Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153 PROSECUTION: WorkCover Authority of New South Wales (Inspector Woodington) PARTIES: DEFENDANTS: Australand Holdings Limited Sassall Glass & Joinery Pty Limited FILE NUMBER(S): IRC 1174 & 1175 of 2005 CORAM: Staunton J CATCHWORDS: Occupational health and safety - pleas of not guilty - defendants submitted crane had actual capacity to lift weight and no risk to safety arose - rated and actual capacity of the crane considered - expert evidence considered on that issue - held known rated capacity at time of lift was WLL of 400kg - crane lifted well in excess of that - potential risk to safety arose - worker's safety lanyard not attached to static line at time of fall - considered by defendants not required as inside safety fence line and no risk to safety arose - WorkCover Code and relevant Safe Work Method Statements considered - held in all the circumstances, given the way the work was performed, retractable lanyard required to address risk to safety - held degree of duplicity in the way a number of particularised failures were pleaded - held offences arising under s 8 of Occupational Health and Safety Act 2000 absolute subject to statutory defences available - common law exculpation of honest and reasonable mistake of fact not applicable having regard to defences arising under s 28(a) and (b) of the Act - notion of reasonable foreseeability of risk in relation to defences arising under s 28 of the Act - offences found proved in relation to a number of particularised failures - penalty and costs to be determined. Crime Amendment (Sexual Offences) Act 2003 Crimes Act 1900 (NSW) Evidence Act 1995 LEGISLATION CITED: Health and Safety at Work etc Act 1974 (UK) Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health, Safety and Welfare Act 1986 (SA) Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (2004) 135 IR 317 Adler v Australian Securities and Investments Commission 46 ACSR 504 Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Limited (Unreported, FCA, 31 July 2002) Cahill v State of New South Wales (Department of Community Services) (No. 3) [2008] NSWIRComm 123 CTM v The Queen (2008) HCA 25 (11 June 2008) Cullen v State Rail Authority of NSW (1989) 31 IR 207 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 Genner Constructions Pty Limited v WorkCover Authority (New South Wales) (Inspector Guillarte) (2001) 110 IR 57 Haynes v C.I and D Manufacturing Pty Limited (1994) 60 IR 149 Italo Australia Construction Pty Limited v Parkes (1988) 24 IR 428 Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156 Kirk v Workcover Authority of NSW (2006) 66 NSWLR 151 McMartin v Broken Hill Proprietary Co Limited (1988) 100 IR 241 Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) (2001) 102 IR 84 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 CASES CITED: Morrison v Powercoal Pty Limited and anor (2004) 137 IR 253 Powercoal Pty Limited v Industrial Relations Commission (New South Wales) (2005) 145 IR 327 Proudman v Dayman (1941) 67 CLR 536 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 St Hilliers Contracting Pty Limited v WorkCover Authority (NSW) (2007) 162 IR 241 Shannon v Comalco Aluminium Limited (1986) 19 IR 358 Slivak v Lurgi (Aust) Pty Limited (2001) 205 CLR 304 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354 Velevski v The Queen (2002) 76 ALJR 402 WorkCover Authority of New South Wales v Abigroup and anor (2003) 126 IR 11 WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 WorkCover Authority of New South Wales v Fletcher Constructions Australia Pty Limited (2002) 123 IR 121 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited [2004] 135 IR 166 WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Limited and Domenico Hans Christian Vullo [2006] NSWIRComm 316 HEARING DATES: 9/10/2006; 10/10/2006; 11/10/2006; 12/10/2006; 13/10/2006; 16/10/2006; 21/5/2007; 22/5/2007; 23/5/2007; 24/5/2007; 4/2/2008; 5/2/2008; 6/2/2008; 7/2/2008; 31/7/2008 and 1/8/2008 DATE OF JUDGMENT: 26 August 2008 PROSECUTION: Mr J Agius SC and Mr P Skinner of counsel SOLICITORS: WorkCover Authority of NSW Legal Group DEFENDANT - AUSTRALAND HOLDINGS LIMITED: LEGAL REPRESENTATIVES: Mr H Dixon SC and Mr A Gotting of counsel SOLICITORS: Minter Ellison DEFENDANT - SASSALL GLASS & JOINERY PTY LTD: Mr G Hatcher SC and Mr R Moore of counsel SOLICITORS: Maguire & McInerney JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM : Staunton J DATE: 26/8/2008 Matter No IRC 1174 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited Prosecution arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 1175 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Sassall Glass & Joinery Pty Limited Prosecution arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [ 2008] NSWIRComm 153 1 In these proceedings, both defendants have entered pleas of not guilty to the respective offences charged. 2 On 29 March 2003, both defendants were involved in undertaking building construction work on a commercial development site at Homebush Bay Drive, Rhodes in New South Wales. 3 Australand Holdings Limited (Australand) was the head contractor overseeing the building project. Sassall Glass & Joinery Pty Limited (Sassall) was Australand's principal sub-contractor on the project for the manufacture and installation of curtain wall panels in the building under construction. 4 Sassall sub-contracted the installation of the curtain wall panels to Skyrise Installations Pty Limited (Skyrise). A director of Skyrise, Mr Domenico Vullo, was actively involved in overseeing the installation of the panels. 5 In order to do the installation work, Skyrise had a number of employees working on the building site. One of them was Mr William Hill. 6 The installation of the panels involved a process of utilising a crane to lift each panel into place. On 29 March 2003, while operating the crane and in circumstances to be further elaborated upon, Mr Hill fell some 15 metres off the edge of one of the buildings under development. He was severely injured. 7 Arising from the above incident, a number of charges were laid including the ones now before me. Skyrise was charged with an offence arising under s 8(1) of the Occupational Health and Safety Act 2000 (the 2000 Act). Likewise, Mr Vullo, as a director of Skyrise, relying on the deeming provisions of s 26(1) of the Occupational Health and Safety Act 2000. 8 Both Skyrise and Mr Vullo entered pleas of guilty to the offences charged and have been dealt with by me. See my judgment in Matter No IRC 1173 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Limited and Matter No IRC 1204 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Domenico Hans Christian Vullo in [2006] NSWIRComm 316 delivered on 4 October 2006. Australand 9 In relation to Australand, the offence charged alleges that on 29 March 2003, the defendant, being an employer, at a site known as Rhodes Corporate Park, 1 Homebush Drive, Rhodes, New South Wales, failed, contrary to s 8(2) of the Occupational Health and Safety Act 2000: to ensure that persons other than it's employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installations Pty Ltd, to engage in the installation of curtain wall panels in circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate system of fall protection: [1] The defendant was at all material times the head contractor for the building project. [2] Sassall Glass & Joinery Pty Limited (Sassall) was the defendant's principal sub-contractor for the manufacture and installation of the curtain wall panels. [3] Skyrise Installations Pty Limited (Skyrise) was Sassall's sub-contractor for the installation part of that sub-contract. [4] The defendant failed to ensure that Sassall provided or maintained a safe system of work for installing the curtain wall panels (the panels) in that Sassall failed to ensure that the weight of the panels was properly and accurately identified and communicated to Skyrise. [5] The defendant failed to ensure that Skyrise provided or maintained a safe system of work in that Skyrise failed to ensure that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. [6] The defendant failed to supervise the employees of Sassall with a view to ensuring that the weight of panels was properly and accurately identified and disclosed to Skyrise. [7] The defendant failed to supervise the employees of Skyrise with a view to ensuring that the employees of Skyrise knew about the correct weight of the panels or that weight of the panels did not exceed the WLL of the crane. [8] The defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Sassall or Skyrise to eliminate or minimise the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. [9] The defendant failed to ensure that Sassall or Skyrise provided or maintained a safe system of work for working at heights in that Skyrise failed to ensure that William Hill, an employee of Skyrise, had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights. [10] The defendant failed to ensure that Sassall or Skyrise provided or maintained a safe system of work for working at heights in that Sassall or Skyrise failed to ensure that William Hill was using appropriate fall protection equipment (such as a retractable lanyard) when the safety fence was open or when he was moving the crane close to the edge of the building. [11] The defendant failed to ensure that William Hill was adequately supervised either by its own employees or Skyrise or Sassall in relation to having appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. Sassall 10 In relation to Sassall, the offence charged alleges that on 29 March 2003, the defendant, being an employer, at a site known as Rhodes Corporate Park, 1 Homebush Drive, Rhodes, New South Wales, failed, contrary to s 8(2) of the Act: to ensure that persons other than it's employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installations Pty Ltd, to engage in the installation of curtain wall panels in circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate system of fall protection: [1] Australand Holdings Ltd (Australand) was at all material times the head contractor for the building project. [2] The defendant was the principal subcontractor for the manufacture and installation of the curtain wall panels. [3] Skyrise Installations Pty Ltd (Skyrise) was Sassall's sub-contractor for the installation part of that sub-contract. [4] The defendant failed to provide or maintain a safe system of work for installing the curtain wall panels (the panels) in that it failed to ensure that the weight of the panels it supplied to Skyrise was properly and accurately identified and was communicated to Skyrise. [5] The defendant failed to ensure that the employees of Skyrise were properly supervised by its own employees or the employees of Skyrise or Australand with a view to ensuring that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. [6] The defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Skyrise or Australand to eliminate or minimise the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. [7] The defendant failed to ensure that Skyrise provided or maintained a safe system of work for working at heights in that Skyrise or Australand failed to ensure that William Hill, an employee of Skyrise, had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or failed to ensure that he was using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. [8] The defendant failed to ensure that William Hill was adequately supervised either by its own employees or Skyrise or Australand in relation to having appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. Relevant principles 11 Section 8 of the Occupational Health and Safety Act 2000 encompasses the duties and obligations of employers arising under the Act. In doing so, s 8(1) deals with employees and s 8(2) deals with people (other than the employees of the employer). 12 It is stating a general principle long established that the provisions of ss 8(1) and 8(2) and their statutory predecessors have been held by the authorities of this Court to impose an absolute liability on an employer subject to s 28 which provides for a defence in certain defined circumstances: Italo Australia Construction Pty Limited v Parkes (1988) 24 IR 428 at 431: Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359. See also: Cahill v State of New South Wales (Department of Community Services) (No. 3) [2008] NSWIRComm 123 in particular [149]-[291] where this issue was extensively considered by Boland P in relation to the 2000 Act. 13 The principle of absolute liability as applied under the Act has been the subject of recent judicial consideration by the New South Wales Court of Appeal in Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156 delivered on 3 July 2008. It was an issue raised in final submissions by counsel on behalf of Sassall. I will refer to it in more detail later in this judgment. 14 The absolute duty imposed requires an employer to provide a workplace free of risks to safety. As the Full Court of the Industrial Court of New South Wales expressed in Haynes v C.I and D Manufacturing Pty Limited (1994) 60 IR 149 at 157 stated: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace . (emphasis added) 15 As in all criminal matters, the nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the employer's failure beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated: Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v Broken Hill Proprietary Co Ltd (1988) (unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. 16 As the above extract emphasises, not only is the prosecution put to proof of the offence and all its elements but it must establish a causal connection between the alleged conduct of the defendant and the alleged risk to safety. 17 In relation to offences arising under s 8(2), the prosecution must establish beyond reasonable doubt a causal nexus between the breach and the risk to the person not in the defendant's employ. This point was emphasised in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 where a Full Bench of the Court stated at 449: However, a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injury to employees of the defendant is not sufficient in itself to prove the commission of an offence under s15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a causal relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees. 18 On that point see also: McMartin v Broken Hill Proprietary Co Limited (1988) 100 IR 241; Cullen v State Rail Authority of NSW (1989) 31 IR 207 at 209; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 and Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 at 156-157. 19 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecution to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt. 20 As stated in Haynes v C.I & D Manufacturing at [15], the risk to safety is one that has 'created a situation of potential danger to the health and safety of persons at his workplace', not an actual incident causing an injury. Also see Drake Industrial v WorkCover Authority of NSW at 452 where it was stated: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 21 The Occupational Health and Safety Act 2000 does not define what is meant by risk. However, s 7 of the Act provides some assistance in that risks arising out of the activities of persons at work includes risks attributable to: (a) the manner of conducting an undertaking, or (b) the plant or substances used for the purposes of an undertaking, or (c) the condition of premises (or any part of premises) used for the purposes of an undertaking. 22 The above provisions would seem to do little except state what authorities of this Court have long established, that is, for risk to be established, it must arise out of or be attributable to the overall conduct, including plant and equipment, of the employer's undertaking. 23 Persuasive authority on this issue is the decision of the English Court of Appeal in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 where it was held at 1177 that in the context in which it appeared, the word 'risks' conveys the idea of a possibility of danger rather than actual danger. 24 The prosecution relevant to the above appeal decision was framed under s 3(1) of the Health and Safety at Work etc Act 1974 (UK). That provision creates a duty on an employer to ensure, as far as is reasonably practicable, that relevant persons are not 'exposed to risks to their health and safety.' 25 While the employer's obligations are not cast in the absolute terms of the New South Wales legislation with which I am concerned, it seems to me that in the context of applying the employer's obligations not to expose people to risks to their health and safety, there are parallels with the critical objective of the New South Wales legislation, that is, obviating potential risks to safety in the workplace. 26 The approach taken in R v Board of Trustees of the Science Museum when considering the proper approach to the notion of risk in the Occupational Health and Safety Act 2000 has been referred to with approval by a Full Bench of this Court in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (2004) 135 IR 317 at [58]. 27 The concept of 'risk' was considered in some detail by Walton J, Vice-President in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited [2004] 135 IR 166 and particularly at [133]-[135] where his Honour stated: [133] It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges: Police Service (No 2) and O'Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation. [134] The Full Court stated clearly in Drake Personnel that the concept of "reasonable foreseeability" does not apply to the duty imposed by s15. What of risks which are impossible to anticipate, speculative or unduly remote? The decision of Peterson J in WorkCover Authority (NSW) v Dubavo (unreported, Industrial Court, NSW, Peterson J, CT1247/1249 of 1993, 24 July 1995) that there can be no failure on the part of an employer to obviate a risk which was impossible to anticipate may be characterised as an elaboration of the requirement to establish causation. The same could be said of risks which are merely speculative as distinct from those risks which are real and appreciable (see Drake Personnel at 452 - 453). If a risk is impossible to anticipate or is entirely speculative it will be very difficult to prove causation to the criminal standard. [135] The theoretical and authoritative bases for distinguishing "unduly remote" risks are somewhat unclear and may be examined by the Court at some later date. The distinction is difficult to reconcile with the forceful judicial pronouncements on the absolute, proactive nature of the duty extracted above, such as the Court's observation in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 that the duty is not confined to taking precautions only where there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen" and the observation of Hill J in Atco Controls Pty Limited that "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace" (emphasis added). "Remote" risks must fall within the duty imposed by the Act (otherwise, it would be meaningless to extend risks beyond those which are reasonably foreseeable) and the question then centres upon whether the word "unduly" introduces a qualitative difference to justify exclusion from the broad duties imposed by ss15 and 16 of the Act or alternatively whether, as anticipated in the previous paragraph, the issue would be decided on a case-by-case basis by reference to causation. Elements of an offence arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000 28 As the statutory predecessor to s 8(2) of the Occupational Health and Safety Act 2000, the legal elements of offences charged under s 16(1) of the Occupational Health and Safety Act 1983 were considered by the Full Bench of the Court in Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) (2001) 102 IR 84 at [12] as follows: In Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994), Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s16(1). These we paraphrase as follows: [1] the defendant was an employer; [2] there were persons not employees exposed to risks to their health and safety; [3] the risk arose from the conduct of the defendant's undertaking; and [4] the exposure to risk was at the defendant's place of work. 29 In WorkCover Authority of New South Wales v Abigroup and anor (2003) 126 IR 11 at [273] Kavanagh J reaffirmed the above elements and added: There is a further element to the s 16(1) charge. The prosecution must prove beyond reasonable doubt there is a causal nexus between the breach and the risk to the person not in the defendant company's employ. 30 I would concur with the further element as identified above. Witnesses 31 Those persons called by the prosecution were as follows: · Inspector John Gjaltema Inspector with the WorkCover Authority of New South Wales. Inspector Gjaltema attended the Australand worksite on the day of the accident, 29 March 2003. · Inspector Clive Woodington Inspector with the WorkCover Authority of New South Wales and the prosecutor in these proceedings. Inspector Woodington first attended the accident site on 14 May 2003. · Ashley Keith MacCue Mr MacCue was employed by Skyrise as a window installer at the time of the accident. He was located on level two of what was known as Building B. His responsibility was to connect the curtain wall panels to the chain that came out of the winch operated by Mr Church. · William Carl Martin Hill Mr Hill was employed by Skyrise to assist in the installation of curtain wall windows by operating the crane in a manner later to be described. He was working in that capacity on the fourth floor of the Building B when he fell 15 metres to the ground. · Mathew Richard Church Mr Church was employed by Skyrise on the day of the accident as a leading hand window fixer. He was in overall charge of the crew responsible for the installation of the curtain wall panels in the manner undertaken. He was operating the electric winch on the third floor at the time of the accident. In performing his work, he was assisted by Mr Josh Scully. · Steven William Sargent. Mr Sargent was the Managing Director of All Safe Lifting Equipment Pty Limited. It was the company responsible for issuing a Certificate of Test and Examination in relation to the crane used to install curtain wall panels by Skyrise employees on the day of the accident. · Domenico Hans Christian Vullo Mr Vullo is the Managing Director of Skyrise Installations Pty Limited. He has held that position since May 1997 and was on the worksite on the day of the accident. · Gregory James Linehan Mr Linehan is the Managing Director of Progressive Glazing Services Pty Limited and Fabricated Glazing Pty Limited. Fabricated Glazing Pty Limited was sub-contracted by Sassall to glaze, palletise and then deliver completed curtain wall panels to the Australand worksite in order to be installed by Skyrise. · John Maxwell Murphy At the relevant time, Mr Murphy was employed by Sassall as the Project Manager responsible for the installation of the curtain walls and windows on the development site. He was not present at the worksite on the day of the accident. · Robert Scott McGregor At the time of the incident, Mr McGregor was employed by Australand as Occupational Health and Safety Coordinator on the development site. His responsibilities included advising management of the project on occupational health and safety matters, conducting occupational health and safety training and inductions and reviewing work methods. He was present at the worksite on the day of Mr Hill's accident and observed it from the floor of an adjacent building. · Ernest Braun Mr Braun was employed as a service technician by Bedlex Engineering Pty Limited. In 1998, the company undertook work and issued a test-load certificate for the crane used by Skyrise employees on the day of the accident involving Mr Hill. · Jonathan O'Brien An expert witness for the prosecution. Mr O'Brien is a consultant and Senior Lecturer at the School of Civil and Environmental Engineering, University of New South Wales. 32 In addition to a significant amount of documentary material, the prosecution also tendered a statement of Mr Ian Fisher. Mr Fisher was employed by Australand as a general foreman at the time of the accident. His statement confirmed the installation by Australand of safety fencing approximately 2.1 metres from the edge of the building as well as the installation of the static line around the perimeter of the building on each level. 33 No witnesses were called to give evidence on behalf of the defendants but an amount of documentary material was tendered, particularly on behalf of Australand, that will be referred to as considered relevant. Relevant background facts and circumstances 34 The building site under construction consisted predominantly of three buildings. The buildings were designed to be approximately five levels high and were of a concrete slab and column design with curtain walls. As described and not disputed, curtain walls are a form of non lode-bearing cladding generally comprised, as was the case here, of prefabricated panels connected to the structural members of a building in order to form its external facade. 35 Further, the curtain wall panels for the buildings on this particular development site consisted of glass sheets enclosed in an aluminium frame. As earlier referred to, Sassall, who was responsible for the construction of the frames, preassembled the panel frames at its factory in Wollongong. It in turn sent them to a company, Fabricated Glazing Pty Limited (Fabricated Glazing) in Silverwater, who glazed, palletised and delivered the completed curtain wall panels to the site, ready for installation by Skyrise. As I understand it, when the pallets were delivered to the worksite, they were then lifted up by a crane and stored within the building to be installed along the outside of the building on each level. 36 At the time of Mr Hill's accident, the Skyrise employees were installing the wall panels on the eastern elevation of Building B. They had earlier installed the panels on the northern elevation of that building. In commencing work on the eastern elevation, the first row of panels to be installed were what was known as 'starter panels'. They were the largest of the panels manufactured by Sassall and installed by Skyrise up to that point of the development. 37 There were a number of different sized panels manufactured by Sassall for this particular development project. The largest of those panels measured 4.9 x 2.4 metres. The next biggest size was 3.7 x 2.4 metres and there were panels measuring 4.9 x 1.2 metres and 3.7 x 1.2 metres - the latter two sizes of panels being installed in front of the vertical columns of the building. 38 The panels installed on the northern elevation of Building B prior to moving to the eastern elevation did not include the largest starter panels that were being installed on the eastern elevation at the time of the accident. 39 As would be self evident, the weight of the panels varied according to their size. The largest of the panels (4.9 x 2.4 metres) weighed approximately 480kg and the panels measuring 3.7 x 2.4 metres weighed approximately 385-387kg. The weight of the smaller sized panels is not known and is not relevant in these proceedings. 40 The crane being used by Skyrise to install the curtain wall panels was what I would describe as a regulation crane, yellow in colour. In the Certificate of Test and Examination issued by All Safe Lifting Equipment in December 2002, the crane is described thus: 1 Static Floor Crane Tare 1051kgs 1.5 x 1m x 1.6m high at 'A' frame with adjustable arm. 41 The crane had a jib and the jib of the crane was supported, in part, by the A frame structure. The jib was a sliding jib and had two positions identified for the purposes of its use, position 1 and position 2. In position 1 the jib was extended to 1150mm and in position 2 to 1800mm. In position 1, the crane was stated in the All Safe Certificate as having a Proof Load of 500kg and a Working Load Limit (WLL) of 400kg. In position 2 the Proof Load was 310kg and the WLL 250kg. 42 At the time of the accident, the jib was in position 1. In that position, the jib bore a marking in black lettering on the arm of the jib of WLL 400kg. An additional marking of BH1 also appeared on the jib and on a blue plate attached to the crane. There was also a silver metal tag on the crane bearing the marking 12-12-02 Tare 1051kg. 43 There were counterweights attached to the back of the crane comprising six metal plates. 44 In order for the crane to be somewhat mobile, it was welded to a pallet jack. It had four wheels - two at the front and two situated close together at the back. That enabled the crane to be moved forwards and backwards. In order for the operator to do this, a handle was attached to the bottom rear section of the pallet jack between the two lugs of the crane. In order to put the crane on its wheels, the operator would pump the handle up and down a number of times. In order to lower the crane onto its feet, the operator would release the pallet jack by pressing a trigger on the handle of the pallet jack. As would be apparent, when it was on its wheels, the crane was moved by pulling or pushing on the handle of the pallet jack. There was no brake on the pallet jack. 45 As already described, the wheels on the crane allowed it to move in a forward and backward direction. However, when the crane was required to be moved laterally, another pallet jack was utilised at right angles to the crane and the crane was moved to its next position for placement as it moved along the floor of the building to lift adjoining curtain wall panels. This lateral movement of the crane was also undertaken by the operator of the crane as required. The use of a pallet jack to laterally move the crane was not utilised whilst the crane was lifting a curtain wall panel attached to its hoist. 46 One of the matters of considerable concern to me in this matter is that when the accident occurred, WorkCover Inspectors immediately attended the worksite. They saw the damaged crane on the ground adjacent to the building from which Mr Hill fell and took a number of photographs. However, no actions were taken by WorkCover to secure the crane for further forensic examination, including measuring, weighing or testing. The operation of the crane and its weight lifting capacity was clearly a significant factor grounding the offences subsequently alleged against the current defendants. Its failure to be retained is, in my view, a significant failure on the part of WorkCover Inspectors to secure vital evidentiary material. As it was, all parties, including the prosecution, have only had access to photographs taken at the time the crane was on the ground as well as reference to certain documents relating to the crane in order to reach some of the conclusions that have been placed before me. On any view, this is an unsatisfactory situation for all parties, particularly the defendants, to be in, particularly having regard to the arguments that ensued before me relating to the actual capacity of the crane. 47 To lift the panels to the desired position on the external facade of the building, Skyrise utilised the crane earlier described together with the relevant employees located on levels two, three and four of Building B on the eastern facade of that building. 48 By way of understanding and for assistance with the description of the procedure that was adopted, reference should be made to annexure A to this judgment (exhibit 19) which diagrammatically illustrates the location of the Skyrise employees on levels two, three and four of Building B in the process of installing the curtain wall panels. As will be observed by reference to that diagram, Mr MacCue was on level two, Mr Church and Mr Scully were on level three and Mr Hill was on level four with the crane. 49 There is no dispute between the parties as to the procedure that was adopted by Skyrise employees in lifting the panels. Using annexure A for assistance, I set out the procedure in the manner described. 50 In setting out this procedure it is relevant to note that prior to the accident to Mr Hill, this was the procedure that Skyrise had followed in installing approximately some 5000 curtain wall panels on other development sites in Sydney and elsewhere. In short, the procedure adopted could fairly be said, at the time, to reflect industry practice. Further, up to the time of Mr Hill's accident, the procedure adopted by Skyrise employees to install curtain wall panels had not given rise to any problems. 51 While the procedure adopted by Skyrise was a well established one, it was a procedure dictated by the capacity of the crane and the weight of the panel to be lifted. As Mr Vullo explained: Q. Did you make a decision about the capacity of your crane to lift what you had been told was a section of curtain walling or a panel weighing a maximum of 380 kilograms? A. Yes, I did. Q. What decision did you make? A. We had two options of different types of equipment to use. One was the lifting frame that was involved in the accident. The other option was a Walkie Reach with a jib attachment. Q. A what? A. A Walkie Reach. It is a forklift that you stand behind and operate in a standing position. We, prior to the job starting, we have that sort of equipment on site and we have it de-rated which means that we let the company know what sort of equipment we are going to attach to it and they basically let us know what is the maximum load we can lift with that revamped equipment so we had the two types of equipment on the job and with the information that I was given I believed that the steel frame that we used that was involved in the accident was adequate to lift those panels. 52 In relation to this incident, the capacity of the crane and the weight of the panels being lifted were critical issues canvassed at length. I will return to the issue in due course. 53 Having regard to the above and by reference to annexure A, the procedure adopted by Skyrise employees was as follows: (a) Skyrise employees were placed on the levels of the building as per annexure A; (b) The crane (with winch, chain and chain bucket attached) was placed on level four of the building; (c) At the beginning of the procedure, the crane was placed on its wheels and was moved by Mr Hill close to the edge of the building on level four such that the jib of the crane in position 1 extended beyond the edge of the building. The winch, chain and hook hung down the outside of the building. In order to undertake that procedure, Mr Hill removed a section of the safety fence that was approximately 2.1 metres from the edge of the building. At this point, Mr Hill was attached by his lanyard to the static safety line; (d) Once that was done the crane was placed on its feet; (e) The crane itself had a hook at the end of the boom and connected to that hook was a winch. The electric winch then had a control running off it operated by Mr Church standing on level three. In operating the winch control, Mr Church could cause the winch to take up or let out chain. He communicated with the other Skyrise employees on levels two and four by two-way radio; (f) At the beginning of the procedure, each panel to be lifted was placed in a horizontal position on two wooden trolleys on level two - one trolley at one end of the panel and one at the other end. The panel was laid on the trolleys with the external side of the panel face up; (g) Each panel had two lugs and two hooks attached to its head transom (top) - one lug and one hook on either side of the transom; (h) The winch was lowered by Mr Church on level three to level two. Each hook of the panel to be lifted was then connected to a chain which in turn was connected to an O ring and then to the hook of the crane hoist. This was done by Mr MacCue; (i) The panel was then brought to the edge of level two. When that was done and the signal given by Mr MacCue, Mr Church, operating the winch of the crane, would raise the hook of the winch, lifting the front end of the panel off the front trolley which would then be pulled out of the way by Mr MacCue. The panel would then slowly be raised into the vertical position until it was hanging perpendicular to the side of the building and approximately 1200mm out from the edge of the building. At this point, it would hang suspended from the tip of the boom, vertical and in alignment with the edge of the building with the external face of the panel facing inwards. At that point, the panel would be hanging vertically outside the building adjacent to level two; (j) The panel was hung vertically outside the building adjacent to level two for a small period of time; (k) It was then necessary to rotate the panel to ensure the external face of the panel was facing outwards. This was done by hand with each panel rotated 180 degrees by the workers on levels two and three of the building; (l) In relation to the panel being installed at the time of the accident, the boom of the crane from which the curtain panel was hanging needed to be at least 1200mm beyond the edge of the building in order to accommodate the width of the panel which was 2.4 metres wide being turned on its axis; (m) The worker on level three of the building, in this case Mr Church, would then electrically operate the winch to raise the wall panel to the desired height in order to install it into the brackets on the building; (n) When that was done, Mr Church would advise Mr Hill by two-way radio that the panel was ready to be drawn in towards the side of the building. At that point, Mr Hill would raise the crane on its wheels by pumping the handle of the pallet jack whilst standing at the rear of the crane; (o) In order to bring the crane closer to the edge of the building, Mr Hill would pull the crane backwards in a straight line from the edge of the building towards the centre of the building with Mr Hill on level four. In doing so, he would end up approximately 3 to 3.5 metres from the edge of the building; (p) When pulling back the crane, a point was reached where the length of Mr Hill's lanyard, attached to the static line, prevented him from pulling the crane further into the building. At that point, Mr Hill would leave the crane on its wheels and carefully move forward and unclip his lanyard from the static line. He then resumed his position behind the crane and continued pulling the crane inwards until told by Mr Church to stop; (q) Mr Hill would then lower the crane to its feet by pressing a trigger on the handle of the pallet jack whilst standing at the rear of the crane; (r) Operating the winch of the crane, Mr Church would, as required, further raise or lower each panel until it was adjacent to the brackets for affixing to the building; (s) Each panel was then affixed to the brackets of the building by the workers on level three. 54 At the time of Mr Hill's accident, the lifting process just described involving the starter panels on the eastern elevation of Building B had been undertaken on some ten occasions without incident. That is, the crane being used by Skyrise and operated by Mr Hill had lifted the 4.9 x 2.4 metre curtain wall panels on ten prior occasions, some on the 28 and the remainder on 29 March 2003. It was in the installation of the eleventh panel of that size on 29 March 2003 that the accident involving Mr Hill occurred. 55 During the installation of the curtain wall panels, the Skyrise employees, and that included Mr Hill, wore safety harnesses attached to a lanyard which was, in turn, attached to a static line secured to the building columns that ran around the perimeter of each of the floors. It was a clear safety requirement, as expressed in the relevant Safe Work Method Statement prepared by Skyrise, that when the employees were working beyond the safety fence line on the side closest to the edge of the building, they were required to have their lanyard attached to that static line. It is not disputed the static line was located approximately 1.2 metres from the edge of the building and the safety fence line was approximately 2.1 metres from the edge of the building. On the day of the accident, the lanyard being worn, particularly by reference to Mr Hill, was a fixed lanyard which was some 1.8 metres in length with a 200mm safety absorber giving an overall length of some two metres. There were longer retractable lanyards available on the worksite if they were required to be utilised that had a greater length of some five metres. 56 It was a requirement and, according to his evidence, the practice of Mr Hill to ensure that his lanyard was hooked up to the static line when he had the crane close to the edge of the building beyond the line of the safety fence. As already stated, in order to undertake his task of initially positioning and then commencing to pull the crane in, Mr Hill had to remove a section of the safety fence. 57 In relation to the accident that occurred on 29 March 2003, the above process as outlined above had been reached whereby Mr Church on level three, using the two-way radio, advised Mr Hill on level four that he could now pull the crane back towards the centre of the building so that the particular panel being lifted would be close to the brackets to which it was to be affixed. 58 It is instructive, I believe, to refer to Mr Hill's words as to what happened at that point: Q. What's the next thing you remember after you've got the crane in its forward position and that you've told the people downstairs it's ready to do its work? A. I could have been at the edge watching them chain it up. I wait until it has been taken out and it has been spun and then I waited for the ready message and then I did as I had previously done the same as the other ones. I had just pulled the crane in toward the building. Q. So you got to the point where you started to pull the crane in towards the building? A. Yes. Q. At that time were you hooked up to the static line? A. Yes. Q. Did you stay hooked up or did you unhook yourself? A. I kept on pulling the crane back until the lanyard would not allow me to keep going back. I then unhooked myself from the static line and went round to the back of the crane again, continued to keep on pulling the crane back and that was when it happened. Q. So as you're continuing to pull the crane back? A. Yes. Q. Using the pallet handle? A. Yes. Q. What happened? A. As you can imagine, the crane with a window on it is extremely heavy. So I am pulling this crane back with all of my force just to get it into position. I just remember, like, pulling it back the same as I had previously done then next thing I've realised, I have noticed the two rear legs on the crane start to come up and because I was still holding on to it so hard I was pulled toward the edge of the building and at that point I shut my eyes. 59 As the above extract from Mr Hill's evidence makes clear, when the accident occurred Mr Hill had unclipped his lanyard from the static line. There was no other fall protection measure in place. Given what occurred, as described by Mr Hill, that fact was clearly the reason why Mr Hill not only fell off the fourth floor but fell 15 metres to the ground. 60 The main reason for Mr Hill unclipping his safety lanyard from the static line was that the length of the safety lanyard he had on was only some two metres. That length was insufficient to allow him to pull the crane sufficiently inwards from the edge of the building. 61 Pursuant to the work contracted to be undertaken by Skyrise, it prepared a number of Safe Work Method Statements. As the evidence disclosed, there were some five relevant Safe Work Method Statements prepared by Skyrise pursuant to its contractual safety obligations on the worksite. Skyrise, in the first instance, supplied the Safe Work Method Statements to Sassall, in particular to Mr Murphy, the Project Manager for Sassall on that site. This was done before Skyrise commenced work on the site. Those Safe Work Method Statements were in turn provided to Mr Robert McGregor, the Safety Coordinator on the site for Australand. Subsequently, on behalf of Skyrise, Mr Vullo had discussions with Mr McGregor about the Safe Work Method Statements provided and again, not disputed, as a result of those discussions, Skyrise made some minor amendments to at least one of those Statements. 62 It was clearly understood that until such time as Australand had approved the Safe Work Method Statements provided by Skyrise, they would not be permitted to commence the work they were contracted to perform on behalf of Sassall. 63 One of the Safe Work Method Statements prepared by Skyrise and subsequently approved by Australand was referred to as Crane Set Up and Use for Panel Installation. That particular Safe Work Method Statement made it a requirement that any employee working outside the safety fence line of the building under construction was to be attached to the static line via their harness and lanyard. That Safe Work Method Statement in relation to crane set up and use for panel installation did not expressly require the crane operator, while pulling the crane back towards the centre of the building and being beyond the safety fence line, be attached to the static line. Relevantly, it was expressed thus: Sequence of Risk Risk each type of work Assessment Class Control Measures to be adopted to eliminate or minimise assessed risks 1, 2 or 3 Step 4 - Fall off the edge 1 - Worker to be inside the safety fence and have both feet on the ground whilst reaching over to attach the lanyard to the safety line. Once attached the worker is to open the safety fence, walk through and close the fence behind him/her. Worker to put harness on and attach oneself to the static safety line 1 - - Worker wearing harness and attached to safety line via lanyard. Step 5 - Worker falling off edge of building 2 - safety fences to be safely stored against a rigid object such as a column or stacked in a pile on the slab floor. Remove safety fence and place in a safe position - stacked safety fences falling over - safety fences to be safely stored away from worker access. - stacked safety fences impeding access way. 3 Step 6 - Crane rolling off building 1 - Placement of steel wheel chock [attached to static line vide lanyard] against previously installed brackets Move crane into position - Crane is lifted by a pallet jack and moved into position. When in position, the crane is lowered onto the slab so that it has all four legs firmly on the slab floor. 64 In addition to the documented Safe Work Method Statements and referring in particular to the one relating to the use of the crane in the panel installation, it is apparent from Mr Vullo's evidence that that Safe Work Method Statement did not necessarily reflect the complete system of work that Skyrise adopted in relation to ensuring a safe system of work for installing the curtain wall panels utilising the crane methodology as earlier described. The additional factors that Mr Vullo also adopted were as follows: (a) Mr Vullo had a general practice of ascertaining the weight of a panel before conducting a lift. For example, before lifting the panels on the northern elevation of Building B, Mr Vullo reviewed the drawings of the panels on the northern elevation, observed the panels personally, estimated the weight of the panels and formed the view that the weight was safely within the lifting capacity of the crane; (b) Mr Vullo understood that the panels on the eastern elevation were larger than the panels on the northern elevation and asked Sassall for verification of the weight of the panels on the eastern elevation. He was given that information verbally by Mr Murphy on behalf of Sassall as being some 385kg; (c) Based on that advice and knowing the WLL of the crane was 400kg, Mr Vullo was satisfied the crane had the capacity to lift the panels safely. 65 Also, prior to the work commencing on site, Australand required Skyrise provide evidence of the testing and certification of the lifting capacity of the crane to Mr McGregor on behalf of Australand. Mr Vullo produced the Certificate of Test and Examination relevant to the crane that had been undertaken by All Safe in December 2002. That Certificate, as earlier stated, certified that in position 1 the crane had a proof load of 500kg and a WLL of 400kg. 66 On behalf of Australand, Mr McGregor confirmed that, when viewing the test certificate he had noted the WLL of the crane. He further stated that, prior to Skyrise undertaking the panel installation on the northern elevation, he had discussed the weight of the heaviest panel that would be undertaken on that elevation. Mr Vullo had no clear recollection of such a conversation but acknowledged that it was a 'possibility' such a conversation would have occurred. 67 In any event, as I understand, the panels on the northern elevation were not as heavy as the starter panels being installed on the eastern elevation at the time of the incident. 68 As well, Australand checked, after Skyrise commenced on site, that the lifting to be undertaken by the crane would occur within its certification. 69 As part of its site induction process, Skyrise ensured that its employees were familiarised with the relevant Safe Work Method Statements including the wearing of lanyards at all times when an employee was working outside the safety fence line. Documentary evidence supports the fact that Mr Hill participated in a work activity induction which would have included reference to the Safe Work Method Statements as well as a site specific induction conducted by Skyrise as well as Australand. In short, there was the induction undertaken by Skyrise, particularly relating to the Safe Work Method Statements and there was a site induction conducted by Australand for all employees coming onto the site, including Mr Hill. Relevant admissions from both defendants 70 On behalf of Australand it was admitted for the purposes of these proceedings that: (a) it was an " employer " on 29 March 2003; (b) it conducted an " undertaking " at a commercial development site known as Rhodes Corporate Park at 1 Homebush Bay Drive, Rhodes, New South Wales (the "Site") on 29 March 2003; (c) Mr Hill was employed by Skyrise Installations Pty Limited ("Skyrise") on 29 March 2003; (d) Mr Hill was a " person other than its employee " on 29 March 2003; (e) Mr Hill was at its place of work on 29 March 2003; (f) it was the head contractor for the building project at the Site on 29 March 2003; (g) Sassall Glass & Joinery Pty Limited ("Sassall") was its principal subcontractor for the manufacture and installation of curtain wall panels for the building project at the Site on 29 March 2003; and (h) Skyrise was the subcontractor of Sassall for the installation of curtain wall panels for the building project at the Site on 29 March 2003. 71 In relation to Sassall it was admitted: (a) Sassall was an employer on 29 March 2003; (b) the worksite where the accident occurred was part of Sassall's undertaking and place of work. 72 On behalf of Sassall, counsel also raised the issue of honest and reasonable mistake in the context of Sassall honestly and reasonably believing that, by employing and engaging Skyrise to install the panels, it had done all that it could reasonably do. 73 When pressed as to whether such a submission was raised within the context of statutory defences under s 28 or as a preliminary point, counsel for Sassall submitted: Your Honour has seen on our list of authorities the recent High Court consideration of Proudman and Dayman and they are keen to say it's not a defence at all, it's a form of exculpation. But the question arises in this case in any event as our submissions make clear. 74 Further, on behalf of Sassall, it was submitted that the reasoning of Boland J, President in Cahill v State of New South Wales (Department of Community Services) was 'flawed' in his conclusion that offences arising under s 8 of the 2000 Act were absolute. Reference in written submissions were made to the High Court decision in CTM v The Queen (2008) HCA 25 (11 June 2008) on this point. I will further consider that point in due course in relation to Sassall. 75 The offences alleged with respect to the two defendants are in relatively similar terms except to the extent of recognising the role of Australand as head contractor and Sassall as a primary sub-contractor on the development site. That is, both defendants are being charged with an offence under s 8(2) of the 2000 Act. Those respective charges particularise a number of failures centring on what I would refer to as weight lifting capacity failures and inadequate fall protection measure failures. In most respects, the arguments raised by both defendants are in a similar vein. Nevertheless, in order to ensure clarity as between the two defendants, I will deal with their respective offence separately. 76 The submissions put by counsel on behalf of Australand in relation to the weight lifting capacity of the crane as well as fall protection were supported and embraced by counsel on behalf of Sassall. In that respect, my findings on this as well as those in relation to the fall protection issues apply equally to Sassall noting only the difference in their respective roles on the worksite as head contractor and principal subcontractor respectively. (1) Australand (a) Alleged weight lifting capacity failures 77 It is alleged the defendant exposed Mr Hill to a risk to his health and safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and, in particular: [4] The defendant failed to ensure that Sassall provided or maintained a safe system of work for installing the curtain wall panels (the panels) in that Sassall failed to ensure that the weight of the panels was properly and accurately identified and communicated to Skyrise. [5] The defendant failed to ensure that Skyrise provided or maintained a safe system of work in that Skyrise failed to ensure that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. [6] The defendant failed to supervise the employees of Sassall with a view to ensuring that the weight of panels was properly and accurately identified and disclosed to Skyrise. [7] The defendant failed to supervise the employees of Skyrise with a view to ensuring that the employees of Skyrise knew about the correct weight of the panels or that weight of the panels did not exceed the WLL of the crane. [8] The defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Sassall or Skyrise to eliminate or minimise the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. 78 The nub of the defendant's contention as to the alleged weight lifting failures is that the actual capacity of the crane was greater than the rated capacity of the crane, that being the WLL of 400kg. In other words, it is the defendant's central submission that, in lifting the curtain wall panels on the eastern elevation on 28 and 29 March 2003, the actual capacity of the crane was greater than the rated WLL capacity of 400kg and, on that basis, no risk to safety arose. 79 The verbal information given by Mr Murphy to Mr Vullo as to the weight of the starter panels on the eastern elevation was wrong. The actual weight of the starter panel being lifted by the crane at the time of the accident was approximately 480kg. To that had to be added the overall weight of the winch, chain and hook. That was estimated to be approximately 30-32kg. When taken together, the actual weight being lifted by the crane at the time of the accident was approximately 510-512kg - considerably in excess of its certified WLL. 80 Based on the evidence, the defendants submitted, the actual capacity of the crane was considerably greater than 400kg. Accordingly, it was contended, notwithstanding that there was an error on the part of Mr Murphy of Sassall in conveying the weight of the panel to be lifted, the weight ultimately lifted by the crane was still within its actual capacity. As such, there was no risk to safety in the operation of the crane at the relevant time. 81 The nub of the defendant's case with respect to the allegation concerning the weight lifting capacity of the crane is that the 400kg marking on the jib of the crane did not represent the actual capacity of the crane and cannot be relied upon. In other words, the defendant submitted, by reference to the evidence produced, the capacity of the crane was in fact significantly greater than the 400kg WLL certified. That stated capacity, it was submitted, was simply a weight specified by Mr Vullo on behalf of Skyrise to Bedlex in 1998 and to All Safe in 2002 and was not a true indication of the actual capacity of the crane. Accordingly, it was contended, reference to the 400kg WLL bears no significance insofar as the capacity of the crane was concerned at the time of the accident. 82 The defendant submitted, based on the evidence, the crane's actual capacity in a static position was in the vicinity of 820kg. The submissions placed before me by Australand point to 400kg as being the rated capacity of the crane versus what they submit was the actual capacity of the crane. That actual capacity, they submit, was far in excess of the rated capacity and the crane was well capable of lifting the weight that it did at the time of Mr Hill's accident. 83 If such a submission is accepted then, it was submitted, there was no risk to safety involved in Skyrise employees utilising the crane in the way that they did on the day of the accident and, accordingly, this arm of the offence must fail. 84 At the time the accident occurred the crane was on its wheels. In my view, it is easily understood that a crane with a particular lifting capacity, when it is static, would have a greater lifting capacity than when it was on wheels. Notwithstanding that, the defendant submits that even though the crane was on its wheels at the time of the accident its capacity, although reduced by approximately 30 per cent, was still safe for its intended use at the time and there was no risk to safety in its use. On this point, the defendant further asserted, the prosecution did not particularise any failing on the part of the defendant relating to the mode in which the crane was being utilised. That is, although the crane was described in the All Safe Certificate as a static crane, at the time of Mr Hill's accident it was on its wheels in a mobile capacity. 85 It is necessary at this juncture to detail the background to the crane that was used during the time of the incident. It was purchased by Mr Vullo on behalf of Skyrise in 1998. At that time, he took the crane to Bedlex Engineering for an amount of work to be done. According to his evidence, he requested Bedlex to 'up the safe working load of the crane and to go over it and ensure that it was structurally sound'. When asked to explain what he meant by that expression, he stated he gave Bedlex a figure as to what he wanted the safe working load of the crane to be engineered to. As he stated: Q. To the best of your recollection what figure did you give Bedlex as the maximum safe working load for that crane? A. 400 kilograms. Q. So you told Bedlex you wanted the crane worked on so that its safe working load would be a maximum of 400 kilograms? A. Yes. Q. Now, we know that this crane had a jib on it so that it could lift weights at one of two lengths of jib, either a short length or with the jib extended? A. Yes. Q. The 400-kilogram maximum safe working load that you spoke of to Bedlex, was that with the jib extended or with the jib retracted? A. Retracted. Q. And did you understand that with the jib extended the safe working load would be less than 400 kilos? A. Yes. Q. And did Bedlex agree to, in respect of this crane, to the task that you wanted them to undertake? A. Yes. Q. Did you have any conversation with Bedlex at any time about adding weights to the crane or strengthening the crane? A. I don't recall specifically but that work was undertaken as part of the reworks to the crane - cranes. Q. So are you saying that Bedlex did undertake some additional structural work to the crane which included adding additional weight? A. Yes. Q. And adding strengthening measures? A. Yes. Q. But you can't recall whether you instructed them to do that specifically? A. I don't recall that. 86 Mr Ernest Braun was called. He was the former director of Bedlex Engineering Service Pty Limited. That company ceased training in or about September 2002. He confirmed that Bedlex had undertaken certain testing and other work on the crane in question in or around October 1998. By reference to photographs and Bedlex documents, he confirmed that one of the cranes Bedlex undertook work on for Mr Vullo on behalf of Skyrise was the crane involved in the incident giving rise to the charges before me. 87 When the testing and strengthening was undertaken by Bedlex in 1998, it issued a certificate detailing the crane's weight lifting capacity and weight tests applied. As well, it issued invoices to Skyrise in relation to the strengthening work undertaken. This documentation was not given to Australand at the time Skyrise commenced work on the site. It only became available during the course of the trial when it was produced by Mr Vullo. 88 Mr Braun gave evidence and provided a statement (exhibit 52) in which he confirmed as follows: [8] Mr Vullo requested Bedlex to do a test to crane identified as JB 100-7. Bedlex stiffened the boom and the extension of the boom. We tested the crane and certified it with a serial No SR 905. SR stands for Sky Rise. [9] Crane No BH1 was modified we added a number of counterweights and stiffened the jib arm and the extension sleeve. We tested loaded this crane with a 750 kg weight in the 1150mm extension. The crane was tested in the static position. [10] The crane was rated at 400 kg in the 1150mm position. Bedlex attached signage to the crane being 400 WLL to the 1150mm extension. [11] The boom extension in the 11500 mm setting was measured from the pivot point of the A frame to the hook centre of the boom. [12] Bedlex included in the test allowance for a 60 kg hoist but the crane was still rated at 400 WLL. [13] Mr Vullo provided the TARE weight indicated on test certificate for BH 1 as 900 kg. We did not weight the crane it was not a requirement for our testing purposes. 89 The subsequent test certificate issued by Bedlex in relation to the crane confirmed that in undertaking the tests, a test load of 750kg at 1150mm had been applied and a second test load of 450kg at a length of 1800mm had been applied. Reference to the respective lengths of 1150mm and 1800mm is reference to the length of the jib. In other words, the jib, for the purposes of lifting, could be locked into a position of a length of either 1150mm or 1800mm. At the time of the accident involving Mr Hill, the length of the jib was 1150mm. Mr Braun confirmed that the testing of the crane would have been done in what he described as the static position. That is, the crane would be sitting on its feet on the floor and not on wheels. In addition, according to the Test Certificate, allowance was made for a 60kg hoist weight. When questioned, Mr Braun said that meant that the total weight lifted for the first test load would have been at least 810kg, that is, 750kg plus 60kg. Further, according to Mr Braun, the test load that was applied to the crane in the static position for the purposes of this testing would have been in the order of five to ten minutes with respect to both test load 1 and test load 2. In undertaking such tests the crane had not failed. 90 In relation to the capacity of the crane as certified by Bedlex, reference is made to the entry on the Bedlex Certificate of MWL 0.4. Further, an entry appears of 400kg at 1150mm and below it 250kg at 1800mm and a 60kg hoist allowed for. Mr Braun was asked as follows: Q. So that the maximum working load that this crane - what did you mean? A. It's the worse case scenario under the duty of use. We then give a maximum working load of 0.4-tonne, which under its worse condition satisfies clearly 450 kilograms. Q. Thank you for that. The next matter I am trying to understand is, what does maximum working load mean in that context? A. You would need to refer to AS 1418.1 and AS 2550.1. Q. Mr Braun, you said I think in the course of an answer there, you may have said 450? A. I simply stated that you have test load 2 on the same test certificate of 450 kilograms, which is the least amount of weight that the device can be used for. Therefore, in even further reduction was 0.4-tonne. So we give a certification for a maximum working load of 0.4-tonne. Q. Hence the reference to 400 kilograms at 1150 millimetres; is that right? A. No. You have 250 kilograms at 1800. Q. I'm asking you about the lines above that. Do you see "capacity"? A. Yes, I saw that. Q. And I am asking you about the reference to the right hand side there? A. Yes. Correct. Q. And I'm not asking you about the 250 kg and 1800, we have dealt with that, and I have moved on. A. Sure. Q. You wrote the letters MWL O.4? A. Correct. Q. Intending them to mean maximum working load? A. Yes. Q. Of 400 kilograms; is that right? A. That's right. Q. At 1150 millimetres? A. Correct. Q. And you also wrote "250 ks at 1800 mms"? A. Correct. Q. What did you intend the maximum working load to be at 1800 millimetres? A. 250 kilograms. Q. When you wrote those entries on this certificate, did you have in mind a maximum working load for this crane as a static crane or an as a mobile crane? A. Always static. Q. So not its maximum working load whilst it was on its wheels? A. It is a static device, it is able to be moved, but it is a static device. If it was a moving device, then SWL applies, which is safe working load, which is for a moving device under the code. Q. You never rated it as a moving device? A. Absolutely not. Q. You never rated it as a device which was intended to move whilst it was under load? A. Absolutely not. 91 The overall position that emerges from the evidence of Mr Braun as well as reference to the Certificates is that the test load capacities applied were in excess of the WLL ultimately certified. By reference to the length of the relevant jib extensions, Bedlex certified a WLL of 400kg at 1150mm. According to Mr Braun, that was certified for the crane, as 'the worse case scenario under the duty of use'. Further, as Mr Braun confirmed, the testing undertaken of the crane was done in a static position. As Mr Braun stated, the crane was a static device and that was the basis on which it was tested. 92 The Bedlex Test Certificates issued in 1998 verifying as to the test loads under which the crane was placed as well as the 'stiffening' work undertaken by Bedlex at that time was relied upon, inter alia, by the defendant to support its ultimate contention that the actual capacity of the crane was far greater than the WLL as certified. 93 It is important, I believe, to re-emphasise that the Bedlex Certificate issued in 1998 in relation to the crane in question was not the Certificate of Test and Examination produced by Skyrise to Australand as part of its requirements preparatory to undertaking the work of installing the curtain wall panels on the Australand worksite. 94 The Test and Examination Certificate relating to the crane that was produced by Skyrise was one that had been issued by All Safe Lifting Equipment Pty Limited (All Safe) in December 2002. Evidence of that testing was given by Mr Steve Sargent who was the Managing Director of All Safe. The actual testing of the crane in question was undertaken by Mr Bruce Lavers, an employee of All Safe Lifting Equipment. However, Mr Lavers is now deceased and Mr Sargent gave evidence that the procedure followed by Mr Lavers was conducted in accordance with their in-house procedure ASPS4. Again, Mr Sargent confirmed that the testing undertaken for Skyrise by All Safe and the Certificate issued was in relation to the crane involved in the incident under consideration. According to Mr Sargent, the static floor crane was proof loaded to 500kg in position 1 and 310kg in position 2. The WLL was specified as 400kg in position 1. 95 Mr Sargent was asked about the markings of WLL 400kg that appeared on the boom of the crane. His evidence on this issue was as follows: Q. If you go back to the certificate. The working load limit is said to be 400 KG at position 1? A. Yes. Q. And the proof load applied at position 1 is 500 KG? A. That's correct. Q. What does that certificate tell you about what happened to that crane in terms of testing? A. In terms of testing we would have lifted a load of 500 kilograms at position 1 where we put the mark 400 WLL would have held that load for approximately five minutes and then lowered and checked it during and after and before to make sure no damage to the frame and that is in a static position. Q. With the crane frame sitting on the ground? A. On the ground. Q. Not on its wheels? A. No, not its wheels. Q. Was there any particular magic in the 500 kilogram, one could do a mathematical calculation, it is 25 percent more than WLL - can you say anything why it was proof load tested at 500 kilograms as opposed to any other weight? A. There are all different ways of testing. Sometimes it is bound by the Australian Standards; it would be a customer requirement based on a discussion when they bring it to the premises to see what they need and also available certified weight. Not being - I can't remember, I can't remember, I was not there on the job but he may still have 500 kilogram weight that we can suspend, we will give you 25 percent safety margin if you need WLL of 400 I assume similar to that one 24 percent he has tried to get that margin for a reason. Q. 310 kilograms is 24 percent? A. That was my workings when I went back through it, that is why it indicates to me it was a request of 25 percent margin. Q. Was the crane actually tested to provide a working load limit of 400 kilograms? A. Yes. Q. How did you get the 400 as a WLL? A. It would have been a request by the customer - they tell us what they need. Q. If a customer said to you I want to be safely lifting 400 kilograms then a proof test of 500 kilograms would be applied? A. It can vary but yes depends on the discussion, weights available, what was the discussion with the customer - if he wanted it to particular Australian Standards, we then read that standard and follow that procedure. Q. This proof load applied of 500 kilograms, where a customer wants a WLL of 400 does that come from any Australian Standard? A. No. 96 Further, Mr Sargent confirmed that the tests that were undertaken on the crane would have been as a static floor crane. When asked if it had been load tested on its wheels and, if so, would there have been additional entries on the Test and Examination Certificate, his response was as follows: A. Most definitely at least the words that there was a certain measurement of movements under load to test to where to test whether it became balanced or not. (sic) Q. So a test of a moving crane of this type if it was tested on wheels would entail a test of the crane as it was being moved? A. Yes in motion. Q. With a load on it? A. Yes. Q. And at that time that you see there no reference to that in the certificate, does that also assist you to say that this crane was not tested as a moving crane? A. Yes definitely it was tested static. 97 Having undertaken the testing as explained, All Safe issued a Certificate of Test and Examination dated 20 December 2002. That Certificate stated, when in position 1 with a boom extension of 1150mm, the WLL of the specific crane was 400kg. WLL 400kg also appeared in large black lettering on the boom of the crane. It was that Certificate of Test and Examination in relation to the crane that was produced by Skyrise and given to Australand. It was also made available to Sassall prior to Skyrise commencing work on the site. 98 Prima facie, it would appear, having regard to the testing and strengthening undertaken by Bedlex in 1998 as well as the testing undertaken by All Safe in 2002, the crane had a capacity, when tested as a static crane, that was greater than the certified WLL of 400kg in position 1 - which is the position the boom was in when the incident occurred. 99 Because of the error in transmitting to Skyrise the weight of the starter panels to be lifted on the eastern elevation, the actual weight the crane was lifting at the time the accident occurred was approximately 510kg. That is, the actual weight of the panel was approximately 480-485kg and not 385kg or thereabouts as verbally conveyed by Mr Murphy to Mr Vullo prior to the incident. Allowance must then be made for an additional 30-32kg for the weight of the jib, the hook and the winch on the crane. That weight was well in excess of the certified WLL of the crane. However, as the defendants highlighted, that weight was not in excess of the weight of the test load to which the crane was subjected by Bedlex in 1998 of 750kg at a boom extension of 1150mm. As well, it was contended, on Mr Sargent's evidence, it was not in excess of the weight the crane would have had the capacity to lift having regard to the All Safe Certificate showing a proof load of 500kg in position 1. Mr Sargent explained in cross examination: Q. By applying the 500, I think you described it as the proof load? A. Yes. Q. That did not mean that that was all that the crane was capable of before it destructed? A. No. It obviously has more capacity or it would have been damaged during the proof load. HER HONOUR: Q. Sorry? A. It must have been able to hold more than 500 KG, otherwise it would not have passed. We put a load on it, if there is any form of movement then it fails, so it is taken out of service and the customer could not use it. Like in an ideal world we would have two of everything and take one until it fails and then we would know the capacity and know we can test the second item, so money rules unfortunately. DIXON: Q. In other words, if you were to actually test the structural capacity of this crane you would continue to add additional weight over and above a 500 proof load? A. You would keep going until you had a failing. Q. Until such time as you observed the structural failure? A. Yes. Q. Your test certificate does not tell you at all what the structural capacity of the crane actually is? A. There is only two ways to tell; you either have to be a structural engineer that deals in these things or keep applying weight until you reached failure. There's only two ways. The customer is not going to ask you to do that do, obviously they can't offer to replace it every day. Q. Is it the case in your experience there would be customers that would have a piece of equipment which is capable of having a capacity of 5 tonne but they only want it raised for say 2? A. That happens every day. An instance of that being, it could be a spreader boom supported by a 2 tonne overhead rate and the crane is capable of 5, but they will rate it at 2 so it doesn't get overloaded and confuse the operators. 100 Further, Mr Sargent confirmed in cross examination that there had been no stability problems with the crane in its being subjected to a proof load of 500kg in position 1. 101 Evidence for the capacity of the crane to be greater than the certified WLL of 400kg was given by Mr Jonathan O'Brien. Mr O'Brien was an expert witness called by the prosecution. That was done to meet the defendants' anticipated defence contentions as to the absence of any risk to safety given their assertions as to the actual capacity of the crane. 102 Mr O'Brien is currently a Senior Lecturer in the School of Civil and Environmental Engineering at the University of New South Wales. He has a Bachelor of Engineering (Hons) Civil from the University of New South Wales and a Master of Applied Science from Toronto. He has asserted expertise in a number of areas and particularly special professional expertise in the field of cranes and heavy lifting and movement systems. As he stated, he has personally undertaken and supervised heavy cranage work and has lectured in this field for a number of years at the University of New South Wales. He has also personally subjected cranes to experimental load tests and, in the process, evaluated them under failure and overload conditions. In doing so, the results of these experimental trials have also been compared with failure values calculated using principles of engineering analysis. He has also been qualified as an expert witness in cranage matters in the Supreme Court and has undertaken a considerable number of forensic investigations in this field on construction sites and industrial premises. 103 Mr O'Brien prepared two reports, the first dated 4 May 2007 and the second dated 27 June 2007. At the outset, counsel for both defendants objected to the tender of Mr O'Brien's report pursuant to both s 79 of the Evidence Act 1995 as well as the discretionary provisions of s 135. I determined to admit both reports subject to the questions of admissibility and weight to be attached following cross examination of Mr O'Brien. 104 Having now considered Mr O'Brien's reports and his evidence, I am satisfied Mr O'Brien can properly be considered an expert having specialised knowledge as required by s 79 of the Evidence Act. 105 The notion of specialised knowledge for the purposes of s 79 of the Evidence Act was highlighted in the judgment of the High Court in Velevski v The Queen (2002) 76 ALJR 402 and particularly at 416 where Gaudron J stated: The concept of ' specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which is 'sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience ' (citing Clark v Ryan (1960) 103 CLR 486 at 491 per Dixon CJ; Murphy v The Queen (1989) 167 CLR 94 at 111 per Mason CJ; Farrell v The Queen (1998) 194 CLR 286 at 292-293 per Gaudron J and at [28]-[29] per Kirby J; and R v Bonython (1984) 38 SASR 45 at 46-47 itself cited with approval in HG v The Queen (1999) 197 CLR 414 at 432 by Gaudron J). 106 That Mr O'Brien has specialised knowledge is without doubt. His courses of study is in the field of cranes and heavy lifting and movement systems to which he applies his knowledge of the principles of engineering analysis. If anything, the extensive cross examination of Mr O'Brien confirmed that expertise. 107 The extent of Mr O'Brien's knowledge and experience in a number of areas emanating from his primary expertise in the field of cranes and heavy lifting and movement systems is established by reference to his curriculum vitae earlier referred to. In cross examination, only a modest challenge was made to those areas of Mr O'Brien's professional background detailing, relevantly, his employment history, professional and academic areas of focus in the fields of his claimed expertise. 108 The approach to be taken to expert opinion evidence and it's admissibility pursuant to s 79 of the Evidence Act is relatively well settled. It was considered in some detail by Heydon JA (as he then was) in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at para [85] where his Honour stated: So far as the opinion is based on facts observed by the expert, they must be identified and admissibly proved by the expert; and so far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached. That is, the expert's evidence must explain how the field of specialized knowledge in which the witness is expert, by reason of training, study experience, and on which the opinion is wholly or substantially based applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialized knowledge. If the court cannot be sure of that, the evidence is, strictly speaking, not admissible and, so far as it is admissible, of diminished weight. 109 The above dicta has been the subject of further and detailed consideration at first instance and appellate level. If anything, that later consideration has placed his Honour's observations in Makita at [85] above into an appropriate evidentiary context for the proper consideration and admissibility of expert opinion evidence that in no way detracts from the fundamental principles that s 79 of the Evidence Act requires. 110 The approach enunciated by Heydon JA in Makita was considered by the Full Court of the Federal Court in Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354. It was described by Branson J at [7] as constituting a 'counsel of perfection'. More relevantly, in the same decision, Weinberg and Dowsett JJ, by reference to [85] in Makita as set out above, expressed the following approach as properly reflecting the reception of expert opinion evidence: [87] The use of the phrase "strictly speaking" in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. 111 The above approach was subsequently considered and applied by Nicholson J in Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Limited (Unreported, FCA, 31 July 2002) at [6] and [7]. 112 More importantly, the approach enunciated by Weinberg and Dowsett JJ, supported by Branson J, was reinforced and supported by the Court of Appeal in Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504 at [631] as follows: Whether an opinion has been shown to be based on the specialised knowledge is a question of fact, and s 79 provides that it is sufficient that it is substantially based on that knowledge. What is required by way of the explanation of which Heydon JA spoke in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] will depend on the circumstances . The disconformity in HG v R (1999) 197 CLR 414; 160 ALR 554 to which his Honour referred was gross, in that the psychologist's evidence went to when the complainant was abused and who abused her, outside a psychologist's expertise and based on matters other than a psychologist's expertise. Other circumstances will be quite different. And, as was said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, absolute certainty that the opinion is based on the specialised knowledge is not required (at [14]) and many of the stated qualities of the opinion evidence by Heydon JA "involve questions of degree, requiring the exercise of judgment" (at [87]). (emphasis added) 113 Adopting the above approach and in considering the evidence of Mr O'Brien to determine its admissibility pursuant to s 79 of the Evidence Act, it is sufficient, in my view, that I be satisfied on the balance of probabilities that Mr O'Brien has drawn his opinion from known or assumed facts by reference wholly or substantially to his specialised knowledge: See s 142 of the Evidence Act. I am satisfied that is the case. 114 Having regard to the above approach, I do admit Mr O'Brien's reports. However, the conclusions in those reports are somewhat diminished as to the weight I may attach to them having regard to the basis of some of Mr O'Brien's assumptions relied upon for the conclusions he ultimately expresses. 115 In large part, the extensive cross examination to which Mr O'Brien was subjected was of little assistance in determining the substantive issue that underpins the nature of the offences before me. That is, whether or not, having regard to work being undertaken, the defendants' system of work in lifting the panels in the way it was done created a potential risk to safety to Mr Hill. 116 In relation to the conclusions drawn by Mr O'Brien and in a number of calculations made in relation to the actual capacity of the crane, he, to use his words, 'made a lot of assumptions'. In many respects, some of those assumptions were necessary because of the absence, for forensic purposes, of the crane itself. In many respects, Mr O'Brien, as well as the defendants, for the purposes of their cross examination of him, were forced to work from the photographs taken of the crane immediately following the accident as well as deriving information, as best as possible, from the test certificates and invoices issued by Bedlex in relation to the crane in 1998 as well as the Test and Certificate Examination issued by All Safe in 2002. 117 The information contained in those documents for the purposes of calculations ultimately made was one that was not without its difficulties as far as conclusions ultimately drawn. For that reason, in many respects, it is difficult to place significant weight on some of the assumptions made by Mr O'Brien. In saying that, I accept, in all the circumstances, he made the assumptions he did because of the position he was in relation to his inability to have the crane readily examined and available for inspection. 118 In his initial report, after considering the information he had been provided with, including the statements of evidence and a wide range of documentary material, suitably documented, Mr O'Brien expressed the view that the accident happened because the crane overturned as a result of a combination of: (i) an excessive load being applied to the crane in relation to its rate of load; and (ii) an under-capacity of the crane created by the lifting configuration adopted. 119 Notwithstanding anything acknowledged by him in cross examination, Mr O'Brien adhered to his ultimate conclusions. 120 Further, he stated, a primary cause of the crane's under-capacity was that it had been raised onto its set of movement wheels rather than having been used on fixed legs as the crane was not designed to be used in this manner and had not been capacity certified for this mode of use. That is, using the crane on its wheels, that mode of use would, he said, have reduced the lifting capacity below that for which it had been load rated in the vicinity of some 33 per cent loss of direct lift capacity. Taking this into account, Mr O'Brien concluded the lifting capacity of the crane was further compromised by the following factors: (i) a hook load that was above the crane's SWL; (ii) a possible error on behalf of one of the workmen in commencing to operate the crane's hoist before he should have; (iii) a possible lateral or outwards pendulum action of the load 121 Taking all the above into account, in Mr O'Brien's opinion, it led directly to the crane's failing. 122 There were a number of points Mr O'Brien identified that could have been, in his view, a trigger for the crane to topple as it did. In his initial report, Mr O'Brien noted as follows: [17] It is further noted that in the failure process the timing was critical. If Mr Hill had been pulling on the crane's handle at the time that the extra loadings occurred his weight would have acted as a significant counterbalance to the crane and hence the crane may not have overturned. It would seem then that the accident required the coincidence of extra dynamic or oblique load just at the time that Mr Hill had left the crane unattended. 123 In Mr O'Brien's subsequent report, he was required to issue a statement of altered assumptions and the basis of which he had made his initial conclusions as to the likely cause of the crane toppling in the manner that it did. Those altered assumptions were expressed as follows: a. The untended machine assumption [6] Central to some of the conclusions that were drawn in the original report was the assumption that Mr Hill had left the machine untended and that the machine had become unstable at that time. However, a review of Mr Hill's court testimony does not confirm this assumption, in that Mr Hill states that he was strongly pulling the crane backwards when the crane's rear legs started to come up and he was suddenly pulled forward. [7] The evidential timing of the accident then is that Mr Hill was actively pulling the crane backwards when it overturned. [8] The engineering effect of this changed assumption is to add Mr Hill's downward pivotal arm strength as an additional counterweight to the crane (c.f. structural engineering analysis carried out at Appendix C of the original report). [9] In the author's opinion the net effect of this changed assumption on the overturning capacity of the crane will be small. This is because Mr Hill's hands and shoulders would act as structural hinge points and hence would provide little effective downward restraint to the crane handle. This would be especially true if the upward motion of the crane's handle was sudden and unexpected. b. State of panel at the time of the accident [10] In the first report it was assumed by the author that there was some uncertainty in the positional state of the panel - because of the merged statements of the eye witnesses and on the multiple activity chart that was developed. [11] However if we take Mr MacCue's court testimony as primary the assumption made in the original report changes. [12] Mr MacCue in his testimony indicates that Mr Church was in the process of making some vertical adjustments to the position of the panel when it fell. [13] The effect of this changed assumption, relative to the original report, is to make it considerably more likely that the crane was being subject to dynamic loading at the time it became unstable. 124 Ultimately, Mr O'Brien expressed the effect of the changed assumptions on the conclusions he had previously drawn in his first report in the following terms: [24] In consideration of the conclusions arrived at in the original report, the writer notes that his general conclusions are not sensitive to the revised assumptions and apply irrespective as to whether the Bedlex test load is taken to be 810 kg or 750 kg. [25] However, if the load was taken to be 810 kg then there would be some small arithmetic changes to the assumed loss of capacity calculated - with the capacity changing from a loss of 33% to approximately 30% (c.f. page 4 of original report, paragraph 12). [26] In relation to Mr MacCue's evidence that there were vertical adjustments being made to the position of the panel at the time of the accident, this strengthens the author's original suggestion (c.f. page 4, paragraph 13) that there could have been a possible error by one of the workmen. 125 In relation to Mr O'Brien's reference above to the evidence of Mr MacCue, his (Mr MacCue's) evidence on this point was as follows: Q. At the time that the panel fell, to your recollection was it still moving in or had it already come all the way in and was it hanging in its final place? A. To the best of my knowledge it come in and it was hanging in its final position before Matt made a few more adjustments on the winch to get it in position. Q. So let's take this slowly, you recall the call being made for Mr Hill to get the crane in? A. That is correct. Q. And you recall the panel itself had moved in? A. Yes, that is correct. Q. In the ordinary course if you are going to fix one of these panels into the building, do you need to have it in order to have it in a position where it can be fixed by whoever has to fix it? A. How far off the edge of the building? Q. Yes? A. Probably about a hundred mil or that, yeah about a hundred mil. ... Q. And did this panel, the panel that eventually fell, to your recollection did it reach that position? A. Yes. Q. About a hundred mils off the edge of the building and to your recollection did it reach the position in terms of its height where it could be fitted or was there still some adjustment required? A. Still some, only a small amount, but still some up and down adjustment to be done. AGIUS: Q. What happened from the time that it reached the position being a hundred mils out from the building, what was the next thing you saw, heard or observed? A. Just that the panel slowly coming down and I thought Matt was controlling the panel . It kept on going and the next minute the crane and the other stuff went over the edge as well. 126 Mr Church's evidence of his recollection of the incident of 29 March 2003 was somewhat different as follows: Q. Where were you as the panel was pulled into the building? A. I am just on the edge of this level slab on level 3. Q. How did it come about that the panel was pulled in did anybody tell Mr Hill to start pulling it in - how did he know to start drawing it in so far as you are concerned - I am asking you to recall what actually happened in this incident, not what the normal practice would have been, just the incident we are interested in? A. I would have given a command that it is ready to be pulled in. Q. Do you recall doing that? A. No. Q. But obviously do you recall that the panel started to come in? A. Yes. Q. What were you doing whilst it was coming in? A. Waiting for that position to be ready. Q. So that you could do what? A. Then the crane is lowered to the floor and then I do the rest of the work with the pendant. Q. So you in the ordinary course would not start using your pendant until the crane above you was lowered to the floor? A. Correct. Q. So far we have the crane above you moving in and the panel therefore coming in closer to the building - what was the next thing that you recall happened? A. The panel lowering slowly as if the crane was being lowered to its stable feet. Q. The next thing you recall is the panel coming down? A. Yes. Q. What happened? A. It didn't stop. Q. So you observed the panel to start lowering, it never stopped and it just kept going? A. Yes. Q. During all this time you had the pendant in your hand, is that right? A. Yes. Q. During this time did you lower the panel using the pendant? A. No. Q. Did you operate the pendant at all? A. No. Q. Before it kept falling? A. No. 127 The relevant difference in the above evidence is that, at the time the panel commenced to fall, Mr MacCue 'thought' Mr Church was lowering the panel using the pendant. Mr Church's evidence was to the contrary. 128 As Mr MacCue was not located on level three and could not see Mr Church, it is difficult to understand why Mr O'Brien accepted Mr MacCue's evidence as the basis for his particular assumption 'that there were vertical adjustments being made to the position of the panel at the time of the accident' that strengthened his 'suggestion' that there could have been a possible error by one of the workmen'. 129 On the evidence before me, it is not possible, in my view, to be satisfied that such a 'suggestion' has any evidentiary weight. 130 Mr O'Brien was subjected to extensive cross examination, particularly by counsel on behalf of Australand. It would be fair to say, as a result of that cross examination and based on the assumptions put to him, there was some acknowledgement by Mr O'Brien that, in being asked to accept the assumptions put to him by counsel for Australand, there would be some change to the tenor of some of his earlier conclusions. For example, in making the assumptions that he did, Mr O'Brien used a tare weight of the crane as 1025kg. This was a weight he said he adopted by examining the photographs of the crane. That tare weight of 1025kg certainly differed from the tare weight of the crane as certified in the All Safe Certificate of December 2002 of 1051kg. 131 As well, there was cross examination as to the assumptions made by Mr O'Brien looking at the photographs of the crane regarding the distance estimated by Mr O'Brien as to what was the tipping point of the crane. In short, if the crane was on its wheels as opposed to being on its feet, the tipping point of the crane would move. The effect of being precise as to the tipping point of the crane is that the shorter the distance from the load to the tipping point, the greater the capacity of the crane. 132 In making the assumptions he did as to the tipping point of the crane, Mr O'Brien assumed, at the relevant time, the wheels of the crane would be essentially vertical. Under cross examination, Mr O'Brien accepted that, if that was not the case, the distance could be less than the 195mm he had calculated. If that was so, and working on the assumptions put to him by counsel for Australand, the tipping point of the crane would be shorter than the 195mm he had calculated and the capacity of the crane would be greater than that contained in his reports. 133 Mr O'Brien acknowledged, having regard to the Bedlex Test Certificates, the crane had a capacity to carry a load greater than 750kg - that is 750kg plus a 60kg provision for the weight of the jib, winch and hoist. 134 On behalf of Australand, on the basis the crane did not topple at a test load of 750kg in position 1 together with an allowable weight of 60kg for the jib, winch and hoist, that was evidence, it was asserted, to support the conclusion that, at approximately 810kg, the crane was not at its tipping point. 135 Mr O'Brien further conceded, on the basis of assumptions put as to the actual location of the tipping point of the crane, the capacity of the crane on its wheels would result in a changed capacity by approximately 30 per cent and not 33 per cent as he had assessed. This, it was submitted, would give the crane, on its wheels, a capacity of 567kg. 136 If that was the case, it was asserted by Australand, then the capacity of the crane when it was lifting the starter panels on its wheels was greater than the weight it was actually lifting at the time it was lifted. 137 Accordingly, even if the crane was on its wheels with a reduced capacity, its actual capacity was greater than the rated WLL of 400kg and, as such, able to carry the load it was required to lift on that day. In such circumstances, the capacity of the crane relative to the weight of the panel being lifted was not excessive and, as a result, no risk to safety arose. 138 In support of such a submission, it was also emphasised the crane had already lifted ten of the heavier panels in exactly the same way on 28 and 29 March without mishap - evidence, it was said, of the crane's capacity to lift the panels in question. 139 On one view, there is sufficient evidence to come to a conclusion that, on the day of the incident, the crane being used by Mr Hill had an actual capacity greater than the rated capacity of 400kg as its WLL. I believe it is not possible to be precisely definitive as to what its actual capacity was. In any event, it is not necessary, in my view, for me to determine the actual capacity of the crane as it avoids the real issue I have to consider in this matter. As counsel for the prosecution said at the commencement of proceedings: We say the precise tipping point is not determinant of the charges in this case because the case concerns allegations of risk to health and safety, and a risk to health and safety arose as soon as the 400 kilograms WLL was exceeded. That risk increased as the lower one passed the WLL for this crane. It could never be an offence to one of these charges that if a point in which the crane tips over is 513 kilograms, then putting 512 kilograms on the crane was not a risk to health and safety. 140 In relation to the issue of the capacity of the crane, the prosecutor has charged that the defendants have failed to ensure a system of work existed that did not expose Mr Hill to risks to his health or safety by reason of the weight of the panel being installed relative to the capacity of the equipment being used and, in particular, the defendant failed to relevantly supervise Skyrise to ensure the weight of the panels to be lifted did not exceed the WLL of the crane. In short, the prosecutor asserts, once the weight being lifted exceeded the certified WLL of 400kg, the defendant's system of work exposed Mr Hill to a potential risk to his health and safety. 141 On the evidence, the weight being lifted by the crane on 29 March 2003 considerably exceeded the certified 400kg WLL of the crane. 142 There is evidence of some instability in the crane during the lifting of the panels on 28 and 29 March 2003. Mr Hill's evidence on this was as follows: Q. Had you ever noticed on any other occasion, aside from the incident, any instability in the back of the crane or any lifting in the back of the crane? A. Yes. Q. What had you noticed? A. I think it was the second or third panel that we had installed that day, Dom was actually on the floor at the time and one of the back legs came up two or three centimetres as they were lifting the window. Dom was there at the time and said something along the lines of "Take it easy, it is on the limit". Q. I just want to be sure that I understand what was happening when this back leg lifted up. At that time was the crane meant to be sitting on its four solid feet? A. Yes. Q. It wasn't on its wheels? A. No, it wasn't. Q. At that time you said they were lifting a panel? A. Yes. Q. Do you mean that the weight of the panel was being taken onto the crane via the winch? A. Yes. Q. And during that process you saw it lift up? A. Yes. 143 Mr Vullo's evidence on this issue was somewhat more equivocal as follows: Q. I want to break off there and take you back to an earlier time. Do you recall being present on the fourth floor when the second or third panel was being installed on the day and there being some incident involving the lifting of one leg of the crane? A. I don't recall specifically but I do recall there was one situation where there was some movement with the crane. Q. What can you tell us about that situation? Was this before Mr Hill had fallen from the building? A. Yes. Q. And how long before? A. I believe it was the day before. Q. What's your recollection of that event? A. The lifting frame that we used is a fixed rigid structure with four feet and basically the level of the concrete has to be quite level for all feet to be stable. If the concrete is lower in one area, when the weight comes on the lifting crane, the lifting frame can sort of rock slightly until the balance is achieved with that foot hitting the concrete. I believe that was the situation at that time where Will had spoken to me about it and I told him to pack the feet to make it stable. Q. Were you present and did you see this instability? A. I do recall being present at one time, yes. Q. What did you see? A. That the crane, the crane rocked and, and made a noise when the weight was on it and as that foot hit the ground. It was a matter of ten mill, fifteen mill that the crane rocked before that particular floor hit the ground. ... Q. On the occasion in which you're speaking in which you refer ten, fifteen millimetres, do you recall being present and seeing instability in the crane to the extent that one of the four feet was not in proper contact with the floor at the time that the weight came on the crane? A. Yes. Q. What did you observe at that time? A. That one of the front feet rocked and hit the, hit the concrete and made a noise. Q. What did you see or do when you saw that? A. I believe that I said that he needed to pack, be careful to unpack the front leg to make it more stable so there is none of this rocking. Q. What was done? A. I don't recall. Q. Do you know whether your advice was followed - was the crane packed on the front? A. I don't recall. I don't recall if it was - look, I don't recall. Q. Do you recall saying anything at that time about the capacity of the crane? A. I don't recall saying anything at that time. 144 While there is a difference between the respective recollections of Mr Vullo and Mr Hill, I accept, when taken together, there is evidence of instability in the crane during the period referred to. Mr Vullo did not deny that some instability did occur or that a conversation took place between he and Mr Hill. He simply does not 'recall specifically' the instability referred to by Mr Hill that occurred on 29 March 2003 or his conversation with Mr Hill about the weight capacity of the crane. 145 Mr Murphy, on behalf of Sassall, acknowledged that he advised Mr Vullo prior to Skyrise undertaking the panel lifts on the eastern elevation that the weight of the largest panel to be lifted was some 385kg. 146 Mr Murphy said he had had discussions with Mr John Sassall of Sassall Glass and also Mr Vullo in relation to the panel weights when they were moving the installation of the panel weights to the eastern facade. He also said he knew the eastern facade panels were approximately 'double the size of what we had been installing on the northern facade, and, you know, just as a matter of course, you know, we'd gone and checked the weights of the northern facade (where) we had been installing panels.' Mr Murphy confirmed he advised Mr Vullo by telephone of the weight of the heaviest panel on the eastern facade and the weight advised was 385kg. As he said: Q. Can you remember the weight that Mr Sassall gave you? A. Yeah. I believe it was 385 kilograms. Q. I think you said you spoke to Mr Vullo after that conversation with Mr Sassall? A. Well, yeah, almost immediately or even at the same time. Q. And what did you say to Mr Vullo? A. I said that, um, "I think the heaviest panel, right, is 385 on the east". And he come back to me and said, um, that he was good for 400. So I just say, "Oh, okay. Thanks". Q. From what you understand, he said to you it was good for 400? A. I assumed a safe working load of his four (sic) crane was good for 400 kilo. Q. Did you form a view that if the weight of the heaviest panel was 385 kilos and the safe working load for Mr Vullo's crane was 400 kilos, that it was safe for the work to go ahead in relation to the weight? A. Yes, I did. 147 Mr Murphy subsequently received an email from Mr Mike De Hosson, an estimator for Sassall which, he said, confirmed the verbal information he had given to Mr Vullo as to the weight of the panels on the eastern facade. According to him, when he saw that email he, in his words, ' just filed it'. That is, his secretary printed the email, he sighted it, he scribbled his initials on it and it was filed. 148 Despite the fact that it was suggested by counsel for Sassall that Mr Vullo may well have seen that email in the sense that it was left lying around in the office shared between Mr Murphy and Mr Vullo, I am not persuaded to that view. I believe Mr Vullo acted on the verbal advice he was given that the weight of the starter panels to be lifted on the eastern facade was 385kg. The email was produced in these proceedings. It is an email dated 20 March 2003 from Mr De Hossen to Mr John Sassall. He, in turn, forwarded it on to Mr Murphy that same day. In it, it discloses a panel weight of 387.2812kg. However, closer examination of Mr De Hossen's email discloses that that was by reference to a panel size of 3.7m x 2.4m. That was not the size of the starter panels being lifted by Skyrise on the day in question. On that point, Mr Murphy was asked: Q. The page with the box printed on it with information of panel size, et cetera, in the box, can you tell the court whether or not at the time you received that e-mail and that information you were conscious of the fact that it apparently referred to a panel of the size referred to there, 3.7 x 2.4, were you conscious of the fact that that e-mail referred to a panel of that size when you received it? A. No. No, I wasn't. 149 Mr Murphy confirmed the true weight of the starter panels was some 485kg which was approximately some 100kg more than the weight that had been given to Mr Vullo. 150 That Mr Murphy was aware of the implications of such a significant weight difference was evident by his evidence as follows: Q. Now, coming up to the incident you had passed the information about the 385 kilograms to Mr Vullo, and you were aware of the safe working load of his crane. Do you agree with that? A. Yes. Q. If you had known that the weight of that panel was not 385 kilograms but 485 kilograms, would you have permitted him to have installed any of those starter panels on the eastern facade using that crane? A. No, I wouldn't have. Q. And it may be obvious but I need to ask you, why not? A. Because it would have exceeded the capacity of his crane. 151 Further, Mr Murphy indicated that the Test and Examination Certificates produced by Skyrise in relation to the crane showed a stated WLL of 400kg relating to a static floor crane. He was asked as follows: Q. And as at March of 2003, did you have any belief as to whether or not a safe working load of a static floor crane would remain the same if that static floor crane was in fact being used whilst it was mobile? A. Well, obviously the certificates, you know, don't apply if it had been mobile. HER HONOUR: Q. Sorry, say that again? A. I said obviously the certificates wouldn't apply if the crane was mobile. AGIUS: Q. That is, if it was being put under load whilst it was mobile? A. That's right. Q. And that was your belief in March 2003? A. I'd say yes. 152 Counsel on behalf of Sassall asked Mr Murphy as follows: Q. When you received this email from Mr Sassall am I correct in understanding that this was the weight information that you conveyed to Mr Vullo as being relevant to the starter panels? A. No, I believed it was the heaviest panel. Q. The heaviest panel? A. Yes. 153 When one turns to the role of Australand on this issue, one confronts the evidence of Mr McGregor, the person responsible for overall safety on behalf of Australand on the development site. According to Mr McGregor, prior to Skyrise commencing work on the site, he was given a copy of the relevant All Safe Test and Examination Certificate already referred to with respect to the crane. Such test certification was a necessary prerequisite to Skyrise commencing work. Mr McGregor's evidence was as follows: Q. Mr McGregor, did you yourself put in place any measures to ensure that the crane was not overloaded? A. I checked the working load limit from the documentation that was submitted to me by Skyrise. Q. Yes. A. I - I asked the question to the Skyrise representative on the project of what the weight of the heaviest panel was. Q. Do you remember his answer? A. 365 kilos. (sic) Q. When did you ask him that question? A. Before he started lifting the panels. Q. For the eastern elevation or for any of the elevations? A. I - I can't remember which one it was. It was before they started. I'm not sure whether it was before the eastern or the northern. I'd be assuming it, I ... 154 Mr McGregor, when shown the Test Certificate relating to the crane involved, recalled that it would appear to conform with the certificate he had been shown at the relevant time. It was also drawn to his attention that the Test and Examination Certificate applying to the crane in question talked about it being a static floor crane. Mr McGregor confirmed he had watched the process as to the way in which the Skyrise employees utilised the crane in installing the panels on the eastern elevation and that those observations confirmed to him that it required the crane to be moved whilst it was under load. In relation to that he was asked as follows: Q. Did it occur to you while you were watching the process that these certificates described the crane as being a static floor crane? A. Yes. Q. It did? And did it occur to you that - sorry, I withdraw that. What was your understanding then of the value of the certification in the certificate given that the process required the crane to be used not just as a static floor crane but also as a crane which was mobile under load. A. I looked at it as just a terminology. It's - basically it was a big hunk of metal with an electric winch on the end of it that lifted up the panels. Customary practice and terminology in the industry of a mobile crane is a power crane that articulates and moves around. Q. I didn't use the word "mobile." A. You said "mobile." A crane that was mobile. Q. Mobile under load. A. Yes. Q. So I'm just trying to understand your answer. I don't want to be accused of leading you. It's your evidence we want. But did you draw any distinction of the crane being under load in its floor position or the crane being under load whilst it was on its wheels in terms of the value of its certification? A. No. 155 From the perspective of safety, I found Mr McGregor's evidence on this point a matter of concern. That is, that the value of the Test Certificate certifying the crane as a static crane was 'just a terminology', and that he saw no distinction 'of the crane being under load in its floor position or the crane being under load whilst it was on its wheels in terms of the value of its certification'. 156 As Project Manager for Australand with overall responsibility for safety, I have some difficulty in accepting that Mr McGregor, knowing the lifting process utilised by Skyrise, saw no distinction in 'the capacity of the crane when it was on its wheels'. Indeed, it was an issue that appears to have been overlooked by both defendants although Mr Murphy, when asked, 'agreed the certificate wouldn't apply' if the crane was mobile. 157 Mr McGregor stated that one of the revised work methods implemented following the accident was that when the panels were delivered on site for installation, a sticker was placed on each panel indicating the weight of that panel. As he explained: Q. And did you play any role in either suggesting that alteration or in promoting it or in having anything to do with its implementation? A. No, I can't remember. I think it came up with a group. There was the safety committee, John Jelomine, Sassall, Skyrise, the general foreman of the project, site manager. There was a - you know, a large group of people. I don't - I don't believe I was the person that suggested that. Q. Did you agree with that change? A. Yes, although I didn't think it was foolproof. If someone wrote the wrong - wrong weight and wrong sticker in the panel, you're in the same situation. Q. What situation was that? A. That possibly the panel was heavier than the capacity of the crane. 158 Under cross examination by counsel for Australand, Mr McGregor was asked as follows: Q. Was there any discussion between you and Mr Vullo of Skyrise about the lifting equipment to be used? A. Only with what the working load limit was and what the heaviest panel he was going to be lifting. Q. When did that discussion take place? A. The exact time I can't recall but we had the discussion and it was - before they lifted the panels. Q. Is that the discussion you were referring to earlier this morning in respect of the figure of 365 kilograms, or are you talking about a different discussion? A. No, it's ... ... Q. You recall that lifting on the eastern elevation started on or about 28 March. How much before then did you have a discussion about the maximum or heaviest panel? A. I'm sure it was before the northern elevation was lifted. Q. How soon before 28 March was that, can you remember? A. Months. Q. A month? A. Easy a month. 159 Having regard to all of the above evidence, it is apparent, in the first instance, Mr Vullo was concerned to ensure the weight of the starter panels that Skyrise was required to lift on the eastern elevation of the building was known to him. That information was important because of the need to ensure that the weight to be lifted was within the certified WLL of the crane. Next, there seems no doubt, particularly based on Mr Murphy's evidence, that Mr Vullo was wrongly advised as to the weight of the starter panels. That wrong information was understated by almost 100kg. 160 Mr Vullo was advised by Mr Murphy that the weight of the heaviest panel to be lifted on the eastern facade was 385kg. When one makes provision for an additional 30kg that comprised the weight of the hook, winch and chain, there was in Mr Vullo's mind a belief, as he said, that taken together, the combined weight to be lifted was right on the 400kg WLL of the crane. As he said: Q. So might we then take it that if we go back to the date of the incident you thought you could impose a 400 kilogram load excluding the winch and the chain on the end of the jib? A. Based on Bremmer (sic) Engineering, yes. Q. You understood that if the load was further out than the end of the jib you would be imposing a greater load than the mass suspended by the winch and chain? A. I didn't think that at the time. Q. You had no way of knowing how much greater load that would be without some complicated calculations? A. That's correct. Q. And yet you were proposing that this lift which was at the limit, on your understanding, to impose those greater loads without undertaking those calculations? A. There are safety factors always put into these cranes which this crane did this time. I believed I was lifting a 380 kilogram panel and that crane was, as it's shown, was proof tested to 750 kilos. At the time I was confident that that crane could do it easily. 161 When All Safe certified the crane in December 2002, (as did Bedlex in 1998) the crane had a certified WLL of 400kg. That was not only spelt out in the All Safe Test Certificate (as well as the Bedlex Certificate) but also on the jib of the crane. That certification as to the WLL of the crane was clearly there for a reason. Notwithstanding what appears on the 1998 Bedlex certificate as to a proof load in position 1 of 750kg with an allowable limit for the weight of the hook and winch of 60kg, the Bedlex Certificate was not available to Australand at the time Skyrise commenced work. The Test Certificate produced by Mr Vullo for the purposes of complying with its obligations preparatory to commencing work on site was the All Safe Test Certificate of December 2002. That showed a WLL for a static floor crane of 400kg. Mr McGregor said he saw that Certificate and the stated WLL specified in it. 162 Given all the above, it defies commonsense and logic by way of industry practice to suggest that, at the time the work was being performed, it was appropriate and safe for Mr McGregor or Mr Vullo or Mr Murphy to go behind that Test Certificate and, without more, assess the actual capacity of the crane, in some unknown way, as being greater than the certified WLL to the extent that is now being asserted by the defendants. 163 As part of the system of work in place at the time, Australand required the production of a Test Certificate as to the weight lifting capacity of the crane. They received it. They viewed it. It showed a certified WLL of 400kg. There is no evidence to suggest that Mr Vullo, Mr Murphy or Mr McGregor assessed the crane as having a far greater WLL than the Test Certificate stated. At the time the work was being performed, the only information known about the capacity of the crane was the All Safe Certificate of December 2002. Even if, as the evidence before me has disclosed, the actual capacity of the crane was greater than 400kg, that is not the point. 164 At the time the work was being performed, any weight lifted by the crane that went beyond 400kg created a potential risk to safety because it was requiring the crane to lift a capacity for which it was not rated and its actual capacity was not known in any accurate sense. In my view, it follows that once the crane lifted a weight beyond its rated WLL of 400kg, the operator was entering unchartered and potentially unsafe territory. Given the circumstances in which the work was being performed by Mr Hill and the importance of knowing the weight of the panel to be lifted relative to the WLL of the crane because of the danger of instability in the crane, a potential risk to safety arose. Once the crane lifted beyond its certified WLL of 400kg and, given the nature and circumstances of the work being performed, that potential risk to safety, in my view, included the crane becoming unstable and, under its overall weight load and under momentum, toppling over and off the edge of the building. It was not, in my view, a speculative or remote risk. It was a real and potential risk to safety. 165 Notwithstanding what has been adduced by way of the evidence of Mr Braun, together with Mr Sargent as well as the assumptions of Mr O'Brien that the crane had an actual capacity greater than the certified WLL, that seems to me irrelevant to the issue I am required to consider. That is, at the time the work was being performed, the system of work envisaged the use of a crane with a certified WLL of 400kg. Once that WLL was exceeded, there was, notwithstanding what its then unknown actual capacity was, a potential risk to safety arose to those employees charged with using the crane in the manner in which it was required to be utilised. As was said in WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158; Drake Personnel at 452 - 454 and WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [68]. As has been discussed, I consider that the evidence supports the conclusion that the deceased child wandered to the area in the vicinity of the pool directly from the house. However, the fact that the pool was uncovered put persons, particularly children, at risk of falling and injuring themselves no matter how they obtained access to the site. It is apparently against this risk that the Council required the defendant to make certain provisions as a condition for granting the building approval. The defendant failed to ensure that this was done. 166 On the evidence before me, to which I have referred, I am satisfied to the requisite standard that the defendant failed to ensure that Skyrise maintained a system of work that ensured the weight of the panels did not exceed the WLL of the crane lifting the panel. I am further satisfied that, in the circumstances in which the work was being performed, a potential risk to Mr Hill's safety arose and that a causal nexus between the defendant's failure and the risk to safety existed. I find particularised failure (5) established. 167 In order for Skyrise to safely perform the work which it was contracted to undertake, it was critical that the weight of the panels to be lifted was not only known but accurately known. The ability of the crane to safely lift the panels within its known capacity was paramount. That was clearly the reason why the Test Certificate in relation to the capacity of the crane was required to be produced by Skyrise. That was why Mr Vullo, Mr Murphy on behalf of Sassall and Mr McGregor on behalf of Australand took steps to ascertain the weight of the panels to be lifted and that the crane had the capacity to lift the known weight. 168 While those safety criteria were well known, it is not known what steps Australand had taken to ensure that Sassall's system of work properly and adequately conveyed to Skyrise the precise weight of each panel to be lifted. The evidence disclosed that when the panels were delivered to the site they were palletised. While there was a label on the pallet with certain information in terms of weight, it indicated only the gross weight of the pallet and not the individual weight of each panel. Beyond that, it was a matter for discussion between Mr Murphy of Sassall and Mr Vullo of Skyrise to ascertain the weight of each type of panel. As has already been elaborated upon, that rather ad hoc procedure gave rise to a significant miscommunication between Skyrise and Sassall such that the weight of the starter panel being lifted on the eastern elevation was approximately 95-100kg understated. 169 On behalf of Australand, Mr McGregor knew the importance of ensuring Skyrise knew the weight of the panels to be lifted. That there was a deficiency in the system of work that was in place on this issue is exemplified by the fact that, after the accident involving Mr Hill, the system for identifying the weight of each panel was changed. As Mr McGregor stated in evidence: Q. Did you have any involvement with any aspect of the job after the incident which involved the specification of weights of individual panels? A. Yes. Q. What did you have to do with that? A. I believe in their revised work method statement they - they - the panels came with their - the panels came with stickers with weights on them. Q. In whose revised work method statement? A. Skyrise. Q. And did you play any role in either suggesting that alteration or in promoting it or in having anything to do with its implementation? A. No, I can't remember. I think it come up with a group. There was the safety committee, John Jelomine, Sassall, Skyrise, the general foreman of the project, site manager. There was a - you know, a large group of people. I don't - I don't believe I was the person that suggested that. Q. Did you agree with that change? A. Yes, although I didn't think it was foolproof. If someone wrote the wrong - wrong weight and wrong sticker in the panel, you're in the same situation. 170 While Mr McGregor maintained that, following the accident, the changes in identifying the individual panel weights was a decision undertaken by the safety committee on site, that does not exculpate Australand as part of its overall obligation for safe systems of work on the site. It was a part of Sassall's overall system of work to accurately and in a more detailed manner convey the weight of the panels to be lifted to Skyrise. It was Australand's responsibility as head contractor to ensure that Sassall had such a system in place. On the evidence before me, to which I have referred, I am satisfied to the requisite standard that was not the case. 171 The panel weights were not individually identified on each panel. As well, the evidence is that consistent verbal requests were made by Mr Vullo to Mr Murphy to ascertain the weight of the panels initially on the northern elevation and then the starter panels on the eastern elevation. On the evidence of Mr Vullo, which was not challenged, the weight of the panels on the northern elevation were never conveyed to him by Sassall. He ultimately estimated them himself in what can only be described as a crude system of getting four men to lift them. In relation to the eastern elevation Mr Vullo was, again after a number of requests, verbally advised of the weight of the 'heaviest panel' by Mr Murphy. It was incorrect to a significant degree. The email ultimately received by Mr Murphy on 20 March 2003 was never critically scrutinised by him such as to alert him to the panel size being referred to. 172 Overall, the system of work in place by Sassall to ensure the weight of each panel was accurately identified and conveyed to Skyrise was deficient. 173 Further, I am satisfied there was a causal nexus between the defendant's failure as particularised and the risk to safety that arose. Accordingly, failure (4) as particularised is established. 174 Failure (6) as particularised is, in my view, pleaded somewhat in similar terms to particular (4) that I have just considered. That is, particular (4) refers to a failure by Australand to ensure Sassall maintained a safe system of work in relation to accurately communicating the weight of the panels to Skyrise. Particularised failure (6) refers to a failure by Australand to 'supervise' Sassall employees with respect to the same failure. 175 It seems to me that there is an inherent degree of duplicity in the pleading of particularised failure (6) when regard is had to particularised failure (4). That is, a failure to properly supervise Sassall employees with respect to the activity identified would, in my view, be part of an overall failure to ensure a safe system of work with respect to the same activity identified. 176 Accordingly, I believe that any reliance by the prosecutor on particularised failure (6) must fail for duplicity. 177 In relation to failure (7) as particularised, it again has some elements of duplicity when one has regard to particularised failure (5) already dealt with. That is, particularised failure (5) deals with a failure by Skyrise to have in place a system of work to ensure the weight of the panels did not exceed the WLL of the crane doing the lifting at the relevant time. Particularised failure (7) pleads a failure by Australand to supervise Skyrise employees with respect to ensuring they knew the correct weight of the panels or that the weight of the panel did not exceed the WLL of the crane. 178 In many respects, the failures pleaded in particular (7) with respect to Australand would seem to me to be caught up by the sweeping nature of particularised failure (5). That is, it would be contemplated that as part of Skyrise's system of work, if Australand was to ensure that the weight of the panels did not exceed the WLL of the crane that was lifting the panels at the relevant time, it is axiomatic that the system of work would embrace the obligation to ensure the employees of Skyrise knew the correct weight of the panels and that the weight of the panels did not exceed the WLL of the crane. Again, in my view, I believe that any reliance by the prosecutor on particularised failure (7) must fail for duplicity 179 Particularised failure (8) is as follows: The defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Sassall or Skyrise to eliminate or minimize the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. 180 This failure particularises a failure on the part of Australand with respect to 'proper risk assessment or control measures' on the part of its own employees or by the employees of Sassall or Skyrise to minimise the risk of an accident as a result of the crane lifting panels in excess of its WLL. 181 On one reading of this particular, the prosecutor is alleging a failure on the part of the defendant to ensure risk assessment and control measures were undertaken after the accident occurred. Why else would one use the expression 'as a result of the crane lifting panels in excess of its WLL'. Such an expression raises one inference, in my view, that the failure of Australand as particularised is a failure that arose consequent upon the accident. 182 This was not an issue raised in the proceedings before me but I raise it at this point to emphasise the need for more rigor in the way in which charges are particularised. 183 In my view, in particularised failure (8) the prosecutor alleges a failure with respect to risk assessment and control on the part of Australand to ensure the crane did not lift panels in excess of its WLL in order to eliminate or minimise the risk of an accident occurring. That appears to be the thrust of the prosecutor's alleged failure. It should have been particularised more precisely. 184 The failure particularised alleges an overall failure on the part of Australand in relation to risk assessment or control with respect to three categories of employees: (i) Australand employees; or (ii) Sassall employees; or (iii) Skyrise employees. 185 I am satisfied beyond reasonable doubt with respect to all three categories of employees. In the first instance, there is evidence that the defendant, under the auspices of Mr McGregor, failed to have 'proper risk assessment or control measures' undertaken by its own employees to eliminate or minimise the risk to ensure the crane did not lift panels in excess of its WLL. That is, Australand required Skyrise to produce relevant Safe Work Method Statements in relation to the job of installing the curtain wall panels. Skyrise produced five such documents titled as follows: (i) Crane setup and use for panel installation; (ii) Installation of panels; (iii) Installation of brackets - Underslab; (iv) Loading of floors with panels; (v) Use of electrical tools. 186 Clearly, Safe Work Method Statements (SWMS) (i) and (ii) above are the relevant ones for my consideration here. The relevant parts of SWMS (i) above is set out in paras [63] and [206] of this judgment. Reference to those discloses a risk assessment approach to the work to be performed. Nowhere in those two documents is reference made to the need by way of control measures to ensure the weight of the panel to be lifted be ascertained prior to the panel being lifted and ensure the crane has the capacity to lift it. The risk to safety if such information is not known is obvious. It certainly should have been a documented first step in the work to be undertaken. 187 Australand did have a comprehensive Occupational Health and Safety Plan for the site. It incorporated the need for proper hazard assessment and minimisation. In undertaking that task with respect to panel installation relative to the capacity of the crane, it failed to ensure the risk to safety arising in such a task was incorporated into the relevant Safe Work Method Statements produced by Skyrise. 188 Australand, Sassall and Skyrise knew of the safety significance of knowing the weight of the panel to be lifted relative to the capacity of the crane. Mr McGregor said he specifically noted the WLL of the crane when he sighted the Test Certificate produced by Mr Vullo. He also had discussions about the issue with Mr Vullo before the panel lifting commenced on the eastern elevation. As well, on behalf of Australand, Mr McGregor required a number of amendments to the Safe Work Method Statements initially produced by Skyrise and before it commenced work on the site. What those changes were was never elaborated upon. It does demonstrate, however, that in perusing the Safe Work Method Statements relating to the panel installation and crane set up, Australand failed to ensure that the critical action of accurately ascertaining the weight of the panel relative to the known capacity of the crane was incorporated in relevant Safe Work Method Statements particularly having regard to the nature of the work being undertaken. 189 I am satisfied that a failure to rigorously ensure those steps were properly ascertained created a potential risk to safety. That risk to safety arose if the crane was required to lift a weight in excess of the known WLL of the crane. In such circumstances, the crane could fail and, in doing so, and in whatever way it failed, expose the crane operator to the risk of injury. 190 Mr Murphy of Sassall also knew of the safety importance of knowing the panel weight relative to the capacity of the crane. He was aware of the lifting process undertaken by Skyrise employees before the accident. He had also sighted the Safe Work Method Statements produced by Skyrise. He further acknowledged that if he had realised the proper weight of the panel to be lifted at the time of the accident, he would not have allowed the crane to be utilised because he knew the WLL of 400kg would have been exceeded. 191 Sassall's contract with Australand required it to: ... provide a safe working environment for the benefit of its employees and so as not to endanger lives or risk injury to others. The Subcontractor shall comply with the Australand Occupational Health and Safety Subcontractors Requirements forming part of the Subcontract. 192 Having regard to its clear contractual and legislative obligations with regard to safety, Sassall failed to ensure the proper risk assessment approach to the installation of the panels was adequate in addressing the risks to safety involved. That is, Sassall received the Safe Work Method Statements from Skyrise and passed them on to Australand. Not only did Australand fail to ensure that the issue of the weight of the panel to be lifted relative to the capacity of the crane was a critical first step to be incorporated in a risk assessment approach in the sequence of work to be undertaken by Skyrise in lifting and installing the panels, Australand failed to ensure that Sassall employees undertook the task of critically risk assessing the job Skyrise was sub-contracted to perform insofar as ensuring the risk to safety inherent in such a task critically included the need to ensure the individual panel weight to be lifted did not exceed the WLL of the crane. 193 To the extent Mr Murphy of Sassall knew of that risk, the steps taken by Australand to ensure it was properly addressed were inadequate. 194 Finally, in relation to Skyrise employees. It is self evident in my view that once Skyrise submitted its Safe Work Method Statements incorporating a risk assessment in relation to the panel installation and crane setup, the obligation rested on Australand to ensure their adequacy for the task at hand. 195 That those documents make no mention in risk assessment terms of the need to ensure the weight of the panel to be lifted relative to the capacity of the crane is a significant inadequacy. True it is that Mr Vullo produced the Test Certificate identifying the WLL of the crane. Also, Mr Vullo, as a matter of practice, always checked the weight of the panel to be lifted prior to the lift. Mr MacCue and Mr Church also acknowledged the need to know that information prior to undertaking the panel installation process. However, to the extent that such information was required as part of the sequence of work to be performed should have ensured a far more rigorous approach on the part of Australand in permitting Skyrise employees to perform the task on site. The proper approach to risk assessment in such an undertaking demanded its emphasis as a necessary first step in the process. In that respect, Australand failed to adequately ensure Skyrise employees properly risk assessed the task being undertaken in installing the panels by ensuring the weight of the panel did not exceed the WLL of the crane being used. 196 I am satisfied the prosecution have established particularised failure (8) to the requisite standard and I am satisfied a causal nexus exists between the failure and the risk to safety that arose. (ii) Alleged fall protection measure failures 197 The prosecutor particularised the fall protection failures as follows: [9] The defendant failed to ensure that Sassall or Skyrise provided or maintained a safe system of work for working at heights in that Skyrise failed to ensure that William Hill, an employee of Skyrise, had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights. [10] The defendant failed to ensure that Sassall or Skyrise provided or maintained a safe system of work for working at heights in that Sassall or Skyrise failed to ensure that William Hill was using appropriate fall protection equipment (such as a retractable lanyard) when the safety fence was open or when he was moving the crane close to the edge of the building. [11] The defendant failed to ensure that William Hill was adequately supervised either by its own employees or Skyrise or Sassall in relation to having appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. 198 These alleged failures are grounded in the fact, not disputed, that at the time Mr Hill fell off level four of the building with the crane he was not attached to the static line by his lanyard. It was part of the procedure followed by Mr Hill that when he commenced the lifting process earlier described he would attach his lanyard to the static line when he was outside the safety fence line. The safety fence was erected approximately 2.1 metres from the edge of the building. Accordingly, when Mr Hill was putting the crane into position at the commencement of the lifting process, he had to position the feet of the crane close to the edge of the building. To do this, he had to remove a relevant section of the safety fence. Before he did that he clipped his lanyard to the static safety line. 199 There were two types of lanyard available for Mr Hill to use on site - the conventional one with an overall length of two metres and a longer retractable one of some five metres. Mr Hill always used the shorter conventional one. Mr Vullo knew that, as did Mr McGregor. 200 There came a point in the lifting process earlier described when Mr Hill was advised by Mr Church to pull the crane in towards the centre of the building in order to bring the panel close to the side of the building for securing the panel to the relevant brackets. 201 When he was given the signal to pull the crane in, Mr Hill would pump the pallet jack to put the crane on its wheels and commence to pull the panel in. In doing so, there came a point where he could not pull back further because his two metre lanyard, still attached to the static line, would constrain him. At that point, it would appear he was beyond the line of the safety fence. He would then leave the crane on its wheels and walk carefully forwards and unclip his lanyard from the static line. He would then resume his position behind the crane and continue to pull the crane backwards by the handle of the pallet jack. It was in the process of doing that with the panel in question that the crane reacted in the way described by Mr Hill in para [58] and commenced to roll towards the edge. In attempting to pull it back, Mr Hill went over the edge of the building together with the crane. 202 As the particularised failures make clear, the prosecution alleges that the system of work in place in relation to Mr Hill's job in pulling the crane backwards in the circumstances described, particularly where the safety fence had been removed, was inadequate and created a risk to safety. 203 In order to address the clear risk to safety to which Mr Hill was exposed in undertaking his task, the prosecutor submitted, he should have remained attached to the static line at all times. The evidence was that the retractable lanyards were available on site. Mr Hill did not use the longer retractable lanyard primarily because, as he stated, once he moved inwards beyond the safety fence line, he was not, in accordance with the Safe Work Method Statement in place, required to be clipped to the static line. That requirement only arose, it was said by Mr Vullo, when an employee moved beyond the safety fence towards the edge of the building. 204 The defendant's contention in relation to the above particularised failures may be briefly summarised. The defendant contends there were no failures on its part in relation to fall protection measures as alleged because, at the time Mr Hill's accident occurred, he was well within the acknowledged safety fence line that required an employee be attached by his lanyard to the static line. In short, it was submitted, the Crane Safe Work Method Statement did not require the crane operator, while pulling the crane towards the centre of the building and beyond the safety fence line, be attached to the static line. When the crane commenced to behave in the way described by Mr Hill, he was at least three metres from the edge of the building. Accordingly, if he was to fall (or trip) he would, it was said, fall towards the centre and not towards the edge of the building. Further, it was submitted, if Mr Hill had fallen towards the edge of the building at the time the crane commenced its movement forward towards the edge, he would fall into the crane and, in any event, he was more than three metres from the edge. The same outcome, it was said, would have arisen if he had fallen towards the side of the crane at the time - he would still have been more than three metres from the edge. 205 In all the circumstances, it was submitted, the risk of Mr Hill falling or tripping while operating the crane without his lanyard attached to the static line was not a real risk. That is, it was a risk that was too remote or unduly speculative. 206 In support of that contention, the defendant pointed to two factors. The first was the Safe Work Method Statement prepared by Skyrise and approved in turn by Sassall and Australand provided that it was only when the worker went outside the safety fence line that he was required to be attached to the static line. The relevant work sequence is identified in the Safe Work Method Statements relating to the Crane setup and installation as well as the installation of panels. Relevantly, those provisions are stated thus: (a) Safe Work Method Statement re crane setup and use for panel installation: Sequence of Risk Risk each type of work Assessment Class Control Measures to be adopted to eliminate or minimise assessed risks 1, 2 or 3 Step 4 - Fall off the edge 1 - Worker to be inside the safety fence and have both feet on the ground whilst reaching over to attach the lanyard to the safety line. Once attached the worker is to open the safety fence, walk through and close the fence behind him/her. Worker to put harness on and attach oneself to the static safety line 1 - - Worker wearing harness and attached to safety line via lanyard. Step 5 - Worker falling off edge of building 2 - safety fences to be safely stored against a rigid object such as a column or stacked in a pile on the slab floor. Remove safety fence and place in a safe position - stacked safety fences falling over - safety fences to be safely stored away from worker access. - stacked safety fences impeding access way. 3 Step 6 - Crane rolling off building 1 - Placement of steel wheel chock [attached to static line vide lanyard] against previously installed brackets Move crane into position - Crane is lifted by a pallet jack and moved into position. When in position, the crane is lowered onto the slab so that it has all four legs firmly on the slab floor. (b) Safe Work Method Statement re Installation of Panels Risk Risk Sequence of each type of work Assessment Class Control Measures to be adopted to eliminate or minimize assessed risks 1, 2 or 3 Step 4 - Fall off the edge 1 - Worker to be inside the safety fence and have both feet on the ground whilst reaching over to attach the lanyard to the safety line. Once attached the worker is to open the safety fence, walk through and close the fence behind him/her. Worker to put harness on and attach oneself to the static safety line 1 - Worker falling off edge of building - Worker wearing harness and attached to safety line via lanyard Step 5 - stacked safety fences falling over 2 - safety fences to be safely stored against a rigid object such as a column or stacked in a pile on the slab floor Remove safety fence and place in a safe position - stacked safety fences impeding access way - safety fences to be safely stored away from worker access 3 Step 12 - Worker falling off edge 1 - Workers wearing safety harness and attached to static safety line via lanyard Replace fences - Materials or equipment falling off edge - All care taken and two men used to re erect safety fences 1 207 The second factor the defendant pointed to as evidence that the need for Mr Hill to be attached to the static line when he was inside the safety line fence was not required was a WorkCover Code of Practice in relation to Safe Work on Roofs, Part 1 - Commercial and Industrial Buildings that commenced in November 1993. At 3.1 of that Code it states: 3.1 Prevention of falls Provision should be made to prevent persons falling if work is to be carried out within two metres of any edge on a new or existing roof from which any person could fall two metres or more. The method selected is generally determined by individual job factors including the nature of the work, the size of area to be roofed, availability of equipment and interaction with other trades. The need to minimise the risk of falls and the risk of injury when a fall occurs should also be taken into account when selecting protective measures. The recommended method is safety mesh and guardrails. Other available methods include individual fall arrest systems, scaffolding, safety nets or a combination of these methods. These other methods should only be used if the recommended method cannot be used. The use of on-ground prefabrication also helps to reduce risks. 208 Reliance was placed on the above that requires provision to be made for fall protection 'if work is to be carried out within two metres of any edge on a new or existing roof from which any person could fall two metres or more'. 209 Based on the provision in the above WorkCover Code, it was submitted, there was no requirement for Mr Hill to be attached to the static line when he was more than three metres from the edge and inside the safety fence line. 210 I will deal with the WorkCover Code of Practice as identified above in the first instance. It is a Code of Practice relevant to safe working on roofs - not exactly the circumstances prevailing in relation to Mr Hill. Nevertheless, I accept the 'two metres' from any edge provision has some similarity to the situation in relation to the safety fence line in place. That is, it was 2.1 metres from the edge of the building. In my view however, that is where the similarities with Mr Hill's work process and the general provision in the Code of Practice referred to part company. 211 As 3.1 in the Code states, 'The method selected is generally determined by individual job factors including the nature of the work, ... availability of equipment and interaction with other trades. The need to minimise the risk of falls and the risk of injury when a fall occurs should also be taken into account when selecting protective measures.' 212 It seems to me, it is abundantly clear that what the above provision provides for is an approach to fall prevention that must take into account 'individual job factors including the nature of the work'. Further, that there was a recognised need to take appropriate protective measures to minimise the risk of fall and the risk of injury should a fall occur. The way that general provision is to be applied is not that beyond two metres there is no need for a lanyard to be attached to the static line but rather, in relation to fall prevention and in determining the risks to safety that exist when working from the height Mr Hill was, it is necessary to carefully consider all of the factors involved in the nature of the work and the risks to safety that the nature of the work gives rise to. 213 In the circumstances prevailing in this matter, there was first of all the need for Mr Hill to remove the safety fence. Once the safety fence was removed, the need for Mr Hill to remain connected by his lanyard to the static line was, in my view, an imperative. That would be the case regardless of whether he was outside the safety fence line or inside the safety fence line. I come to that conclusion when one has regard to the nature of the work Mr Hill was performing. That is, as part of continuum of activity, he was required in the first instance to locate himself outside the safety fence line and, when directed, to raise the crane on its wheels and to commence pulling backwards. At a certain point he went beyond the safety fence line. However, at the same time, as part of the nature of his work, he was continuing his activity of pulling the crane backwards on its wheels. The safety fence was not in place and, with the exception of a wooden chock at the edge of the building, there was nothing to preclude the crane from moving forward regardless of the circumstances that caused that. As Mr Hill said: As you can imagine, the crane with a window on it is extremely heavy. So I am pulling this crane back with all of my force just to get it into position. I just remember, like, pulling it back the same as I had previously done then next thing I've realised, I have noticed the two rear legs on the crane start to come up and because I was still holding on to it so hard I was pulled toward the edge of the building and at that point I shut my eyes. 214 Once Mr Hill commenced the task of positioning the crane outside the safety fence line near the edge of the building and until such time as the panel was securely bracketed to the side of the building and his work was completed, there was a real and perceived need for him to remain attached by his lanyard to the static line. I come to that conclusion because, as the evidence has disclosed, Mr Hill was pulling backwards, back into the building, a very substantial weight - that of the crane together with the load of the panel. The crane was on its wheels and the stability and the capacity of the crane when it was on its wheels was less than it would have been when it was on its feet. Given the possibility, not remote or speculative in my view, that the crane could become unstable for whatever reason while Mr Hill was pulling backwards on it with the safety fence open, it demanded the highest fall protection measures possible. The combined weight of the crane and the panel, if the crane became unstable, would have had, on any reasonable consideration, an immediate and forward propulsion. If that was to occur in the course of the work being performed, then the risk of Mr Hill falling with the safety fence open and without proper fall protection was very real. I find it difficult to comprehend, when one has regard to the nature of the work being performed by Mr Hill, such a risk to safety, in all the circumstances, cannot be said to be a real risk. 215 That there may well be circumstances where a lanyard was required beyond the two metre safety fence limit is evident by the presence of longer, retractable lanyards on the site. In other words, it is clearly recognised within the industry that there may well be circumstances, given the nature of the work being performed, that a lanyard longer than two metres would be required by way of fall prevention measures. 216 I see no merit in the defendant's reliance on the WorkCover Code of Practice as identified given the circumstances of the work being undertaken by Mr Hill at the time he fell from level four of the building under development. 217 I turn now to the Safe Work Method Statements I have earlier referred to and specifically identified detailing the provisions then in place. There is no merit to be placed, in my view, on the defendant's contention that simply by pointing to the Safe Work Method Statements that makes no specific requirement for lanyards to be attached to the static line when working inside the safety fence somehow operates as a defence to these particularised failures. As reference to those sections of the relevant Safe Work Method Statements that are highlighted will attest, the Safe Work Method Statement is silent as to the fall prevention measures that should be in place when the safety fence is removed and the crane being operated in the way that it was. 218 On any view, the Safe Work Method Statements were clearly deficient having regard to the way in which the work was being performed by Mr Hill and the requirement for him to pull the crane in the way he did in the absence of any safety fence. 219 Mr Vullo gave evidence that following Mr Hill's accident, the system was introduced of employees utilising the longer retractable lanyard when the safety fence was open. 220 Turning now to the specific particularised fall protection failures as pleaded by the prosecutor. 221 In the first instance, I consider there is, yet again, a degree of duplicity involved in the way in which these failures are pleaded. Overall, the prosecutor alleges an unsafe system of work both with respect to fall protection equipment when working at heights (particularised failure (9)) and an unsafe system of work for working at heights in relation to appropriate fall protection measures when the safety fence was open or when Mr Hill was moving the crane close to the edge of the building (particularised failure (10)). Further, in relation to particularised failure (11), the prosecutor pleads inadequate supervision in relation to fall protection equipment in the same terms as particularised failures (9) and (10) when taken together. That is, when he was working at heights or when the safety fence was open or when he was moving the crane close to the edge of the building. Again, it seems to me, it is a question of the defendant's overall system of work in relation to the procedure Mr Hill was undertaking that is the critical component of the prosecutor's allegation with respect to inadequate fall protection measures. 222 In relation to particularised failure (9), I have some difficulty in being satisfied the prosecutor has established that failure to the requisite standard. I come to that view because that particular failure specifies a failure on the part of Sassall or Skyrise to maintain a system of work to ensure Mr Hill had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights. On one view of the evidence, it could be said that both Sassall and Skyrise had an overall system of work that did have appropriate fall protection equipment, including retractable lanyards, available for Mr Hill to use when he was working at heights. The real issue simply is not that Skyrise did not have retractable lanyards available but that, in relation to the nature of the work being performed by Mr Hill, the circumstances in which the safety fence was open and the continuum of activity undertaken by him in pulling the crane back in the manner that he did while it was on its wheels, called, in my view, for a more proactive approach to fall protection measures, including the utilisation of a retractable lanyard. That issue is more definitively pleaded in particularised failure (10). 223 In all the circumstances, given the rather open-ended way in which the prosecutor has pleaded particularised failure (9), I am not satisfied that they have established that failure to the requisite standard and, accordingly, it is dismissed. 224 I turn now to particularised failure (10). This failure asserts a failure by the defendant to ensure that Sassall or Skyrise provide or maintain a safe system of work in relation to fall protection in that they failed to ensure Mr Hill was using appropriate fall protection equipment such as a retractable lanyard when the safety fence was open or when he was moving the crane close to the edge of the building. 225 I am satisfied, on the evidence, that that failure as pleaded is established to the requisite standard and I am satisfied the causal nexus to the risk to safety exists. I have already commented on the inadequacy of the Safe Work Method Statement and the prevailing belief on the part of both Mr Vullo of Skyrise and to a lesser extent Mr Murphy of Sassall as well as the defendant that once Mr Hill moved past the safety fence line in the act of pulling the crane backwards on its wheels, that there was no longer any need for him to remain attached to the static line by his lanyard because he was more that two metres from the edge of the building. For the reasons I have already elaborated upon above, I believe such a belief was significantly misguided and failed to properly consider the circumstances in which Mr Hill was performing the work he was undertaking at the time. I have already determined that no reliance can be placed by the defendant on the WorkCover Code of Practice earlier referred to. Further, the Safe Work Method Statements relied upon were clearly inadequate for the task at hand in properly considering all the potential risks to safety to which Mr Hill was subjected in undertaking the work he did in pulling the crane back in the circumstances prevailing. 226 Accordingly, I find particularised failure (10) established as against the defendant. 227 In relation to particularised failure (11), the prosecutor alleges a failure on the defendant's part to adequately supervise Mr Hill. Further, that inadequate supervision is extended to Skyrise and Sassall insofar as the defendant's failure to ensure that Skyrise or Sassall also properly supervised Mr Hill in three distinct areas. Firstly, inadequate supervision in relation to appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights. Secondly, a failure to supervise Mr Hill in relation to the use of appropriate fall protection measures when the safety fence was open. Finally, a failure to supervise Mr Hill in relation to appropriate fall protection equipment when he was moving the crane close to the edge of the building. I have to say this pleading in the alternative in relation to a particularised failure is something that should be discouraged. 228 In part it could be said the prosecutor has already pleaded this issue when dealing with the overall system of work identified in particularised failure (10) and in the overall system of work identified and pleaded in particularised failure (9) that I have already dealt with. 229 That Mr Hill was supervised in undertaking the work that he did is, in my view, established. That is, Mr Vullo did visit the fourth floor the building from time to time to observe Mr Hill at work. Mr McGregor on behalf of the defendant did observe Mr Hill undertaking his task of positioning and pulling the crane back. Indeed, Mr McGregor observed the accident involving Mr Hill as he was standing on an adjacent building nearby when it occurred. On behalf of Sassall, there does not appear to have been any active steps taken to directly supervise Mr Hill in relation to his work. That was left to Mr Vullo on behalf of Skyrise, bearing in mind that it was at all times believed that the employees of Skyrise in installing the curtain wall panels, including the actions of Mr Hill, were not only in accord with the longstanding practice that had been developed but were in accordance with the Safe Work Method Statements in place that had been approved by Australand as well as by Sassall. 230 Again, one returns to the crux of the defendant's position in this matter which is that the need for a lanyard was not required once Mr Hill moved beyond the safety fence line towards the centre of the building while he was pulling the crane because of the requirements in the Safe Work Method Statements, because of the Code of Practice referred to, and because, in the defendant's submission, the possibility of Mr Hill falling from the building, if he had fallen over when he was more than two metres from the edge, did not constitute a real risk to safety. As such, the use of a lanyard was not, in all the circumstances, required. 231 Another difficulty with the way in which this failure has been pleaded is that the third arm of the failure allegation is that Mr Hill was inadequately supervised in relation to appropriate fall protection equipment when he was moving the crane close to the edge of the building. The evidence clearly is that at that time, Mr Hill did have his lanyard attached to the static line and, on that basis, it could be said that he was being properly supervised having regard to fall protection measures when he was doing that particular component in the overall task involved of positioning the crane in the first instance and then pulling back. That, however, is only part of the work being undertaken by Mr Hill at the time of his accident. 232 For the reasons already given, I am satisfied that the defendant's failure to adequately supervise Mr Hill in the work he was undertaking and its failure to ensure he was adequately supervised by Skyrise or Sassall comes down to the system of work that was in place in relation to the activity Mr Hill was undertaking. That is, it was known that he did unclip his lanyard from the static line at a certain point in the pulling back of the crane for the reasons detailed. Neither Mr McGregor on behalf of Australand nor Mr Vullo on behalf of Skyrise believed such a procedure was in any way inadequate. It conformed with their view that Mr Hill was, at that point, more than two metres from the edge of the building and that detaching himself from the static line did not constitute a risk to safety. 233 To the extent that Sassall had subcontracted Skyrise to undertake the work and had also viewed the Safe Work Method Statements involving the procedure to be undertaken by Skyrise employees, there was, on their part, a failure to recognise that within the system of work, which included the supervision of Mr Hill, that he was undertaking the task he was charged to do in a manner that was, in my opinion, inherently unsafe. That is, he was not using appropriate fall protection equipment when the safety fence was open having regard to the height at which he was working and the circumstances and nature of the work he was performing. 234 Retractable lanyards were available to be utilised but for the reasons already elaborated upon at length, they were not considered necessary as fall protection equipment in the circumstances in which Mr Hill was working. 235 I believe, given the nature and circumstances in which Mr Hill was working, including that the safety fence was open and he was involved in the procedure that he was and in the circumstances that he was, that a retractable lanyard was appropriate to be used as a proper and safe fall protection measure. 236 I am satisfied particularised failure (11) is established including the causal nexus between it and the risk to safety. (2) Sassall 237 As earlier indicated in this judgment, counsel on behalf of Sassall has raised the issue of 'honest and reasonable mistake of fact' as a ground of exclusion from criminal liability to the substantive offences arising under s 8 of the Act. In doing so, counsel challenges the long established authorities of this Court that the offences arising under s 8 (having their statutory predecessors in ss 15 and 16(1) of the 1983 Act) are absolute offences subject to the defences arising in s 28 of the Act. 238 In support of his contention on this issue, counsel for Sassall pointed in the first instance to a number of authorities. In the first instance, he referred to the decision of Basten JA in Kirk v Workcover Authority of NSW (2006) 66 NSWLR 151 at 185 and particularly at [146] as follows: The jurisprudence in the Industrial Court has given significant weight to the fact that reasonable practicability and questions of control are dealt with by way of the defence provided to the employer by s 53. Although the structure of the legislative scheme is a significant consideration, it does not dictate the conclusion that the liability imposed by s 15 and s 16 is in each case absolute. Taken literally, s 15 requires an employer to ensure that workers do not fall sick, suffer strokes or heart attacks or die at work, even for reasons entirely unrelated to the work environment. That construction is not adopted, because it would not be sensible in the statutory context. Similarly, it appears that the obligation does not extend to the removal of risks which are so remote as to be speculative. That exclusion might extend to the risk of events which, though remote, are statistically predictable. But if the obligation is not taken to include its full literal extent, by what principle is that construction achieved? Whether the obligation extended to conduct of which the employer was not aware and of which it could not be said that it should reasonably have been aware, is a question of construction to be determined at least with reference to the principles discussed in the cases referred to above. 239 At the time that Basten JA delivered the above judgment, the New South Wales Court of Appeal had not found it necessary to determine whether this ground of exclusion applied to the Occupational Health & Safety Act 2000. It was contended that the analysis by Basten JA found support in the recent judgment of the High Court in CTM v R [2008] HCA 25. I will return to that decision shortly. 240 In the judgment of the New South Wales Court of Appeal in Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156 delivered on 3 July 2008, a unanimous judgment of Spigelman CJ, Hodgson JA and Handley AJA considered the approach taken by the Commission to the overall interpretation of the Occupational Health and Safety Act 2000. In doing so, they were specifically considering a decision of Walton J, V-P of the Industrial Court in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207 reported at (2004) 135 IR 166. In the initial proceedings, Walton J, V-P found that each of the defendants had committed a contravention, respectively, of ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983. In the initial proceedings before Walton J, V-P, the defendants did rely on the express defence available in what was then s 53 of the 1983 Act. Those defences are now to be found in s 28 of the 2000 Act. 241 Before the New South Wales Court of Appeal, the claimants, as they then were, made submissions on a number of issues. Relevant to this case, they specifically raised the issue of what was expressed as the need that any risk to safety as envisaged by the Act had to be foreseeable. Further, they raised as a preliminary point, their honest and reasonable mistake of fact - not in the sense as arising within the provisions of the defence available under s 28 of the Act but as a defence to the substantive charge. 242 In considering these matters, amongst others, in their judgment the Court of Appeal said as follows: [41] The claimants submit that any risk to safety had to be foreseeable. I reject the submission that a test of reasonable foreseeability should be introduced into each statutory obligation. Section 15(1) and s 16(1) are strict liability offences in the sense that a mental element is not part of the offence, whether expressed in terms of intention or negligence. I do not find any assistance in the cases relied upon by the claimants concerning actions in negligence by an employee against an employer. (emphasis added) [42] The claimants also referred to the defence of honest and reasonable mistake of fact, which, if applicable could give rise to a jurisdictional issue. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 at [43] referring to R v Badger (1856) 6 EL & BL 138; 119 ER 816.) The significance of this "defence" or ground of exculpation, has recently been reaffirmed. ( CTM v The Queen [2008] HCA 25 at [5]-[8], [35].) This "defence" was not relied upon before Walton J. Reference was made in the submissions before his Honour to the "defence", but the claimants did not and, on my reading of the decision in the Industrial Relations Commission and on appeal to the Full Bench, could not suggest that the "defence" had anything to do with this case. 243 The issue of whether offences before this Court are absolute or subject to the defence of honest and reasonable mistake of fact was considered by Boland J, P in Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123. In that judgment, his Honour extensively considered this issue. In relation to the decision of Basten JA in Kirk Group that I have earlier referred to, including the above passage relied upon by the defendant, his Honour said as follows: [224] There are a number of things to be noted about these observations. First, his Honour appears not to have had the benefit of the history of the provision nor extrinsic material, which confirms that the meaning of the provision is the ordinary meaning conveyed by the text of the provision: see s 34(1)(a) of the Interpretation Act . I will return to this later. [225] Secondly, a literal interpretation of s 8(1) does not lead to an absurd, irrational or unreasonable result. This is so for the following reasons: (1) the prosecution must prove all of the elements of the offence beyond reasonable doubt: State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120 - 121. This includes proving that the defendant owes the duty under s 8(1) to the employee or employees affected and that the safety standard has been breached; (2) there will be no offence unless the defendant's acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when the employee or employees were exposed to the risk: Drake Personnel Ltd at 449; The Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [45]. The question of causation is to be dealt with in a practical and common sense way: O'Sullivan at [50]. Where person who suffers a stroke or heart attack or dies at work for reasons entirely unrelated to the work environment, it is most unlikely this would give rise to an offence under s 8(1) because there would have been no act or omission on the part of the employer that could be said to have caused a risk to the health or safety of the employer there would be an absence of causation; (3) the 2000 OHS Act in s 28 provides for two defences: the reasonable practicability defence (s 28(a)); and the absence of control defence (s 28(b)). Where a person dies at work for reasons entirely unrelated to the work environment it is unlikely in the first place that any charge would be laid, but even if the offence was found to have been committed, the cause of it would surely be a matter over which the employer had no control and against the happening of which it was impracticable for the employer to make provision; (4) in relation to the reasonable practicability defence, the test is not whether steps could be taken that were guaranteed to prevent the risk to health and safety but rather whether steps were available that could have materially reduced the risk: see William and Margaret Adamson t/a John Adamson & Sons v Procurator Fiscal, Lanark [2000] ScotHC 102 at [21]; R v Gateway Foodmarkets Ltd [1997] ICR 382 at 387 - 388. In other words, the defence requires a defendant to satisfy the court that it has done what is reasonably practicable to avoid a state of affairs. The defence is, therefore, flexible because it does not restrict the way in which the defendant can show that it has done what is reasonably practicable ( R v Davies at [26]). It should be noted that under consideration in Adamson Procurator Fiscal and R v Davies was s 3(1) of the Health and Safety at Work etc Act 1974 (UK); (5) in R v British Steel Plc [1995] ICR 586, Steyn LJ considered the "troublesome" issue raised by counsel that where an individual employee was guilty of negligence, the corporate employer would not have the defence of reasonable practicability and, therefore, the section could not sensibly be given such wide effect as to make the employer criminally liable for the acts or omissions of even its most junior employees, where these have put another employee, or even the same employee, at risk of injury to his health, safety or welfare. The court concluded at 594: there may be circumstances in which it might be regarded as absurd that an employer should even be technically guilty of a criminal offence"... but that ... " in any event, so-called absurdities are not peculiar to this corner of the law: at the extremities of the field of application of many rules surprising results are often to be found. That circumstance is inherent in the adoption of general rules to govern an infinity of particular circumstances. In R v Gateway Foodmarkets Ltd the Court noted what was said in British Steel Plc and stated at 388: The answer lies, we suggest, in the application of the qualification or caveat contained in the statute itself. The duty under each section is broken if the specified consequences occur, but only if "so far as is reasonably practicable" they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning "taken by the company or on its behalf." In other words, the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety, etc. of any employee, unless all reasonable precautions have been taken ... as we would add, by the company or on its behalf. If this is correct, then it follows that the qualification places upon the company the onus of proving that all reasonable precautions were taken both by it and by its servants and agents on its behalf. The concept of the "directing mind" of the company has no application here. The further question is whether this includes all those persons for whose negligence the employer is vicariously liable to third parties for the purposes of the law of tort. If it does, then the employer is not able to rely on the statutory defence when any of his employees has been negligent, i.e. failed to take reasonable precautions, "in the course of his employment." That phrase has been widely defined, and if the same test applies here then the statutory defence is limited to the rare case where the individual employee was on a frolic of his own, and where there was no failure to take reasonable precautions at any other level. It is possible that some narrower test should be defined, but as stated above we do not consider that it is necessary to decide this for the purposes of the present appeal. I shall return later to the UK legislation and authorities. [226] Referring back to the statement of Basten JA in Kirk Group , his Honour said: Similarly, it appears that the obligation [to ensure safety] does not extend to the removal of risks which are so remote as to be speculative. That exclusion might extend to the risk of events which, though remote, are statistically predictable. But if the obligation is not taken to include its full literal extent, by what principle is that construction achieved? [227] I have sought to explain the qualifications that apply to the absolute obligation in s 8(1). As for "risks which are so remote as to be speculative" I must confess that I do not understand how such a test can enter into consideration where the offence is an absolute one. Notions of "remote" and "speculative" would appear to have their origins in Drake Personnel at 452 (where reference is made to Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50). However, if reasonable foreseeability is not relevant to the question of liability under the 2000 OHS Act (see Drake Personnel at 452), I am unable to see, with respect, how "remote" and "speculative", as independent tests, can enter the picture unless it is in the context of causation or one of the defences under s 28. 244 His Honour's conclusion, as exemplified in the above passage, is a conclusion with which I concur. 245 The judgment of the New South Wales Court of Appeal in Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156 delivered on 3 July 2006 does not, on my reading of it, offer any assistance to the defendant in the proposition that it seeks to press. That is that the nature of the offences before this Court are not absolute and are subject to the defence of honest and reasonable mistake of fact to the exclusion of the defences arising under s 28 of the Act. 246 The defendants also relied on the decision of the High Court in CTM v R [2008] HCA 25 delivered on 11 June 2008. 247 In that matter, the High Court was considering the application or otherwise of the common law defence of honest and reasonable mistake of fact to an offence arising under s 66C of the NSW Crimes Act 1900. The appellant had been charged with an offence arising under s 66C of that Act alleging sexual intercourse with a child aged between 10 and 16 years. As their Honours highlighted, prior to 2003, there were certain defences to offences arising under s 66 of the Act. They were to found in s 77(2) of the Crimes Act which provided as follows: (2) It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under section 61E(1A), (2) or (2A), 61N(1), 61O(1) or (2), 66C, 66D, 71, 72 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E(1), 61L, 61M(1) or 76 if the person charged and the child to whom the charge relates are not both male and it is made to appear to the court or to the jury before whom the charge is brought that: (a) the child to whom the charge relates was of or above the age of 14 years at the time the offence is alleged to have been committed, (b) the child to whom the charge relates consented to the commission of the offence, and (c) the person so charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years. 248 In 2003, the New South Wales Parliament amended the relevant provisions relating to sexual offences by passing the Crime Amendment (Sexual Offences) Act 2003. They made amendments to s 66C of the Act and, in doing so, removed the express defence to a charge of carnal based on reasonable mistake of age in s 77(2). The majority decision of the Court (Gleeson CJ, Gummow, Crennan and Kiefel JJ) highlighted the speech to Parliament on the Bill by the then Attorney General and, in particular, the following passage: The bill eliminates the defence currently available to consensual sexual activity with young people aged between 14 and 16 years, formerly known as carnal knowledge. The bill removes the express statutory defence presently provided in section 77(2)(c) of the Crimes Act that the person charged had reasonable cause to believe, and did in fact believe, that the child was of or above the age of 16 years. As a consequence, it will no longer be possible to argue that a uniform age of consent of 16 years creates an effective age of consent of 14 years. 249 In relation to that, the Court said as follows: [24] What the Attorney-General did not say was that the "express defence" in s 77(2) was a statutory narrowing of a wider potential ground of exculpation that, according to established principle, would at least arguably have been available otherwise and that, in 1988, had been held to be available in the case of certain homosexual offences. 250 In para [27], their Honours articulated the critical question as follows: The question arises: what does the law now provide if a person charged with an offence against s 66C(3) honestly believed, on reasonable grounds, that the complainant was aged 16 years or over? It has already been noted with reference to what was said by Dixon J in Proudman v Dayman [26] that the potential ground of exculpation requires an honest and reasonable belief in a state of affairs which, had it existed, would be such that the accused's conduct was innocent... 251 In considering this issue, their Honours relevantly said: [34] ... Nevertheless, Howie J, and Hodgson JA and Price J who agreed with him, felt compelled to conclude that there was a legislative intent that, following the repeal of s 77(2), honest and reasonable mistake would be irrelevant to a charge of an offence against s 66C(3). We accept that, in the face of the legislative silence earlier referred to by Howie J, there are powerful arguments in support of that conclusion. There is, however, what appears to us to be a compelling argument to the contrary. It is that foreshadowed by Cave J in R v Tolson , and it concerns the relationship between the courts and Parliament. [35] The common law principle in question reflects fundamental values as to criminal responsibility. The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication. We would, therefore, construe the legislation in the light of the principle of criminal responsibility stated at the outset of these reasons. An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3) . The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years. (emphasis added) 252 Ultimately, in relation to the particular circumstances in which the defence case had been conducted at the trial, the Court dismissed the appeal for the reasons expressed as follows: [38] ... There was, however, nothing to support the honesty and reasonableness of a suggested belief in the truth of his out-of-court assertion that the complainant had told him what would have been a lie about her age. The complainant (who was in fact 15) gave evidence that she was in year 9 at school. The appellant, aged 17, was in year 11. In his record of interview the appellant, when asked by the police how old the complainant was, said "16". When asked how he knew that, he said that the complainant had told him. He also said the complainant was, he thought, in year 10. It was not suggested to the complainant in cross-examination that she had lied to the appellant about her age or, for that matter, that she had discussed it with him. [39] Honesty and reasonableness are essential features of the mistaken belief relied upon as a ground of exculpation. The belief of the appellant was a matter peculiarly within his own knowledge, but he gave no sworn testimony about it. The reasonableness of his belief was based on an out-of-court assertion as to what the complainant allegedly said, but this was not put to her in cross-examination. A tentative out-of-court suggestion by the appellant as to the complainant's class at school, which would have been consistent with his case, was shown by the evidence to be wrong. The evidential burden was not satisfied. 253 Clearly, the majority decision in CTM v R has asserted the common law principle of honest and reasonable mistake of fact. They have done so however, it seems to me, in the absence of any defence available and particularly in the absence of any defences that had been previously available under s 77(2) of the NSW Crimes Act. That is simply not the case in relation to the NSW Occupational Health and Safety Act 2000. 254 The Occupational Health and Safety Act 2000 specifically renders an offence absolute subject to the defences available under s 28 of the 2000 Act. 255 In my view, the long held authorities of this Court that the offences arising under s 8 of the Act are absolute subject to the statutory defences available under s 28 of the Act is correct. To the extent that the defendants submitted orally that the decision of Boland J, P in Cahill v State of New South Wales (Department of Community Services) (No. 3) was 'flawed', there was no elaboration made by the defendants as to the basis on which such a submission was put. 256 In conclusion on this point, I do not agree with the defendant's contention that the substantive offences arising under s 8 of the Act are not absolute and are subject to the common law exculpation of honest and reasonable mistake, generally referred to as the Proudman v Dayman defence (1941) 67 CLR 536 at 541. 257 The issues raised by the defendants in relation to the offence with which they stand charged will be considered in light of s 28 of the 2000 Act. (a) Alleged weight lifting capacity failures 258 It is alleged that the defendant exposed Mr Hill to a risk to his health and safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and, in particular: [4] The defendant failed to provide or maintain a safe system of work for installing the curtain wall panels (the panels) in that it failed to ensure that the weight of the panels it supplied to Skyrise was properly and accurately identified and was communicated to Skyrise. [5] The defendant failed to ensure that the employees of Skyrise were properly supervised by its own employees or the employees of Skyrise or Australand with a view to ensuring that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. [6] The defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Skyrise or Australand to eliminate or minimise the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. 259 The contentions embraced by both defendants in relation to the alleged weight lifting failures relative to the actual capacity of the crane took a significant amount of evidentiary time before the Court. Sassall's submission on this issue is on all fours with the submission made on behalf of Australand, That is, when lifting the curtain wall panels on the eastern elevation on 28 and 29 March 2003, the actual capacity of the crane was greater than the rated WLL capacity of 400kg and, on that basis, no risk to safety arose. 260 As will be seen by reference to the failures particularised with respect to Australand in relation to weight lifting capacity and those pleaded with respect to Sassall, there is significant similarity on the substantive particulars pleaded - the only distinction being made is that Skyrise was a principal sub-contractor to Australand on the development site. 261 Particularised failure (4) above is in relevantly similar terms to that alleged with respect to Australand in particularised failure (5) in the Australand summons. I do not propose to repeat the basis of my conclusions in relation to the central failure asserted by both defendants on that issue and on which so much time was spent. That is, that the actual capacity of the crane was greater than the weight of the panel being lifted and therefore no risk to safety arose. 262 By reference to the actions of Sassall, it should be reemphasised that Mr Murphy on behalf of Sassall was the employee who conveyed to Mr Vullo of Skyrise what he understood to be the weight of the heaviest panel to be lifted on the eastern elevation of the building. There is no dispute that that information was wrong and that it was understated by approximately 95-100kg. That is, as earlier stated with respect to Australand, the weight conveyed to Mr Vullo was 385kg whereas the actual weight of the panel lifted by the crane on the day in question was some 485kg. 263 The circumstances in which the information was conveyed by Mr Murphy to Mr Vullo have already been dealt with by me earlier in this judgment together with the conclusion I have reached as to whether Mr Vullo did or did not sight the email sent to Mr Murphy by Mr De Hossen on 20 March 2003. 264 The evidence of Mr Vullo was that when undertaking this work on other building sites prior to commencing on the Australand site, it was standard practice for the weight of each panel to be identified on the panel when it was delivered to the site. This was not the case on the Australand development site. Evidence was received from Mr Gregory Linehan, the Managing Director of Progressive Glazing Services Pty Limited and Fabricated Glazing Pty Limited. Fabricated Glazing was sub-contracted by Sassall to glaze, palletise and then deliver completed curtain wall panels to the Australand worksite in order to be installed by Skyrise. He gave evidence that when the panels were glazed as required they were then, in identifying location numbers, placed on a wooden pallet. When that was done, he described the information that was then contained on a label placed on the pallet as follows: Q. Generally what information would you expect in the label for this particular pallet to have contained? A. It would contain the panel type or panel types, it would contain the date of manufacture, it would contain who signed the FA off of inspection and the weight of the panel and the pallet number - pallet identification number. Q. The weight of the pallet in its finished form - that would be the pallet with the panels and what had been added to the pallet to make it into the box? A. That's correct. ... Q. Can I call that a gross weight? A. Yes. Q. So the grossed up weight of that object which contain - that object being the pallet, the two panels, all the packing and wrapping. A. Correct. Q. And the extra wood that was needed to make the pallet into a box. A. Yep. Q. Now, does that mean that each of those gross objects were separate - was weighed? A. Not every object was weighed. Every object type was weighed. So, for instance, if we were to manufacture a run of starter panels that had five panels on it that were all of a common size, we would weigh the first one and we would use that weight - if there was a change ... Q. You would weigh the first pallet. A. The first pallet. Not every pallet was weighed. If there was a change to the configuration of the pallet, then it would be weighed. Q. So I take it this gross weight was not intended to be an exact weight of the whole box in any event. It was an approximation. A. It's generally within one to two kilos. Q. And may I take it from your evidence that what was not recorded was the individual weights of the panels themselves, the separate weights of the panels, and I'm speaking of before 29 March when there was an incident at the Rhodes development. A. The panels' weights individually were not recorded. They were weighed, they were recorded just on a data sheet so that the combined weight we knew approximately what weight we were putting into a pallet. Q. But that data sheet didn't accompany the pallet when it was sent off on its delivery trip? A. No. 265 In addition, Mr Linehan confirmed that the information contained on each panel was the identification number as to the level, location and sequence number of the panel. For example. where a pallet had been marked 21SC that would be a panel for the corner of level two. 266 One of the pieces of information that was required to be known by Skyrise, and known accurately, was the weight of each panel. It is particularly relevant to ensure a safe lift having regard to the capacity of the crane. That much has been emphasised by Mr Vullo, Mr Murphy, as well as the Skyrise employees Mr Church, Mr MacCue and also, of course, Mr Hill. They were all aware of the need to know the weight of each panel bearing in mind the known capacity of the crane. 267 While I accept that it was always possible for Mr Vullo on behalf of Skyrise to undertake his own actions to individually weigh each panel before lifting, it seems to me that Sassall, as the subcontractor responsible for manufacturing the panels, should have taken steps to ensure that the weight of the panels it supplied was accurately identified and communicated to Skyrise. In relation to the panels being lifted on 28 and 29 March 2003 on the eastern elevation, and particularly the one being lifted by Mr Hill at the time of his accident, that was simply not the case. Given the importance attached to the need to ensure that the weight of the panel was accurately known, the system of work in place for communicating that information to Mr Vullo was clearly inadequate. 268 On the evidence of Mr Murphy, the system that Sassall had in place for conveying that information to Mr Vullo was somewhat ad hoc. It consisted of him making telephone enquiries to Mr John Sassall. When he received the forwarded email of Mr De Hossen's on 20 March 2003, he failed to realise that the calculations given referred to a panel whose dimensions were 3.7 x 2.4m. In short, he failed to appreciate that the weight of the starter panels on the eastern elevation were in fact 4.9 x 2.4m. That failure to accurately convey information to Skyrise clearly was a factor in the continuing use by Skyrise of the crane to lift those panels notwithstanding that the weight of the panels being lifted was well in excess of the WLL of the crane. 269 It should also be reemphasised at this point that Mr Murphy on behalf of Sassall acknowledged that if he had known the true weight of the panels that were being lifted by Skyrise employees on 28 and 29 March 2003, he would not have allowed the lift to take place because the capacity of the crane was not sufficient. He was familiar with the panel installation process undertaken by Skyrise and had observed it before Mr Hill's accident. 270 In all the circumstances, I am satisfied that particular (4) is established to the requisite standard and I am satisfied as to the causal nexus to the risk to safety. 271 Turning now to particularised failure (5) dealing with the defendant's failure which goes to supervision of its own employees or the employees of Skyrise or Australand with a view to ensuring that the weight of the panels did not exceed the WLL of the crane. 272 I have already referred to this issue at some length in relation to Australand. In part, the defendant's asserted failure by the prosecutor to supervise its own as well as Skyrise or Australand employees in relation to ensuring that the weight of the panels lifted did not exceed the WLL of the crane is, in part, referable to particularised failure (4) which is identified as an overall system of work failure to ensure that the weight of the panels it supplied was properly and accurately identified and communicated to Skyrise. Mr Murphy has already acknowledged that if he had known the weight of the panel was not 385kg but 485kg, he would not have permitted the Skyrise employees to install the starter panels on the eastern facade using the crane that they did because it would have exceeded the capacity of the crane. It was always Mr Murphy's view on behalf of Sassall, that the weight of the heaviest panel was 385kg. On that basis, knowing that the WLL of Mr Vullo's crane was 400kg, he believed it was safe for the work to go ahead. 273 I have already determined at length that the submissions raised on behalf of Australand, endorsed and embraced in full by counsel on behalf of Sassall, that the actual capacity of the crane was greater than 400kg is not, in my view, relevant to the issue I have to determine. That is, at the time the crane lifted the starter panels on the eastern elevation on 28 and 29 March 2003, the Test Certificate in relation to the crane certified a WLL of 400kg. That lettering also appeared on the boom of the crane. Further, it was Mr Murphy's belief that the WLL of the crane was 400kg. There was no other information nor was there any evidence before me that Mr Vullo, Mr Murphy or, for that matter, Mr McGregor, knew or believed, at the relevant time, on the basis of any information before them, that the WLL of the crane was anything other than what the Test Certificate certified and, if so, what it actually was. 274 Subsequent to the accident, evidence has shown that the actual capacity of the crane was greater than the certified WLL of 400kg but precisely what it was is unclear. That, in my view, is not the point. The point is, at the time the Skyrise employees were installing the panels, they operated in the belief and the knowledge, as did the Sassall and Australand employees, that the WLL of the crane was 400kg. If it was greater than that, that was simply not known at the relevant time. Accordingly, once the crane lifted beyond the WLL of 400kg, it entered into a situation of a potential risk to safety to those employees utilising it in the manner in which it was at the time. 275 In all the circumstances, I am satisfied that the defendant did fail to properly supervise its own employees and, in particular, the employees of Skyrise insofar as ensuring that the weight of the panels did not exceed the WLL of the crane which was lifting the panels. In relation to employees of Australand, it is difficult to comprehend a workplace situation where this defendant could be said to be responsible for supervising Australand employees in relation to this issue. That is, Mr Murphy on behalf Sassall conveyed the weight of the panel to Skyrise. Certainly, Sassall had a contractual as well as a legislative obligation to ensure that it provided a safe workplace. It is arguable, in my view, whether that obligation extended to supervising Australand employees. True it is that Mr Murphy, if he had realised the weight of the panel, may well have discussed the issue with Mr McGregor but whether that extends to a direct obligation to supervise is, in my view, unclear. Accordingly, whilst I find particular (5) established, including the causal nexus with respect to its own and Skyrise employees, I am not satisfied to the requisite standard that the defendant's obligation extended to supervising employees of Australand in relation to this matter. 276 In relation to particularised failure (6). Again, this is a failure particularised in the same terms with respect to Australand. For the reasons already determined with respect to Australand, I am of the view that Sassall also failed to properly consider a risk assessment approach to all of the activities involved in the installation of the panels and, in particular, the activities of Mr Hill. In that respect, by reference to the Safe Work Method Statements which were sighted by Sassall and approved for passing on to Australand, I am satisfied that the defendant failed to insist on a proper risk assessment or control measures approach in relation to the procedure to be adopted by Mr Hill when he undertook the task of positioning and pulling back the crane on the fourth floor in the circumstances in which he did. Accordingly, I am satisfied particularised failure (6) has been established together with the causal nexus with the risk to safety. (b) Alleged fall protection measure failures 277 The prosecutor particularised the fall protection failures as follows: [7] The defendant failed to ensure that Skyrise provided or maintained a safe system of work for working at heights in that Skyrise or Australand failed to ensure that William Hill, an employee of Skyrise, had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or failed to ensure that he was using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. [8] The defendant failed to ensure that William Hill was adequately supervised either by its own employees or Skyrise or Australand in relation to having appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. 278 In the first instance, as I have already commented in relation to other particularised failures arising in these matters, there is a degree of duplicity in the pleadings in the above two failures as pleaded. That is, in particularised failure (7), the prosecutor alleges that the defendant failed to ensure that Skyrise provided or maintained a safe system of work in that Skyrise or Australand failed to ensure that William Hill had appropriate fall protection equipment when he was working at heights or failed to ensure he was using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. 279 In particularised failure (8), the prosecutor alleges that the defendant failed to ensure Mr Hill was adequately supervised either by its own employees or Skyrise or Australand in exactly the same terms as identified in particularised failure (7). 280 While particularised failure (8) refers specifically to supervision, it seems to me, in predominant respects, there is a considerable degree of overlap as between the two alleged failures of the defendant when one has regard to the specific activity identified. Further it seems to me that when one has regard to the safe system of work referred to in particularised failure (7), it would also include a failure to adequately supervise with respect to exactly the same activity identified in particularised failure (8). The prosecutor cannot rely on both particularised failures in relation to the same activity identified. In my view, particularised failure (8) should fail for duplicity in that what is alleged in particularised failure (7) regarding the defendant's overall failure to maintain a safe system of work would incorporate, in my view, the failure of adequate supervision with respect to the same activity identified in alleged particularised failure (8). 281 For that reason, I am of the view that the prosecutor cannot rely on particularised failure (8) and it must fail for duplicity. 282 In relation to particularised failure (7), the submissions for the defendant in relation to this particularised failure were on all fours with that already detailed in relation to Australand. That is, at the time Mr Hill was performing the task that he was, he was located behind the safety fence line in a position that did not require him to be attached to the static line. For the reasons already detailed in relation to Australand, he was, it was submitted, not exposed to a risk to safety even if he were to fall or trip in those circumstances. 283 I am satisfied that particularised failure (7) as pleaded is established. The evidence is that scant notice was taken by Sassall employees as to the process by which Mr Hill actually undertook his work. Although Mr Murphy said he had observed the process, he also said he had never observed the process of the Skyrise crane operator hooking or unhooking from the safety line. Given that evidence, it strongly infers Mr Murphy did not properly observe the full lifting process. As the Project Manager for Sassall on site responsible for safety, it was a process he should have critically observed for safety considerations. 284 Overall, it seems to me that Sassall was content to allow Skyrise to undertake the work in the belief that, as Skyrise had undertaken this task many times before, there was no need, as it were, for Sassall to concern itself unduly with the system of work that was put in place by Skyrise in relation to the lifting of the panels. Sassall, it seems to me, adopted an approach of leaving Skyrise to get on with the task of lifting the panels without paying great heed to the process by which the work was undertaken and the safety implications arising. 285 For the reasons that I have already elaborated upon in relation to Australand, it is clear, given the way in which Mr Hill was utilising the crane at the time of his accident, that a failure to ensure that he was attached to the static line throughout the entire lifting process was a system of work that exposed him to a real risk to safety. 286 It was beholden on Sassall, as part of their safety obligations on site, to ensure that the system of work that Skyrise had in place for the lifting of the panels utilising the crane in question was safe and without risk to safety. On any view, the system of work being utilised by Mr Hill at the time in pulling back the crane in the circumstances in which he did, with the safety fence removed, was an activity fraught with risk. As the evidence of Mr Hill and Mr Vullo has exemplified, there were circumstances where the crane became unstable. Given the way in which the work was being performed, the possibility of the crane becoming unstable and toppling in the way that it did was not a risk to safety that was remote or speculative but was a very real one. 287 As already determined in relation to Australand, no reliance can be placed by the defendant on the WorkCover Code of Practice referred to nor to the Safe Work Method Statements prepared by Australand. Nor, in my view, can Sassall simply point to Skyrise's long experience in installing these types of curtain wall panels and say that they were able to rely on Skyrise to ensure that safe system of work existed. That is not the test. The test is that Sassall had an obligation to ensure that a safe system of work existed. They failed to ensure that. 288 As I have already referred to in relation to particulars pleaded with respect to Sassall concerning the weight lifting capacity issue, I have some difficulty in accepting that Sassall's responsibility for ensuring a safe system of work in relation to particularised failure (7) extended to them ensuring that Australand had a safe system of work in place. It seems to me that Australand had the overall responsibility for safety on site. To the extent that the system of work that was in place was deficient, it does not seem to me that it was the responsibility of Sassall to supervise Australand in relation to Australand's responsibilities for overall site safety. 289 Having regard to the failure as particularised and my reasoning already set out in this matter in relation to Australand, I am satisfied that particularised failure (7) is established and that causal nexus between the failure as identified and the risk to safety existed. Defences arising under s 28 of the Act 290 I propose to deal with this issue with respect to both defendants. Counsel for Sassall embraced and supported the submissions put by Australand on this issue. 291 Section 28 of the Act provides: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) 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 for the person to make provision. 292 In raising the statutory defences available, the defendant has the onus of establishing, to the civil standard of proof, both or one of them in order to displace the absolute obligation s 8(1) imposes. 293 In the first instance, what is 'reasonably practicable' for the defendant to have done to comply with the Act must be an objective determination based on the facts and circumstances of the case. See Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 362 and WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 at [80]. 294 In Slivak v Lurgi (Aust) Pty Limited (2001) 205 CLR 304 the High Court (Gleeson CJ, Gummow and Hayne JJ) said at [37] concerning the phrase 'so far as is reasonably practicable' in s 24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA): The requirement applies to matters which are within the power of the designer to perform or check… 295 In her dissenting judgment in Slivak v Lurgi, Gaudron J commented on the phrase 'reasonably practicable' in the following terms: The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases: · the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible"; · what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time (38); · to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk. 296 In WorkCover Authority of New South Wales v Fletcher Constructions Australia Pty Limited (2002) 123 IR 121 the Full Bench reviewed the proper approach to be taken to the phrase 'reasonably practicable' by reference to relevant authorities and endorsed, by majority, the conclusion expressed by Walton V-P in WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 at [88] as follows: As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 297 A system of work that involved lifting the panels utilising the crane in the way that it was done and being aware that it was critical to know the weight of the panel relative to the capacity of the crane represented a risk to safety that was known to both defendants. A failure to ensure those two critical criteria were observed entailed the potential for serious injury given the circumstances in which the work was being performed. 298 The statement by Gaudron J above that '... the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts' was applied by the Court of Appeal in Powercoal Pty Limited v Industrial Relations Commission (New South Wales) (2005) 145 IR 327 at [84]. 299 Finally, on the application of foreseeability to the statutory defence of reasonable practicability: See Genner Constructions Pty Limited v WorkCover Authority (New South Wales) (Inspector Guillarte) (2001) 110 IR 57 where the Full Bench (at 74-5 [67]) said: … it would not generally be practicable to take measures to guard against a detriment to safety that was not reasonably foreseeable. 300 Also, on the issue of foreseeability it is relevant to a defence under s 28(a) if the inadvertence, inattention, disobedience or unreasonableness on the part of an employee was not reasonably foreseeable: See WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 at [129] where Walton J, V-P said: I note that the statement of principle in Arbor Products appears to qualify the extent of the duty to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee to only that conduct which is "reasonably foreseeable". The use of the words "reasonably foreseeable" in that context should not be construed as introducing an element of foreseeability to the duty owed under s 15, or to limit the risks to safety contemplated by s 15 to only those that are foreseeable (as was proscribed by the majority in Drake Personnel Ltd ). Rather, to the extent that the behaviour of careless or disobedient employees may not be reasonably foreseen, that is a matter which may properly be raised in relation to a defence under s 53 of the Act. That is, the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against. 301 See also on this point, the Full Bench decision: Morrison v Powercoal Pty Limited and anor (2004) 137 IR 253 at [121]. 302 Reference was also made to the decision of the Full Bench of the Court in St Hilliers Contracting Pty Limited v WorkCover Authority (NSW) (2007) 162 IR 241 in particular at [22] where the Full Court stated as follows: The defences afforded by s 28 are vital to the balance of the absolute criminal liability created by the Act and their significance should not be undervalued. They must be given due consideration, and, should the Court come to the view that they do not apply, adequate reasons must be given. 303 Counsel for Australand emphasised that the above decision noted as follows: (a) In considering the potential application of the defences under s 28, it is important to identify the nature of the risk to safety under consideration; (b) The decision reaffirmed the notion of reasonable foreseeability of risk as relevant to the defences under s 28 of the Act; (c) The assessment of the concept of reasonable foreseeability must be made in the context of the surrounding factual circumstances; (see St Hilliers at [33]) (d) A finding that the happening of an event was not reasonably foreseeable will generally lead to a finding that it will not be reasonably practicable to make provision against that event (see St Hilliers at [37]). 304 Having regard to the above principles, counsel for the defendant contended that, in the first instance, the relevant risk was the risk to Mr Hill falling from the building. In my view, that does not properly describe the risk to safety that, it is said, arose in relation to the work being performed. The risk to safety is that once the crane went beyond its WLL and, given the weight of the panel being lifted, that there was a risk to safety that the crane was overloaded to the point of instability. That, the prosecution asserts, is what gave rise to the risk to the health, safety or welfare of Mr Hill. 305 The prosecution also asserted that the one clear inference pertaining to the state of the crane when it tilted up and went over the edge of the building was that it was overloaded to the point of instability and that this was, in the circumstances of the case, the only rational inference. 306 In my view, the relevant risk to safety was the risk to injury to Mr Hill arising from the instability of the crane. That, in my view, potentially arose once the crane went beyond its WLL having regard to the weight of the panel being lifted. That risk to safety included, in my view, the risk of Mr Hill falling from the building in the way in which he did in light of the factual circumstances prevailing and in the way in which Mr Hill was working. That is, he was, at the time the crane became unstable and went over the edge of the building, pulling back on the crane with the safety fence open. That crane had a tare weight of 1051kg and it was carrying a load some 100kg in excess of its 400kg WLL. It was also, at the time of the accident, on its wheels. That factor is not a factor that has been specifically identified by the prosecutor in the pleadings. It seems to me that all that that fact does is increase the risk to safety that Mr Hill was subjected to. That is, he was pulling back the panel load together with the weight of the crane with the crane being mobile on its wheels. All the more reason, it seems to me, why it would have been imperative not to exceed the rated WLL of the crane. 307 It is not difficult to conclude that the stability of the crane with its rated WLL of 400kg would be adversely affected when it was being utilised as a mobile crane in the way that it was at the time of his accident. It was always tested as a static crane, both by Bedlex and subsequently by All Safe. The All Safe Certificate made it clear it was a static floor crane. Mr McGregor of Australand knew the process by which Mr Hill, as an employee of Skyrise, put the crane on its wheels and pulled back in the manner in which he did. Australand was well aware that the WLL of the crane was of critical importance having regard to the weight of the panels as was Mr Murphy on behalf of Sassall. Utilising the crane on its wheels in the manner that it was would, on any considered view, have adversely affected the stability of the crane. All the more reason, it seems to me, that both defendants were under an obligation to ensure that there was a system in place that ensured not only accuracy as to the weight of the panels but that the rated capacity of the crane identified in the Test Certificate was maintained at all times. 308 That was an obligation that was, at all times, reasonably practicable for both defendants to discharge. That is, I am satisfied it was reasonably practicable for the defendants to have in place a system of work that rigorously insisted on that and ensured it was maintained. On Sassall's part, it is, in my view, no answer to their safety obligations on the site to say they simply relied on Skyrise to get it right because they had done it many times before. 309 In relation to the issue of the fall protection measures, the defendants submit that it was not reasonably foreseeable that Mr Hill would be at risk if he was working on the inside of the safety fence. This was due, it was submitted, because of the distance between Mr Hill and the edge of the building which was in excess of the two metre provision in the WorkCover Code of Practice. As well, the safety fence was some 2.15 metres from the edge of the building. 310 For the reasons expressed earlier in this judgment in relation to the respective defendants' liability concerning their failures in relation to fall prevention, I say it was reasonably foreseeable that in the way in which Mr Hill was going about his work on the day in question, that he would be at risk whether he was working inside or outside the safety fence. 311 As I have already expressed earlier in this judgment, the work Mr Hill was performing when his accident occurred was a continuum of activity. That is, he was outside the safety fence line, attached to the static line by his safety lanyard. When given the signal, his task was to place the crane on its wheels and to commence to pull backwards for a distance until he was told to stop. At some point in that procedure, because of the length of his lanyard, he was required, still with the safety fence open but at this point, some distance (albeit precisely unknown) within the safety fence line, to leave the crane on its wheels, to proceed to move forward to unclip his lanyard from the static line and then to walk backwards and continue pulling backwards on the handle of the crane with the panel hanging from the jib. 312 In my view, Mr Hill should have been attached to the static line throughout that entire procedure. In fact, this was the very practice that was implemented following Mr Hill's accident. 313 Given the nature of the work and the circumstances under which Mr Hill was operating, it was reasonably foreseeable that one of the things that could happen is that the crane could become unstable for whatever reason and move forward on its wheels under some momentum. In such circumstances, Mr Hill would have been at risk of injury. That risk of injury included, in my view, the risk that by sheer momentum of the crane, weighted down with the panel, he could be pulled over the edge of the building. 314 In such circumstances, it was always reasonably practicable to guard against that risk and ensure that during the procedure he was undertaking, Mr Hill remain attached to the static line at all times. 315 Australand also contends that it was not reasonably foreseeable that the crane would fall out the building because it was overloaded in circumstances where Australand had implemented a method relating to ascertaining the weight of the panel in light of the capacity of the crane. 316 The foreseeable risk to safety was not that the crane would fall out of the building but that the crane would become unstable. Such instability could lead to the crane toppling in a number of ways, one of which, in the circumstances, was that it could fall over the edge of the building. 317 As I have already determined earlier in this judgment, Australand was aware of the stated WLL of the crane being 400kg. It also knew that it was critical to ensure that there was a system in place to ensure that the weight of the panel was accurately communicated to Skyrise and that no lifting was to occur that in any way exceeded the capacity of the crane. 318 Mr McGregor on behalf of Australand had required the production of a certificate relating to the capacity of the crane which showed a stated capacity of 400kg. There is also evidence that Mr Vullo of Skyrise and Mr Murphy of Sassall had discussed the weight of the heaviest panel on the eastern elevation prior to the first lift to ensure that the crane could handle the lift. There is also evidence that at the commencement of work on the northern elevation, the issue of the capacity of the crane was discussed as between Mr McGregor of Australand and Mr Vullo of Skyrise. 319 For the reasons given I have determined, given the circumstances and the way in which Mr Hill was performing his work, a risk to safety arose where the crane was required to lift a weight in excess of its rated capacity of 400kg. According to Australand, given the steps it had taken to ascertain the capacity of the crane, having checked with Mr Vullo about the importance of ensuring the weight of the panel relative to the capacity of the crane, it was not reasonably practicable for them to have done more. As was said in Cleary Bros at [88]: ... there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. 320 The panels being installed by Skyrise on the eastern elevation of the building were known to be heavier than those being installed on the northern elevation of the building. It was therefore a significant factor on the part of Australand to ensure that Skyrise was made aware of the weight of the panels to be lifted. Critically, this was done by way of verbal communication between Mr Murphy and Mr Vullo. 321 The prosecution submits, and I agree, that at that point, it was imperative that Australand be concerned to know what system Sassall had in place whereby Skyrise employees would be able to determine that what they were lifting was within the capacity of the crane certification that Australand had insisted Skyrise produce. 322 There is no evidence that Australand required any Safe Work Method Statement from Sassall on this issue. It was a critical issue. There is no evidence before me apart from the telephone conversation that occurred between Mr Murphy and Mr Vullo as to what system of work by way of steps were to be taken by Sassall to ensure there was a documented process whereby Skyrise was advised of the weight of each panel. On the evidence, there was no documented or formal system of ensuring that was done. Certainly, no evidence has been produced to show that Australand insisted on such documentation of the panel weights from Sassall to Skyrise. As Mr McGregor himself said, after the accident they did, via the safety committee on site, implement a system for ensuring that each of the panels had its weight identified on the panel. 323 This was not a small undertaking. This was a large company operating on a large site with a large crane required to lift very considerable weights. It was a critical component of the system of work that the crane operators would be able to rely on a system that would give them the knowledge of the weight they were about to lift. 324 The absence of any formalised system permitted by Australand on the part of Sassall in documenting and communicating the panel weights to Skyrise is a real deficiency in the way in which Australand permitted the work to be performed. In relation to the critical question of ensuring the conveying of information about panel weights as between Sassall and Skyrise, Australand did not monitor or supervise that relationship to the degree that should have been done. It was a monitoring and supervisory role that was reasonably practicable for Australand to implement and, in the absence of such monitoring, it was reasonably foreseeable that the breakdown in communication that did occur, could occur. 325 I am satisfied that it was reasonably practicable for Australand to take further steps than they did in relation to ensuring that the system of work prevailing as between Sassall and Skyrise incorporated a documented system whereby the weight of each panel was identified and known prior to the crane being required to lift. Simply relying on a telephone conversation is, in all the circumstances, insufficient to discharge Australand's obligation that it had done all that was reasonably practicable in relation to this important matter. In all the circumstances, I am not satisfied Australand has discharged the onus required of it under s 28(a) of the Act. 326 For the same reasons, I come to the same view with respect to Sassall. It was always reasonably practicable for Sassall to have identified the weight of each panel individually by a sticker placed on each panel - as was done after Mr Hill's accident. It was reasonably foreseeable that a failure to do so could give rise to the error in communication that arose and, given the weight of the panel relative to the WLL of the crane, give rise to a risk to safety to Mr Hill. 327 In relation to a defence arising under s 28(b) of the Act. I am of the view that, at all times, both defendants were well able to control the factors that led to the commission of their respective offences. On Australand's part, they should have more rigorously ensured that the weight of the panel being lifted was within the known WLL of the crane. They were able to control and insist on the system of work Sassall had in place as to communicating panel weights to Skyrise. They knew the rated WLL of the crane. They knew of the safety importance of the crane lifting a weight within its WLL. 328 Also, both defendants were in a position of authority and control with respect to the system of work Skyrise had in place insofar as Mr Hill unclipping himself from the static line with the safety fence open. 329 In my view, Australand has not discharged the onus that s 28(b) requires with respect to both the alleged weight lifting limits and fall protection measures. 330 In relation to Sassall, it was always practicable to ensure the system they had in place for communicating the weight of the panels was one where each panel was individually identified as to weight. They knew the importance of that as well as the capacity of the crane. 331 In my view, any reliance by Sassall to a defence under s 28(b) must fail with respect to both weight lifting and fall protection. Conclusions 332 Having regard to my findings as set out above, I conclude as follows: (1) Matter No IRC 1174 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited : Prosecution arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000: I find the offence proved with respect to failures (4), (5), (8), (10) and (11) as particularised. (2) Matter No IRC 1175 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Sassall Glass & Joinery Pty Limited : Prosecution arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000: I find the offence proved with respect to failures (4) (5) (6) and (7) as particularised. 333 I will hear further from the parties as to penalty and costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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