Industrial Court of New South Wales CITATION: Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 22 Prosecutor: PARTIES: Inspector Richard Mulder Defendant: GRD Minproc Ltd FILE NUMBER(S): IRC1085 of 2006 CORAM: Kavanagh J CATCHWORDS: Prosecution under s8(2) of the Act - corporate defendant - not guilty plea - fall of apprentice through penetration - known risk - resignation of WorkCover Inspector - effect of s4, s106 of the Act - application requires determination - safe work system in place - numerous inspections - failure to identify ongoing risk - expert evidence - design and implementation of cover of penetrations inadequate - failure to warn apprentice of known risk - offence proven - defence under s28(a) - risk reasonably foreseeable - reasonably practicable to take steps to avoid risk - defence rejected - defendant liable LEGISLATION CITED: Occupational Health and Safety Act 2000 s8(2), s4,s47(1), s106, s28(a) Occupational Health and Safety Act 1983 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193 CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW (2007) 162 IR 241 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited & Anor [2004] NSWIRComm 207 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 HEARING DATES: 19/11/07, 20/11/07, 21/11/07, 22/11/07, 23/11/07 DATE OF JUDGMENT: 14 March 2008 Prosecutor: Mr R. Reitano of counsel Solicitors: Mr H. Bell WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr H. Dixon SC with Mr. A. Gotting of counsel Solicitors: Mr S. Price/Ms J. Dennis Corrs Chambers Westgarth JUDGMENT: - 34 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Friday 14 March 2008 Matter No IRC 1085 of 2006 INSPECTOR RICHARD MULDER v GRD MINPROC LTD Prosecution under s8(2) of the Occupational Health and Safety Act 2000 JUDGMENT (As to Liability) [2008] NSWIRComm 22 1 Richard Mulder, formerly an Inspector of the WorkCover Authority of New South Wales (the prosecutor) brings an Application for Order against GRD Minproc Ltd under s8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged in Matter No. IRC1085 of 2006 the defendant company, GRD Minproc Ltd, contravened s8(2) of the Act in that it failed to: ensure that persons other than its employees, and in particular, Louay Sadik, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work, contrary to s8(2) of the Occupational Health and Safety Act 2000 . In particular, the defendant: a) failed to ensure that penetrations at the construction site and, in particular the covers to penetrations in Fan Room No 1, were secured in a manner that ensured that people working near the penetrations were not at risk of falling through the penetrations; b) failed to ensure that there was a proper and appropriate inspection of the area in which persons were working, known as Fan Room No 1, so as to identify and rectify any risks associated with inadequately guarded or secured penetrations; c) failed to adequately identify the risks to persons working in the area known as Fan Room No 1 and to warn persons working in that area about the risk created by inadequately guarded or secured penetrations; d) as a result of the defendant's failures Louay Sadik and other persons working at the construction site were placed at risk of injury. 3 The defendant pleaded not guilty to the charge. 4 Mr R. Reitano, of Counsel, appeared for the prosecution. The prosecution tendered Agreed Facts, Factual Inspection Report by Inspector Jones, Senior Safety Inspector, 11 of 14 coloured photographs, GRD Minproc Health Safety Plan for the UR-3R site, GRD Minproc Health Safety Environment Manual, GRD Minproc letter to Mr Douch of Arenco Pty Ltd, black and white photograph with handwriting, three Axis documents - Job Safety Analysis and Safe Work Method statements dated 28 May 2004 and 2 August 2004, Mr Smits' Record of Interview with Inspector Mulder, Mr Fahey's Record of Interview with Inspector Mulder; photograph of Fan Room No. 1, two photographs (one black and white and one colour) of room identified by Mr Fahey, Works Record - Arenco - signed by Mr Fahey, Diagram of Fan Room No. 1 with markings in red pen by Mr Fahey, Mr Tabone's Record of Interview dated 14 October 2004 and Mr Griffith's Records of Interview dated 1 September 2004 and 29 September 2005. The prosecution called 10 witnesses, all of whom were cross-examined. 5 Mr H.J. Dixon SC with Mr A.B. Gotting of Counsel, appeared for the defendant. The defendant also tendered several documents including: Contract between Minproc and Axis, Colour Photograph dated 23 June 2004, Daily Project Reports 2 July 2004, 5-8 July 2004 and 12 July 2004, diagram of Rooms marked with yellow highlighter, diagram of fan rooms with Fan Room No. 1 and metal sheets marked in yellow highlighter, letter of instruction to expert dated 5 November 2007 including photographs and Code of Conduct, roll of Tie Wire, Australia Standard Structural Design Actions (AS1170), Expert's Report and Minutes of OHS Meeting. One witness was called on behalf of the defendant company. 6 There was tendered an Agreed Statement of Facts outlining the circumstances on the site leading up to the alleged breach by the defendant corporation and the state of the site after the incident which relevantly reads: 3. In October 2002 Waste Services NSW entered into a public/private partnership with Global Renewables Ltd to construct the UR-3R Facility at Eastern Creek, New South Wales. Global Renewables Ltd was at all material times jointly owned by GRD Ltd (the defendant's parent company) and Hastings Funds Management Ltd. Global Renewables Ltd developed, owns and operates the Eastern Creek UR-3R Facility under contract to Waste Service NSW. 4. At all material times GRD Minproc Ltd ("GRD Minproc") was contracted to design and construct the UR-3R facility at a construction site located at the Waste Management Centre, Wallgrove Road, Eastern Creek, in the state of New South Wales ("the site"). 5. On 30 January 2004 GRD Minproc, as the main contractor, entered into a contract with Axis Metal Roofing Pty Ltd ("Axis"), as a subcontractor, to install and erect wall & roof cladding at the site. The contract between GRD Minproc and Axis was a written contract no. 50766-3008. 6 Axis commenced work at the construction site in March 2004. 7. GRD Minproc contracted Process Engineering to provide construction/project management services at the site including the provision of a Construction Manager. [The Construction Manager had overall responsibility to implement the HSE plan on site, ensure that contractors complied and adhered to HSE requirements and monitor and report on OHS issues that were raised]. Mr Griffith performed the role of Construction Manager at the site. 8. Mr Griffith was a director at Process Engineering. Mr Griffith was an employee of Process Engineering. He was a member of the site safety committee. In the role of providing a Construction Manager, Process Engineering required Griffith to be on the site at all times performing the duties required of the defendants Construction Manager as required by the contract between GRD and Process Engineering. This included displaying 'due diligence' in all health and safety matters, ensuring that risk assessments were conducted for all major site activities and ensuring that all persons on site were informed of hazards associated with their work and making sure all occupational health and safety requirements were adhered to. 9. GRD Minproc also contracted JR Wright Consulting Pty Ltd as a Mechanical Supervisor for specific areas of the Construction site. James Wright ("Wright"), director of JR Wright Consulting Pty Ltd performed the role of Mechanical Supervisor and was responsible for supervising installation and erection of wall and roof cladding; plastic pipe installation; pipe work systems and mechanical fit out in compost hall area. Wright was required to report to the defendant. 10. At all material times Axis employed Louay Sadik ("Sadik") as a 1st year apprentice roof plumber. Sadik was 16 years of age on 12 July 2004. Sadik commenced employment with Axis in February 2004. 11. At all material times Axis employed Shayne Riley ("Riley") as a labourer. Riley had been employed by Axis for approximately six years at the time of the incident on 12 July 2004. 12. At all material times Axis employed Peter Smits ("Smits") as the on site leading hand at the site. Smits was responsible for the supervision of Sadik and Riley on 12 July 2004. 13. Axis commenced work in an area at the site known as Fan Room No 1 on 9 July 2004 and continued to work in that area again on 12 July 2004. The area was on the ground floor with an underground room below it. This was known as the plenum. There were a number of penetrations in the floor of the fan room which opened to the plenum below. 14. Prior to Axis commencing work on the wall and roof cladding for Fan Room No 1 the civil works in this area were to be completed. The civil works contractor at the site was Arenco Pty Ltd ("Arenco"). Prior to 2 June 2004 Arenco used plywood to cover the penetrations within Fan Room No 1. The plywood covers were replaced with 200 x 200 mm square mesh to allow both light and ventilation to the plenum below. 15. During a Site Safety Committee inspection on 2 June 2004 members of the Safety Committee expressed concerns that someone could get their boot caught within the gap of the 200 x 200mm mesh. The Safety Committee then decided to upgrade the penetration covers with smaller 100 x 100mm squares. The penetrations were covered with 100 x 100 mm square mesh ("mesh"). [The penetration through which Sadik fell had been covered with reinforcing bars tied at right angles into a mesh configuration ("mesh configuration") of approximately 100mm x 100 mm squares using tie wire]. 16. The covers of each penetration were secured by reinforced Steel bars and double ties. A standard type of tie wire was used to secure the mesh or mesh configuration to the reinforcing bars placed under the steel flanges around each penetration. 17. The change of the penetrations was completed prior to the next Safety Committee inspection on 8 June 2004. 18. After Arenco Pty Ltd's hand over of the Fan Room No 1 area and prior to Axis commencing work in Fan Room No 1 Axis's director Hugh Tabone undertook an inspection of the work area. He checked the penetrations and considered them to be securely covered. Prior to commencing work, Axis requested that other trades not undertake work in the fan room area whilst they were working there to avoid congestion and requested the fans installed within Fan Room No 1 be removed to allow less clutter and better access to the site. Wright was responsible for the removal of the fans, which was carried out prior to Axis commencing work in Fan Room No 1 area. 19. On 12 July 2004 at approximately 1.45pm Sadik and Riley were attempting to move a 12m Colorbond Aramax roof sheet to place it upon timber provided to make room for the next roof sheet which required brackets to be fixed. They proceeded to slide the sheet along with Riley pulling the sheet and Sadik pushing it from the other side. [Whilst pushing the sheet Sadik placed one foot on the mesh configuration covering a penetration. The mesh configuration slipped and tipped beneath Sadik's foot exposing the penetration. Sadik lost his balance and fell through the penetration down to the concrete plenum floor approximately 4.4 metres below. The penetration was approximately 820mm in width]. 20 The incident was witnessed by Riley. Riley attempted to grab Sadik as he fell but was unable to reach Sadik in time. Following the incident Riley looked into the penetration through which Sadik had fallen. It was dark but he could see that Sadik was lying still. He called out but received no response. He then sought assistance from co-workers working in a boom lift at the western end of the fan room. A ladder was obtained to access Sadik and first aid notified]. 21. As a result of the incident on 12 July 2004 Sadik suffered from a broken left forearm with medium nerve injury. Sadik was off work from 12 July 2004 to 9 September 2004. Sadik returned to work under suitable duties from 9 September 2004. 22. On 12 July 2004 shortly after the incident, Martin Fahey an employee of Arenco Pty Ltd was asked by Mike McKenzie and Charlie Katancamp on behalf of GRD Minproc, to undertake rectification work by resecuring all penetration covers in the fan rooms. Three or four of the penetration covers in the area were not properly secured as the wire ties that were supposed to be attached to the reinforcing bars under the steel flange appeared to be cut at one end. [The covers were sitting over the penetrations but were not securely tied down which would allow the covers to slide off the penetrations]. 23. Axis as a subcontractor was required to comply with the Health Safety & Environment (HSE) Plan adopted by GRD Minproc. Axis was also required to submit their own HSE Plan to GRD Minproc for review. 24. Axis indicated that it was using two OHS Management Systems to cover the UR-3R Facility project. A Site Specific Safety Plan dated 9 August 2004 and OHS&R Management system dated 10 August 2004. The documents provided to WorkCover are dated post the incident date of 12 July 2004. Hugh Tabone director of Axis indicated that similar documents were in place at the time of the incident. 25. Part of GRD Minproc's HSE plan was for subcontractors to conduct daily documented inspections of subcontractor work areas, pre-start meetings and the development of Job Safety Analysis (JSA) for work to be carried out. JSA's were to be submitted to Griffith for review. Smits said that he did a site inspection on 12 July 2004 and that a pre start meeting took place. No records were produced by Axis for the site inspection on 12 July 2004. 26. The purpose of the Pre-Start meeting included informing employees of any changes to the Job Safety Analysis through a review, and any changes to the worksite. Each employee in attendance was required to sign off on this activity. Other general safety issues were also to be discussed i.e hardhat requirements, safety harnesses, PPE. Nothing specific for the work undertaken by Sadik and Riley on 12 July 2004 was discussed at the pre-start meeting which took place on that day. 27. Sadik and Riley were trained in installing of brackets on roof sheeting approx 4 to 6 weeks prior to commencing work in Fan Room No1. The training provided was verbal and "on the job" training. Both Sadik and Riley had been inducted for work at the site. 28. Prior to Axis being given access to the site of Fan Room No 1 GRD Minproc's supervisor was to hand over the area safe. Wright stated that an inspection of the site was done and all penetrations appeared to be securely covered and the deck clear. 29. Prior to Axis recommencing work at the site following the incident on 12 July 2004 the mesh and mesh configuration were welded down to prevent them from being untied, or moved or otherwise interfered with so that they remained securely in position or serve the purpose of securely covering the penetrations in such a way as to prevent someone falling through them. Preliminary Issue 7 A preliminary point was raised on the fourth day of the hearing by the defendant regarding the status of the Application for Order given it was issued in the name of Inspector Mulder. Mr Mulder revealed in evidence he had resigned as an Inspector of the WorkCover Authority in August 2007. The defendant in support of its challenge to the Application for Order relied upon a view expressed by the NSW Court of Appeal in Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193 at [30]. The court was therein considering the status of a prosecution in determining appeal rights. However, in its consideration as to the status of the Crown (as prosecutor) the court made the following comments in obiter relied upon by the defendant to raise the issue as to whether the Application for Order has lapsed at [58] and [66]: . . . each of the charges was laid by an inspector appointed by the WorkCover Authority under s 31 of the Act. The WorkCover Authority of New South Wales was at the relevant time a statutory body representing the Crown, constituted by the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 14. . . . it is at least doubtful whether, when a person ceases to be an inspector under the OH&S Act, proceedings for offences under that Act may be continued by that person. As appears from Part 3, Division 4 of the OH&S Act, inspectors are given powers similar to those conferred upon police officers. It would be anomalous if those powers remained after termination of the statutory office . 8 The defendant submitted if the view expressed in Ove Arup above is dicta, then there is an issue as to whether Mr Mulder has the capacity to continue the proceedings and therefore whether there is a valid charge on foot to which the defendant must be brought before a court. The defendant noted the erroneous statement in the "Agreed" Statement of Facts which stated Mr Mulder was "at all material times an Inspector duly appointed. . . ". 9 The prosecution in reply made application, if necessary, to formally amend the Application for Order to insert the words "the WorkCover Authority of NSW" after Inspector Mulder's name, as prosecutor. 10 A relevant consideration is the statutory basis in the Occupational Health and Safety Act 2000 on which a WorkCover prosecution is advanced. There are three relevant provisions: s4, s47(1) and s106. Section 4 of the Definitions reads: Inspector: "an inspector appointed for the purposes of the Act". Section 47(1) of the Act reads: 47 Appointment of inspectors (otherwise than in connection with mines or coal workplaces) (1) WorkCover may appoint as inspectors for the purposes of this Act and the regulations any of the following persons: (a) a statutory officer, (b) a public servant, (c) a person employed by a public or local authority, (d) a person belonging to a class of persons prescribed by the regulations. and s106(1) of the Act reads: 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. Section 106(1)(c) therefore empowers a WorkCover Inspector to initiate proceedings. 11 Both parties also drew support from comments of Basten JA in Ove Arup at [69]: One might add that, were prosecutions brought by officers in the service of the Crown not given recognition as acts of the Government, there might be a serious question as to whether a prosecution involving matters of great public importance might not lapse upon the death of the inspector who brought the prosecution. The inspector who commenced the prosecutions did not do so in any private interest, or at private expense. He did so as an officer appointed by the WorkCover Authority for that purpose amongst others, the WorkCover Authority itself being a representative of the Crown. 12 On a reading of the above relevant sections of the Act and taking guidance from the reasoning in Ove Arup, I accept Mr Mulder was appointed as a WorkCover Inspector empowered under s4 and s47(1) of the Act to "institute" these proceedings (see also s106(1)(c)). He had a statutory basis for his power in issuing the Application for Order. I am therefore satisfied these proceedings were properly "instituted" by an Inspector of the WorkCover Authority of NSW notwithstanding Mr Mulder no longer holds the title of Inspector. I find the proceedings have been validly instituted as they were brought under power of statute and remain on foot and therefore require determination. 13 I am satisfied the Application for Order requires no amendment. 14 As to the necessary elements to the charge a concession was made by the defendant corporation that it was an employer under the Act. I am satisfied the "undertaking" of the defendant was to design and construct a waste management facility (see WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325; WorkCover Authority (NSW) (Inspector Reid) v CSR Limited t/as CSR Wood Panels (unreported, Matter No CT1176 of 1994, 10 August 1995 at 12). Further, it is not in dispute the site was the defendant corporation's place of work. In Inspector Page v Woolworths Limited (unreported decision of the Industrial Court of NSW, 9 September 1994, CT1044 & 1047 of 1993), Peterson J enunciated "place of work" included the immediate environs that may be affected by the conduct of the business. Additionally, in WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263 at [41] an undertaking was described as being anywhere where the defendant had a direct and ongoing and controlling involvement in the work being undertaken (see also Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 at 48). I am satisfied Fan Room No. 1 was the defendant's place of work. The Evidence 15 The prosecution called evidence from witnesses to establish further facts than those recited in the Agreed Statement of Facts. It contended such further facts were necessary to prove each particular of the charge against the defendant. The defendant called expert evidence to assert the safety of the system chosen for the mesh coverings of the penetrations in Fan Room No. 1. Witnesses were cross examined regarding the defendant's role as principal contractor on site in ensuring inspections were conducted on site which, it was asserted, were part of its work plan to ensure safety. The defendant asserts it met its obligations under the Act. 16 The defendant is charged with failing to adequately secure and to inspect appropriately the penetrations in Fan Room No. 1 on GRD Minproc's UR-3R site and to forewarn persons at its place of work of the ongoing risk to safety. There are therefore three particulars relied upon to give foundation to the charge. 17 The identified risk was of a fall through an unsecured penetration, a distance of 4.4 metres, to the plenum chamber below Fan Room No. 1. The defendant in submissions recited that the prosecution asserted the risk was "the tie wires for the penetration covers could be undone, cut or otherwise interfered with such that the penetration covers on top of the flange were not held down in position." I do not accept that was the identified risk. While the submission of the defendant addressed particularly the state of the ties which were part of the system chosen to cover the penetrations as the evidence progressed there were a number of variables related to the state of the covering on the penetrations, each of which are to be assessed in the context of the assertion the defendant failed to safely secure its place of work. 18 The words of the Full Bench in Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149, in the context of prosecutions under similar provisions in the prior Occupational Health and Safety Act 1983 are apposite (at 158-159): The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. And in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 (at 439-340) the court concluded: . . . the appropriate test to determine the detriment of safety for the purposes of the section. . . . requires that the liability of the employer be established by an examination as to whether there is a causal nexus between the breach of statutory duty and the detriment occasioned to the employee and not, as appears to be at least implicit in the defendants submission, by attention being given to the relationship between the conduct of the defendants and the actual accident or hazard that caused the fatality (see Drake v WorkCover Authority of NSW (1999) 90 IR 432 at 448 and 452; State Rail Authority of NSW v Dawson (1990) 37 IR 110 at 121; Haynes v CI & D Manufacturing Pty Limited (1995) 60 IR 149 at 157 and 159 and CSR Limited t/as CSR Wood Panels v WorkCover Authority of NSW ( unreported, Bauer J, Matter No. CT1176 of 1994, 10 August 1995)). 19 Therefore, the charge for which the defendant is brought before the court and to which it pleads not guilty is "the offence" and that is what the court must address. Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 re-iterated at [43]: It is, therefore, to the offence itself to which attention is to be directed and not . . . the occurrence of the accident . . . 20 Given the offence for which the defendant company is charged, the question for the court is: given the known risk to safety, was there a casual nexus between the identified risk and the alleged acts or omissions of the defendant? The Incident 21 The only witness to Mr Sadik's fall was a co-worker, Mr Riley. Of the circumstances leading up to the incident, Mr Riley said: A. I was fixing the brackets to the roof sheet with the assistant. We were on one side of the sheet each. We had to put a bolt in each and there was about eight or nine brackets, I think, so we worked our way down to the sheets. When we had the brackets on, we would move the sheet across so we could put another one in position to repeat the process, put brackets on again and have it ready to be lifted up to the roof. Q. Just help me with this. How big are the sheets? A. Nine metres. Q. Nine metres long? A. Yes. Q. What about the other direction - how wide? A. They were possibly one metre wide and also about a metre deep. They were in a "V" shape. Q. Can you tell us what happened from the time immediately before Louay's accident to afterwards, in your own words? A. Well we put the said brackets onto the roof sheet - as I said, eight or nine of them. It was completed, ready to be lifted up, but then we had to slide it over, bring the next roof sheet into position, put the brackets on that, but in that process - how could you say it - I was on the north side and Louay would have been on the south. I was pulling the sheet. Louay was pushing it. Q. Was it on the ground? A. Yes. Q. So you were pulling it towards you? A. Yes. Q. He was pushing it away from him? A. Correct. Q. So moving it in your direction? A. Correct, and as far as I can recall, he put it his foot either on the side of the manhole or on the mesh covering the manhole to give him extra force to push the sheet, and all I can see is when he gave a hard push, the mesh covering the manhole slid off and Louay fell in the hole. Q. Did you see him on top of the manhole? Did you see his foot on top of the manhole? A. I can't honestly answer that because with me pulling the sheet, I was checking not to run into another sheet for my own safety but obviously I would have glanced, but I can't honestly answer you that I did see his foot on it. Q. When he was pushing the sheet away from him, was he on the side of the manhole furthest away from you or on the side of the manhole closest to you? A. I can't picture that. May you repeat it please? Q. If we imagine that the associate over here was Louay. Was the hole in between you and the associate or Louay, that is somewhere here in front of me, or alternatively was it just behind the associate on the other side? A. It was like on the associate's right hand side, behind Louay's back, in other words. Q. So he's on top of the manhole, pushing the sheet then? A. No, he was on the ground, Louay was, and the manhole is like exposed. It has like a lip on it and I won't say - I am guessing. I presume he put his foot either on that lip or on the mesh to give him extra force to push. That's what sent the mesh away. Next minute he was in the hole. Mr Riley called for help. Some penetration covers were opened to assist in bringing Mr Sadik out via a ladder from a different penetration than the one he fell through. 22 The evidence of Mr Fahey, a foreman of Arenco, the company who had put the second mesh covers in place (100x100mm), is important in any examination of the system adopted to cover the penetrations. Mr Fahey was asked to re-cover the penetrations after Mr Sadik was rescued and responded (in an interview with WorkCover) regarding the penetrations as follows: So we went up to the fan room and I had two labourers with me. When we got there Mark Griffith was the project manager for GRD Minproc, was at the fan room, and he was taking photographs, Mike McKenzie asked me to tie up the mesh like we had it before, so when I look at it what we had to do the ties were cut at one end, and the bar hanging down, I suggested to Mark Griffith to take a photograph of as it was, which he did, I am sure he did. You could see that the ties had been cut. We were asked to retie them so we retied them as we had them in the original position. We checked all the other ones there were three or four of them that were cut, at the time I didn't count exactly how many were done because I didn't think it was an issue there were at least 4 cut. We tied them all up in the proper position. I got a day sheet or a worksheet filled in because it wasn't part of our job. There was a conversation between myself Mark Griffith and Mike McKenzie it was something to the effect that they weren't secured he was refereeing [sic] to the covers and Mike McKenzie said he had inspected them on the previous Friday and said they were Ok [sic] and the safety officer had inspected them on Friday and they were ok. Mike McKenzie was the supervisor for Minproc. 23 Mr Fahey also said: Q. Can you describe to me the condition of the Penetration Cover that Louay Sadik fell through at the time of rectification? A. I can't because I don't know which one he fell through. Q. When you went up to rectify the incident scene was there only one cover removed? A. Not there were quite a few covers, there were at least three or four. Q. What was the position of the covers at the time of rectification? A. They were sitting on top of the penetrations but not tied. As I said previously there were two bars hanging down and the tie wire cut on both bars at one end so the cover could be removed. 24 What can be concluded from this evidence is Mr Sadik placed his foot with force on the mesh, or one side of the mesh, and the cover slid off. He was using his foot in applying force to assist in the movement of a roofing sheet. Further, an examination of the site, after the incident, revealed there were three or four of the penetration covers in Fan Room No.1 with their ties cut at one end. The evidence is unclear on whether they were cut to allow the removal of Mr Sadik, after the fall, from the plenum chamber below Fan Room No.1 or whether they had been previously cut. However, visual inspections (as outlined later in the judgment) prior to the incident noted no loose or cut wires nor hanging reo-bars from the coverings. 25 Under the Act, the defendant corporation as a principle contractor on site, carries an absolute obligation to ensure the employees of the contractor on site on the day of the incident, Axis, (contracted to perform roofing work at its place of work), namely, Mr Sadik and Mr Riley, were at a safe work site. 26 The defendant company had a significant site safety system in place which it imposed on contractors. The defendant acknowledged in its Health Safety and Environment Plan (HSE Plan) that it had direct control and management of the site. It stated: GRD Minproc as the organisation responsible for the total performance of the works under the head contract . . . In its implementation of the HSE Plan, the defendant, by contractual arrangement, hired a site Construction Manager who reported to the Project Manager and each had defined duties and responsibility to ensure the defendant's worksite was safe for work. 27 The Prosecutor called the Construction Manager, Mr Mark Griffith, to establish what system of work was in place at the site. He gave evidence elucidating details as to how the covering of the penetrations was accomplished and provided evidence as to the inspections conducted on site in accordance with the Site Safety Plan devised by the defendant and as evidence revealed, observed by all contractors. Mr Griffith was hired by the defendant company as Construction Manager through his company, Process Engineering Group Pty Ltd. An issue arose from statements he made to WorkCover as to whether in fact he was the defendant's site Construction Manager on the day of the incident. Mr Griffith admitted to this role in his statements to WorkCover during the investigation. But in evidence he said: I was responsible for all of the construction on site up until around about June 2004. After that, Dave Henderson became the construction manager. Kevin Cooper was the overall manager. I reported to him. Supervisors during the civil, the earth works associated with fan rooms number 1. Charlie was the supervisor responsible. Later on, that became Mike McKenzie. We had a mechanical supervisor. We had various other supervisors who got involved as their trades worked in that area. Up until around about June 2004 I was the construction manager on the project UR-3R project. After that time I moved into a role which I've said is the, as a contract's consultant and then until I finished working for GRD Minproc in that role. 28 As the Construction Manager when the site was established, Mr Griffith agreed he was responsible for the design and implementation of the HSE Plan. He agreed he had participated in identification of hazards; ensured sub-contractors were aware of such hazards on site; conducted work site inspections and that he walked daily around the site. Mr Griffith then explained that the defendant company had asked him to prepare documentation for it in a construction dispute the defendant company had with its contractor, Arenco Pty Ltd. He said in early June 2004, he was asked to perform this duty: That was my focus and I would be available to provide technical advice, et cetera, or assist in any way I could but I really had to focus all my time and energies on this claim. After that date I only really got involved on site when someone came to me with a problem, which happened far too frequently from my point of view. 29 Mr Griffith maintained he was replaced as the defendant's Construction Manager by a Mr Henderson. He was asked: Q. Who was Mr Henderson? A. He was - I believe his role with Minproc was corporation construction manager and he was Perth based. He ultimately replaced me as the construction manager on site. Q. Did he do anything in respect of the area of work for which you had responsibility as construction manager at any stage after the beginning of June 2004? A. He came over some time around about then for a short period. I briefed him on the site, took him around and he took over for that period but he had to leave the site - I believe he had booked an overseas holiday and left the site and then he returned some time in late July I believe. Q. When he went away, did it in any way alter what you were doing in respect of the site? A. It did, in that, without him there, all the supervisors and the engineers had no one else but me to come to for any advice. Q. And did they? A. Yes they did. Q. About what? A. Mainly technical matters about issues with the design, delivery schedule issues, priorities, technical questions. Q. Did-- A. Could I continue? Q. Yes, I want you to finish your answers as fully as you wish. A. There was advice on questions as far as administration, industrial relations and safety questions. They would come to me with those questions. Q. Did you give advice in respect of any of those? A. Yes. I gave advice in respect of all of those. 30 I am satisfied that it may have been the defendant company's intent for Mr Henderson to become at least the Acting Construction Manager. But at the time of the incident, Mr Griffith was still on site performing the duties of Construction Manager while he prepared documentation for a dispute between the defendant company and Arenco. I accept he may have had further duties to attend to as well. Mr Henderson had not accepted full responsibility as Acting/or Construction Manager at the time of the incident and as a matter of fact was not even present on site but on holidays. I accept Mr Griffith was, on the day of the incident, still performing the duties of Construction Manager on site. I am further satisfied that along with the Site Safety Committee, Mr Griffith, on behalf of the defendant company, was satisfied by 8 June 2004 that the penetrations in Fan Room No. 1 were safely secured. He recalled as to those inspections: Q. Was there a discussion at all with the health and safety committee about the method of securing the mesh that you recall? A. I know that I can recall at least one occasion where we looked at those and I believe a couple of people kicked them and tried to dislodge them and I think there was some discussion at that time whether they were suitable and my recollection is that everyone accepted that that was the best method to do it. Q. Did you accept that method? A. Yes, I did. 31 One of the Construction Manager's tasks was to ensure the safety plan was implemented at each relevant phase of the project. The Construction Manager's role included overseeing the work of all sub-contractors and their employees working on site. He had to specifically ensure all representatives of contractors were informed of hazards associated with each contractor's work tasks and also to ensure each contractor monitored for safety all areas in which their work was being carried out. Pre-start work meetings were to be carried out prior to each work day which were to be conducted by each contractor. Also required of each contractor was inspection of plant and equipment on the site. The Construction Manager had to monitor these inspections consistently. Specifically under the HSE Plan all floor openings were to be provided with firmly attached covers. Controls had to be put in place over each/all of the penetrations on the site. However, the contribution of any other party to the incident is not the focus in determining the liability of the defendant for the asserted breach. Three failures are pleaded against the defendant. The failure to ensure the penetrations in Fan Room No.1 were properly secured 32 The design and implementation of the system used for the covering of the penetrations is integral to the determination as to whether there was a causal connection between the defendant's acts or omissions (pleaded and particularised as "failures") which led to the asserted breach of the Act. 33 The penetrations in Fan Room No.1 were at first covered with plywood. After inspection the defendant's Site Safety Committee (on which all the major contractors were represented) ordered a mesh cover (with 200x200mm squares) be placed over each penetration in Fan Room No. 1. After further inspection by the Site Safety Committee it was then decided the mesh may catch a work-boot so finer mesh (100x100mm squares) was ordered to cover each penetration. The cover mesh on the penetration through which Mr Sadik fell was 100x100mm. The covering mesh was attached to each end of three reinforcing bars, called reo-bars, placed under the steel flange of the penetration. The mesh was secured with double looped tie-wire tied to the re-enforcement bars. The new system for covering the penetrations was then inspected by the Site Safety Committee and it found the penetrations were secure on 8 June 2004. 34 Dr Robert Casey, an Expert Engineering Consultant, was called by the defendant. I accept Dr Casey's evidence is that of an expert nature such as to give an opinion as to the safety of the system used to cover the penetrations. Dr Casey gave a number of opinions based upon certain assumptions. The assumptions were that the mesh was attached to three equidistantly placed reo-bars beneath the flange of each penetration and tied to the mesh at each end of each reo-bar using a double twist of tie wire. The mesh was 100x100mm and placed more or less proud to the outside diameter of the flange of each penetration. 35 Evidence revealed Dr Casey conducted a significant number of different load carrying tests on the tied mesh covers. The first test conducted on the coverings as above involved placing weight down upon the mesh (the pull through test), another test required the placement of weight across the mesh (the lateral pull test) to see if the mesh held as covering over the penetration. 36 Commenting on the test results, Dr Casey found: · The pull through test provides a basis on which to state to an engineering certainty, that it would not be possible for a person to force their way through the mesh and through the aperture in the flange. This is clearly supported by the fact that even with more than 1 tonne of load, the mesh was still sufficiently in tact (sic) that it could sustain the load. · The lateral pull tests indicated that at least 185 kg of lateral load would be needed to push a piece of mesh from the flange. 37 The following propositions were, however, agreed to by Dr Casey under cross examination: Q. Depending upon how the wires were attached and how firmly they were attached and so on, it would have been relatively easy in some circumstances if there was only one bar at the end to push the whole mesh off the edge? A. With only one bar, yes. Q. And depending upon the precise location of two bars it may have been easy or perhaps only a bit more difficult than if it were one bar? A. If there was only two bars. Q. Yes. A. Yes. Q. And if I imagine . . . someone applying force, that is their 60 odd kilos or whatever it is, together with the action of pushing towards those bars, depending upon the configuration, it would be a relatively easy thing for the mesh to slide off the top of the flange? A. If there was only one or two bars yes, yes. Q. And really given the size of the penetration, where the force was placed wouldn't be that relevant, would it? A. I think a male could do it. As a generalisation I think a male could do it. Q. You wouldn't have to bench press everyday to enforce that amount stress to push it off? A. I don't know-- Q. When you say "a male" you mean someone of reasonable strength? A. Moderate stature. Q. Similarly if I had three bars in place? A. Yes. Q. But one of them was not attached at all? A. It can't be in place then. Q. Well perhaps I'll take it a bit further, was not attached in any secure way, that is, the tie wire may have been twisted just once? A. (Witness nodded). Q. Thus relatively easy for it to come apart? A. (Witness nodded). Q. Again similarly a fairly easy task to push the whole of the mesh off the edge in the direction of the one or two bars? A. Contingent on the assumption that the tie wires offered little to no resistance you would get the same force requirement as if that bar simply wasn't there. Q. And similarly we could take your tests in a whole range of different assumptions, that is we could have tie wire on two of the bars? A. Yes. Q. And light resistance on the other? A. Yes. Q. And it might appear to the naked eye all of the bars were secured but that's not the case? A. I guess that depends on the person looking. The expert witness conceded that with his lateral pull test: Q. . . . And similarly depending on all the variables we've discussed: Where the bars were, how the wire was attached, the state of the mesh if you like and the reo bars, not a big factor I understand that, but if I throw in all those variables? A. Yes. Q. There would be a number of variables where the mesh would not cover the flange and someone would fall in? A. You could move the mesh, yes. Q. I understand that, that's with nothing attached. A. Yes. Q. But moving from nothing to attached to everything attached there would be a continuum along which would go until the situation would not fail? A. Correct. Q. I don't know if you can tell us now from the evidence that you've given, but that may be where so many bars are attached in so many different positions with a particular number of wires offering a particular amount of resistance? A. Generally yes. Q. And you weren't asked to undertake any of those tests in the testing you did? A. That's correct. Q. Your testing was, if you like, in a perfect world? A. Ideal idealised, yes. Q. Yes. At one end of the continuum I've spoken about? A. Idealised to the situation as I understand it, in other words, I idealised as I understood it was installed at site. Q. Yes, based on your assumptions you've set out? A. Yes. Q. And idealised to the extent that all of the wires were attached in such, the tie wires were attached in such a way that offered some degree of significant resistance? A. So they were permanently wound. Yes. And further: Q. All of your conclusions are based on, as I understand them: reo bars equally distant? A. Yes. Q. Properly secured with the tie wire? A. Yes. Q. Without any variance in the resistance the tie wire is offering one way or the another? A. Yes. Q. I should have asked you this one, I apologise. If the tie wire is sufficiently loose the reo bar may just hang? A. Yes. Q. Rather than being firmly affixed and that may be another variable? A. Yes. 38 Dr Casey was further asked in cross examination if a force was applied to a cover fixed with the bars not equidistant from one another what would be the effect: If you have a 360-degree perimeter, if all the points of attachments, in other words, all the points where the tie wires expand between the reinforcing bars and the mesh, if all of those points of attachment are encompassed in half of that circle, in 180 degrees, then it would make a significant difference depending which direction the force is applied. Because it would offer good resistance in one direction, very little in the other. If you have those points of attachment, that extends beyond the 180-degrees then it would increase the amount of it offers depending which way the force applies, in other words, you have to have all three bars in a 180-degree sector of the perimeter. 39 From this evidence I am satisfied that the system designed to cover the penetrations was not safe. A number of possible variables could have caused the failure to make this workplace safe. Some of the variables were revealed through the cross examination of Dr Casey, who in my view was an honest witness who made the appropriate concessions. 40 At the heart of the defendant's not guilty plea is the assertion it complied with its absolute duty under the Act as it had adopted a safe system to secure the penetrations in Fan Room No.1 which would ensure persons working on its place of work were not at risk of falling into the plenum chamber below. The defendant submitted the prosecution has to establish the mesh was not properly secured and therefore posed a risk. Further, the court has to be satisfied the failure in the system leading to the risk was causally linked to the actions of the defendant. 41 The defendant places much weight on the expert evidence from Dr Casey. The defendant submitted the evidence from Dr Casey establishes the system of coverage of the penetrations in almost all circumstances was safe. The defendant submits the tests Dr Casey carried out demonstrated that where the tie wires were applied with a single style loop and twisting into a ponytail tie, the ties would not come loose on the application of a lateral load and a significant load was required to cause the wires to snap. 42 Further, the defence asserted Dr Casey's evidence was the tie by tie-wire to the reo-bars was a secure measure. The defendant submitted the court must conclude, as a matter of fact, that where tie-wires were found to be broken or cut, this did not occur prior to the incident. The general evidence arising from the inspections conducted before the incident was no loose wires were obvious and there was no evidence during any inspection that any reo-bar was loose or hanging down. This should satisfy that any disturbance to the covers on the penetrations occurred after the incident. 43 The defendant invited the court to conclude that it was not foreseen, nor foreseeable, that given the system of checking in place, an act of cutting the tie wire would not be detected. Further, that it was not foreseen nor foreseeable that the mesh across the penetrations was inadequate or insecure. Thus there was no foreseen risk. 44 As to the question of foreseeability, I take guidance from the decision of the Full Bench in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [81]: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice-President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (32 NSWLR at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and Work Cover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, Hill J, CT95/1280, 12 April 1997 at 16). Therefore the question as to whether the offence was foreseeable shall be addressed later in this judgment after consideration as to whether the defendant is liable for the offence. 45 The defendant submitted, alternatively, if the court found a person or persons unknown cut the mesh coverings such evidence cannot lead to a conclusion the system designed by the defendant to secure the penetration was unsafe because such an act could not be, on the evidence, an act of the defendant. Therefore, the defendant contends there is no evidence to link the defendant to any culpability. 46 The prosecution rightly conceded that had all of the ties and all of the reinforcement bars been attached in the ideal way, that is, the bars placed equidistant and the metal ties were each fixed in the pony-tail form, the system adopted would have been safe. 47 The photographs of the site, however, cannot lead me to the conclusion the covering was installed or even maintained to the rigor required leading up to the incident. 48 I accept the defendant had a comprehensive safe work system in place. It placed an obligation on its contractors to adopt that plan. That plan required a risk assessment of the worksite. A Site Safety Committee was established on which were representatives of all the relevant contractors who worked on this large industrial construction site. The Site Safety Committee, on behalf of the defendant company, recognised the risk posed by the penetrations and designed, then redesigned, a system for covering those penetrations. The minutes of the Site Safety Committee indicate it rigorously applied itself to its task of ensuring safety. It recorded the identified area of concern, what action was to be taken, the person who was designated with the responsibility for that action and the date by which that action was to be completed. On 2 June 2004, the defendant company and one of its contractors were given the task of ensuring the penetrations were "blocked or barricaded off". At the next Site Safety Committee meeting on 8 June 2004, the barricades were checked and approved. 49 I am persuaded as part of the system the defendant company imposed obligations on its contractors to ensure a safe worksite. However, in an assessment as to the liability of the defendant, none of its obligations under the Act can be deflected onto its contractors on its Site Safety Committee whose members included the major contractors. The defendant company itself played an active role at its place of work, through its Construction Manager, its Mechanical Supervisor, its Health Safety and Environment Officer and its Civil Engineering Supervisor. All were active and motivated to ensure site safety. 50 The design and implementation of the system of coverage of the penetration chosen by the defendant company to make safe a recognised and identified hazard in Fan Room No.1 (amongst others) was not adequate. I conclude from the expert evidence, the system chosen allowed the mesh to slip with the application of force and the penetration could be opened in a number of varying circumstances. Dr Casey's view was that it would not have been possible for a person to fall through the mesh correctly affixed. However, if the reo-bars were not equidistant one from the other and if the ties were not double knotted - if one or more of a number of such variables were in place - then the mesh could slide off the top of the flange and uncover the penetration thereby revealing the known risk. The risk of a fall through the penetration was neither impossible to anticipate nor entirely speculative. It was a known risk. If one or more of the number of variables to the "idealised" system occurred, the mesh was vulnerable to the application of force. 51 The mesh did in fact slip when Mr Sadik applied force. Whether one or more of the variables mentioned by Dr Casey was in place on the day of the incident or whether the cover had been previously cut by persons unknown (unlikely on the evidence), the system failed. The defendant had an absolute obligation to ensure a safe workplace and to ensure the penetrations in Fan Room No.1 were safely secured. It failed. 52 There is no evidence before me of any activity by a disobedient servant of the defendant or of any contractor on the site. I cannot accept in these circumstances there could be unforeseeable behaviour by a disobedient servant such as to alleviate the responsibility of the defendant to ensure a safe workplace (see WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 at 128-129). 53 There was evidence from Mr Fahey of Arenco that after the incident three or four penetration covers in Fan Room No.1 were found to be cut. An order had been given to open some of the covers to assist in the rescue of Mr Sadik. Evidence from inspections carried out before the incident (later revealed in detail) saw no loose ties nor hanging bars. From these facts it is not possible to conclude the covers had been cut prior to the incident. In either circumstance, whether the system of covering the penetrations was unsafe such as to allow the cover to slip or the covers were cut by an unknown person prior to the incident (which from the evidence appears unlikely), the defendant is liable for failing to ensure the penetrations were safely secured. 54 In order to be satisfied there was failure by the defendant company to ensure the system chosen to secure the penetrations in Fan Room No.1 was not safe, it is not necessary for this court to determine which factor in a number of possible variables actually caused the penetration cover to slide off. 55 Therefore, there was a clear casual connection between the risk of a fall of 4.4 metres and the failure of the defendant, by its act in choosing the system of coverage of the penetrations, to adequately secure the penetrations. The failure to ensure a proper and appropriate inspection 56 The second asserted failure challenges the way inspections were conducted on this site by and under the auspices of the defendant. Evidence revealed there were numerous inspections of the site conducted in compliance with the defendant's safety system. However, no inspection identified that the system of coverage of the penetrations did not eliminate the identified risk to safety. 57 The inspections were conducted in accordance with the defendant's HSE Plan. The Site Safety Committee under the auspices of the defendant company approved the system of coverage of the penetrations in Fan Room No.1 on 8 June 2004. 58 On Friday 9 July 2004, Axis Metal Roofing were taking over Fan Room No. 1 for the purposes of preparing and laying colour bond roofing sheets for erection. Mr Hugh Tabone, a director of Axis Metal Roofing attended Fan Room No.1 and conducted an inspection. Arenco Pty Ltd, a company who had been performing mechanical works on Fan Room No.1, handed the site back to the principle contractor. 59 As a result of his inspection of Fan Room No. 1, Mr Tabone asked for some fan equipment to be removed. He gave the penetrations a visual examination. He said: A. I noticed a heavy substantial mesh over the covers, over the penetrations, along with the plywood on some of the others and they were all tied down, secured down. Q. How did you see that they were all tied down securely? A. Just by a visual inspection. Q. What did you look at in that respect? A. That the mesh was tied down with tie-wire and reo bar and plywood were screwed down or pulled down He was satisfied the area was safe. 60 Mr J.R. Wright, the defendant company's Mechanical Supervisor with Mr M. McKenzie, Supervisor Civil Works for the defendant company, checked the site after Arenco vacated the site for Axis on 9 July 2004. Mr Wright recollects: A. I do remember going out and doing an inspection, yes, and it was okay leading up to that time, up to the point of preparing it for Axis. There was the moving and the getting rid of the supervised stuff. Then we had some fans that we had placed on the slab there that we moved during that week but then it came to the final inspection before Axis were due to start and we had to go check it so I went and checked it and I confirmed that it was clear and it looked secure, ready to go. Q. Was that the inspection that you think must have been on the Friday or late on the afternoon of the Friday? A. Yes. Q. The Mark you refer to is Mark Griffith? A. Yes. Q. And he was the construction manager on the site? A. Yes. Q. Do you remember what you did in respect of the inspection that you conducted in any detail? A. I did a check of the covers and I did it visually, checked all the covers and there did not appear to be any problem with them. I also did a check to see that the deck was basically clear because they had long sheets that needed to be lifted up using a crane and that needed to be - I realised that we needed to clear a clear slab, a clear deck to do that. Q. How many covers did you inspect? A. Well I inspected all of them . 61 Mr Wright said of that inspection he paid attention to the method of tying and was satisfied about that method. He said: I saw it was tied and - importantly - imagined it was done by a steel fixer who was adept at their work and assumed . . . it was tied suitably for the purpose. He found no problems with the penetration covers. He cleared the site and declared it as safe for the Axis work. 62 Mr Douch, Operations Manager of Infrastructure for Arenco, another contractor on site, who left the site before Axis took over, said of his inspections approximately a few weeks before the hand over to Axis: Q. Do you recall whether you inspected the penetrations prior to handing over the site, you personally? A. Yeah, well during the course of my inspections I'd go along and have a look at them and I recall walking up to them, being a penetration I checked it out, I actually kicked it, stood on it, made sure it was secure and I satisfied myself that those penetrations' covers were adequate. 63 At about 6am at the start of the shift on the day of the incident, the leading hand for Axis, Mr Smits, carried out an inspection of Fan Room No. 1 and described his inspection of the "pit access" thus: Just a visual inspection of the electrical power leads, rail leads and circuit breakers, outer holes in the ground, pits, the pit covers themselves. I gave a kick and inspected them to make sure that they were secure before the boys went in. 64 There was no recollection from any witness of other tradespersons working in Fan Room No.1 between Arenco vacating the site and Axis assuming control. 65 Mr Griffith said, while Construction Manager, he inspected the site on a daily basis. He did not inspect the site on the relevant date. However, the system was inspected by Mr Mike McKenzie, Civil Engineering Supervisor, Mr Warren Long, Safety Officer and Mr James Wright, Mechanical Supervisor, all for the defendant company and they determined the system of coverage of the penetrations made the workplace safe. They had each taken part in inspections of the site of Fan Room No. 1. All had determined the defendant's place of work was safe. The various contractors in Fan Room No.1, having conducted independent inspections but under the auspices of the defendant's safe working plan, all concurred the worksite was safe. 66 The defendant asserted the inspections of the penetrations in Fan Room No. 1 were all done by highly qualified persons able to appropriately declare the covering system safe. The prosecution submitted most inspections involved looking at the ties from a standing position and by giving the covers an occasional kick and this was not an adequate inspection to ensure the risk of falling through a penetration was eliminated. 67 The prosecution submitted that inspections by Mr Griffith, Mr Tabone and Mr Wright were from a standing position and by sight. Mr Smits' description of his inspection was he kicked each penetration cover and was satisfied as to the safety of the covers. The covers were kicked also by Mr Wright and Mr Douch said he stood on the covers. The prosecution submitted the inspections were either inadvertent or not sufficiently careful as they failed to reveal the risk was not eliminated. 68 The defendant failed in its obligation to safely secure the penetrations, but the numerous inspections carried out by the defendant or under its auspices, by contractors, provided further opportunities to recognise and remedy defects in the system chosen to secure the penetrations. However, such inspections were generally by sight. From the visual inspections conducted prior to the incident the witnesses were able to say the ties were in place and the bars were not hanging loose. However, such an inspection could never identify the fact, as revealed by Dr Casey, that if some/all of the ties were not threaded correctly they could, with force, fail. I accept from Dr Casey's evidence that standing on the mesh would not have revealed the insecurity as the mesh would have resisted the force of a body weight pressing down. Further, no inspection required a check the reo-bars were placed equidistant one from the other. 69 Given the variables identified by Dr Casey, a "proper" inspection would have required the defendant to: ensure each tie had a double pony tail knot; ensure the reo-bars were placed equidistant one from the other; ensure the mesh had not been cut on one side of the covering and each mesh tie was in place. The inspections were not of this identified rigor - perhaps because of the assumption the system was safe so long as the mesh was tied with wire to the reo bars. There was, as a matter of fact, a failure to appropriately inspect the area of Fan Room No.1 so as to identify the known risk was on-going. Failure to warn of the risk of inadequately secured penetrations 70 Mr Dixon QC submitted regarding the failure to warn employees in Fan Room No. 1 of the risk, in the context of Mr Sadik being an apprentice, that if there was a safe system of work, then there was no obligation to warn employees. He submitted one does not warn employees about a non-existent risk. Further, there was no foreseeable risk of these wires being cut or untied and no evidence to suggest prior to the employees beginning their task there was a risk that either the covers were improperly secured or they might become insecure. Therefore, the defendant provided sufficient protection and there was no obligation on the defendant to warn of a risk. I reject this proposition. There was a failure to warn as to the known risk provided by the penetrations be they adequately secured or not. From the evidence, Mr Sadik and Mr Riley did not have the recognised hazard identified to them. There was an obligation to warn of a known hazard. I do not accept the obligation to warn arose only if the employer knew the penetrations were not properly secured. In a situation where the penetrations were not properly secured there was an obligation on the defendant to warn of the ongoing risk. 71 Given I have found each asserted failure has been established, I find the charge brought under s8(2) proven and find the defendant breached s8(2) of the Act in that it failed to ensure safety for persons in the conduct of the its undertaking at its place of work. The Defence 72 A defence under s28(a) of the Act was raised by the defendant. That provision reads: 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. 73 It was submitted by the defendant the risk was not a foreseeable one. Therefore, it was not reasonably practicable to ensure safety. Reliance was placed on St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW (2007) 162 IR 241 where the Court said at [27]: We agree that the key principles are those set out in WorkCover Authority of NSW v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at [87]-[88] as follows: 87 It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Lt d at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. 88 At the other end of the scale, 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. This must be done by reference to the charge as brought by the prosecutor. In St Hilliers it was then held at [28]: It is important to note . . . that different factors will assume greater or lesser significance in the balancing exercise depending upon their magnitude in the circumstances of each particular case. For example, if there is the potential for serious injury, this factor becomes of greater weight and significance; on the other hand, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event. 74 Taking guidance from the principles recited in St Hilliers, the court in consideration of a s28(a) application, adopts the following propositions as relevant. · a consideration of the defence under s28(a) only occurs where there is a finding an offence has been committed by the defendant; · a further determination needs to be made as to whether the incident was foreseeable; · a finding that the risk of an incident was not reasonably foreseeable will generally lead to a conclusion that it was not reasonably practicable to make provision to guard against such an occurrence. 75 In raising the defence under s28(a), the defendant submitted that given the system in place for the coverage of the penetrations and the inspections conducted it was not reasonably foreseeable the risk would materialise. Given its genuine and reasonable belief that the system was safe, the defendant contended, the slipping of the mesh off a penetration in Fan Room No.1 was not foreseeable. 76 The defendant further submitted the mesh covering may have slipped for a number of reasons including the covers were cut open prior to the incident by persons unknown, so the risk was in such an instance unforeseeable. The defendant contends the relevant risk was of a fall through the penetration so the method of security employed ensured the risk would not materialise. 77 The expert evidence, however, persuaded the court the design of the penetration covers relied upon perfectly equidistant placement of the reo-bars and correctly tied knots of tie-wire attaching the mesh to the reo-bars. Had one or more of the ties not been double tied and one or more of the bars out of place it was possible the mesh could slide off the penetration. The expert conceded if a number of variables were in place, the mesh covering would slip with the application of force. Therefore, the method chosen to cover the penetrations in Fan Room No.1 was unsafe. 78 The defendant also asserted the risk to safety could have been from interference with the covers, namely, the cutting of one side of the covers by persons unknown. In either circumstance, the defendant asserted it was not liable. 79 Whether the slip of the mesh cover occurred through it being inadequately affixed or through it being deliberately cut by persons unknown (although on the evidence unlikely), the question raised by the defence requires consideration as to whether the incident was foreseeable. 80 The court accepts that had the penetrations been properly secured the defendant would have ensured the risk of a fall through the penetrations would not have materialised. The defendant asserted the method chosen to cover the penetrations together with the expressed concern by the qualified Site Safety Committee in its weekly June 2004 inspections and the assurances given through the other many inspections conducted on site, there was no act or omission by the defendant that led to the incident. The risk of a fall could not thereby have been foreseen and therefore the incident was not reasonably foreseeable. I reject the defendant's submission. 81 The system of mesh, reo-bars and tie-wire chosen to cover the penetrations was shown to be susceptible to force and to slide off the penetrations if any one or more of a number of variables were in place. The system was therefore unsafe. As the penetrations were not properly secured on the day of the incident I find it was reasonably foreseeable a fall could occur. The incident was also foreseeable given the failure to warn the employees, including a young apprentice, of the known risk posed by the penetration, especially a penetration not safely secured. While I have found there was a failure in the inspections to identify the risk was ongoing - a risk existed and continued - I do not accept the failure to properly inspect the penetration covers added to the reasonable foreseeability of the incident. The penetrations were an obvious and continuing risk if not appropriately secured. The quality of the inspections contributed to the breach but not to the foreseeability of the offence. The defendant failed to ensure the method they employed to alleviate this obvious risk was effective. The failure to warn of the risk posed by the penetrations added to the foreseeability of the incident. I find therefore in the circumstances present on the day of the incident it was reasonably foreseeable a person could fall through the penetration. 82 Once the finding is made the incident was reasonably foreseeable, as said in St Hilliers, there must be under s28(a) a determination as to whether it was reasonably practicable to guard against an incident. Weighed against the "effort cost and difficulty" of ensuring safety, was it reasonably practicable for the defendant to have acted as it did, or differently? The different factors have more or less significance, again depending on the facts and circumstances. Evidence revealed that after the incident the defendant determined the mesh covering the penetration be welded to the flange. There was little cost, difficulty or trouble for the defendant to take the necessary alternative steps to avert the risk. Other measures therefore were available and reasonably practicable for the defendant to adopt which would have alleviated the mesh slipping and eliminating the risk of exposing persons at the defendant's place of work to the risk of a possible 4.4 metre fall through a penetration in Fan Room No.1 into the plenum chamber below. 83 I find it was reasonably practicable for the defendant to comply with its obligations under s8(2) of the Act to ensure that persons were not exposed to risks from the conduct of the defendant at its workplace, namely, by appropriately covering of the penetrations in Fan Room No.1. The defendant therefore fails in raising a defence under s28(a). 84 I find the offence proven. 85 The matter is stood over for hearing as to penalty. Orders 86 Accordingly, the Court makes the following orders: 1. In Matter No. IRC1085 of 2006, I find the offence proven. 2. The matter is stood over for the hearing as to penalty. 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