Industrial Court of New South Wales CITATION: Inspector John Sibilant v Royal Automobile Club of Australia Incorporating Imperial Services Club Ltd (No 2) [2008] NSWIRComm 167 PROSECUTOR: Inspector John Sibilant PARTIES: DEFENDANT: Royal Automobile Club of Australia Incorporating Imperial Services Club Ltd FILE NUMBER(S): IRC 1887 of 2007 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - workplace accident - building and maintenance manager fatally injured - duties included electrical related work - not qualified or trained to perform such work - maintenance staff perform work on air conditioning units to adjust thermostat - adjustment required work to be performed within air conditioning units - risk of coming into contact with live electrical points - failure to carry out and implement an adequate risk assessment - failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work - failure to adequately inspect or ensure adequate inspection undertaken of electrical circuits - failure to ensure electrical supply to air conditioning unit was isolated before work performed on them - failure to ensure electrical test equipment suitable and in working order - failure to provide adequate information, instructions, training and supervision - failure to fully inform maintenance staff of what electrical work to be performed or not performed - absence of written safety rules - defendant's duty to be diligent in relation to workplace safety - charge as particularised established - defendant guilty of breaches as alleged LEGISLATION CITED: Occupational Health and Safety Regulation 2001 ABB Power Transmission Pty Ltd v WorkCover Authority (NSW) (Inspector Wilson) unreported, IRCNSW Fisher P, Bauer & Hungerford JJ, 2 May 1997 Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 Haynes v C I & D Manufacturing Pty Ltd and anor (1995) 60 IR 149 Inspector Corner v Hastings Hire Pty Ltd & Shevlin [2008] NSWIRComm 63 Inspector Leinasars v Malsong Pty Ltd anor [2006] NSWIRComm 197 Inspector John Sibilant v Royal Automobile Club of Australia Incorporating Imperial Services Club Pty Ltd [2008] NSWIRComm 87 CASES CITED: Martin v Osborne (1936) 55 CLR 367 at 375 Rech v F M Hire Pty Ltd and anor (1998) 83 IR 293 St Hilliers Contracting Pty Ltd v WorkCover Authority of New South Wales [2007] 162 IR 241 Sydney County Council v Coulson (1987) 21 IR 477 at 480 WorkCover Authority (NSW) (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 WorkCover Authority of New South Wales (Inspector Egan) v Adco Controls Pty Ltd (1998) 82 IR 80 at 85 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 HEARING DATES: Hearing: 5 August 2008 Written submissions: 27 August 2008 DATE OF JUDGMENT: 12 September 2008 PROSECUTOR: Mr R Reitano of counsel SOLICITORS: Mr W Steenson WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr P Menzies QC and Mr S Benson of counsel SOLICITORS: Mr M Callanan Ellison Tillyard Callanan JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 12 September 2008 Matter No IRC 1887 of 2007 INSPECTOR JOHN SIBILANT v ROYAL AUTOMOBILE CLUB OF AUSTRALIA INCORPORATING IMPERIAL SERVICES CLUB LTD (No 2) Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 167 1 The defendant, Royal Automobile Club of Australia Incorporating Imperial Services Club Ltd ("RAC"), has been charged with a breach of 8(1) of the Occupational Health and Safety Act 2000. The particulars of that alleged breach are as follows: (a) a failure to carry out and implement an adequate risk assessment for work on air conditioning units, particularly the task of adjusting thermostats on the air conditioning units; (b) a failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on air conditioning units; (c) a failure to adequately inspect, or ensure that an adequate inspection was undertaken of the electrical circuits so that its employees were not exposed to the risk arising from live electrical circuits; (d) a failure to ensure that the electrical supply to air conditioning units was isolated before any work was performed on them; (e) a failure to ensure that electrical test equipment was suitable and in working order when being used; (f) a failure to provide adequate information, instruction, training and supervision. 2 On 20 October 2004 the defendant's building and maintenance manager Mr Jeffrey Leisemann, was fatally injured while performing work on an air conditioning unit located within a room in the club premises. While it was not possible to establish precisely what task he was performing, the front cover of the air conditioning unit had been removed and an internal part of the unit was found protruding from the unit. A pair of yellow handled pliers was found inside the unit and near a motorised valve - a shining torch was found close by and within the air conditioning unit. The cover of the motorised valve had been removed and live electrical points had been exposed. Elsewhere inside the room a number of other tools were found, including a hammer, an adjustable shifter, a Phillips screwdriver and a flathead screwdriver. Also within the room was found a portable temperature gauge and a Voltfinger used for testing the presence of electric current. 3 In a co-operative approach, the parties conducted the proceedings on the prosecution case by tendering a number of documents as well as statements and evidence given at the Inquest into the death of Mr Leisemann. At the close of the prosecution case, the defendant submitted that there was no case to answer. That submission was considered and ultimately rejected (see Inspector John Sibilant v Royal Automobile Club of Australia Incorporating Imperial Services Club Pty Ltd [2008] NSWIRComm 87). That judgment and its summary of evidence should be read with this judgment dealing with the defendant's liability under the Act 4 On resumption of the hearing the defendant commenced its case. The evidentiary case for the defendant comprised of a number of documents: a maintenance expenditure schedule for the year ended 31 October 2004; a maintenance manager position description dated 23 February 1998; an Occupational Health and Safety Consultation pack from "Jeff Leisemann's Training Course"; a request to obtain details of electrical licences; the D J Staniforth contract for air-conditioning; and, minutes of Occupational Health and Safety and Heads of Department meetings from 3 February 2003 to 15 October 2004. The prosecutor raised no objection to the receipt of this documentation into evidence. 5 The schedule of maintenance expenditure for the year ended 31 October 2004 showed that there was a budget of nearly $240,000 proposed for maintenance and that the actual expenditure was over $330,000. Over $23,000 of that sum was spent on air conditioning, being more than $5,000 above the allocated budget. 6 The position description for maintenance manager dated 23 February 1998, although providing a section to be signed by the employer and dated and also providing for the employee to formally agree to perform the duties set out in the job description, was not signed and carried no identification, nor was it directed to any particular person. It was pointed out that, under the position description, the maintenance manager was to perform any other reasonable duty requested by management and also agreed to follow all club procedures including occupational health and safety. The duties, although expressed in general terms, made no direct reference to working with electricity or electrical equipment, nor did the document directly prohibit such work. 7 The Occupational Health and Safety Consultation pack from the course attended by Mr Leisemann contained a document signed by Mr Leisemann, (who apparently completed it during the course) and it appeared to be an exercise whereby a work method statement was constructed for a task of compacting, bundling and re-cycling cardboard. The documents also contained a reprint of the Occupational Health and Safety Regulation 2001. 8 A collection of correspondence showed that Inspector Sibilant had made enquiries of the New South Wales Department of Commerce Licensing Division requesting details of any current electrical licences held as at 20 October 2004 by Mr Leisemann, Mr Burgess or Mr Galante, the defendant's employees who made up the maintenance team. A reply from the Department of Commerce, Office of Fair Trading dated 17 January 2005 showed that: Mr Leisemann had no current electrical licence but had an expired concreting licence; Mr Burgess had a current qualified supervisor's certificate and the licence authorised the holder "to do and supervise electricians" and that licence was current until April 2002; and there was no record held by the Department relating to Mr Galante. 9 The maintenance of air conditioning equipment agreement between the defendant and D J Staniforth and Co Pty Ltd ("Staniforth") provided for monthly services to inspect the air conditioning equipment installed at the club. The maintenance work included: inspection and cleaning filters; replacing new filters if necessary; checking drainage; checking lubrication on all unsealed motors and bearings; the completion of cleaning of the entire units including, if necessary, the fan wheels, the face of the cooling coils, condenser coil, condenser fan, draining the fans and the compressor departments; inspection of panels and ceiling strips; checking drainage, adjusting fan pulleys and belt tensions; checking routine operation of electrical switch gear to ensure its satisfactory operation; checking that the routine operation of the control system was satisfactory; the cleaning and checking of control elements; testing for leaks; checking for proper refrigerant and oil charge; checking cold water supply and operation of cold water valves if necessary; inspecting mounting brackets and isolation pads; inspect ductwork, regulate diffusers, return air grills etc; checking penetrations and flashing in external walls; checking insulation; and, checking discharge and intake cowles. A separate letter dated 10 February 1989 appeared to show that the maintenance agreement had been offered on or about that date. Another letter of 27 September 1996 from Staniforth to the defendant spoke of the company presently providing a scheduled preventive programme for the air conditioning equipment at the club premises and noting additional equipment had been added that should be included in the monthly programme. The added equipment was identified as being placed on the roof and at levels 3 and 4. A further letter from Staniforth dated 28 April 2006 noted that, between 1 August 2003 and 19 November 2004, the only individual room air conditioning units worked on by that company were in the "Harbour View Room", a venue apparently different to suite 601 where Mr Leisemann was working on 20 October 2004. 10 As previously mentioned, there were numerous minutes of the meeting of the occupational health and safety committee and Department Heads and they were regularly attended by Mr Leisemann. 11 In relation to these documents it was submitted that the maintenance expenditure schedule showed that there were significant monies made available for maintenance of the air conditioning units. In relation to the position description, although there was no specific evidence that the document was particularly drawn to Mr Leisemann's attention, it was submitted that an inference should be drawn that he was aware of what his duties were and the duties did not require him to become exposed to likely risky procedures performing work that an electrician might do. His duties were essentially of a supervisory and managerial nature consistent with the title of maintenance manager. The consultation pack showed that Mr Leisemann was sent to an occupational health and safety training course conducted over four days and the documents carried a variety of references to occupational health and safety and the need for care. One of the documents showed that Mr Leisemann had been involved in constructing a work method statement and thus he was familiar with that approach to the work he was performing. The documents also dealt with assessing the risk of any particular hazard and a particular part of the course dealt with risk management. That part of the course dealt with hazard risk assessment and the development of risk control strategies. The reproduced Occupational Health and Safety Regulation dealt with risk management. DELIBERATION 12 Senior counsel for the defendant reminded the Court, correctly, that the decision taken in rejecting the "no case" application involved the Court in an entirely different exercise: in the "no case" application the Court was bound to take the prosecutor's evidence at its highest but in this part of the case, the prosecutor was required to prove the elements of the offence beyond reasonable doubt. It was accepted that the Court had already correctly identified the essential elements of the offence, namely : (a) the defendant was an employer at the relevant time (20 October 2004); (b) that employees of the employer were exposed to risk to their health and safety; (c) that the employees were at work; (d) that there was a causal nexus between the defendant's breach and the risk to employees' safety. The relevant employees were Mr Leisemann, Mr Burgess and Mr Galante. 13 Accepting that the task in which the Court is now involved concentrates attention on the elements of the offence and that they are to be established beyond reasonable doubt, nevertheless, the defendant's case heavily concentrated upon the circumstances surrounding the accident and the fact that Mr Leisemann had acted beyond the limits of his permitted authority, especially by performing electrical work or exposing himself to electrically live points in the air conditioning unit. In the "no case" judgment, the Court had emphasised the difficulty with concentrating on an accident rather than 0dealing with the risk to safety alleged by the prosecutor. 14 In light of the approach of the defendant, it is appropriate to refer to some well established and understood principles governing prosecutions brought under Occupational Health and Safety legislation. The provisions of s 8(1) of the Act require an employer to "ensure" the health, safety and welfare at work of all the employees of the employer. In Haynes v C I & D Manufacturing Pty Ltd and anor (1995) 60 IR 149 the Full Industrial Court noted that the general duties or obligations cast on employers under provisions such as these were both preventive and remedial in nature. The equivalent of s 8(1) and (2) were said to be both concerned with failures to ensure the health and safety of persons at workplaces in terms of "risks" and thus the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehended the commission of an offence where the relevant detriment to safety was only a risk and where the circumstances were such that the employer's acts or omissions had created a situation of potential danger to the health and safety of persons in the workplace. In WorkCover Authority of New South Wales (Inspector Egan) v Adco Controls Pty Ltd (1998) 82 IR 80 at 85, Hill J stated. This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be pro-active and not a reactive one: employers should be on the offensive to search for, detect and eliminate, so far as reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 15 In the Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27, Walton J, Vice-President stated: The system of effective risk management required by the Act is not met merely by responsive actions to a risk which has been demonstrated to exist. There must be a system of searching for and identifying all possible risks and instituting safety measures to guard against those risks: WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, 2 April 1997 per Hill J). 16 Indeed, Chapter 2 of the Occupational Health and Safety Regulation specifically deals with risk management and amongst other things, requires an employer to consult with employees to enable them to contribute to the making of decisions affecting their health, safety and welfare at work. This Chapter requires an employer to take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer's undertaking that has the potential to harm the health or safety of employees ,and also requires an employer to assess the risk of harm to the health or safety of employees arising from any hazard identified in accordance with the Chapter. Employers are then to eliminate or control any reasonably foreseeable risk to health and safety of its employees. 17 In Rech v F M Hire Pty Ltd and anor (1998) 83 IR 293 Hungerford J, in the context of the operation of s 15(1) and s 16 (1) of the Occupational Health and Safety Act 1983, gave detailed consideration to the nature of the duty imposed and the tasks to be undertaken in determining whether there was a failure to meet the statutory obligations imposed upon the employer to ensure the health and safety of employees at his place of work. His Honour stated (at 316-317): In a consideration of this mater, I have been quite troubled as to whether essential elements of the s 15(1) charge have or have not been established against F M Hire to the necessary degree. That arises having in mind the circumstances as disclosed by the evidence, not the least of which being that there was no witness to the events which occurred leading to the accident on 21 December 1993, in the context of the positions and responsibilities of the respective principal actors in the matter being the Sydney Market Authority, Nomel, F M Hire and, one might add, Mr R E Hall. I therefore think it both apt and timely to repeat comments I made in Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50, albeit in relation to s 16(1) of the Occupational Health and Safety Act but not relevantly dissimilar to s 15(1) here, regarding the proper approach as to the nature of the duty to ensure safety and whether an employer had failed to satisfy that duty, as follows: I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long entitle states, has the purpose to 'secure the health, safety and welfare of persons at work'; the objects of that Act in s 5(1) emphasise the point. And, so, Div 1 -General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: 'Accident prevention is unquestionably one of the modern responsibilities of an employer.' The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309: 'In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer'. It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit. Nevertheless, care must be taken, it seems to me, in determining the commission of an offence under s 16(1) not to so liberally interpret the duty cast as would exceed the permissible limits. The former Industrial Commission in Court Session (McMahon DP, Hill and Hungerford JJ) put it this way in Dawson (1990) 37 IR 110 at 120-121: 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 The Broken Hill Proprietary Company Ltd (unreported, NSW Ind Rels Comm, 1988) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety'. Their Honours then cited (at 123-124) with approval the following passage from the judgement of Fisher P in Cullen v State Rail Authority of New South Wales (1989) 31 IR 207 at 210: In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. 18 Bearing in mind these principles, it is necessary to then consider the submissions made on behalf of the defendant. The defendant initially pointed out that the charge related to the occurrences of a single day, 20 October 2004, at the club premises in Macquarie Street Sydney. The charge alleged a breach of s 8(1) of the Act in that the defendant, being an employer, failed to ensure the health safety and welfare at work of all its employees and in particular, Jeffrey Leisemann. After particularising the failures the charge alleged that, as a result of that failure, Jeffrey Leisemann was placed at risk to his health and safety and was fatally injured. The defendant submitted that, pleaded in this way, significant difficulties were placed in the prosecutor's path in establishing, to the criminal standard, the offence as particularised. The evidence was that Mr Leisemann frequently worked alone and it was not known, and there was no evidence, precisely what work he was undertaking on the day of the accident. It was unknown to what extent Mr Leisemann conducted a risk management assessment of the work that he was to perform: to the extent that he undertook work involving the exposure of live electrical points within the air conditioning unit, that was work he was told not to perform because it was recognised that he did not have qualifications as an electrician and that there was another member of staff, Mr Burgess, who did have such qualifications. While the particulars appeared to focus upon the accident and the fact that Mr Leisemann was placed at risk as a result of alleged failures, to the extent that the particulars also referred to Mr Burgess and Mr Galante, there was no evidence that on the day either of those employees were carrying out work on air conditioning units and in particular, the task of adjusting the thermostat on air conditioning units. It therefore followed that, even if there was some failure on the part of the defendant, such a failure could not have had any effect on the health safety and welfare at work of those two employees. 19 It can be accepted that, in criminal proceedings alleging a breach of the Occupational Health and Safety Act, the particulars of the breach assume considerable significance. Having regard to the breadth of the duty imposed on employers by s 8(1) of the Act to "ensure" the health and safety of its employees at work and the general objectives of the statutory regime, the particulars need to be considered in a practical manner. In this case, the prosecutor has alleged that all of the defendant's employees were at risk as particularised but the evidence makes it clear that the only employees that could fall into that category were the members of the maintenance staff, namely Mr Leisemann, Mr Burgess and Mr Galante. The allegation therefore is that, in the manner particularised, the defendant failed to ensure the health and safety at work of these three members of its maintenance staff. The later reference to Mr Leisemann would otherwise be redundant except the prosecutor further alleges that, as a result of the identified failures, not only was Mr Leisemann placed at risk to his health and safety but also he was "fatally injured". That particularisation therefore focuses on the fatal injuries and distinguishes Mr Leiesmann from the other two employees. Pleaded in this way, although not elegant, the prosecutor draws attention to the fact of the serious nature of the alleged risk. As has already been observed, the Act does not require an injury or accident in order for there to be a risk against which the employer failed to ensure the safety of its employees. In this case, as often happens, an incident on a particular day draws attention to the way in which a defendant has work performed and where there is an injury, especially a serious or fatal injury, at least that fact is evidence informing a consideration of the seriousness of the breach. 20 The fact that there is no evidence that, on this day, Mr Burgess and Mr Galante were performing the task of adjusting air conditioners does not lead to the conclusion that the charge as particularised cannot be made out by the prosecutor. This is not a case, such as was dealt by Hungerford J in Rech v F M Hire Pty Ltd, where his Honour was able to conclude on the evidence that the employee was not at work at the time that he drove the forklift and may not have even worked that day because of the nature of his employment arrangement. In any event, the deceased employee was driving the forklift well before the normal hours of work and was apparently in the course of moving stolen goods for his own purposes. The real issue therefore was whether the deceased employee was "at work" for the purposes of the operation of the Act. In this case, on the evidence, there is no issue that all three employees of the maintenance department were at work on the day. There was evidence that Mr Nelson had asked Mr Leisemann to adjust the thermostats because of the change of season and, as head of the department, it was within his authority to direct the other members of the maintenance department to also perform that task or to assist him in that task. It was a task that they had all performed. In the ordinary course of their work therefore, in a real and practical sense, they could be called upon to perform this work including on 20 October 2004. If called upon to do this work or undertaking it on their own account in the course of performing routine maintenance, they were therefore at risk if the particulars of the charge are otherwise made out. 21 Before dealing with the details of each particular, it is appropriate to note that the evidence has been substantially summarised in the first decision (Inspector Sibilant v Royal Automobile Club of Australia Incorporating Imperial Service Club Pty Ltd [2008] NSWIRComm 87). The evidence for the defendant is dealt with in paragraphs [3] to [9] of this judgment. It is not proposed to repeat those summaries of the evidence. 22 In summary, the defendant's submissions were: (a) the prosecutor had failed to define with the necessary precision what a risk assessment would have entailed in the circumstances, and did not particularise what was an "adequate" risk assessment and therefore there was no evidence as to these two issues; (b) the inadequate risk assessment was said to be in relation to work on air conditioning units, particularly the task of adjusting thermostats on the air conditioning units. The work of adjusting thermostats, however, did not bring the worker near the energised parts and therefore a risk assessment of the tasks would have led to the conclusion that there was no risk. By inference, such an assessment would have been made by Mr Burgess, the qualified electrician, with Mr Galante and Mr Leisemann routinely performing the task. There was no need to carry out a broader risk assessment to cover something entirely unrelated to the task of adjusting the thermostat because that was not part of the task; there was no need for a risk assessment in relation to work that employees were not called upon to perform; (c) the prosecutor had failed to identify who should carry out the risk assessment. However, Mr Leisemann was the maintenance manager and had been instructed at the time of his engagement that he was to undertake a risk assessment prior to doing work and he was also the chairman of the occupational health and safety committee. He had attended an occupational health and safety course. It was sheer speculation to assert that Mr Leisemann had not carried out a risk assessment before performing any work on the air conditioning unit. Similarly it was speculation to assert that, if he carried out a risk assessment, it was inadequate; (d) the presence of electrically insulated tools and a device to identify the presence of electric current in the room was evidence that Mr Leisemann had assessed that a risk of electrocution existed and that he would be protected by using these tools. The training he had undertaken showed that, having identified the risk, the employer was to take appropriate steps to eliminate or control the risk and as manager that task had been delegated to Mr Leisemann; (e) Apparently, Mr Leisemann was intent on doing work which involved a risk of coming into contact with live electric points and was intent on performing work beyond the mere turning of a knob which was all that was involved in adjusting the air conditioner. Even if there had been a risk assessment, it is evident that Mr Leisemann would have carried on with the work in any event. There was no evidence that an increased risk to his safety was caused by any failure of the employer to carry out a risk assessment; (f) if it was assumed that a careless or inquisitive employee also needed to be warned as part of the risk assessment, it was difficult to understand how such a warning would have made any difference in these circumstances. Here, Mr Leisemann knew he was working "live", took some precautions to protect himself with what he regarded as appropriate tools and nonetheless proceeded. Even if there was such a warning as part of a risk assessment, it was unlikely that he would have taken any notice of it. More importantly, it was not open to conclude that, because Mr Leisemann put himself in a position which was obviously dangerous, either he had not carried out a risk assessment or that the risk assessment he had carried out was inadequate; (g) the simple task was to adjust the temperature by turning a knob - a risk assessment would not have been extended to instructing an employee that, in such circumstances, they were not to remove a secured cover from another part of the air conditioner that did not need to be touched and which did not involve an employee going near in performing the authorised task; (h) the task of adjusting the thermostat or the changing of filters did not put any employee at risk of exposure to energised points or contacts; (i) Mr Leisemann had been instructed by Mr Nelson upon his engagement that he was not to do any electrical work because he was not a qualified electrician. The inference drawn from the available evidence was that Mr Leisemann accepted the instruction and it formed a term or condition of his employment. The only member of staff who performed electrical work was Mr Burgess, a qualified electrician. Mr Leisemann's diary notes referring to some electrical work were inadequate to establish that he was performing electrical work - they were just as consistent with the performance of supervising the work being performed by Mr Burgess or an electrical contractor. If Mr Leisemann was, contrary to instructions, carrying out electrical work and therefore increased the risk to his safety it was his own breach of employment instructions that raised the risk and it was not caused by any failure of his employer; (j) while the maintenance team were not instructed as to what was meant by "electrical work", the evidence was that Mr Galante did not do anything concerned with electrical work. Mr Burgess said that, as far he was concerned, the other staff did not touch electrical work. In those circumstances, any failure to instruct employees as to what was meant by electrical work did not increase the risk to health and safety of the maintenance team. From the tools he was using and despite instructions to the contrary, Mr Leisemann was doing something he certainly understood to be electrical work. In addition there was no evidence of the maintenance team doing other work on the air conditioning, apart from adjusting the thermostat and removing the filter of drip trays. There was no evidence that there was any need to remove the cover of the valve for any reason, including obtaining space to perform other work. Adjusting the thermostat required nothing more than turning the knob on the controller. There was no evidence that the work of changing the filters or adjusting the thermostat may have required removing the condenser; (k) if an appropriate risk assessment included a warning against removing the cover or moving the cover of the valve whilst performing work in the unit and/or isolating the power before commencing any work, there was no evidence that the absence of such a risk assessment increased the risk to health and safety of the employees. Neither Mr Galante nor Mr Burgess did any work which put them at risk while performing work on the air conditioner and so the existence of a risk assessment with the warning referred to above would have made no difference to the risk to their health and safety. In relation to Mr Leisemann, such a warning would have made no difference to his conduct and the evidence was to the contrary. Therefore, the failure to provide such an assessment would not have increased the risk to Mr Leisemann's health or safety; (l) there was no evidence that changing the filters or adjusting the thermostat gave rise to a risk of coming into contact with energised points and therefore, there was no warrant for a risk assessment or procedure that required isolation of a power supply before carrying out that work. The evidence of Mr Nelson was to the effect that only Mr Burgess, as a licensed person, was to perform any electrical work and that the other two members of the maintenance team were not to perform such electrical work. Adjusting the thermostat in an air conditioning unit involved nothing more than opening the door and turning a knob. Removing the filter did not require exposing a person to any energised part of the unit. There was no need for a warning against doing something that was not required to be done as part of the task; (m) as no electrical work was being performed by Mr Leisemann and Mr Galante, there was no need to isolate the power; (n) if there was a failure as alleged, then the cause was one over which the defendant had no control and against the happening of which it was impracticable for the defendant to make any provision. Mr Leisemann was the manager and the only way to ensure his safety was by being supervised by another person; (o) it was not possible to establish what work Mr Leisemann was performing but he was not adjusting the thermostat or changing the filters. There was no evidence why he removed a cover and exposed himself to risk of electrocution. There was no evidence that the cover was not secured before he removed it. The only conclusion available was that Mr Leisemann was doing something that was completely unnecessary if what he was trying to do was either adjust the thermostat or change the filter. By his own conduct he completely and unnecessarily created a danger; (p) there was no evidence that Mr Nelson was aware that Mr Leisemann had a Voltfinger in his possession or that he was using it on the day in question, and there was no evidence of whether he used it on the day. While a perusal of Mr Leisemann's work diary and the contents of the minutes of the safety committee may have resulted in an investigation of the work actually performed by Mr Leisemann, the employer's duty could not be properly extended in such a way. In any event, Mr Leisemann was engaged as a manager and had been told that he could not perform electrical work. There was a proper budget for maintenance and no suggestion that it was inadequate. Mr Leismann was instructed to use contractors, including for air conditioning work, and he was aware that his maintenance staff included a licensed electrician. Under those circumstances it is not necessary for an employer to discharge its duty of diligence to check for what, under the circumstances, would have been serious and wilful misconduct on Mr Leisemann's part. The work diary was not required by the employer and Mr Nelson was unaware of it. He could hardly be criticised for failing to require the production of the diary to assess what risks might flow from the work being performed by Mr Leisemann and to check that Mr Leisemann was not performing electrical work; (q) in relation to the second particular alleging a failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on air conditioning units, it was submitted that it was not known what task Mr Leisemann was attempting to undertake and if he was attempting to carry out electrical work on the unit, he was not suitably trained or qualified. It could not be assumed, in the absence of evidence, that Mr Leisemann was carrying out electrical work and if he was attempting to adjust the thermostat or clean the filters, those tasks were not electrical work. It was speculation what Mr Leisemann was in fact doing, but it was not part of his duties to perform electrical work. He may have been attempting to satisfy his own curiosity as to the operation of the air conditioner or may have developed his own theory about its workings, or he may have decided that what he was attempting would adjust the temperature or he may have had something else altogether in mind. It could never be known what Mr Leisemann was doing and it was sheer speculation to attempt such a determination; (r) given that Mr Leisemann was the maintenance manager in a small organisation in whom a large degree of trust had been placed enabling him to work largely unsupervised, if there was a relevant failure by the defendant it was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provisions. Mr Leisemann apparently chose not to avail himself of the services of the employed licensed electrician within the maintenance team, nor of the air conditioning contractor. His training and his ordinary experience would have alerted him to the dangers of electrocution and he must have known that he was working "live" because of the tools he had with him at the time, yet he persisted in doing whatever it was he had in mind; (s) in relation to the alleged failure to adequately inspect or ensure that an adequate inspection was undertaken of electrical circuits and that the defendant's employees were not exposed to the risks arising from live electrical circuits, it was submitted that Mr Leisemann was electrocuted because he exposed himself to the live circuit by removing a cover and that inspection of the electrical circuit would not have exposed a risk. It was unknown whether Mr Leisemann knew how to isolate the air conditioner upon which he was working, nor was it known whether it would have made any difference if he had that knowledge. This particular did not go to a failure to inspect the air conditioning system to establish what was involved in the task, including a need for entering the unit, changing the filters and adjusting the thermostat and whether removal of any of the items in the unit might expose the maintenance staff to risks including risks of electrocution; (t) in relation to the failure to ensure that the electrical supply to the air conditioning units was isolated before any work was performed on them the defendant submitted that, had Mr Leisemann merely adjusted the thermostat or changed the filter, there would have been no need for him to isolate the air conditioning unit so that the failure to isolate the air conditioning unit did not give rise to any increased risk of injury to Mr Leisemann provided he confined himself to his work. There was no evidence of the state of Mr Leisemann's knowledge as to how to isolate the air conditioning unit, and there was no requirement to inform him that the air conditioning unit should be isolated because he was never required to do any work which would have exposed him to a risk of injury from the unit not being isolated. While a securing screw was missing from the cover of the motorised valve, wire was present similar to that which had been used to secure the cover on another air conditioning unit in the room. There was no evidence that the cover was being removed from time to time. The evidence merely established that the cover had been secured by wire and there was no evidence that the method of securing by wire was any more or less secure than the original method of securing the cover with a screw; (u) in relation to the particular alleging a failure to ensure that electrical testing equipment was suitable and in working order when being used, the defendant took this to be a reference to the Voltfinger but noted that the defendant was not aware that Mr Leisemann had such a piece of equipment in his possession and that there was no evidence as to its ownership such that it could not be inferred that the Voltfinger was in fact owned by the defendant. On the evidence, the defendant was not aware of the existence of the equipment and it could hardly be criticised for failing to ensure that it was suitable and in working order. Further, there was no evidence that Mr Leisemann used the Voltfinger so it could not be inferred that any defect in the Voltfinger placed at risk his health and safety. The defendant did provide electrical test equipment and a multi meter that was suitable for testing whether a circuit was "live" and the defendant also provided an electrical test box for testing electrical equipment. That equipment was available to be used by people who were authorised to use it, namely Mr Burgess the licensed electrician, and there was no evidence that it was used by people who were not qualified to use that equipment; (v) in relation to the failure to provide adequate information, instruction, training and supervision it was submitted that the evidence did not identify in what respect these matters were inadequate, nor did the evidence demonstrate how any of these inadequacies caused the risk asserted. There was no causal link between any identified failure in regard to the provision of information, instruction, training and supervision and Mr Leisemann's death. Mr Leisemann died as a consequence of doing work other than that which he was instructed to do in circumstances where he was instructed not to do electrical work. It was unclear what information, instruction, training or supervision would have been adequate in the circumstances and it was difficult to see how, as manager, Mr Leisemann could be subjected to further supervision. He had been sent for appropriate training and was instructed on what he could not do, namely, electrical work. He was aware that he was taking a risk of exposing himself to a live electrical circuit given his use of the voltmeter and the insulated screwdriver. He was also aware, apparently, that he was dealing with live circuitry and so it was difficult to understand how the provision of more information made any difference to the risks. Mr Leisemann was not placed at risk as a result of any of the asserted failures of the defendant but as a consequence of his own actions. 23 Before dealing with these submissions pressed on behalf of the defendant, it is convenient to note that, not only the summary of evidence contained within the first judgment is adhered to for the purposes of deciding whether an offence has been committed by the defendant, but that also the findings of fact made in that first judgment are also adhered to except as follows: the Court had before it a number of minutes from meetings of the occupational health and safety committee and department heads. From that material, the prosecutor suggested that, at the very least, the defendant should have been placed on notice that Mr Leisemann may have been or was performing electrical work when he was not qualified to do so and should have investigated the situation. Those numerous entries are summarised in the first judgment and are not repeated here. On further consideration, those minutes are an insufficient basis for concluding that, either Mr Leisemann was routinely performing electrical work or that the entries were of such a nature that they should have put the defendant on proper notice that Mr Leisemann was performing electrical work. Mr Leisemann's work diary falls into a different category because it was not a document required by the defendant to be maintained by Mr Leisemann and its existence was unknown to the Chief Executive Officer, Mr Nelson. It is not appropriate that such a document be used as a foundation to impose some obligation on the employer in order to establish what work is being performed and the method of work being adopted. As with the minutes of the safety committee and the departmental heads, the entries themselves form an insufficient basis to establish that Mr Leisemann was performing electrical work or to put the defendant on notice that he may have been performing electrical work. There is, however, other evidence touching upon these matters. 24 In its case and without objection, the defendant tendered a position description for the maintenance manager dated 23 February 1998. There was no evidence as to why it was prepared in 1998 or if it was prepared in 1998. As has already been observed, that document was not signed by the employer or the employee and there was no indication that it had been accepted, some years later, by Mr Leisemann. It is to be recalled that Mr Leisemann had been employed in a similar position in the club between 1992 and 1996 and had resumed employment in December 2002. While the February 1998 document may be indicative of the type of work performed by Mr Leisemann as was the content of the job advertisement to which Mr Leisemann replied, the document alone does not establish that Mr Leisemann knew and understood that these were his duties. The position description was relied upon by the defendant as demonstrating that Mr Leisemann was not a hands-on operator but was essentially involved in supervision and was not required to perform electrical work. The job description, as might be expected in dealing with a small workforce in the maintenance department of a city club, contained a miscellany of duties but also broadly described the functions as following the club's procedures in relation to occupational health and safety and to perform any other reasonable duty requested by management. Two further things should be noted. The job advertisement referred to the performance of electrical work. Mr Nelson's evidence was that the maintenance staff were to perform "light electrical work" and there was evidence before the Coroner that Mr Leisemann frequently worked on his own in performing maintenance tasks, rather than doing no more than supervising others. 25 After the evidence had closed and judgment reserved, a further issue arose where the Court sought the assistance of the parties. Before the Court were a series of photographs of the air conditioning unit on which Mr Leisemann was working when he was electrocuted. During the presentation of the case attention was drawn to a piece of equipment protruding from the unit. That piece of equipment was of a rectangular shape with a metal shaft extending out from and located near one end of the equipment. A red coloured plate carrying the letter H was immediately above the metal shaft. A pipe was attached to the end opposite to where the protruding shaft was located and there appeared to be much smaller diameter coiled copper piping attached to it. During the hearing it appeared that this piece of equipment was referred to as the thermostat to be adjusted. Apparently, the metal shaft was meant to hold a knob so that turning the knob could increase or decrease the temperature in the room. While reference was made to these photographs during the hearing, no mention was made of the description appearing at the foot of each photograph. Those descriptions stated that the rectangular piece of equipment with the metal shaft was "... part of the room air condition unit that was protruding from the air conditioning unit". Two photographs that focused on that piece of equipment carried that description. A number of photographs showing a close-up of what had been described during the hearing as a "motorised valve" carried a description stating that the picture depicted "the thermostat" or "the exposed thermostat". There were five such photographs. 26 The parties helpfully conferred about this issue raised by the Court and then identified the photographs that depicted a motorised valve without a cover, the covered motorised valve and the pictures depicting the thermostat control with its metal shaft but having do dial or knob. The Court was then referred to Mr Burgess' evidence given at the Coronial Inquest. The Court expresses its appreciation for the further assistance given by the parties in relation to these issues. 27 It is necessary to return to the evidence concerning the operation of the air conditioning unit and the thermostat. In the proceedings before the Coroner, Mr Burgess was asked if he had ever adjusted the settings on an air conditioning unit while operating the thermostat or anything of that nature. Mr Burgess replied that, in the individual rooms, there was a thermostat control and the setting would be opened, closed or adjusted so that hot or cold water would flow through the condenser unit. He had performed this work in individual rooms. He described the task as opening the door and turning the knob on the thermostat control. The rectangular thermostat was usually screwed into part of the unit and "... you just turn it on and you'd (sic) in here with the other hand there is a motorised valve, moving". Mr Burgess accepted that turning it one way would open the flow of water and the other way would decrease the flow of water but he would not take the thermostat out of the air conditioning unit and would leave it inside. In his view there was no need to take the thermostat out of the air conditioning unit. Mr Burgess noted that in the photographs the cover had been removed from the motorised valve but he had no idea what work was being performed, except that perhaps a check was being carried out to see if the motorised valve was running but that could be ascertained by listening to it with the cover on. 28 The other evidence relevant to this matter was given by Mr Rayner, the senior electrical installation inspector employed by Energy Australia. Mr Rayner's evidence in this regard appears in paragraphs [45] to [47] of the first judgment. In those paragraphs, Mr Rayner explained that he understood that the adjustment to the air conditioning unit was made through the thermostat and that the thermostat was electrically connected to the motorised valve and that the two parts worked in conjunction with one another. He regarded this operation as involving electrical work. Mr Rayner explained that the cover over the motorised valve was there as a protection against the live components and that the cover did not need to be removed to perform other work within the enclosed area containing the air conditioning unit. Mr Rayner further expressed the view that the adjustment of the thermostat involved electrical work and he had reached that view because he assumed that Mr Leisemann was working on the thermostat depicted in the photographs. While Mr Rayner did not purport to be an expert in air conditioning, this evidence is properly confined to the electrical connections of the thermostat and the motorised valve. 29 It was earlier commented upon that the defendant's submissions concentrated upon the accident and Mr Leisemann's electrocution although that approach had been criticised in the "no case" judgment. The cases cited in that judgment and in this judgment make it abundantly clear that, even if the offence is particularised as occurring on a nominated day, the focus of s 8(1) of the Act is upon the employer's duty to ensure, relevantly in this case, the health and safety at work of all the employees of the employer. In order to discharge this duty, the employer is to take steps to prevent risks to employees while they are at work as well as acting to remedy any risk that may be found to exist in the workplace. The defendant's focus on why Mr Leisemann died and consequently who was responsible for his death, misunderstands the operation of the Act and the particulars of the offence alleged. The analysis of the alleged offences as set out in the "no case" judgment is adhered to for the purposes of this judgment, except where otherwise stated. 30 Again it will be seen that, on this aspect of the case, the defendant made particular mention of the fact that Mr Leisemann had been directed not to perform "electrical work". Although involving some repetition, the Court adopts paragraph [67] of the "no case" judgment, namely: Another feature of the defendant's submission was its concentration on giving directions to Mr Leisemann not to perform "electrical work". It is to be observed, however, that not all of the particulars of the alleged breach proceed on the basis that employees working on air conditioning units are engaged in "electrical work": some of the particulars, such as particular (b) combines tasks involving electrical work with tasks including work on electrical air conditioning units and thus may not be electrical tasks. In this respect, two lines of authority in this jurisdiction are relevant: WorkCover Authority (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85, Hill J stated: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach be a pro-active and not re-active one; employers should be on the offensive to search for, detect and eliminate, so far as it 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. Allied to that well known approach is the statement of the Full Bench in Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15]: ... Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. It is against these standards that the evidence is to be judged in the present matter. 31 Given this background, it is now appropriate to turn to the particulars of the charge. The first particular alleged a failure to carry out and implement an adequate risk assessment on air conditioning units and in particular, the task of adjusting thermostats on the air conditioning units. The defendant argues that difficulties arise with pleadings in this form and that they immediately raise questions about what is a risk assessment and what would be an adequate risk assessment. The prosecutor was accused of avoiding the task of defining what constituted a risk assessment and in relation to this work, what would be an adequate risk assessment. In those circumstances, it was submitted that the prosecutor had "entirely failed" to discharge the onus and the particulars could not be made good against the defendant: the defendant could not be found guilty of failure to do something when that something was not identified. This submission misconceives the task of the prosecutor. While the prosecutor bears the onus of establishing risks to the health and safety of the employees and in establishing a causal connection between the identified risks and the acts or omissions of the defendant employer, the section does not require the prosecutor, for example, to establish the details of a risk assessment nor its adequacy. The obligation remains with the defendant to ensure the safety of its employees and the Regulation requires the employer to conduct a risk management assessment in co-operation with the employees in order to identify and avoid possible hazards to the employees while undertaking that work. In the present case, although there was evidence of Mr Leishman having undertaken an occupational health and safety course where, at least, the materials referred to conducting risk assessments, there was no evidence of a system of work whereby risk assessments were undertaken for the tasks performed by the maintenance staff. Mr Nelson said that he was not aware of a register or compilation of risk assessments as such. Mr Burgess gave evidence that he had been given no training by the defendant about how to undertake a risk assessment up until the accident involving Mr Leisemann. 32 The state of the evidence therefore is that, at the relevant date (20 October 2004), there was no documented risk assessment dealing with the task of adjusting the thermostat on the air conditioning units nor was there any evidence of an approved practice for performing this work. The defendant's response is that such a risk assessment was unnecessary because the task did not involve electrical work and therefore did not require the isolation of electricity to the air conditioning unit. In any event, it was said to be a simple task involving the turning of a knob. The same points were made in relation to the changing of a filter within the air conditioning unit and neither task required the cover to be removed from the motorised valve thus exposing live electrical points. It was Mr Burgess' evidence that characterised the task as simply turning the knob on the thermostat. The thermostat in suite 601 on the day in question did not have a knob but had a shaft to which a knob may well have been able to be attached. It is a bold submission, however, that the work was so simple that no risk assessment was necessary and that there was no risk in performing the work. The defendant's submission in this regard is difficult to accept in light of the evidence of Mr Rayner. In his view, the thermostat was electrically connected to the motorised valve and the two parts worked in conjunction with one another: he regarded this as involving electrical work. This evidence directly raises the adequacy of directions said to have been given to Mr Leisemann not to perform electrical work. 33 It will be remembered that Mr Nelson had difficulty in recalling when the direction was given to Mr Leismann not to perform electrical work and ultimately, his best recollection was that this direction was given at Mr Leismann's job interview. There is no evidence that the direction was again given to Mr Leismann or that it was reinforced either orally or in writing. In fact, Mr Nelson's evidence was that the maintenance staff was involved in "light electrical work". The advertisement for Mr Leismann's position placed in a newspaper in August 2002 sought an "experienced and reliable building maintenance manager" with "electrical experience preferred". During the job interview it was revealed to Mr Nelson that Mr Leismann was not a qualified electrician. The evidence is therefore somewhat contradictory: Mr Nelson says on the one hand that at the job interview he had directed Mr Leismann not to perform electrical work but on the other hand, understood that the maintenance staff performed light electrical work and this is consistent with the job advertisement preferring applicant's with electrical experience. To the extent that Mr Nelson gave a direction to Mr Leisemann not to perform electrical work, it was a direction given during the course of a job interview and before Mr Leisemann was formally appointed to the position as evidenced by his letter of appointment dated 11 September 2002. More importantly, Mr Nelson's evidence was that he did not repeat that direction after Mr Leisemann became an employee nor did he in any way explain or reinforce that direction with Mr Leisemann. 34 The issue then arises as to what was meant, in any event, by the term "electrical work" in the discussions with Mr Leisemann when he applied for the position of building supervisor/manager. The contract with Staniforth did not cover the adjustment of thermostats in room air conditioning units and Staniforth had no recent record during the period of some 15 months before the accident of being called to adjust the air conditioning in individual rooms. While it was part of the Staniforth contract to change the air conditioning filters, the changing of filters and the adjustment of the thermostat was a task undertaken, at least seasonally, by members of the maintenance team. The adjustment of the thermostat and the removal of the filters (tasks performed by the maintenance staff) required the opening of the unit and the removal of some parts of the air conditioning unit, namely the drip tray and on occasions, the condenser. Mr Burgess' evidence was that, every four months, the filters were cleaned and that task was usually performed by Mr Burgess and Mr Galante and if this involved taking the filter out through the bottom of the unit, then the drip tray and the condenser had to be removed. Once work of this nature had to be performed by persons who did not have electrician qualifications, the defendant had to be on the alert to ensure that the maintenance staff, whether accidentally or deliberately, did not go further or did not perform work while there was a danger of coming into contact with any of the electrical gear in the air conditioning unit. For instance, there was no direction to isolate the power if the cover on the motorised valve was removed or if it was likely to become an impediment while performing the task of adjusting the temperature and/or changing the filters. 35 Consideration then has to be given to the effect of Mr Rayner's evidence that the motorised valve and the thermostat worked in combination and was therefore to be considered electrical work. When Mr Leisemann was requested to adjust the thermostat in individual rooms, Mr Nelson was of the view that this involved doing no more than adjusting, for example, a wall mounted unit, being a task that could be undertaken by any occupant and requiring no electrical or air conditioning skills. By failing to define with precision what electrical work should not be performed by Mr Leisemann, it left it open for Mr Leisemann to form his own view about how far he went in coming into contact with not only the thermostat, but also the motorised valve to bring about a change in room temperature. An adequate risk assessment, when the task was properly understood, would have addressed this issue and given clear directions as to what work was to be performed and that which was not to be performed. If for any reason there was a risk that, in performing the task of adjusting the thermostat or removing the filter, maintenance staff could inadvertently come into contact with the energised points of the motorised valve (because the cover had been removed or knocked during the performance of the task), then a direction could have been given that the power to the unit was to be isolated while the adjustment was being made and re-energised at the conclusion of the task. 36 As already recorded, the defendant's responses are many and varied on this issue. A consistent theme in the defendant's response was that, because this task was simply turning a dial (or a metal shaft) within the air conditioning unit, there was no risk and no requirement for a risk assessment. However, it is no answer that coming into contact with dangerous parts of the machinery within the air conditioning unit was not part of the task to be addressed by maintenance staff: it is a common experience within this jurisdiction that dangers to the health and safety of employees are present although not part of the essential task to be performed. For example, using a cherry picker to lop trees has nothing to do with overhead electrical lines but the performance of this task has to take that possibility into account. An adequate risk assessment would address the risk and provide appropriate procedures so that the risk was eliminated (for example see Inspector Leinasars v Malsong Pty Ltd anor [2006] NSWIRComm 197; Inspector Corner v Hastings Hire Pty Ltd & Shevlin [2008] NSWIRComm 63). In taking that approach to the task of adjusting the air conditioning unit, it is to be remembered that the various electrical and non-electrical parts of the unit were in close proximity within the unit. Such work might require the maintenance staff to kneel on the floor or bend over in order to perform the task, and to work within a limited or confined space. Apparently, a torch might also be required. 37 It was also part of the defendant's submission that there was no call for a risk assessment because there was nothing in the evidence to suggest that the absence of such a risk assessment increased the risk to health and safety of the employee. That approach is not justified by the terms of the legislation and in particular, the provisions of s 8(1) of the Act. The offence alleged is not that a risk is increased by not having a risk assessment, but rather that there was a failure to ensure the safety of employees by not conducting an adequate risk assessment, considering the risks associated with the task to be performed and laying down steps to be taken to avoid those risks. 38 Finally, in relation to this particular it was alleged that if there was a failure, then the cause was one over which the defendant had no control and against the happening of which it was impracticable for the defendant to make any provision. The defendant thus raises the two defences available under s 28 of the Act. While the onus is on the defendant to prove these matters, it is only required to do so to the civil onus. Apparently it is accepted by the defendant that consideration of the defence does not arise until the prosecutor establishes, to the requisite standard, that an offence as charged has been made out (ABB Power Transmission Pty Ltd v WorkCover Authority (NSW) (Inspector Wilson) unreported, IRC NSW Fisher P, Bauer & Hungerford JJ, 2 May 1997; WorkCover Authority (NSW) (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59; and WorkCover Authority of NSW (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [38]; St Hilliers Contracting Pty ltd v WorkCover Authority of New South Wales [2007] 162 IR 241). Indeed, in relation to this particular, the Court finds that the prosecutor has established this breach. 39 The defendant did not call any evidence specifically directed to these two aspects of the s 28 defence but appeared to rely upon the same submissions that were made as to why the offence was not made out. Briefly put, that position was that Mr Leisemann was maintenance manager and had been told not to perform electrical work and whatever it was he was doing on the day of the accident and insofar as it involved electrical work, he was acting beyond his authority and contrary to instructions given by the defendant. From the evidence, nothing has been identified by the defendant to establish to the civil standard that it was not reasonably practicable to comply with s 8(1) of the Act, nor was any evidence pointed to that established that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provision. Ultimately, it appears that the defendant's position was that as manager, Mr Leisemann was the supervisor and it was simply impracticable to have additional levels of supervision in what was a three-person maintenance team. However, there was no evidence to support a finding that an adequate risk assessment could not have been undertaken to identify the presence of live points on the motorised valve and giving directions that the cover was not to be removed or if found in a state where the points were removed, not to perform any work until the power was isolated. Also, there was no evidence that it was not practicable to isolate the power before any work was performed on the air conditioning unit. There was no evidence as to why it was not possible to have the task of adjusting the thermostat and/or removing and cleaning the filters inside units only carried out by the electrician or any combination of these approaches. Bearing in mind that the defendant must, under the defences, be able to show that it had done all that was reasonably practicable or that it was impracticable for the defendant to make provisions, the defendant has failed to discharge its onus in relation to the first particular. The approach of the Full Bench of the Commission in Sydney County Council v Coulson (1987) 21 IR 477 at 480 is of relevance in this regard: Where a question of safe system is involved, liability cannot be avoided by instructions to read regulations or attend safety classes. Paper systems are not enough. Barcock v Brighton Corporation [1949] 1 KB 339 at 343 per Hilbery J . A system if established must be maintained. Paltram v BHP Co Ltd (Judgment of Brereton J, 9/11/62 unreported). Nor does mere insistence that it 'must have been' deliberate disobedience or inexplicable inadvertence when the opportunity to establish and explain the cause is not taken, an adequate explanation as to why in fact the employer had no control over the causes, or the happening of events such that it was impracticable for him to make provision. 40 It can be seen from the defendant's summary of submissions that it was argued that, at the interview with Mr Leisemann before he was appointed to the position, Mr Nelson had directed him not to perform electrical work in the position and had instructed him to follow safety procedures, including undertaking risk assessment. The defendant submitted that, having allocated this task to an appropriate manager in this small workforce, there was effectively nothing further that the defendant could do to ensure the safety of the maintenance staff. A similar argument was rejected by the Full Bench of the Commission in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 where Walton J, Vice-President, stated: [40] I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely. [41] However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with. ... [42] To adopt what was stated by the Court in WorkCover Authority (NSW) (Inspector Glass v Kellogg (Australia) Pty Ltd (No.1) (1999) 101 IR 239 (at 258), these are matters to which a 'managerial mind' should be directed. Whilst the content of such policies and procedures may well be the subject of appropriate advice, ensuring that such steps are taken is a matter for the employer; it is the employer, be it a natural person or corporation, upon whom the Act places the obligation to ensure a safe workplace. 41 As can be seen from the defendant's submissions, many of the arguments in relation to the first particular were said to have relevance for the remaining particulars. The second particular alleged the failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on air conditioning units. Again, the defendant principally relied upon the fact that Mr Leisemann was directed not to perform electrical work (whatever that meant) and it could not be established what Mr Leisemann was doing on the day. For reasons already given, those submissions have little relevance to the width of this particular, applying as it does to the entire maintenance staff. 42 As already noted, Mr Rayner's evidence was that the thermostat and the motorised valve worked in combination and work upon such equipment was to be considered electrical work. In the "no case" judgment, Mr Nelson's evidence was that there was no written electrical work policy and that maintenance staff were not to do anything other than "light electrical work". There was no direct instruction given to other maintenance staff not to perform electrical work because it was expected that Mr Leisemann would pass that instruction on to them although Mr Burgess, as a qualified electrician, would be unlikely to be given such an instruction. Further, Mr Galante was unaware of the defendant's policy for working "live". His evidence was that, when he worked on air conditioning units, he undid the drip tray to change the filter and did so every four or five months. He also adjusted the thermostat but did not perform work on the motorised valve. He did not know how to isolate the unit before working on it although he did not perform any electrical work. There was no evidence that Mr Galante was instructed not to perform electrical work or not to work in a way that put him in danger of coming into contact with energised points or cables, especially when working on air conditioning units. There was no definition of the electrical work he was not to perform. 43 The work of the maintenance team in relation to the air conditioning unit was to work inside that unit and remove certain parts in the performance of the maintenance function. When this task was undertaken there was a risk that the maintenance staff could become exposed to energised contact points. There was no delineation or specification made by the defendant between the work, such as the air conditioning work, that could put staff members into contact with live wires and electrical work that was only to be performed by Mr Burgess, by the contractor Staniforth or any other specialist contractor. 44 It has previously been noted that Mr Nelson gave evidence that the maintenance staff were to perform "light electrical work" only with major tasks to be performed by Staniforth or other contractors. Nevertheless, the expectation was that they would perform "light electrical work". It is not surprising in such circumstances that Mr Leisemann was in possession of a Voltfinger on the day of the accident and had previously been seen with such an instrument in his shirt pocket: the only purpose of the Voltfinger was to test for the presence of an electrical current. Mr Leisemann, however, was not qualified to perform electrical work. There was no evidence of safety audits having been carried out by senior management of the defendant or by external consultants. Mr Nelson did not understand the task to involve removing the unit door and working inside the air conditioning unit and until the accident, thought that adjusting the thermostat involved nothing more than sliding a switch on a control unit as might be done by any lay person, including a person residing in the rooms. The defendant's duty to be diligent in relation to workplace safety, extends to take account of the foibles of employees and the possibility that they will not obey instructions. The evidence showed that the defendant did not know what any of the maintenance staff were doing in relation to "electrical work" and took little, if any, steps to be informed on the topic but was content to rely on assumptions about the work. There was, therefore, a failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on the air conditioning units. 45 In relation to the second particular, the defendant also raised the s 28 defences. Again, the defendant did not call any evidence specifically directed to these two aspects of the defence in order to explain why it could exercise no control or why it was impracticable to make provision against the risk. If the defendant relies upon the instruction to Mr Leisemann not to perform electrical work, the deficiencies in that so called "instruction" have been identified. This is another example of the defendant concentrating on the accident and thereby failing to address the particulars of the charge. 46 The third particular alleged a failure to adequately inspect or ensure that an adequate inspection was undertaken of the electrical circuits such that the defendant's employees were not exposed to the risks arising from live electrical circuits. 47 This particular appears to address a different but related situation to the fourth particular concerning a failure to isolate the electricity supply to the air conditioning unit. The evidence establishes that no one on the maintenance staff, including the licensed electrician Mr Burgess, knew which circuit controlled the air conditioning unit in suite 601 and he had closed another circuit in the belief that it was effective in isolating the power to air conditioning units. Mr Rayner spent considerable time trying to locate a switch that would isolate the air conditioning units in suite 601, but ultimately was only successful in finding a circuit breaker that isolated all the air conditioning units. In addition, he stated that the labelling on the switchboard was not clear as to what was actually controlled and that Mr Burgess could not find a wiring diagram for the air conditioning system. The contractor could not provide any more information on how they isolated the units. A failure to conduct a check of the circuitry meant that members of the maintenance staff, who wished to ensure their safety when working upon the air conditioning units by isolating the units, could not have the defendant identify to them the switches that would be effective in isolating the power. This particular is established. 48 The fourth particular alleged a failure to ensure that the electrical supply to air conditioning units was isolated before any work was performed on them. It is relevant to this particular that Mr Nelson was not aware of what was involved in adjusting the thermostat in the enclosed air conditioning unit. The nature of that work, involving as it did the removal of the door to the unit and working within the unit and the fact that parts of the unit could be removed meant that there was a risk that a member of the maintenance staff could come into contact with the energised contact points, especially where the securing screw on the cover of the valve had been removed. In his report, Mr Rayner said that the retaining screw in both units located in suite 601 were missing. In his oral evidence he stated that the absence of the securing screw on the motorised valve cover meant that it was easy to remove the cover and expose the energised points. This statement was made, even though he understood that the cover was held on by wire and that the same type of wire was used in both units in suite 601. Isolation of the units provided complete safety for the workforce and protected against inadvertent contact with the energised points on the motorised valve while performing work inside the unit. There was no instruction to isolate the units and, as noted earlier, prior to the accident, it was unknown to the maintenance staff where the circuit breaker was located that would isolate the air conditioning units. In performing this work, maintenance staff had to work inside the air conditioning unit and so the isolation of the unit was a protection against any risk of electrocution. Mr Burgess stated that, when performing certain tasks such as changing a belt on the unit or working on the electrical controls, he would isolate the air conditioning unit. It was only after the accident that he understood the steps he took to isolate the unit were ineffective and that unwittingly he was working "live". The isolation of the equipment was therefore an appropriate step, but the isolation had to be effective and the maintenance staff had to be instructed as to which circuit breakers would bring about the isolation of the relevant unit. This particular is established. 49 The fifth particular alleged a failure to ensure that electrical test equipment was suitable and in working order when being used. Mr Burgess' evidence was that he occasionally used a Voltmeter but had never checked to ensure that it was working properly. He owned two voltsticks that he used in his work. Mr Nelson's evidence was that the maintenance staff performed light electrical work. In those circumstances it was necessary that there be a suitable instrument to test whether there was power present in any circuit upon which the maintenance staff were working or near where they were working. 50 A previous maintenance manager had purchased a Voltfinger or similar device, but there was no written electrical policy and no evidence of any directive to the maintenance staff that only electrically qualified maintenance staff were to work on or around areas that were electrically energised. Mr Leisemann had been seen working with the Voltfinger in his pocket but there was no evidence that he had been observed using that device. Having regard to the nature of his position and the fact that the maintenance staff were performing "light electrical work", it is an open inference that Mr Leisemann used the Voltfinger in his work as maintenance manager (see Martin v Osborne (1936) 55 CLR 367 at 375). Mr Leisemann had the Voltfinger in suite 601 on the day of the accident in circumstances where the cover was removed from the motorised valve exposing the energised contact points. The maintenance staff, including Mr Leisemann, were known to provide some of their own tools as well as using tools provided by the defendant. The Court adheres to the view expressed in the "no case" judgment that the evidence shows there was no system of checking on the condition of that equipment and in particular, there was no checking of the Voltfinger or similar device. The Voltfinger found in suite 601 on the day of the accident was defective and at worst, totally inoperable. There was no evidence that it had ever been tested or regularly tested and that inference is available from Mr Burgess' evidence that this equipment was never tested. This particular is established by the prosecutor. 51 The final particular alleges a failure to provide adequate information, instruction, training and supervision. The Court adheres to what is set out in paragraphs [86 - 88] of the "no case" judgment, being in the following terms: [86] ... . The evidence discloses that no information was provided to the employees about what electrical work they should be doing and should not be doing but there was a generalised understanding that they would do minor work and light electrical work and that anything larger should be performed by specialist contractors. There was a lack of definition in these general arrangements as to what was covered by the term "electrical work" and the generality of the understanding impeded the ability to provide adequate safety systems addressing the dangers and risks faced in performing maintenance duties for the defendant. In a similar way there was an absence of instruction about these matters and training in relation to what was to be done and how to do it in a safe way, especially when working with the air conditioning units. [87] In relation to supervision, Mr Leisemann was supervising the other two members of the maintenance team but met regularly with Mr Nelson in relation to the work, discussed the work and from time to time Mr Nelson decided whether the work would be performed by members of the maintenance team or by contractors. Mr Leisemann had been sent on an occupational health and safety course but there is no evidence as to how this affected the way in which he performed his work as the maintenance manager or how it affected his level of supervision. To the extent that Mr Nelson may not have had expertise in some of the maintenance areas, he was in a position to engage external consultants to assist in his overall supervision of the maintenance staff. That supervision could have extended to having an external examination of the tools used by the maintenance staff and an assessment of their fitness for the purpose. It could have extended to the compiling of appropriate risk assessments for the tasks regularly performed, the preparation of written work rules and safety procedures and the training of the maintenance staff in these matters. [88] The lack of proper/adequate information, instruction, training and supervision is evident from various pieces of the evidence: (a) the maintenance staff had not been instructed or trained in isolating the air conditioning system; (b) there were no written safety rules, instructions or training in those rules. It was assumed that the staff knew the occupational health and safety policies of the defendant; (c) there was no instruction or information as to what could be done and what could not be done in the workplace by the maintenance staff. What Mr Burgess did was left up to him in circumstances where the maintenance staff worked largely alone. There was no instruction, information, training or supervision to ensure that maintenance staff did not perform electrical or electrically related work without first notifying and discussing the work with Mr Burgess; (d) there was no information, instruction or training provided in relation to undertaking a risk assessment covering the work to be performed and therefore there was no register of risk assessments or a hazards register; (e) there was no information, instruction, training or supervision in relation to the tools to be used, their fitness for the purpose and which members of the staff should or should not be using those tools. ... 52 Before concluding this matter something further should be said about the defendant's submissions, especially in relation to the view that it could not be established what Mr Leisemann was doing in suite 601. The Court has reiterated that it was erroneous to concentrate on the accident rather than the risk to maintenance staff working on the club's air conditioning units. The defendant, however, put Mr Leisemann's work on the day in the forefront of its case. In the circumstances, it should be said that, from the evidence, there is no reason to believe that Mr Leisemann was not adjusting the temperature as requested by Mr Nelson - what is not known is how he went about that task and why was the cover off the motorised valve and the thermostat unit placed outside the cabinet? As recognised by the defendant, the tools used by Mr Leisemann strongly suggest that he was, at least at some stage, proposing to work on electrical parts of the air conditioning unit. Because Mr Leisemann worked alone and was not audited, it is not known whether this was his normal practice or a usual task. For reasons already given, these unknowns do not prevent the prosecutor from making out its case that there was a breach of s 8(1) by the defendant. 53 In relation to each of the particulars, as discussed above, the breach is proved and the defendant is found guilty of a breach of s 8(1) of the Act. After discussion concerning mutually convenient dates and within seven days, the parties are to contact my Associate in order to set the matter down for the hearing of evidence and submissions on sentence. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.