Industrial Court of New South Wales CITATION: Inspector John Sibilant v Stowe Australia Pty Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 [2008] NSWIRComm 42 PROSECUTOR: Inspector John Sibilant PARTIES: DEFENDANT: Stowe Australia Pty Ltd FILE NUMBER(S): IRC 2229 of 2006 CORAM: Haylen J Occupational Health and Safety Act 2000 - s 8(1) - fatal accident in course of electrical upgrade of telephone exchange - documented system of work not adopted at exchange - whether actual work place practices nevertheless ensure safety of employees - alleged failure to conduct appropriate risk assessment before work commenced on exchange electrical circuits - alleged failure to have documented work practises on site and use of tape rather than appropriate tags in isolation process - alleged lack of supervision and training - alleged failure to adopt safe re-wiring practices and failure to properly instruct employees on use of voltmeter safety device - identification of system of work - system to protect against risk of electrocution - error to focus on accident rather than breaches as particularised - causal connection established between acts and omissions of defendant and particularised risk to safety of employees - breach established - defendant fails to discharge onus regarding defences CATCHWORDS: Occupational Health and Safety Act 2000 - s 107(1) - s 107(3) - whether it appears from the report or the proceedings at an Inquest that an offence committed against the Act - provisions of s 107(3) satisfied Coombs v Patrick Stevedore Holdings Pty Ltd [2004] NSWIRComm 77 Cullen v State Rail Authority (1989) 31 IR 207 at 209 General Cleaning Contractors v Christmas (1953) AC 180 at 193-4) Inspector Barnard v Rail Infrastructure Corporation (2001) 109 IR 209 Inspector Ching v Bros Bins Systems Pty Ltd and anor [2004] NSWIRComm 197 Inspector Covi v The Crown in Right of the State of New South Wales (NSW Police) [2004] NSWIRComm 128 Inspector Haynes v CI&D Manufacturing Pty and anor (1994) 60 IR149 Morrison v GPR Engineering (Central Coast) Pty Ltd [2003] NSWIRComm 56 CASES CITED: Raimondo v State of South Australia (1979) 23 ALR 513 at 517-8 Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] NSWIRComm 277 WorkCover Authority v Hedrick t/as Graeme's Fine Finishes (unreported - 9 April 1998) WorkCover Authority v Fernz Construction Materials (No 2) (2000) 100 IR 23 at 35 WorkCover Authority (Inspector Farrell) v Morrison [2001] NSWIRComm 325 at [45] WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs and ors [2003] NSWIRComm 452 WorkCover Authority (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [78] HEARING DATES: 26/03/07, 27/03/07, 28/03/07, 29/03/07, 30/03/07, 02/04/07,03/04/07, 02/05/07, 03/05/07, 04/05/07, 05/02/08 Written submissions: 7 June 2007; 7 December 2007; 5 February 2008; 6 February 2008; 8 February 2008 DATE OF JUDGMENT: 6 March 2008 PROSECUTOR: Mr M Joseph SC with Mr A Naylor of counsel SOLICITORS: Legal Group WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr I Neil SC SOLICITORS: Toomey Pegg Drevikovsky JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 6 March 2008 Matter No IRC 2229 of 2006 INSPECTOR JOHN SIBILANT v STOWE AUSTRALIA PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 42 A WORKPLACE FATALITY 1 Stowe Australia Pty Ltd ("Stowe") is a sizeable company that in 2002 and 2003 was involved with the installation, servicing and maintenance of telecommunications/data networks and electrical power equipment. In June 2002, it successfully tendered for the emergency and exit lighting upgrade at a number of Telstra telephone exchanges. Transfield Services Australia Pty Ltd ("Transfield") had been engaged by Telstra Corporation Ltd ("Telstra") to provide services including management services so that Transfield managed the maintenance and upkeep of all Telstra neighbourhood telephone exchange buildings nationally. As part of this task, Transfield had invited tenders to upgrade the exit and emergency lighting and associated works at 108 sites. Connell Wagner Pty Ltd ("Connell Wagner") was the superintendent of this upgrade contract. 2 On 14 January 2003, work under the upgrade programme commenced at the Telstra telephone exchange located in Livingstone Road Marrickville (also known as the Undercliffe Exchange). On the following day 15 January 2003, four employees of Stowe were engaged on the upgrading task at this exchange: Robert Cowderoy, Panagiotas Mihail, Paul Novak and Michael Harrison. At approximately 2.00 pm, Mr Cowderoy was working in the foyer area of level 1 of the exchange installing a new exit light and shortly after was electrocuted. Despite attempts at resuscitation by Mr Harrison and later by ambulance officers Mr Cowderoy died later that day. AN INQUEST AND CHARGES LAID UNDER THE OCCUPATIONAL HEALTH AND SAFETY ACT 2000 3 The circumstances of the death of Mr Cowderoy were the subject of a Coroner's Inquest. The Coroner's findings were announced on 24 April 2004. On 21 April 2006 Mr Sibilant, a WorkCover Inspector appointed under the Occupational Health and Safety Act 2000, commenced proceedings in the Court alleging that Stowe had breached the provisions of s 8(1) of the Act in relation to the work being conducted at the telephone exchange. 4 The particulars of the charge were that Stowe had failed to ensure the health, safety and welfare at work of its employees, in particular, Robert Cowderoy, Panagiotas Mihail, Paul Novak and Michael Harrison in that it failed: (a) to provide, promulgate and/or maintain a system of work for the installation and upgrading of emergency and exit lighting at the Undercliffe exchange that was safe and without risk to the health and safety of its employees in that: (i) it failed to ensure that the Method of Procedure, the Occupational Health and Safety Plan and the Safe Work Method/Procedure Statements for the Emergency and Exit Lighting Upgrade at various Telstra telephone exchanges including the Undercliffe exchange, were on-site at the Undercliffe exchange at all times that work was being carried out by or on behalf of the Defendant; (ii) it failed to ensure that the Method of Procedure, the Occupational Health and Safety Plan and the safe Work Method/Procedure Statements for the Emergency and Exit Lighting Upgrade at various Telstra telephone exchanges including the Undercliffe exchange, were being followed by its employees including Robert Cowderoy and Michael Harrison; (iii) it failed to ensure the use by its employees of adequate electrical circuit isolation techniques; (iv) it failed to ensure that its employees, when connecting electrical circuits, followed a technique of connecting such circuits in a sequence that resulted in the load side being connected first and the (actual or potential) power source side being connected last; (v) it failed to ensure that comprehensive electrical circuitry investigation and identification was undertaken prior to the commencement of electrical installation work; (vi) it failed to ensure that a comprehensive site-specific risk assessment of the Undercliffe exchange was conducted prior to the commencement of electrical installation work. (b) to provide such training and instruction as may be necessary to ensure the health and safety at work of employees engaged in the installation and upgrading of emergency and exit lighting at the Undercliffe exchange in that: (i) it failed to provide adequate training or instruction to Michael Harrison, a qualified electrician employed by the Defendant and engaged in the installation and upgrading of emergency and exit lighting at the Undercliffe exchange, in the content and application of the Safe Work method/Procedure Statements for the Emergency and Exit Lighting Upgrade at various Telstra telephone exchanges including the Undercliffe exchange; (ii) it failed to provide adequate training or instruction to Michael Harrison in the use of voltage testing devices in particular the "Wattmasta Yellow Volt Stick Model No N10145 1000 Volt AC rating"; (iii) it failed to provide adequate training or instruction to Michael Harrison in relation to the use of a technique of connecting electrical circuits in such a sequence that resulted in the load side being connected first and the (actual or potential) power source side being connected last; (iv) it failed to provide adequate training or instruction to its employees, in particular Robert Cowderoy, Panagiotas Mihail, Paul Novak and Michael Harrison, in electrical circuit isolation techniques. CONTRACTOR SPECIFICATIONS AND CONTRACT PROVISIONS 5 Transfield provided the contractor specification document, a document used by those wishing to tender in relation to the upgrade project. The contractor specification noted that the deregulation of the telecommunications industry allowed many external companies to use Telstra facilities and that the facilities had become more accessible "to the public domain". The specifications stated: The users of these facilities, many of who are non-Telstra employees or indirectly employed via a sub-contractor, must be provided with a safe working environment. The purpose of the contract was to investigate and upgrade the exit and emergency lighting and associated work at 108 nominated Telstra telephone exchanges. At those sites where exit and emergency lighting already existed that lighting was powered by a centralised battery system. The system was to be upgraded to stand alone units with their own built in battery in accordance with AS 2293. 6 The telephone exchanges were described as telecommunication switching centres that were security controlled and contained supplementary power generation facilities to ensure communication services continued when mains power failed. The buildings were described as generally of concrete framed or masonry construction with varying roof structures often containing extensive roof mounted aerial equipment. The exchange was said to commonly contain various other electrical switchrooms, air conditioning plant rooms, uncrating rooms with monorail cranage equipment, office and workshop spaces, staff amenities and vacant space for future expansion. The majority of exchanges were unoccupied and had infrequent visitors. 7 Under the heading, "Works Preliminaries", it was stated that the contract documentation was to be read in conjunction with a nominated contract and that particular documentation was referred to as "the specification". Floor plans of the electrical works for each Telstra exchange site were available and were referred to as "the drawings". Three sample sites representing small, medium and large sites were issued to tenderers for pricing information. The document stated: It should be noted by all parties to the contract that these drawings may not be accurate, are generally not to scale, and may contain redundant and irrelevant information. Contractors must visit the site to determine for themselves the quantum of work to be carried out. If discrepancies are found on-site compared to the drawings, the contractor shall provide a written advice to the Superintendent together with other details that may be required. 8 Under the heading "Documentation issued by contractor" the following was stated: General: all contractor documentation requested as part of the contract deliverables is to include the Site PMS Code in the document header or title, as found in Appendix A. This includes but is not limited to all drawings, MOPs, logbooks and other O & M manuals ... .. All contractors were to allow for a half-day induction course to be attended by all personnel intending to work on-site at each of the exchange buildings. The purpose of that attendance was to explain hazards and working procedures. In relation to methods of procedure, for items of work executed by the contractor the Superintendent or facility manager could request details of proposed Method of Procedure (MOP) for approval prior to execution of works. 9 The MOP document was described as equating to a step-by-step work method statement which had to be prepared by the contractor under the guidance of the Superintendent and approved by the owner before work commenced. It was stated that usually a generic MOP could be prepared and applied to all sites. Risk assessments had to be undertaken for working at height, in switchboards, above Telstra equipment and appended to the MOP. In relation to existing services, the specifications stated that the contractor had to attend to existing services including submitting proposals for action to be taken with respect to existing services before starting the work, minimising the number and duration of interruptions, with those submission to be reviewed and approved. There was also a requirement that the contractors' MOP be submitted for approval by the facility manager. 10 In relation to safety and under the heading "Responsibility", the contractor was to submit MOPs for emergency procedures for the Superintendent's approval. On-site safety for all the trades during the work was to be the responsibility of the contractor. The contractor was to promote positively the pursuit of safe working practices and enforce the use of all necessary safety equipment where required. Assessment of the works and identification of potential safety hazards were to be documented in MOPs and submitted to the Superintendent for approval prior to the commencement of works. The contractors' nominated safety officer was to monitor working conditions ensuring all MOPs were followed and the site maintained to the facility manager's direction and approval. There was an obligation to attend site meetings as directed by the Superintendent with Minutes of site meetings being promptly taken and distributed to relevant parties by the Superintendent. 11 Under provisions dealing with the "Site Plans" the following was stated in paragraph 4.1: All upgrade works have been predetermined and marked-up on to A3 size plans by the Superintendent. All efforts have been made to document all floor plans relevant to the Telstra T E property, where any omissions or discrepancies are found on site such issues must be reported to the Superintendent immediately. Floor plan drawings have not been confirmed against site conditions. Electrical floor plan mark-ups consist of the following: (i) exit signage (directional and non-directional); (ii) emergency lighting; These plans show the desired reconfigurations of walls and doors to achieve a BCA certification and hence do not necessarily match site conditions. Under "Points to Note", it was stated that drawings were diagrammatic and were not to scale, that drawings had not been site verified, that equipment layouts shown on drawings might not be current layouts and that electrical distribution board locations and lighting wire circuits were not known and only emergency signage/lighting locations were shown on the electrical mark-up drawings. The scope of works indicated on the drawings and schedules defined the issues to be checked on site, confirmed, deleted or modified for construction purposes. 12 Under the heading "Deliverables", the specifications required the electrical contractor to provide a number of matters including, in relation to establishment and disestablishment, visiting each site and confirming lighting layouts with drawings (requiring investigation) and attendance at project site meetings. Drawings were to be produced of each floor plan identifying the distribution board and their numbers from which different lighting circuits were fed: all light fitting positions, the labelling of each fitting with a unique identification number and the location of test switch (ES) or monitoring systems was applicable. CAD drawings were to be produced from the Superintendent's drawing using site confirmed information. The drawings were to detail building elements, including issuing the site confirmed works drawings (in CAD format) for approval and comment by the Superintendent prior to commencement of work and the issue or confirmation of MOP requirements with the Superintendent/facility manager prior to construction. All works were to comply with all three parts of AS 2293 "Emergency evacuation lighting for buildings and the relevant provisions of the building code of Australia". 13 After the acceptance of Stowe's tender, Transfield forwarded to Stowe documentation said to form part of the "order" and which included the Transfield general conditions of contract for emergency and exit lighting upgrade and associated works specification reviewed by Connell Wagner. The value of the order was said to be over $1 million plus GST. The letter of acceptance of the tender noted that Connell Wagner had been engaged by Transfield to oversee the project. Under the terms of the contract it was an obligation of the contractor to inform itself fully on site conditions and all documents furnished by Transfield prior to it tendering for the work and to fully satisfy itself regarding all the conditions, risks, contingencies and other circumstances which might affect its performance of the work. In relation to clauses dealing with site safety and procedures, the contractor was to familiarise itself and its employees with the relevant occupational health and safety legislation, the site safety rules and regulations, associated permitting systems and procedures and to ensure that they were understood and observed in the execution of the works on site. Transfield was to provide to the contractor relevant site safety guidelines and procedures. The contractor was to comply with and ensure that its associates complied with the contractors' own and Transfield's environmental and occupational health and safety policy, procedures and measures as notified to the contractor and which were in any way applicable to the contract or the performance of the work. The contractor, in carrying out the works, was to provide all necessary safety and precautionary measures to avoid personal injury and damage to property. In relation to the performance of the work, the contractor was to comply with the quality assurance/quality control requirements as detailed in the specification or in Schedule 3 of the contract. 14 In the Schedule to the contract dealing with special conditions, the contractor was to provide and ensure that a site log book specific to the project was maintained on the site. To be included in the log book were details of isolating the fire panel, work schedules, Method of Procedure and job analysis (JA). The contractor was required to develop and arrange for a "Method of Procedure" for the works and to advise the customer of the proposed installation date for the equipment at each site. The Method of procedure was to be submitted to Transfield for approval in accordance with Telstra procedures. The contractor was also required to develop and arrange for a job analysis of the works detailing risks and measures to be put in place to reduce hazards. The JA was to be submitted to Transfield for approval prior to the commencement of work. 15 In Stowe's tender quotation, a fee of $242 was to be charged for each site for establishment and site survey and $130 was charged for capital drawings. These were referred to as the base unit rates for pre-construction deliverables per site. STOWE SAFETY DOCUMENTS 16 Two documents used by Stowe were tendered in evidence. The National Electrical and Communications Association ("NECA") had produced a handbook entitled, "A Safety Guide for employees in the Electrical Communications and Data Industries - 2000". In the preface, the booklet said it was not intended to be a fully comprehensive manual of safe working practices in those industries because some of the practices might vary according to the type of work a particular company performed and the risks associated with that work. The booklet was advice in the form of rules to help prevent accidents and injuries and was intended to supplement the Acts and Regulations of the States, Territories and the Commonwealth and was not intended to revise or alter any of them. The rules were said to be non-exhaustive and did not relieve the recipients of their personal responsibility to make sure that they understood their statutory obligations as an employee. 17 The NECA booklet provided a page where the recipient could print their full name as acknowledging receipt of the safety guide from their employer. That page acknowledged that the employee read and understood the contents of the booklet and, to the extent that there were any uncertainties about the content, the recipient undertook to clarify such matters immediately with their employer. There was an undertaking to comply with statutory regulations and industry standards and safety rules including the proper use of all personal protective equipment and safety equipment. 18 Particular attention was directed to the following provisions of the NECA booklet: (i) in Chapter 3, "Proactive Safety" stated that pro-active safety involved whatever actions could be taken to eliminate or minimise hazards, risks and dangerous situations before they happened. The first step was to "isolate, lockout, tagout and test". This section stated that whenever an employee could be endangered in their work by the presence or operation of, amongst other things, the flow of electricity, the employer was required to take preventative action. It was to isolate the potential danger, prevent others from operating the source by locking out the isolator, tag the switch or isolating device and test to ensure that it was safe for the employee to proceed. It was noted that a number of industry workplaces had site specific isolation procedures; (ii) it was stated that danger tags were to be securely attached to the isolator/control switch so that there was no risk of them becoming dislodged and they were to be clearly visible to ensure inadvertent restoration of power did not occur. Site specific policy should include a danger tag being affixed by each person working on the equipment; each danger tag to bear the employer's name, an employee's printed name as well as the employee's signature and date; each person being responsible for placing their own danger tag prior to commencing work and removing the tag when work was completed or at the end of the work period; when working alone and the job incomplete at the end of a work period, the employee was to remove the danger tag and replace it with an "out-of-service" tag; danger tags were to be in good condition before use; and, while danger tags could only be removed by the person who signed and affixed the tag, in exceptional circumstances (such as sickness or an inability to contact that person) a responsible management person might remove the tag but only after making certain that they knew the reasons for the tag being attached and after a thorough inspection and testing of the apparatus to make sure it was safe to restore power. 19 The NECA booklet also dealt with safe work methods stating that they should be developed for most tasks associated with the work performed in the electrical contracting industry. Employers were required to consult with employees and develop safe systems of work. A job safety analysis would identify the safe work practices to be incorporated with the standard work procedure according to prevailing work place conditions. Site specific work method statements were to be developed by the employer, supervisor and work team by analysing procedures and practices prior to starting the job. 20 Chapter 6 of the NECA booklet dealt with electrical safety and stated that the instructions contained in the chapter covered basic safety principles applicable to employees working on or in the vicinity of electrical apparatus that was being energised or de-energised or had been de-energised and taken out of service. The booklet stated that strict adherence to the instructions was necessary to ensure the safety of each employee and every person at the workplace and the adoption of recognised safe work methods and implementation to an industry approved standard. It was stated that employees were always to regard conductors, switch gear and electrical apparatus as being ALIVE until proved dead by means of approved test lamps, suitable indication devices or voltmeters. Test equipment was to be in good working order immediately before and after use and, where practicable, to be approved by appropriate inspection and tests. Employees were not to work on live mains, switch gear and/or apparatus unless impracticable to isolate the supply, and only then by implementing an approved safe work method and when qualified and authorised to do so. 21 In relation to electrical isolation, lockout, tagout and test procedure, Chapter 6 of the booklet stated that, where necessary to isolate an electrical circuit to enable work to be carried out on or adjacent to the equipment, a standard procedure was to be implemented according to site specific isolation procedures as earlier described. Care was to be taken to properly identify circuitry before isolating to ensure satisfactory precautions were made in cases where a number of systems, including emergency power supply systems or other technology that may cause an overriding of a single isolation technique. Following isolation of all power sources and the locking out of all such isolators and tagging of each by all persons required to work on or near the electrical equipment, a test was to be undertaken to ensure that it was safe to proceed before commencing work. 22 The site specific lockout/tagout policies and procedures for electrical works were to include: where practicable, a padlock to be used to lockout switches and/or circuit breakers on electrical circuits; preferably a separate lock to be attached for each person involved in the work, otherwise a single lock key to be held by a responsible manager or supervisor; a danger tag also to be affixed by each person working on or near the electrical equipment; each danger tag to be an approved type in new condition without erasures or alterations; each danger tag to bear the employer's name and the employee's printed name as well as the employee's signature and date of affixing the tag; each person to be responsible for placing their own danger tag prior to commencing work and removal of their tag when completing work or at the end of the work period; each danger tag to be securely fixed to the handle, switch or button of the isolating device so that there was no risk of a tag being accidentally dislodged or of an operator being able to energise the equipment without seeing the danger tag; each person to be fully informed as to the extent of such isolation and to be advised of specific areas or items of equipment that are not de-energised; if working alone and a job is incomplete at the end of the work period, the employee to remove his danger tag and replace it with an "out-of-service" tag; danger tags to be in good condition before use; and, while danger tags were only to be removed by the person who signed and affixed the tag, in exceptional circumstances, a responsible management person to be able to remove the tag only after making certain that they knew the reason for the tag being attached and after a thorough inspection and test had been made to ensure it was safe to restore power. 23 Stowe had provided copies of MOP pro forma documents which were generic for all sites as well as a Stowe safety plan and risk assessments, which were referred to in the MOP ID1 documents. The pro forma MOP for emergency and exit lighting upgrade and associated work at 108 various Telstra sites carried the notation, "Work shall not start until both MOP pro forma and the project notification pro forma are combined and signed. A copy of the MOP must be at the work site at all times. Deviation from the procedure shall not be made without the APPROVAL of the Acceptance Officer whose signature appears on this document". 24 These documents, supplied by Telstra, stated that a number of specified "important" items had to be "specifically included as steps in this procedure". Those specified items included safety precautions required, work on switchboards, and, circuit identification. There was then a step-by-step procedure laid down in a grid presentation with each numbered step identifying the activity and the agency responsible. 25 Under the step-by-step procedure the following was set out: 5 At the start of every day or at the change of locations in the one-day a job review is required to be conducted by all employees of Stowe on site. The job review is to discuss the MOP, the safe work method procedures are to be discussed and any new risk identified is to be discussed and recorded on the Stowe risk assessment form. The Telstra form 000169-FO2 and 000169-FO3 is to be filled out and signed by all people on site. The responsibility for this step was with Stowe. 26 Step 6 in the procedure was in the following terms: On the site identify where the switchboards are located and draw these on the plans provided. The lighting circuits need to be identified and a determination needs to be made if a permanent active can be connected remote from the switchboard - refer to wiring schematic SKI & SK2 to determine what option is best. For sites requiring a test switch refer to wiring schematic SK3. If access to the switchboard is required a hazard notification form will be submitted so that the switchboard can be isolated and a permanent active connected. The responsibility for this step was with Stowe and Connell Wagner. 27 Stowe also had a document entitled "Occupational Health, Safety and Rehabilitation Plan - Emergency and Exit Lighting Upgrade". The document commenced with a statement of company safety policy in which all staff were told they had a responsibility for and authority to play their role in achieving the objective of improving the health and safety of the staff at their workplace. Health and safety were described as priority issues that encompassed risk management, consultation, hazard identification and accident prevention. It noted that the company's safety handbook provided directions on specific electrical safety matters as well as essential information on general safety issues. It was the responsibility of all staff from the time of their induction into the company to be constantly aware of and to comply with the company safety directions. It was the responsibility of all managers and supervisors to ensure that as a minimum those safety directions and all occupational health and safety standard obligations were complied with. That statement was made by the managing director of Stowe, David Madson and dated 11 September 2001. 28 Stowe's safety plan, under the heading "Safety Objectives" stated that the plan would provide a basis on which management and employees could discuss safety procedures and accident prevention measures, would help develop the awareness of both management employees for the identification of potential hazards and the corrective actions necessary to eliminate accidents. It was to be a co-ordinated approach to workplace safety with the plan committing each site team member to accept personal accountability for safety while performing work. This part of the plan then stated: That all work and safety procedures are adhered to, which the Stowe Australia foreperson/supervisor will personally check and monitor. Where it is established that employees have not complied with procedures, those employees will undergo re-induction. If there are consistent breaches of safety by the same employees, then these employees may be removed from the work area. 29 Under the heading "Scope of Work", Stowe's safety plan stated that all work was to be carried out in a workman like manner and was to comply with statutory rules and regulations, noting A/NZ S3000 wiring rules, codes of practice as per Table 1, being the Code of Practice for the construction industry in New South Wales and the electrical practices for construction work. 30 Under the heading "Responsibilities", the Stowe safety plan stated that the responsibility of the managing director (Mr Madson) was to ensure that the safety policy was implemented throughout the company with the total co-operation of all company employees. The responsibility of the general manager (Mr Dunn) was to ensure that the company's safety policy was adhered to, to provide safety awareness and to ensure that all managers and supervisors implemented and maintained the occupational health, safety and rehabilitation plan. The responsibility of the project manager (initially Mr Cowan and later Mr Bright) was to ensure that the Stowe occupational health and rehabilitation plan implemented for the site was adhered to and further developed and to gain the total support of all employees to actively participate in the plan and to personally be involved with the plan development. In relation to the teams, the responsibilities of the foreman-supervisor were to ensure, manage and implement the occupational health, safety and rehabilitation plan on site which was to be achieved by regular meetings with employees, feedback and continual monitoring. The duty of electrical and data personnel was to comply with the requirements for and company policies in relation to the occupational health, safety and rehabilitation plan on site. 31 Safety procedures for disconnection of services under the Stowe safety plan dealt with situations in relation to permanent power and temporary power. In relation to permanent power, Stowe's safety procedure was as follows: When disconnection of Supply Authority is required to permit final connection of temporary system to permanent power, no work will be permitted to commence until it has been proven that power has been disconnected by means of approved test lamps, suitable indication devices or voltmeters. Disconnection and reconnection of supply can only be performed by authorised personnel (ie: Supply Authority personnel) and will be carried out in the presence of Stowe Australia foreperson/supervisor. Prior to any work taking place, a personal Danger Tag shall be placed on the isolator. A second test will be conducted to prove supply is disconnected. Work connect can commence. After completing connection , a test to be carried out on mains. If test proves all clear, Danger Tag can be removed and supply reinstated. 32 In relation to temporary power, the following procedure was to be followed: With reference to connection of circuits to field power switchboards the following shall apply:- (a) switchboard to be switched off (Danger Tag fitted); (b) connect cable to appropriate circuit breaker; (c) test circuit to ensure all clear (Insulation Resistance Tester); (d) remove Danger Tag and reinstate supply . Immediately beneath this provision under the heading, "Safety Procedure for cables connected to supply systems", the following was set out: Prior to energising of circuits, cables shall be terminated (in box, terminators, Circuit Break, etc) and comply with statutory rules and regulations. No cable connected to a supply system shall be taped only at the end. 33 The procedure for housekeeping under the safety plan was that a Stowe foreperson/supervisor was to ensure that all employees had been issued with the correct safety equipment to suit the task. The Stowe foreperson/supervisor was to ensure that all employees engaged on the site were familiar with all site safety and emergency procedures. In relation to procedures for licensed operators, the plan stated that all electrical, voice and data communications carried out on the site were to be performed by competent trade persons. 34 The procedures for safety equipment under the plan stated that, prior to the commencement of work, the Stowe foreperson/supervisor would discuss with employees the work scope and individual work roles to ensure appropriate protective equipment was issued to each employee. The Stowe foreperson/supervisor was to assess the equipment applicable to the scope of work and ensure that those items were available on site. In relation to the testing of site specific items, it was provided that testing of Stowe Australia's specific items would be carried out in accordance with AS/NZ S3760, unless otherwise stipulated. 35 The Stowe safety plan laid down procedures for hazard resolution and provided as follows: The purpose of this procedure is to ensure that effective action is taken immediately after identification of a hazardous (or potentially hazardous) condition in a Stowe Australia workplace. Site Managers/Supervisors are responsible for notifying the Project Manager of hazardous conditions or unsafe work procedures in their area of responsibility. EMERGENCY AND EXIT LIGHTING UPGRADE Managers shall ensure that hazard resolution procedures comply with statutory requirements at all times. In the absence of specific Statutory requirements for hazard resolution, the following procedures shall be implemented:- Hazardous Conditions - · the hazardous condition once identified shall be rectified immediately, if practicable; · if unable to do so, the hazard shall be isolated and signposted to warn other personnel of the danger; · as soon as is practicable the hazardous condition shall be rectified. Hazardous Work Procedures - · if the issue involves an immediate threat to health and safety, work shall cease in that area until the issue is resolved; · the work procedure is to be reviewed by the Workplace Safety Representatives and the PROJECT MANAGER/Site Supervisors and resolved by joint consultation. The Safety Co-ordinator or nominated representative is to inspect the hazardous condition in company with the Workplace and Safety Representative to ensure that effective action has been taken to rectify the matter. Site Managers/Supervisors shall not, under any circumstances, allow personnel to work in areas that have been identified as unsafe. The plan also provided accident investigation guidelines requiring all accidents to be reported and investigated at the time of occurrence by use of Stowe Australia form 075. If an accident resulted in a time loss of seven day or was reported to the appropriate authority then an investigation document would be conducted by the safety co-ordinator or the nominated representative. 36 The safe work methods/procedures under the safety plan stated it was to ensure that the current revised safe work methods/procedures had been issued. All employees involved in the use of safe work method/procedures were responsible for ensuring that the work they conducted was reflected in the procedures and, if not, an employee was responsible for a risk assessment so that the safe work methods/procedures could be changed to suit the required work. Anything outside the scope of the works was to be reported to the employee's supervisor/manager and/or the employee's consultative committee or representative. In relation to risk management procedure, employees were told that, when performing risk assessments, they were to use the appropriate State statutory requirements: in New South Wales that related to WorkCover's "Hazpak - A practical guide to basic risk management". It was noted that Hazpak worksheets and Hazpak records were dealt with in the occupational health and safety training session and that employees, supervisors and managers could assist employees in their use. 37 As part of the Stowe safety plan there was a safe work method/procedures register showing the title of procedures issued with their Stowe identification number. There were some 16 separate documents issued on 16 July 2002, with procedure number 010 dealing with installation of new work in existing switchboards, procedure 400 dealing with installation of light fittings, procedure 405 dealing with installation of exit and emergency lighting and procedure 526 dealing with electrical alterations. A risk assessment form to be used in relation to Telstra exchanges was part of this register. That form set out the work description in steps, had a column identified as "risk class" being a reference to three classes namely (1) being death, permanent or temporary disablement, (2) being lost time injury or illness and (3) being first aid required/no time lost. There was then one space to enter the risk assessment and another to deal with the preventative method including the Code of Practice, if required. At the bottom of this form was a note stating that the risk assessment was to be read in conjunction with the safety guide book issued by NECA for employees in the electrical, communications and data industries. 38 In relation to safe work method/procedure 010 dealing with the installation of new work in existing switchboards, there were 13 descriptions of work recorded on the Stowe documentation. Step 2 was described as examining the area of intended work and conducting a risk assessment to identify sources of isolation and presence of live parts in the vicinity of the intended work. This work was ranked as a class 3 risk with a risk assessment that caution was required with old or unfamiliar switchboards and that a record of the assessment was to be taken. Step 4 involved the isolation of the switchboard or relevant sections in the vicinity of the work area which was recorded as a class 2 risk with the risk being the failure of poorly maintained switch gear and the shutdown of high loads where possible. Preventative measures were isolation and test procedures, operating procedures for switch gear and appropriate personal protective equipment for testing. Step 6 was to test that the intended work area had been safely isolated. This was ranked as a class 1 risk with the risk assessed as being to test equipment against known live parts as well as isolated parts. Step 8 was to perform work in accordance with safe work methods, with step 10 stating that there should be labels installed as necessary to identify new work with the circuit schedule being updated and the reference to A/NZS 3000. 39 Procedure 400 dealt with the installation of light fittings. In relation to preventative measures, a number of sections of the NECA guidebook were identified. Step 2 was to check the drawing revision confirming the location of the fitting and the type of fitting, if nominated. Step 4 was to confirm any necessary/further cabling requirements and install danger tagging for the relevant isolators where necessary. This was classified as a class 1 risk - a risk being identified as electric shock. The preventative measures identified were the testing and identification of cables before commencement of work, the isolation and tagging of live sections of the work area. In relation to procedure 405, dealing with the installation of exit and emergency lighting, there was a reference to adopting procedure 400 in relation to installation of light fittings. 40 Procedure 526 dealt with electrical alterations. This procedure contained 14 steps by reference to work descriptions and was split by reference to equipment to be removed or disconnected and equipment to be installed or re-connected. In relation to equipment to be installed or re-connected, the steps identified by way of work description were obtaining approval for the area and/or equipment to be installed or re-connected after other trade work alterations had been completed, followed by installing re-connected supply cables and associated equipment, starting from the end of the circuit working towards the isolator device, then physically tracing each circuit to its isolating device and physically installing the cable to the isolating device. Prior to energising any of the isolating devices on the switchboard, conducting a visual inspection of all switchboard circuit connections to ensure that all cables were connected and accounted for, or securely insulated from the board and, lastly, to establish that all existing circuits had been connected, installed, tested and passed, then energise the isolation devices for the circuits on the switchboard. The circuits were to be identified and tagged accordingly at the switchboard and the field location. All circuit cabling was to be accounted for prior to completion of the work. In relation to all this work, the risk was rated as a class 1 risk with electric shock being the assessed risk. In relation to all of these work descriptions the preventative measure was designated as testing to prove "dead end" before commencing work to check test equipment before and after use, and to test and identify cables before commencing work. 41 The safe work method/procedure No 007, dated 7 August 2002, dealt with low voltage electrical isolation and lockout procedures. As with other procedures, the document stated it was to be read in conjunction with the NECA booklet. The third step in this procedure was to carry out a risk assessment in relation to the work to be carried out and later there was a need to confirm whether the isolation of circuits was to be performed as per site specific procedures or the procedures under this document. Care was to be taken to correctly identify circuits before isolation and there was a requirement to confirm areas to be worked on were isolated and it was safe to proceed. Where practical, "lock dogs" or padlocks, including padlocks for each person, were to be used to lock out apparatus and the keys were to be kept by the supervisor or the person concerned. "New danger tags" were to be securely affixed to the isolation switch by each person working on or near the equipment with the employers' and employees' name, date and signature affixed to the tag. Each person was to be informed regarding the scope of works and the specific areas of isolation. The scope of works was to be carried out provided the employee had a safe system of work and was confident about those matters, otherwise the employee was to report to the supervisor. If working alone and the job was not completed at the end of the work period, the employee was to remove the danger tags and replace them with an "out of service" tag. Danger tags were only to be removed by the person who signed and affixed the tag except in exceptional circumstances where the supervisor of the job may remove the tag but only after a detailed inspection had been carried out. 42 The procedure for induction and training under the Stowe safety plan stated that, when joining the company, all employees were to undergo a company induction incorporating safety. Upon completion of the induction, each employee was to sign the company safety booklet acknowledging that it had been read and understood. Prior to commencing work on site, employees were to have attended and passed the appropriate induction training course, for example, in New South Wales the WorkCover accredited general induction course. There was a register form that gave particular identification to Stowe's test and tag form. Internal audits were to be conducted by site management to ensure compliance with the appropriate Act and Regulations, with results to be reviewed at management meetings at regular intervals. There was a separate form provided for site specific occupational health and safety procedures and a document wherein supervisors could record safety talks with a copy to be given to the safety co-ordinator. THE WITNESSES 43 To assist in understanding the evidence and shorthand descriptions used by the parties, the following explanation is provided: (i) The distribution boards and circuit breakers located in the Marrickville Exchange were numbered and/or lettered for identification. On the ground floor, switches were numbered from S1 to S16 with distribution boards identified as 2N, 2E and 3N - circuit breakers were numbered 1-5. On level 1, switches were numbered S17 to S25 with distribution boards identified as 3N and 3E - circuit breakers were numbered 2, 15 and 17. On level 2, switches were numbered S26 to S31 with the distribution board identified as 4N - the circuit breaker was numbered 9. (ii) On the ground floor of the Marrickville Exchange, switch numbered S1 was connected to distribution board numbered 2N and circuit breaker numbered 3 (referred to as DB 2N CB3). On the ground floor, switch S8 was connected to distribution board 2N and circuit breaker 1. (iii) L1 was a light in the stairwell of the Exchange and was supplied with power by DB 2N and CB1. This was the same circuit into which S15 was to be wired. Switches SW1 and SW26 were two-way switches controlling L1. (iv) In the foyer of the Exchange, switch S15 was connected to DB 2N and CB1. The switch S8 was on the same circuit as S15. (v) Switch S25 was on level 1 of the Exchange and connected to DB 3E and CB 17. S23 and S24 were also connected to DB 3E and CB 17. Switch SW2R controlled L2 and was supplied by DB 3E and CB 17, the same circuit that supplied S25. The parties also produced an agreed description of the circuitry at the exchange and that document appears as an annexure to the judgment . 44 Constable Geoffrey McKenzie was a probationary constable when he attended the Marrickville telephone exchange at approximately 2.40 pm on 15 January 2003 in response to a radio call. Constable McKenzie attended with Senior Constable Andrew Birch. On arrival, ambulance officers were in attendance together with work colleagues of Mr Cowderoy, namely, Mr Harrison, Mr Novak and Mr Mihail. The crime scene was taped off by Senior Constable Birch before a number of people arrived from various organisations including Stowe, Transfield, Telstra, WorkCover and Energy Australia. Later in the day, Sergeant Cairnduff and Senior Constable Moriarty attended the scene. 45 The police officers and an officer from Energy Australia were seen to enter the foyer of the exchange and, while in the presence of Constable McKenzie, the officer from Energy Australia held a small pen-like device close to exposed wires coming out of an electric switch. The light switch was located on the ground floor at the base of the stairs. The Constable noticed that as the device neared the wires it illuminated and when removed from the switch the light went out and that occurred more than once. 46 With Senior Constable Birch, Constable McKenzie proceeded to the first floor landing and was met by Senior Constable Moriarty. He saw Senior Constable Moriarty hand an "STC Wattmaster testing stick" to Senior Constable Birch who placed the light stick in a crime scene bag and sealed and labelled it. The testing stick was similar to the device he had seen used by the officer from Energy Australia. At this point, he believed that the device was the property of Mr Cowderoy. Constable McKenzie and Senior Constable Birch later attended Ashfield Police Station and entered the STC Wattmaster test stick as an exhibit with a recorded entry number. On 16 January 2003, Senior Constable Birch obtained a statement from Mr Harrison. Later in the day, Constable McKenzie obtained signed statements from Mr Novak and Mr Mihail. 47 In oral evidence, Constable McKenzie said that he did not know from where the test stick came that was handed to Constable Birch by Senior Constable Moriarty. The small pen like device being held close to the switch by the Energy Australia officer was similar to the device shown in photographs in evidence but he was unable to say if it was the same device. He recalled that when the device was placed close to the light switch it illuminated. This was done more than once and, on every occasion, it illuminated and he believed that happened on two occasions. While at the site, Constable McKenzie did not collect any documents. The Constable confirmed that the testing device he had seen used by the officer from Energy Australia was not the same testing device that had been handed to Constable Birch and entered as an exhibit. The Constable did not recall whether Senior Constable Birch had sealed the bag when he was given the test stick, although that was normal procedure. 48 Senior Constable Birch was on duty with Constable McKenzie in the early afternoon of 15 January 2003 when they were directed to attend the Telstra telephone exchange at Livingstone Road Marrickville. At the telephone exchange, Senior Constable Birch observed ambulance officers attending to Mr Cowderoy who had been electrocuted. After Mr Cowderoy was removed by the ambulance officers, Senior Constable Birch searched the building, returned to the ground floor foyer area and established a crime scene using police crime scene tape. He then spoke to Mr Harrison who told him that, together with Mr Cowderoy, Mr Mihail and Mr Novak, they were employees of Stowe and were installing emergency exit lighting. Mr Harrison told him he had been working with Mr Cowderoy in the foyer area installing an emergency light just above the middle landing: Mr Cowderoy was standing at the first floor landing. Mr Harrison saw Mr Cowderoy out of the corner of his eye start to shake violently and fall to the ground. Mr Harrison immediately ran to Mr Cowderoy realising that he had been electrocuted. Mr Harrison yelled to Mr Mihail and Mr Novak for help and while the alarm was being raised Mr Harrison started CPR. 49 While at the exchange, Senior Constable Birch noticed a number of people arrive from a number of authorities. As they arrived, Constable McKenzie recorded their names, contact details and arrival times in his police notebook. At approximately 4.20 pm, with Mr Harrison and Phillip Ryan from Energy Australia, Senior Constable Birch walked through the crime scene. Mr Harrison used Mr Cowderoy's STC Wattmaster testing stick to ascertain whether the cables were live by placing the testing stick on the wires in the switch that Mr Cowderoy had been asked to connect. When Mr Harrison placed the testing device on the wires and the switch, the testing device illuminated. The stick illuminated on three to four occasions when touching the cables inside the switch. Mr Harrison completed a walk-through of the area and explained to the Energy Australia staff what had happened. Caution tape was then placed across the light switch on the ground floor which was believed to be the source of power that electrocuted Mr Cowderoy. 50 At approximately 4.30 pm, Mr Harrison, Sergeant Cairnduff and Senior Constable Moriarty of the Crime Scene Unit conducted a second walk-through of the area. Inspector Fiona Stewart from the WorkCover Authority and staff from Transfield and Energy Australia accompanied Mr Harrison and the Crime Scene Unit police on the second walk-through of the area. During this walk-through, Mr Harrison explained steps taken prior to and after the electrocution. Senior Constable Birch was not present during the second walk-through. 51 The area was photographed and recorded by the crime scene Unit officers. Senior Constable Moriarty handed Senior Constable Birch a "STC Wattmaster" testing stick and it was placed in a labelled paper bag and sealed. It was believed that the testing stick was owned by Mr Cowderoy. Later that day, Senior Constable Birch and Constable McKenzie attended Ashfield Police Station and entered the STC Wattmaster testing device as an exhibit with a specified entry number. 52 On Thursday 15 January 2003, Mr Harrison attended Marrickville Police Station where Senior Constable Birch took a seven page statement from him which Mr Harrison signed at the bottom of each page. During the course of taking that statement, Mr Novak arrived at the Station and Constable McKenzie took a five page statement from him. Mr Harrison stated that he tested the cables within the switch prior to connecting the cable that electrocuted Mr Cowderoy. On 7 March 2003, Senior Constable Birch contacted Mr Harrison to clarify who was the owner of the Wattmaster testing device which had been recorded as an exhibit taken from the crime scene. Mr Harrison told him that he did not own a testing device and had used Mr Cowderoy's testing device. 53 In oral evidence, Senior Constable Birch said that he was aware of the device referred to as a volt stick and had seen it operated during a walk-through of the Marrickville exchange. Mr Harrison had this device as did the Energy Australia officer. Mr Harrison produced a volt stick to the Energy Australia worker. Senior Constable Birch observed that person to place the volt stick into a light switch in the lower foyer area of the exchange. When that happened, Senior Constable Birch saw the volt stick light up and that happened on three or four occasions. The volt stick produced by Mr Harrison was later seized as an exhibit and entered as an exhibit at the Marrickville Police Station by Senior Constable Birch. The second volt stick used at the site (which belonged to the Energy Australia worker) was also used to test the same switch, being the switch at the bottom of the stairs in the lower area of the foyer of the exchange. When this action was taken, Senior Constable Birch saw the volt stick illuminate. 54 The procedure followed at the scene was that forensic material was held by the scientific officer, Senior Constable Moriarty. At the conclusion of the examination, it was handed over to the police officer at the scene being Senior Constable Birch who entered it into the exhibits book at the police station. After Mr Cowderoy had been taken away by ambulance, Senior Constable Birch had a brief conversation with Mr Harrison about what had occurred. Mr Harrison said that he had tested something and connected the wire. It was later found that was the wire that electrocuted Mr Cowderoy. The switch Mr Harrison tested was one to which he had connected a wire: by reference to photographs in evidence identified by the Senior Constable, the switch which was tested with the two volt sticks was the switch known as SW1. 55 In cross-examination, Senior Constable Birch accepted that in his statement he recorded only one person as testing the switch in his presence, being Mr Harrison and not the representative from Energy Australia. Because of the lapse in time, the Senior Constable said that his strong memory was that the Energy Australia worker performed the testing that he had observed. It appeared from the statement that only one person did the testing. When the test was conducted, the Senior Constable recalled that Mr Harrison, and the gentlemen from Energy Australia were present. The Senior Constable had a view of the test of the switch and noted that there were three or four short, quick tests and he had paid particular attention to observing whether or not the volt stick worked on more than one occasion when it was put in the switch. The Senior Constable was unable to say whether the device actually touched any one of the wires in the switch but it was very close, if not touching the wires. The Senior Constable was unable to say which live wires were touched during the course of the test. The Senior Constable accepted that he could not recall seeing the person applying the volt stick doing so to any particular wire nor was he able to say that, if it was applied to a particular wire, the light did not come on. 56 During the walk-through in which he participated, the Senior Constable recalled seeing hand tools on the first floor landing. They were identified as tools belonging to Mr Cowderoy. They were small hand tools. The Senior Constable did not pay any particular notice to any folder, was not looking for a folder and was not in a position to say from his recollection whether there was in fact a folder in the area where he saw the hand tools. Senior Constable Birch did not know how the volt stick came into Senior Constable Moriarty's possession: she had handed it to him. 57 Although Senior Constable Birch had given evidence of observing two voltage sticks being used to test the switch on the day, he agreed that his statement recorded one device being used throughout the course of the test. He agreed that his recollection would be stronger at the time he made that record rather than his recollection in the witness box. After the test was finished, Senior Constable Birch believed that the volt stick used by the Energy Australia officer, being in his possession, remained with him. In relation to the second voltage stick, which belonged to Mr Cowderoy, he believed it was retained by the Energy Australia worker and used during the second walk-through. Senior Constable Birch received the volt stick after the second walk-through and it was his belief that it was the non-Energy Australia volt stick. The Senior Constable said he watched the person from Energy Australia use his own testing device, place the testing device in the proximity of the switch and, without knowing which wires were touched, he saw the device illuminate when used by the Energy Australia officer. 58 Sergeant Sharyn Ciregna was previously known as Senior Constable Moriarty when she was attached to the Forensic Services Group in 2003. While at the scene, she had taken a number of photographs and had also made a statement concerning her visit to the Marrickville exchange on 15 January 2003. In particular, she had taken pictures of the foyer and stairwell and the single light switch with a metal conduit pipe running from the top of the switch vertically up the wall and ending at a T junction located near the first floor landing railing. The front cover of this switch was open when the pictures were taken and Sergeant Ciregna saw two yellow and one red insulated cable connected to the front cover of the switch. The second red insulated cable was hanging loose. Two pieces of yellow tape with the word "Caution" printed on them were placed over the open light switch. 59 On climbing the stairs and arriving at the landing, Sergeant Ciregna noticed two open light fittings, the smaller fitting appearing older with a metal conduit pipe connected to the left side. Under this fitting was a longer light fitting that appeared to be new. There was a small grey conduit pipe connecting the older light fitting to the new light fitting with insulated cables travelling through the grey conduit pipe. From the end of the metal conduit pipe connected to the left side of the smaller light fitting, she saw a flexible steel snake. Both ends of the snake were unconnected, were laying on the ground of the first floor landing and were looped through the horizontal metal conduit, exiting through the T junction and left side of the smaller light fitting. Red insulation cable exited the T junction and hung over the first floor landing railing so that it was lying on the ground of the first floor. Sergeant Ciregna then attended the first floor landing and was shown a yellow Wattmaster volt stick which she took into her possession for further examination. 60 On the first floor landing, Sergeant Ciregna noted that the stairwell entered at the north-east corner and that a closed door was located along the southern wall with a door along the western wall propped open by a fire extinguisher. The concrete stair railing was located on the northern side of the landing. On the floor, she saw an open tool bag, some paper towel, a reel containing red insulation cable, screwdrivers and different tools. There was a steel "snake" lying on the floor that had red insulation cable attached at one end. The other end of the steel "snake" and red insulation cable were "free". There was another long piece of red insulation cable that exited the T junction, lying on the floor. She followed this piece of red insulation cable to the southern side of the landing and found the end of the cable had been stripped of the red insulation, exposing approximately one inch of copper wire. 61 Continuing through the door along the western wall, Sergeant Ciregna entered a larger room and saw two distribution boards. The door to one board was open and labelled "Essential". The door to the other board was sitting on the ground below the distribution board labelled "Distribution board No 3 non-essential". Sergeant Ciregna made an examination of the non-essential distribution board and saw a piece of yellow tape with the word "Caution" printed on it, which was stuck over the fuses. On examining the essential distribution board, she saw that two fuses had white tape on them with the word "Stowe !!!" printed on the tape. 62 In oral evidence, Sergeant Ciregna said that, after she examined the volt stick and photographed it, she handed it to Senior Constable Birch. She found the volt stick on the concrete wall railing at the top of the stairs on the first floor. When she went into the room adjoining that landing on the first floor and saw the bag of tools she briefly looked inside but did not recall seeing any documents in the area where the tool bag was found. Sergeant Ciregna had prepared notes while at the scene and had compiled those notes from what she had been told by other police at the scene and also, perhaps, from people working with Mr Cowderoy. Information passed to her by police would have been given to her by Senior Constable Birch. 63 Fiona Stewart had been a WorkCover Inspector on 15 January 2003, and responded to an accident notification concerning the Telstra exchange at Marrickville. When Ms Stewart arrived at the site she met Darryl Shaw and Senior Constable Birch and spoke with Mr Harrison. Ms Stewart did not take any formal statements from employees at the site. Ms Stewart issued improvement notices and a prohibition notice. 64 Frank Edward Glass was engaged to give expert advice on electrical matters and was involved in the assessment of the improvement notices. He assessed information provided to WorkCover in obtaining compliance with the notice. Ms Stewart also took some photographs of the scene. On or about 20 January 2003, Ms Stewart handed the file and the conduct of the matter to Inspector Sibilant. 65 Keith William McRorie was an installation inspector with Energy Australia on 15 January 2003. At approximately 2.45 pm on 15 January 2003, he attended the Marrickville telephone exchange and prepared a report in relation to that attendance dated 4 February 2003. At the time of his inspection, Mr McRorie made notes and had a conversation with Mr Harrison. That conversation took place on the ground floor foyer area. Present were Ms Stewart from WorkCover and police officers Senior Constable Birch and Constable McKenzie. The purpose of the discussion was to obtain an outline of what happened, how it happened and in what circumstances. Mr Harrison said that Mr Cowderoy was working on an emergency stair light circuit and asked Mr Harrison to assist. From his notes, Mr McRorie said that there was a picking up of the ground floor active from a two way switch and a pull-down to the switch after checking with a volt stick whether the circuit was live. The check showed that the circuit was dead and Mr Harrison connected the switch. Mr Cowderoy had stated earlier that the circuit was off at the switchboard. A steel snake had been pulled into the conduit, stripped back and the step back switch active turned out to be live. Mr Harrison removed the victim, tried resuscitation, then ran downstairs to disconnect the new wire from the switch. 66 Mr McRorie said he tested the volt stick. Firstly, he used his own volt stick and then asked Mr Harrison to get his volt stick to make another test. Both tests showed the switch was active and alive. From photographs, Mr McRorie identified the volt stick that Mr Harrison handed to him. Mr McRorie went to the switchboard on the first floor to try to isolate the supply to that switch and to check why the switch was still alive after having been reported as being isolated. There were some circuit breakers taped off so Mr McRorie went downstairs again to locate the supply and he visually traced the metal conduit above the light switch. There was a junction leading upstairs and also a junction which ended around a corner into a room on the ground floor where distribution board 1 was found. After doing some tests with his assistant, the circuit was located; circuit breaker 1 supplied that switch. The search for the correct circuit breaker took approximately five minutes. When Mr McRorie asked Mr Harrison for his volt stick, Mr Harrison left and went upstairs because it was apparently on the first floor landing. 67 Mr McRorie formed an opinion as to how Mr Cowderoy was electrocuted. He had been told that Mr Cowderoy had stripped the red cable which was previously connected to the active of the switch downstairs. The work being performed was to pull the red cable through a metal conduit to a light fitting on the stairwell landing: a steel snake was previously pulled through the conduit. Some tests were performed showing the steel snake was earthed, so it was an earth potential. Mr McRorie was of the opinion that, to perform the work he was doing, Mr Cowderoy would have had the snake in one hand, the red conductor in the other and he would have been going to put the piece of live cable through the snake, twist it around so they could pull it back through the conduit. Mr McRorie believed that he would have received a shock if he held the steel snake and if he held the red conductor, which was energised. There was a second switch upstairs shown as SW2. Mr McRorie's memory was that switch was open. He was not completely sure, but the photographs showed it as open and he had no cause to open it. Photographs were taken of the scene by his assistant. Mr McRorie did not recall looking at the internal workings of SW2. In the course of inspection, he normally would have passed his volt stick over that switch to see if it was energised. However, he made no notes about that or he omitted to put an entry in his notes. It was relevant because, if it was alive, it would have been another source for Mr Cowderoy to receive a shock. 68 Mr McRorie believed that he was already of the view that Mr Cowderoy had received the shock from the snake and the live wire that he had just been stripped back. The two-way switch was called a "double ganger" which had two switch mechanisms: one for a light circuit and the other for another circuit so that it was actually switching two separate light fittings. The switch could be on one circuit or on one supply. The two yellow wires were known as "strap" wires and were connected between the ground floor light switch and the first floor light switch mechanisms so that they worked on a two-way switching arrangement. At one switch, the ground floor light switch, there was an active: at the other switch on the first floor there was a load active, a load cable. The black neutral wire went down and because it had been discovered supply was coming from the ground floor distribution board, the black wire went down to the T junction above the ground floor light switch, heading off towards the ground floor distribution board, so that the neutral would have been picked up from the distribution board. In this case, the active was picked up from that board as well. The neutral and the active should go to the same distribution board. It was not uncommon to have active and neutral in and out of each light fitting with a switch wire going down to the switch. In this case, it went all the way back to the switchboard and not via another light fitting. In relation to checking test lamps, the test was visual to ensure that they were operating. 69 In cross-examination, Mr McRorie said he made his handwritten notes while at the site and talking to Mr Harrison and others. He took down what Mr Harrison said in a shorthand note style and composed his written report within days of having taken the handwritten notes. He then finalised that report to produce the 4 February 2003 version. Mr McRorie said he made an effort to ensure that he had accurate notes and had transposed them accurately into his written report. His observation of Mr Harrison was that he was in a distressed state but he made a good effort to give an account of what he recalled of the incident. 70 When using the volt stick to test the switch, Mr McRorie used his own volt stick first placing it in the vicinity of the light switch as it was very hard to pick up one wire. A volt stick picked up a magnetic electric field around a cable and, if the cable was energised, it would illuminate within an inch or two of the stick. Mr McRorie did not recall how many times he applied his own volt stick, but each time it indicated a presence of supply. When Mr Harrison brought the volt stick he had used to the switch, Mr McRorie tested it in the same way he had tested his own volt stick. Again, Mr McRorie did not recall how many times he applied Mr Harrison's volt stick but it was more than once and each time it was applied it indicated the presence of supply. There was no occasion during the test Mr McRorie conducted when he applied the volt stick that Mr Harrison had given him that it did not indicate supply. 71 Mr Graeme Bright had been a licensed electrician since 1982 and had been employed by Stowe since September 2002. Mr Bright was appointed as a project manager and after a few months took over the Telstra exchange project from Mr Cowan as project manager. 72 Shortly after joining Stowe, Mr Bright attended a weekend training course where the primary subject was occupational health and safety. Mr Bright did not now recall what matters were raised in the occupational health and safety session, although there was an agenda. He did not recall what papers or documents were attached to the agenda including a document dealing with site induction, a checklist to be completed and a safe method statement No 014 relating to working on live wires. Mr Bright did not remember that training being part of the training weekend nor did he recall Stowe Australia electrical risk and safety assessments being dealt with. In relation to a document marked 007 relating to low voltage electrical isolation and locking out procedures, Mr Bright had no particular memory of it being brought to his attention during the weekend training sessions but it was a standard form used by Stowe. That procedure was dated 7 August 2002, but Mr Bright could not recall whether or not that procedure had been distributed to all employees at Stowe. The document, although dated, did not have an issue date and Mr Bright did not know whether procedure 007 was ever issued, or issued to Mr Cowderoy. The document was in a standard form found on the Stowe intranet but Mr Bright had not read the contents of that particular document. 73 The safe work method procedures were issued in a standard form by Stowe. Mr Bright did not look at those procedure statements to see if they were current and contained relevant information in his role as project manager. The safe work method procedures were to be on site at the various projects with the employers to assess their work and to follow the procedure. That was required by Stowe's occupational health and safety policy. Mr Bright said that the employees followed those procedures. 74 In relation to what Mr Bright did to ensure that the safe work method procedures were followed, he stated that he obtained any paper work from the employees, issued clearances with Transfield to gain access to the exchanges and that involved sending generic procedures to Melbourne for approval - they would come back from Transfield with an approval number. The method procedures were with employees regularly and Mr Bright would visit employees on the site prior to commencement to do a site walk when the employees would explain the installation at the job and how they were to go about it. This information would regularly demonstrate to Mr Bright that they had knowledge of the installation procedure. At that stage, the process did not involve the employees telling Mr Bright how they were to shut down circuits. Mr Bright did not remember if he had ever enquired of employees how they were identifying circuits to close them off. 75 At the Marrickville exchange, until the accident involving Mr Cowderoy, normal company procedures were followed. There was nothing peculiar, to his knowledge, about the exchange and the documentation supplied in relation to it. The electronic markup document was handed by Mr Bright to Mr Cowderoy, being a document given to Stowe, but Mr Bright did not know if it came from Telstra, Connell Wagner or Transfield. Mr Bright had not been on site and had not checked whether the information on the document was accurate. The colour coding on the document was not done by Mr Bright but was a clean copy without coloured markings on it. The coloured markings were added after the document was handed to Mr Cowderoy. Mr Bright accepted there was nothing in the electrical markup plan identifying circuits or distribution boards. The identification of various points such as S1 or S8 and the like, were also added after the plan was handed to Mr Cowderoy. Mr Cowderoy was given two documents, the electrical markup plan and an architectural plan. The S1-type numbering at the exchange was not placed on the plan by Mr Bright but was placed on the plan after the site was completed and the document returned to Stowe. 76 A test report was also returned to Stowe after the job was completed and Mr Bright received those documents at the end of work at each site. The test report was completed at any time during the work but had to be returned at the end of the job in a completed state. Mr Bright had not given any instructions (including to Mr Cowderoy) that the test report was to be completed so far as was possible before work started. Mr Bright referred to it as an "in-as-installed document". When they finished the work, they filled in the information. Mr Bright was not aware that the test report had been altered as a result of an improvement notice issued by the WorkCover Authority after Mr Cowderoy's accident. He was aware that, after the accident, the test report was to be completed before work recommenced at the Marrickville site and was not to be filled in before any work started at any site. It was up to an individual whether he used that sheet as a reference sheet but it did not have to be filled in before the work commenced. After the accident at Marrickville, the new test report was followed at other sites. Mr Bright was not aware of any reason a report could not have been completed at any site before work commenced, nor was it part of any instruction he gave that it should have been completed before work commenced. 77 When Mr Bright became project manager for the Telstra exchange project, he did not receive a copy of the contract but did receive a copy of the specifications. Mr Bright read that document before Mr Cowderoy's accident. He accepted that it was part of his job to ensure that the specifications were complied with. He understood that, although drawings were to be provided by Telstra and Transfield, those drawings were not necessarily accurate and might contain redundant and irrelevant information. Before he handed documents to Mr Cowderoy, Mr Bright took no action to see whether the documents contained redundant or irrelevant information. Under the specifications, the contractors were to visit the site to determine for themselves the quantum of work to be carried out: Mr Bright was unaware of anybody from Stowe visiting the Marrickville exchange prior to 14 January 2003. Mr Bright had been given no information to suggest that there had been such a previous visit. 78 The specifications stated that, if discrepancies in the drawings were found at the site, the contractor (Stowe) was to provide a written advice to the superintendent together with other details that might be required. Mr Bright said that occurred on Tuesday, 14 January 2003 and was a task performed by Mr Cowderoy and himself before work commenced. Mr Bright went to the site that day but did not recall at what time. He walked around the site so that "site establishment happened at that stage". The men usually arrived at 7.00 am and Mr Bright believed that no electrical work was undertaken before he arrived at the site to perform the walk-around with Mr Cowderoy. Mr Bright gave that instruction to Mr Cowderoy in relation to the Marrickville exchange on Monday, 13 January 2003, when Mr Cowderoy was given the job pack. Mr Bright wanted to look at the site in case there was something peculiar about it. He thought the men were engaged in site preparation before he arrived at the site on Tuesday 14 January 2003. 79 Stowe's safe method of work procedures were to be kept on site by the team leader and Mr Bright ensured that took place by generally talking with the employees. He did not recall how many discussions he had with Mr Cowderoy about keeping the procedures statement with him on site and had spoken to Mr Cowderoy on Tuesday, 14 January 2003 about the procedure. 80 The electrical markup plans and the architectural plans were given to Mr Cowderoy the day before work commenced at the site and were kept in a plastic folder. Mr Bright said there was a different folder, being a crew folder: he did not recall exactly what was in that folder but it contained documents relating to the project. He presumed that a crew folder had been given to the team leader by Mr Cowan. Mr Bright knew that the team leaders had that document because of general discussion with the employees on site when they displayed their knowledge: knowing the project and knowing the fittings meant they had to know the documentation. Mr Bright had seen a crew folder on site although he could not recall the particular site, and there were others. He did not see a crew folder in the possession of Mr Cowderoy before Marrickville which did not concern him. He understood that the work method procedures were in the crew folder, and there was information about fittings as he remembered it. He thought there was an Occupational Health and Safety Plan in the crew folder as well as other information pertinent to the project, such as the address of the site and addresses of electrical wholesalers. Mr Bright had been project manager for approximately three months before the accident and did not recall seeing Mr Cowderoy's folder or his crew folder until Mr Cowderoy had reported to Mr Bright that he had lost it. That occurred on the walk around the site on the morning of Tuesday, 14 January 2003, when Mr Cowderoy said he had left the folder at another site the day before but could not remember at which site. Mr Bright had made an attempt to look for the crew folder but had not found it. When he was told that Mr Cowderoy did not have his crew folder, Mr Bright produced another folder. The production of another folder did not commence until the morning of Wednesday, 15 January 2007. 81 Under the specifications, risk assessments were required for work on switchboards. Mr Bright said he did not provide a risk assessment to Mr Cowderoy concerning the Marrickville site although he was aware of that requirement in the specifications. He did not regard that clause as requiring him to provide a risk assessment at each site: the clause referred to risk assessments for work on switchboards and the men were not working on switchboards. Mr Bright thought that only applied when covers were taken off distribution boards and live components were exposed and he was unaware that the covers had been taken off distribution boards while working at the exchange sites. Mr Bright did not consider disconnecting a wire that was part of the switchboard as working on the switchboard but as working near it. 82 Mr Bright was not familiar with the WorkCover code of practice concerning low voltage electrical work. He did not recall that code of practice being brought to his attention by Stowe prior to commencing his work as project manager. Mr Bright had a copy of the code in his office and at times had read bits and pieces of it and whatever else was relevant at the time he was looking at the document. Mr Bright did not recall seeing it in relation to the Telstra work. He did not read it after he became project manager to see whether it was relevant to the Telstra exchange work. Mr Bright did not recall having access to any other documents produced by WorkCover to assist him in the discharge of his duties as project manager. He did not recall being familiar with the document concerning Risk Management at Work Guide 2001 issued by WorkCover. Mr Bright did not recall, at any time while employed by Stowe, reading the 2001 Code of Practice - Electrical Practice Construction Work. 83 While employed as a project manager, Mr Bright had been supplied with a copy of Stowe's occupational health and safety rehabilitation plan for the emergency and exit lighting upgrade. He was aware he was to be familiar with that document and was familiar with it in the performance of his duties. As project manager, he had certain obligations under that plan, such as providing protective equipment. He carried out site inspections to see if there were any pertinent safety issues, or matters that appeared to be safety issues, which was about the extent of his obligations. Mr Bright was not aware of a quality plan that ensured that the Occupational Health and Safety Plan was adhered to and it was not part of his job to provide reports to Stowe that the Occupational Health and Safety Plan had been complied with. Mr Bright said it was part of his work to make sure the employees had a copy of the safety work method statements which he had to provide to the employees, but he was not aware whether all employees had a copy of the procedures. He did not enquire whether employees had a copy of the procedures but talked to them on a regular basis while on the job. Mr Bright was aware of the Stowe quality plan and was provided with a copy of that plan. Under the project team organisational chart, the site supervisor was under the project manager. The site supervisor at Marrickville was Mr Cowderoy who was also the leading hand at a site of that size. 84 Mr Bright said he was not familiar with his responsibilities under the occupational health, safety and rehabilitation plan concerning emergency and exit lighting upgrades. He was advised that some of his responsibilities were outlined in that document but he did not recall reading the document. He did not recall being asked to read it. While project manager, Mr Bright said he was not personally involved with the plan development. On site, Mr Bright said that, when the site walks were performed they made sure they had the right equipment for the project but he did not recall asking employees what equipment they had or did not have. He was aware of the need for danger tags which were available for crews through the Stowe Penrith office and were in packs that went to the job. Mr Bright ensured that they were on site by putting them in the plastic sleeve that went out with the drawings. He was not aware that there were no danger tags at the Marrickville exchange and did not become aware of that fact until the day of the accident. After the accident, Mr Bright ensured that there were danger tags at future sites through toolbox talks with employees concerning the contents of the plastic sleeve that went to the jobs. The plastic sleeves were given out the day before work started and, in relation the Marrickville exchange, had been given to Mr Cowderoy: to the best of Mr Bright's knowledge, that sleeve contained danger tags. He did not make enquiries as to the whereabouts of the plastic sleeve that contained the danger tags. 85 Mr Bright did not know if it was a practice for Stowe electricians to use electric tape to tag circuits. He could not recall seeing electric tape used as a form of tagging during the upgrade project. He did not recall seeing tags being used at the various sites being worked on by Mr Cowderoy. Mr Bright did not want to look to see whether appropriate tagging was taking place when he visited the sites and did not think he needed to be there when they were tagging off. Site inspections were not performed at the end of the job but at the beginning of the job when there was no tagging off at that stage. Mr Bright visited the site at the beginning of the work, not afterwards, and there were some sites he did not visit at all. He did not recall visiting a site during the work to check on the work being undertaken. 86 Mr Novak was not a licensed electrician - he had to be supervised and could not work on his own. The fact that he was unlicensed was not a concern to Mr Bright. An unlicensed electrician could be given tasks that were to be checked from time to time. Mr Bright did not know if Mr Cowderoy was instructed to supervise Mr Novak in that way. Mr Bright was a project manager, not a supervisor. 87 The site walk performed on Tuesday, 14 January 2003 at the Marrickville exchange was a means by which Mr Bright ensured that hazardous conditions were identified at that site. The battery room was regarded as a hazard area but no other hazards were identified at Marrickville. A general site walk was conducted to see if there were any hazards and it was up to the individual to do a risk assessment. Mr Bright did not consider it any part of his role to identify particular hazards involved in particular electrical installations - that was up to the individual. They were able to make that assessment because they were licensed electricians. 88 Mr Bright said he was not familiar with the Occupational Health and Safety Regulation but had a copy in his office. He considered them from time to time in different instances. He was not aware of the regulation concerning the duty of an employer to identify hazards, or the duty of an employer to assess any risks of harm to employees, or to eliminate any reasonably foreseeable risk of safety. He was not familiar with the duty of an employer to review risk assessments or any measure where there was evidence that a risk assessment was no longer valid, or the duty of the employer to provide information to employees so that they could carry out their work safely. He was not familiar with the clause concerning the duty of employers in respect of electrical work and he had no reason to consult that part of the Regulation. Mr Bright was aware of the requirement to conduct tests for the integrity and operability of energised circuits but was not familiar with the terms of the regulation. 89 Stowe did not provide workers with equipment to test circuits or any other equipment. Mr Bright was not sure if employees were provided with money to maintain their equipment. Mr Bright did not check with employees that they had the right equipment to be able to test circuits and he did not know if volt sticks were fallible. A volt stick was a commercially available product for testing and he did not see anything wrong with it. Employees had test lamps and volt sticks and some of that equipment needed to be maintained and had to work when performing every test, but Mr Bright did nothing to ensure that workers were maintaining their testing equipment. 90 Mr Bright did not agree that it was part of the contractor's duty, prior to commencement of works, to produce drawings of distribution boards and numbers from which different lighting circuits were fed. He discussed those matters before work commenced with Mr Cowan and Connell Wagner. Mr Bright did not know whether Stowe had been released from any such obligation found in the tender documents. He had never produced site confirmed work drawings before commencement of work in relation to any of the sites prior to Mr Cowderoy's death. 91 Mr Bright was familiar with lockout methods to prevent the use of a circuit breaker on a circuit and understood that they were not complicated pieces of equipment and included the "lock dog". That device was available in January 2003. Mr Bright agreed that the benefit of this device over a tag was that an individual doing work on a circuit had the key to the lock and that a circuit could not operate unless the key was obtained from that person. He did not know if those lockout devices had been used by Stowe prior to January 2003. He had seen such devices in operation in industry generally prior to January 2003, and had seen them used by Stowe employees since January 2003. Mr Bright did not recall any discussion about the use of these lockout systems being preferred over the use of tags. He was a member of the occupational health and safety committee. 92 The system to obtain access to each site was that, before work commenced at the site a hazard notification was completed, sent to Melbourne for approval and, when approval had been granted, access to the site was granted. These documents had been prepared by Mr Bright between 4-6 weeks before the start of work at Marrickville, although he had not been to the Marrickville site at that time and the documents were a generic procedure document which was all that was required to obtain access. The documents were not prepared having regard to any particular risk identified at the Marrickville exchange. The pro forma document supplied by Stowe had to be approved at least by Telstra. Next to it was the Telstra step-by-step procedure which was to be applied, including the parties responsible for each step. Mr Bright was familiar with the step-by-step procedures and, to the best of his knowledge, these were undertaken by employees at all the Telstra sites. The team leader at each site had access to that document but Mr Bright did not know if it was kept in the crew folder. It was one of the documents he expected would be in the crew folder. 93 Stowe had a risk assessment form and, at the start of every day or at a change of location, a job review was required to be conducted by all employees of Stowe on site. The job review would discuss the safe work method procedures with any new risks identified to be discussed and recorded on the Stowe risk assessment forms. Mr Bright received a number of those risk assessment forms from team leaders but he did not recall receiving such a form from Mr Cowderoy nor did he take that matter up with Mr Cowderoy. There were also Telstra forms to be filled out and signed by people on site. However, Mr Bright was not aware of those forms and did not recall seeing any on site. He did not recall ever enquiring of Mr Cowderoy or other team leaders as to the whereabouts of such forms. Mr Bright did not know whether, on every day or change of locations, there was a job review conducted by all Stowe employees on site and he did not know whether that occurred at any site at which Mr Cowderoy was a team leader nor did he recall enquiring of Mr Cowderoy whether that had occurred. 94 One of the steps required one of four options to be chosen by identifying and isolating circuits: the approach adopted was that option one was predominantly used; option two was used several times, but in circumstances where Stowe never identified the switches or circuits prior to the work being commenced. Mr Bright did not know if this identification occurred but agreed that it was required under one of the steps to be conducted before work commenced. Mr Bright said he was not there at the commencement of work and assumed that, to safely complete the work, that step would be taken but he did not know if it was taken. 95 The Telstra document providing a checklist for site discussion was expected to be seen at some stage during the work by Mr Bright. He did not recall ever seeing such a document completed by Mr Cowderoy at any of the sites at which he was working. Mr Bright did not regard himself as a supervisor nor was he Mr Cowderoy's supervisor: his position was project manager. Mr Bright agreed that the procedure carrying identifier 007, referring to low voltage electrical isolation and lockout procedures, was a relevant procedure in respect of work being carried out at Telstra sites. They were procedures that ought to have been followed in respect of lockouts at those sites. The document had been sent to all persons employed by Stowe but he did not know if it was in fact sent to all staff members. Mr Bright said he was not required to have intimate knowledge of the wiring rules known as AS300, but he had access to that document. He was not required to have intimate knowledge of work codes dealing with low voltage work issued by WorkCover or other codes issues by WorkCover relevant to this work. 96 In cross-examination, Mr Bright said he understood that the work actually undertaken by Stowe at the Telstra exchanges was different from the work described in the tender documents. The tender documents called for all sites to have a test switch fitted which became an option by the time he had taken over the project. The installation of a test switch involved notifying Telstra because there was a risk of isolating the distribution board, losing supply to people who had telephones, such as emergency services including hospitals. Other options did not have that risk. Two options for isolation were not required at the Marrickville exchange. If Mr Cowderoy had noted a hazard, the consequence would have been that work would have ceased. Such a hazard was working live: no such notification was given. 97 In relation to the test reports, Mr Bright's expectation was that the team leader would complete the form at the end of the project and send it to the Penrith office of Stowe. He believed that he communicated that expectation to Mr Cowderoy. The information on the test reports was used as a tool to complete the "as installed drawings" and to make up a distribution board schedule which was then stored at the exchanges as part of the final walk around with Connell Wagner when signing off on the job. The installed schedules were inspected by Connell Wagner at a date it determined but after the projects were finished. Mr Bright could not recall being asked at any time by Connell Wagner whether Stowe would be able to provide drawings that showed the location and identity of distribution boards in the circuits in any exchange. Connell Wagner did not enquire as to why such drawings were not provided. 98 Mr Bright observed Mr Cowderoy perform work in the exchanges but had seen nothing that suggested he had been working on a live circuit. Stowe's position as at 15 January 2003 was not to work on live circuits. Mr Bright did not recall seeing Mr Harrison or Mr Mihail perform work. He saw Mr Novak perform work but nothing suggested he was working on live circuits. In relation to codes of practice and guides, Mr Bright's understanding was that Stowe expected those guides to be used as reference tools for employees to "work by". The safe working method procedures were to be applied to the right project. 99 Mr Bright said he was made aware of Stowe's position against working "live" when he started work and was given the NECA booklet. He presumed that everyone else was given the booklet. He was informed by the occupational health and safety committee about Stowe's no working "live" policy. There was some attempt to clarify what was meant by working "live". Stowe's expectation of his level of knowledge about WorkCover codes of practice was conveyed to him through the terms of the NECA booklet as a reference document. Mr Bright's understanding of the company's expectation about the level of knowledge of those codes was a matter of his interpretation and being issued with the booklet. The company also included a safety message with every pay slip. Company memoranda discussed at branch management level was mailed out to employees concerning issues of safety. Mr Bright did not remember the content of those messages. 100 Mr Paul Novak had worked in the electrical industry since 1997 but had never been a licensed electrician. In July 2002, he commenced employment with Stowe. However, at that stage, he had completed a four year apprenticeship without completing the technical work. He had received and had signed the NECA booklet. Mr Novak had read the booklet before he signed it but did not read it again. He had not seen the booklet before first receiving if from Stowe but was not tested or assessed by Stowe as to his level of understanding of the contents of the booklet. 101 When Mr Novak started work with Stowe in July 2002, he was immediately placed on the Telstra project. He attended an induction he assumed was conducted by Telstra and there were no other Stowe employees present at that induction. Mr Novak recalled giving evidence to the Coroner and saying that he could not remember receiving any induction in relation to the particular emergency and exit lighting upgrade work to be performed for Telstra. He did, however, now recall attending an induction in relation to that work. 102 While working with Stowe on the Telstra upgrade, Mr Novak had worked with two teams. In the first team, the team leader was Pedro Ruiz and there were four people in the team. Mr Novak worked at approximately 12-15 sites with that team. When attending a site with that team on the first day there would be a walk around the site and risk assessment performed by Mr Ruiz. No work took place until after the risk assessment was performed and he was looking for "mess" around the site. When attending these sites, Mr Novak had no other documentation other than that he received at the Telstra induction but he could not recall what was in that documentation. He had received no documentation from Stowe. Stowe did not conduct an induction for Mr Novak, for example, over a weekend, before attending a site but he thought he did so in September 2002, three months after starting work. He recalled attending an induction at Wisemans Ferry dealing with safety issues. Mr Novak was provided with documentation at that induction and kept that material. Mr Novak then recalled that induction had taken place in 2003 and after the accident involving Mr Cowderoy at the Marrickville exchange. Prior to Mr Cowderoy's accident, he had been given the Telstra documentation and the NECA booklet. That was the only documentation he was provided with before the accident. 103 While on the Ruiz team, there would be a toolbox meeting and a discussion about the approach to the job, where they were to start, what work was to be performed and the risk assessment, which would generally last approximately 10 to 15 minutes. No documentation was provided at these toolbox meetings. Mr Ruiz had electrical markup drawings which he kept. Those drawings were shown to Mr Novak during the toolbox meetings every day and were a type of working document. Those documents were used for new installations and indicated where they were to be placed. The toolbox meetings would usually take place at the beginning of work on a site - typically, work at a site would last up to a week. 104 When Mr Novak joined Mr Cowderoy's team, Mr Cowderoy was the team leader. That team worked on approximately 20 sites over a five month period with at least one toolbox meeting at every job site. As with the Ruiz team, there would be a discussion about how they were to go about the job. Also, as with the Ruiz team, while with Mr Cowderoy's team, Mr Novak from time to time worked performing isolation work. He did not work on his own performing that work and most of the time did it with someone else. On the day Mr Cowderoy died, Mr Novak was doing isolation work with Mr Mihail - that work was done on the first floor and involved isolating the circuit breaker. Mr Novak thought Mr Mihail was at the switchboard while he was out in the field looking at the light fitting going on and off which was the role he usually performed. 105 When working on the site on his own, Mr Novak said that he would do everything required including mounting fittings to the walls and ceilings, conduit work, connecting wiring to fittings and to the power source. There was not always a schedule of the circuitry on the distribution box and, if not, the circuit was worked out by a process of elimination, turning circuit breakers off one by one. Mr Novak had not again read the NECA booklet, dealing with isolation and testing isolation to ensure that isolation had occurred before going on the job. At the circuit breaker there was not always a Danger Tag provided and, if there were no Danger Tags, electrical tape was used. When the circuit breaker was in the off position the tape would be run across the front of the circuit breaker and Mr Novak would write his name and the company name so nobody could turn it on. He was able to identify tape at the Marrickville exchange with his handwriting and the word "Stowe !!!". He had learned that system of identification as an apprentice with another company and he had not been criticised for using that process before this accident with Stowe. He had used this system four or five times at the Marrickville site before Mr Cowderoy's accident. 106 In relation to tools used in this work, Mr Novak provided his own equipment. He provided test lamps as part of his work gear which could not be obtained from Stowe's office but had to be part of his own toolkit. In addition to the test lamps, there were pliers, screwdrivers, hammers, hacksaws, conduit cutters, tape measures, chalk lines, string lines, pencils and pens. Mr Novak did not possess a volt stick but instead used test lamps. He had never used a volt stick and had never been instructed in its use by Stowe. He was never told of any problems or been given a warning that volt sticks might provide problems when using them with live wires. Volt sticks were used at the Marrickville exchange, Mr Cowderoy had one but he saw nobody else using a volt stick before Mr Cowderoy's death. In relation to the test lamps, they were to be maintained and every time they were used a live test was to be performed. 107 While working with the first team, Mr Novak saw Mr Cowan at one site at Castle Hill. Mr Novak had nothing to do with him while Mr Cowan was on the site and there was no discussion with Mr Novak about the job itself. During the time with Mr Cowderoy's team Mr Novak had seen Mr Bright at nearly every one of the 20 sites on which that team had worked over a period of five months. Mr Bright stayed on a site for approximately an hour or so, walked around the site either on his own or with someone else, spoke to Mr Novak about the job and the job was raised at the toolbox talk and the way in which the team was going to take on the job. Mr Novak considered Mr Bright was his supervisor because he organised everyone and because Mr Novak could ring him and speak to him direct. 108 While a member of Mr Cowderoy's team, Mr Novak said that the work he did included putting exit signs on the walls, running conduits and cable and connecting power to existing fittings. He did that by putting cable into the light fitting and terminating it into the terminal. He would use the test lamp and other equipment during this work. 109 In relation to the supply of danger tags, either Mr Bright or Mr Cowderoy replenished the supply from the Stowe office. Mr Novak did not recall when the danger tags ran out at the Marrickville exchange prior to the date of the accident. Mr Novak asked others at the site before he used the tape whether they had danger tags but no-one had such tags. Once tags were regarded as part of the tools and Mr Novak would carry them with him. 110 Mr Novak did not arrive at the Marrickville site until the second day of the job, 15 January 2003, because on the first day of the job, he had a rostered day off. Mr Novak said that on his arrival there was a discussion of the work needing to be done that day and a toolbox meeting. It was indicated that he was to install a fitting in the diesel room, mount the fitting on the wall, put conduit along the wall, drill a hole into the next room, leaving a tail cable fitting for the new installation through the other wall where Mr Cowderoy was going to pick up the junction. Mr Novak did not recall seeing the marked up floor plan and said that he was to work in the emergency plant room at S4. Mr Novak said he was not going to connect a new exit light to an existing light because that work was to be done by Mr Cowderoy. Mr Novak had to put the exit light on the wall, run conduit along the wall and leave a tail out of the conduit. Mr Novak thought that Mr Cowderoy was to connect the new installation to S7 on the other side of the wall. While performing this work, Mr Novak did not see other employees working. Mr Novak worked at the site of S4 for approximately half an hour to an hour and then went upstairs with Mr Mihail. Mr Cowderoy organised them to leave the ground floor and to go to the first floor. Mr Novak did not attend to any of the distribution boards on the ground floor before going upstairs. He had not seen any schedules on the distribution boards downstairs showing the whereabouts of circuit breakers for identified lights or power switches. He could not recall doing so. 111 When Mr Novak arrived upstairs, the lights were turned off using the circuit breakers. Mr Cowderoy asked for the equipment to be taken upstairs, including the marked up map, and Mr Novak began work at the uncrating room. The lights were turned on and off to identify the circuit on which he was to work and were S22 and S23. Mr Novak was at the distribution board operating the circuit breaker that turned the lights on and off and Mr Mihail was looking at the lights. While this identification was being carried out, Mr Cowderoy and Mr Harrison were still finishing off their work downstairs. 112 Mr Novak said the only circuit identified for the work was at the one distribution board and he placed tape over the circuit, using one piece of tape. Mr Cowderoy and Mr Harrison then came to the first floor while Mr Novak was in the ceiling of the equipment room and running cable for fittings S22 and S23. He did that work with Mr Cowderoy for approximately half an hour. Mr Mihail was doing the conduit work down the walls from the ceiling and drilling into the ceiling, meaning that there were three people working on S22 and S23. 113 At approximately 11.00 am a lunch break was taken. Mr Novak went to the shops with Mr Cowderoy while Mr Mihail and Mr Harrison stayed at the site. They ate lunch in the equipment room and after lunch Mr Novak started work on S21 in the uncrating room. He was mounting an exit sign to the wall and hanging it from a bracket. Mr Novak worked on his own in that room. He did not work on S19 or S20. Mr Novak did not identify the circuit for that switch or isolate anything for it because it was not connected at that time. Mr Novak isolated the circuit to S21 but did not recall whether he did that alone but thought it unlikely that he did it alone. He thought he ultimately connected S21 to a circuit because it was around that time that he heard Mr Cowderoy yell. He was not sure if he connected S22 to the circuit because he did not think that switch was on the same circuit as the other work he performed on the first floor earlier in the morning. 114 Photographs of the switchboard showed two pieces of tape on which he had written but Mr Novak could not recall whether he had identified the relevant circuit for S21. While working at S21, he heard Mr Cowderoy yell but he did not think he had finished that circuit at the time. He had supposed that the circuit was still off and had applied the two pieces of tape. Mr Novak thought the tape on S21 isolated the circuit in the equipment room "fitting down the back at S20". He performed work on S21 at a different time to S22 and S23. He put further tape on the distribution board at different times. Mr Novak agreed that, before he had commenced work on S21, he had finished S22 and S23. Although they were finished, he did not take the tape off since he expected the tape to be removed by whoever was last finishing off that job, who was not necessarily the same person applying the tape. He understood the system was that whoever put the tape on, should take it off. 115 When working upstairs, Mr Novak used test lamps but he did not think he had seen anyone else using test lamps upstairs. He did not see anyone using a volt stick. He had used a test lamp for S22 and S23 to see if they were alive and tested them in the ceiling. Mr Novak and Mr Mihail were turning the light on and off to trace the cable back to the existing fixture to a junction box in the ceiling and tracing a cable from an existing feature to a junction box in the ceiling. Mr Novak undid the junction box, put the active and neutral across the test lamps and put the circuit breaker on and off to make sure it was the right circuit. Mr Cowderoy was at the distribution board while Mr Novak was testing and using the test lamps. Mr Novak was in the ceiling with Mr Cowderoy and Mr Mihail was at the switchboard. Mr Novak accepted that he told the WorkCover inspector that was the way the work was performed when they had to stop for lunch and that after lunch he had started on the uncrating room. In his recollection, Mr Novak was not at the distribution board while those circuits were being tested. 116 Before he heard Mr Cowderoy yell, Mr Novak had seen him working in an area outside the equipment room at the top of the stairwell in an area to the right of the exit light S24. At that time, Mr Novak did not see anyone else working in the stairwell. After lunch, he thought Mr Harrison was working with Mr Cowderoy but was not sure - he did not see Mr Harrison in the stairwell. The last place Mr Novak saw Mr Harrison working before he heard Mr Cowderoy yell was after lunch. He was near the equipment room and was doing something with his tools and wrapping his gear. The last time Mr Novak saw Mr Harrison working was at S22 or S23. 117 After hearing Mr Cowderoy yell, Mr Novak quickly went to assist him and Mr Harrison and Mr Mihail were there when he arrived. There was no discussion at that time or shortly thereafter and he knew that Mr Cowderoy had touched a live wire. Mr Novak was trying to revive Mr Cowderoy and did not hear anyone discuss the need to deaden the live wire that Mr Cowderoy might have touched. 118 In relation to step-by-step procedures, Mr Novak had not seen such a document before, although Mr Bright could have shown him the document on one occasion but Mr Novak was not sure if he had ever been given a copy of it. Mr Novak could not recall how much time he spent going through the document with Mr Bright, but it was not too long and could have been approximately 15 minutes or 30 minutes. He did not recall seeing that document again and did not recall seeing that document in the possession of Mr Cowderoy. He could not recall what Mr Bright had told him about the step-by-step procedures - any discussions about them would have taken place months before Mr Cowderoy's death. The discussion would have been at a toolbox meeting with Mr Bright. Mr Novak said there was no discussion of that document and the step-by-step procedures at a toolbox meeting with Mr Ruiz or Mr Cowderoy. Mr Novak was uncertain whether a document headed "Occupational Health and Safety and Rehabilitation" had been on site or with Mr Cowderoy, but Mr Cowderoy did have a folder with documents. 119 In relation to information about safe procedures for the disconnection of services and temporary power, Mr Novak did not recall seeing that document but he had seen the document headed "Risk Assessment" on the sites on which he had worked. It was used when walking around the site although he had not seen such a document in a completed form. Mr Novak had never been given a document entitled "Stowe Australia Pty Ltd, Project Emergency and Exit Lighting Upgrade Action, Procedure No 426". He read such a document at his very first job with Mr Ruiz but he never read it again. Mr Ruiz had given him that document to read in July 2002. There were a number of pages that he had read while they were sitting down having lunch. It was not a formal situation. Mr Novak did not remember working to a principle where he started work on the load side and finished on the supply side, but he had been instructed to do so while working with Stowe. 120 Mr Panagiotis (Peter) Mihail was a qualified electrician of some seven years standing who commenced working with Stowe in 1999. Prior to July 2002, he had been working basically on construction sites with Stowe and was then transferred to the telephone exchange project. On that project, he worked in a team comprising of Mr Cowderoy, Mr Harrison and Mr Novak. Mr Mihail worked with that team on between 10 and 20 sites before working at the Marrickville exchange. 121 At the first site in this project, Mr Mihail and the team received instructions in the morning, going through the job and the plans and having the job explained. That was performed by Mr Cowderoy. The procedures for the job were not kept personally by Mr Mihail but kept at the site, however, each individual did not have to keep them. The paperwork for procedures could be accessed on the job at any time and Mr Mihail was never given his own copy. There was one copy made available to the team which the team leader, Mr Cowderoy, kept. At no time at the 10 to 20 sites attended before the Marrickville site did Mr Mihail ever have access to the paperwork procedures. He read the procedures on the first job on the first day but he did not read the procedures again. The paper procedures were available to be referred to if needed but Mr Mihail did not need to do so. Mr Mihail did not think he needed to read it on the first job because he had been provided with similar documentation before. 122 Mr Mihail was shown the electrical markup document showing the placement of exit and emergency lighting. He said he had seen it before and that it was called a work method statement analysing the work to be performed at each site. Mr Mihail had also seen the occupational health and safety and rehabilitation plan for the emergency and exit light upgrade as well as the step-by-step procedures that he said were similar from job to job. 123 At the start of each job at a different site, there was a toolbox talk with the team receiving the plan for the particular building to be worked on and a discussion as to where the job would start. At this meeting, the team was told by Mr Cowderoy what work they were to perform. Such toolbox meetings lasted approximately 10 to 15 minutes and were conducted by Mr Cowderoy. The plans to the building were produced with the position of the new emergency and exit lights to be installed. After being shown that electrical markup plan an area was selected and the work started. The work method statement was discussed at toolbox meetings by Mr Cowderoy who told the team that there were pages for every different kind of work and that they could have access to the document if a particular task was to be undertaken. The tasks for the exchanges were essentially the same with the installation of new lighting, emergency lights and exit lights. The job was almost exactly the same at every building but Mr Mihail could not recall whether the method of procedure or work method statement was ever discussed. The toolbox meetings also discussed safety but Mr Mihail did not recall what was discussed as they were generally doing the same job. He had no specific recollection of safety being discussed by Mr Cowderoy at a toolbox meeting. 124 The step-by-step procedure document had not been read from start to finish by Mr Mihail although he thought he would probably have read it on the first day of the job when the project started. He could not remember it having been read again because the 10 to 20 jobs were all the same. He could not remember receiving a document that identified circuits and distribution boards at the various sites in the Telstra project. 125 To identify circuits at these sites Mr Mihail said that an area of work was identified, Mr Cowderoy supplied a plan like the electrical markup plan to show where the new fittings would be placed after which they went to the floor to find the distribution board identifying the circuits in that particular area and commenced to work after isolating the circuits. There were no plans of circuits at some of the old exchanges although there were schedules at distribution boards which would have to be checked because it was not known whether they were up to date. On the first day of work at Marrickville, Mr Mihail said he was probably working on S12, S13 and S14. He said he probably identified the relevant circuits for those switches by going to the distribution board, checking the schedule and trying to find the area in the schedule where the work was to be performed. When that area was found the circuit was isolated after he had made sure that the isolation had been effective. When the circuit breaker was turned off at the board he then had to go back to the area and try to turn on the light. If the lights were off, that indicated that the particular circuit breaker had isolated the particular circuit he wished to work on. That was how he was instructed to isolate relevant circuits by Stowe which was "pretty much" the method he used at all the sites, including Marrickville, while working for Stowe. 126 When the lights were found to be off he would return to the circuit breaker to make sure the circuit was dead before starting work. The circuit breaker would then be tagged. At Marrickville, that was done by putting tape on the circuit breaker, writing a name on it and telling the team members that he was working on that particular circuit. The tape was general electrical tape carried in each person's toolbox. Mr Mihail said he had used the tape from the time he started with the project until the accident. He wrote his name on the tape and had done so at Marrickville. When the job was finished, he would go back, energise the circuit, remove the tape and turn the circuit breaker back on. There were two occasions to speak to the team members: once, when the circuit was turned off and secondly, when the circuit was turned back on. They would be informed that he wanted to turn the circuit back on. That would happen as a precaution even when he was working by himself. 127 To inform other members of the team that he was turning a circuit off or on was merely a matter of speaking to them because they were usually not that far away and, at other times, he would go to see them and tell them whether the circuit was being taken out or put back on. They would normally be working in the same area but at different fittings. When he was turning off the circuits on the first day of work he tested them to make sure they were dead. He tested the circuit breaker by using a test lamp. The test lamps were his personal tools and were in good condition: they had to be maintained in good order. Mr Mihail could not recall an occasion, while working at the exchanges, when he had been asked whether he had his test lamps with him nor did he remember anyone from Stowe asking to look at the test lamps to test them to see if they were in good condition. There was a volt stick that he used to test for live circuitry. He could not remember being given any warning by Stowe as to concerns about the use of volt sticks and, while nobody from Stowe had told him that test lamps were to be preferred over volt sticks he was aware that was the case. As an electrician, he was already aware that sometimes volt sticks could be inaccurate, but he could not remember being told that by anyone from Stowe. No one from Stowe ever checked to see whether his volt stick battery was properly charged. 128 In relation to the use of tape over the circuit switch, Mr Mihail said that he had been provided with tags but he could not recall exactly when that had occurred. He said that the tags were available after Mr Cowderoy's accident and had been made available almost straight away. Prior to the accident, tape had been used because there were only three in the team on the site and there was no one else working on any electrical distribution boards or anything else. On 15 January 2003, Mr Novak joined the team and that was the first time Mr Mihail had worked in a team of four. 129 Mr Mihail was aware of lockout devices for circuits apart from tags and tape and thought he had used such a device before 15 January 2003. He said the main point about the locking device was that he could actually lock the circuit breaker with a small padlock and tag it with his name and telephone number. He kept the key and no one could remove the device and he had used such a device before working with Stowe. Mr Mihail had not used a locking device at a telephone exchange before 15 January 2003, but had used them on other Stowe jobs. They were usually provided at every site when he was working in construction. He thought that such locking devices could have been used at the Marrickville exchange even though they were different distribution boards, but there were none present at the site. Mr Mihail said that from to time other people would work at the exchanges, such as people from Telstra and Transfield in addition to members of the team from Stowe. Sometimes they worked near where he worked. 130 Mr Mihail had no recollection of Mr Cowderoy or Mr Harrison saying to him that they were turning on or off a circuit but that was usually done. He recalled that on that day he heard people yelling out from the circuit board or from light switches trying to identify circuits with somebody at the switchboard and someone else being in the area where the lights were placed. He was probably doing this at a circuit board on that day but did not remember whether he did it by himself. 131 When the circuits were isolated and the tape placed on them, Mr Mihail would write his name on the tape but did not write the name "Stowe". His name indicated that he was working on that particular circuit and that was the general rule. When working on the circuits, they tried to finish the job and return the power before leaving the work site because there were people coming to the exchanges 24 hours per day. Mr Mihail could not remember whether the work he performed on S12, S13 or S14 was on one circuit board or on two different circuits. He did recall seeing other tape on a circuit board other than his own. 132 While working at the Marrickville exchange Mr Mihail saw Mr Bright at the site on one occasion. He regarded Mr Bright as the supervisor. He supervised by coming through the building and talking to the employees, mainly the team leader, and bringing paper work from the office. Mr Bright would walk through the job and discuss problems but did not actually supervise the employees working. Mr Cowderoy was the team leader and in charge of the team. Any problems with the job could be discussed with Mr Bright: Mr Mihail had no such discussions and was not able to ring him and never did ring him as everything went through Mr Cowderoy. On one occasion when Mr Bright was at Marrickville he was present for approximately one hour. He discussed matters with Mr Cowderoy. Mr Bright walked around the exchange but Mr Mihail did not see him actually go near circuit boards or distribution boards. 133 In February 1999, when Mr Mihail started with Stowe, he was given documentation and he acknowledged receipt of a safety guide. The safety guide was paperwork and policies and he had to read all the paperwork in its office. He did not remember the documents but thought they were work statements and procedures. The booklet he received and still had at home was a small booklet which talked about procedures, safety and awareness. That booklet was identified to be the NECA booklet. Mr Mihail did not remember what the booklet said about tagging and did not think that, after receiving the book, he was ever tested as to what was in the document. 134 There was a company policy that no one was to work "live". Mr Mihail understood that, in respect of live work, the rule was that one should start wiring at the load end first and finish at the supply end. That was an approach applied at Stowe so that, when work started, a particular circuit would be isolated for whatever work had to be performed, it was switched off and tested and then work would begin on the circuit only when it was dead. There was no particular instruction given at Stowe to start at the load end and finished at the supply end. 135 Mr Mihail had been provided with a company safety handbook and had a copy of it. There were a number of safety regulations in it and he had read them at some time when he started with the company but had not read them since. The Stowe procedure for disconnection of services had been undertaken at exchanges but Mr Mihail had not used danger tags. No one had inspected his tools and equipment under the procedure for housekeeping. Mr Mihail could not recall any specific warnings given to him about particular circuits that might contain unusual features. 136 In relation to safe work method procedures, he understood that document was kept by Mr Cowderoy; he had read it at the first job site under the project and did not need to see it and read it again. In relation to the safe work method procedure 526 for electrical alterations, Mr Mihail said it was up to the individual to choose where to start and where to finish. Although Mr Mihail had been told to read the document, in his view, it was up to the individual to decide what steps to follow and in what fashion. He did not think that steps would be missed but that tradesmen might work in a different way. He would normally follow the steps but no one would check on him to see whether he was working in accordance with the steps set out in the procedures The procedures referred to the use of tags but did not refer to the use of tape in isolating circuits. Mr Mihail said that, if there were no tags, tape was used. Mr Mihail did not remember anyone suggesting that he should not use tape but should use tags. The procedures talked about the NECA handbook but Mr Mihail did not return to the handbook to find out what the procedures were referring. Mr Mihail read the handbook at the beginning of his employment but he never had to read it again. He could not remember what was in the book at any time. 137 On the day of the accident, Mr Mihail commenced working with the team to finish S1, S7, S8 and the emergency lighting outside the premises which included S4 and S9. Mr Mihail did not recall going to the circuit board that morning and, while all sites were not on the same circuit, they were working as a team and someone had to go to the board to isolate the circuit, but he did not do so. He did not remember what circuits needed to be isolated for that work. Mr Mihail could not recall exactly who said that the circuits were isolated and able to be worked upon. He was working at one stage on S8 but could not remember if anybody else was working on S8. He did not remember putting his tape over the circuit for the work on S8 and did not realise that that circuit was the same circuit for S15. He had finished the work on S8 in the morning before lunch but did not test S8 to see whether it was working because the rest of the team was still working on different lights. Mr Mihail then moved to the first floor. He did not return to the S8 circuitry to see whether his installations were working or not. 138 It was possible that the rest of the team was working on a different circuit to the one he was working on although they were working on different fittings that should have been on a different circuit. He also worked on S9, as did Mr Harrison but Mr Mihail did not recall whether that was on the same circuit or not. He thought Mr Novak was working in the same area close by and that they had finished at approximately the same time and had gone to level 1. He did not recall Mr Novak indicating that he wished to test the light he had installed. Mr Mihail agreed that had to be done before they left the ground floor but, because the team was working on the ground floor and they had finished their tasks and moved to the next level, the other two team members were to finish the ground floor. Mr Mihail did not regard it as his responsibility to test his own site before going upstairs. 139 Mr Mihail confirmed that, when working on a particular site having identified the circuitry, because he was working alone, he would not tell Mr Cowderoy or the others that he had identified that circuit and particular distribution board. No one else was working in that area or on that particular circuit so he did not have to tell anybody else what he was doing. While working on distribution boards, he placed some reliance on the electrical schedules in those boards as they allocated all the fittings, but they had to be double checked to make sure that they were correct. 140 Tape had been placed on a circuit board upstairs by Mr Mihail. It was his practice to write his name on the tape. If he was working on a particular circuit, he would put his name on a circuit breaker upstairs on distribution board 3. At the time of Mr Cowderoy's accident, Mr Mihail was not working on any circuit but was cleaning up. He thought he had probably taken off the tape at this stage from the upstairs distribution board. He did not recall whether or not there was any other tape on the circuit board when he removed his tape. 141 Mr Mihail started work on S19 and installed an exit light. To find the circuit breaker for S19 he went to distribution board 3 on that particular floor. There were a few lights in the corridor that did not show on the plan so he isolated the circuit breaker, put tape over it and went back to make sure the circuit was dead. He did this alone. After he and Mr Novak had brought equipment up to the first floor, he went back to the distribution board turning circuits on and off trying to locate areas - he did this with Mr Novak. Mr Mihail did not remember who was at the board and who was in the field during this exercise. Tape was placed on a particular circuit on which a person was working and Mr Novak placed the tape to isolate a particular circuit and had done so upstairs. Mr Novak was working on S21. Mr Mihail did not know if Mr Novak had put his tape on the circuit for S21 but Mr Mihail would not have done it for him so that, if Mr Novak was to isolate a circuit, he had to do it himself. If they were working on different circuits for different fittings, they would have their names and tape on those circuits. If it was the same circuit they both worked on, they would isolate it together and put the name on together but that was not the case at this time. 142 Mr Mihail was shown a photograph of distribution board No 3 with two circuits taped over with "Stowe!!" written on the tape. Mr Mihail said that it was probably his writing and he had written "Stowe" rather than his own name. He did not know why he used the name "Stowe" - it was not a change to the system because there really was no system. He was to isolate the circuit and put tape on it, but it was not the procedure to put his name or the company's name on the tape. 143 Mr Mihail started work on S19 and S20 upstairs and finished S19 before lunch. He tested S19, found that it worked and commenced on S20. After isolating that circuit, he went to test it to verify it was dead. He was to connect a new active and did so without further testing. Other employees were told that circuit was off while he was working on it. However, there was no difficulty in testing the wiring at the site again before resuming work on that circuit. That was consistent with the principle of "test before touch," a principle known to Mr Mihail. The site could be tested again with his test pencil but he did not remember if he did so. He had sometimes taken that course. After the circuit had been isolated and tested, Mr Mihail then organised the conduit; placing the conduit might take between half an hour or an hour. The wire was then pushed through the conduit (sometimes using a snake). He was then in a position to connect the new active wire. Mr Mihail said he was not instructed by Stowe to do any further testing at that point because he knew the circuit was turned off since he had turned it off himself. He proceeded on the assumption that the circuit was off and remained off as he performed work on it, even if the circuit had been turned off half an hour earlier. When the conduit work was finished he was in a position to connect the new active wire, his practice being to go ahead and do that without further testing: he was not instructed to do any further testing at this point. 144 After lunch, Mr Mihail worked on S20 having finished S19 before lunch. He finished the work on S20 and tested it. He then took the tape off the circuit for S19 and S20 once it had been tested. After finishing with S20 he cleaned up the area between S19 and S20 because of the mess of conduit, cables and dust. While he was cleaning up this area the other employees were dropping cables between S22, S23 and S24 through the ceiling and so Mr Mihail cleaned up their area as well. At some point, Mr Mihail went downstairs to the toilet. Assuming that the accident took place at approximately 2.00 pm, Mr Mihail said that shortly before that time he went downstairs at 1.45 pm although he could not remember exactly what was the time. This was the first time after lunch he had gone downstairs and as he went downstairs he did not see anyone and remained downstairs for about five minutes. In the stairwell, he saw Mr Cowderoy working on the first floor and Mr Harrison working on the landing between the first floor and the ground floor. Mr Cowderoy was working on an exit light almost next to S24. When Mr Mihail came back upstairs, Mr Harrison and Mr Cowderoy were working in the same areas as he had observed on his way down the stairs. While going downstairs, Mr Mihail heard someone say he had to go down to connect or someone had to go to connect the wire downstairs. He could not rembember the precise words but they were already in conversation when he walked past. 145 Mr Mihail was shown his statement to the police in which he said he completed the installation at S20 at approximately 2.05 pm and about that time he knew that Mr Cowderoy and Mr Harrison were working in the vicinity of the stairs because he had seen them while on his way to the toilet. In his statement to the police, Mr Mihail made no mention of overhearing this particular conversation. He did not mention overhearing this conversation when he gave a statement to the WorkCover Authority. Mr Mihail said that it was something that he remembered, although he could not recall who had spoken or to whom, and he did not mention it to the Coroner. He had not read it in anything recently that assisted his memory but he always remembered it. 146 When Mr Mihail returned upstairs he continued cleaning until he heard Mr Cowderoy yell and went to his assistance. At that time, he did not realise that he had had a shock from a live wire nor did Mr Mihail check for any live wire. Someone probably did check for live wires later but he did not, nor did Mr Harrison or Mr Novak. He did not recall anyone going downstairs or upstairs to turn off the power: he did not recall Mr Harrison going downstairs to disconnect the cable. 147 The emergency evacuation lighting test report for the Marrickville site was shown to Mr Mihail but he could not remember seeing that document nor could he recall ever filling out such a document at the site upon entering the distribution board and circuit board number for the various sites. He thought he probably would tell someone after he had finished his job at a site which was the right circuit board, or would write it down, or tell somebody which circuit board he worked on for that site. Mr Mihail could not remember exactly but he probably told someone that he was working on a particular board or that a particular circuit breaker was for a circuit. He did not remember writing down those details and thought he probably told someone who was probably Mr Cowderoy. He could not recall whether he told Mr Cowderoy before he had finished S19 or S20 what circuit board he was working from. His writing did not appear on the test report. 148 In Mr Mihail's view, Mr Cowderoy was a good electrician and team leader who knew what he was doing and worked "safe". He probably heard yelling while working on the second floor as to what circuits were being turned on and off. He probably also heard Mr Cowderoy and Mr Harrison doing that. He recalled hearing them yelling but he did not recall the particular circuits involved. 149 The safe work method procedure had been read by Mr Mihail when he first worked at a exchange site on the project but to his knowledge those statements were not updated after that time. That was in July 2002. He did not recall a work method statement being issued in August 2002. In relation to training, Mr Mihail said that he had no other training apart from that specific to electrical installation. He was aware of the existence of a code of practice for low voltage electrical work and knew that a document existed but he did not know anything more about it. 150 In cross-examination, Mr Mihail said that, in the five or six months he worked with Mr Cowderoy, the only work that had been performed was at the telephone exchanges installing exit and emergency lighting. During this period, he had not observed Mr Cowderoy working "live" and he understood that Stowe's policy was that there was to be no "live" work. During the same period, he had never observed Mr Harrison working "live". In order not to work "live" on a circuit, it was necessary to ensure that the circuit was not energised. 151 Mr Mihail said that the work steps used were that he would go to the distribution board and take the schedule from the board indicating where the lights were in the building. The schedule was usually inside the door of the distribution board. The schedule identified on which circuit particular fittings operated. The circuits were identified by reference to a number for the circuit breaker and the number of the fitting. There was usually a name on the schedule, being the person who had completed the wiring, but it did not indicate when the schedule had been completed. Mr Mihail relied on the schedule to find the fittings operating through that particular distribution board. The numbered circuit breaker would then be turned off and he would go into the field (that is the workplace) to see whether the fitting he was to work on had been turned off. When working alone on this task, he would walk to the area of the fitting to see if the lights were turned off. When carrying out the task with another person, one would stay at the distribution board and the other would check the fitting in the field. This was the practice followed during the five or six months Mr Mihail worked as a member of Mr Cowderoy's team. When there were two members of the team performing this work, they communicated by talking to each other. If the light was no longer illuminated, Mr Mihail would be satisfied that the current had been isolated. Having formed the view that the circuit had been turned off, the practice was to test to make sure that the circuit was off which was done when he was ready to start work but before work started. To perform this test, Mr Mihail would use a test lamp to test the fittings and a volt stick in the switch. 152 While in Mr Cowderoy's team, Mr Mihail had seen Mr Cowderoy undertaking the task of identifying a circuit but he did not observe him to do anything different to the practice Mr Mihail had adopted. On the morning of Wednesday 15 January 2003, Mr Mihail performed work on only one fitting on the ground floor, that was at S8. No work had been performed on that fitting the day before. He could not exclude the possibility that he had performed work on S8 on 14 January 2003. He did not recall whether he had been assisted by any other member in performing work on S8 on the morning of 15 January 2003. Mr Mihail said that his memory was such that he could not rule out the possibility that another member of the team assisted him in performing work on the S8 fitting on 15 January 2003. He completed the work on S8 before moving to the first floor. When the work was completed, as a matter of practice, he returned to the distribution board and removed the tape on the particular circuit upon which he had worked to energise the circuit. It was then necessary to return to the fitting to ensure that it was working. After satisfying himself that the fitting was working, he cleaned up the work area and removed all rubbish. 153 The practice was different when working on a circuit with somebody else. When the particular fitting had been finished, Mr Mihail went to assist other members of the team to help them finish or to inform them that he had already finished the job he had been doing. He would notify the other members of the team so that the circuit could come back on when they were finished their work. 154 After finishing the fitting S8 on the morning of 15 January 2003, Mr Mihail, before proceeding upstairs, spoke to Mr Cowderoy who was working on S4 and S7 to see if his team needed any assistance with those fittings. By this stage, he had turned on the circuit for S8. He went back to the distribution board on the same floor and removed the tape that he had placed there and turned on the circuit. 155 Mr Mihail did not recall anything about the circumstances in which the tape had been applied to the distribution board. However, when the work was finished and having satisfied himself that the fitting was working correctly, the tape was removed. The tape was there to indicate that someone was working on that particular circuit and Mr Mihail saw the tape applied to the board. He saw the tape covering the circuit breaker and he applied the tape. The tape he removed from the circuit board had writing on it and it was writing he had placed on the tape. The name was placed on the tape so that other members of the team would know who was working on the particular circuit. Having completed the work on S8 and satisfied himself that the fitting was working and having cleaned up the area, Mr Cowderoy said that he did not need his assistance for the fittings S4 and S7 so Mr Mihail moved to the first floor. He went to the first floor using the fire stairs and was not accompanied by anybody else. He saw Mr Harrison "on fitting S9" and the last place he saw Mr Cowderoy as he left the ground floor was "on S4". The next time he saw Mr Cowderoy was on level 1. An hour had passed between those two events. He next saw Mr Harrison on level 1 which was approximately one hour after he had seen Mr Harrison "at S9". The last time he saw Mr Novak on the ground floor was between fittings S4 and S7. He saw Mr Novak again shortly after Mr Mihail arrived at level 1 as they almost finished their work together on the ground floor. He saw Mr Novak approximately five or ten minutes later at level 1 . 156 The first task he performed on the first floor was to work on an exit sign at S19 after having removed materials and tools from downstairs. When he had deposited his tools and equipment, Mr Mihail went around the floor checking the existing light fittings. He came to a door at which S4 was to be fitted and did not remember whether that door was open or closed. Sometime after that Mr Mihail saw that door was open and that was when they started to work on level 1. The first work he performed on that floor was S19, and then he performed work on S20. He did not see Mr Novak performing any work on the first floor on 15 January 2003. The first fitting on which he saw Mr Harrison working on the first floor was at S22, later at S23 and S24. When the team broke for lunch that day, Mr Mihail was working on S20. At that time, Mr Harrison was working on another two fittings, dropping wires through the ceiling. He did not know at which fitting Mr Novak was working. He understood that Mr Novak was to work on fitting S21 on the first floor. 157 When Mr Mihail broke for lunch he,Mr Novak and Mr Cowderoy left the building to go to Marrickville to get lunch and returned approximately 15 minutes later. When they returned Mr Harrison was having lunch on the first floor. When Mr Mihail returned to the exchange, he went to the first floor with Mr Novak and Cowderoy using the main entrance. The three of them proceeded to the first floor and joined Mr Harrison and had lunch. Lunch occupied approximately 15 to 20 minutes and Mr Mihail did not recall seeing Mr Harrison or Mr Cowderoy leave that area. Mr Novak did not leave his sight. Immediately after finishing lunch, Mr Mihail went back and continued working on S20. Before beginning work at S20 and after finishing his lunch, Mr Mihail said he went to the toilet downstairs on the ground floor. 158 In going to the ground floor, Mr Mihail's memory was that there was only one toilet. He had gone through the open door where the S24 fitting was placed and as he went through the door Mr Cowderoy was standing on the left hand side of the door. Mr Mihail proceeded down the first flight of stairs to a landing and saw Mr Harrison working there. Mr Harrison was on top of a step ladder and had a metal snake to pull wires through the conduit. Mr Mihail then went downstairs to the ground floor and, at the bottom of the stairs, turned right to walk to the toilet. Mr Mihail had stopped on the landing underneath where Mr Cowderoy was working because there was a switch on the wall: he stopped there because of "electrical curiosity". There was a switch there with a red wire coming out of it and he looked at that switch for a couple of seconds. It took him a minute to pass through the door at S24 on the first floor to stopping beside the switch on the ground floor at the bottom of the stairs. 159 While walking down the stairs, Mr Mihail was aware of a conversation between Mr Cowderoy and Mr Harrison although he did not pay much attention to it. His best recollection was that he heard a person say "Go down to connect the wire", but he did not recollect who said those words. It was only while giving this evidence in the witness box that Mr Mihail had been asked whether he could remember hearing anything on that occasion. Mr Mihail gave a statement to the police but was not asked about that conversation and did not tell the police of the words he had heard. In the statement he gave to the WorkCover inspector, he was not asked if he had heard any words being spoken as he walked down the stairs nor was he asked about the conversation by the inspector. 160 In further examination, Mr Mihail said that, in the break between giving evidence, he had a conference with the legal representatives for Stowe and had been shown a copy of the statements he gave to police and the WorkCover inspector which assisted him to refresh his memory. He was not given the transcript of his previous evidence in this Court. 161 It was pointed out to Mr Mihail that, in his earlier evidence-in-chief, he had accepted that the accident involving Mr Cowderoy occurred at approximately 2.00 pm and that, on that assumption, he had walked to the toilet at 1.45 pm. The evidence given in cross-examination was on the basis that lunch was taken at 11.00 am, he finished lunch before 12 noon after which he had gone to the toilet. Mr Mihail said it was not the only occasion during the day he had gone to the toilet and he did not count how many times he had done so. Mr Mihail agreed that he was talking about the occasion when Mr Cowderoy was working on the first floor and Mr Harrison was working on the landing which was the occasion about which he had given his earlier evidence. He said his evidence about going to the toilet at 1.45 pm was the truth when he gave that evidence, but he could not state any reason for the change in time in the evidence he had subsequently given. He denied changing the time to make sense of the conversation he allegedly heard in the stairwell. Mr Mihail rejected the suggestion he had altered the time that this conversation took place to overcome the problem that, if it had happened at approximately 1.45 pm with Mr Harrison on the ladder using the snake, then the downstairs switch would have already been connected - Mr Mihail said he did not know whether that wire had been connected downstairs. He did not know whether the red wire had already been connected downstairs or was in the course of final connection to Mr Harrison's fitting. 162 It was not until his cross-examination that Mr Mihail said he was asked for his recollection about what he heard on the stairwell. He did not choose not to tell the police or the WorkCover inspector about the conversation because he was not asked about it. He did not think the conversation was of any importance since he had not been asked about it. He was not asked about the conversation by the police, the WorkCover inspector or the Coroner. He had not told representatives of Stowe about the conversation either. Mr Mihail agreed that he had told this Court about the conversation in his evidence-in-chief two days earlier. Mr Mihail stated that he was not a lawyer, he was an electrician and he did not know whether his evidence about the conversation would serve to assist Stowe's case in these proceedings. He agreed that he had been asked by the inspector what caused or contributed to the accident. He did not mention the conversation then because there were always conversation between tradesmen as they worked. He did not think it was of any significance they were talking about work. Before the Coroner, he was asked whether he had stopped to have a conversation with Mr Cowderoy and Mr Harrison as he walked down the stairs and he replied that he did not stop, but he did not mention that he had heard their conversation. Mr Mihail did not tell the Coroner that he had seen the light switch, had found it open and was curious about it. He said he was not working on that particular circuit, so he did not know exactly what was happening. 163 When Mr Mihail said he saw the red wire coming out of the switch, he meant that it was disconnected from the switch. He did not know why it was disconnected because he was not working on that circuit: it was being worked on by Mr Cowderoy and Mr Harrison. He did not see either of them working at that switch. The fact that the red wire had not been connected led Mr Mihail to the view that someone had connected that wire and that he had heard someone being told to make that connection. As an electrician, he knew that the active wire had not been connected and it would need to be connected at some time if the light was to work. Mr Mihail agreed that, until his cross-examination, he had not previously told anyone that he had seen a loose red wire at that switch. Mr Mihail said this was not inconsistent with his evidence to the Coroner, that is, that everybody was working on level 1 and the wire was protruding at the switch on the ground floor because the team could work on the first floor and have access to the ground floor. 164 Mr Mihail did not know earlier in the day when he was working on S8, he was working on the same circuit where he saw the red wire protruding from the ground floor switch. He knew he was the last person to work on S8 but he did not remember that the S8 circuit was the same circuit as for the S15 circuit. He knew that Mr Harrison and Mr Cowderoy were working on a different circuit to S8 before he went upstairs. In his evidence in-chief Mr Mihail said that he did not remember putting his tape over the S8 circuit but, in cross-examination, he said he had done so. Mr Mihail said that the conference that he had with the defendant's representatives on the morning of giving this evidence had helped him refresh his memory. He had not read all his statements before he gave his evidence in-chief but had read them before being cross-examined. His memory in the witness box today was different from his memory of two days before when giving evidence in- chief. Two days before, in evidence in-chief he said he had not turned on the S8 circuitry to see whether it was working. However, in cross-examination, he said that he had tested that circuitry. He was now able to say that he had tested the circuitry because he had read all the statements but he did not remember which statement contained that information. 165 In his later evidence, Mr Mihail said he saw Mr Cowderoy before he went upstairs after finishing his work on S8 and spoke to him. Two days previously, he had said in evidence that he could not tell Mr Cowderoy what he was doing since he was working on S8 on his own and on a different circuit to that on which the others were working. Mr Mihail accepted that he did not tell the other workers whether he had turned the circuit on or off before he went upstairs. Mr Mihail said he could not recall from the statements he gave to police and to WorkCover whether he told either of them about putting tape on the downstairs distribution board when he was working on S8: those statements had helped refresh his memory. Mr Mihail said that he turned on the S8 downstairs circuit before going upstairs and had told no one that he had done so. 166 Mr Michael Harrison became an employee of Stowe in 1999, being employed as a licensed electrician. Mr Harrison remained in that employment and had become involved in construction work for Stowe before being transferred to the Telstra exchange project. Mr Harrison obtained his WorkCover green card and, in 1998, while with another employer had obtained a certificate entitling him to become a member of safety committees but had not been a member of any safety committee while employed by Stowe. Mr Harrison started his electrician's apprenticeship in 1989 and four years later became a licensed electrician. 167 Mr Harrison had been transferred to the exchange upgrade work in approximately July/August 2002. Before embarking on that work, he did not undergo induction training conducted by either Transfield or Telstra but, at the first site he attended for the project, he went through the safe work method statements involved for that project with Mr Cowderoy. Apart from that material, Mr Harrison was not supplied by Stowe with any written material concerning safety in the workplace for electricians. He had not been provided with documentation concerning codes of practice for electricians working on low voltage work or any document setting out safe methods in tagging circuits when working on them. He could not recall being provided with a copy of the NECA safety guide to employees in the electrical communications and data industries. He had no such document in his possession. 168 At the first site, he attended with Mr Cowderoy and Mr Mihail. Mr Novak joined the team later. They went through the safe work method statements at an on-site meeting. Mr Harrison could not recall how long that took - he had to read all the safe method statements involved with that project. He was not given a copy of them nor did he read them again and only generally recalled what was in them and that they outlined the work required and the risk associated with the work. He did not recall any discussion about the work method statements nor did anybody, such as Mr Cowderoy, quiz him as to his understanding of them. He did not know what happened to the safe work method statements after that first meeting - he did not know where they were kept and he did not seek access to them again. Over the five or six months during which he worked on the project, Mr Harrison said he did not know of any updating of the work method documents. He was not given any further work method statements that might have added to the first documents he read. Mr Harrison did not recall being provided with six further safe work method statements, including a statement with a reference number 007, referring to low voltage electrical isolation and lockout procedures. He did not keep a company folder for documents he received from Stowe. 169 During work on the exchange project, Mr Harrison was not provided with isolation tags at those sites but used tape to identify circuits he worked on. The tape was available from Stowe: on other Stowe work, isolation tags were available and used. While working on Telstra sites, he did not ask for tags nor was he ever told while working on those sites that he should use tags and not tapes. He observed other workers on those Telstra sites using tape rather than tags. Following the first site, at every new site, Mr Harrison said the process was that a walk-through would be conducted with the drawings to see what work was to be performed. The drawings were provided to Mr Cowderoy, not to Mr Harrison. The walk-through could take anything up to an hour in order for the team to familiarise itself with the exchange and what needed to be done. Work started after the walk-through was concluded. Daily toolbox meetings were not conducted. The work plans for each site were held by Mr Cowderoy in a plastic folder. Mr Harrison saw the drawings for the Marrickville site on the first day he attended that site. The drawings contained no identification of circuitry or the whereabouts of the distribution boards. Mr Harrison did not recall going back to those drawings for any purpose. Those drawings or plans were the only documents provided during the work at the Marrickville exchange. 170 The emergency evacuation lighting test report was a document Mr Harrison had seen before and had to be completed on these sites in the exchange project. He did not have to complete the document and he did not recognise the handwriting on a particular test report shown to him regarding the Marrickville site. The test report was filled out after emergency lighting on a particular circuit had been finished. Mr Harrison did not recall using the test report to identify a distribution board or a circuit breaker at the Marrickville site. 171 While working on these sites, Mr Harrison said he was required to provide his own equipment including hand tools such as pliers, screwdrivers, conduit covers, hammers and everything needed to perform the work. Mr Harrison determined what was necessary to do the job: there was no list of required tools nor was there any inspection of his tools. He did not recall Stowe conducting any inspection to test whether the equipment was suitable or properly maintained. Mr Harrison's toolbox had been stolen and he was given $300 by Stowe to assist with the replacement of the contents. By the time Mr Harrison was at the Marrickville Telstra site, he had a full set of tools for the job he needed to perform including test lamps, but he did not have a volt stick. He would use a volt stick, for instance, if he was in a ceiling space and needed to identify a cable when he did not have access to the terminal. Mr Harrison said he could use his test lamps to see if SW1 was energised but it was hard to use test lamps at a switch because most times there was no differential of potential. Mr Harrison used his test lamps, and because they were working as a team, if he needed a volt stick, he could borrow it from other team members. For the six months he worked on the Telstra exchanges he did not own a volt stick but had his own test lamps. 172 When Mr Harrison had a volt stick he did not recall reading the instructions on the use of the stick or reading a danger warning and was not aware of any dangers associated with the use of volt sticks prior to Mr Cowderoy's accident. Stowe had not told him that volt sticks did not work in all circumstances. He did not recall a warning on the side of a volt stick stating: "Danger, does not detect voltage in all circumstances". Mr Harrison denied that the volt stick he used had that warning, but it was no longer in his possession and had been taken by police after the accident. He did not recall what happened immediately after the accident and whether he had given the volt stick to police. He recalled having a discussion on the day of the accident with Senior Constable Birch in the presence of Mr McRorie from Energy Australia concerning the use by him of a volt stick. He did not recall getting the volt stick from upstairs on the landing and bringing it downstairs where it was tested on SW1. He had no recollection how the volt stick came into the possession of police. He remembered being at SW1 but did not remember the volt stick being tested. Mr Harrison did not recall his evidence to the Coroner of being present with Mr McRorie from Energy Australia and giving him the volt stick he had used to perform the initial test of SW1 or that he told the Coroner that he saw the volt stick light up. At the time, Mr Harrison said he had never been warned about the use of volt sticks and had no reason to believe that they were other than reliable for testing. 173 On the day of the accident, Mr Harrison had used a volt stick but did not recall how he had come into possession of it or whether he had asked to borrow Mr Cowderoy's volt stick. In relation to the emergency lighting that Mr Harrison installed at S15, the new light was to be installed below an existing light. To perform that work, he had to take the cover off the old light with a screwdriver, measure where the new light was to be placed using his own tape measure, drill the wall and fix the new fitting. He cut a short amount of conduit between the old light and S15 using his own conduit covers. When doing this work, he did not know exactly where his bag of tools was placed but, in normal practice, it would have been close to the landing on which he was working. He agreed there was no reason that he could not have used test lamps at SW1 to prove it was dead. Mr Harrison said that, after testing a circuit and finding it was dead and performing other works such as cutting conduit and placing a fitting, it was not his practice nor was he instructed to further test the circuit to see if it was alive. Usually, the tests were performed as a procedure where the lights were isolated via the circuit breaker in a team situation and then a test performed after a physical test of turning the circuit breaker off which would turn off the light. At SW1, this practice was not followed by Mr Harrison - the switch at SW1 was not turned on to see whether the light was working at the landing. 174 In relation to this work, Mr Harrison did not recall going to the distribution boards where the circuit breaker for L1 was housed. He could not recall when he was first aware that there were two distribution boards involved in this work: it was likely that he knew that when the walk-around was performed but he did not recall seeing both distribution boards on the first day. He did not recall going to the distribution board downstairs on the first day. He was never instructed by Stowe as to the process by which circuit identification was to be undertaken. Circuit identification was performed by the person working on the circuit. Mostly, they could not have an exchange in darkness and so the team worked together - one would go to the area where the new light was to be installed and another would operate the distribution board to find the relevant circuit. Once the relevant circuit was found, the extra test was performed and work could commence. The extra test was to find an active in that circuit using a volt stick or a test lamp. Contact between the person at the board and at the light fitting would be whatever was required, yelling or waving, but if working alone, the whole process would be performed by one person. Mr Harrison often worked alone at the Marrickville exchange. 175 On the first day, Mr Harrison worked on the ground floor. He did not recall on which sites he worked on the first day: in the morning of the second day he remembered working on S9 in the garage. He did not recall if he performed that work on his own. He did not recall where the downstairs distribution board was placed nor did he recall ever going to it. Mr Harrison did not recall isolating a circuit on the first day by standing at the distribution board nor did he recall being part of the team that undertook isolation on the first day. He had no recollection of hearing people communicating while isolating a circuit on the first day. On the second day Mr Harrison worked for a few hours downstairs, and when he went to work upstairs - Mr Mihail and Mr Novak were already there. While upstairs, Mr Harrison recalled going through the process of isolation but he did not recall whether he was at the distribution board. He went through that process with Mr Cowderoy. He did not recall, before going upstairs, whether there was any testing of lights installed on the ground floor by him or by Mr Cowderoy. The normal practice was when an installation was finished, to test the lights to see whether or not they worked. He did not recall any conversation with either Mr Mihail or Mr Novak before they went upstairs. 176 Mr Harrison did not recall working with Mr Cowderoy downstairs on the second day nor could he recollect whether he was aware that Mr Novak, Mr Mihail or Mr Cowderoy had isolated circuit breakers on the ground floor. He had no recollection of Mr Cowderoy going to the distribution board on the ground floor, nor any recollection of the removal of tape from the distribution board on the ground floor nor any turning off of circuit breakers on the ground floor. The usual practice was to test the site before leaving it. He had no recollection of that happening on the second day. The only way he could test a new fitting was to turn on the circuit board and, if working alone, he would have performed that task. It was normal to have a discussion with members of the team before any circuits were re-energised but he had no recollection of informing the team that he was about to turn on a circuit from the board on the ground floor. He had no recollection of anyone coming to him and saying they were about to turn on the circuit board. Mr Harrison had no recollection whether the normal practice was followed on 15 January 2003. 177 Mr Harrison did not know Mr Bright before working on the Telstra exchange project but had seen him on exchange sites. He did not know what work Mr Bright was performing: Mr Bright had discussions with Mr Cowderoy but not with Mr Harrison. Mr Harrison did not remember how many times Mr Bright had attended the sites or the number of sites attended while he was working on the project. Mr Bright did not explain to Mr Harrison what he was doing at the sites. Mr Harrison recalled him being at the Marrickville site only and had no recollection of him being at other sites. Mr Harrison saw Mr Bright on the first day. 178 In relation to work carried out on the second day, Mr Harrison worked at S9 or in that area. He went upstairs but did not recall whether he went with Mr Cowderoy. It had been decided that Mr Harrison would do work on S23 and S24 on level 1. Although he did not recall who was at the switchboard once the relevant circuit breakers had been identified, Mr Cowderoy and Mr Novak went into the ceilings to run cables from another light switch for the exit lights that were to be installed at those points. Mr Harrison said he was part of the isolation process and that work was performed with Mr Cowderoy, but he could not recall which part he played in the process. If he was at the distribution board, he would have placed the tape on the circuit breaker. Mr Harrison was shown a photograph of the circuit board with two switches taped over with the word "Stowe!!" written on the tape. He did not recall seeing that tape on the day of the accident. He recalled that the use of tape was the way circuit boards were tagged at the Telstra site. He did not recognise the writing on the tape as being his own. The practice was to put tape across the circuit breaker and write the name "'Stowe" on the tape and that practice had been followed on the Telstra exchange works. Mr Harrison had never been criticised for following the practice of using tape and had seen other people follow that practice. 179 S23 was the installation Mr Harrison thought he worked on during the first day and after completing it, he moved to S24. He was working alone on S24 and was in the process of identifying the circuit for S24 but he did not recall being at the distribution board. He did not recall whether he knew if S23 was on the same circuit as S24. He would not have assumed that they were on the same circuit. After S23 was finished, he did not recall whether he made sure it was working and, although that was the practice, it depended whether there was other work to be performed on that circuit and he did not recall if that was the case in relation to S23. No one else told him that they were working on S23: Mr Cowderoy told him, when Mr Harrison went into the stairwell, that the work he was doing was on the same circuit as Mr Harrison had been working on in the stairs. That is, the circuit in the stairs was the same circuit for the work Mr Harrison was performing in the equipment room. Mr Cowderoy was working on S25. Mr Cowderoy told Mr Harrison that he was working on the same circuit that Mr Harrison had been working on in relation to S23 and S24. When Mr Cowderoy was near S25, Mr Harrison did not recall whether he had opened any light switches in or near S25 or that he was doing any electrical work near S25, or whether he had his tools with him. The only knowledge that Mr Harrison had of the circuitry of S25 was through discussions with Mr Cowderoy. Mr Harrison did no work on S25 where Mr Cowderoy was working. 180 S24 had been finished by Mr Harrison no more than an hour before the accident and after finishing that work, he entered the stairwell. Mr Cowderoy was working on S25 and Mr Harrison had not taken part in the identification of the circuit for S25. Mr Harrison did not undertake the identification of the circuit for S25. Mr Harrison worked on S15, took the cover off the T joint and inserted the snake into the conduit. In conversation, Mr Cowderoy said he wanted to pick up the active to the earth neutral for S25 from S24. He then referred to picking up the active from the switch below, which Mr Harrison assumed was S15. After he took the cover off the switch, Mr Harrison said that he recalled brushing the switch S1 with a volt stick although he did not know how he came into possession of the volt stick. He accepted Mr Cowderoy was an experienced and safety conscious electrician. Mr Cowderoy did not tell him that the circuit for S15 was off. Mr Cowderoy did not use the term S15 but he did say that the circuit in the stairs was the same circuit as Mr Harrison had been working on at S24. Mr Cowderoy did not tell him that the circuit for S15 was the same as S25. Mr Cowderoy said he was going to drill through a wall to pick up supply from S24 and Mr Harrison understood that he was talking about supply for S25 being picked up from S24. Mr Cowderoy did not ask him to assist in the installation of S25, and said that Mr Harrison was to undertake work on S15 and that would be his job. That job involved getting power to illuminate the new emergency light that was going to be installed on the intermediate landing in the stairwell. 181 When Mr Harrison came into the foyer, Mr Cowderoy told him they would be getting the active S15 and that that circuit was the same. Mr Harrison could not recall telling Mr Glass, an Inspector from WorkCover, soon after the accident that he assumed that the light in the stairwell was on the same circuit as the light upon which Mr Cowderoy was working. From the conversation he had with Mr Cowderoy, he assumed S15 was on the same circuit and, even though he had that conversation, Mr Harrison brushed the volt stick over S1 and tested it for himself. Mr Harrison had not tested the volt stick to determine whether it was working and did not recall anyone from Stowe instructing him at any time as to the method of testing volt sticks before relying on them. Mr Harrison understood that the best method of testing a volt stick to see if it was working was to put it on something he knew was live: he had used that method in the past to test a volt stick. The reason he did not test the volt stick this time was because of the conversation he had with Mr Cowderoy and his understanding combined with the result of the test stick that confirmed the conversation with Mr Cowderoy. Mr Harrison said he had a clear recollection of brushing the switch with the volt stick. 182 In relation to emergency and exit light fittings, Mr Harrison said that it was a requirement that those fittings have a permanent active. When Mr Cowderoy spoke to him when Mr Harrison was going down to the ground floor switch, Mr Harrison had no idea whether Mr Cowderoy had opened that switch prior to speaking to him. Mr Harrison had an understanding from other Telstra jobs that lights in stairwells were generally on the same circuit. He used that understanding on 15 January 2003, along with the information given to him by Mr Cowderoy, when making decisions about his work. Had it been available, he might have used the document indicating the circuit connections for each switch but he would not have assumed that to be accurate and would have tested to see whether the circuit was dead or alive. He had not been provided with a document that indicated which circuits were connected to which lights before the Marrickville job. He had seen the schedules in the distribution boards and had used them initially to locate the circuit but he did not recall whether there were any schedules on the distribution boards at Marrickville. Mr Harrison was not instructed by anyone from Stowe to read or rely on those schedules. 183 Mr Harrison noted that there was a difference between a two-way switch and a "double ganger". Two-way switches did not always have a permanent active at each switch. Mr Cowderoy had told him that they were to pick up an active from downstairs. Mr Harrison understood from that statement that there was a connection required to a permanent active. Mr Harrison did not recall whether Mr Cowderoy said to him "We will get the active from the switch at the bottom of the stairs", but that was his understanding of the conversation, however, he could not be a hundred per cent sure of what was said. Mr Harrison assumed from what was said on the stairs that the circuit was dead and safe to work on. 184 When S1 was tested with a volt stick, Mr Harrison did not remember any reason why he might not have used his test lamps. Mr Harrison's use of a volt stick where there was no access to the cable was not the situation he confronted when dealing with SW1. At SW1, Mr Harrison took the cover off but he did not recall what wires were then visible. He would have opened the switch and brushed the volt stick over the cables near the point of connection. Mr Harrison had not received any instruction as to how close he should put the volt stick to the wire. Mr Harrison said he brushed the volt stick across the cable but he could not say how close the volt stick was to the cable. He had no practice as to how close he would place the volt stick in such circumstances. His practice was to physically touch the wiring with the volt stick but he could not recall whether this occurred on this occasion. 185 Mr Harrison understood the term "switch wires" and that the yellow cables in SW1 possibly represented switch wires. He made no determination as to whether or not the yellow wires were switch wires and relied on the volt stick to determine whether it was alive or dead. He did no further test involving that switch after completing the first test with the volt stick. The red wire in the switch appeared to be the active wire. Mr Harrison made no further enquiry of Mr Cowderoy after the test nor was he provided with any further information concerning the circuitry. Mr Harrison relied on the result of the volt test and his understanding of his conversation with Mr Cowderoy in concluding that the circuit was dead. After testing the circuit, he inserted the snake from the T junction upstairs having taken the cover off the T junction. When he took the cover off the T junction Mr Harrison had no recollection of the wiring he observed at that point. He had not received instructions from Stowe to keep reviewing the situation as to the state of the circuitry as further information came to hand. He did not consider any need to further review his decision that the circuit was dead once the T junction cover had been taken off. 186 The work at the Telstra exchanges was supervised by Mr Cowderoy as the leading hand. Mr Cowderoy did not supervise by looking at the way in which Mr Harrison was carrying out his work. Sometimes, when given a job, he was given specific instructions as to how to do the job and at other times given no instructions. He was never instructed to visually trace conduit. 187 On the day of the accident, Mr Harrison had gone upstairs, did not look at the wiring in particular and inserted the snake through the T junction down to SW1. He then went downstairs to SW1 to connect the red cable. The red cable downstairs was loose and had been stripped from existing cables. Mr Harrison connected the red cable to the snake from downstairs and Mr Cowderoy pulled it upstairs when it was connected. Mr Harrison then enquired whether Mr Cowderoy wanted him to hook up the red cable downstairs. Mr Harrison asked that question even though it was his job because they had been told not to leave stairwells in darkness overnight and, given the time in the afternoon and the need for this job to be finished, he enquired whether the job would be finished in time. Mr Cowderoy told him to go ahead. The use of the snake was a two man job in which Mr Cowderoy had assisted. All his work was work Mr Harrison had to perform downstairs. Before connecting the red wire to the switch downstairs, he had a conversation with Mr Cowderoy who was working on the same circuit. Mr Harrison asked Mr Cowderoy whether Mr Cowderoy wanted him to wire up the switch and Mr Cowderoy said to finish it off. Mr Harrison then connected the red wire into the switch stripping the cable back and putting it into the terminal. Mr Harrison had not twisted the wires together because of the small opening so he stripped the wire and secured it. He understood that if he twisted the two wires together he could have received an electric shock if the circuit was alive. It was not unusual to twist the wires together to put them into sockets. Mr Harrison could not recall word for word what Mr Cowderoy had said in this conversation but that was his understanding of what Mr Cowderoy had said. 188 In a statement given to police, Mr Harrison said he had a conversation with Mr Cowderoy in which Mr Harrison asked if the circuit was going to stay off and Mr Cowderoy replied that it would. Mr Harrison then asked Mr Cowderoy if he wanted Mr Harrison to connect it while he was down at the switch. Mr Cowderoy replied, "Yes, finish it off". Mr Harrison accepted that statement was different to the evidence he gave in this Court. Mr Cowderoy had therefore told Mr Harrison twice that the circuit was dead: Mr Harrison had recalled that fact. He was aware that the volt stick did not light up, but he had forgotten one part of the conversation with Mr Cowderoy, leading him to believe that the circuit was off. Mr Cowderoy had again led him to believe that the circuit was off but Mr Harrison did not use the volt stick again before he connected the wires. He did not recall why he did not use it even though Stowe had a very strict "no live work" policy. Mr Harrison had not received an instruction that he should "test before touch". 189 The task of taking the cover off SW1, pulling the wire upstairs with the snake and connecting the red wire to SW1, should normally have taken no more than half an hour but Mr Harrison could not remember how long he was occupied in that task. While working in the stairwell during that period from approximately 1.00 pm, he did not recall seeing Mr Mihail in the stairwell. Mr Harrison did not recall exactly where the others were working and he did not know if any of the team remained downstairs who might have had access to the distribution board downstairs whilst he was working downstairs. Mr Harrison did not recall seeing any employees from Telstra or Transfield working at the exchange on the first or second day. Usually lunch was taken at approximately 11.00 am and finished at 12 noon. On 15 January 2003, lunch was taken at approximately those times. 190 When performing his work in January 2003, Mr Harrison said that he had a procedure that was followed on a daily basis and he had not refreshed his memory through Stowe documents about the content of the safe work procedures. He was not aware of any procedure or any rule about connecting the load end first and then the supply end. He did not recall being instructed or having his attention drawn by Stowe to an instruction to "install, reconnect cables and associated equipment, starting from end of circuit working towards isolating devices". He understood that instruction to mean that he would connect from the light back to the distribution board. Mr Harrison was not doing that when he connected the red wire to SW1. At the time, he did not believe that to be contrary to any instruction he had received. 191 After connecting the red cable to the terminal of SW1, Mr Harrison re-fixed the brace plate on the switch and proceeded to the mid-landing in the stairwell. He accepted that, if he were on the ladder at the mid-landing of the stairwell, he had already fixed the red wire downstairs. Mr Harrison had ascended the ladder firstly to dismantle the existing fixture and at this time Mr Cowderoy was working in the foyer area, although Mr Harrison could not recall on what work. Mr Cowderoy was not working on the fitting that Mr Harrison was working upon. Mr Harrison then drilled the wall and mounted a brace plate for the new fitting under the existing fitting. He inserted a short length of neutral and earth wires in plastic conduit between the two fittings for subsequent connection to the terminals of the fitting. That work might have taken another half an hour. Mr Harrison agreed that he had to do something with the snake from the new fitting and he had inserted the snake so that it exited at the T junction. It was at that point that he had asked Mr Cowderoy to do something, although he could not recall exactly what he said, but he fed the snake down the conduit to where Mr Cowderoy was on the landing. Mr Cowderoy pulled the snake out. The red wire that had come up from the downstairs switch had to be connected to the snake either by taping or baring the wire and putting it through the hole in the snake but Mr Harrison did not recall seeing Mr Cowderoy baring the wire. Mr Harrison was on the ladder when, out of the corner of his eye, he saw Mr Cowderoy on the landing and then rendered assistance to Mr Cowderoy. 192 When asked whether he did something about the state of the circuit, Mr Harrison said that he recalled initially moving the red wire. Approximately mid-way through the resuscitation effort, when it appeared Mr Cowderoy was alright, Mr Harrison went downstairs to the switch, took the cover off and pulled the red cable out. He did not go to the distribution board but knew that the cable was live. In taking that action at that time, as a matter of mechanics, he could have been electrocuted. He did not recall checking the cable up to the landing to see if it was alive or not. Mr Harrison did not recall giving evidence to the Coroner that, prior to assisting Mr Cowderoy, the cable had been checked with a volt stick. He remembered removing the cable, assisting Mr Cowderoy and going downstairs and disconnecting the cable but he had no recollection of testing the cable. Having tested the switch with a volt stick and finding it dead, he worked on the circuit for approximately an hour or so. He did not consider it at any time part of his instructions to recheck the circuit as the work progressed to see if it might have been re-energised in the meantime. Mr Harrison received no instructions that he should constantly re-check circuits as work progressed and time elapsed. 193 It was Mr Harrison's recollection that, when he was up the ladder, it was at a time after he had put the cover on and connected the red wire to SW1. After the accident, Mr Harrison had seen at Stowe a locking device for circuit breakers. He said that if it fitted a circuit breaker at Marrickville, it could have been used on that circuit breaker. Since the accident, these locks had been provided by Stowe together with a key for locking the device. The current system was that there was a bag with testing "lock dogs" and different styles for different types of breakers: these locks were not available through Stowe prior to the accident. After the accident, Mr Harrison took some time off work and did not go back to the Telstra exchange project. In his current work, he had access to copies of safe work method practices but had not been provided with a copy of them. Those documents were in the office on the site in a folder. While working at Marrickville, Mr Harrison was not told that those procedures would be on site and he did not seek access to them at any site on which he worked during the Telstra project. He did not know where those procedures were kept after the first site meeting he attended. 194 In cross-examination, Mr Harrison said that, in seeking work with Stowe, he had provided the company with a curriculum vitae. Prior to working with Stowe, Mr Harrison had worked at two telephone exchanges equipped with distribution boards and wires attached to those boards and where light fittings were attached to the wires. In the course of this work in telephone exchanges, he was called upon to work on circuits that were attached at one end to distribution boards and to light fittings at the other end. In performing that work, he was called upon to identify the circuits upon which he was working. The practice he followed in identifying circuits was to find what the circuit did and to isolate that circuit by visual inspection and to test the cable prior to working on the circuit. The practice was to turn the breaker off to find out if, in the work area, that circuit breaker was the one operating the light in the proposed work area. If it was the relevant circuit breaker, it would be taped off if work was to be performed on that circuit. Mr Harrison did not recall exactly how he was taught to identify circuits: his understanding was that the system he followed was the best way to perform that task. In checking to see whether the circuit was dead, Mr Harrison's practice was to use his test lamp. 195 Mr Harrison obtained his trade qualifications in 1993 and since then had worked as an electrician doing wiring, lights and power work. Between 1994 and 1995, he was a leading hand at the Caltex Oil Refinery doing wiring, lighting and power work, looking after a team of four to five men. He performed work at the Newtown telephone exchange comprised mainly of cable work and he sometimes worked as a leading hand although at other times he did not work in that position. In this work, there was the same identification of circuits and their isolation. The procedure he adopted was to find the relevant circuit breaker, isolate it, check in the field visually if the light was off and then use test lamps on the terminal to establish that the circuit was dead. Once the circuit was identified, it was isolated by tagging or taping off the circuit and then work could commence. If using tape, it was placed over the circuit breaker. 196 Mr Harrison joined Mr Cowderoy's team in about July or August 2002 and they worked at a number of exchanges before working at the Marrickville exchange. In that work, the longest time spent at an exchange was two weeks, while the shortest time to perform work at an exchange was between two and three days. He worked every day with Mr Cowderoy on the project installing emergency and exit lights. There was no division of tasks between them. He had observed Mr Cowderoy identifying circuits on which work would later be performed and had seen that occur at nearly all the exchanges on which they worked. Mr Cowderoy identified the circuits in the same way as Mr Harrison, by identifying the area and turning off the circuit breaker. They had worked together when Mr Cowderoy had identified a circuit on which they were later to work: on those occasions he would look at the lights, isolate the circuit breaker and test the circuit when the right circuit breaker had been located. He did not ever notice Mr Cowderoy keeping him under observation while performing this task. Mr Harrison did not recall seeing Mr Cowderoy isolate a circuit by taping off but thought he would have done so. He could not say how he thought that he would have done so and could not say how he would have gone about it. Mr Harrison had isolated circuit breakers and used tape: on some of those occasions, Mr Cowderoy was present but he had no recollection of Mr Cowderoy observing him taping over a circuit breaker. He had no recollection of Mr Cowderoy instructing him or identifying circuits or securing them when they were identified. 197 In relation to work at the Marrickville exchange, Mr Harrison did not recall the work performed on the first day of attending the exchange on 14 January 2003, and stated that there was usually a walk-through of the exchange and looking at the plans for the work to be performed. He did not recall what fittings he worked on or if he worked alone on any job that day or on which circuits he performed work during that day. On 15 January 2003, the first work he performed was in the back garage with Mr Cowderoy, installing emergency lights although he did not recall which lights. He did not recall whether the circuit was identified the day before or on that day, and he did not recall if he had secured the circuit in the garage. Mr Harrison thought he worked for a few hours in the garage, but could not recall on what number of fittings and could not recall if he saw or spoke to anyone else during this work. After performing work on the garage, he went to the first floor with equipment and gear with Mr Cowderoy. He did not recall if he saw anyone while he was performing this task or if he saw anyone on the ground floor and he could not recall how long it took to take the equipment upstairs where it was placed. He did not see anyone on the first floor other than Mr Cowderoy: he did not recall where Mr Mihail was working. Mr Novak was working in the equipment room but he could not recall at what time or what work Mr Novak was performing. 198 The task he performed was work with Mr Cowderoy on the first floor but he could not recall any discussion about it. He did not recall Mr Cowderoy giving any direction or instruction about that work but he was working on exit lights in the corner and above the door. He could not recall the time frame in which this work was performed. Before lunch, he was working on an exit light on the first floor and that task was not finished before lunch. At that time, Mr Cowderoy and Mr Novak were working in the ceiling of the equipment room and their work was connected to his work because a supply was needed and had to be cut through the ceiling. He did not recall discussing the work with Mr Mihail. Mr Harrison did not recall how the circuit was identified while working on the exit lights and he did not recall if he identified the circuit or if others did so. He did not recall whether he or other team members secured this circuit and circuit breaker for the exit light. 199 One hour was taken for lunch. Mr Harrison spent lunchtime with Mr Cowderoy, Mr Novak and Mr Mihail and no work was performed during that time. Lunch was taken in the equipment room and he did not recall leaving the equipment room during that hour nor did he recall leaving the first floor before lunch. After lunch, Mr Harrison finished the exit light alone. He finished the exit light above the door and connected the cable which did not involve going to the circuit breaker. 200 Mr Cowderoy asked Mr Harrison for assistance when he had nearly finished the exit light: that conversation occurred in the equipment room. After lunch, he did not recall seeing Mr Cowderoy, although he thought he was working in the stairwell and recollected that he went there after lunch. He thought the door between the equipment room and the stairs was open before lunch but he did not look into the stairwell. He did not recall seeing or speaking to Mr Cowderoy after lunch nor Mr Novak or Mr Mihail. Mr Cowderoy asked him to come into the stairs and help when he had finished the exit light. Mr Harrison said he would come when he was finished the exit light and did not recall anything else being said between them. When he finished the exit light, he cleaned up the area then went to Mr Cowderoy in the stairwell but did not recall what Mr Cowderoy was doing at that point. Mr Cowderoy was standing on the top level and said to him that the circuit being worked on was the same circuit as the equipment room light that Mr Harrison had been working on. Mr Harrison understood that to mean it was okay to proceed to help Mr Cowderoy on his work. 201 Mr Harrison started to work on the emergency light in the stairs when Mr Cowderoy mentioned getting an active from the switch at the bottom of the stairs, although he did not recall when that was said. Mr Cowderoy said this not long after saying the circuit was the same circuit that Mr Harrison was working on. Mr Harrison said he had no knowledge of the switch downstairs and did not recall that he had seen it before that day. His first recollection of seeing it was when he went to it and it was covered with nothing coming out of it. He took the switch cover off and brushed the volt stick over the wires. He then went upstairs, uncovered the T piece and fed the snake down. He had no recollection of how he had the volt stick in his possession nor of speaking to anyone before using it. It was the first time he had used a volt stick although it could be quite regularly used in his type of work. 202 The volt stick was brushed across the cables in the switch. Mr Harrison could not recollect whether it touched the switch, the terminal or the wires nor did he recall how close it was to the wires or the terminals. When he brushed the switch the volt stick did not light up but he could not recall how many times he brushed the switch. After brushing the switch he concluded that the circuit was dead or isolated and he related this to Mr Cowderoy, saying that the circuit was the same one he had been working on in the equipment room and brushing the switch confirmed what Mr Cowderoy had told him. 203 After brushing the switch, Mr Harrison then went upstairs, took the T cover off and fed the snake into the conduit but could not recall where Mr Cowderoy was at that time. When he fed the snake into the conduit, he was standing at the top landing. He then went downstairs, hooked the cable to the snake and Mr Cowderoy pulled the snake up and out of the T joint. There was no discussion about this and Mr Cowderoy was on the top floor working on the top landing. Mr Harrison said that, after he fed the snake into the conduit, he asked Mr Cowderoy to hook the cable on to the snake. He then connected the cable onto the switch at the bottom of the stairs, stripping it back and feeding it in next to the other cable. While doing this, the cable came into contact with the terminal and the wire in the switch but he noticed nothing about the switch at that time. In order to connect to the switch, he undid the screw, fed it into the terminal and screwed it up. Mr Harrison said he then fixed the cover of the switch and screwed it to the wall. He proceeded to install the fitting above the landing, drilling the wall and mounting the light below an existing fitting. At this point, the end of the cable was connected to the switch and the other end of the cable was hanging out of the T junction of the conduit. 204 To install the fitting on the wall, Mr Harrison needed to pick up the neutral and earth. He intended to take the neutral and the earth from the old fitting and put it into the new fitting but had no recollection of a conversation with Mr Cowderoy about performing this work. The next thing he recalled was seeing Mr Cowderoy shaking on the landing. 205 Mr Harrison said that Mr Cowderoy had not said anything to him about the switch and he had no recollection of Mr Cowderoy speaking about the circuit after lunch. He was aware that Stowe's position was that no "live work" was to be performed but that was policy everywhere. While on Mr Cowderoy's team, he had never worked "live". While working in the stairwell, he thought the circuit was isolated because of his conversation with Mr Cowderoy and following his brushing the switch with the volt stick. There was no other observation he made to suggest that the circuit was alive. While he was working on Mr Cowderoy's team, Mr Harrison never saw Mr Cowderoy work live nor did he see any other member of the team work live. 206 In re-examination, it was pointed out to Mr Harrison that, in his evidence in-chief, he said that the work on the switch was his job and that, after finishing his work on SW24, he had gone to Mr Cowderoy to ask him what work Mr Cowderoy wanted him to do. His evidence now appeared to be that before he finished SW24, Mr Cowderoy asked him for help and that work was to be part of Mr Cowderoy's job, not his. Mr Harrison thought that all these things had occurred, that he would have asked Mr Cowderoy what he wanted done next and that, when he had gone into the stairs, he had asked Mr Cowderoy what he had wanted done and Mr Cowderoy had asked for help earlier. 207 While working at the Newtown exchange, Mr Harrison said that he had isolated circuits. In his interview for a position with Stowe, he had no recollection of being asked how he isolated circuits or how he went about it. Mr Harrison said that he concluded the downstairs switch was off because of what Mr Cowderoy said and because of the result of the volt stick test. He had not tested the light, although that was the usual practice: it was not necessary to test every light on a circuit. He did not test the light he was going to work on as he believed the electricity to that circuit was off. He had no recollection of being upstairs and being involved in identifying circuits and breakers. In earlier evidence, he said he identified circuits upstairs but did not recall if he had done so at the distribution board or not: Mr Harrison said it was not easy to recall things but he did recall using the volt stick. 208 Inspector Sibilant had prepared two reports in relation to the incident at the Marrickville exchange: the first report in September 2003 was conducted for the Coroner and the second report in January 2004 was prepared as a revision after the Coroner's Inquest had concluded. After setting out background matters and matters about `which he had been informed in relation to the incident, Inspector Sibilant made the following recommendations: This death may have been prevented had steps been taken to: 1. Determine the hazards and risks associated with working on circuits that could be potentially live. This should have included a thorough inspection of all circuits especially those controlling light circuits and where separate circuits were carried in the same conduit. 2. Put in place appropriate circuit testing and 'lock out' procedure prior to work commencing on individual circuits. 3. Ensure that circuits controlling numerous fittings in the same location were completely isolated and thoroughly tested prior to work commencing on the circuit and/or associated fittings. 4. Had supervision been such to ensure that work practices were in accordance with the following Australian Standards and Codes of Practice: · Australian/New Zealand AS/NZ 3017 (2001) electrical installations - testing and inspection guidelines;. · Code of Practice Electrical practices for construction work; · stay alive by working dead; · low voltage electrical work; 209 The second report of January 2004, being the revised report prepared by Inspector Sibilant, carried much of the same information as his first report but contained the following recommendations: 21. I recommend that this file be referred to State Co-ordinator, electrical safety and to legal services to provide assistance on further courses of investigation pending appeal or acceptance of Coroner's orders. 22. My investigation at this stage has found an apparent breach of s 8 of the Occupational Health and Safety Act 2000 by Stowe Australia Pty Ltd. Further investigation is required to determine whether legal action is warranted against other parties. 210 In cross-examination, the Inspector said he visited the exchange on 22 January 2003 with Inspector Glass and that Mr Harrison had been present. That was the only time he had been at the site. He had no recollection of seeing a test of the light switch at the foot of the stairs and had no recollection of seeing the volt stick. The background contained in his report had been obtained from Inspector Stewart and the sequence of events relating to the work at the exchange came from information from his own investigations and from statements he had obtained. It represented his summary of what people had said in their statements during his investigation. He reviewed these statements for the purpose of making his recommendations which included what was stated in Inspector Glass's report and had spoken to Inspector Glass about his report. His recommendations relied upon the opinions formed by Inspector Glass. 211 Mr Frank Glass had been employed by the WorkCover Authority as a safety inspector for 13 years and he was the acting State Co-ordinator (Electrical) with his substantive position being Principal Inspector (Manufacturing Team). Mr Glass had long experience in the engineering and construction industry and was accepted as a person capable of giving expert evidence in relation to electrical matters dealt with in a report he had prepared regarding the Marrickville accident. Mr Glass had provided test results of the Wattmaster Volt Stick for the Coroner on 30 March 2004. The results of the test indicated that the Wattmaster Volt Stick he had been given to test was working within its design parameters and was in satisfactory working order. 212 On 22 January 2003, Mr Glass together with Inspectors Sibilant and Bell attended the Marrickville exchange. Present at that time was: John Imber, General Manager, Stowe; Mr Harrison; the vendor manager of Telstra; and, two occupational health and safety consultants. Mr Glass viewed the distribution boards, circuits, switches and light fittings involved in this incident and was also shown the emergency evacuation lighting test report, the electrical markup drawings, architectural drawings and the risk assessment submitted by Stowe in response to an improvement notice issued on 17 January 2003. 213 In view of the nature of the evidence given by Mr Glass, the substance of his written report is set out: View of the Scene 1. A stairway in the front of the building leading to the first floor. At the bottom of the stairs and on the south facing wall was a single large plate 2 way light switch mounted on a mounting block. A red building wire was sealed off behind the switch. 2. The wiring to this switch was through a metal conduit which originated at a duct leading to a Distribution board located on the ground floor. 3. A Distribution Board located on the ground floor labelled DB2. Circuit breaker 2 was in the opened position with a tag placed through the breaker with the letters "Danger" written on the tag. A red wire was sealed off and coiled behind the door of the Distribution Board (DB2) 4. At the top of the stairs on level one and on the north facing wall a two gang large plate light switch mounted on a mounting block. Wiring to these switches was fed through the same metal conduit housing the wiring to the switch on the ground floor below. 5. A fluorescent light fitting mounted on the southern facing wall above the first floor landing. The cover was removed and the wiring to this fitting exposed. Wiring to this fitting was fed through the same metal conduit housing the wiring to the light switches. 6. A fluorescent light suspended by chain from the roof of the first floor landing over the stairwell. Wiring to this fitting was fed through the same metal conduit housing the wiring to the light switches and the fluorescent light mounted on the east facing wall above the first floor landing. The conduit feeding these fittings continued on via a series of elbows and "T" pieces, through a small room and into the roof of level 1. 7. A "T" piece leading to the fluorescent light fitting mounted on the south facing wall above the first floor landing with the inspection plate opened and a red building wire leading out of the conduit and onto the floor. Lying on the floor landing of the stairway was a metal (Steel) snake. 8. A switchboard located on the first floor labelled DB3. Circuit breakers 15 and 17 were in the closed position and a strip of plastic tape placed over each breaker with the letters "Stowe" written on the tape. On Thursday the 23rd January 2003, I returned to the accident scene located at 229 Livingstone Rd Undercliffe 2206. There I met Melvyn Olaco (Telstra) and Trevor Seaton (Transfield). I inspected the wiring circuits and conducted continuity tests on the light circuits in the stairwell leading from the ground level to level 1. From these tests and observations I determined the following: 1. The 2 way light switch on the south facing wall was connected to an active (red) wire fed from Distribution Board (DB2) prior to the accident on the 15th of January 2003. The straps (yellow) from this switch were wired through a common conduit and attached to one of the 2 switches mounted on the north facing wall. The switch wire (blue) from this switch led to the fluorescent light fitting mounted on the south facing wall above the first floor landing. The neutral (black) was connected to the neutral fed from Distribution Board (DB2). 2. The second of the 2 switches on the north facing wall was connected to an active wire (red) fed from the Distribution Board (DB3) and the switch wire (yellow) connected to the fluorescent light suspended by chain from the roof of the first floor landing over the stairwell. The neutral (black) was connected to a neutral fed from Distribution Board (DB3). Opinion ... 2. I have seen photographs taken by the Police on the day of the accident and rely on these, my own observations including the scene of the accident, testing of the "Wattmaster" voltstick (which had been a police exhibit and provided to me by the Police before testing, and which, I understand was claimed to have been used by Mr Harrison before inserting the active wire in SW1) and conversations I had with Mr Harrison at the scene of the accident. ... 4. In this report I have assumed corrections as to the identification of the downstairs distribution board being identified as DB2 and the upstairs distribution board as DB3. 5. I have been shown a copy of exhibit B (electrical mark up drawings) and have been advised that in its original form this document had no handwritten additions on it. 6. I have been shown a copy of exhibit T (architectural drawings) and have been advised that in its original form this document had no handwritten additions on it. 7. I have also been shown exhibit C which I have been told was completed after work had commenced and/or maybe completed in part during electrical work being undertaken over the 2 days including the day of the accident. 8. These documents individually or collectively do not satisfy me that they constitute a comprehensive risk assessments and in fact do not constitute a risk assessment at all. The nature of a risk assessment in my opinion is that described in the "Low Voltage Electrical Work" Code of Practice 2001 (chpts 3,4,5,6) and AS 4836 2001 sections 2 and 3. Appendix A to this Standard presents a 'Work Hazard Risk Assessment Form which requires: 'All workers are to participate in the Hazard Risk Identification and Assessment'. It is my opinion that this ought to occur at least at the daily toolbox Meeting thus instructing and encouraging a culture of safety on site every day. The next document is a 'prompt sheet' which also ought to be used by anyone undertaking a risk assessment so that all relevant matters are identified. 9. I have also been provided with exhibit D the authorship of which I was involved in, and it is my opinion that if such a document had been completed prior to work commencing, it would satisfy most of the elements of a risk assessment which ought to have been completed before work commenced at the Marrickville site. Specifically, a risk assessment must include the clear identification of the relevant distribution boards and circuits. Such an assessment must of course be made available to all employees as they carry out their work. This documentation would form the basis for a daily toolbox meeting where work tasks are allocated. The toolbox meeting in my opinion ought to be daily so matters are fresh in the minds of the employees. 10. In such a risk assessment it must be site-specific highlighting anything 'unusual' in the circuitry. By 'unusual' I include the identification of any wiring which even though it might be allowable by regulations but which unknown would give rise to risks of injury to health irrespective of the quality of the people who work at the site. 11. An example of a site-specific risk that could in my opinion lead to confusion and increased risk to health and safety on the Marrickville site was the existence of adjacent lights (L1 and L2) being fed through the same conduit but existing on different circuits fed from different distribution boards (DB2 and DB3). This is my opinion could well lead to a licensed electrician into assuming that all relevant circuits are dead (in the testing of only one circuit or one light) whereas only one of the two are. This would give rise to a risk of injury and risk of electrocution if one 'live' cable is stripped during work on the other (dead) circuit, such as the use of a snake inside the conduit containing the 2 wires. 12. It is now my opinion that Mr Cowderoy was electrocuted when he came in contact with the active cable which had been connected to SW1 below and an earth, possibly the conduit or the snake itself. 13. I have formed this opinion from what I observed in Police photographs (which I had not seen until the inquest), in particular the end of the red wire having been stripped and the snake protruding from the T-piece,and what I saw at the time of my inspection and what Harrison told me during the walk-through at the site as what he saw and knew. 14. I have been asked to assume that Mr Harrison worked on the wiring at SW1,on the assumption that the power source for SW1 was the 'same circuitry as the site at which he had previously been working', namely, DB3. 15. It is my opinion that such a conclusion could not be maintained if he had undertaken a proper inspection of the circuits and their wiring in respect of the existing light fittings (L1). Certainly, if he had accessed the documentation of a risk assessment which I maintain should have been in existence before he did work on this switch, then such a conclusion would not have been assumed by Mr Harrison. 16. Further I have been asked to assume that it was Mr Harrison who removed the cover on the T-piece near the landing. This wiring in my opinion clearly indicated that the source of the power to L1 (to which the conduit lead to) came from below the T-piece, which lead to the ground floor and thus to DB2. 17. Further, in my opinion any inspection of the conduit leading from SW1 towards the ceiling clearly demonstrated a T-junction leading back to DB2 which would also indicate that the source of power was DB2. However there were many conduits in this area which may have lead to some confusion which only underlines the necessity for a risk assessment to be undertaken before work commenced and when attention to detail is at its clearest and not during the pressure of a job and time limits, such as knock off time and the need to have all circuits reactivated. 18. Finally, it is my opinion that if the simple task of operating the light switch at SW1 would have indicated that the circuit remained alive despite anything that Mr Harrison might have been said to the contrary. 19. All these features together with operation of the circuit breaker itself would have been identified in a proper inspection during risk assessment which was in my opinion necessary to be satisfied that the relevant circuitry had been identified and that the circuit was dead. 20. Work should not have taken place on this circuit until these matters were investigated. 21. In addition to such relevant information of risk assessment being available to all employees at the work site, it is in my opinion also necessary that employees especially when involved in potentially deadly work, be constantly reminded/instructed of safety issues at the work place and be relevantly informed and reminded of details contained in Codes of Practice relevant to their work. This is necessary if for no other reason than to comply with duties on employers under Occupational Health and Safety statutes and regulations. Thus safe work method statements should be from time to time, gone over at daily toolbox meetings and be available at all times to employees. In this regard AS 4836 "Safe Working on Low Voltage Electrical Installations' (section 7) refers to both specific training of electricians before proceeding with work. 22. Further, even after work has commenced the same section refers to the need of electricians to be supervised (Section 7 of AS 4836). 23. I observed the use of tape at the Marrickville site as a method used to indicate that a circuit was being worked upon. To my mind this was not an appropriate nor a safe method in circumstances where there were a number of employees and where there existed the possibility of third persons entering the premises without being seen by those on site and where such persons can access the distribution boards. 24. In my opinion, the correct procedure in these circumstances, is to use locking devices where possible or, alternatively, if this is not possible, removing the cable from behind the circuit breaker. 25. It is in my opinion that it is totally inappropriate to use tape as opposed to proper tags which require relevant information as to the authority of the person to remove the tag. These tags could have been connected on the circuit boards at the Marrickville exchange by way of wiring wound around the switch. 26. I have been asked to assume that the red active wire that Mr Cowderoy touched immediately prior to his electrocution had already been connected at SW1 by Mr Harrison. It is my opinion that proper work methods where active wires were to be connected, required that this connection ought to have taken place last, being the supply end of the active wire. The sequence of connection that occurred here, led to the real risk, in the circumstances I have been asked to assume, of Mr Cowderoy being electrocuted when Mr Harrison connected the red wire to SW1. 27. It should be part of daily tool box meetings that electricians are from time to time, reminded of this safe work method and other safe methods of work including the need to test before touch even if such safety methods are obvious and even if the electricians are experienced. Even experienced electricians in my experience can be forgetful and lapse into unsafe and poor work methods. 28. I have been asked to assume that Mr Harrison used a volt stick to test if SW1 was energised before he connected the red active to that switch. In my opinion this equipment must be maintained. 29. Further, to make such a connection it is my opinion that the following procedure must be followed: a. test for a positive reading to ensure that the apparatus is working b test the required circuit c. re-test the apparatus for a positive reading again. 30. This procedure is generally used and is referred to in clause 6.8.6 of the 2001 Code of Practice for Low Voltage Electrical Work. 31. Having regard to the above findings and opinions and assumptions, including that the late Mr Cowderoy was safety conscious, it is my opinion that the electrocution of Mr Cowderoy and/or risks of injury to employees at the site, would beyond a reasonable doubt have been reduced or eliminated if one or more of the following had been undertaken by Stowe Australia P/L: a. The carrying-out of a comprehensive risk assessment of the site including a thorough inspection of all circuits controlling the light in the premises b. Ensuring that the circuits controlling the 2 light fittings in the stairwell were completely isolated c. Ensuring that the circuits controlling the 2 light fittings in the stairwell were thoroughly tested before working on them. 32. Further, having regard to the above findings, opinions and assumptions including that Mr Cowderoy was safety conscious, it is my opinion that the risk of electrocution to Mr Cowderoy and/or risks of injury to other employees at the site would, beyond reasonable doubt, have been reduced or eliminated if one or more of more of the following had been undertaken by Stowe Australia P/L: a. Ensuring that an appropriate testing and tagging procedure was implemented b. The maintenance of safe work practices for connecting potentially live circuits during installation c. The banning or avoidance of wiring separate circuits in the same conduit. d. Daily toolbox meetings were held on site which would have included safety instructions to employees concerning not only site-specific matters but safe work methods such as wiring at the load-end first. 214 In oral evidence, Mr Glass said that on his visit on 22 January 2003 there was a walk-through of the scene that took approximately 20 minutes. During the walk-through, he had a discussion with Mr Harrison who told him that they were about to pull a cable through the conduit and that Mr Harrison was on the ladder, looked across, saw Mr Cowderoy shaking and realised there was a problem and so he ran downstairs and disconnected the cable at the switch. From photographs in evidence, the Inspector noted that the photograph of T2 being a junction with yellow strap wires to SW2, black, neutral and bare earth from DB2 via T1, blue switch active from SW2, red active to SW1 showed both the earth and the neutral wires appeared to be running down. The significance of that with the neutral being fed from below, meant that the distribution board that was governing it was also below. The Inspector understood that, at some stage, a red wire was snaked from SW1 up to the T junction. The best way to feed that wire would be by using gravity and feeding downward and he presumed that was what had been done although either approach could have been used. The use of a snake was normally a two person operation with one person drawing the wire up and the other person feeding it. At the end of the snake, there was a small hole and the wire was usually stripped and pushed into the hole and twisted so that it did not come apart; the snake was then drawn up through the conduit. The Inspector understood that the last part of this operation was using the snake from the existing light fitting to connect to the T junction with the wire to be connected at the T across to the light fitting. That step was usually taken when the fitting was in place. This use of the snake was one of the last functions to be performed in connecting this light fitting. In the Inspector's view, the use of the snake in this operation would take between five and ten minutes and the installation of the light fitting would take between 15 and 30 minutes. The "final process" would be to connect the red wire to the active which was normal electrical practice, since it was always good practice to work from the low side back. He put quotes around the words "the low side back". 215 In Mr Glass's view, if a competent electrician had seen the wiring at the T intersection being the neutral and the earth going down, there would be no doubt as to the whereabouts of the active in terms of that switch. The Inspector spoke of adopting the practice of "testing before touch" whenever making the final connection. 216 The Inspector's notes of his conversation with Mr Harrison contained an entry that, on the day of the accident, they assumed that the light in the stairwell was on the same circuit as the first floor lighting. The Inspector noted that his own investigation discounted that "entirely"; he found the lighting in the stairwell was not on the same circuit as the first floor lighting. The lighting referred to was L2, being in the centre of the roof over the stairwell, and L1, which was the light to which the connection was being made. 217 In relation to testing the volt stick, Mr Glass obtained information from the Internet where there was a warning on the site similar to that found on the new volt stick in evidence. He believed there was a similarly worded warning on the volt stick used by Mr Harrison on the day of the incident. 218 In cross-examination, Mr Glass accepted that his notes did not record every word of the conversation but were completed at the time the conversations took place or when there was a short break in the discussion. He did not take down the precise words used by Mr Harrison. His notes did not record who had made the assumption that the lights were on the same circuit. The way the notes were written indicated to the Inspector that it was Mr Harrison's assumption, and that he was recording what Mr Harrison had done. The notes could not be construed so that they only dealt with actions taken by Mr Harrison, they could have involved actions taken by others. Mr Harrison made this assumption, according to the notes, but the Inspector said that the notes did not indicate that others did not work on the same assumption: what was recorded reflected what was said to him by Mr Harrison. 219 In testing the volt stick for the Coroner, the Inspector had not seen the volt stick before: it had been handed to him by a police officer, he tested it, returned it to court and gave it into the possession of a police officer. The Inspector did not have accreditation to test it which he made clear to the Coroner's court. He tested it as to whether it was in operating condition and carried out that test. The volt stick that he tested had on its side the following words: "Danger. Does not detect voltage in all circumstances". The Coroner wanted to know if there was intermittent fault in the unit. However, it worked perfectly on the day of the Inquest and in the WorkCover offices. The batteries were removed to see if they had corroded or were badly connected. Testing of the batteries showed that they were in a satisfactory condition. Before taking the batteries out the Inspector tested the volt stick twice on a live electric fitting which had illuminated. The Inspector said he regarded one test as using the volt stick on a number of occasions, and after he had inserted the batteries, he could have used it three or four times in the test. He agreed that it was not a perfect test and he could not eliminate the possibility that, at some earlier time, there had been an imperfection in the connection between the batteries and the volt stick that might have interfered with its operation. He agreed that the tests he performed would not pick up intermittent fault but the fact that the volt stick worked 12 months after the accident eliminated intermittent fault, because intermittent fault was usually caused by poor battery connections. He accepted that there was no way to test the volt stick for the possibility of intermittent fault. The result of his test was that the volt stick was capable of operating directly. The test did not establish whether the volt stick had worked properly at an earlier time which was why it had a warning on its side. 220 In relation to the Inspector's discussion with Mr Harrison at the exchange in late January 2003, it was the Inspector's observation that Mr Harrison was in some distress and affected by the events of 15 January 2003. He gave the impression of doing his best to be of assistance to the Inspector. 221 With regard to photographs taken on 23 January 2003, the Inspector assumed from the photographs that the switch SW2 was closed when he came upon it. The Inspector said he opened that switch, took a photograph and then closed it, returning it to the condition in which he found it. He had no recollection, for instance, of searching for screws to place the cover back on SW2 to close it. He therefore assumed that it was closed and he was able to uncover it and close it again. The Inspector had no recollection of looking at the blue wire on 22 January 2003, or anything inside switch SW2 on that occasion. He looked inside SW2 on 23 January 2003. The photograph of SW2 shows the switch as he found it (with the blue wire sealed off and taped with red tape). 222 On his visit to the exchange on 23 January 2003, Mr Glass made entries and drew two diagrams in his notebook. The diagram was a rough outline of how he tracked the wires to see what each wire controlled and to show at the two gang switch, what were the colours of the wires and where they went - which indicated to him that part of the wiring continued on into the room on level 1. The diagram was intended to confirm where the wires went in the building and to confirm that there were two circuits in the one conduit, one leading to the top floor and one leading to the bottom floor. 223 During his inspection, Mr Glass said that he removed some plates at T junctions to look at the wiring. There was only one where the plate was removed before he began his inspection and that was in line with the light fitting that was being installed at the top of the landing. It had a red wire coming out of it which was the wire that had been drawn up from SW1 below. That plate was off the T junction upon his inspection the day before. Mr Glass removed the plates from other T junctions. The two pieces were painted but Mr Glass did not notice whether the screws were painted or whether the paint was disturbed on or about the screws. The information contained in his notebook led Mr Glass to conclude that, on 23 January 2003, the circuit on which Mr Harrison and Mr Cowderoy had been working at the time of the accident was connected to a switchboard on the ground floor. Mr Glass also performed a continuity test to ensure the cables he could see were the ones that originated at the switchboard. 224 In relation to his report of 30 March 2007 that was before the Court, Mr Glass made reference to the standards laid down by the low voltage electrical work Code of Practice and Australian Standard 4836 of 2001, Sections A and B. He stated that neither the code nor the Australian Standard specified the method of application and that, "broadly speaking", there should be compliance with what was written in the Code of Practice or the Standards. An assessment had to be made of the type of work to be carried out and which section of the standard applied to that particular application. 225 Mr Glass approved the risk assessment submitted by Stowe after being served with the improvement notice and following its development with officers of WorkCover. This risk assessment, in Part 1 entitled "Preliminary work assessment and preparation" required an assessment of work to be performed which involved examining the drawings and plan showing the scope of work, inspecting the intended location for each fitting, recording the location, type of fitting and action on the drawings, identifying whether the work was to be carried in switchboards requiring a hazard notification and MOP approval and notifying the project manager of any corrections or omissions with the need for an additional MOP. This preliminary work also required identification of the affected circuits from the switchboard schedule or by visual tracing and switching off circuit breakers to confirm that the lights were extinguished. There was a requirement to mark the correct circuit reference on the report. Part 2 of the risk assessment dealt with general work risk assessment and safety considerations. In isolating the affected circuits, the procedure included the following elements: isolation of the circuit by switching off the circuit breaker indicated on the inspection report; using locking devices of a circuit breaker of an appropriate type with tape being used for the short term application if a lockout device was not available; danger tagging the circuit breaker attached to the locking device or the tape; testing that the circuit was disconnected against known live parts as well as isolated parts and observing that isolated equipment was not operating or was operating from battery supply. 226 In relation to the installation of new emergency and exit lights and installing cabling from designated circuits, the prevention measures Mr Glass identified were: using a voltage indicating device on parts prior to immediate handling, particularly if uncertain that isolation had taken place or time had lapsed since isolation; using safe procedures for the use of ladders especially in stairwells and uneven surfaces; and, use of PPE (gloves) if sharp edges were present. In relation to testing affected circuits to confirm suitability of addition/alteration, the prevention steps were: testing carried out with affected circuits disconnected from supply by switching off identified circuit breaker; and completing an attached test record. In relation to re-connecting supply and confirming correct operation, the steps were: remove isolation tags only after completion. The next step was to update the site records by identifying the correct switchboard circuit schedule. 227 Mr Glass regarded this document submitted by Stowe as a proper risk assessment for that particular risk at the Marrickville exchange. A risk assessment could have a number of elements and, to perform a proper risk assessment of the site, not only the physical conditions had to be looked at but also other variables and, in particular, to determine from where the isolation procedures should originate. That involved looking at all the circuit breakers and what they controlled; the risk assessment provided by Stowe after the incident did a very good job in that regard. Mr Glass agreed that he particularly approved of the steps to identify the relevant distribution boards and circuits but there were also a number of other elements. He accepted that a licensed electrician was an appropriate person to identify the relevant distribution boards and circuits. The proper identification of distribution boards and circuits could be traced by following the conduit, then testing the circuits at the switchboard - that was only one way and a very comprehensive way of doing it, but there were simpler ways of performing the task. A simple way would be to turn the lights on and switch the circuit breaker on and, if the lights went off, there was a reasonable chance that the circuit breaker operated those lights. The circuit would then be tested to see if it was no longer active so that a person did not have to trace every wire of every conduit to be sure that light was operating from the particular circuit breaker. This method was one Mr Glass would approve. 228 Mr Glass said there was no impediment to visually tracing the circuit from SW1 back towards the distribution board on the ground floor. In Mr Glass's view, Mr Harrison should have had in his possession an accurate identification of the circuit on which he was working. It was not necessary to identify every circuit in the exchange but anywhere that the employees had to gain access to the circuit should have been tested and checked before they started their operations. There was nothing inappropriate in breaking a workplace down into areas for the purpose of identifying hazards. Mr Glass accepted that the Code gave an example of what might be done which was that the workplace could be broken down into areas for the identification of hazards. It was also possible to break the overall job into discrete tasks and then identify hazards. While this could be done, Mr Glass suggested that it was more prudent to do an overall risk assessment before any work commenced which would include the identification of the circuits, then the confirmation: breaking down into tasks then confirming from those tasks those areas already identified and looking to see if there were any areas that might have been overlooked. 229 It was put to Mr Glass that the way in which the work was undertaken at the exchange was first to identify a fitting to be installed and its location, to identify the circuit to which that fitting was to be attached, then isolate that circuit or render it safe and to perform the work on that circuit and, when work on that circuit was complete, to move onto another circuit. Mr Glass said that was a method that could be used. It was then put to Mr Glass that there was nothing in the Code that suggested a practice of identifying circuits on which work was to be performed one-by-one immediately before work was to be performed on that circuit as being inappropriate; Mr Glass responded that the Code did not say the assessment should be conducted as one was working along: the early part of the risk management section spoke about identifying all the hazards, assessing the risks etc. It was not appropriate to work on one circuit, then do another risk assessment and go on to do the next circuit. The general rule was to identify all hazards. The Code did not say to identify them as one was going along. Mr Glass was asked to identify what part of the Code required the approach that he said was most appropriate, and he identified Clause 3.2 and the requirement to identify all the hazards. The Code was not specifically designed for every case in the workplace - it was an overall suggestion as to how to go about the work from the culture of working with electricity and the need to identify all hazards before commencing work. 230 Mr Glass accepted that the Australian Standard did not specify that, in the kind of work undertaken at the Marrickville exchange, every relevant circuit should be identified in the risk assessment before work on any circuit began. The Standard did say to identify the hazards and, if workers left each circuit as they were working on it before doing a risk assessment of it, they ran the risk of having circuits that were inter-connected or two circuits in one conduit, such as had happened at this exchange. The circuit should have been identified prior to commencing the task. Mr Glass suggested that was an approach reflected in the industry standard and was commonsense. Mr Glass had seen no document which identified all the circuits and so no proper risk assessment had been performed in relation to the circuit to his knowledge. It therefore appeared to have been ad hoc at the workplace. Usually, the risk assessment was documented especially when there were a number of circuits to be worked on and a number of electricians working at the one site. 231 In relation to Mr Glass's opinion that it was not an appropriate practice to use tape to indicate that a circuit was being worked on, the Australian Standard, when talking about taping off an area, was not talking about taping off a circuit breaker. The best way to secure the circuit would be to lock it off and, if that was not possible, then other options such as tagging were to be considered. Mr Glass had viewed the distribution boards at the Marrickville exchange and noted that they were of an older type and therefore were not suitable for some of the locking devices available today. Tagging a locking device served a similar purpose and taping was used when locking was either not appropriate or not possible. A tag did not prevent a circuit being re-energised but that may be achieved by taking the cable off the back of the circuit breaker. That would be more effective than putting a lock on the circuit breaker because it could not then be energised. A tag was a visual indication that the circuit is being worked on by someone else. 232 In this exchange the light L1 coming from the ceiling of the upstairs areas was in fact connected to the distribution board in the downstairs area. In that circumstance and because the circuits were not clearly identified prior to starting work, when the work was performed by breaking it up into the downstairs work and the upstairs work there could be confusion in the stairwell as to which was connected upstairs and which was connected downstairs. While it was quite practical to remove the cable from the back of the distribution board it was not industry practice for this type of work unless it was a very large job and a tag would be sufficient. 233 The evidence for the defendant commenced with Mr John Browne, a consulting electrical engineer. Mr Browne graduated from the University of New South Wales with a Diploma of Electrical Engineering in 1957 and also had trade qualifications as an electrician and a supervisor electrician's certificate. He had been continuously engaged in the electrical industry since 1952, initially working for Email in its electrical engineering division. He had worked with the Sydney County Council and in Canada, working on switchgear and protection equipment. On his return to Australia, he worked for Email again and for HPM Industries on accessories, switches, sockets and the like in its research and development area. Mr Browne then worked as an engineering manager and became a consultant on his own account in about 1989-90. His consulting work involved several companies - he did some work on death by electrical shock, switchboard incidents, failure of switchgear and product failure due to bad connections and incorrect application and protection. 234 Mr Browne had been engaged by solicitors for the defendant to attend the Marrickville exchange preliminary to issuing an engineer's report on the design and arrangement of the existing electrical installation and the effect of the work being performed on the installation. Mr Browne stated that, in Australia, electrical wires or cables were commonly constructed from copper and that 99 per cent of the wiring in this type of installation was copper. Copper wire had been used in Australia since he became involved in electrical equipment (in 1951). During his time in the industry he had worked all the time with electrical wiring made of copper. In his experience, he had connected cables to protect equipment and circuit breakers and had many times tested equipment using copper. Copper cables were used to connect equipment and the condition of those cables was relevant because, if the cable oxidised, it became of higher resistance. The copper wire he had looked at over the years had not all been the same colour. Copper wire was usually brightly coloured, but it darkened and took on the appearance of being dark. By using the word "darkens", Mr Browne meant that the surface of the copper took on a different appearance in that it was not reflective or shiny but became oxidised. All electricians knew that copper wire oxidised. He had occasion to observe the changes that had taken place in copper wiring. He said he had many years of experience with switchboards with "decent sized pieces of copper", 4 x 1/2in. copper and it was bright. He would go back to the same switchboard several years later and the copper had darkened - it had oxidised. Mr Browne said he was involved in a lot of tests on the rating of oxidised copper and non-oxidised copper, (that is) bright copper. This was called the emissivity of the surface which changed the rating of busbars with time. When working with a piece of copper that is not new, the joint had to be cleaned to make sure that there was a good, effective joint and there could not be oxidisation between surfaces. In cables, there was a discolouration of the conductors with time. By "oxidise", Mr Browne meant that the oxygen in the air attacked the surface of the copper and produced copper oxide on the surface - this was a well-known occurrence to people involved in the switchgear industry. It was regarded as a nuisance and was eliminated by cleaning every joint. When cable was stripped and was found to be discoloured or oxidised then the cable had to be cut back until it was clean so that there was a good joint in the terminal of the piece of equipment. It was an issue that electrical engineers confronted almost every day in making sure there was a good joint and that it did not overheat. 235 While at the Marrickville site, Mr Browne looked at the switch that he had called SW2 in his report, and did so on the first day of his visit, 23 January 2003. When he first looked at that switch it was closed and the screws were in the plate and the switch was closed. He undid the screws and took the plate away from the mounting block and looked at the wiring inside. Inside SW2, he observed that there were two switches. Each switch had four terminals, three of which were in use in a switching circuit with the fourth being a looping terminal. There were two yellow wires which were a two-way strip wire circuit and a blue wire which was hanging loose inside the switch and on the right-hand side of the switch there were just two wires, a red wire that was the active input, and a yellow wire that was the switch going to the light. 236 When Mr Browne opened the plate, the blue wire was hanging in space and not touching the switch terminal where it should have been connected. He could see the broken ends of the wire. He saw three strands of wire coming out of the blue insulation which were cables normally used for lighting circuits. Those ends were not as bright as he would have expected them to be. The ends of the three copper wires had not been cut - they were broken, they were clean and were not all the same distance apart. It looked as if they had been broken off and the remaining piece of wire was still in the terminal so that there were three pieces and three matching pieces. In his opinion, it was not a fresh break. It was not bright but it was very difficult to see and needed a magnifying glass. In his opinion, while it was very difficult to discern, those wires were an old break and the colour was dark. 237 In relation to his prior work in the electrical industry testing the quality of wires in different conditions, such testing was for current rating of bright copper and oxidised copper to discern the emissivity. Those tests were carried out in conjunction with the test station at the Sydney County Council to find the rating of copper conductors in a clean and in an oxidised condition - this occurred in the later 1960s. During the testing, they had brand new copper conductors which were compared with older copper. Conductors that had been in service for some time were discoloured. This discolouration was caused by oxidisation and the conductors were no longer bright. They could have been scratched and the oxide taken off the top which would then reveal bright copper underneath. In the course of his experience in the electrical industry, he had encountered copper wiring in a similar condition to that tested by him some 40 years ago. Mr Browne said that pulling a conductor out of an old piece of equipment where it was exposed to the air showed it to be discoloured. If the insulation was stripped back it would be bright. In relation to the three copper strands at the end of the blue wire in switch SW2 at the Marrickville exchange on 23 January, Mr Browne regarded those wires as revealing an old break because the end of the conductors "appeared to be discoloured". He regarded it as being an old break because the broken ends of the conductor were not bright. 238 During the course of his experience in the electrical industry, Mr Browne said he had observed the process of oxidisation. He expressed the view that it took quite a period of time for that process to occur and depended upon the atmosphere and the amount of air to which the conductor was exposed. However, he could not give a definitive answer as to how long it might take to oxidise - it was not a matter of days, it was a matter of a long period. Mr Browne said that he knew from his many years in test laboratories using copper cabled conductors that, if they were hung around on a wall for some years, they oxidised. If an oxidised conductor was broken, the bright wiring would be revealed in contrast to the oxidised end of the conductor, which was how he was able to tell if it was freshly broken. 239 Mr Browne produced a report entitled "Report on Circuit Configuration at Telstra Exchange Undercliffe" dated 11 March 2003. This report was based upon his inspections of the exchange on 23 and 29 January 2003. The substance of the report was as follows: Report on circuit configuration at Telstra Exchange Undercliff As per your request, dated 21 January 2003, I attended the above site on Thursday Jan 23, 2003, and Wed Jan 29 2003 and report as follows: Objective: To issue an Engineers report on the design and arrangement of the existing electrical installation and the effect of the work being performed on the installation. Detail objective : .i) In relation to a serious electrical incident to determine the source of the circuit(s) being worked on, the circuit schedules, the protective devices and their relevance, the equipment on these circuits including normal and emergency lights, the location of the equipment supplied particularly switches and lights. .ii) Testing for circuit insulation and interconnection and switch connections. .iii) Ascertain new equipment connections for emergency lights and advise if they would have performed the required function. Note The equipment identities SW1, SW2, L1, L2, E1, E2, E3, T1, T2, T3, T4 were assigned for this report and are not the designations on officials drawings. General result The circuit being installed to a 'Bardic' emergency fitting E1 [designated by Stowe as S15'] and the associated SW1 was checked. The active was supplied by MCB 1 on DB 2 on the ground floor. Note MCB 1 had been disconnected and tagged internally on the wire by Energy Australia and MCB1 handle tagged by Transfield [Trevor Seaton] Other lights [E3, L2] and switches (SW2R] in the vicinity of SW1, E1 and L1 were supplied in shared conduits and were supplied by MCB E3-17 on DB3 on the first floor. Note MCB E3-17 was taped over and 'Stowe!!' written on the tape by a felt pen. Switch SW2L had a broken blue wire switched active when opened for inspection. Detail of light circuits in the vicinity of L1 and E1 Fitting L1 , the existing light fitting, above the stairs half way from the ground floor to the 1st floor, but at the first floor landing level, was controlled by two separately located switches [two way circuit] SW1 and SW2L. One switch SW1 was on the ground floor [single gang] at the bottom of the stairs. The second switch SW2 [two gang SW2L and SW2R] was on the landing at the top of the stairs on the 1st floor. Switch SW1 The cover plate was taped with yellow ' caution ' tape [indicating that others has accessed it] The active 'A' [red] input supply was to the 'common terminal' on SW1. There was no circuit origin marking on the cover plate. Note The active on SW1 was later found to be upplied by MCB1 on DB2 Non Essential Section [ground floor]. SW1 output [ terminal 1 and 2] was two strap wires [ yellow] to terminals 1& 2 on SW2L [ the left hand switch] of SW2. There was a loose red wire [ end disconnected and taped at SW1] which had been pulled to the conduit tee T2 on the 1st floor at the junction to the light L1 and future E1 There was a coil of red wire with the end taped, adjacent to T2 coming through the conduit from SW1. Note I was advised that this was the wire involved in the shock incident. Switch SW2 The cover plate was not taped, [no caution tape as per SW1] and appeared to be undisturbed. There was no circuit origin marking on the cover plate. SW2L The left hand switch had two yellow strap wires from SW1 to terminal 1 and 2. The blue switched active [common terminal] from SW2L was broken off at the terminal. The broken ends were a copper oxide colour [not bright] indicating that it may have been broken for some time. The disposition of the wires was such that pressure was exerted on them when the cover plate was re installed. The broken blue wire was traced to the original fluorescent light L1 Note Taking into account the connection of the yellow strap wires from SW1, SW2L was therefore found to be supplied by MCB1 on the Non Essential Section DB2 [ground floor]. SW2R The right hand switch, SW2R, had a red [active] wire to the common terminal. The blue switched active was connected to terminal 1 and supplied existing light L2 above the landing on the floor 1. Note: SW2R active was later found to be supplied by MCB E3-17 on the Essential Section of DB3 on the 1st floor. Therefore there were two supplies to SW2. Testing for insulation resistance and separation Insulation resistance between circuits and to earth was found to be correct [50 megohm]. The resistance between actives and switched actives and earth [taking into account fluorescent ballast supplied by the same active] was 5 megohm when measured at SW2 and SW1. With ballasts disconnected the reading was 50 megohms. Using a voltmeter and proximity voltage detector Active and Switched active at SW1 and SW2 were identified as correct with no interconnections. Using an earth continuity tester all conduits involved were zero ohms to the bare earth wire. There were no unusual results. Shared conduits Detailed inspection involving removal of conduit access covers and electrical test, was carried out to confirm arrangements. The conduits between switch SW2 and Inspection Tee T3 contained the following conductors: -2 yellow strap wires from SW1 to SW2L [supplied from MCB1 of DB2] -1 blue switched active from SW2L to L1 [supplied by MCB1 of DB2] -1 red active and 1 yellow switched active from SW2R to L2 [supplied by MCB E3-17 of DB3] Detailed inspection and test was required to establish the circuits supplying SW1 and SW2L were NOT the same as the circuit supplying SW2R. There were in fact two circuits in the conduits and in the enclosure of SW2 Note : There are no special requirements for the termination of two different circuits of the same installation in the same enclosure. There are requirements however for circuits of different electrical installations but this does not apply here. ie The Wiring Rules (AS/NZS 3000 : 2000 and previous AS3000 editions) requires that where conductors of different electrical installations terminate in a common enclosure, they shall be effectively segregated.eg by a fixed fire resisting barrier or by distance. [ ... ] Light L1 and SW2L Inspection and test at L1 found that the switched active from SW2L to L1 was not live. The yellow strap wires from SW1 to SW2L were live. The reason was found to be that blue switched active was broken at SW2L. The absence of a switched active at the light L1 was misleading as it had the consequence of indicating at L1 that no active was present on the circuit, even when SW1 and SW2 were operated. E1 and loose red wire coil at T2 The purpose of the loose red wire found at T2 was determined to be the initial section of the unswitched active supply, located at SW1, to supply the emergency light E1. This ensures the battery charging supply is not interrupted by switching SW1 or SW2L. If an unswitched active was supplied to E1 then it would function correctly as an emergency light, with the battery charging continuously on. The light would come on if the active supply was not present, until the batteries discharged. The short conduit from L1 to E1 was for the new unswitched active from SW1 and the existing neutral and earth at L1. Should the new red wire be pulled from T2 to L1 and connected to E1, then connected to the common terminal on SW1, then this method would ensure that E1 was correctly supplied. The active supply to SW1 should be disconnected before making this connection. L1 would remain as a switched fitting or made redundant. Distribution switchboard DB3 on floor 1 in the equipment area Circuit E3-17 MCB E3-15 and E3-17 in DB3 was found to be switched off and covered by tape with 'Stowe!!' written on in felt pen. MCB E3-17 was switched on. The lights supplied were noted and included an emergency fitting E3 above SW2, and an exit fitting E2 [installation incomplete] inside the equipment room at the entrance door from the landing on the 1st floor. This circuit active also supplied SW2R. Note This circuit did NOT supply SW1. [It is assumed that E/L means 'emergency light'] The schedule marking does NOT clearly indicate that Circuit E3-17 supplies the emergency light [E3] located above the first floor landing, or exclude the emergency light [E1] being installed above the stairway at the level of the floor. The marking would not enable location of the section relating to SW2R and E3. There were NO green labels on circuit DB3 E17 'EXIT Lights' as fitted on MCB1,MCB4, MCB5 EXIT lights on DB2T. There were no RCDs fitted and none are required by AS/NZS3000 Distribution switchboard DB2 on the ground floor Circuits supplied from MCB1 The active wire [red] from MCB1 in the non essential, upper section, of DB2 was found to be disconnected and taped. This wire was tagged by Energy Australia and the MCB toggle was tagged by Transfield. The corresponding neutral to the light controlled by SW1 and SW2L was found to be disconnected at the neutral link in DB2 [presumably from the empty position1] After safety checks and with permission from Transfield the tag on DB2 and MCB1 was removed and the circuit active MCB1 and corresponding neutral were bridged in DB2 to restore the ground floor lights supplied by MCB1. This circuit was traced. The initial section of the active conductor was into a duct then branched into a conduit. Conduit inspection plates on Tee junctions were removed to verify the circuit. Lights were located generally from DB2 to the Livingston road end. [South east] These included areas as follows: Test, Clerical, Supervisor, Power, cleaner, toilet, hall, porch, external and L1 including SW1 active [and via the 2 strap wires, SW2L]. This circuit did NOT supply SW2R. Distribution Switchboard DB2 Markings Summary SW1, SW2L, L1 [existing] and E1 [being fitted]. The loose red wire involved in the incident at conduit tee T2 was routed from SW1. Note: To receive an electric shock from the loose red wire at conduit tee T2, requires that the red wire is connected to the C terminal on SW1 and that a live active supply is present at SW1. A shock would result when a circuit was made through the body from the end of the connected live red wire to an earthed metal conduit. When connected from SW1 to E1 this red wire would supply an unswitched active to E1. This would result in E1 being continuously on [not controlled by switches] and charge the battery to give a supply in the event of a power disconnection. [Bardic state the battery will give 2 hours illumination following a 24 hour charge] The active circuit to L1 was from SW1 via SW2L. When SW2 was opened there was a broken blue switched active on the C terminal of the left hand switch SW2L. While it is uncertain as to the state of the connection at the time of the incident, factors which could suggest this include - - there was no tape on the cover as has been the case with SW1 - the broken wire was not safely terminated as had been the case at DB2. The broken blue switched active was to supply L1. After the broken wire was made safe with a shrouded terminal the switch cover was reinstalled and taped to indicate danger. It was noted that there was some pressure required to force the wires into the available space and seat the cover. This would place strain on the wire at the terminal. Some pressure is normal but sometimes wires are broken. The broken wire would produce false test indications at L1. The switched active would not be live even though SW1 active was live. Tests were required at SW1. SW2 was verified by inspection at conduit Tee fittings and by testing with a voltage proximity detector and a voltmeter to be supplied by different circuits. SW2L was supplied from the NON ESSENTIAL MCB 1 on DB2 located on the ground floor via SW1 -SW2R was supplied from the ESSENTIAL MCB E3-17 on DB3 located on the first floor There was no circuit origin labels or marking on the switches to identify the corresponding circuit breakers. Note: Although it is common practice in non-domestic commercial and industrial installations for the equipment to be marked to identify the corresponding circuit breaker, there is no such requirement in the Wiring Rules [AS/NZS 3000:2000 or previous AS3000 editions] If done in association with the required circuit schedules at the switchboards [see Wiring Rules reference no 2] then there is more awareness of the additional risk, the location is quicker and tests to verify the circuit have a better starting point. Distribution board DB2 on the ground floor. The circuit schedule for the NON ESSENTIAL section of DB2 showed supply to four circuits of EXIT LTS.[circuits 1,2,4 & 5] Three circuits [1,4&5] were fitted with coloured labels indicating batteries on the circuit. The schedule marking does NOT clearly indicate that LIGHT CIRCUIT BRKR 1 [MCB 1] supplies the new emergency light [E1] being installed above the stairway at the level of the first floor and excludes the emergency fitting [E3] located above the first floor landing. The marking would not enable location of the section relating to L1, SW1, SW2L and the new E1. The wiring rules (AS/NZS 3000:2000 and previous AS3000 editions) requires that the relationship of circuit-breakers to the various sections of the installation be marked on or adjacent to the switchboard e.g by completion of circuit schedules. See Wiring Rules reference No 2. As there were several circuits of EXIT lights then the requirement would be to identify on the circuit schedule the particular sections supplied. e. g MCB1 exit lts stairway ..... Note: The emergency light fitting E1 being installed was located above the stairway at floor level of the first floor. Arrangement of circuits The complexity of the circuit supplies in shared conduits and the lack of clear section identity at switchboards would emphasise the requirement for testing to determine if the installation arrangement was safe and suitable to perform work. Confusing factors The following may confuse when identifying the correct supply MCB to SW1: - The emergency fitting [E1] being installed above the stairway at floor level of the first floor was within sight of the new emergency fitting [E3] already installed on the first floor above the landing. Both could be assumed to be on the first floor and fed by the same circuit. - Shared conduits joined L1, E1, E3, SW1 and SW2 and went from the ground floor to the first floor making visual tracing unreliable. - No marking existed on SW1 to identify the circuit breaker MCB1. - No marking existed on SW2 that there were two supply circuits. - The circuit schedules on DB2 and DB3 did not show the relationship of the MCBs to the various sections of the electrical installation. - Circuits marked 'EXIT lights' were supplied from both ESSENTIAL and NON ESSENTIAL circuits. - The broken switched active at SW2L could, if present at the time, give false indication at L1 that the active was not live at SW1. 240 In cross-examination, Mr Browne agreed that the best he could say about the blue wire was that, at some stage in the past, it had broken. It could not have remained there for many, many years because the other parts of the broken wires remained in the terminal of the switch. Mr Browne was not aware that the switch had been opened by Energy Australia on the day of the accident - about a week before Mr Browne's visit. Mr Browne said that all he could say was that on the day he was there, the blue wire was broken. Mr Browne had not seen pictures of the switch, taken by Energy Australia on the day of the accident showing, amongst other things, the blue wire. Mr Browne said that Energy Australia's photograph appeared to show that the blue wire was going into the switch but he was unable to tell whether it was separated by a small margin, such as 1/8th inch, or whether it was actually connected, which was not shown in the photograph. The wire certainly travelled beyond the plate but Mr Browne was unable to tell whether that was consistent with it being connected with the switch. Mr Browne said that he could not say that he had serious doubts that the blue wire was connected, or likely to be connected, at the time that Energy Australia took the photograph and he was simply unaware whether that was the case or not. He accepted that wires could be broken by the very action of opening and closing the plate. When he opened the plate, the wire was already hanging free. Mr Browne said he opened the plate gently, the wire was hanging and he could see the end of the wire. The only definitive way to find out was to ascertain whether the lights supplied by this circuit were actually on or off. He had given evidence to the Coroner that he thought that the switch had not been opened for some considerable time which was not because of the state of the screws but because there was no yellow tape across the switch. There was yellow tape on SW1 but no tape on SW2. He understood that this switch (and in particular, the blue cable) operated the light on the landing. He accepted that if the blue cable had been broken for some time, then as a consequence, the light on the landing would not have operated for some time. Mr Browne noted that there was natural light next to it and he did not know whether it was used at night. 241 In expressing his view that it took a long time for copper wire to discolour, Mr Browne stated that he had performed no tests on the ageing of copper and was not sure that anyone had done so. The area being spoken about in this switch was very small, and was not bright and he thought that the break had occurred over a matter of weeks or months rather than a matter of days - which was the best he could estimate. Operating on the basis that the accident took place on 15 January 2003, Mr Browne was asked whether he considered himself expert enough to be able to say that the fracture had not occurred on 15 January - a week earlier than his visit. In answer to that question, Mr Browne replied that it would take some time for the wire to discolour and he would not expect that it would discolour in a week. He had stripped hundreds of wires which had not discoloured in a week. He accepted that discolouration depended upon the particular atmosphere and the way the wires were treated. While he was not a metallurgist, he had bought plenty of copper as part of buying specifications. 242 In relation to this particular wire, Mr Browne had a good look at it with the human eye and glasses and had used the camera lens to look at the wire close up. He picked the wire up with his fingers and looked at it very closely, then held it and photographed it very closely. From the photograph he had taken, it gave the appearance that the wire was newly broken and the photograph was an additional piece of information. In his view, however, the wire was an old break. Mr Browne accepted that his observation as to the colour of the cable was at the end of the wire and in his report, written shortly after attending the site, was that the end of the wire was not bright and he did not refer to it as being dark. He did not describe the colouring of the wire left in the terminal switch itself. A cross-section was an extremely small area and Mr Browne hoped that he was not wrong about the colouring. When he was making these observations, there was natural light adjacent to the stairwell but he did not recall whether he turned the light on in the stairwell. Mr Browne said that he had never been required to give evidence concerning the age of a break based on the colouring of the ends of a wire. He had never performed ageing tests against time for discolouration, but had cleaned many wires and had broken many wires. 243 In relation to the nature of the work of adding emergency lighting to the exchange, Mr Browne said that little work could be done in advance because it was a simple installation and would require going onto the site and having a look at the circuitry which was a task for a foreman on that job. The foreman would try to unswitch to the active and connect it to a light, looking at the physical wire and connecting it from point A to point B. There were, nevertheless, some confusing factors in relation to this site because, on entering the exchange, the light in the stairwell was halfway between two floors on a landing and a determination would have to be made as to which circuit fed that light. Looking at the actual switching on the circuit, SW1 had three wires which were followed to find out how it was fed to the light. The confusion was that the light was on a landing with a distribution board on floor 1 and another on the ground floor. An electrician would have to be sure of the source of the circuit that had been selected. There were a number of confusing factors that were set out in Mr Browne's report. 244 In relation to the distribution boards at the exchange in 2003, there were readily available lockout devices that could operate on those boards. They cost something in the vicinity of $20. The device attached to the handle of the circuit breaker and a padlock inserted so as to ensure, by keeping the key, that no-one else could turn it on. The use of that device was almost foolproof and was the best way of securing the circuit breaker in the locked position. 245 In re-examination, Mr Browne said that he had never seen electrical wiring discolour to the degree that he saw it at the end of the blue wire inside SW2 discolour in a period of a week. In the manufacturing environment of switchboards, copper was brought in as part of his experience and if it discoloured within a week it would not be able to be used and would have to be cleaned up. It remained bright for weeks and months and took quite a while to discolour. Mr Browne said he had never performed a test on ageing but in his experience copper wire did not discolour within a week in an ordinary environment. 246 Mr Roger Sharp was an electrical engineer employed by Stowe Australia Pty Ltd from July 1988. He was employed by Stowe as the engineering manager and was aware of the incident that occurred at the Marrickville exchange on 15 January 2003. Mr Sharp gave evidence of participating in a risk assessment on 29 January at the Marrickville exchange with Mr Ruiz, an electrical tradesman employed by Stowe. WorkCover had issued a prohibition and improvement notice and Mr Sharp was required to perform a risk assessment process at the premises prior to the work being cleared for completion. Part of that task was to complete a wiring schedule circuit tracing exercise which identified the fittings. Markings were put on a drawing in the course of that exercise some of which were made by Mr Ruiz as the light fittings and relevant circuits were identified. The distribution boards at the exchange had essential and non-essential sections. The circuit breakers were separate for each section. The circuit breakers were arranged in rows and there was a system of connecting them to the supply. In this situation, there might be 48 circuits, all fed from one incoming supply and 48 circuits going out. There were 48 positions on the chassis of the distribution board and the circuit breakers on that chassis and there was a need to number the circuit breakers to comply with those positions. The installation was designed with the available operation of a diesel generator to supply certain parts of the premises and certain circuits so that, if there was a loss of normal supply, the generator would start up and deliver supply to circuits regarded as essential - the other circuits regarded as non-essential did not receive that supply. 247 Mr Sharp said that the origin of a circuit was at the distribution board. The end of the circuit was at the equipment to which it was connected, whether the equipment was a light fitting, socket outlet, power points or pieces of fixed equipment. The distribution board was a convenient allocation of the separation of a large supply into a smaller supply system such as the circuit. That was a common principle and applied at the Marrickville exchange. It was possible for an electrical current on one circuit of the kind at the exchange to travel to another circuit, but only if it was basically incorrectly arranged. From his observations at the site, S8 and S15 were on the same circuit and controlled by the same circuit breaker. Following the accident, Mr Sharp had been involved in an investigation of the causes of the incident on behalf of Stowe. 248 In cross-examination, Mr Sharp said that the risk assessment exercise that he undertook with Mr Ruiz and another member of staff to identify the circuits occupied two to three hours. The whole exercise was able to be undertaken in that timeframe. As part of his investigation, Mr Sharp was aware that the Safe Work Method 007 existed but he did not know if it had been provided to members of the workforce at the Marrickville exchange prior to the accident. He was unable to confirm that the document existed before August 2002. He was unable to ascertain whether Mr Cowderoy had relevant documentation with him at the time of the accident - such as the Safe Work Method Practice documents, or the Occupational Health and Safety Plan. Mr Sharp did not investigate whether, in fact, Mr Cowderoy had left his crew folder at another site before starting work at the Marrickville exchange - that was no part of his investigation. It was not part of his investigation to ascertain whether Mr Cowderoy was provided with a crew folder. 249 Before the accident, Mr Sharp was aware that Stowe had "danger" tags available for workers but he did not know whether they were used on Telstra sites before January 2003. They were used on other sites - the company policy included danger tagging. Tags were available prior to January 2003 but Mr Sharp was not aware that they were not being used on any of the Telstra sites. DELIBERATION 250 At the beginning of the case, senior counsel for the defendant indicated that an issue would arise as to the operation of s 107 of the Occupational Health and Safety Act in relation to this prosecution. It was accepted that the prosecution was commenced over two years after the incident alleged to give rise to the prosecution but that the prosecution had been commenced within two years after the date of the report of the Inquest or the conclusion of the Inquest into the death of Mr Cowderoy. The defendant proposed that having raised the issue, it would not seek a separate hearing or ruling on that matter but would address compliance with s 107 in the submissions following the hearing of all of the evidence. In the prosecution case, the transcript of the Inquest was tendered and the transcript of the Coroner's findings and report were separately tendered. 251 It should be noted that the defendant submitted that the prosecutor had to establish a prima facie breach of the Act by reference to the Coroner's report or the proceedings. It was, nevertheless, accepted that the Court was bound by the decision of the Full Bench in Edwards Madigan Torzillo Briggs Pty Ltd v Mansell (2004) 139 IR 362 and to the extent that it was relevant, by Page v Walco Hoist Rentals Pty Ltd (1999) 87 IR 286. The defendant formally submitted that those cases were in error in deciding that s 107 of the 2000 Act and s 49 of the 1983 Act did not require a breach to be prima facie established by the prosecutor from the terms of the Coroner's report or proceedings in order to bring into operation the extended time limit to commence proceedings. 252 Apart from that formal submission the defendant noted that the prosecutor bore the onus of satisfying the Court that the requirement of s 107(3) had been met but the prosecutor had not identified any aspect of the report or the proceedings from which it might properly appear that an offence had been committed against the Act. The defendant, however, did not object to the prosecutor, in the course of providing written submissions in reply, from indicating the matters relied upon from the Coroner's Inquest and report that made it appear that an offence had been committed against the Act. 253 The prosecutor relied upon the following matters from the Coroner's report: (a) there was a risk of working "live" and the defendant had a policy that its employees not work "live"; (b) the defendant was aware that the circuitry needed to be identified before work commenced and it was not supplied with a diagram that showed the existing circuitry. One of the defendant's obligations under the tender specifications forming part of the contract for the works, was to identify the circuitry; (c) there was a failure to conduct an identification of all relevant circuitry before work commenced; (d) there was a failure to comply with a particular step in the method of procedure requiring a site specific risk assessment prior to the work being commenced; (e) had there been a site specific risk assessment it was likely that the unusual features of the circuitry at the exchange would have been identified. In particular, the fact that two distribution boards controlled lighting in the stairwell and that SW1 and SW2 L were two-way switches that controlled L1 would have been identified. A site specific assessment would have also revealed whether the blue wire behind SW2L was broken; (f) there was a failure to comply with paragraph 6.9.2 of the Low Voltage Electrical Work Code of Practice that required clear identification of the electrical equipment to be worked upon and the appropriate point of supply; (g) there were failures by two of the defendant's employees to comply with safe working procedures, namely: (i) the team leader, Mr Cowderoy, failed to conduct the test of turning on and off the light at L1 in order to isolate the relevant circuits; (ii) Mr Cowderoy failed to conduct any visual tracing in relation to the distribution board that supplied SW1; (iii) Mr Harrison failed to test the "Wattmasta" before he used it to test the wiring at SW1. 254 The prosecutor submitted that the combination of these individual failures showed, at the very least, that the defendant may have failed to adequately eliminate or control the risks at the exchange. The prosecutor also pointed to the Coroner's recommendations as confirming that the defendant failed to eliminate or control the risk of electrocution. The Coroner stated that she would make recommendations that "The attention of all Stowe employees is drawn to those areas of the Low Voltage Electrical Work Code of Practice which do not seem to have been appreciated by at least some of the team working at the Undercliffe exchange on 15 January 2003." The Coroner made the following recommendations: ... Stowe Australia Pty Ltd undertake immediate and comprehensive steps to draw the following to the attention of all of its employees engaged in electrical work: (1) The importance of undertaking through testing to identify the appropriate point of supply prior to working on any electrical equipment, and that is in accordance with paragraph 6.8.2 of the Low Voltage Electrical Work Code of Practice. (2) Testing prior to touching electrical equipment is an integral safety step, even if it appears that the equipment has been isolated, and that is to reinforce paragraph 6.8.1 of the same Code of Practice. (3) The potential unreliability of volt sticks and the need to test for correct operation immediately before use, again after use, and confirm that the instrument is still working, and that is to reinforce paragraph 6.8.6 again of the Low Voltage Electrical Work Code of Practice 2001. 255 In relation to the Coroner's recommendation, the prosecutor submitted that there would have been no need for those recommendations in relation to precautions that should be taken by the defendant had the defendant complied with its obligations under s 8(1) of the Occupational Health and Safety Act to ensure the health, safety and welfare at work of all its employees. It was further submitted that, even if some questions arose and remained unanswered regarding the extent to which there had been inadvertence on the part of individual employees and whether the risk of this inadvertence could have been reasonably eliminated or controlled by the defendant, it was manifest from the Coroner's report that: the defendant was in a position to eliminate or control the risk of working live; and, the defendant had failed to take various steps to eliminate or control the risk. In all the circumstances, it was therefore apparent that an offence under the 2000 Act may have been committed by the defendant by reference to these matters appearing in the Coroner's report and recommendations. 256 The prosecutor's submission then turned to the evidence before the Coroner that suggested that an offence may have been committed by the defendant contrary to the 2000 Act. The matters identified were: (a) the prohibition and improvement notices issues by WorkCover inspectors after the accident expressing opinions that the defendant had breached the Act in that risk assessment procedures, testing practices and isolation procedures at the exchange had been inadequate; (b) the 2000 Act made provision for the approval of industry Codes of Practice, "To provide practical guidance to employers and others who have duties under Part 2 with respect to occupational health safety and welfare (s 40). The Low Voltage Electrical Work Code of Practice was such an industry code that provided: (i) an employer was responsible for reviewing risk assessments on an ongoing basis especially where there was a change in the workplace; (ii) employees should be trained and competent in test procedures and in the use of test equipment; (iii) voltage testing gear should be tested for correct operation before and after use; (iv) employers were responsible for ensuring that safe work practices were implemented and maintained and specifically: that hazard identification and risk assessment had been performed; that risks were eliminated or control measures applied; that a review of hazard identification and risk assessment occurred on an ongoing basis; that supervision was adequate and competent to ensure health and safety; that training and induction training were provided including the specific procedures for the place of work and how to obtain access to safety information. In particular, the employer was to ensure appropriate work systems prevented inadvertent energising of plant and employers were to provide appropriate supervision and should recognise their supervisor's role in the management of the risks and the protection of employees. Close liaison between supervisors and employees was vital. 257 Additional aspects of the evidence in the Inquest relied on by the prosecutor were as follows: (a) Inspector Sibilant had stated that the employer should have, as part of the risk assessment, undertaken a comprehensive review of the circuits prior to the work commencing. (b) Inspector Sibilant had stated there should have been some system in place to reinforce to the electricians the need to follow the correct tagging and lockout procedure. (c) the report of Mr Glass dated 24 January 2003 contained an opinion that the failure of the defendant to carry out a comprehensive risk assessment of the site was a factor that contributed to the accident. Mr Glass said that the incident could have been avoided by the defendant: carrying out a comprehensive risk assessment of the site including a thorough inspection of all circuits controlling the lights and the premises; ensuring that an appropriate testing and tagging procedure was implemented; ensuring that the circuits controlling the two light fittings in the stairwell were completely isolated; ensuring that the circuits controlling the two light fittings in the stairwell were thoroughly tested before working on the circuits; and, maintaining safe work practices for connecting potential live circuits during installation. (d) the defendant's project manager for the telephone exchange upgrade, Mr Bright, acknowledged that he had a role to play in relation to safety on sites. He stated that the method of procedure formed part of the documents in a crew folder issued by the defendant to Mr Cowderoy. Mr Bright made sure that the method of procedure was adequate to cover the Marrickville Exchange but he did not go through the document with Mr Cowderoy nor did he confirm whether Mr Cowderoy was working in accordance with the method of procedure. (e) Mr Bright agreed the circuits should be identified before the team went to work on any of the light fittings. (f) Mr Bright was aware that it was a requirement for the method of procedures to be kept on site at all times and that was not on site at the Marrickville Exchange. He agreed that he was in a position to inform Mr Cowderoy that he could not commence work at the exchange until a crew folder was present. (g) Mr Bright stated that it would take numerous days to trace the circuitry to all distribution boards at the Marrickville Exchange. (h) Mr Bright was unaware whether a job review had been conducted in accordance with the method of procedure on the morning of the incident. (i) Mr Bright stated that no one from the defendant was supervising Mr Cowderoy. (j) Mr Harrison stated that he did not test the volt stick either before or after using it to check whether the wires in SW1 were energised. 258 Having these various matters identified by the prosecutor, the question then arises as to what approach is to be adopted. In WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs and ors [2003] NSWIRComm 452, I held that in relation to both s 49(4) of the 1983 Act and s 107(3) of the 2000 Act that the Court, when called upon to deal with a challenge of this nature, was to be careful not to intrude upon the role of a prosecutor and the discretions available to a prosecutor as to what charges to pursue. It was observed that the words "and it appears from the Coroner's Report of proceedings ... that an offence has been committed ..." in s 107(3) is initially an opinion to be formed by the prosecutor. When a defendant challenged a decision taken by the prosecutor, the Court would enquire as to whether there were identifiable factors which could justify that decision by reference to coronial proceedings and/or the Coroner's report. Ultimately, the provision required nothing more than the prosecutor being able to point to identifiable factors that could justify a decision to commence the prosecution. On appeal from that decision, the Full Bench could detect no error in the approach taken at first instance. In the present proceedings no other test was proposed by the defendant although it formally asserted that a prima facie case needed to be made out. Having regard to the matters raised by the prosecutor, I accept the analysis and submission that the requirements of s 107(3) have been satisfied. The matters identified in the proceedings before the Coroner are, in substance, reflected in the particulars of the alleged breach. The defendant's submissions to the contrary are rejected. 259 In the course of extensive written submissions made on the substantive proceedings the prosecutor raised the following matters: (a) Mr Mihail must have turned the circuit on again after installing electrical equipment at S8 and then proceeding upstairs. He turned the S8 back on without informing any of his work mates, including Mr Cowderoy that he had done so and this action was the result of a failure by the defendant to have a system of work to ensure that all of the defendant's employees were aware which circuits were being worked on from each site and which circuits were energised or de-energised. The circuit for S15 and S8 had not been subsequently isolated after Mr Mihail had turned them on before going upstairs; (b) when Mr Cowderoy was electrocuted he was in the course of preparing to attach the red cable to the metal snake so that Mr Harrison could draw the cable into the conduit along to S15 by using L1. This was usually a two-man operation and was the only part of the installation of S15 in which Mr Cowderoy actually participated as all of the other work associated with installing S15 was performed by Mr Harrison. It was submitted that Mr Harrison was the sole person responsible for installing the equipment at S15 and it was not the case that Mr Harrison assisted or worked under the supervision of Mr Cowderoy in the installation of S15. Nothing that Mr Cowderoy was alleged to have said to Mr Harrison relieved Mr Harrison of the responsibility of installing the equipment of S15, and, importantly that meant identifying and isolating the circuit for L1 before commencing work. Mr Cowderoy was working on S25 which was on a different circuit. Mr Cowderoy's role was limited to assisting in the two-man aspect of the installation and not otherwise; (c) if it was accepted that Mr Harrison had the sole responsibility for installing S15 then the defendant's system of work left it to Mr Harrison to personally identify and isolate the circuit into which S15 was to be wired. Mr Harrison failed to do so before work commenced on the circuit. The failures of Mr Harrison were caused by the failures of the defendant under the Occupational Health and Safety Act ; (d) Mr Harrison used the volt stick to test the energy of SW1 which confirmed that Mr Harrison and no one else was responsible for identifying and isolating the circuit for S15. Mr Harrison had failed to make any attempt to operate either of the light switches controlling L1 being on the same circuit into which S15 was being wired. There was no evidence that he went to distribution board 2 or 3 or any other distribution board in the Exchange in an attempt to identify and isolate the circuit into which S15 was to be wired before work commenced; (e) Mr Harrison had assumed that the circuit for L1 and SW1 was the same as the circuit that Mr Cowderoy was working on, S25. In late January 2003, Mr Harrison told Inspector Glass that he had assumed this fact and he also said in his evidence that lights from the stairwell in other telephone exchanges were all on the same circuit and so he was likely to have made that assumption of the Marrickville Exchange; (f) Mr Harrison had claimed that his assumption that S15 was on the same circuit as S25 was based on or influenced by what he had been told by Mr Cowderoy in the stairwell at approximately 1.00 pm on 15 January 2003 and before he commenced work on installing S15. The Court was urged not to accept that conversation took place since the evidence showed that Mr Cowderoy did not say that S15 and S25 were on the same circuit but, rather, told Mr Harrison that the fitting he was working on at S25 was the same circuit as the fitting that Mr Harrison had been working on at S23 and S24. Importantly, Mr Harrison knew that his work was S15 and he had stated that circuit identification was to be done by whoever was going to work on the circuit. That meant Mr Harrison was to identify the circuit for S15 but he conceded that he did not do so. Nothing allegedly said by Mr Cowderoy would have removed Mr Harrison's responsibility to identify the circuit. His use of the volt stick at SW1 was also indicative of Mr Harrison not proceeding with the work by simply relying on what he understood had been said to him by Mr Cowderoy about the circuit being off because S15 and S25 were on the same circuits; (g) the factors influencing Mr Harrison to make that assumption were inadequate to support it. He should not have assumed that S15 and S25 were on the same circuit and that therefore the circuit for S15 had been de-energised. The defendant should not have allowed Mr Harrison to be in a position where he did not have the relevant information as to whether the circuit into which S15 was to be wired was live, or which circuit was the relevant circuit; (h) in the absence of reliable evidence about what, if anything, Mr Cowderoy said to Mr Harrison, there was no basis for finding that there was a casual act of negligence on the part of Mr Cowderoy in that he was somehow responsible for the installation of S15 and that he had failed to identify and isolate the circuit or give appropriate directions to Mr Harrison; (i) there was evidence to support a finding that Mr Cowderoy was aware that L1 was on the same circuit as SW1 and that perhaps L1 was also controlled by SW1. Even if Mr Cowderoy did know that L1 was on the same circuit as SW1, it did not follow that he knew that the circuit had been isolated and had failed to share this information with Mr Harrison, nor did it follow that he should have known that the circuit had been isolated. There was no evidence that Mr Cowderoy (or, for that matter, anyone else) had participated in the process of isolating the circuit breaker on Distribution Board 2N prior to work commencing in the stairwell; (j) Mr Harrison's evidence that Mr Cowderoy had instructed him to "finish it off", meaning that Mr Harrison was being directed to connect the new active cable into SW1, was not to be accepted. The circumstances were that this was Mr Harrison's job and he was not given any directions about that job and it could not be the case that Mr Cowderoy had given a direction if he knew that the circuit was live. There was a critical difference in statements made by Mr Harrison to the police and his evidence in the proceedings, namely, that he had asked Mr Cowderoy if the circuit was going to stay off. That omission was not explained and it reflected on the reliability of the remainder of Mr Harrison's evidence about this conversation. These matters and findings sought by the prosecution are dealt with in the following pages. 260 In relation to the particulars of the breach, the prosecutor submitted that the evidence showed that various essential safety documents were not kept at the Marrickville site, particularly the method of procedure, the Occupational Health and Safety Plan and the safe work method/procedure statements relating to the upgrade. The terms of the method of procedure required that those documents relevant to the upgrade task were to be at the work site at all times and work was not to start until the procedures were signed. There were no practical means of complying with the terms of the procedures when they were not available on site and the evidence showed there was a substantially less than complete understanding of their requirements by the defendant's employees at the Marrickville Exchange. The procedures appear to have been read once at the beginning of the project but were not given to the defendant's employees or effectively revisited in the safe work method/procedure statement, carrying the identification 007, (a critical document requiring the carrying out of site specific risk assessments before work commenced, careful identification of the circuits to be worked upon before isolation, the isolation of circuits to be worked upon using locking devices and danger tags and the provision of information to each person regarding the scope of the work and specific areas of isolation). Although this document was particularly relevant to work on the Exchange project, it was not known whether the document was sent to all staff. In addition, Mr Bright, effectively the supervisor of the work as project manager, allowed work to commence at the Marrickville Exchange although he was aware that Mr Cowderoy did not have with him the method of procedure and the safety plan because they had been left behind on another work site. Documents of this nature were necessary to ensure site safety and it was clear that the defendant's employees did not have sufficient retention of the information contained within those documents. The defendant also failed to make any assessment of the working knowledge of employees of these documents. Effectively, the defendant's employees were left to their own devices and knowledge but the Occupational Health and Safety Act required pro-active intervention by the employer in relation to relevant safety information being provided to the workforce. These documents should have been on site and had the defendant ensured compliance with their requirements, the risk to the safety of Mr Cowderoy and the other employees would have been eliminated: the circuit supplying SW1 would firstly have been identified and isolated prior to Mr Harrison commencing work on the installation of S15 and the new active would not have been connected by Mr Harrison at SW1 prior to the connections being completed on the load side at L1. 261 It was clear from the evidence that the defendant failed to ensure a comprehensive site specific risk assessment had been undertaken at the Exchange prior to the commencement of electrical installation work. The nature of the fittings and conduit presented a complex and somewhat confusing picture, and before any work started, there should have been an identification of the circuits relevant to the work to be performed. This task was in fact carried out and recorded after the work was completed but there was no reason why it could not have been carried out at the beginning of the work. A proper risk assessment would have identified all the relevant circuit breakers and what they controlled: the risk assessment plan implemented by the defendant after the accident was acknowledged to properly perform this role and there was no reason why those measures could not have been in place prior to the accident. The identification of all circuitry upon which work was to be performed before work commenced was required not only in the contract but was required by the low voltage code of practice and the method of procedure. At this Exchange, the unusual feature of the circuitry in the stairwell was that the two switches in SW2 were supplied by different distribution boards on different floors. There was a failure by the defendant to ensure that circuitry information was communicated to its employees at daily toolbox meetings prior to work being commenced. 262 It was submitted that, at the Marrickville Exchange, the isolation process should have included the simple task of operating the light switch at SW1 but that test was not carried out. Operating the light switch at SW1 would have indicated that the circuit remained alive. The absence of these measures left Mr Harrison to operate on an assumption when undertaking work on S15. The risk of electrocution from exposure to circuits that had not been properly identified and isolated flowed from: the unusual circuitry that should have been identified before work started at SW1 and SW2L where two-way switches controlled L1; the fact that L1 was supplied by circuit breaker 1 Distribution Board 2N which was the same circuit into which S15 was to be wired; that SW2R controlled L2 and was supplied by circuit breaker 17 on Distribution Board 3E and that this was the same circuit that supplied S25; and, that S8 was on the same circuit as S15. 263 It was the defendant's responsibility to ensure that a proper risk assessment was carried out: the defendant's failures could not be excused because of the actions and assumptions of Mr Harrison. Mr Harrison would not have been put in a position of making an assumption if a comprehensive site specific risk assessment had taken place identifying the circuitry for the stairwell prior to the work commencing. Mr Bright did not consider it was part of the defendant's responsibility to provide risk assessments to employees in relation to each site and he was not familiar with a number of codes of practice and guidelines and certain provisions of the Occupational Health and Safety Regulation. Mr Bright's approach was that the identification and assessment of risks and hazards was to be left to individual electricians who were licensed and capable of making those assessments and that it was unnecessary for him to be involved in risk or hazard assessments. 264 Apart from the failure to carry out a proper risk assessment and to clearly identify the circuits to be worked upon before work commenced, the defendant also failed to ensure that the method of procedure, the safety plan and the safe work method procedure statements were actually being followed by employees including Mr Cowderoy and Mr Harrison at the Marrickville Exchange. The defendant's safety plan, the low voltage electrical code of practice and the NECA safety guide required the use of danger tags, while the safe work method and procedure statements and the NECA guidelines also required, where practical, the use of locking devices to isolate circuits. The use of electrical tape to identify circuits being worked upon was not effective and was not sanctioned by the Code. Although the defendant had supplied danger tags in other areas of its operation, Mr Cowderoy's team did not seem to have been supplied with them for work on the project nor were lockout devices provided. Immediately after the accident lockout devices were supplied and were therefore both available and appropriate for use in the Exchange project. Ultimately, there was a failure to properly tag and lockout the circuit breaker on distribution board 3 when work was being performed on the first floor on 15 January 2003, and there was also a failure to properly tag and lockout the circuit breaker on DB2 when work was being performed on the ground floor. 265 The risk of Mr Cowderoy being electrocuted or injured would have been eliminated or reduced had an appropriate testing and tagging procedure been implemented by the defendant. The use of tags and lockout devices was a requirement under the defendant's safety plan and the safe work procedures that were not followed or enforced by Mr Cowderoy's team. The failure to ensure compliance with these provisions contributed to the risk to the safety of the defendant's employees. There was no reinforcement of these requirements at toolbox meetings. The defendant's failures were evident at many levels: the various work statements and plans were not available on site and there was no crew folder available to be consulted by the defendant's employees at the Marrickville Exchange. There was a failure to ensure that the employees were adequately trained in electrical circuitry identification and isolation procedures; the defendant failed to adequately supervise the employees to ensure that they were complying with the safe work method requirements set out in the documents. These failures could not be excused by the fact that a number of the employees were licensed electricians - the defendant was responsible for ensuring that safe work method procedures were complied with. The defendant's safety plan allocated specific responsibility to a number of people, including Mr Bright and more senior managers, within the defendant to ensure compliance with the defendant's safe work methods. In fact, Mr Bright was unaware of a number of duties and responsibilities imposed by the defendant's documented safety systems. 266 The defendant's safe working method and procedure statement 526 required the load end of a circuit to be connected before the supply end. Mr Glass gave evidence that proper work methods required that the supply end of the active wire be connected last. Mr Mihail was aware of that principle and stated that it applied at Stowe. However, he was never instructed by the defendant to carry out his work as an electrician in accordance with the principle. Mr Mihail thought that it was up to the individual to choose where to start and finish. This evidence showed that the defendant had failed to properly instruct Mr Mihail in relation to the operation of the principle. Adherence to the principle would have eliminated or reduced the risk of electrocution, in particular, in the circumstances in which Mr Cowderoy was performing the work. 267 The defendant had also failed to provide adequate training or instruction to Mr Harrison even though he was a qualified electrician. The fact that the circuit supplying S15 and L1 was not properly identified was due in part to the defendant's failure to ensure that Mr Harrison was provided with adequate information, for example, about circuit identification. He was not given the appropriate information to enable him to perform his duties without risk to his safety or the safety of others with whom he was working including Mr Cowderoy. If Mr Harrison had been properly instructed, he would not have had to proceed on the basis of assumptions he made about the circuit that supplied L1 and S15. The risk of Mr Cowderoy being electrocuted would have been eliminated or reduced if the circuitry information had been obtained by Mr Harrison. Mr Harrison had not been adequately trained or instructed in relation to relevant safe work methods and had not attended an induction course either for Telstra or Transfield prior to commencing work at the Telstra Exchange project. While on this project work, the defendant did not provide Mr Harrison with any written material concerning safety in the workplace for electricians and he was not supplied with codes of practice for electricians working on low voltage work. He had not been supplied by the defendant with any document setting out safe work methods such as tagging and had no recollection of the defendant giving him a copy of the NECA safety guide. Mr Harrison had been shown a safe work method statement on the first job but was not given a copy of those statements, did not read them again and did not recall any further discussion about those statements. He was not aware where those statements were kept and did not seek access to them again while performing work at the other 10 to 15 exchanges. Mr Harrison was unaware that the safe work method procedures had been updated and he did not recall ever being provided with the safe work method procedure No 007. At no time had Mr Harrison received instructions from the defendant as to the process of circuit identification. 268 There was a failure to provide adequate training or instruction to Mr Harrison in the use of the voltage testing device. Prior to Mr Cowderoy's death, Mr Harrison said he did not know that there were any dangers associated with the use of a volt stick, he had no reason to believe that they might be unreliable and had not received a warning to this effect. Mr Novak was not warned about problems with volt sticks by the defendant: Mr Bright did not know that volt sticks were not always reliable. The defendant had not given any instruction to Mr Harrison in the use of the volt stick and he had never been instructed how close he should place the volt stick to wires being tested. He had never been instructed by the defendant about the need to test or the method of testing volt sticks before they were used or after they had been used. 269 Mr Harrison's evidence was that he was not aware of any rule or procedure that the load end of the circuit should be connected before the supply end and he did not adopt such a procedure. In particular, he did not ensure that the load side had been fully connected before he inserted the red permanent active to SW1. He had no recollection of the defendant drawing his attention to the safe work method procedure statement No 526 and in particular, that part of it dealing with installing and reconnecting supply cables and associated equipment by starting from the end of the circuit and working towards the isolation device. Mr Harrison did not think he was acting contrary to any instruction by failing to ensure that the load side was connected prior to the supply side. This evidence, it was submitted, demonstrated that the defendant had failed to ensure that Mr Harrison was appropriately trained in this regard. Such training was likely to have reduced the risk and may well have eliminated the risk of electrocution when working with Mr Cowdery at the time of the accident. 270 The defendant had failed to provide adequate training and instruction to employees and, in particular, to Mr Cowderoy, Mr Mihail, Mr Novak and Mr Harrison in regard to electrical circuit isolation techniques. The defendant had failed to ensure that its employees complied with the requirements of the safe work method procedures and the NECA safety guide that circuits be properly identified and isolated before work commenced. Mr Harrison said he had never been instructed by the defendant in relation to the process by which circuit identification was to be undertaken and could not recall being given any instruction about the visual tracing of conduit to work out the relevant circuit breakers. Mr Harrison did not recall ever being instructed by the defendant to "test before touching". He never considered it was part of his instructions to re-check the circuit as work progressed to see if it might have been re-energised in the meantime. 271 The evidence was that while Mr Novak had read the NECA safety guide prior to signing it in July 2002, he did not read it again nor was he tested or assessed by the defendant in relation to his understanding of the contents of the guide. Mr Novak had not read that part of the guide dealing with the method of isolating circuits and of testing they were dead. Mr Novak had never been criticised by the defendant for using electrical tape to tag circuit breakers. Mr Mihail had never been tested on the contents of the NECA safety guide. Mr Mihail had not been instructed by the defendant to re-test a circuit after having spent time installing a fitting and before connecting the fitting to the power supply and he worked on the assumption that the circuit remained off after it had been initially isolated. 272 Neither Mr Harrison or Mr Mihail were required by the defendant to attend an induction course with Telstra prior to commencing work on the project although Mr Novak and Mr Cowderoy did attend such an induction. Mr Novak had not attended any safety training course conducted by the defendant prior to Mr Cowderoy's death. 273 The defendant's position was essentially that the work team at the Marrickville site comprised of well-trained, licensed electricians (except for Mr Novak) under the immediate supervision of Mr Cowderoy. The evidence was that Mr Cowderoy was conscientious in relation to safety and safe working practices and had not been known to work on live lines. The defendant had a safe system of work in operation and that included the various documents referred to in the evidence: essentially, the established system of work was one where there was a very strict no work live policy, where circuits were first identified and isolated before any work was performed in connection with that circuit and where the employees themselves investigated, identified and isolated the circuits on which they were to perform work. This was a safe system of work and addressed the risk of possible electrocution in the performance of the upgrading task at the Marrickville Exchange. 274 To the extent that the defendant's system of work as found in the various documents was departed from at the Marrickville site, nevertheless, that actual system of work was a safe system of work encompassing the principles of not working live, identifying and isolating circuits before work was performed on the circuit and by investigation, having the employees identify and isolate the circuits on which they were to perform work. This system was known and was consistently followed by all employees. There was nothing about this system that exposed the employees to the risk of electrocution. 275 The allegation that there was a failure to complete a comprehensive site specific risk assessment and a comprehensive electrical circuitry investigation and identification before any installation work began at the exchange had to be considered in circumstances where no information about the exchange circuitry had been provided to the defendant prior to work commencing at the exchange. The investigations of the site had to be undertaken by the defendant's employees engaged at the site and the defendant's system of work was that its employees undertook the investigations to identify the circuits on which they were to perform work. All the employees (with the exception of Mr Novak) were licensed, experienced and capable of undertaking the task. There was no criticism of the procedure adopted by the employees in identifying the circuits and it appeared that approach accorded with accepted practice. 276 The prosecutor's real complaint appeared to be that an investigation of and identification of the circuits should have been carried out all at the same time and before any work commenced on the circuits rather than conducting the investigation in segments as the work was required. The approach adopted by the defendant was in accord with WorkCover guidelines and even the prosecutor's expert witness accepted that the work could be broken down into segments for the purposes of identification of circuits. There was no risk to safety from this approach adopted by the employees of the defendant at the exchange. On a proper construction of the documents relied upon by the prosecutor, there was no obligation to identify every circuit before the work began. In any event, the failure to follow what was laid down in a document, contract, guideline or code by itself did not establish the presence of a risk not attended to by the defendant. There was no evidence as to the authorship of this class of documentation relied upon by the prosecutor nor of its actual efficacy in ensuring the safety of employees in the conduct of this upgrade work at the exchange. 277 In relation to the use of tape to signify that a circuit was being worked on and was not to be re-energised, the evidence demonstrated that the employees comprising the defendant's team at the exchange accepted and operated on the basis that the identification tape conveyed to them the same message and requirement for care as the use of a lockout mechanism or a tag. Again, it was relevant that these were licensed electricians and their use of tape in the isolation process carried with it all the warnings and protections that would be available if, instead of tape, a tag had been used at the site. The sole purpose of a tag was to guard against the risk that the circuit might be energised by someone unaware that another person was treating the circuits as having been isolated - the evidence demonstrated that the tape used, which was the employees' practice, achieved the same purpose. 278 The prosecutor had alleged that the defendant allowed employees to work at the exchange without ensuring that copies of documents such as methods of procedures and safe working method statements were not at the exchange but the evidence demonstrated that copies of these procedures were available for the team, were kept by Mr Cowderoy and discussed by him at toolbox meetings and at least once at every exchange a toolbox meeting took place where the team was working. The evidence did not permit a finding as to whether any copy of the procedures or method statements were available at the exchange on 14 and 15 January 2003 and the most that could be said is that no one could remember having seen them on the day of the accident. These documents were properly described as a "tool" or "reference" and that is the way in which they were used by members of Mr Cowderoy's team. There was no evidence that any of the employees did not know the substance of any relevant aspect of the documents such that the temporary absence of such documents exposed them to any demonstrated risk. There was no basis in the evidence to establish that any aspect of the information in the document was not known to any of the employees at the time and that ignorance of the information was proved to be connected with and identified or proven risks. 279 There was no substance in the allegation that there was a want of supervision by the defendant. The prosecution's evidence concentrated on the position of Mr Bright but Mr Cowderoy was relevantly the supervisor of the work being performed at the exchange and he was well qualified to do that work. Mr Cowderoy did not need to be supervised in his supervision. Mr Cowderoy reported to Mr Bright but Mr Bright did not have responsibility for the work performed by the employees from day-to-day. 280 Contrary to the prosecutor's submission, the defendant did impose a requirement that employees connect the load into the circuit before the supply end and they were trained in this requirement or were aware of it. It was accepted that this requirement was not followed by Mr Cowderoy or Mr Harrison in relation to their work on S15 but it was not known what knowledge they had of the requirement to connect the load end first although they departed from that requirement. Mr Cowderoy in his position as supervisor apparently acquiesced in Mr Harrison first connecting the supply end into SW1. Because of this uncertainty it was impossible to find their departure from the defendant's requirement involved any failure on the part of the defendant. It was not clear, in any event, that compliance with the defendant's requirement would have avoided the risk of electrocution or would merely have transferred that risk from Mr Cowderoy to Mr Harrison. 281 In relation Mr Harrison's alleged failure to check the volt stick he was using, his evidence was that before he began work on the installation of S15 he brushed the volt stick over SW1. The volt stick worked on four occasions when tested but the tests that were carried out could not have excluded the possibility of an intermittent failure when Mr Harrison used it in January 2003. Volt sticks and test lamps were to be provided by employees as part of their trade equipment and they were paid an allowance in that regard. The evidence showed that Mr Harrison knew how to test volt sticks before applying them and had done so on other occasions but he did not test the volt stick when he used it to check SW1. It was not known why he did not do so and he could not recall what instructions he had been given by the defendant in that regard. There was a difference of opinion as to the efficacy or reliability of the volt sticks and it was impossible to resolve that difference. The relevant standards adopted a neutral position between volt sticks and other testing devices and in the light of that position, it was impossible to find any relevant failure on behalf of the defendant in this regard. 282 It was accepted by the defendant that there was some evidence to establish that the defendant may not have provided specific training to all of its employees in relation to every matter about which they were asked. That evidence left unexplored the question of whether licensed electrical tradesmen required such training. The fact that an employer may not have given training on a particular matter to any of its employees did not, by itself, constitute an offence under s 8(1): the prosecution had to establish to the requisite standard that, as a result of the absence of the training, an employee was not equipped with knowledge or skill and that gave rise to a risk. It was impossible to identify any deficiency in training that had any causal connection with any proved risk to safety. 283 The summary of the position taken by each party demonstrated one common theme, namely, that there was a concentration upon attempting to prove who was responsible for the electrocution of Mr Cowderoy. Although, ultimately, there was no submission for the defendant that the incident was due to a casual act of negligence by Mr Cowderoy, aspects of the cross-examination raised that possibility. The Court and its predecessors, in exercising the Occupational Health and Safety jurisdiction, have frequently drawn attention to the need to focus upon the identified risk to safety rather than the particular incident or accident that drew attention to allegedly unsafe systems of work. In the present case, the prosecutor alleged a breach of s 8(1) of the Act, alleging that the defendant did not ensure the health, safety and welfare at work of its employees and, in particular, Mr Cowderoy, Mr Mihail, Mr Novak and Mr Harrison. The charge was divided into an allegation of a failure to provide, promulgate or maintain a system of work for the installation and upgrading of exit lighting at the Marrickville exchange that was safe and without risk to health and safety of its employees (by reference to six nominated particulars) and then alleged a failure to provide training and instruction as might be necessary to ensure the health and safety at work of employees engaged in the installation and upgrading of emergency exit lighting at the Marrickville exchange (with four particulars nominated). In a shorthand way, these charges might be described as a "system of work" charge and an "instruction and training" charge. These are the matters that require attention in dealing with the offence alleged to have been committed by the defendant. As stated in WorkCover Authority (Inspector Farrell) v Morrison [2001] NSWIRComm 325 at [43], it is not necessary to arrive at a precise conclusion as to how the accident occurred ... the general duties created by the Act are directed at obviating the risks to the health and safety of persons in the workplace. 284 The first particularised system of work breach [(a)(i)] alleges a failure to ensure that the method of procedure, the Occupational Health and Safety Plan and the safe work method/procedure statements for the upgrade work at the Exchange were not on site at all times that work was being carried out by or on behalf of the defendant. These particulars address the risk of electrocution while performing the work required under the upgrade programme. The nature of the risk of electrocution is highlighted by switches that may have more than one power source and by the steps that were needed to be taken to ensure the safety of employees working either alone or as part the team, as occurred under the defendant's system of work. 285 The evidence demonstrated that the formal system of work included the utilisation of the Method of Procedure document, the Occupational Health and Safety Plan and the Safe Work Method/Procedure statements. Under the Method of Procedure, a copy of those procedures were to be at the work site at all times. At the Marrickville exchange from the beginning of the work, the Method of Procedure statements and the Plan were not on site because Mr Cowderoy had apparently left them at another site. Mr Bright was aware that this had occurred and, while he said he made arrangements for replacements to be provided, they were not quickly made available and were not on the site at the time of the accident. Mr Bright accepted that these documents were to be on site. 286 The evidence also showed that the employees had read these documents at the beginning of their work on the project (some five months earlier) but had not been given copies and had not had them placed before them for revision to ensure the application of the procedures during the months that they were engaged on this project. The significance of not having those documents available on site was that there was no opportunity to reinforce the need for a risk assessment, or the undertaking of a clear identification of all the circuits before the work commenced, or the identification of peculiarities in the particular exchange, such as where there were two power sources for the one switch. 287 The method of procedures and the safety plan and the safe Work Method Procedure Statements were all documents to be used in ensuring the safety of employees working at the exchange against the risk of electrocution and were effective in achieving this objective. The defendant not only did not demur from that proposition but positively asserted it. The task of maintaining the familiarity of employees with these procedures was severely reduced when the documents were not on site in the hands of the team leader, such as Mr Cowderoy, and were not available or provided to individual employees. The safety of these workers as against the risks identified is not ensured in such circumstances. In particular, adherence to the procedures so laid down would avoid the making of assumptions about the circuitry: no assumptions are necessary where the procedures are followed, the relevant circuits are identified and the power to that circuit isolated by use of appropriate locking devices. There was a contractual obligation on the defendant to keep on site a site log book with details of the work schedules, MOPs and job analysis detailing the risks and measures to reduce the hazards found. The defendant charged a fee in relation to each site for "establishment" and site survey and for capital drawings. These measures, however, were not fully or effectively implemented. 288 It was also clear from the tender documents that the defendant had to make its own investigation of each site in relation to the work to be performed and that the circuit diagrams within each distribution board were not necessarily accurate. In those circumstances, there was a need for enforcement of the requirements of the Method of Procedure, the Safety Plan and the Safe Work Method/Procedure Statements in order to avoid the risk of the employees in the team being exposed to the risk of electrocution. Indeed, under the terms of the contract, the defendant was to allow half a day induction course to be attended by all personnel attending for work on site at each of the exchange buildings in order to explain the hazards and working procedures. The Method of Procedure was to be a step-by-step work method statement prepared under the guidance of the superintendent of the contract and approved by the owner before work commenced. Under the contractual arrangements, the defendant was to inform itself fully of site conditions and all risks or contingencies that might affect the work. 289 In relation to the systems of work charge, the defendant submitted that the correct focus was on the customary method of carrying out the operation in which the employer was engaged and that was the system of work that was actually utilised and operated at the place of work, citing WorkCover Authority v Fernz Construction Materials (No 2) (2000) 100 IR 23 at 35. The defendant submitted, in part, that its documents were not particularly relevant and even though the system laid down by the defendant was not followed precisely or at times at all, the system that was actually in operation was nevertheless safe and ensured the safety of employees. That system comprised of a strict policy by which no work was required or permitted on a live circuit, where circuits were first identified and isolated before any work was performed in connection with the circuit and whereby the employees, by investigation, identified and isolated circuits on which they were to perform work. The employees were said to be well qualified to undertake this task. 290 The citation in Fernz relied on by the defendant is in the following terms: However, the occurrence of the accident in this case indicates that these procedures were not sufficiently comprehensive or sufficiently communicated to and understood by the employees to ensure their safety. The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its 'paper systems' are implemented and maintained in its daily operation: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214 par 26. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In Inspector Davies v Supercoat Feeds Pty Ltd (unreported, CT96/1020, 22 April 1997, at p 4), for example, Fisher P said: The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work. 'Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant . 291 In terms, the prosecutor did not address this submission. The defendant, in oral elaboration of written submissions, appeared to rely on both the existence of the documented safety system adopted by Stowe for this project and also the system actually in operation at the Marrickville Exchange even though the work team did not follow the details of the defendant's written system. It is difficult, therefore, to determine precisely what the defendant was submitting about the system of work although its initial focus was upon the actual method of work that the employees had adopted which was said to ensure the safety of employees. The discussion in cases such as Fernz usually arises where, in defending a prosecution for breach of the Occupational Health and Safety Act, an employer will reply upon its documented system as ensuring the safety of employees but the evidence shows that was no more than a paper system and was not enforced on site: the system that was allowed to operate in the workplace was a different and deficient system and did not, in relevant respects, ensure the safety of employees. That analysis has relevance for these proceedings. 292 Under the contract to perform this work in the exchange upgrade programme, the defendant was required to adopt a quite specific and detailed system of work and that involved the application of a Method of Procedure, the Occupational Health and Safety Plan, the Safe Work Method/Procedure Statements and those requirements were to be adhered to and were to be approved on behalf of the head contractor. That documented system ensured the safety of employees engaged on this type of work. The evidence discloses that detailed system of work was not followed at the Marrickville Exchange by the defendant's employees and in other respects was probably not followed in other places where the upgrade work was being performed by the work team. There is such a divergence between the defendant's documented system and the system actually engaged in at the Marrickville Exchange that it is impossible for the defendant to rely on both the documented system and the substantial departure from that system that constituted the methods adopted on site, quite apart from the fact that it was the employees who developed the "actual" system - not the defendant. 293 Mr Cowderoy was the immediate site supervisor as "team leader" and Mr Bright was the project manager who visited the sites. In these roles they were both obliged to ensure that the contractual provisions were followed and that included having the MOPs, the Safety Plan and the Safety Statements on site and having work performed in accordance with their provisions. There was no evidence that either Mr Cowderoy or Mr Bright were authorised under the contract or independently by the defendant to depart from the system of work laid down in the contract and approved on behalf of the head contractor. The evidence demonstrates that there was an unauthorised departure from the documented system of work and that there was a failure on behalf of the defendant to take steps to ensure that the documented system of work was maintained and actually adopted at the workplace. There is force in the prosecutor's submission that to this extent the employees were left to their own devices at the Marrickville Exchange site and were allowed to adopt their own procedures rather than the detailed procedures laid down under the contract and adopted by the defendant as part of its written system of safety for this work. 294 The significance of not having the MOPS, the Safety Plan and Safety Statements on site was that Stowe accepted that the site plans, including the placement of distribution boards, could not be taken as accurate and the evidence also demonstrated that the circuitry in each exchange as appearing on internal distribution board documents was not necessarily accurate. The defendant had to make its own investigation about these matters and there was ever present the possibility of a peculiarity of wiring that had not been discovered in exchanges where work had been performed earlier. Therefore, as a matter of practicality, in order to ensure the safety of the defendant's employees working at these exchanges, a good deal of work was necessary to be undertaken prior to the substance of the work being commenced: at the very least, those circumstances required the prior identification of all the relevant circuits so as to disclose any unusual features of the circuitry and to allow a proper risk assessment to be conducted as to how to address such problems and situations. In some circumstances it may have been appropriate to identify the circuits in segments but it is difficult, if not impractical, to conduct a risk assessment in segments. The effect of Mr Glass' evidence was that in the nature of this undertaking, to ensure the safety of the employees, the identification of circuitry had to be undertaken before the substance of the work had commenced. Indeed, under contractual provisions it was provided that a half-day induction course was to be provided to all personnel intending to work at each of the exchange buildings in order to explain the hazards and work procedures. Further, the contractor's nominated safety officer was to monitor the working conditions to ensure that all MOPs were being followed. Drawings were to be produced for each floor plan identifying the distribution board and their numbers from which different light circuits were fed as well as all light fitting positions and the labelling of each fitting with an identification number. 295 It is also to be noted that, under the contract, identification of potential safety hazards and the job analysis had to be submitted by the defendant prior to commencement of work and therefore the hazard identification could not take place in the course of the work. Further, under the MOP supplied by the defendant at the beginning of each day or at the change of locations in one day jobs, a job review was required to be conducted by all employees at the site where the MOP and the Safe Work Method Procedure was to be discussed as well as any new risks identified and those were to be recorded on the defendant's risk assessment form. 296 The following matters are also of significance in relation to this first particular: (a) Under the contract, drawings were to be produced of each floor plan identifying the distribution boards and their numbers from which different lighting circuits were to be fed. The drawings were to be issued for approval "prior to the commencement of work and the issue or confirmation of MOP requirements were to be with the superintendent prior to construction". (b) The defendant was to familiarise itself and its employees in relation to relevant occupational health and safety legislation, site safety rules and regulations associated with permitting systems and procedures and was to ensure they were understood and observed in the execution of works on site. In this regard, Transfield was to provide relevant site safety guidelines and procedures. (c) The NECA booklet, issued by the defendant to its employees for adoption in their daily work, required that procedures and practices were to be analysed prior to starting a job and that site specific Work Method Statements were to be developed by the employer, the supervisor and the work team prior to starting the job. (d) The defendant's generic MOP approved by Transfield stated that a copy of the MOP must be at the site at all times. Deviation from the procedure was not allowed without approval. (e) The MOP required that on each day there would be a job review involving all Stowe employees on the site. At this job review, the MOP was to be discussed as well as safe work procedures and any new risk was to be recorded on the Stowe risk assessment form. (f) The Stowe Safety Plan stated that all work was to be carried out so as to comply with statutory rules and regulations, Australian Standard S300 and Codes of Practice. On site, the supervisor's responsibility was to continually monitor the work and implement the safety plan. The Stowe safety procedures adopted WorkCover guidelines including its guide to basic assessments. (g) Mr Bright thought that it was not part of his role, however, to provide reports to Stowe that the occupational health and safety plan was being complied with. He thought it was up to individuals to identify hazards on the job and it was not part of his role. Mr Bright did not receive risk assessment forms from Mr Cowderoy when at new sites although he did receive such forms from team leaders - he did not take this matter up with Mr Cowderoy. Mr Cowderoy did not provide Mr Bright with a Telstra checklist for site discussion although other team leaders did. Mr Bright understood that Stowe expected Codes of Practice and guidelines to be used as a reference tool and that work was to be performed in accordance with those documents. (h) Mr Mihail regarded Mr Bright as the supervisor and referred to Mr Cowderoy as the team leader. Mr Novak also considered Mr Bright to be the supervisor and also referred to Mr Cowderoy as the team leader. (i) Mr Mihail did not remember receiving any update of the Safe Work Method Procedures from approximately mid-2002 and he had no recollection of a statement issued in August 2002 in the form of a document with the identifier 007. (j) Mr Mihail did not know that S8, on which he was working, was on the same circuit as the switch on the ground floor where the red wire was protruding and he did not remember S8 being on the same circuit as S15. (k) Mr Harrison read the MOPs and Safe Work Method Statements only once and did not read them again. He only generally recalled what was in them and was not quizzed by anyone, including Mr Cowderoy, about his understanding of them. He did not know where they were kept on site, he did not seek access to them and was unaware of those procedures being upgraded after his initial reading of them, including the document identified as 007. (l) Mr Harrison could not recall being provided with a copy of the NECA Safety Guide to Employees by the defendant and had no such document in his possession. He did not recall there being any discussion about the Work Method Statements and said that daily toolbox meetings were not conducted. (m) There was a practice whereby a switch was turned on to see if the light was working and therefore energised but this practice was not followed at SW1 by Mr Harrison. He was not instructed by the defendant in the process of circuit identification. Mr Harrison had an understanding from previous exchanges that lights in the stairwell were generally on the same circuit and used that understanding on the day of the accident. He had never been instructed to visually trace the conduit and he had not been instructed to "test before touch". 297 This collection of aspects of the evidence indicates the risks associated with not following the defendant's documented safety system and the system it contractually agreed to implement. They also indicate the breadth of the divergence from the formal documented safety system that occurred in the workplace at the Marrickville Exchange and the risk to safety that thereby arose. Employees such as Mr Mihail thought that the work was all the same at the exchanges and it is clear that some work was performed on the basis of assumptions or understandings about the circuitry because of familiarity with the exchanges. Mr Glass noted that experienced electricians could be forgetful and lapse into unsafe or poor work methods in the absence of constant reinforcement of safe practices. It is also to be remembered that in this work team, Mr Novak was not a licensed electrician and his safety was of particular importance because he did not have the same formal electrical training as the rest of the team and therefore had to rely on them for his safety. Care was required by the team to ensure that Mr Novak was not placed in danger. 298 An important consideration in not only laying down but enforcing the documented system of safety was the capacity for the exchanges to have unusual features. Mr Green, Mr McRorie and Mr Browne all referred to the unusual features of the Marrickville Exchange. Mr Green said the unusual feature was adjacent lights being fed through the same conduit but on different circuits fed from different distribution boards and that this could lead a licensed electrician to assume that all relevant circuits were dead, whereas only one of two circuits were dead. Mr McRorie, from Energy Australia, commented on the unusual nature of the wiring and that usually the neutral and active "should go to the same distribution board". Mr Browne said that shared circuits made visual tracing unreliable and noted there was no marking on the switch that there were two circuits and no identification of the distribution board relevant to that switch: the circuit schedule did not show on distribution boards two and three the relationship to the various sections of the electrical installation. 299 The presence of these confusing or unusual features at the Marrickville Exchange meant that the task of circuit identification could not be safely segmented and, as confirmed by Mr Green, safe electrical practice ensuring the safety of employees required that the identification of the circuits and their distribution boards and the risk assessments had to be undertaken prior to the commencement of the actual installation work. These unidentified features exposed the work team at the exchange to the danger of being electrocuted. The truncated system in operation on the ground, relied upon by the defendant, did not protect sufficiently against that risk. Further, the defendant's submission that the simple failure to have these safety documents on site did not establish a causal link with the risk alleged, must be rejected. The case is not to be decided on barren pleading points, but is to be decided on the substance of the case. The substance of the prosecutor's case was that providing and following these safety documents were the means by which a safe system of work was to be established and maintained. In the absence of such documents and in the absence of their enforcement, the work team was effectively left to its own devices; that approach did not ensure their safety. 300 Submissions for the defendant then concentrated on what happened on the day in question emphasising the usual practice of the employees on site and their training and capacity to perform the work. This submission concentrated upon Mr Harrison's evidence about what Mr Cowderoy had said to him about the work and the circuits they were working on and how it was implausible that Mr Harrison would have knowingly worked on a live circuit. Mr Cowderoy was known for his safe practices. It was submitted that Mr Harrison clearly relied on what Mr Cowderoy had told him about the circuits and that he accepted it was true that he was not working on a live circuit. It was accepted that Mr Harrison did test the circuit at the switch with a volt stick but that was said to be the result of mere instinct and did not amount to an independent test, checking for himself that the circuit was not live and in that context it merely confirmed what he had been told by Mr Cowderoy. Given that state of the evidence a question was raised about how Mr Cowderoy could have satisfied himself that the circuit was dead. It was acknowledged that it was not now possible to ascertain with any confidence what Mr Cowderoy did in order to satisfy himself that the circuit was dead and why, having done so, he was misled about that issue. There was no evidence that Mr Cowderoy participated in identifying the relevant circuit but that did not mean that he had not done so nor could it be established on this evidence that Mr Cowderoy in fact did nothing to satisfy himself as to the identity of the relevant circuit or the fact that it was not live. Mr Cowderoy had a reputation for being a safe worker and following safe practices and not working live: it therefore could only be safely concluded that whatever Mr Cowderoy did it produced in him a mistaken belief that the relevant circuit was not live. An available possibility was that on this one occasion Mr Cowderoy had made an accidental mistake, the consequence of unintentional acts, chance or misfortune and perhaps at worse, inadvertence but another and equally available possibility was that he was misled because the blue wire in SW1 was broken and detached. 301 It was also submitted that Mr Browne, the professional consulting electrical engineer, had opened the cover of SW1 on the day after the accident and found the blue wire detached and from his experience formed the view that the break was old. Mr Harrison stated that when he began working on S15, SW1 was covered and he could not recall whether he made any observation as to its contents when he took the cover off and no one else could remember having made any relevant observations of the blue wire. While acknowledging that there was some controversy as to Mr Browne's conclusions that was not sufficient to exclude the possibility that the blue wire was broken on the day of the accident with the result that if Mr Cowderoy operated SW1 to see whether L1 illuminated he could have been misled. In the face of this unresolved controversy, it was said to be impossible to accept the prosecution's submission that Mr Cowderoy did not operate SW1. 302 In response, the prosecutor submitted that under the method of work in operation, Mr Harrison had taken responsibility for S15 and the evidence did not allow a conclusion that, somehow through the conversations between the two, Mr Cowderoy had taken control of the area in which he was working and also S15. I accept that the evidence is to this effect but the evidence does not allow a conclusion to be reached as to how it came to be that work was being performed on an energised circuit. The evidence given by Mr Harrison was not as clear cut as the defendant's submission suggested: he had a vague recollection of the work performed at the Marrickville Exchange and was vague or unable to recall facts and details of other aspects of the work and the system of safety. He accepted that his recollection of the conversations with Mr Cowderoy was not word perfect but in contrast to much of his other evidence, his recollection purported to be more detailed as to what was said in the stairwell. This assessment of Mr Harrison's evidence is not be taken to be critical of him but as a recognition that, up until the time of the incident, there was nothing remarkable about the way in which the work was performed such as to stick in the mind and it was work with which the team had become very familiar. I also accept that Mr Harrison acted on an assumption about the isolation of the circuit and that conclusion is supported by what he told Mr Glass shortly after the accident. 303 To the extent that they are relevant to the particulars of the alleged breach, I am unable to accept the defendant's submissions as to the content and effect of this conversation with Mr Cowderoy in the stairwell. Mr Browne's view that the blue wire had an old break is also difficult to accept as expert evidence and it could not be excluded that the break had occurred following the accident during the attendance of representatives from Energy Australia and the opening and closing of this switch. Ultimately, these aspects of the controversy are unable to be resolved and the Court is left in the position of reviewing the system of work as against the particulars of the charge in order to determine whether or not any breach occurred. 304 Much attention was paid to what was said to be overheard by Mr Mihail at some time before the incident. The Court has been urged to reject that evidence and to draw certain inferences on the one hand and on the other hand, has been urged to accept that evidence as indicative of failures by Mr Cowderoy to adopt safe isolation procedures. In relation to these matters and to a lesser extent in relation to other matters going to the defendant's system, Mr Mihail's evidence was, from time to time, contradictory. In relation to the hotly contested issue of what was said in the stairwell and the surrounding circumstances just before the time of the incident, the Court finds itself in the position where no proper finding could be based upon the evidence of Mr Mihail because of contradictions and occasional assumptions within that evidence. As to the evidence of other employees, it was evident that this type of work had become very familiar to them during the six months or so that they had been engaged on the up-grade project. There were differences at the sites and some assumptions made, although in some circumstances it appears that employees did not apply the provisions of the NECA booklet, namely, that the starting point was to assume that everything was live. The familiarity with this type of work led to some imprecision in the evidence about the detail of the work undertaken at the Marrickville Exchange and while this was understandable, it is unsafe on the basis of that type of evidence to make some of the findings or draw some of the inferences urged by the parties. Ultimately, the focus of the Court has been on the system of work, instruction and training and how that system found to exist in the workplace compared with the systems that the defendant said should have applied and safe systems adopted by the defendant from standards and codes such as the NECA booklet. 305 Notwithstanding the reservations expressed in paragraph 283 of this judgment and although the Court declines to make a number of the specific adverse findings sought against individuals, the Court does accept the thrust of the prosecution case based on the details of the defendant's system of work, its failures to give effect to appropriate safety procedures and its failure to adequately train and instruct its employees in relation to procedures, the use of testing devices and in relation to general isolation techniques. 306 The significance of the Method of Procedure document in the defendant's system was highlighted by the reference to preventative measures as set out in the NECA booklet that was provided to each employee. The MOP itself in laying down step-by-step guidelines of the procedures required that, at the start of every day or a change of location, a job review was to be conducted by all employees at the site and, during that review, discussion of the MOP was to take place together with the safe work method procedures and any new risk identified was to be discussed and recorded in the defendant's risk assessment form. 307 In the Occupational Health and Safety Rehabilitation plan the defendant noted that its safety handbook provided directions on specific electrical safety matters as well as essential information on general safety issues in that it was the responsibility of all staff from the time of their induction into the company to be constantly aware of and to comply with the company's safety directions. Those directions were to be monitored by foremen and supervisors and, where it was established that employees had not complied with the procedures, they would need to undergo re-induction: consistent breaches of safety would result in employees being removed from the work area. The efficacy of these provisions was severely undermined when documents such as the MOP, the safety plan and the safe work method/procedures statements were not kept on site and were not issued to each employee. The requirement to reinforce the safety system and safety procedures contained in those documents was rendered next to useless when those documents were read only once at the beginning of the project and were not regularly revisited at the various sites at which the work was to be performed. Under the safety plan the safe work method/procedure documents were to be issued: in mid-June 2002, some 16 separate documents had been issued dealing with installation of new work in existing switchboards, installation of light fittings, installation of exit and emergency lighting and procedure and electrical alterations. These were the procedures that were to be followed at the sites where relevant: compliance with these procedures ensured the safety of employees. 308 All the matters referred to above are also relevant to particular (a)(ii) namely the failure to ensure that the MOPs, the Occupational Health and Safety Plan and the Safe Work Method/Procedures Statements were being followed by employees, including Mr Cowderoy and Mr Harrison. As already observed, the absence of these documents on site, the failure to provide the documents to each employee and the failure to have them available for the purposes of toolbox meetings and risk assessment discussions at work sites undermined the capacity of the defendant to ensure the safety of its employees at these work sites and inhibited the reinforcement of those procedures in the working environment. 309 Quite apart from the difficulty of reinforcing and obtaining adherence to safety procedures brought about by the defendant's failure to have those procedures on site, the evidence showed that many aspects of the safety procedures were not being followed at the Marrickville site. The most fundamental of the procedures that were part of the defendant's written system but not enforced on the Marrickville exchange site were the need for there to be a prior identification of the circuitry before the work commenced and the requirement for a proper and effective risk assessment of the site which would involve that step as an essential element. A further departure was the failure to ensure the use of danger tags and circuit lockouts, both being required under the defendant's safety procedures. I accept Mr Glass's evidence in this respect that the use of electrical tape with a name written on that tape was not in compliance with the defendant's procedures nor was it compliant with industry standards for reasons referred to by Mr Glass. Danger tagging involved the clear identification of the person working on the circuit, put other members of the team on notice of that fact and who was to be contacted if there was a need to reactivate that circuit. Mr Bright who, in every respect, performed the supervisory duties whether as a supervisor or as a Project Manager, said he usually arranged for tags to be available in the material that went to each site but, despite his inspection of the Marrickville site, he failed to notice that there were no tags available or in use. On the evidence, a lockout device was used by the defendant in other parts of its operation but was not used in this project. The use of the lockout device meant that there could not be any accidental or inadvertent re-energising of a circuit. While Mr Glass' evidence can be accepted as producing the safest system for locking out using tags and lock-out bolts, I accept the defendant's submission that the evidence does not disclose an exposure to the risk of electrocution at the Marrickville Exchange work site because of the approach adopted using tape rather than tags. This team had worked together for some time and although their evidence was that such tags and lockout devices were available from the defendant for other jobs, it appeared to be the practice not to make them available at the Marrickville site or usually during the upgrade project, an omission from the usual system that was unexplained. Despite the employees using tape to identify circuits that were isolated and being worked upon, there is no evidence that system amongst this work team caused any confusion or left anybody in doubt as to the purpose of the tape which was much less substantial than tags: indeed, it appears that the tape was recognised in every respect as indicating all the dangers that would be identified by using a tag. In those circumstances the use of tape instead of tags does not establish a breach of the Act. There was no issue about the effectiveness of "lock bolts" and their omission at this Exchange was inexplicable. 310 A proper and effective risk assessment before work commenced would have identified unusual aspects in the exchange, such as where a switch was energised by two different distribution boards on different floors. It would be a necessary part of this task to identify all the circuits and their distribution boards: this task was actually undertaken but was completed at the conclusion of the work on a particular site rather than at the commencement of the work. There was no reason offered why it could not have been done at the beginning of the work which was the requirement of the contract and the defendant's procedures in any event. 311 There is force in the prosecutor's submission about the inadequacy of Mr Bright's response to the requirement to ensure a safe work place and he gave the impression of leaving that task primarily to the experienced electricians employed on each site. He had only vague knowledge of industry codes and safety requirements and was unaware whether certain steps under the defendant's procedures were followed, such as reviewing MOPs at each site and at toolbox meetings and checking whether the procedures statements were discussed at job review meetings. Mr Bright accepted that part of his duty was to ensure that employees had a copy of the procedure statements but he was not aware that they did possess such documents. He was not aware of his responsibility under the safety plan nor had he been asked to read it. He did not recall asking employees what equipment they had or did not have. He did not check that they had the right equipment to test circuits and he did nothing to ensure that they maintained the test equipment. He accepted that the MOP 007 was relevant to the work on the exchange project but he had not enquired of employees how they identified circuits to isolate them. There was nothing in the electrical markup plans that identified the relevant circuits or distribution boards. Mr Bright did not believe that there had been a previous visit to the site as contemplated by the contract documents prior to his visit on 14 January 2003. He was in a position whereby the procedures laid down by the defendant could have been enforced so as to ensure the safety of employees at the Marrickville exchange. 312 It is to be noted that the contract specifications required a risk assessment to be undertaken for working on, amongst other things, switchboards. There was a requirement for there to be an identification of potential hazards and for that identification to be documented with MOPs being submitted to the superintendent. The defendant's nominated safety officer was to monitor working conditions and ensure that all MOPs were followed. In addition, the defendant had to comply with its own and Transfield's safety policies and procedures. Under the defendant's documents, not only were MOPs to be provided and to be kept at the worksite at all times but there was to be no deviation from the procedures contained within the documents without approval. Under the defendant's safety plan it was the responsibility of all staff to be constantly aware of complying with the company's safety directions. The managers and supervisors were to ensure safety directions and safety obligations were complied with and foremen and supervisors were to personally check and monitor that safety procedures were adhered to. The project manager was to ensure that the Occupational Health and Safety Plan was implemented and adhered to and further developed and was to ensure that all site employees were familiar with all site safety procedures. Under the plan, the safety procedures were to be kept current and it was to be ensured that revised procedures had been issued. The safe work procedure register stated that risks assessments were to be read in conjunction with the NECA booklet. 313 Despite these provisions, Mr Novak said that he did not receive any document from the defendant regarding the site document and no documents were provided at the toolbox meetings, including the step-by-step instruction documents. Mr Mihail said that the procedures were available on site but he did not have access to them and it is therefore difficult to know how he knew they were on site. Contrary to Mr Novak's evidence, Mr Mihail said that work method statements were discussed at toolbox meetings and that Mr Cowderoy had said that there were documents for every type of work available. However, Mr Mihail stated that no one checked on him to see if he was working in accordance with the procedures. Therefore, there appears to have been no safety audit conducted by the defendant's supervisors. Although Mr Mihail said these procedures were available, he assumed that the circuit he was working on had not been turned back on when the procedures and the NECA booklet said that employees were only to make an assumption that a line was alive. Mr Harrison could not recall being given the NECA booklet and said he had no such booklet in his possession and it appears that nobody from the defendant checked with him in relation to this matter. He did not recall being provided with procedure updates such as MOP 007. Having regard to all these matters, the breaches alleged in paragraph (a)(i) and (ii) are made out. 314 Particular (a)(iii) alleges a failure by the defendant to ensure the use by its employees of adequate electrical circuit isolation techniques. Although there are points of intersection and inter-relationship between many of the particulars, it is appropriate to consider this particular with particular (a)(v), that the defendant failed to ensure that comprehensive electrical circuitry investigation and identification was undertaken prior to the commencement of electrical installation work, and particular (a)(vi), a failure to ensure that a comprehensive site-specific risk assessment of the exchange was conducted prior to the commencement of electrical installation work. 315 In relation to investigating the electrical circuitry prior to the commencement of work, Mr Bright did not believe it was part of the defendant's duty prior to the commencement of work to produce drawings of distribution boards from which different lighting circuits were fed and he had never produced site confirmed work drawings before the commencement of work prior to Mr Cowderoy's death. The defendant's MOPs required the identification of switchboard locations and that they be drawn on the plans provided. The defendant took the view that this was done either during the course of the work or at the end of the work, but the evidence of Mr Glass is accepted that distribution board and circuit identification relevant to this work had to be identified before work commenced in order for there to be an effective risk assessment that would identify unusual aspects of work such as a circuit being connected to more than one power board and at different locations within the site. However, under the terms of the contract documents, drawings were to be produced for each floor identifying the distribution boards and which circuits were fed by them: all drawings were to be noted up and to be sent to the superintendent "prior to commencement of work". The obligation to ensure that all risks and hazards specified at the work site were identified prior to the work being commenced was required by the low voltage code of practice. This requirement was also picked up by the safe work method procedure statement 007 issued by the defendant although it is unclear whether that document ever came into the hands of Mr Cowderoy but certainly did not come into the hands of the work team at the Marrickville Exchange. The defendant submitted that a safe system was ensured by investigation of the circuits in the course of performing the task, but nevertheless prior to working on a circuit. This approach however merges the important consideration of circuit identification and risk assessment with the performance of the job and turns risk assessment, in particular, into piecemeal tasks - an approach that does not ensure safety. As earlier stated, I accept the evidence of Mr Glass that, while the Code allows work to be segmented in some circumstances, the Code nevertheless was designed to operate in different circumstances and the specific conditions of a site had to be considered. That is why Mr Glass concluded that, in the context of this site with its circuitry unidentified as to its distribution board source and with some switches powered by more than one board, compliance with good electrical practice and the Code required prior identification of the circuitry and a risk assessment prior to the upgrade work commencing as was required and recognised by the terms of the contract. 316 A site specific risk assessment being undertaken prior to the commencement of installation work was also laid down by the NECA booklet that the defendant issued to its employees and required them to adopt in performing their duties as electricians. The booklet envisaged work method statements being developed by the employer, the supervisor and the work team before a job started. In the course of this exercise, the particular risks of the site had to be considered. In addition, the specifications of the contract required risk assessments to be undertaken. Mr Bright conducted a walk through of the site on 14 January 2003 to identify hazards which resulted in the battery room being the only hazard identified. Mr Bright did not consider it part of his role to identify particular hazards involved in electrical installation: it was up to an individual employee to conduct such risk assessments. This approach left the employees to their own devices and did not require the individual employees to discuss the hazards with each other so that they were all aware of the identified risks, especially since they often worked alone as well as in teams of two or more. 317 The NECA booklet set out isolation procedures to be followed but allowed for site specific isolation procedures to be established. A guideline directed employers to consult with employees in developing a safe system of work but demanded that electrical safety principles were to be strictly adhered to. All test equipment was to be in good working order and to be approved by appropriate inspection and testing. Employees were to assume that all electrical gear was alive. However, Mr Novak gave evidence that he was never instructed by the defendant on how to use a volt stick or was made aware of its limitations. Mr Mihail said that no one from the defendant had asked him about his test lamps or had checked if they were in good condition. Mr Harrison did not adopt the usual practice of checking SW1 by turning it on to see if the light went on and in other evidence said that he would have assumed that S24 and S23 were on the same circuit but he did not know, even though the NECA booklet allowed only one assumption to be made and that was all electrical gear was alive. Mr Harrison also worked on the basis that generally lights in exchange wells were on the same circuit but his obligation was to make no such assumption. These serious departures from safe practice procedures were not detected by the defendant nor were adequate steps taken to ensure compliance with the variety of safety rules that had been adopted by the defendant under the contractual provisions for the upgrade project as a means of ensuring the safety of employees. 318 It is also clear from the evidence that there was a failure to discuss the circuitry with the employees at toolbox meetings prior to the commencement of work. In the work being performed by Mr Harrison on the day of the accident, he made assumptions about the circuitry but the relevant procedures and codes referred to in the evidence laid down a process of circuitry identification which eliminated any assumption and established with certainty that a circuit was dead. Mr Bright's vague knowledge of the codes and procedures meant that, at a supervisory level, there was no active overview of procedures actually being undertaken in the workplace. The particulars specified in (a)(iii), (v) and (vi) are established against the defendant. 319 Particular (a)(iv) alleged a failure to ensure that employees, when connecting electrical circuits, followed a technique of connecting such circuits in a sequence resulting in the load side being connected first and the power source being connected last. This particular is of significance in the work being performed by Mr Cowderoy immediately before he was electrocuted when he was assisting in passing a cable into the conduit with Mr Harrison. This principle was encompassed within the defendant's safe work method procedure and, in particular, procedure No 526. It was also a practice endorsed by Mr Glass as an appropriate safe practice where active wires were to be connected. Mr Mihail, although aware of the principle, had not been instructed by the defendant to adopt it and it must be assumed that he either did not receive procedure No 526 or if he did receive it, he did not recall this part of its direction. Mr Mihail thought it was up to each individual how he went about this work and he was not checked upon to ensure he was following the procedure. It is difficult to understand how he reached that conclusion if this simple principle was an approved method of work that the defendant had reinforced with its workforce through its supervisors, risk assessments and enforcement of safe practices on the job, including toolbox discussions. Mr Harrison, however, was not aware of this principle or rule and had received no such instruction for the defendant. He was not following this principle when connecting the red wire at SW1. The failure in this particular is established. 320 In relation to the training and instruction charge, much of the material already considered in relation to the systems of work charge is relevant. A considerable part of this aspect of the charge is focused upon the failure to provide adequate training and instruction to Mr Harrison in relation to the content and application of the safe work method procedures statement for the project, the use of the volt stick and the use of techniques for connecting electrical circuits in a sequence that resulted in the load side being connected first and the power side being connected last. 321 Although Mr Harrison had qualified as a licensed electrician in 1993, after a four year apprenticeship, and had commenced employment with the defendant in 1999, he did not undergo any induction training conducted by Transfield or Telstra before commencing on the project in July or August 2002. Before starting work on the project he had read through the safe work method statements for the project with Mr Cowderoy but was not supplied with any written material by the defendant concerning safety in the workplace for electricians and had not been provided with documentation concerning codes of practice for working on low voltage work or any document setting out safe methods in tagging circuits. He could not recall being provided with a copy of the NECA safety guide and had no such document in his possession. Having read all the safe work method statements at the first on-site meeting with Mr Cowderoy, Mr Harrison did not read them again and was not given a copy of them and he was only able to recall their content in a general way. He did not recall any discussion about the work method statements nor was he quizzed by Mr Cowderoy or anybody else about his understanding of them. Mr Harrison did not know what happened to the safe work method statements after the first meeting, or where they were kept. He did not seek access to them again and was unaware of any updating of those statements during the six months he worked on the project. 322 At every site, there was a walk through with the drawings to see what work was involved: those drawings were kept by Mr Cowderoy. The walk through allowed the team to familiarise themselves with the exchange and the work that needed to be done. However, those drawings contained no identification of circuitry or the placement of the distribution boards. Mr Harrison did not return to those documents for any purpose. Daily toolbox meetings were not conducted. Mr Harrison stated that his work at the Telstra Exchange was supervised by Mr Cowderoy who was the leading hand but Mr Cowderoy did not supervise by looking at the way in which Mr Harrison was carrying out his work. There were times he was given specific instructions on how to do a job: at other times he was given no instructions. He was never instructed to visually trace conduit. By January 2003, Mr Harrison had a procedure that he followed on a daily basis but he had not refreshed his memory through the defendant about the contents of the safe working procedures. He was not aware of any procedure or rule that required him to connect the load end first and then the supply end, nor did he recall being instructed or otherwise informed by the defendant about this approach. He understood that such an approach meant that he would connect the circuit from the light back to the distribution board. He was not doing that when he connected the red wire to SW1 on the day of the accident and at the time he did not believe that to be contrary to instructions he had received. 323 Before commencing work with the defendant, Mr Harrison had worked in a number of areas including telephone exchanges, during which work he dealt with circuits, distribution boards and light fittings and was called upon to identify circuits upon which he was working. The practice he followed in identifying circuits was to ascertain what the circuit did and to isolate that circuit by visual inspection and test the cable prior to working on the circuit. He described that practice as turning the circuit breaker off to find out if it was the one operating the light he proposed to work on and, if it was the relevant circuit breaker, he would tape it off and work on that circuit. Mr Harrison could not recall how he was taught to identify circuits but he understood this was the best way to perform the task. While this evidence demonstrated Mr Harrison to be a licensed electrician of some years' experience in a variety of work situations including telephone exchanges, it does not follow from such evidence that a trained electrician needed no other training or instruction in the performance of the work. Working with electricity has inherent dangers made more complex when switches, such as those found at the Marrickville exchange, are powered from more than one distribution board on more than one level of the building. 324 The lack of instruction and training provided by the defendant is highlighted by Mr Green's evidence about the work performed by Mr Harrison on SW1. Mr Green was asked to assume that Mr Harrison worked on the circuitry at SW1 on the assumption that the power source for SW1 was the same circuitry as the site at which he had previously been working, namely DB3. Mr Green expressed the opinion that such a conclusion could not be maintained if Mr Harrison had undertaken a proper inspection of the circuits and wiring in respect of light fitting L1. If there had been a properly documented risk assessment performed before working on the switch, such a conclusion would not have been formed or assumed by Mr Harrison. Mr Green was also asked to assume that Mr Harrison had removed the cover on the T piece near the landing. Mr Green was of the opinion that this wiring clearly indicated that the source of the power to L1 (to which the conduit led) came from below the T piece which lead to the ground floor and thus to DB2. Any inspection of the conduit leading from SW1 towards the ceiling clearly demonstrated a T junction leading back to DB2 which would also indicate that the source of power was DB2. Mr Green accepted that there were many conduits in this area that may have led to some confusion, underlying the necessity for a prior risk assessment to be undertaken. This evidence also shows deficiencies in the method of circuit identification. 325 The purpose of safe work procedures, training and instruction is to ensure that over familiarity does not lead to the making of assumptions about the circuitry or variations in the way in which the work might be performed. By being effectively left to himself, it was open to Mr Harrison to adopt approaches not necessarily adopted by other members of the team, including Mr Novak who was not a licensed electrician. Mr Mihail knew about the principle, for instance, of connecting electrical circuits in sequence from the load end to the power source but, in his work at the exchange, he did not regard it as being necessary although it was part of the formal procedures endorsed by the defendant. This is a particular example of how work practices can evolve amongst even quite highly trained tradesmen that are not in accordance with codes and procedures and are not safe practices or practices that ensure the safety of a work site where a team is working on electrical fittings. 326 The defendant's reliance, as outlined in its submissions, on the engagement of skilled and licensed electricians raises an issue of the significance of such an engagement for an employer and the duty cast upon the employer under the Occupational Health and Safety Act and in particular under s 8(1). The Court, in dealing with this aspect of its jurisdiction, has had cause to comment on that or similar approaches. For example, in Inspector Covi v The Crown in Right of the State of New South Wales (NSW Police) [2004] NSWIRComm 128, Boland J dealt with a prosecution involving a police officer struck by a vehicle whilst engaged on roadside speed detection duties. At [44] his Honour stated: [ 44 ] It is fair to say that in relation to the safety of Mr Johnson and Mr Hartley on 18 May 2000 the defendant relied almost wholly on the skills and experience of these two men acquired over their time as police officers. As Inspector Evans acknowledged in his evidence, there was risk associated with stepping onto a roadway in order to stop a vehicle but it was something officers had "to manage as best they can". It could not be said that there was any system of work in place that was directed to or had an emphasis on safety. Further, it could not be said that there was any adequate information or instruction issued by the defendant to these two officers that would ensure their safety in carrying out duties where they were permitted to step onto the carriageway for the purpose of signalling drivers to bring their vehicle to a stop on the roadside. Equally, there was no evidence of any adequate training directed to carrying out their roadside speed detection duties. [45] The system of work relating to safety may properly be described as 'skeletal' and as Haylen J said of such a system in Inspector Kenneth John Barnard v Rail Infrastructure Corporation (2001) 109 IR 209 at [109], it 'is not a provision of system at work at all and is certainly not the provision of a safe system of work'". His Honour also observed at [107] 'It is difficult to accept that a system that leaves to employees, even trained employees, to look after themselves can be described as a 'safe system of work'. 327 In Inspector Ching v Bros Bins Systems Pty Ltd and anor [2004] NSWIRComm 197, Marks J was dealing with a prosecution concerning a workshop auto electrician fatally injured while repairing an industrial rubbish truck in circumstances where there were no specific instructions as to the manner of carrying out repairs. Of this situation, his Honour stated at [32]: [32] In complying with their obligations under the Act the defendants are required to be vigilant and to exercise foresight in all aspects of the work environment. This requires a structured, systematic approach to safety in everything which is touched by the operations of the defendants. It is not enough to endeavour to comply with these obligations on an ad hoc basis looking at particular matters from time to time. It is not enough merely to employ competent and skilled employees, because they can sometimes become complacent, careless or inattentive, especially while working under pressure. Also, the employment of competent and skilled employees does not necessarily mean that a structured and systematic approach to occupational health and safety matters has been created. Employers are required to actively assess and take account of all risks which might foreseeably arise. Systems need to be created to deal with these risks and, to the extent possible, eliminate them. Employees need to be instructed and trained to apply those systems. The employer needs to assess from time to time whether those systems are working and whether employees are following them. This involves supervision. 328 To similar effect was the statement of Staunton J in Morrison v GPR Engineering (Central Coast) Pty Ltd [2003] NSWIRComm 56. At [35], her Honour stated: [35] Counsel on behalf of the defendant submitted, in effect, that Mr Welsh was an experienced and skilled employee and should have known better than to do what he did on the day in question. That may well be so but one has to be mindful of what this Court has had to say about employers' obligations notwithstanding what one might call the rather impulsive and on occasion, negligent behaviour of employees. I refer particularly to the decision of Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: 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. 329 As was stated in Coombs v Patrick Stevedore Holdings Pty Ltd [2004] NSWIRComm 77, a defendant cannot ensure the safety its employees by leaving it to the employees how they performed the work and what system of safety is to be adopted. That decision is in line with a number of cases dealing with the railways such as Inspector Barnard v Rail Infrastructure Corporation (supra) where there was a system of leaving certain aspects of the work to employees who were both experienced and skilled. In WorkCover Authority v Hedrick t/as Graeme's Fine Finishes (unreported - 9 April 1998), Marks J stated that the fact that a person had long experience or expertise in carrying out the work would not be determinative of whether there had been compliance with the obligations imposed by the Act: the obligation under s 8(1) persisted despite the apparent expertise or experience of the employees engaged. The Court on numerous occasions has also emphasised that an employer's duty under s 8(1) or its equivalent under the 1983 Act was not delegable and could not be shifted to employees: this principle remains applicable whether the employees are experienced, skilled or, as in this case, licensed. In order to meet the requirements of s 8(1), systems of work must be "coherent and systematic" so that all employees performing work for the employer can properly understand what is required of them (see WorkCover Authority (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [78]. In Fletcher Constructions, the following passage from Cullen v State Rail Authority (1989) 31 IR 207 at 209 was adopted: In order to ensure a system was safe as required by s 15, it was necessary for it to lay down and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident that occurred in the present case. 330 While the Court, in cases like Inspector Haynes v CI&D Manufacturing Pty and anor (1994) 60 IR 149 has warned against the inappropriateness of introducing common law tests into a statute imposing an absolute obligation on employers to ensure the health and safety of its employees, it is nevertheless of interest that, even under the common law, it is no answer to allege that an employer's workforce is comprised of skilled men well aware of the dangers involved in the work and as capable as the employer to devise and take necessary precautions (see Mason J in Raimondo v State of South Australia (1979) 23 ALR 513 at 517-8 adopting Lord Reid in General Cleaning Contractors v Christmas (1953) AC 180 at 193-4). 331 More recently, in Inspector Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] NSWIRComm 277, the Full Court, on appeal, was faced with a workplace injury that had occurred in circumstances where there was no system of training available for the particular work and the injured worker and those working with him had long experience in the process involved and probably were better informed about the proper performance of the work than the employer. Nevertheless, the Full Court noted that at first instance the Magistrate had found that the system relied solely on the experience and expertise of the two workers. In this situation, the Full Court stated at [58]: [58] ... The evidence in this regard was that neither worker had during their thirty years of experience in the saw milling industry any formalised training or instruction. Apparently formalised training does not exist in the industry. The respondent management, his Honour found, did not have the experience necessary to assess the appropriate size of a flitch for cutting on the bench saw. Management therefore left such matters solely to the discretion of the workers. The evidence is unclear as to the level and depth of any informal "on the job" training the workers may have received while employed in the industry. A lengthy period of service, however, in a particular industry does not, without more, support an inference that the workers received adequate training, instruction and information which would have enabled them to approach their work safely. Equally, a lengthy period of service could result in the adoption and entrenchment over time of unsafe work practices. ... [61] Similarly, the system revealed in the evidence in the present proceedings at first instance was that all decisions regarding the procedures for operating the bench saw were left to the discretion of the workers. In addition, as well as having sole responsibility for making those decisions, in the absence of any input from management, it would appear that the decisions were made without the benefit of any training, instruction or information that could have facilitated safe decision-making in the context of undertaking what were potentially hazardous tasks. [62] ... his Honour's consideration of Particular (b). His Honour appears to have been attracted to the proposition that an experienced employee is capable of unilaterally making decisions which will ensure his or her own safety and the safety of others. This has never been acknowledged as the correct approach in this jurisdiction to occupational health and safety matters: see WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [41]-[43] . 332 Although the factual situation is different in the present case, the principle as set out in the cases cited, remains applicable. The defendant in the present proceedings cannot discharge the obligation under s 8(1) of the Act to ensure the safety of its employees, by leaving it to the employees what methods they adopt in performing the work simply because they are experienced and skilled and in this case mostly licensed electricians. It is necessary for all employers, including the defendant, to be vigilant and to take all practical precautions to ensure the safety of its employees in the workplace and employers are to be vigilant in their search for, and elimination of, risks to employees' safety that occur in their workplace. 333 In relation to particular (b)(ii) alleging the defendant's failure to provide adequate training or instruction to Mr Harrison in the use of voltage testing devices and in particular the volt stick available at the Marrickville site, it is to be recalled that the NECA booklet, usually made available by the defendant, in Ch 6 dealing with electrical safety stated that the basic principles set out in that chapter were to be strictly adhered to and were necessary to ensure the safety of each employee and every person at the workplace. Chapter 6 dealt with energising and de-energising power sources and in part repeated earlier instructions about isolating procedures which involved the step of testing to ensure a circuit was safe before working on it. The booklet instructed that employees were always to regard conductors, switch gear and electrical apparatus as being alive until proved dead by means of approved test lamps, suitable indication devices or volt meters. Test equipment was to be in good working order immediately before and after use and, where practical, was to be approved by appropriate inspection and testing. The defendant's safety procedure spoke of isolation procedures and not permitting work to commence until it had been proved that the power had been disconnected by means of approved test lamps, suitable indication devices or volt meters. The procedure laid down was for the switchboard to be switched off and a danger tag fitted, the connection of an appropriate circuit breaker, the testing of the circuit to ensure it was all clear and the removal of the danger tag when reinstating the supply. This approach was repeated in a number of the relevant safe work method procedures. Essential aspects of this direction were not followed at the Exchange. 334 In his evidence, Mr Harrison made no mention of the training he had received in qualifying as an electrician in the use of testing equipment, including voltmeters or volt sticks. In working for the defendant at the Telstra sites, Mr Harrison was required to provide his own equipment which was basically everything he needed to perform the work. He was not provided with a list of required tools and there was no inspection of the tools he used. He did not recall the defendant conducting any inspection to test whether the equipment was suitable or properly maintained. In his equipment, he had test lamps but did not have a volt stick. It was hard to use test lamps at a switch and, because they were working as a team, if he needed a volt stick, he was able to borrow it from other team members. For the six months he worked on the Telstra exchange he did not own a volt stick but, when he did use that device, he did not recall reading the instructions on the use of the stick or reading a danger warning and he was not aware of any dangers associated with the use of the volt stick prior to Mr Cowderoy's accident. He had not been instructed by the defendant on the method of testing volt sticks. He had not been informed by the defendant that the volt stick did not work in all circumstances and did not recall a warning on the side of the volt stick stating "Danger, does not detect voltage in all circumstances". The evidence established that the volt stick used on SW1 had the warning written upon it and that it was common for such a warning to appear on volt sticks. Mr Harrison, however, denied that the volt stick he used on the day of the incident carried that warning but it was no longer in his possession and had been given to the police. At the time he was using the volt stick, Mr Harrison said he had never been warned about the use of volt sticks and he had no reason to believe that they were other than reliable for testing. 335 At the time of the accident, Mr Harrison had brushed the volt stick over S1. He had not tested the volt stick to determine whether it was working and he did not recall anyone from Stowe instructing him at any time as to the method of testing volt sticks before relying on them. Mr Harrison understood that the best method of testing of volt sticks to see if it was working was to put in on something he knew was alive - he had used that method in the past to test a volt stick. Mr Bright was not aware that volt sticks did not work in all circumstances and assumed that testing devices commercially available were essentially suitable and effective for the task. He was unaware of reservations about the use of volt sticks and did nothing to ensure employees maintained their testing equipment. Mr Mihail was not warned about the reliability of volt sticks and no one from the defendant checked his volt stick to see if it was properly charged. 336 The procedure for testing such devices was set out in the code of practice for low voltage electrical work and Mr Glass gave evidence that the procedure was: to test for a positive reading to ensure that the apparatus was working; to test the required circuit; and, to retest the apparatus for a positive reading. Under the NECA booklet, the defendant's work procedures and relevant codes referred to above, the use of testing equipment such as a volt stick was an essential part of the process of isolation of a live circuit and an essential checking mechanism to ensure that the isolation steps taken were effective before work was performed on that circuit. The defendant submitted that, in relation to the volt stick used by Mr Harrison at the time of the accident, it could not be ruled out that there was an intermittent fault with the test stick, thus having the potential to deceive Mr Harrison as to the state of the circuit. The evidence does not allow such a possibility: the volt stick was tested on the day and tested much later and worked on every occasion. The defendant appears to rely on a mere possibility of intermittent failure but there is no evidence to support a finding that rises above mere conjecture: indeed, Mr Glass stated that there was no known test for intermittent failure as it was usually only an issue of battery strength or lack of proper contact. Further, it is of no advantage to the defendant that it allowed a possible faulty volt stick to be used in the course of this work and undertook no testing of the equipment to ensure the safety of its employees. The allegations contained in particular (b)(iii) are made out. 337 Particular (b)(iv) alleges a failure to provide adequate training or instruction to employees, in particular Mr Cowderoy, Mr Mihail, Mr Novak and Mr Harrison, in relation to electrical circuit isolation techniques. The evidence shows that, despite the defendant's procedures and adoption of NECA guidelines, there was no enforcement and no training or instruction about identifying the circuits before work commenced. Much of the evidence and findings made in relation to the particulars in part (a) of the alleged breaches by the defendant are relevant to this matter. The one-off reading of the procedures for this project (without revisiting those procedures) left the working team to either memorise all of those procedures and requirements or to adopt their own isolation techniques. Mr Harrison said that he was not instructed by the defendant about methods of circuit identification nor had he been told about visual tracing of conduits to reveal the relevant circuit breaker. Mr Harrison did not consider it necessary to re-check a circuit, especially one on which he had been working for some time, to see if it had been re-energised. They were not instructed in relation to the appropriateness of using lock-out devices on circuits on a project that involved often confusing circuitry. The defendant argued that the authorship and features of codes and standards relied upon by the prosecution had not been proved. This submission ignores the evidence of Mr Glass and the fact that the defendant's own documented system relied on standard codes and the NECA booklet to the same effect. The breach alleged in this particular is made out. 338 As earlier mentioned there was a considerable overlap between the various particulars and hence there is a good deal of repetition in dealing with the submissions and conclusions in relation to each particular. Both parties adopted the course of generally addressing the issues but not in the order as particularised in the charge. This approach, unfortunately, resulted in a most time consuming exercise in identifying what was submitted by each party in relation to each particular. In these circumstances many of the submissions that were previously summarised were not repeated when finally dealing with each of the particulars: all submissions were, however, given consideration. 339 Finally, it was submitted by the defendant that if the Court was satisfied the elements of the charge had been made out it should, nevertheless, conclude that a defence had been made out under s 28(a) and (b). It was submitted that as to s 28(a) there were no practical measures demonstrated that would have avoided any real risk and thus it could be comfortably found that there was nothing reasonably practicable that Stowe could have done to ensure the employees' safety. It was accepted that the onus of demonstrating a defence provided for by s 28 was the civil onus but it is an onus borne by the defendant. The defendant is required to prove that it was not reasonably practicable to comply with the provision or that the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable to make provision. The defendant's submission as to s 28(a) made no reference to the evidence nor did it set out to prove by analysis of the evidence that the defence was made out. Having regard to the way in which the particulars have been dealt with, it is the defendant's own system (especially as arrived at in the measures agreed in the contract to be applied to the upgrade project) that have failed to be maintained and enforced in the work place that have led to the various particulars being established. These are the practical measures that should have been maintained and enforced and there is no suggestion in the evidence that these measures were not available to the defendant: indeed, they were measures that were often applied in its other projects. 340 As to the alleged defence under s 28(b), the submissions focused upon the accident and asserted that if there was a conviction then it can only be as a result of a mistake and a mistake made for reasons which are obscure and apparently committed by qualified, experienced and careful tradesmen doing their ordinary and familiar work. It was then submitted that, in those circumstances, it could be readily found that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impractical to make provision. Again, there is no analysis of the evidence to support that assertion and to discharge the onus borne by the defendant. The submission continued the error of focusing upon the accident and not the particulars. The content of the findings against the defendant demonstrates that it did have control over the causes of the breach and it was practicable to take measures against the happening of those matters. Further, in relation to both limbs of the defences, the defendant does not explain how the defences are made out when the defendant took a number of steps after the accident to address the risks exposed by the circumstances of this accident. 341 The particulars, as previously indicated and confined, are established and the defendant is found to be in breach of s 8(1) of the Act. The defendant has failed to discharge its onus in relation to the s 28 defences. The parties are to contact my Associate within 14 days in order to set down a hearing for the purpose of receiving evidence and submissions on sentence. ANNEXURE AGREED FACTS AS TO CIRCUITRY There is no dispute about the configuration of the lighting circuitry within the stairwell where SW1, L1 and S15 were located. The circuitry configuration is represented by the schematic diagram depicted in Ex. Z. The following features are noted: (a) There was a light switch located in the stairwell on the ground floor at the base of the stairs. It has been referred to throughout the proceedings as SW1. It was a single gang two-way switch and controlled a light mounted to the wall above the landing half-way up the stairs between the ground floor and the first floor (L1). (b) Prior to the new red permanent active being connected to the common terminal within SW1 by Mr Harrison, there were three (3) cables inside the switch, specifically, two yellow strap wires and one existing red permanent active. The red permanent was connected to the common terminal and formed part of a circuit that was connected to CB1 DB2N via wall-mounted conduit that ran vertically from SW1 to a T-piece then as part of a conduit network to DB2N. DB2n was located on the ground floor opposite the MDF. CB1 DB2N was the same circuit which was used in respect of S8. (c) The two-yellow strap wires ran vertically from two other terminals in SW1 in the same conduit as the red permanent active past the first t-piece directly above SW1 then, via conduit to a light switch in the stairwell on the first floor of the telephone exchange, adjacent to the window and directly opposite the door to the equipment room. The conduit ran via the ceiling of the stairwell. (d) The light switch in the stairwell on the first floor was a double-gang light switch, meaning that it had two switch mechanisms within the same switch housing. The yellow strap wires from SW1 were connected to terminals for the switch on the left hand side of the switch housing (SW2L). (e) A blue wire is revealed as SW2L in photographs taken on 15 January and 23 January 2003. This blue wire ran from SW2L to L1. It was known as a switched active wire, that is when SW2L was on, it supplied power to L1. When SW2 was off, the blue wire was dead. (f) The effect of the circuitry between SW1, SW2L and L1 was that L1 could be switched on and off by either SW1 or SW2L. There was no red permanent active connected directly to SW2L; none was necessary. L1 was powered by CB1 DB2N. (g) The new emergency light fitting (S15) that was being installed directly beneath L1 at the time that Mr Cowderoy died, was being connected to the same circuit that powered L1. However, while on the same circuit, L1 was supplied by the switched active and the new emergency fitting (S15) was supplied by the unswitched or permanent active drawn up from SW1. (h) The switch on the right-hand side of SW2 (known as SW2R) controlled L2, a fluorescent light hanging from the ceiling of the stairwell above the first floor landing. The circuit for SW2R was CB17 DB3E. DB3E was located in the equipment room on the first floor. There was a permanent active running from the common terminal in SW2R to CB17 DB3E. (i) L2 was on the same circuit to which fitting S25 was being connected. Mr Cowderoy was working on S25 shortly before he was electrocuted. (j) A black neutral and a bare earth wire ran from L1 to the T-piece and down towards SW1. This was revealed when the plate over the T-piece was taken off. 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.