Group from November 2002. There was a proposal for the defendant company to vacate the site by the end of February 2003. 41 On 14 January 2003, production work was being performed on the site by himself and others employed by the defendant company. He did not recollect meeting Mr Petrozzi before January 2003 but had met a group that was to perform an environmental assessment of the site before January 2003. The group performing that task attended on only one occasion. He described his involvement with the group as being minimal, merely showing them around the workshop and other places on the site. A representative of the landlord and three or four scientists made up the group He could not recall the names of the people in attendance. 42 Mr Pigna met the group in the reception area on the day of the group inspection but they were given no instructions and information about safety on the site. Mr Pigna decided to escort the group which was not performing work at the site but observing the site. It was the company's procedure that, if people were on the site, they were to be escorted if they were not actually working on the site. Maintenance people and other people working on the site were inducted and there was a procedure for induction which was contained on the computer intranet. Mr Pigna did not know if there was anything at the time that required him to provide the group with information about the safety of the site. 43 Mr Pigna said he was in charge of the site. There was a procedure to follow involving going to the reception area, signing the book and being escorted when visiting the site. If people were working on the site, the company had to know what they were doing and needed to look at what work was going on. A safety assessment would then be carried out. 44 Prior to 14 January 2003, he had made no arrangement for representatives of CES to be met on arrival at the site. He had received a call from a woman about a visit at a time when he was likely to be off site. He did nothing about arranging for somebody to meet her and forgot she was coming. He was not on site when the people from CES arrived and he had not spoken to anyone about them coming to the site. No one had been instructed to meet them and he had only a vague idea of what they were to do. The normal policy was to sign in such people to see what they wanted to do, to conduct a job safety analysis and then induct them. When asked what was involved in inducting people, Mr Pigna said that offhand, he really did not know but whatever was involved was contained in the document. Without looking at the document he recalled this involved walking people around the site to see where they would be working, what hazards might be there and then ensure electrical equipment was tagged and registered. There would be a consideration of what the hazards might be and a discussion about those hazards. 45 Glen Ford was employed by ABB as the electrical co-ordinator at the Bay Street Botany premises of the defendant company and held that position in January 2003. He recalled the accident involving Mr McCormack. He first met Mr McCormack at approximately 10.30 am on the day of the accident. He also met Ms Jukic for the first time when she attended the site with Mr McCormack. They met in the foyer of the office and Mr Ford spoke mainly to Mr McCormack and asked him why he was there as he had no prior knowledge of their attendance because Mr Pigna had made the appointment. Mr McCormack said that he was taking soil and fibre dust samples and that he wished to identify building and roofing materials before demolition. They walked through the workshop. Ms Jukic might have been going to take soil samples but Mr Ford was unsure sure of that fact. 46 Mr Ford then showed Mr McCormack and Ms Jukic the work being carried out in the bays. Bay 2 was not working so they could have free reign in that area to take any samples, dust or fibre materials In bay 3 half the machine shop had been removed but production was still being carried out on the electrical side. There were cranes and forklifts servicing this bay. Bay 4 was in full production and Mr McCormack said that they were not there to affect production. Bay 5 contained large motors and Mr McCormack asked how he might view the roofing materials. Mr Ford directed him to the end crane in bay 4 which had not operated for two years and was regarded as a dead crane. There was an access ladder in bay 4. Mr McCormack was told he could see the roof from the platform. Mr Ford remarked that, although he was not tall, he could touch the roof from that point. Mr Ford told Mr McCormack that the ladder was in bay 5 - at the time, the group was standing in the middle of that bay. He told them that two other cranes were working in the bay and that they could nudge the dead crane and it could be felt when working on the dead crane. Nothing was said about being on top of the crane - Mr McCormack was there to take a look at the roof. Mr Ford did not tell Mr McCormack about anything else he should do when he was on top of the crane. Mr Ford thought the last thing he said to him was that if he was in doubt about anything to see a section supervisor - each section had a supervisor - or Mr Ford himself could come if required. 47 Luciano Pigna was in charge of the factory, there being no other person in charge if he was not there. The role was shared, if necessary, between the electrical co-ordinator (Mr Ford) and the mechanical co-ordinator. At the time Mr Ford spoke to Mr McCormack and Ms Jukic, there were trucks coming in and out of the factory loading and transferring equipment to the new factory. Mr Ford was in charge of getting the trucks in and out. There was also work involved in cleaning up sections as they were stripped. There were scrap metal trucks coming in and it was quite busy at the time. 48 In relation to the procedure for people who came to the site as visitors, Mr Ford said they were to go to the reception area and sign on so that if there was an emergency, they would know who was on site. If such people were going to look at a job in the shop, they would be told that they were going into a machine shop area, they would need eye protection and safety shoes and then sign a form saying that they had been so instructed. Visitors would be walked around the site when it would be explained what went on in each area and that they should be careful in certain areas. When they came back, they would sign the induction paper. That document acknowledged that they would need certain protective equipment in the factory area. On the day of the incident involving Mr McCormack, the induction they received was to walk through the workshop and explain where they could and could not go and what the dangers were in the shop at the time. In relation to Mr McCormack, he was told that he could use the crane access ladder to get to the roof. Mr Ford did not tell him anything else because Mr McCormack said he wanted to view the roofing material and take some dust and fibre samples. There was no discussion about the hazards associated with that work because Mr Ford said there were no hazards as far as he was concerned and it was a safe area. The crane could not go anywhere because it was disconnected and Mr McCormack was only going to the top of the platform to view the roof and come down again. He was not told of any other hazards beyond the platform. Mr Ford marked on a photograph in evidence the viewing platform, being the area at the top of the ladder and extending to the crane platform immediately in front of the smaller platform at the top of the access ladder. Mr Ford made no assessment of the safety of Mr McCormack going to the viewing platform because this access was used by maintenance people all the time - that was how they got to repair the other cranes. There was no need to speak to Mr McCormack about it since Mr Ford deemed it to be safe. 49 In cross-examination, Mr Ford was shown photographs of the roof area of the factory and was able to identify two cranes next to each other. There were three wires travelling across the photograph which appeared to travel along the same line as the crane beam and a wall. Those three wires were called "aerials" and supplied electricity to the crane. Mr Ford was also able to identify the small platform immediately at the top of the access ladder: at that point, a person had to turn and take a step or two to get on to the crane platform. The sign to the left of the platform was approximately 1 metre to one and a half metres away being the sign bearing the words "DANGER - BEWARE OF ROOF BRACING". Mr Ford said he directed Mr McCormack to this area because at this point the roof was at a height where he could view it properly. Mr McCormack was substantially taller than Mr Ford; however, at this point, Mr Ford could touch the roof. Mr Ford estimated that the platform of the crane just off the access ladder and looking down the crane platform was about 18 metres where there was another sign saying, "DANGER LIVE WIRES". Mr Ford did not disagree with the distance of 15 metres being the span across the bay of the crane. His figure of 18 metres was only his estimate. 50 When Mr Ford spoke with Mr McCormack and Ms Jukic, he noticed that Mr McCormack had a bucket with some tools in it and that they both had hard hats. He did not think they had reflective vests. He did not know if they had any form of safety glasses. The conversation in the reception area took approximately two to three minutes. 51 When taking the tour through the factory, Mr Ford pointed out that bays 1 and 2 had been cleaned out and all machinery disconnected and moved. There were switches and fluorescent lights and some exposed wiring, but the wiring was dead because the fuses had been pulled out. He told the two that there were no problems in looking at the building materials there but they should check before they touched any exposed wiring. Where production was still taking place, Mr Ford told them to be aware of forklifts coming in and out and that trucks would be loading equipment. This was in relation to bays 3, 4 and 5 where production was still continuing. There were also overhead cranes in bays 3 and 4 one of which was dead and there were also two working cranes in bay 5. Mr Ford told them they would have to be extremely careful when dealing with the production areas, but Mr McCormack said he was not there to affect production and that they would both stay out of the way. In the conversation with Mr Ford, Mr McCormack concentrated on working in the roof, identifying the roofing material and taking dust and fibre samples from that area. Mr McCormack did not tell Mr Ford that he was going to the amenities block for the purpose of his investigation. To Mr Ford's knowledge, Mr McCormack did not tell him that he wanted to inspect or investigate the fluorescent lights and Mr Ford did not know that, when he was going up to the crane he was going to look at fluorescent lights at the top of the crane because he had only discussed roofing material. Mr McCormack did not ask Mr Ford how he could get access to the fluorescent lights in the roof. 52 When Mr Ford and Mr McCormack parted company, Mr Ford did not ask him what he was going to do because Mr McCormack had said that he was going to identify the roofing material. Mr Ford did not ask him to which other parts of the plant or factory he might be going nor did he ask any questions about what roofing materials Mr McCormack wanted to view and where because he assumed Mr McCormack had knowledge of what he wanted to view. Mr Ford did not ask any questions about other factory aspects Mr McCormack might be looking at because he had already told Mr Ford what work he was to perform. When Mr Ford spoke with Mr McCormack and Ms Jukic, he could see that they did not have any harness with them - apart from the bucket and its contents, Mr Ford did not see them with any other equipment. There was a difference between a site induction and a safety induction. A safety induction was normally where a person came into the workshop to view a particular item in the workshop and was made aware that the section they were going into required hearing protection or eye protection or the like. A site induction was for anyone working on the site: they were taken for a walk through the site and had explained to them the "do's and dont's" and the go and no-go areas on the site. Site induction was more detailed: it was the site induction that was given to Mr McCormack and Ms Jukic. On this occasion they did not sign the induction paper, although that was the usual practice. Mr Ford told them where they could go and where they could not go. In relation to where they could not go, Mr Ford told them it was the production areas and they were warned that, when walking through that area, they were to be careful because of the forklifts etc. At that point, they said they did not want to go into any of the production areas. The only no-go zones were the production areas which were the only ones discussed. Mr Ford did not tell them about other no-go zones because there were none. 53 On 9 January 2003, Duncan McAndrew from the Marsim Group sent a facsimile to Mr Pigna of ABB. In that facsimile. Mr McAndrew stated: The environmental site assessment shall be carried out at all times under the strict supervision of our consultants who shall be instructed to comply with the OH&S regulations of ABB. Additionally, they shall be instructed to comply with any site specific safety inductions and entry requirements that may be required. On 13 January 2003, Mr McAndrew sent a facsimile to Mr Petrozzi regarding the 34 Bay Street site. That email referred to a conversation held on 10 January 2003 and stated that Mr Petrozzi was to ensure that all personnel from CES and other contractors they engaged who were to carry out investigation work were to have, as a minimum when they arrived at the site, the identified PPE equipment, namely, safety boots and safety glasses. Additionally all personnel were required to arrive at reception and sign in and out each and every day. Mr Pigna was identified as the ABB contact for CES. It was common ground in the proceedings that this facsimile had not been seen by the defendant company at the time it was sent. Also, on 13 January 2003 Mr McAndrew sent a facsimile to ABB confirming the telephone conversation of 10 January 2003 that three people from CES would attend the site on 14 January next at 10 am to commence site investigation works. Those identified as attending were Ms Jukic, Mr McCormack and Mr Petrozzi. The facsimile stated: CES have been instructed to arrive to site (sic) with all the appropriate safety equipment and have been advised to sign in at reception with yourself. The facsimile was directed to the attention of Mr Pigna. 54 In evidence was a document entitled "Site specific induction", bearing the defendant company's name and the words "occupational health and safety company procedure". This document appeared to be directed to employees of ABB. In paragraph 12 under the sub-heading "Occupational health safety and environment", this document said that the ABB goal as applied to project safety was "no accidents, no incidents, no excuses" and was to maintain a safe and productive workplace through the provision of a safe and healthy work environment. Safety was to be an integral part of employees' working life and required continuous thought and action by every employee. Reaching these goals was to be achieved through the implementation of a comprehensive safety management system comprising: · a structured safety management team inclusive of national management through the site specific safety officers; · national health and safety procedures and policies; · site specific safety management plans; · comprehensive inductions and the issue of ABB handbooks "Employees general safety rules for accident prevention and electrical safety induction" or "Occupational Health Safety and Environment handbook for employees, contractors and sub-contractors". Paragraph 19 dealt with hazard identification risk assessment and risk control, and stated that ABB maintained processes for the identification and mitigation of potential or workplace hazards. It was the responsibility of every employee to identify those hazards, assess the risks associated with hazards and to take immediate corrective action to control such risk. An identified hazard was working at heights. When looking at hazards employees were told to consider whether the equipment or resources that were being used to perform the task were suitable for that task. 55 ABB's "Occupational health safety and environment handbook for employees, contractors and sub-contractors" noted that the company was committed to a workplace free from incidents and that it had over many years, developed strong health and safety policies and procedures in order to work safely. The procedures were available at all workplaces and were situated on noticeboards. The booklet had been written in order to help plan daily activities and to familiarise recipients with the company's various safety and environmental policies. The recipient was asked to read the document carefully and to follow the advice, rules, regulations and recommendations laid down in the booklet. The booklet contained a section on risk management and the use of job safety and environmental analysis. Both job safety environment analysis and work method statements were important where the job did not have a written procedure or work method statement and where the job was high risk. In relation to working at heights, the booklet said that, whenever possible, employees were to work within protective barriers. They were to avoid or minimise working at heights and where that was not possible and there was a risk of falling, a job safety environmental analysis should be used wherein hazards were identified, risks were assessed and the risks controlled by the use of one or more procedures or pieces of equipment, including safety harnesses, fall arrest systems and anchorages to eliminate the risk of a person falling. 56 ABB also had employees' general safety rules for accident prevention and electrical safety instructions. In this document, there was a section dealing with working aloft on scaffolds and working platforms and it spoke of the need for guardrails. Generally, in dealing with scaffolding, it was stated that, where there was a secure point for attachment, a safety line or harness was to be used by employees to provide a safer method of work to protect against the risk of falling. This was to apply when working off ladders, work platforms or any part of a structure when working in an elevated position. In relation to high voltage, it was stated that all high voltage mains and apparatus were to be regarded as alive until proved dead. Where employees worked in the vicinity of exposed live high voltage mains and apparatus they were not to allow any portion of their bodies or any moveable object or tool to come within specified minimum safe working distances. Where it was likely that an employee's body or any object which they might be carrying could come within the distances specified, suitable screens were to be erected or the exposed high voltage mains or apparatus were to be made dead, isolated and earthed. Isolation of high voltage mains and apparatus was to be effected by making a break in the electrical circuit. A particular job safety environment analysis/work method statement issued in March 2002 dealt with, amongst other things, roof access and identified personal protective equipment or controlled measures such as the provision of a harness and attention to height safety and electrical safety. DELIBERATION 57 It was accepted that the s 10(1) charge was a true alternative only to be considered in the event of the s 8(2) charge not being established. In these circumstances, the Court's consideration will initially be confined to the s 8(2) charge. Counsel for the prosecutor submitted that a number of the essential elements under s 8(2) of the Act were agreed, namely, that the defendant was a employer and Mr McCormack was not the defendant's employee. There was either a concession or an agreed fact that the premises were relevantly a "place of work" for the defendant. As to whether the risk arose from the conduct of the defendant's "undertaking", there were numerous references in the evidence to support a finding that there was such a relevant undertaking including the evidence of the premises, the work being performed at the premises and the various handbooks dealing with safety at the workplace of the defendant's undertaking. The incident involving Mr McCormack occurred while the defendant's business was still operating at the Bay Street premises. These formal elements were proved to the criminal standard. 58 The contravention alleged by the prosecutor focused on the defendant's failure to "adequately" restrict access to dangerous areas including overhead cranes and a failure to provide "adequate" information and instruction in relation to overhead cranes, work at heights and live electrical wires. The thrust of the prosecution case was that there was a failure by the defendant to "ensure" or "make certain" that such risks were not present. It was therefore important to focus, not on the circumstances of the accident, but on the offence charged under the Act and the alleged exposure to risk. 59 Mr McCormack was to work in the roof area and the chains at the top of the access ladder did not restrict access even if drawn across the opening. Access to the top of the crane area was free and uninhibited and it was not difficult to gain access to that area. While working in the roof there was a risk of falling 9 metres to the factory floor: there were holes and other impediments on the crane platform so that the risk of falling was real unless a person was restrained. 60 The sign "DANGER LIVE WIRES" meant that a risk of some sort had been identified. The presence of those signs simply prompted the question that, if seen, where were the wires that presented the danger? There were no wires actually seen near or in front of the sign. If live wires were identified in this way, why was there an ability to gain access to that area? The duty imposed upon the defendant was to ensure the safety of persons working in the roof area and it did not matter that it was difficult to get past the sign or the whiteboard in order to perform work in that area. 61 In relation to the point at which there was a risk of falling because of working at height, Mr McCormack could not recall exactly whether he went left or right around the post on the end of the beam of the first crane. If he had moved left past the post, he was at grave risk of falling to the ground. If he moved right, he was still at risk because the beam was narrow and he was moving on it. Holding on could create the danger of an electric shock and holding on to the bracing was no guarantee against that risk. The bracing was not designed to operate as railing. 62 The evidence of Mr Ford and Mr Pigna was that there was in operation a procedure for undertaking a job safety analysis. The safety analysis set out in the defendant's handbook was not performed at the time of this incident. It dealt with access to the roof, using a harness and working safely at height. Mr Ford was honest and frank in his evidence: he told Mr McCormack and Ms Jukic where the "go and no-go" zones were to be found. The only no-go zone was the production area, not the roof. This was ABB's workplace and it was its duty to ensure that Mr McCormack would not go somewhere on his own initiative without notice or warning to the defendant. The defendant's obligation in relation to its workplace was to ensure his safety and it was its obligation to make sure that he did not go somewhere on his own initiative, especially as he was a visitor to its place of work. Mr McCormack was not a regular visitor or one expected or who might be expected to know the dangers of that workplace. 63 The evidence showed that there was danger of falling from the top of the crane and there was danger of electrical shock when working in the roof area near the overhead cranes. Mr Ford thought that there was no risk in the roof area. In relation to the evidence of Mr McCormack and the likely submission that it was tainted by his desire for success in his common law damages claim, it was submitted by the prosecutor that his evidence was given honestly and forthrightly and, having regard to what occurred to him on the day, it was unlikely that his recollection of the details would be crystal clear. His evidence was that he simply did not see the signs but, having regard to the injuries he received, he wished he had. Ultimately, whether or not Mr McCormack saw the signs did not matter a great deal. The fact was that a person could get past the signs, could get past the posts on the side beam of the overhead crane and could walk alongside the live electrical wires. In such circumstances, the defendant failed to make certain or guarantee the safety of people like Mr McCormack working in that area and to protect them from coming into contact with the electrical wiring and/or falling from a height of 9 metres. 64 In relation to the statutory defences, there was no evidence led that would suggest that it was not reasonably practicable to deal with the risk in respect of falling. There was no evidence to suggest, for instance, that a harness could not be worn or that steps could not have been taken to allow Mr McCormack to do the work in the roof by providing access to it in some other way which would not have involved risk of a fall. There was no evidence to suggest that the power supply could not have been turned off or, alternatively, that Mr McCormack simply could have been told not to go to the roof area. For instance, Mr Ford could have instructed Mr McCormack that the electrical wires powering the overhead crane was a no-go zone which advice could have been given just as it was in relation to the production area. 65 The defendant relied heavily upon the presence of the signs but apart from the signs there were no other instructions or information provided to Mr McCormack about the dangers of working in the roof: the defendant was completely reliant upon Mr McCormack seeing the sign and knowing where the live wires were located so he could avoid them. 66 In relation to the s 8(2) charge, the defendant pointed to particular 1.1, namely, a failure to adequately restrict access to dangerous areas of the premises. It was submitted that, in light of all the evidence, the Court would have to determine whether or not the signs at the end of the crane platform including the whiteboard, coupled with the difficulty associated in moving past that point, the fact that there were handrails to that point and not beyond and the fact that it was obvious that it was not intended that a person walk past that point, were sufficient to discharge the issue of causal nexus: because of the presence of all these things, there was no causal nexus between the risk and any act or omission by the defendant. 67 In the alternative, it was submitted that, arising out of the same considerations, the defendant had discharged "the reasonably practical" defence. The evidence to support the defence was given by Mr Pigna and Mr Ford. On the evidence, they were the people in the defendant's employ who were the relevant persons in relation to site safety regarding this particular incident. 68 The starting point was to identify when it was that the risk arose because, prior to that time, there could be no contravention of s 8(2). On the evidence, the Court could only properly conclude that the risk arose at the time Mr McCormack stepped from the crane platform and on to the side beam. The risk of electrical shock could not arise, and did not arise until a person stepped on to the side beam. A person on the crane platform and using the handrail was not in any relevant sense at risk of electric shock. A person attempting to move from the platform on to the side beam was then at risk of falling from height but not until that point. When regard was had to all the steps taken by the defendant and the advice given by Mr Ford to go to the area of the handrail and not to go to any other area, the fact that the risk arose at the point of entering upon the beam resulted in the act or omission in this case not being that of the defendant. 69 Mr Ford identified to Mr McCormack the area at the top of the stairs as being the area he could go to perform his work regarding the identification of roof material. Mr McCormack only informed Mr Ford that he wanted to inspect the roof and did not inform him that he wanted to do anything else. Mr McCormack, at no point in his evidence in-chief suggested, that he wanted to see the lights. Mr Ford was apprised of the work to be performed by Mr McCormack and Ms Jukic. Having been told the nature of their work, he made an assessment based on his own knowledge of the premises. Mr Ford said it was safe to go to the area at the top of the ladder access to the overhead crane because he knew at that point he could touch the roof as could Mr McCormack, who was a taller person. So far as Mr Ford was concerned, at this point, Mr McCormack could carry out all the work he needed in order to identify the roofing material. 70 When Mr Pavert, then a WorkCover Inspector, attended the site, he used the ladder and walked the length of the crane platform with its handrail. He made no suggestion that it was unsafe either in documents or in his oral evidence. He made no suggestion that it was inappropriate for a person to walk along that platform nor did he suggest there was a need for any greater protection at that point, such as the use of a harness, or, indeed, anything else. Mr Pavert's evidence about the risk of falling was restricted to the risk of falling from the side beam, and related to the fact that Mr McCormack had stepped from the platform on to that beam. 71 It was accepted by the defendant that, once a person stepped on to the side beam, the risk of falling and the risk of electric shock arose. The prosecution noted that, at the point a person had to hold on to the wall bracing, to move from one brace to another, meant that a person would have to let go of the nearest brace, but that alleged requirement also applied to handrails. Moving along the crane platform with the handrails did not require constant holding on and there was no suggestion in the evidence that area was unsafe. 72 Mr Ford gave a direction to an area that facilitated the carrying out of the work Mr McCormack had described to him - that was an area in which Mr McCormack could safely perform the work. However, Mr McCormack went further, without notice, without telling anybody what he was going to do and without providing information that might lead to a line of enquiry by Mr Ford or the defendant. Importantly, Mr McCormack did not say that he wanted to look at the lights. Mr Ford presented as a witness of truth. He was clear (and his evidence was supported by Ms Jukic) that the lights were at no time mentioned when they were discussing the work to be performed while on the floor of the factory. 73 The prosecution's submission that there was no other instruction other than the sign did not give sufficient weight to the use of signs. The sign itself was an instruction, giving notice that the roof was quite close, because it warned about bracing, and also warned about the presence of live electrical wires. They were danger signs that were clear and obvious. In relation to the sign "DANGER LIVE WIRES", Mr Ford told Mr McCormack that, if they needed any machinery turned off or needed any help, he should come and see him or one of the supervisors. When a person was confronted by the 'DANGER LIVE WIRES" sign, and they were not sure where the wires were located, the instruction was to come and see one of the defendant's supervisors but Mr McCormack did not follow that instruction. The Court could not possibly accept that Mr McCormack did not see the signs. The signs were large, and "were placed in the appropriate position". All that Mr McCormack said was that he did not see them but he had no explanation for not seeing them. It was not possible that he did not see the signs. Mr McCormack tried at one point to provide an explanation, saying he was distracted by the work tasks, that he was looking down at the beam and was concentrating on doing the best possible job. Mr McCormack said that he did not look at the roof at that stage. That statement "beggars little belief". At that point, the roof was very close and the whole purpose of Mr McCormack gaining access to the roof could have been achieved there and then. All he had to do was to take a quick look to confirm what he already suspected was the fact, namely, that the roof was not made of asbestos but was made of corrugated iron. 74 Another difficulty for Mr McCormack's version of not seeing the signs was that he had to squeeze past the sign and the protective whiteboard at the end of the platform to get on to the side beam. At the point of stepping off the crane platform on to the side beam, a person would probably be standing just in front of the sign, certainly next to it, and it could not be missed. When Mr McCormack decided to move from the crane platform on to the side beam he had to negotiate two posts and clamber over them. There was also a roof under which he needed to duck and a further "DANGER LIVE WIRES" sign. Mr Pavert thought that it was difficult to step from the crane platform on to the side beam. This was an important matter because, in combination with the other factors, such as the absence of a handrail, it was obviously inappropriate to step out from the platform area on to the beam, which was only approximately one foot wide. In fact, when Mr McCormack saw it, he recognised that the beam was not a walking area. 75 Even if it was accepted that Mr McCormack was engaged on a frolic of his own, then it was necessary to consider all the factors, namely, the signage, the handrail, the directions and instructions given. Those matters in combination meant that the acts or omissions that gave rise to the risk here was Mr McCormack's acts or omissions, not those of the defendant. If the Court found that there was a causal relationship in relation to the s 8(2) charge, then it was submitted that the defendant had done everything reasonably practicable given those numerous and identified matters. It had to be remembered that there was nothing unsafe or inappropriate and there was no need of any form of restraint while working upon the crane platform. It was only when a person got to the beam that the risk arose. There was signage and there were instructions in circumstances where the defendant had not been told that there was work to be performed on the lights, and where the roof inspection was easily accessible from a safe area on the platform at the top of the ladder giving access to the crane. 76 I accept that the formal elements of the offence have been made out on the evidence, namely, that the defendant was an employer, that Mr McCormack was not the defendant's employee and that the alleged risk arose from the conduct of the defendant's undertaking while at the defendant's place of work. The question posed by the defendant amounted to a challenge that the prosecutor had not proved that there was a causal connection between the acts or omissions of the defendant employer and the consequent detriment to the safety of a non-employee. The submission was that, by signage and by directions given by Mr Ford, the defendant had taken all steps necessary to ensure the safety of Mr McCormack and it was only Mr McCormack's wilful disregard of those signs and directions that led to him being seriously injured. That submission had elements of the proposition rejected by Bauer J in Inspector Twynam-Perkins v Maine Lighting (1995) 100 IR 240 at 257 where his Honour stated: Much of what was urged (on behalf of the defendant) was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 77 The prosecutor relied upon the requirement of the Act and the provisions of s 8(2) requiring an employer to "ensure" that non-employees are not exposed to risk in the specified circumstances. It is sometimes said that offences such as s 8(2) created by the Act are "absolute" or "strict liability" offences but it is to be recognised that by specifying defences such as in s 28 the legislature has created a type of statutory hybrid involving the imposition of absolute duties subject only to statutory defences to be proved by a defendant after the offence has been established. 78 Putting to one side the most appropriate description of the duty created by s 8(2), the Court's enquiry might properly commence with a consideration of whether or not the defendant company had ensured the safety of Mr McCormack by the notices placed in the roof area of the factory and by the directions given by Mr Ford. The answer to this question requires careful consideration of the evidence. 79 On 9 January 2003, the Marsim Group notified Mr Pigna of the defendant company that the environmental site assessment was to be carried out at all times under the strict supervision of their consultants who "shall be instructed to comply with the occupational heath and safety regulations of ABB". Additionally, they were to be instructed to comply with any site specific safety induction and entry requirement that might be required. By the terms of this document, Mr Pigna was made aware that it was the defendant company's safety regime that would be applied to CES when they were on site. From his participation in the December inspection of the site Mr Pigna was also aware, admittedly in very general terms, of the purpose of CES presence on the site, namely, an inspection to detect hazardous materials or contamination. Mr Pigna was contacted on the day of the accident by Ms Jukic but he seems to have anticipated that he might be busy and might not be on the site when they arrived. It appears that he was not only absent from the site when they did arrive, but had forgotten about their visit and had made no arrangements for their induction in accordance with the defendant company's usual policy when people came on to the site to work. He made no alternative arrangements for someone else to conduct the site and safety induction and left no information, even in the broadest terms, about who was coming and for what purpose, or what was to be done with them in terms of safety inductions. 80 In his evidence, Mr Pigna said there was a policy applying to induct any person attending the site if they were working on the site. The company had to know what work was being performed by those who were coming on to the site - it needed to look at what work was going on at the site and then a safety assessment was to be carried out. After it had been established what was needed to be done on site, by those attending to work at the site, a job safety analysis was required to be conducted and induction was to then take place. The job safety analysis was a consideration of the likely hazards to be encountered and would involve a discussion about them. 81 Ms Jukic's evidence was that, when she and Mr McCormack arrived, Mr Ford was not aware that they were coming and, because of the dislocation of the premises, put that down to a breakdown in communication. It was Ms Jukic's evidence that they had a brief walk-through of the factory, and they also had a brief discussion with Mr Ford in the reception area about they work they were to perform that day. She recalled that Mr Ford described in a vague way what was going on in each bay and that he said that, where there was no work being performed, they had unlimited access. According to Ms Jukic, they could have access anywhere but, if the machines were operating, they were to check before working. Mr Ford could have said that they were to make no assumptions in bays where the machinery had been disconnected. 82 While discussing the work on the factory floor, Ms Jukic heard Mr McCormack say to Mr Ford that he wanted access to the roof. Mr Ford told her that if they needed the machinery switched off to tell him, but she heard nothing said by Mr Ford about safety at the site. Mr McCormack had told Mr Ford that he was looking at roofing materials and their composition but made no mention of inspecting the lights. The general tenor of Ms Jukic's evidence was that the discussion with Mr Ford in the reception area and on the factory floor was relatively brief and did not involve any particular discussion about safety: the nature of the discussion with Mr Ford was placed against the background of Mr Ford not expecting their attendance and in circumstances where the factory was being decommissioned. 83 Mr Petrozzi of CES was present at the first inspection of the site in December 2002 and believed that he had told Mr Pigna the details of the work to be undertaken at the site by his company but he could not recall what was said. Mr Pigna regarded himself as having minimal contact with the inspecting group during the course of the December 2002 visit but was aware that it involved an environmental assessment of the site. 84 Mr McCormack's evidence was that he told Mr Ford in the reception area that he was looking for contamination and asbestos on the site. It was his impression that Mr Ford knew what CES were doing on the site - there was a further discussion on the factory floor about what they were doing that day, including where they were going. Mr McCormack said that he asked to inspect the roof and that Mr Ford told him that a crane was available, although it was not working but had a handrail. Mr McCormack was told he could inspect the roof from that crane. He said Mr Ford gave no instructions as to where not to go nor did he mention anything about the defendant's safety requirements. 85 Mr McCormack said that he was to conduct a hazardous materials assessment of the site and had tools with him for that purpose. He commenced his hazardous audit at the toilets and amenities block and took samples from that area. In the reception area, Ms Jukic had briefly spoken about what their work involved and, although Mr McCormack could not recall the specifics of what was said, she had generally described the work to be performed. Mr McCormack had no recollection of Mr Ford saying, while they were gathered on the factory floor, that some parts of the factory were working, other parts were not or mentioning decommissioned machines or fuses being removed from such machines and if they worked in that area they should be careful. 86 Mr McCormack could not recall the words he used when he told Mr Ford that he wanted to inspect the roof but did accept that he did not mention inspecting any of the light fittings. Mr Ford directed him to an access ladder leading to a crane in the roof - the purpose of using that crane was to inspect the roof. 87 According to Mr Ford's evidence, when the parties met in the reception area, Mr McCormack told him that he was taking soil, fibre and dust samples and wished to identify building and roof materials before the demolition of the factory. Mr Ford said they were given free reign of the empty bays to take dust and fibre samples and to inspect building materials. 88 On the factory floor, Mr Ford said he described what work was being performed in each of the bays. For example, in bay 2, as it was not working, they could have free reign in that area to take any samples of dust or fibre materials. While in bay 5, Mr McCormack asked how he might view the roofing materials. Mr Ford directed him to a crane which had not operated for two years and the access ladder to that crane. Mr McCormack was told he could see the roof from the platform. Mr Ford also mentioned that there were other cranes working that could nudge the dead crane and which would be felt when working on the crane. Mr McCormack said that he was there to take a look at the roof. Mr Ford told him nothing about anything else he should do when on top of the crane. 89 In the course of giving evidence about the usual induction carried out by the defendant, Mr Ford said it included taking visitors around the site and explaining to them what work was being performed in each area and in what areas they were to be careful. On the day of the accident involving Mr McCormack, the induction involved a walk through the workshop, an explanation of where they could and could not go and what the dangers were in the shop at the time. No mention was made of dangers in the roof area. Mr Ford was aware that Mr McCormack wanted to view the roofing material to take some dust and fibre samples. Mr Ford did not regard the roof area as being of any danger and it had been used by maintenance men when servicing the cranes. There was no need to speak to Mr McCormack about this area because Mr Ford deemed it to be safe. While Mr Ford was telling them to be extremely careful when dealing with production areas, Mr McCormack said that they were not there to affect production and they would stay out of the way. However, Mr Ford noted that Mr McCormack concentrated on working in the roof identifying the roofing material and taking dust and fibre samples from that area. Mr Ford did not ask Mr McCormack about what roofing materials he wanted to view and assumed that Mr McCormack knew what he wanted to look at. 90 From this survey of the evidence it seems clear that, when Ms Jukic and Mr McCormack arrived at the factory, Mr Ford was caught unawares and had not been informed by Mr Pigna of their planned inspection and what was involved, although Mr Pigna knew (from the email from the Marsim Group) that they were to be inducted in the defendant's safety system and were to comply with that system. Mr Ford was undoubtedly busy with the relocation of the business at the time of the visit. The defendant had an established safety system including induction for persons working on the site. The walk through and discussion conducted by Mr Ford appeared to have been brief and did not appear to have followed the usual practice of the defendant in conducting a more detailed site induction for persons working at the site. There was no requirement imposed on CES to give a detailed description of the work they were to perform prior to arriving on site or to provide a work method statement: Mr Ford's discussion with Mr McCormack and Ms Jukic proceeded on the basis that they told him what they were to do rather than Mr Ford asking for details so that a job safety assessment could be conducted in accordance with the defendant's normal practice and an assessment made of the likely dangers. That part of the defendant's usual practice was not followed at all on this occasion and Mr Ford concentrated on receiving a general description of the work to be performed. 91 When Mr McCormack spoke about inspecting the roof, he was not only directed to the access ladder and the platform at the top of it but also to the overhead crane that was said to be "dead". Mr Ford particularly mentioned that the crane could be nudged by the working crane while standing on it, a comment relevant only if he understood that Mr McCormack was likely to move from the small platform at the top of the access stairs to the crane in order to carry out his inspections. Although Mr McCormack accepted that he did not mention inspecting the lights, Mr Ford knew that his role was wider than simply looking at the roof: on several occasions in his evidence, Mr Ford recorded that Mr McCormack was taking soil, fibre and dust samples and was identifying roof and building materials. Mr Ford made no enquiry as to precisely what was involved in that task or as to what extent any samples would be taken in that area. Mr Ford's evidence showed that he saw no difficulty with the taking of building samples but, having regard to the state of the factory which was in the course of decommissioning and removal to a new site, he had concentrated upon potential dangers on the floor of the factory presented either by the operating machinery, disconnected wiring or the presence of forklifts and trucks. 92 Contrary to the defendant's submission, the evidence does not show that Mr Ford gave Mr McCormack a direction to go only to the area where there was a handrail and not to go to any other area, nor did Mr Ford indicate that Mr McCormack could perform and should perform all of the work required in the roof from the small platform at the top of the access ladder. There were no restrictions placed by Mr Ford on Mr McCormack working in the roof because Mr Ford regarded the roof area to be a safe place despite the presence of hazards and voids on and in the crane platform and the presence of live electrical wires. Contrary to the defendant's safety booklets, no consideration was given to the need for a harness while working in the roof. Further, Ms Jukic and Mr McCormack were not provided with a copy of the contractor's booklet dealing with working at heights and near live electricity. 93 There is no substance in the contention that the handrail operated as an indication that a person should go no further than the handrail extended, nor that the signs were a direction to go no further. The very nature of Mr McCormack's work (and possibly the work of others) may have involved going to areas beyond the platform, the handrail and the signs. The signs did not carry a direction not to proceed further: nor did Mr Ford give a direction not to work beyond the handrailing or to ask for the crane to be turned off if working in that area. Turning off machinery referred only to machinery on the factor floor, and the option of having the cranes turned off was not specifically mentioned. 94 According to the evidence of Mr Pigna and Mr Ford (evidence supported by aspects of the defendant's written safety rules), it was clear that, in normal circumstances, a very different induction would have taken place involving a more detailed discussion of the work to be performed by Mr McCormack and Ms Jukic which discussion must necessarily have involved finding out precisely what work was to be performed in the roof area. In such discussion, it was inevitable that Mr McCormack would be advised of the presence of the live wires powering the overhead crane and some discussion might then have been necessary as to whether that power was to be maintained or disconnected, and consideration given also to what fall safety gear might be necessary in performing the task. That would have happened according to the company's normal practice and it was reasonable and practicable for such an approach to be adopted. 95 I cannot accept the defendant's submissions that the danger of falling was confined to the work being performed by Mr McCormack when he stepped on to the narrow beam from the wider crane platform with its railing. The wider crane platform had a safety rail on one side but not on the other. There were hatches, a motor and voids in the platform which presented obvious hazards to anyone working from the crane platform. While it could be accepted that the danger of falling from a height was increased once Mr McCormack stepped on to the narrow beam, that fact did not detract from the need to take appropriate precautions against persons stumbling or losing their footing while working on the wider platform. 96 In the defendant's submissions, much was made of the fact that the warning signs in the roof area were clearly visible and that Mr McCormack must have seen them. I accept that the signs were placed so that a person reaching the top of the access ladder and looking to the left would be warned about the danger of bracing and that, once on the crane platform and looking down that platform, could see a larger sign warning of live wires and overhead bracing. The signs were clear: there was no evidence that the lighting was such that they could not be made out. 97 Mr McCormack's evidence was that he did not see the signs, that he did not look to his left as he got to the top of the access ladder and, although the signs were in front of him while he was on the crane platform and although he was very close to them when he moved past them and the whiteboard to step on to the narrow beam, effectively, their message simply did not register with him. The evidence suggested that there were at least three occasions, while Mr McCormack was at the top of the access ladder or on the crane platform, where these signs would have been visible although I am unable to find on the civil standard that the smaller sign on the second crane was visible to Mr McCormack once he had stepped on to the narrower beam. Photographs of this area suggest that the sign on the second crane was not directly in his line of sight - there was no other evidence that operated to alter that distinct possibility. Mr McCormack was unable to explain why he did not see the signs, although he spoke of looking at the roof, then looking at the platform just in front of his feet and then looking out over the factory. Given these activities it nevertheless seems that there would be occasions when the signs were able to be seen by him. I am unable to explain from the evidence why Mr McCormack did not see those signs, but I am not prepared to make a finding that Mr McCormack is not to be believed in relation to this evidence and that his evidence was explicable only by reference to the fact that he had commenced civil proceedings against the defendant in which acknowledgement of seeing the signs would detract from his case. Mr McCormack was severely injured in this accident and much of his recollection was vague: he could not recall how he got up the access ladder or what he did with the tools and could not recall the details of the conversation with Mr Ford. Whether because of his concentration on the task while working at height or for some other reason, he did not see the signs about live wires, however, does not substantially advance the defendant's case. 98 There was some substance in the prosecutor's submission that such signs raised the question of where the live wires were located and did not overcome the difficulty that, once the defendant through Mr Ford was aware that there was work to be performed in the roof including the taking of samples, a specific warning should have been given to Mr McCormack to stay away from the end of the crane where the live electrical wires were located. Even if Mr McCormack saw the signs and had ignored them, or thought that the crane he was walking on was not electrically alive, again, the defendant's position was not much advanced: as earlier referred to, the decision in Maine-Lighting emphasised the requirement of an employer under the Act to ensure the health and safety of persons who are not necessarily diligent or are on something of a frolic of their own. 99 Mr McCormack was an environmental scientist. His task that day included not only looking at the roofing material but to take samples from the building. An enquiry as to what was involved and to what extent that needed to take place in the roof, as opposed to elsewhere in the factory, would have enabled the type of discussion to occur as envisaged by the defendant's existing induction programme. There could have been a discussion about whether lights were needed to be examined in the roof or, if necessary, at that particular place in the roof or whether there might be some better and safer place to examine the lighting and the capacitors. In addition, the signs achieved nothing by way of warning or offering protection against falling either from the unguarded side of the crane platform or through the voids in the platform or the end of the platform including falling from the narrower beam. Having regard to these matters, the evidence established the necessary causal connection between the acts or omissions of the employer and the consequent detriment to the safety of a person working such as Mr McCormack. The defendant knew of the risks of working at heights (and had mentioned it in its safety manuals). It was also aware of the presence of live electrical wires in the roof area. 100 Having regard to the abovementioned matters, the prosecutor has established a breach of s 8(2) of the Act as particularised in the charge brought against the defendant company. The defendant relies upon the same combination of matters to raise a defence under s 28 of the Act. I am unable to accept that submission. In particular, the defendant has not proved that it was not reasonably practicable for it to comply with this provision. As already indicated, adherence to its own protocols for the induction of persons working on the site would have led to a closer examination of the work to be performed in the roof area and would have necessitated a discussion about the dangers present in that area, including the dangers of falling and coming into contact with electrical wiring. The conduct of the required job safety analysis apart from identifying these potential dangers would then have addressed the way in which the work could be performed without exposing Mr McCormack to these risks. Here, the risks were not merely speculative or unduly remote: it was known that Mr McCormack was to work in the roof thus raising the issue of safely working at height and near electrical wiring. The defendant has therefore failed to make out a defence to the charge. 101 Having found the s 8(2) offence proved, it is not necessary to consider the s 10(1) offence pleaded in the alternative. The parties are to contact my Associate within fourteen days to arrange a suitable date for the hearing of evidence and submissions on penalty. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.