Industrial Court of New South Wales CITATION: Inspector Michael Dall v Brambles Australia Ltd [2006] NSWIRComm 213 This decision has been amended. Please see the end of the judgment for a list of the amendments. Prosecutor: PARTIES: Inspector Michael Dall Defendant: Brambles Australia Ltd FILE NUMBER(S): IRC5608 of 2004 CORAM: Kavanagh J CATCHWORDS: OHS – s10(1), s10(4), s28 - plea of not guilty – failure to ensure premises were safe and without risk to health – breaches of the Act, regulations and associated standards for conduct of demolition – work performed by subcontractor – defendant a controller on site – defendant not one with limited control - no notification of proposed collapse to defendant as controller on site – defendant guilty of breach – failure to ensure safe premises - application of s28 of Act - not reasonably practical for defendant to comply with s10 in the circumstances – prosecution dismissed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000 Cullen v State Rail Authority of New South Wales (1989) 31 IR 207 Johnson v Miller (1937) 59 CLR 467 Mclean v Tedman (1984) 155 CLR 311 McMillan Britton v Kell Pty Limited v WorkCover Authority (1999) 89 IR 464 Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103 State Rail Authority of New South Wales v Gregory Thomas Dawson (1990) 37 IR 110 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors Tesco Supermarkets Ltd v Nattrass [1972] AC 153 CASES CITED: Tsougranis v Inspector Carmody (No 2) [2006] NSWIRComm 133 Wilson & Clyde Coal Co Ltd v English (1937) 3 All ER 628 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of NSW (Inspector Mansell) v Daly Smith Corporation (Australia) Limited & Anor [2004] NSWIRComm 349 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services (2004) 136 IR 449 HEARING DATES: 13/02/06,14/02/06,15/02/06,16/02/06,17/02/06,20/02/06,21/02/06,22/02/06,23/02/06,24/02/06,17/03/06,21/04/06 DATE OF JUDGMENT: 07/07/2006 Prosecutor: Mr R. Reitano of counsel Solicitor: Ms H. Cameron WorkCover Authority LEGAL REPRESENTATIVES: Defendant: Mr B. Collins QC with Mr B. Cross of counsel Solicitors: Ms G Barker Allens Arthur Robinson JUDGMENT: - 69 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Friday 7 July 2006 Matter No IRC 5608 of 2004 INSPECTOR MICHAEL DALL v BRAMBLES AUSTRALIA Prosecution under s10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 214 1 On 6 March 2000, BHP Limited (the head contractor) contracted with Brambles Australia Limited through its trading name Gardner Perrott Industrial Services (the defendant) to demolish structures and clean up a site located at the BHP Newcastle Main Site (the site) on Selwyn Street, Port Waratah. The defendant then contracted out part of the demolition work - the demolition of seven boilers and chimney stacks to Demtech Pty Ltd (the subcontractor). Demtech was a company which had been formed by two former employees from the demolition branch of the defendant in its Newcastle operation, for the purpose of subcontracting the particular work. Five smaller boilers had already been demolished by the subcontractor when on 19 September 2002, it began the controlled demolition of Boiler 6, which weighed over 300 tonne and was 31 metres in height. Instead of an induced collapse, an uncontrolled collapse occurred which caused the death to one employee and injured two other employees of the subcontractor. 2 The prosecution is brought by the WorkCover Authority of New South Wales through Inspector Michael Dall under the provisions of s10(1) of the Occupational Health and Safety Act 2000 (the Act). It is alleged the defendant failed on 19 September 2002 to: ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. 3 The particulars of the charge are as follows: a) At all material times the defendant was contracted by BHP Billiton Limited to demolish and remove the Power Plant Boilers located on the premises. b) At all material times the defendant was a controller of the premises. c) At all material times the defendant sub-contracted Demtech Pty Ltd to remove the Power Plant Boilers including Boiler No. 6. d) At all material times Gregory John Rees, Anthony John Edwards, Jason Wayne Eric Maybury, Robbie William Hague, William Porta and Michael Dwyer were working at the premises. e) The defendant failed to provide a safe system of work for the demolition of Boiler No. 6 ("boiler") at the site, in that: i. The defendant failed to ensure that redundant demolition material which had accumulated on the site was removed. ii. The defendant failed to ensure an adequate work method was prepared for the demolition of the boiler at the site. f) The defendant failed to ensure that a permit pursuant to clause 332 of the Occupational Health and Safety Regulation 2001 was obtained prior to demolition work being performed for the collapse of the boiler in a westerly direction at the site. g) The defendant failed to undertake a sufficient investigation or provide sufficient information concerning the structure of the boiler prior to demolition work being performed upon it for the purpose of ensuring that any calculations concerning the structural capacity of the columns of the boiler to sustain loads imposed during the demolition process for the collapse of the boiler were accurate and did not give rise to the risk of unexpected collapse of the boiler. h) The defendant failed to take any steps to ensure that calculations that were undertaken in respect of the structural capacity of the columns of the boiler to sustain the loads imposed during the demolition process for the collapse of the boiler were accurate and did not give rise to the risk of unexpected collapse of the boiler. i) The defendant failed to undertake a proper risk assessment in relation to the demolition process for the collapse of the boiler. j) The defendant failed to ensure that a suitably qualified and experienced engineer was engaged who was able to properly undertake with appropriate skill and care all of the calculations necessary for the induced collapse of the boiler. k) The defendant failed to ensure that the system associated with the induced collapse of the boiler was failsafe and that risks to health and safety were eliminated by reason of the implementation of a secondary system of restraint so as to prevent unexpected collapse. 4 The defendant pleaded not guilty to the charge. 5 The prosecution was represented by Mr R. Reitano, of counsel. The prosecutor called 13 witnesses: Inspector Michael Dall, Senior Constable Timothy Hockey, Inspector Gary Sandall, Inspector Steven Finlay McMartin, and Inspector Rick Rech, Chris Turner, WorkCover's engineer, Dr Kevan Heathcote, expert of Access UTS consultant, Mr Terrence Kershaw, engineering expert, Mr Michael Dwyer, contract supervisor of the subcontractor, Mr Jason Maybury, rigger of the sub-contractor, Mr Gregory Banks, co-director of the subcontractor, Mr Jeffrey Britton, co-director of the subcontractor and Mr William Porta, engineer, employed by the subcontractor. The prosecution tendered documents including a Statement of Inspector Dall dated 15 May 2003, Factual Report by Inspector Dall dated 17 December 2002, Transcripts of Interview between Inspector Dall and Mr Eric Vickery dated 20 November 2002, Demtech Site Map as at 19 September 2002, Statement of Senior Constable Timothy Hockey dated 26 November 2002 and 14 photographs taken by Senior Constable Hockey, Record of Interview between Jason Maybury and Inspector Dall on 2 October 2002 and 2 October 2002, Record of Interview between Michael Dwyer and Inspector Dall dated 12 February 2003, letter from Jeffrey Britton, Project Director, Demtech to Brambles dated 22 July 2002, Demtech Site Instruction drafted by Mr William Porta dated 31 July 2002 and the Australian Standard - 2601-1991 - Demolition of structure and a bundle of documents. 6 The defendant called three witnesses, Mr Ian Wade, Safety Officer to the defendant at the relevant date, Mr Collin Elvy, Project Manager to the defendant at the relevant date, Mr Stephen Merritt, National Manager, for contracts, administration of the defendant. The defendant tendered two tender bundles of documents, the Australian Standard Regulation 2601 – a document entitled "The demolition of structures" and letter from Mr Allan Dann of BHP Billiton to Inspector Dall of WorkCover dated 27 November 2002. Contract between BHP Billiton and Brambles 7 The contract was very comprehensive and contained 5 provisions and many associated schedules and annexures. Part A of the contract addressed General Conditions, Part B addressed the Occupational Health and Safety provisions, Part C addressed the Environmental Conditions, Part D addressed the Code of Conduct, Part E was not tendered and Part F addressed the Insurance Provisions. 8 The defendant, under the contract, was required to ensure that the demolition work of the boilers and chimney stacks was carried out in accordance with all relevant laws including the relevant Regulations under the Act and the demolition Standards. 9 The defendant became a licensee on the site but not with exclusive possession: Part A . . . 2.1.1 The Contractor shall have a right to enter and remain upon the Site but such right to enter and remain, unless otherwise agreed in writing, shall only be as a licensee and shall only be as is reasonably necessary for the execution of the Works. 10 The defendant had to comply with all laws, regulations and standards: Part A . . . 7.1 Compliance with Standards All work shall be carried out in accordance with the relevant Australian Standards, but where none exists, then respectively, the relevant ISO Standard, British Standards or DIN Standards shall apply. . . . 7.2.1 In executing the Works, the Contractor shall observe and comply with all relevant laws, regulations, codes and rules as well as the lawful requirements of all relevant authorities. 11 The defendant had to take effective measures for the protection of and prevention of injury, loss or damage to people in performing the contract: Part A . . . 9.1 Protection of Equipment and Persons 9.1.1 The Contractor shall take effective measures for the protection of and the prevention of injury, loss or damage to any person or property by himself, his employees or agents during the performance of the Contract. 12 The defendant also had to observe and make sure work under the contract was performed in accordance with the requirements of the WorkCover Authority and to comply with the head contractor's safety requirements: Part A . . . 13. OCCUPATIONAL HEALTH AND SAFETY 13.1 Safety Standards 13.1.1 The Contractor acknowledges that safety is the Principal's primary concern. 13.1.2 Without intending to limit or affect any other provision of this Contract, the Contractor shall ensure that all work carried out under or in relation to this Contract shall be performed in compliance with:- a) The requirements of the WorkCover Authority of NSW and any other relevant regulatory authority; b) The requirements of all relevant laws; and c) The Principal's safety condition as set out in the Occupational Health & Safety Conditions (PART B of these Standards Conditions), The Contractor shall, in the event of perceived conflict between these requirements, seek clarification from the Contract Controller and be bound by his direction. . . . 13 The defendant under the contract was liable to remedy any breach of the provisions of the contract: Part A . . . 13.2 Breaches of Safety Standards In the event of a failure to comply with the provision of Clause 15(3).1 above the Principal may in the case of:- 13.2.1 One minor breach, require the Contractor who shall to the reasonable satisfaction of the Contract Controller comply with such request to reinstruct the Contractor's Supervisor and the Contractor's employee involved in appropriate safety requirements and allow work to proceed; . . . 13.2.3 One serious breach or more than one significant breach, require the removal of the Contractor's Supervisor from the premises or terminate the Contract as provided for in Clause 18 below. If the Principal elects to request the removal of the Contractor's Supervisor, such removal shall be for a period of not less than 12 months after which the Contractor's Supervisor may be reinstated after the Contractor has demonstrated to the reasonable satisfaction of the Principal that the Supervisor has undergone appropriate retraining in safe working practices and is competent to perform the duties of the Contractor's Supervisor. . . . 14 The head contractor could cancel the contract for failure to comply as follows: Part A . . . 14.1 General 14.1.1 Without prejudice to any other rights the Principal may have, if the Contractor:- a) suspends the Works or in the opinion of the Contract Controller neglects or fails to commence or to proceed with due diligence with the Works; or b) fails to carry out the Works at a rate of progress or in a manner strictly in accordance with the Contract; or c) neglects to carry out any instructions or requirements of the Contract Controller given or made in accordance with the Contract; or d) fails to complete the Works within the time or times specified in or under the provisions of the Contract; or e) commits any breach of or fails in any respect to comply with and observe the provisions of any other covenant, condition or stipulation of the stipulation of the Contract; or f) intimates that he is unable or unwilling to complete the Works; or g) commits either more than one significant breach or one serious breach (as those terms are defined in Clause 13.2.4); or h) becomes bankrupt or makes an assignment of his estate for the benefits of his creditors or makes an arrangement or composition with his creditors or being a corporation goes into liquidation (except for the purpose of reconstruction) or commences to carry on business under a receivership; then in such event the Principal shall as soon as reasonably possible give written notice thereof to the Contractor. 15 To summarise the relevant obligations imposed on the defendant by the head contract were that the defendant: (a) would ensure that the demolition works were effectively supervised; (b) in the execution of the works, would observe and comply with all relevant laws, regulations, codes and rules as well as the lawful requirements of all relevant authorities; (c) would take effective measures for the protection of and the prevention of injury, loss or damage to any person or property by Brambles or Brambles employees or agents during the performance of the works; (d) would ensure that all work carried out under the subcontract would be performed in compliance with: (i) the requirements of WorkCover and any other relevant regulatory authority; (ii) the requirements of all relevant laws; and (iii) BHP's safety conditions as set out in Standard Conditions of Contract—Part B (Occupational Health and Safety Conditions); and (e) would: (i) be responsible for assessing the integrity of structures prior to their demolition or dismantling to ensure removal conditions are achieved; (ii) carry out demolition and removal in accordance with the following statutory requirements: (A) AS 2601—1991 (Demolition of Structures); (B) Construction Safety Act 1995 (NSW); and Occupational Health and Safety Act 1983 (NSW). The Subcontract between Brambles and Demtech 16 The defendant on 12 July 2001, contracted the demolition of the Boilers and chimneys on site to the subcontractor. The terms of the subcontract were, to the extent as to the way in which the works were to be conducted, identical to the terms of the head contract. The only differences between the contracts related to payments for scrap materials. The subcontractor was contracted to clear the site of all scrap material and it was permitted to on-sell the scrap. This appears to have been the most lucrative part of the contract for the subcontractor. 17 Relevantly, in the event of subcontracting any "Works", the contract required the defendant to firstly seek the approval of the head contractor through the "Contract Controller". Part A of the subcontract . . . 10.1.1 Should the Contractor desire to sub-contract any part of the Works or any service associated with the execution of the Works he shall first submit a written application on BHPNMS-FRM-40-01-47 (Request for Approval to Sub Contract) to the Contract Controller for approval. . . . 10.2.1 The Contractor shall not sub-contract any part of the Works or any service associated with the execution of the Works without written approval of the Contract Controller. For the head contractor, the Contract Controller was Mr Vaughan Marten. The defendant also had to appoint a Contract Controller, and this was Mr Stephen Merritt. 18 The defendant retained all duties and obligations under the Head Contract when it subcontracted out works: Part A . . . 10.3.1 Any permission to sub-contract part of the Works or any service associated with the execution of the Works shall not discharge the Contractor from any liability under the Contract and he shall remain subject to all duties and obligations provided for by the Contract in respect of the part of the Works so sub-contracted. 19 The defendant remained a licensee, under the subcontract with the right to enter and remain on the site as was reasonably necessary for the execution of the works (see Part A cl 2.1.1). The subcontractor also became a licensee under the same terms. 20 The subcontract determined the obligations and status of the sub-contractor were the same as those of the defendant. Therefore the defendant retained the obligation to ensure its subcontractors observed the relevant safety standards as outlined in the provisions of the contract. The defendant was therefore able to compel the subcontractor to meet occupational health and safety standards in the same way as the head contractor was able to compel the defendant: Part A . . . 10.3.2 The Contractor shall ensure that all Subcontractors of the Contractor observe the relevant provisions of the Contract as if they were party to it. Relevant Legislation 21 While the contract imposed obligations on the defendant, the defendant had strict obligations under the Act if it was a "controller" on the site. Various clauses of the contract simply reiterated the legal obligations which the Act placed on the defendant as a contractor. Under the Act and the Occupational Health and Safety Regulations 2001 (the Regulations), the duty to ensure safe working is cast widely: on employers, owners, principal contractors and controllers of premises and designers of plant and equipment. 22 Certain types of work, being of a particularly risky nature, such as demolition or asbestos removal may under the Act and through the Regulations, only be carried out by parties with expertise and special qualifications. Specific licences and/or permits are regulated and issued by the WorkCover Authority. In this way, WorkCover has a direct role in regulating, relevantly in this case, the demolition activities of a company. The Act 23 A permit must be obtained from the WorkCover Authority for the performance of a demolition. Such permits are issued pursuant to clause 332 of the Regulations. Section 29 of the Act relevantly states: 29 Relationship between duties under this Part and regulations . . . (2) . . . a relevant contravention of the regulations is admissible in evidence in any proceedings for an offence against this Part. The Regulations 24 The relevant regulations are: 332 Demolition work or friable asbestos removal work not to be done without a permit (1) A person must not do demolition work or friable asbestos removal work otherwise than in accordance with a permit. (2) A person does not contravene subclause (1) if the person is doing the work as an employee. (3) A person must not: (a) contravene the conditions of a permit, or (b) direct or allow another person to contravene the conditions of a permit. Maximum penalty: Level 3. 333 Applications for permits (1) An application for a permit to do demolition work or friable asbestos removal work: (a) must be in the approved form, and (b) may be made only by the holder of a licence granted under Chapter 10 in respect of work of that kind, and (c) must specify the nature and extent of the work to be done and the method by which the applicant proposes to do the work, and (d) must, if the work is the demolition of a building (or part of a building) that is more than 4 metres in height and the demolition work involves pulling with ropes or chains or similar means, be accompanied by a risk assessment and such other documents as WorkCover may require, and (e) must specify the estimated cost of doing the work, and (f) must be accompanied by the fee fixed for the time being by WorkCover to cover the administrative costs of WorkCover in connection with the regulation of the holders of permits of the class concerned, and (g) must be lodged at the offices of WorkCover at least 7 days (or 21 days in the case of demolition work involving the use of explosives) before the work is due to commence. (2) An application by persons who do work in partnership may be made by any one or more of those persons. 25 Clause 333 therefore requires in any application for a permit to demolish be accompanied by a work method statement and a risk assessment. The work to which a permit relates can only be done by the person under whose licence the application is issued. WorkCover then scrutinises the work plan, risk assessment and other documentation for the purpose of ensuring compliance with the Act and Regulations in accordance with WorkCover's function as stated in s22 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW): 22 General functions of the Authority (cf 1989 s 12) (1) The general functions of the Authority are: (a) to be responsible for ensuring compliance with the workers compensation legislation and the occupational health and safety legislation, (b) to be responsible for the day to day operational matters relating to the schemes to which any such legislation relates, (c) to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation and the occupational health and safety legislation, and on the performance of the schemes to which that legislation relates, (d) to undertake such consultation as it thinks fit in connection with current or proposed legislation relating to any such scheme as it thinks fit, (d1) to monitor and review key indicators of financial viability and other aspects of any such schemes, (e) to report and make recommendations to the Minister on such matters as the Minister requests or the Authority considers appropriate. (2) The Authority has such other functions as are conferred or imposed on it by or under the workers compensation legislation, the occupational health and safety legislation or any other legislation. (3) In exercising its functions, the Authority must: (a) promote the prevention of injuries and diseases at the workplace and the development of healthy and safe workplaces, and (b) promote the prompt, efficient and effective management of injuries to persons at work, and (c) ensure the efficient operation of workers compensation insurance arrangements, and (d) ensure the appropriate co-ordination of arrangements for the administration of the schemes to which the workers compensation legislation or the occupational health and safety legislation relates. (4) The Authority cannot employ any staff. . . . 26 Clause 247 of the Regulations relevantly states: 247 Work to be done in accordance with Australian Standard and this Part (1) An employer must ensure that demolition work is carried out in accordance with AS 2601—1991 and the provisions of this Part. Maximum penalty: Level 4. (2) In the event of an inconsistency between a provision of AS 2601—1991 and the provisions of this Regulation, the provisions of this Regulation prevail. (3) Despite AS 2601—1991 or this Part, a building may be demolished by the use of explosives if a permit under Chapter 11 has been obtained. . . . Clause 247 therefore requires that demolition work be performed in accordance with the Australian Standard AS2601. The Australian Standard 2601-2001 27 Australian Standard 2601-2001 entitled "The Demolition of Structures" stipulates, in considerable detail, the technical requirements of demolition work and induced collapse demolition work in particular. To summarise, the standard requires: (a) work plan must be properly described; (b) work 'shall be executed by competent persons, with due regard at all times for safe working practices and in accordance with the work plan' (cl 2.5); (c) the structure to be demolished shall be maintained in a stable and safe condition at all stages of the demolition work. Temporary bracing, guys, shoring or a combination of these shall be added for stability where necessary (cl 3.1.2); (d) no unauthorised person can enter on the site where the work is being done (cl 1.5.1.4); (e) the induced collapse method of demolition shall not be used unless it can be controlled (cl 3.5.1); and (f) works plans must be properly documented as to include details of: (i) the location and site on which the structure to be demolished stands; (ii) the overall height of the structure; (iii) a description of the type of building to be demolished; (iv) a description of the methods of demolition proposed to be used; (v) a description of the method proposed for handling of demolished material; (vi) a description of the proposed sequence for carrying out the demolition; (vii) details of the hoarding and fencing, and overhead protection and scaffolding required by the Standard; and (viii) a written statement by a competent person that the proposals contained in the work plan comply with the safety requirements of the Standard (cl 1.7.3). 28 The following relevant matters, among others, are dealt with in Australian Standard 2601—1991 the sequence of demolition; measures to prevent materials falling on workers and the public, including adequate fencing; ensuring that stairs and other means of access and scaffolding are clear of rubble and other debris; chimney demolition; dust control; warning signs and general safety measures; fire prevention; and circumstances in which overhead protective structures and heavy duty independent scaffolding are required. 29 Therefore the Act, its Regulations and the relevant Australian Standard 2601 recognise that demolition work involving the induced collapse of structures. A special system of permits has been imposed by the Regulations over and above the ordinary notification requirements which apply to other types of work. There is, therefore, through the Act, the Regulations and the Standards, a protocol established to ensure safety in the demolition industry. History 30 In June 2001, Gregory Banks, a demolition director, and Jeffrey Britton, an accountant, ceased working for the defendant in its Demolition Branch and established a demolition company called Demtech Pty Ltd. Both became directors and employees of Demtech, the subcontractor. Mr Britton had been instrumental in assisting the defendant to obtain the Head Contract for the demolition of the stacks and boilers, on site, as he had undertaken much of the work required to investigate the scope and feasibility of the proposed demolition works. Because of this work he was familiar with the head contractor's site and its safety practices. Mr Banks was responsible for the costing of work gained by the defendant. They established Demtech with the encouragement of their prior employer, the defendant and with the permission of the head contractor to perform this part of the site works. Mr Britton was responsible for the site work and obtaining work and Mr Banks for the compliance and finances of the company. 31 Evidence revealed there were some private arrangements between the defendant and the subcontractor related to the use of the defendant's equipment such as excavators and use of the defendant's trucks (on request) to transport scrap metal from the site. 32 The subcontractor then contracted with an engineer, William Porta, who had also worked with them at Brambles to do the calculations and methodology (as required by WorkCover) for the demolition of the Boilers and stacks. Mr Porta was also responsible for obtaining the appropriate permit and licence application on behalf of the head contractor to WorkCover. Mr Porta was a registered expert for the purpose of demolition under WorkCover registration. 33 It is important to consider how these contracts worked and were implemented "on the ground". Evidence revealed on occasions meetings were held between the three parties, the head contractor, the defendant and the sub-contractor. The minutes of these meetings and some correspondence allow an examination of how work on the site was carried out. 34 On 24 June 2002, such a meeting was convened between Messrs Marten, Dunn and Dunlop of the head contractor, Mr Elvy of the defendant, Messrs Britton and Banks of Demtech, the subcontractor. The minutes of the meeting reveal the working relationship between the parties: V.M. (Vaughan Marten of BHP) Explained the purpose of the meeting was to make sure everyone understood the present position relative to extensions to the Contract. At this time arrangements were in the final stages for the NSW State Government to take over the site. He (V.M) was required to give the Government a program of hand over which included the key date that the various areas on the site being demolished would be handed over to the Government. Once these dates were given to the Government then they were "cast in stone" and BHPB had no flexibility or opportunity to extend them in any way. The discussions that are now taking place with GPD were the last opportunity that both parties had to set new completion dates. As Demtech is a significant party to the dates being provided by GPD it was seen as very important that they (Demtech) fully understand the requirements and are absolutely certain they can meet the dates they provide. . . . Firstly the clearing of the Feed Water Treatment Plant site and the moving of the fence back to just west of the Boilers. This date is particularly critical, as BHPB has raised the question of the safety of No. 3 Blast Furnace with the Government with a view to obtaining early approval to demolish the Furnace. BHPB had to be in a position to move immediately on this demolition if approval is granted in the next few weeks. Secondly the demolition of the stacks. This was critical as it may impact on demolition by other (Moltoni). BHPB required start and completion dates for this work and an understanding of the methodology to be used. The methods were only required to understand the impact the demolition would have on adjacent areas and if it would be necessary to extend the demolition boundaries to enable this work to be completed . (emphasis added) Thirdly the final completion date and hand back of the Boiler site. This would correspond with the last day Demtech would be on the site. . . . VM (Vaughan Marten of BHP) stated that any revised final completion delivery date had to be reasonable relative to the initial completion date of no later than 30th June 2002 . . . As Demtech is a subcontractor they only have permission to be on site up to a nominated date. It must be understood that the extension date that will be given to Demtech once the above dates are finalised will be the date Demtech vacates the site. Therefore Demtech must be absolutely certain that the dates they give will be achieved. BHPB will not be in a position to make any extensions to this date and if Demtech are not finished then it will be up to GPD to finish the work. In view if the information BHPB has to give the Government for their Risk Audit Demtech will have to exit the site on or before the agreed date. . . . From this memorandum, I conclude the demolition work was discussed between the three parties. Further, the minutes make clear by 24 June 2002 there were some time constraints placed on the subcontractor to complete the demolitions. The head contractor required the start and completion dates of demolitions and an "understanding" of the methodology of the drops. At this stage late June 2002, the methodology was only required for the purpose of identifying the radius of the drop areas. 35 However, on 19 July 2002, the subcontractor had induced the collapse of one of the chimneys, Chimney 6. The chimney landed approximately 10 percent outside its expected position and damaged the fence between the subcontractor and a company called Moltoni Adams, which company was another sub-contractor to the defendant on the site performing other demolition works. No one was injured. A complaint was made to Mr Vaughan Marten, Contract Controller of BHP, about the collapse. Mr Marten by email, dated 19 July 2002, requested Mr Colin Elvy, the Brambles Operations Manager, review the incident and the "planned and actual procedure". The e-mail read: . . . DemTech is your subcontractor, and I would suggest that a review between Brambles Demolition and DemTech of the planned and actual procedure would be in order. I would like your comments before any further demolition of the remaining stacks at the Boiler House occurs. 36 The head contractor therefore required a review of both the proposal and the actual way the stack was dropped. Mr Elvy wrote to the subcontractor advising them of the complaint and that a review would be conducted prior to any further demolition and identified the complaint as "the apparent lack of control of the fall". Mr Elvy then conducted an investigation and reported to the head contractor on 19 July 2002 as follows: The felling of #6 Boiler stack was not to the satisfaction of Brambles Demolition. A review of the process with the engineer, Grant Moor and myself revealed an error in calculation with respect to the thickness of steel left for the "hinge" effect when the load was applied. The contract engineer accepted accountability for this. It was further agreed that all future major "drops" including the remaining stacks, will be discussed with G. Moor. 37 At this point the defendant had changed its attitude. Clearly after their review of the chimney stack drop the defendant had identified calculations performed by Mr Porta for the subcontractor were faulty. Mr Moor who was to "discuss" with the subcontractor their procedures was the nominated engineer for the demolition branch of the defendant with WorkCover. I accept he was the demolition expert with the defendant. The subcontractor therefore by 19 July 2002, had agreed to "discuss" what I infer was the methodology for future drops with the defendant's demolition expert, Mr Moor. Further, the defendant, as a result of its investigation, was on notice that the subcontractor's calculations as to the load stress on the "hinges" created on the columns were in error. 38 The minutes of another meeting on 29 July 2002 convened between Messrs Marten, Dunn and Dunlop of the head contractor, Mr Elvy of the defendant, Messrs Porta and Britton of the subcontractor and Inspector McMartin of WorkCover reveal at this meeting the collapse of the stack had caused concern: V.M (Vaughan Marten of BHPB) stated the purpose of meeting was to discuss the request received from Demtech to Brambles . . . to extend the fence lines around the Boiler, as well as his questions as generally covered in his e-mail of 24th July 2002. He wanted to know if this was a request to cover exclusion zones during felling or a general requirements to extend the work area enclosed by the fences . . . V. M (Vaughan Marten of BHPB) requested a detailed demolition plan for the Boilers showing the key dates so that he could make the necessary arrangements with other parties involved to have fence lines extended in line with the agreed demolition plan. The demolition plan was a contractual requirement. J.B (Jeffrey Britton of Demtech) claimed he could not prepare the plan if he did not know if his fence lines would be extended. In response to JB, VM reiterated that he was not denying any request, and if this request was required under the Code, as stated by SM (Steve McMartin of WorkCover), then BHPB were bound to accept the same. However, VM pointed out that the proposed extension to the fenced area could not be accepted, until BHPB were informed of the detailed program for the demolition work at the Boilers which is the bases of this request. . . .the fence lines would not be extended until a detailed plan had been provided and the duration of the extension known so that the arrangements could be made with other parties. The revised contract time for the Boiler job to be completed by DemTech was 6th September 2002 and the plan had to take that into account. JB (Jeffrey Britton of Demtech) raised the issue of his completion date being potentially later than 6th September 2002. VM responded that Demtech's authority to remain on the site expired on 6th September 2002 and would not be extended. If Demtech had not completed the works by that date then it was an issue between Demtech and Brambles Demolition. (emphasis added) . . . 39 Of note is that Inspector McMartin of WorkCover attended this meeting. Further, the minutes again make clear the demolition plan, that is, the demolition methodology had to be agreed for the demolition works and there had to be a "detailed program". Once again the pressure of keeping to timetable was placed on the subcontractor. The dates of the proposed drops the subcontractor agreed would be notified to the defendant. 40 There was some dispute between the parties as to the effect of the agreement and the obligation that the agreement placed on the subcontractor. Mr Britton's view of the agreement was as follows: A. At this point of time following the collapse or the induced collapse of the stack I think talking about Mr Rech on the site, from that point onwards Brambles -- and there was a document somewhere, Brambles instructed Demtech that all induced collapses from that point onwards had to go through a review process with Brambles, they want to see the document, they want to ensure there were documents in place, to ensure WorkCover was adequately notified, that proper assessments had been made, and there was quite a bit of consultation over this, over the ownership of the documents, and my company's concern that property that had been like my property, and we gave Brambles the authorisation by all means come and look at this any time, question anything. They nominated Grant Moor to see these documents on our behalf but we think they are quite fine to stay in our hands and unless you demand they be handed to you they stay on site with our crew, but at that meeting you can look at them. Mr Vickery, the Executive General Manager of Steel Services, under which was the defendant's Demolition Branch, revealed how the agreement was seen from the defendant's viewpoint: We visually saw one work method statement, we were not given any copies of any work method statements and that is an issue that we struggled with and Demtech believed that it was, I think the words that have been used to me, intellectual property in regards to their demolition and as such submitted those directly to WorkCover for approval and we never received a copy. It was the subject of quite a lot of debated and discussion as I understand as to why we weren't able to get a copy of it and there was a concern by Demtech that it was, I think it was in Demtech's words or that were used to me, intellectual property. Mr Merritt, National Manager Contracts Administration for the defendant said of Mr Britton in relation to the implementation of the agreement to have the defendant "review" any proposed demolition methodology: A. . . . He then went on to indicate to me that the manner in which they bought the structures down was his business not Brambles, that Brambles could have a look at things such as JSA's but that Ian Wade would not be allowed to remove copies from the site and it was actually his intellectual property not ours as to how he brought down structures. 41 Mr Britton therefore would not give the defendant copies of the work method statements. He determined the defendant had to come to the site to look at them notwithstanding he had agreed any methods would go through a "review process" with the defendant through Mr Moor. This declaration from Mr Britton would require the defendant to be informed by the sub-contractor when the sub-contractor had documents to review. 42 In late August 2002, Inspectors Rech and McMartin, both of WorkCover, attended with Mr Porta and Mr Britton at the site of Boiler 6 and discussed the possible methods for demolishing both Boilers 6 and 7. They were the largest boilers on the site and the last to be demolished. Mr Porta took Inspector Rech through the structure and described the proposed work method to him. Various alternative options for the demolition of the Boiler 6 were canvassed. One issue debated was in what direction to drop the Boilers and whether the fall should be to the north, west, or south. The other issue related to the equipment available to assist in the "drop" of the Boilers 6 and 7. 43 A letter from Mr Britton to the defendant dated 27 August 2002 stated: The delays which we have experienced as a result of circumstance beyond Demtech's control can be summarised as follows: . . . 4. Delays due to unavailability of Gardner Perrott's demolition equipment In order to perform the demolition works under the Subcontract, Demtech arranged to hire specialist demolition equipment from Gardner Perrott. Unfortunately, several items have been unavailable. . . . This letter was written to address the defendant's query as to why the timetable for the drop of Boiler 6 was delayed. 44 On 30 August 2002, Mr Porta by facsimile sent the subcontractor's proposal and methodology to WorkCover for the induced collapse of Boiler 6. The methodology proposed was to weaken the structure by strategically cutting its columns, creating "hinges" then pulling the structure over using slings attached to a 100 tonne excavator (owned by the defendant) which procedure was intended to induce the boiler to fall in a defined direction, namely, to the north. 45 Mr Britton when shown the Permit application and August Work Method sent to WorkCover on 30 August 2002 said: A. This was a document that was prepared by Bill Porta and discussed in a general forum with - there was Bill Porta, there was Michael Dwyer, there was Greg Rees, there was myself and I'm not sure if Tony Edwards was present. He was the point of many discussions, this document and the collapse of boiler number 6 and boiler number 7 was a point of some significant discussion for some time, so much so that Mr Resch (sic) actually came to site at one stage probably a month earlier and went through boiler number 6 and 7 and proposed work plans at that stage with Mr Porta. and: A. . . . The format that Bill Porta, this document (30 August 2002 proposed methodology) is prepared by Bill Porta on behalf of Demtech, the format that Bill Porta utilised here when he prepared these documents was part of an agreed format that was put in place at Brambles. So as when an induced collapse would take place Brambles paid Bill Porta money as a consultant to understand what he needed to provide WorkCover with to send to WorkCover for them to endorse or approve his work plan to be executed to collapse a structure. And that is why it is fairly consistent, these documents here, the same as if you were looking at Brambles' files, there would be consistent, because the format I was using was the format they were using. and: A. . . . Mr Porta had many ideas and not everyone agreed with those ideas. They had feelings there was a different way or another way, and Mr Porta would propose his idea and that would be discussed with a quorum of people and then if there was an issue or issues Bill would then go away and he would address those issues till it reached the point where there was a general consensus this is how we are going to do it. 46 This evidence makes clear while the subcontractor was involved in general discussion in the preparation of the August work method for the collapse of Boilers 6 and 7 it was Mr Britton through Mr Porta who designed the method which was to be used. All the persons Mr Britton named in the discussions were the subcontractor's employees. However one wonders why Mr Britton refused to give the defendant his company's documents when he himself acknowledges they were consistent with those on the defendant's files and both used Mr Porta to design the methodology. 47 The August application to WorkCover for the Permit was not accompanied by a risk assessment or any engineering calculations, nor did it show any methods which were to be used to brace or stabilise the structure as required by Australian Standard 2601 and the Regulation. Mr Porta said he did not supply a risk assessment with the August permit application as: . . . I took direction from WorkCover as to what it was they required me to submit to, I submitted what they required of me, which did not include … the level of risk assessment 48 Inspector Rech of WorkCover said: Q. You didn't receive a risk assessment from Mr Porta? A. That's correct. There was no risk assessment no, but there was engineering control which superseded the risk assessment because the engineer would have had to have taken into account all the risks and all the engineering control that is required when carrying out this methodology. Q. But there was no specific risk assessment that you received from Mr Porta? A. That's correct. Q. You simply assumed that he had made one? A. Well he would have had to do that to be table (sic) to do his engineering calculations. 49 Inspector Rech of WorkCover confirmed that he did not request any of the above information because he could not interpret such information even if it were submitted and, further, he assumed that the engineer had calculated correctly and he further assumed the engineer conducted a risk assessment as part of his development of a work plan. Provided the engineer was satisfied with his own work and that the engineer was registered as a competent person with WorkCover, as was Mr Porta, Inspector Rech saw no reason for him to probe further into the details of the proposed methodology prior to granting a permit. 50 The defendant therefore knew as revealed through all the meetings and the documents that there was, in the preparation, a methodology for the "drop" of Boilers 6 and 7 to the north. The timetable for the subcontractor to vacate the site was well past. There were time pressures on the subcontractor and also on the defendant from the head contractor to complete the demolitions of the boilers. 51 On 16 September 2002, WorkCover through Inspector Rech issued a permit for the August proposal to the subcontractor, for the induced collapse of Boiler 6 in a northerly direction. As to the manner of the collapse, it was approved by WorkCover subject to the following conditions: 1. That an unrestricted qualified person in control of the site supervises all the work, and who's name appears on the WorkCover asbestos and demolition date bank as a competent person . 2. That the ropes, shackles, points of attachments etc, meet the required performance standard and Australian Standard. 3. That the machine be attached to the steel structure prior to and during the cutting of the structure to ensure that the structure doesn't fall back, or until such time as the stability of the structure is established. 4. That a hot work permit is obtained prior to using any oxygen acetylene equipment. 5. The length of the cables from the building to the machines in the direction of fall is increased to twice the height of the structure. 6. The fall area is clear of all debris that could be catapulted by the collapse of the structure. 7. The area is to be inspected and verified by the competent person prior to the collapse to ensure that it is free of debris. 8. This Permit or a copy must be made available to any interested party and must be prominently displayed. 52 Mr Vickery in evidence acknowledged seeing one work method statement. There was evidence of discussions between the parties about a method using the 100 tonne excavator and it not being available. I am persuaded the defendant knew about and probably sighted the August work method statement. I have no evidence however that Mr Moor had access to it to check the calculations. I have no evidence the defendant knew of the permit granted by WorkCover on 16 September 2002 for this method. 53 However, evidence revealed by the time the permit was issued, both the subcontractor and the defendant were dealing with the fact that the 100 tonne excavator was not available and a new work method had therefore to be determined. It would appear that both parties were considering an alternative measure. Mr Elvy said he asked Mr Britton whether the 100 tonne was still required and Mr Britton said Don't worry about it. I will work out another way to pull the building over using my 230's (it appears it should read as two 30 tonne excavators). 54 Meanwhile a Job Safety Analysis was prepared by Mr Britton directed to the drop of Boilers 6 and 7. Evidence revealed he began preparing it back in February 2002. The last copy was marked the 15th draft. It, however, was in its nature general and did not outline any specific work method. While it identified some general hazards it did not risk assess any particular proposed methodology. 55 There was one further document aside from the work method statement which gave an indication as to the work to be done on Boiler 6. That was the JSA as prepared by Mr Britton. Mr Wade as site safety officer of the defendant gave evidence that he had never seen the methodology but had sighted other JSA's. He did not however sight the JSA for the Boiler 6 collapse before the 19 September 2002 collapse. In chief Mr Wade said: Q. Daily JSAs? A. I had seen a few of them, where they had written them daily and they were written in a book type form in duplicate where they could pull them out. Q. What were you looking for when you saw those JSAs? A. I only briefly looked at those ones. They were ones they used on a daily sort of thing, that were a little bit different with other job steps that the general generic ones did not cover. Q. So far as boiler 6 was concerned, did you ever see any detailed proposals involving the specific steps of demolition for boiler number 6? A. No. and Q. I think you can remember the morning of the accident, that is 19 September 2002, can you not? A. Yes, I remember. Q. Had you received any notice of any kind that Demtech were proposing to - I put it this way - drop the barrel on that day? A. No. Q. When did you first become aware of that happening? A. That day. I was off site. When I was coming back to the site I saw dust as I was coming along Selwyn Street, Mayfield. As I was coming along Selwyn Street I saw a big cloud of dust go across from the site and I automatically assumed someone had done some demolition work and when I got to where we turn into David Baker Road, which is the main road into BHP off Selwyn Street, as I turned the corner there I noticed number 6 boiler was down and my immediate thoughts were I have not seen anything to say they were going to do it. There was no paper work that I had seen. Q. On every occasion there was a structure to be demolished you say you asked to look at the permit or see the permit? A. Yes. Q. Is that true? A. Yes. Q. Did you at any time see the permit for demolition that occurred on 19 September? A. No. Q. Did you at any time ask to see that permit? A. Didn't know it was happening. Q. That was not my question? A. I didn't ask, no. Q. What steps did you take to find out, as it were, what was happening? A. On the 19th? Q. No, at any time on the site? A. Bill Porta was supposed to contact me when any plans were put in. When the permit came back he was used to go through it with me to verify they had permission, like the permit to carry out the demolition. Q. What steps did you take to make sure Bill Porta was doing that? A. I can only say that when I was aware that there was going to be a demolition like that taking place that I would ask for it. and Q. . . . Say what you want to say? A. That is not my role to be involved in the plans, like a demolition plan and the like you have been talking about. When something is going to happen that was not my job, that was my manager's job. Q. You didn't . . . see your role as the safety officer to know when actual structures were being demolished? A. No. Q. Why did Bill Porta have to come and tell you that? A. As I said, I was not aware of what their plans were and that was one of the things Bill did when he was preparing plans, he would let me know about it. and Q. What did you do when you saw them? A. He would give me a bit of the overview of what he was going to do; not being an engineer he would give me an outline of what he was going to do, which way the building was going to topple and then what I wanted to know, what safety procedures he was going to put in place like for exclusion zones and things like that, where fence lines were going to be. 56 Mr Elvy, Project Manager of the defendant, was asked as to his contact with Mr Britton: Q. When was the last time before 19 September that you spoke to him? A. I'm not sure. It would have been a matter of days. Q. What did you speak to him about? A. Just about the program. What was going on, so I could inform BHP. Q. Well, what did you speak to him about, how the program was going? Do you recall the questions you asked him, or the conversation you had, not word-for-word, but the best you can recall? A. As best I can recall it, "'where are you up to in the program?' Q. And what did he tell you? A. He told me that they were still working on the method to demolish the boiler with the 230-tonne (sic) excavators". Q. Right, and what did you say about that? A. I will report that to BHP. Q. Well, "I will tell BHP that you are still working on the method"? A. Yes. (It appears this was to read the two 30 tonne excavators) Then a little later in his cross-examination, Mr Elvy was asked: Q. You didn't ask him when it was planned to come down? A. No, I understood that he hadn't applied to WorkCover for a work permit at that stage. Mr Elvy said in cross-examination that he: … understood Mr Britton, from discussions with him, was preparing how he was going to do it. He was having calculations done and how he was going to work out the method. That's what I understood him to be doing. and Q. . . . That was a requirement, "Discuss with Mr Moor before you drop anything"? A. Yes. Q. And your view was that Mr Moor, from the Brambles perspective, would be a person who would be able to satisfy himself, because of his standing as a licensed demolisher and because of his competency, as to whether the process that was envisaged was a safe one? A. Yes. and Q. Yes, But if Demtech insisted that they were going to use that system that Mr Moor wasn't happy with, then he could come to you and raise it about you? A. I expect he would, yes. Q. And you would then take whatever steps were available to you to prevent it? A. I imagine I would have stopped whatever was happening until it could be clarified by somebody. Q. All right. How could you have stopped what was happening? A. Ask them to stop doing any more work. Q. Right. Did you understand that you had the power to do that? A. Yes. and A. . . . I didn't understand what was happening with 6 and 7. I relied upon the expertise of Jeff Britton and the engineer Bill Porta. I relied upon their expertise. They had been doing the job for many years for Brambles before they moved on to form Demtech. 57 It is clear the defendant required Mr Moor to check the methodology to be used for the demolition of Boiler 6. Further I am satisfied Messrs Wade and Elvy were enquiring as to when they could see the expected proposal for Boiler 6. 58 On 17 September 2002, the day after the permit was granted, Mr Britton, met with Mr Porta and employees, Mr Dwyer and Mr Rees. They discussed the direction of the collapse. Mr Britton knew the 100 tonne excavator which had been planned for use to assist in the Boiler 6 collapse was not available. The particular 100 tonne excavator had an arm attached to it, which could be used as a crane-type operation and was according to the August plan, going to be used to assist to "pull" over Boiler 6. WorkCover's conditional permit at condition 3 and 6 seems to suggest the excavator could be used as a secondary support for the structure. There was evidence to suggest this would not provide a support. 59 At the meeting on 17 September 2002, Mr Britton determined he would, with Mr Porta, have to revise the proposed methodology. I accept Mr Britton advised Messrs Porta, Dwyer and Rees it would be necessary to get a further approval from WorkCover for any change in methodology for the collapse of the Boiler. It was decided between them, Mr Porta and Mr Britton, that Boiler 6 could be dropped to the west. 60 On 18 September 2002, the subcontractor's employees made further efforts to remove a coal bunker and other structures which were in the way of the proposed northerly drop which efforts failed. The 100 tonne excavator had also to be used to remove the coal bunker but this task proved too difficult without the excavator. By mid-morning on 18 September 2002, Mr Porta was resigned to the fact that he would have to change the direction of the fall of Boiler 6 and determined as agreed in prior discussions with Mr Britton it could be collapsed in the westerly direction. Mr Porta on the same day rang Inspector Rech, the WorkCover Co-ordinator, Asbestos and Demolition, who had been the person who issued the prior permit. Mr Britton knew of this discussion. Mr Porta advised Inspector Rech that Boiler 6 would now be felled in a westerly direction. The proposed methodology was sent by facsimile to Inspector Rech. There is dispute as to Inspector Rech's part in the afternoon's conversation with Mr Porta but I accept Inspector Rech agreed that he would review the amended procedure when he was next in the office which was to be the following morning, 19 September 2002. 61 The evidence revealed that when performing an induced collapse it was normal procedure to reduce the structure as much as could be done before the collapse. Therefore, all the gas fuel ducting in Boiler 6 was taken out of the structure before the proposed collapse. On 10 August 2002 beam B11 was taken out of the structure. This was not taken into account in Mr Porta's calculations in the August methodology and this basic miscalculation was repeated in the 18 September 2002 work method. On 18 September 2002, Mr Porta also ordered another cross Beam B1, to be removed. 62 On the morning of 19 September 2002, Mr Maybury an employee of the subcontractor was directed to begin clearing and levelling a 'drop zone' to the west of the Boiler 6, otherwise known as 'the pit'. This was to clear any scrap metal away from the "drop" site in preparation for the collapse of Boiler 6 in the westerly direction. Mr Porta then organised for the removal of a further structure Beam B12. By mid morning on 19 September 2002, therefore the ducting and three major cross beams, B1, B11 and B12, had been removed from Boiler 6. The structure was then to have its columns cut to create "hinges" to bring about an induced collapse of the Boiler 6. The controlled collapse was scheduled to occur about 1:30-2pm. 63 The cuts to the columns were to be made by Messrs Rees and Edwards, both of whom were the subcontractor's employees. Mr Britton had attended at the site about 7am on 19 September 2002. He had ordered the clearing of scrap from around the site for the westerly drop. Mr Porta arrived at the site at 9am but the preparatory work had been commenced by Mr Rees and Mr Edwards at 7.30–8am. Mr Porta called a tool box meeting after the preparation work was completed earlier that morning. He recalled as follows: A. The crew had brought to my attention that when the bottom major beam had been dropped, the north face beam which had already been prepared as a wedge allowed the wedge . . . to drop which meant that structure had moved. Q. And what was the consequence of that? A. No immediate consequence. That was unusual. . . . Q. They then discussed with me the location of the cuts. From memory, it was the location of the upper slice on the two columns, as to the north west and the south columns, weren't totally in alignment. Q. And? A. We just between us arrived at the conclusion of where we should adjust down the point of the common cut. It appears from the latter comment some adjustment was made to the methodology in effect adjusting the calculation on the work site on the relevant date. 64 Mr Edwards was to make the cuts on the column of the Boiler 6 and Mr Rees was to operate the cherry picker in which both men were located in order to reach the columns of the boiler. After B12 beam had been removed, the employees took a break as the site experienced significant wind gusts. The cherry picker was then raised 30 feet above the ground. Mr Porta was standing on the ground below the cherry picker directing the cutting process to create the "hinge" needed for the controlled drop. The crew used an oxy propane cutting torch to perform the cuts. 65 During the cutting, Mr Porta had some concerns and said on that day he felt: . . . there is something wrong, I can't explain it, and I hesitated. They [Rees and Edwards] called out again and at that point in time I was about to call them down, and this is my one huge regret that I didn't go on with that. But they kept calling, and I, at that point in time, I said what am I possibly going to tell them - that I have got a funny feeling? There was something wrong, and I couldn't out my finger on it and that is something that sticks with me to this day. At that point in time I was about to call them down and I didn't. 66 Messrs Rees and Edwards completed the cut on the top of the first column and they were up to the middle cut of the column and were part way through cutting the second cut when a loud crack was heard. 67 There was then an uncontrollable collapse of Boiler 6. It crashed to the ground, all 300 tonne and 31 metres of the structure. The cherry picker was struck as it was in the fall line of the Boiler 6 collapse. Mr Rees sustained fatal injuries. Mr Edwards sustained a broken rib and laceration. He was hospitalised for several hours. Mr Porta suffered lacerations. The Expert Evidence 68 Three engineers, Mr Turner, Dr Heathcote and Mr Kershaw gave evidence. While there was some difference between the views of the experts called, they were not at variance in relation to the primary causes of the collapse. The causes of the collapse of Boiler 6 is not at issue in a prosecution under the Act, however it is a relevant consideration to assist in identifying the risk to safety and the context in which that risk arose. 69 An examination of Mr Porta's calculations in August (only varied as to the direction of the fall in September although the cuts made on 19 September 2002 were too close to the web of the column) revealed that Mr Porta did not know nor take into account, the fact that the stabilising cross support beam, B11, had been removed from the boiler on 10 August 2002. His calculations were therefore inaccurate as to the safe transfer of weight that the columns of the structure would be able to sustain. In other respects the methodology was also faulty. The further cross beam B1 was removed on 18 September 2002 and beam B12 on the morning of 19 September 2002. There was then an unsustainable reduction (up to 95%) in the cross sectional area caused by the cutting of the columns on the morning of 19 September 2002. This brought about the uncontrolled collapse. Given there was no secondary stabilisation system the building went into a free fall. 70 While the August and September methodology were essentially the same in all significant technical respects, neither of the work plans identified: · the sequence of the proposed work, (cl 333 of the Regulations and cl 2.3(f) of the Australian Standard); · no details of a stabilisation system, (cl 333 of the Regulations and cl 2.3(g) of the Australian Standard) and · did not include adequate plans, calculations or information necessary to define or substantiate the proposals, (cl 333 of the Regulations and cl 2.3(i) of the Australian Standard). Knowledge of defendant 71 The evidence has established that, notwithstanding a claim that the sub-contractor's methodology for demolition was its own intellectual property, the subcontractor had after an uncontrolled collapse of a chimney stack, agreed to notify the defendant (who would notify the head contractor) of the time, place and methodology of any future proposed collapse. Further, the subcontractor agreed to show all documentation to the defendant's officers and to discuss any proposed methodology with the defendant demolition expert, Mr Moor. Mr Britton was of the view the defendant had to "demand" copies of the documents otherwise they were on site for the defendant to "see". 72 At first the defendant agreed to use the information only for identifying the area affected by any proposed drop. However, the agreement was refined to ensure the methodology was at least discussed with the defendant's expert, Mr Moor. He had checked and discovered the error in the chimney stack calculations in a prior methodology that is before the Boiler 6 and 7 collapse employed by the subcontractor. What is clear is any further methodology was to be referred to Mr Moor, the defendant's expert, who was qualified to check the calculations. 73 On 19 September 2002, Mr Britton attended at 7am on the site, gave orders for clearing the site then went away and returned at 9.30am. He left the site again after 9:30am. He was told by Mr Porta that the controlled collapse would occur at about 1.30-2pm. He intended to return then. 74 The defendant on 19 September 2002 had no knowledge of the intention of its subcontractor to collapse Boiler 6 without a permit, in breach of the law and in circumstances where there was no risk assessment of the proposed methodology, which methodology was faulty given the devised system of work took no account that cross beams were taken out which put excessive weight on the columns causing an uncontrolled collapse in a circumstance where the methodology did not incorporate a secondary restraint system or bracing. 75 I am further satisfied the defendant at least knew of the proposed work method in the August work plan but from the evidence the defendant was not told of the permit from WorkCover for the August plan and did not sight any of the calculations to check the August work method. Further, I am satisfied that the generic Job Safety Analysis for Boilers 6 and 7 did not make any reference to the collapse methodology or the date the Boiler 6 demolition was to occur. 76 The defendant on 19 September 2002 therefore knew that Boiler 6 was due for collapse, but not on that particular date, and that a proposal to use the 100 tonne excavator had to be changed. I am also satisfied that Mr Elvy, for the defendant, had sought information from Mr Britton in the days leading up to the collapse as to what was the proposed method and when it was proposed that the demolition would occur. Mr Elvy was not informed of the time, date nor the methodology of the collapse that was used on 19 September 2002. Mr Wade, the defendant's Site Safety Officer, was also precluded from knowing the date of the collapse. He was not kept informed by the subcontractor as to the existence of the JSA nor the methodology for the August plan nor the fact that a Work Permit for the August work method had been issued. Mr Moor was not shown the August plan. Nor was he told of or shown the September work method sent to WorkCover by facsimile the day before the uncontrolled collapse. No one from the defendant had any knowledge of the proposed method for the collapse of Boiler 6 to the west nor that it was the intention to conduct the demolition on 19 September 2002. 77 The defendant had in place an agreed protocol for it to be kept informed of the time and methodology for demolition and for the procedure for review that methodology. There was no compliance on or before 19 September 2002 by the subcontractor with that agreement either in relation to the August or September proposed methodology. While the defendant had some knowledge of the proposed collapse to the north it had no knowledge of the timing for the proposed collapse to the west or the methodology for the collapse to the west. 78 Having accepted the defendant did not know what work was to be performed on the site on 19 September 2002 the question arises what was its obligation under the Act. It was not the employer on site. It was however a licensee on the site as was the subcontractor. The next issue to be addressed is did the defendant have control of the premises namely the site. The Charge 79 The charge has been brought under s 10 of the Act which section address "the duties of controllers of work premises". Under the Act the defendant, if it was a "controller" on site, had an obligation under s 10(1) that it must ensure the premises were safe and without risk to heath. 80 The charge has been framed and particularised with a focus on the unsafe work method conducted on site on 19 September 2002. However I am satisfied the particulars, if proven, could in the circumstance establish there was a causal connection between the asserted breach of statutory duty and asserted risk namely the failure to ensure the premises were safe and without risk to health in the conduct of the uncontrolled collapse of Boiler 6. 81 Section 10 of the Act provides: ( 1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease). 82 Of relevance to this consideration is the effect of ss10(1) and 10(4) of the Act. Section 10(1) of the Act requires persons who have control of premises used as a place of work must ensure that the premises are safe and free from risks to health. Section 10(4)(a) allows that a person who has only limited control of premises nonetheless carries all the obligations imposed on an employer under s10 of the Act (see McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 (at 478 to 481)). 83 The duty cast by s10 is absolute and is subject only to the defences provided by s28 of the Act (WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383; WorkCover Authority of New South Wales v Rowson [1994] NSWIR 76). The duty applies only if the premises are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. 84 The elements of a charge for a breach of s 10(1) of the Act are therefore: (1) that the defendant has control of premises; (2) premises are used by people as a place of work; (3) that the premises were not safe and not free from risks to health; and (4) that there was a causal connection between the breach of statutory duty and the premises being unsafe and a risk to health. 85 Of further relevance are the Regulations which define "the general duties of controllers of premises". Under the definition section in the Regulations: 33 controller of premises means a person who has control of premises used by people as a place of work, including: (a) a person who has only limited control of the premises, . . . The general duties of controller of premises are: 34 Controller of premises to identify hazards (1) A controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises. (2) Without limiting the generality of subclause (1), the controller must identify hazards arising from: (a) the layout and condition of the premises, including the presence of a confined space, and (b) the physical working environment, including the potential for: (i) people slipping, tripping or falling, and (ii) objects or structures falling on people, and (c) the presence of material containing asbestos. (3) A controller of premises must ensure that hazards are identified: (a) during any design of the premises, and (b) before the premises are provided for use as a place of work. . . . 35 Controller of premises to assess risks (1) A controller of premises must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division. (2) When assessing those risks, the controller must: (a) evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and (b) review available health and safety information relevant to a particular hazard, and (c) identify the actions necessary to eliminate or control the risk, and (d) identify records that it is necessary to keep to ensure that risks are controlled (including the length of time for which records are to be kept). (3) A risk assessment may relate to more than one place of work or hazard so long as it takes account of the particular circumstances of each place of work or hazard. . . . 36 Controller of premises to eliminate or control risks (1) A controller of premises must eliminate any risk, arising from the premises, to the health or safety of any person accessing, using or egressing from the premises. (2) If it is not reasonably practicable to eliminate the risk, the controller of the premises must control the risk. (3) A controller of premises must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health or safety are properly used and maintained. . . . 37 Controller of premises to review risk assessments and control measures (1) A controller of premises must review a risk assessment, and any measures adopted to control the risk, whenever: (a) there is evidence that the risk assessment is no longer valid, or (b) injury or illness results from exposure to a hazard to which the risk assessment relates, or (c) there is a significant change in the premises or place of work to which the risk assessment relates. Maximum penalty: Level 4. 38 Controller of premises to provide information (1) A controller of premises must provide other persons who have responsibilities under this Regulation with all available information that is necessary to enable the other persons to fulfil their responsibilities with respect to the following: (a) identifying hazards, (b) assessing risks arising from those hazards, (c) eliminating or controlling those risks, (d) providing information. (2) Without limiting the generality of subclause (1), the controller must provide any employer who uses the premises concerned as a place of work with information about: (a) any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises, and (b) an assessment of any risk arising from the premises that has not been eliminated by the controller, and (c) the measures taken by the controller to control any such risk, and (d) any measures (including use and maintenance of procedures and equipment) that the employer may need to adopt to control any such risk. . . . 86 To summarise the Regulations therefore provide that a controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person, using the premises (Regulations 34). This obligation includes identifying hazards arising from: the layout and condition of the premises, including the presence of a confined space; the physical working environment, including the potential for people falling, or objects or structures falling on people; and the presence of material containing asbestos. The Regulations requires the controller of premises to ensure that hazards are identified during any design of the premises and before the premises are provided for use as a place of work (Regulations 34(3)). If hazards are identified, the controller of premises must assess as to the risk and whether any of the hazards will result in harm to the health or safety of any person (Regulations 35). The risks assessment must be reviewed (whenever there is evidence that the risk assessment is no longer valid); where injury or illness results from exposure to a hazard to which the risk assessment relates, or where there is a significant change in the premises or place of work to which the assessment relates (Regulations 37). The Regulations requires a controller of premises to eliminate any risk to the health or safety of any person using the premises, (Regulation 36) arising from the state of the premises. If it is not reasonably practicable to eliminate the risk, the controller of the premises must control the risk. In doing so, they must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health or safety are properly used and maintained. The Regulations also imposes an obligation on controllers of premises to provide relevant information regarding the premises to other persons with risks management responsibilities. The Act and "Control" of Site 87 The charge is the defendant on 19 September 2002 put at risk the safety of named persons, not its employees, by the unexpected collapse of Boiler 6 due to the implementation of an unsafe system of work (see Particular (e)) which system left the premises unsafe and a risk to health. However, for the defendant to be guilty of the charge it must have had "control" of the site on 19 September 2002. Control is therefore a threshold issue in respect of an offence under s10(1) of the Act. Submission as to "Control" on site 88 The defendant submitted as to the element of control "notional": · the moment the demolition commenced , the Premises fell under the scope of Demtech's demolition licence. (McMillan Britton) · the control was exercised by the subcontractor when the relevant works were being carried out (see Rowson, Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103) · Demtech exercised actual control over the way in which the work was conducted. · the method of work adopted by the contractor was a matter for the contractor · the defendant as a principal was entitled to rely on the skill and competence of the subcontractor. · the defendant was excluded from interfering in the performance of the demolition works. This was the exclusive regulatory domain of WorkCover and the licensed subcontractor. The defendant's contractual relationship with the subcontractor did not enable it to intrude upon works conducted under Demtech's demolition licence. 89 The defendant contends s10(4) of the Act expressly contemplates that a person is a 'controller' for the purpose of s 10(1) if they exercise partial control, or 'control, to any extent.' The defendant submitted in such a circumstance where control is limited: · its duty to ensure safety is correspondingly diminished. · the defendant must have, to some extent, the ability to 'compel corrective action to secure safety' which it did not have on the relevant date. · the defendant did not have control over the Premises (being either the Boiler or the Demtech Site) on 19 September 2002 as it neither owned them nor had physical possession of them, nor did it have its employees working on the site or the boiler; · it did not have the right to conduct the collapse of the Boiler 6 as this could only be done by the subcontractor who had received Workcover approval; · its control over the work could only be exercised under the Subcontract after the defendant became aware that the subcontractor was about to commit, or had committed, a breach of the contract. · the defendant's employees Messrs Merritt, Elvy and Wade were aware of their limitations on exercising powers under the contract, but were willing to do so if the need arose. 90 The defendant therefore contends: · the defendant could not interfere with the regulatory relationship between WorkCover and Demtech. Were it to purport to do so either by demanding a different work plan or purporting to supervise the actual work and 'compel corrective action' (eg. by telling Demtech to do something different than WorkCover had authorised), the defendant would be in breach of cl 332(1) of the OHS Regulation which provides: A person must not do demolition work or friable asbestos removal work otherwise than in accordance with a permit. · a permit could only be obtained by Demtech as the entity contractually entitled to perform the works under the Subcontract pursuant to its own demolition licence. · the defendant had no right to obtain a demolition permit for itself as to do so would have denied Demtech the benefit of the Subcontract and Brambles was not the demolition licence holder for the Premises. · the work undertaken on 19 September 2002 on the Boiler which gave rise to the risk of injury necessarily had to remain under the exclusive control of Demtech and WorkCover. · the defendant had a different approach to managing subcontractors working elsewhere on the site from the way it managed the subcontractor; the defendant knew that if it raised safety issues but Demtech refused to perform the contract as requested · the defendant's only power was to seek to enforce its contractual rights while the defendant wanted to know when the 'drop' of the Boiler was to occur, this was to ensure safety outside · the defendant did not have engineering expertise or staff to review for the induced collapse demolition method · the defendant was entitled to rely on Mr Porta and WorkCover for the work method. · the defendant had no control over the method for the induced collapse of the Boiler. 91 To summarise the defendant submitted it had no rights under its contract with the subcontractor to control the activities of the subcontractor on 19 September 2002. 92 The prosecution asserted however 'at all material times, the defendant was a controller of the site.' 93 The prosecutor submitted the evidence established the defendant in reality exerted its control over the site. The following asserted facts are relied upon by the prosecution in support of this contention: · the defendant's safety officer frequented regularly the site and conducted safety meetings. · the defendant had "competent" people on the site who supervised. · the defendant's site safety officer gave instructions about site safety, visited the site and conducted safety audits. · the defendant obtained copies of job safety analysis and work method statements and reviewed them. · the defendant instructed all induced collapses were to be reviewed by the defendant. · it required Demtech to make available all documentation relating to any induced collapse. · the defendant had both contractual capacity to control the site as well as an "in fact" capacity to do. · Mr Merritt of the defendant gave instructions to Mr Wade (the defendant's safety officer) to check on Demtech's site safety on a regular basis. · the defendant could issue a "show cause" notice and had power to terminate the contract if safety matters were not "fixed". · the defendant was "all over the site" by its safety officer Mr Wade (and others) and that it had access to work method statements, job safety analyses, minutes of tool box meetings and to Demtech's personnel, meant it had every possible means of finding out what was happening at the site and how it was happening. It also had the ability to compel compliance with the OHS Act by giving instructions or by acting under the contract. · the defendant chose to look in the other direction and take no action. Principles and Consideration as to "Control" on site 94 The Commission in Court Session has given consideration to the meaning of "control" under the Act. In McMillan Britton (at 478) it was held: The answer to the problem, on our approach, requires determination as to whether the concept of "control" in s 17 comprehends a continuing liability to ensure safety beyond the actual giving of the advice. If it does, then the prosecution here is sustainable as being within time; if it does not, then the charge must be dismissed as being statute barred. The word "control" has a wide meaning. In its ordinary sense, The Shorter Oxford English Dictionary (3rd ed, 1962) relevantly defines it as: "1. The fact of controlling, or of checking and directing action; domination, command, sway. 2. Restraint, check ... 3. A method or means of restraint; a check ... 4. A person who acts as a check; a controller ..." The Macquarie Dictionary (2nd ed, 1992) similarly defines the word as including "... the act or power of controlling; regulation; domination or command ... check or restraint ...". The word was judicially considered by the High Court (per Mason J, as he then was) in Commissioner of Taxation (Cth) v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 449 at 533) as follows: "The content of `control' is somewhat different from that of `custody'; however, both are `wide enough to include many types of possession which are not commensurate with full ownership' ( Johnston Fear & Kingham v The Commonwealth (1943) 67 CLR 314 at 324, per Rich J). It is difficult to ascribe a precise meaning to `control' in s 264 as the content of the word is normally dictated by its context and can vary from sole absolute dominion over the object `controlled' to `something weaker than `restraint', something equivalent to `regulation'' ( Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 385 per Dixon J). Although the use of the composite expression `in his custody or under his control' does not assist us in determining the precise limits of the meaning of `control', it does evidence a legislative intention to employ the words in their widest sense." The reasoning in McMillan Britton in regard to plant and substances in s 10(2) is equally applicable to premises in s 10(1) ( McDonald's ). The Full Bench was therefore of the view the proper operation of the section requires the degree of control which a defendant has over non-domestic premises, to the extent to which the defendant is able to ensure safety by "guaranteeing, securing or making certain" (see Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 (at 470) regarding "ensure" as adopted by McMillan Britton as an appropriate test of "control"). 95 So it was held in McMillan Britton (at 481) . . . For that reason, the applicable meaning of "control" in the context of s 17, by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere "sway", "checking" or "restraint" but rather controlling in the sense of "directing action" or "command" — the ability of a person to compel corrective action to secure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured. If it were otherwise then the alleged controller would be simply unable to assume the strict duty cast by the section. We are satisfied that this approach to the meaning of "control" is consistent with that expressed in Rowson and Growth Securities by adopting the contextual approach stated in Australia and New Zealand Bank . . . . 96 For that reason, the applicable meaning of "control" in the context of s 10, by reference to its ordinary meaning, must have the sense of not mere sway, checking or restraint but rather controlling in the sense of directing action or commanding action. Therefore the ability of a defendant to compel action and/or corrective action to secure safety is necessary in order to ensure the safety of the premises. 97 Was the defendant a "controller" of the premises at this worksite? Did the defendant have therefore the power to direct action on the premises? The defendant on 19 September 2002 was under contract with the head contractor to demolish structures located at the site. The defendant, notwithstanding it subcontracted out part of the work under a separate contract, was still a licensee of the relevant site. The defendant was along with the subcontractor, a licensee of the premises by the terms of its contract. While under the contract the defendant was able to subcontract out the work to the subcontractor, it did not pass over its obligations to ensure safe working to the subcontractor (cl 10.3.1). The defendant had to ensure work was performed in accordance with Australian Standards (cl. 7.1); it had to comply with all laws (cl 7.2.1); it had to prevent injury, loss or damage (cl 9.1.1); to comply with the head contractor's safety requirements (cl 13.1.2); and to remedy any breach (cls 13.2, 14.1). Under the contract the defendant was obliged to ensure its subcontractors complied with all their similar obligations (cl 10.3.2). 98 The defendant's action on site are also relevant as to whether it was a controller of the premises. The defendant's own site safety officer visited the site regularly; it required the subcontractor to discuss work method statements and information as to when any demolition was to occur; it required the provision of any JSAs for all work on the site; it had the power to issue termination notices. Evidence revealed the defendant conducted safety audits on the site. The defendant then gave the subcontractor written instructions. An example of such an instruction was over a very small issue on 3 June 2001 when the subcontractor was required to remove a hose and keep a walkway clear. Another example was on 5 September 2002, when the subcontractor wrote acknowledging it had received the defendant's "direction" regarding the movement of the scrap from the site. The defendant had conducted a safety audit on site and demanded action from the subcontractor. The subcontractor complied with what it interpreted as a "direction" from the defendant. Further, the defendant had its employees attend site safety meetings with the subcontractor and with the head contractor to determine procedures to be followed and the timetable for work on site. All such activities demonstrate an element of a control being exerted on site through the defendant's activities. The defendant's interaction with its subcontractor was a reflection of the power it held on the site. 99 Reliance is also placed by the defendant on Oldschool which, the defendant contends, is authority for the following proposition: · a principal has neither a duty nor a right to instruct the contractor as to the manner of execution of the works; and · even if it be the law that when a principal knows or ought to know that the contractors are failing to take proper precautions in the absence of which there is a risk of damage to property, the principal's duty does not extend beyond warning the contractors to take the necessary precautions. The litigation in Oldschool concerned a dispute between a consulting engineer and a contractor. Justice Stabb QC held (at 123): . . . I do no think that the consulting engineer has any duty to tell the contractors how to do their work. He can and no doubt will offer advice to contractors as to various aspects of the work, but the ultimate responsibility for achieving the consulting engineer's design remains with the contractors. To take the present case as an example, I have no doubt that it was the contractors' duty to set whatever shoring might have been necessary. It was also for them to decide upon the sequence of excavation that was to be adopted and how such excavation was to be temporarily supported if required. Both the district surveyor and Mr Gabriel asked the contractors to provide a sequence of operations, but neither obtained a satisfactory reply. If the contractors had said, for example, that they planned to excavate first down to footing level along the whole length of the party wall and thereafter to excavate the rest of No. 31, the consulting engineer might well have pointed out the undesirability or even the danger of adopting the course; but I do not think that he was under a duty to direct the contractors, for instance, to excavate in strips up to the party wall. It was the responsibility of the contractors to decide upon the method and sequence of excavation so as to achieve the consulting engineer's design; but if, for example, they planned to excavate the hoist pit without any temporary support, and so informed the consulting engineer, then as a matter of common sense the consulting engineer would intervene to prevent that which was described as an act of incredible folly. . . . 100 I distinguish the facts before me and the applicable law from those considered in Oldschool. This litigation requires a consideration as to whether there has been a breach of the Act by a contractor who, it is asserted, had control over premises on which there was an asserted risk to health. The question addressed in Oldschool was what was a contractor's duty and what a consulting engineer's duty on an excavation site. The Court in Oldschool held it was the duty of the contractor to decide upon the method and sequence of excavation so as to achieve the consulting engineer's design. That is not the issue before this Court. This Court is not determining who has the overriding duty as to the method and sequence of a collapse rather the question to be determined is whether the defendant was a controller on this site on 19 September 2002 and if so, did that controller breach its duty to provide safe premises which were not a risk to health. The issue is not what was the duty or right of the defendant but rather if it was a controller of the site did it meet the duty it had under s 10 of the Act to provide safe premises. 101 As was held in Wilson & Clyde Coal Co Ltd v English (1937) 3 All ER 628 unsafe premises created by an independent contractor may well be the responsibility of the employer if an employee is injured. For the purpose of my consideration I am of the view the reasoning in regard to the duty of an employer is equally applicable in regard to the duty of a controller on site given the mandatory terms of ss 10(1) and 10(4)(a) of the Act. 102 Lord MacMillan (at 638) in Clyde Coal summarised the position as follows: . . . Now, I take it to be settled law that the provision of a safe system of working in a colliery is an obligation of the owner of the colliery. He cannot divest himself of this duty, though he may — and, if it involves technical management, and he is not himself technically qualified, must — perform it through the agency of an employee. It remains the owner's obligation, and the agent whom the owner appoints to perform it performs it on the owner's behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by proving merely that he has appointed a competent agent. If the owner's duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible. . . . 103 The Industrial Commission had recently given consideration to the effect of the charge under s 17 of the Occupational Health and Safety Act 1983 (the similar section to s 10 of the Act) in a recent judgment of Tsougranis v Inspector Carmody (No 2) [2006] NSWIRComm 133. While the Full Court considered the status of a consulting engineer, it found the charge not proven because on the date of the offence. The Full Court stated: [70] . . .the conduct of the appellant's undertaking had no real or substantial connection with the premises The defendant therefore had no control over the site. The Full Court applied the principle as was held in McMillan Britton (at 481): . . . Put another way, control must be shown to have been present on 6 July 1994 when the operative act or omission constituting the offence occurred. . . . I distinguish this case from the matter before me. The defendant has raised the defence that it was not on the site on 19 September 2002 and it therefore had no control over the premises. However it is not a question of a presence on a site but rather under the Act if one had control of the site on the particular day and could therefore direct action. Given all the powers under the contract and the prior activities of the defendant on the premises (see [98]). I am persuaded the defendant on the relevant date could have directed action. 104 Further the defendant submitted a WorkCover Permit did not allow third party interference on the premises. I reject these submissions. The defendant could have been on site and submitted it would have had it but known of the demolition was to be conducted on that day. Mr Porta agreed, Mr Wade, the safety officer of the defendant always attended the premises when the defendant knew of an imminent collapse. 105 The defendant cannot claim a protection given the terms of a WorkCover Permit. On 19 September 2002, the relevant date, there was no WorkCover Permit. Further, I am of the view even had there been a Permit for the conduct of work a Permit does not have the power to remove from a person his status as a controller of the premises. There is nothing in s 10 of the Act which would prevent several persons from simultaneously being in control of premises used as a place of work. In fact, such an interpretation is implicit in s 10(4)(a) in extending the duty to persons who have limited control over premises and was implicit in the predecessor to s 10 of the Act, s 17 of the Occupational Health and Safety Act 1983, which qualified the requirement control by the expression "to any extent". However, it is possible for control to shift from one person to another, in the total sense, so that the former does not retain any control over the premises on a particular date. In such event, the person will not be bound by s 10 (McMillan Britton). However this is not the circumstance before me. Persons on site may have various status and therefore various duties. BHP was a head contractor and retained possession of the site. The defendant was a licensee of the site and controller of the premises. The subcontractor was an employee, a controller and a licensee. A Permit simply authorises who is to conduct a particular demolition, that is who is to perform that work. It does not determine who is a controller on premises. I am of the view the defendant continued to have a real and substantial connection to the premises (McMillan Britton) on the relevant date. I do not accept that in the conduct of the collapse of Boiler 6 control of the premises shifted from the defendant even had there been a valid Permit. 106 The defendant also submitted it was not a controller of the premises as on the relevant date it was the subcontractor's work method being performed. I reject this submission. The issue is not whose method was being performed but did the defendant have power to compel action to ensure the work method that was used was safe. The defendant put in place a number of procedures to so ensure. Mr Elvy himself said the defendant had power to stop work. That power was also held by the defendant under the contract and it had been determined no further demolition was to be conducted while there was a review of the faulty drop of the chimney stack. The defendant could have ordered work to stop on 19 September 2002 had it but known of the work. 107 I am satisfied the defendant under the contract and by its actions was a controller on the site and had, as a matter of fact, exerted that control over the site. 108 The defendant also submitted (an alternative proposition) that to the extent the defendant had 'limited control' on the site (such as it provisionally acknowledges with the power to issue notices under the contract), such control could rise no higher than a duty to suspend work if a breach of occupational, health and safety law came to its attention. I reject the proposition that to 'compel corrective action' in the McMillan Britton sense, a fortiori, there was nothing to correct. The defendant's obligation, once it had control of the site, was that it had to ensure, it must ensure, safe working. The defendant proposed the nature of its control, if it did exist, was limited to the power to issue a termination notice which control could only be implemented after a breach. 109 However, for the purpose of considering the submission of the defendant, it must be determined the meaning of "limited" control as used in the Act. In statutory interpretation a word must be given its ordinary everyday meaning. "Limited" has been defined as "Circumscribed within definite limits, bounded, restricted" (Oxford English Dictionary online Oxford University Press 2006 2nd ed 1989). Limited control would therefore be read as a "restristed power to direct" (see [94-95] as to the definition of "control"). 110 However, even if the power to control is restricted the duty then becomes absolute - not as submitted by the defendant in any way restricted or limited under the Act. Therefore any person who has a restricted power to direct over a premises nonetheless carries the full burden of responsibility that it must ensure premises are safe and not a risk to heath. The defendant even if it is accepted it had limited control, and I do not do so, carries the duty to ensure the premises were safe and without risk to health. The defendant therefore, as a controller on the site that the absolute obligation to ensure safe premises free from a risk to health. The defendant therefore, as a controller on the premises had the absolute obligation to ensure safe premises free from a risk to health. Particulars of the Charge 111 It remains to consider each particular relied upon to establish through the asserted acts as particularised whether the defendant, as a controller of the worksite ensured the premises were safe and were not a risk to health. It is of note that a s10 charge directs attention to the safety of the premises as a worksite. The focus in such a charge is on the safety of the premises used for work which premises must not provide a risk to safety. 112 As a preliminary point, the defendant submitted that the charges must be dismissed because of ambiguity. Reliance was placed on the authority of Johnson v Miller (1937) 59 CLR 467 (at 489-90) where it was said: . . . For the defendant is entitled to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge. The court hearing the complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the documents, the matter or transaction appearing in the . . . evidence. 113 The prosecution must establish a relevant "failure" on the part of the defendant, detrimental to safety on the premises used as a place of work but the standard of the duty imposed on the controller under the Act is that of strict liability. Proof of the commission of an offence does not require a demonstration that particular measures should have been taken to prevent the risk. It is sufficient to prove facts causing the detriment to safety and the causal connection between the defendant's acts or omissions and that detriment: (see WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Material Ltd (1999) 91 IR 119). Particulars (e)(i) The defendant on 19 September 2002 failed to provide a safe system of work for the demolition of Boiler 6 at the site, in that: (i) the defendant failed to ensure that redundant demolition material which had accumulated on the site was removed 114 Under the subcontract, property in scrap material vested in the subcontractor as soon as it was separated from a structure. The non-ferrous scrap was initially to be purchased by Onesteel pursuant to an option. The letter from David Pritchard, General Manager of the defendant, to Jeffrey Britton of the subcontractor dated 12 July 2001 states: . . . The terms and conditions of this subcontract agreement are those that are expressly contained in the above-mentioned contract. In relation to the payment terms for this agreement, the conditions contained within contract BHPMS004, are to apply, with the exception that payments for scrap will be made 14 days after receipted on an approved invoice together with supporting documentation. No other terms and conditions will be applied, unless confirmed in writing by Gardner Perrott. The OH & S and Work Method Statements as submitted by Gardner Perrott and approved by BHP and Newcastle City Council will apply. . . . 115 The responsibility to remove the scrap from the site was the subcontractor's. However, the sale of the scrap, evidence revealed, was of a significant benefit to the subcontractor. The subcontractor engaged in a dispute with Onesteel who was a guaranteed buyer over the sale of the scrap material. The classification of some ferrous scrap as 'Heavy Melt Grade 1' by the subcontractor did not accord with Onesteel's classification of the material and Onesteel had rejected truckloads of material. There was a parallel dispute between the subcontractor and the defendant as to the use by the subcontractor of the defendant's trucks to remove the scrap. As a result of the disputes, mounds of heavy metal material had accumulated on the site. The scrap was then moved from place to place to allow work to continue and to keep access and egress to the site open. 116 However, in early September 2002 by agreement between the disputing parties, the subcontractor assumed full responsibility for the scrap and for its removal. It found an alternative buyer. The subcontractor then settled its dispute with the defendant and became responsible for loading and transporting the scrap. Photographs exhibited demonstrated there were mounds of scrap still on the site but it is my view it lay in ordered large mounds. Mounds of scrap metal were still accumulating on site because of the disputes at the relevant date, 19 September 2002. 117 There was no evidence on which to be satisfied those mounds of metal contributed to the asserted unsafe work site of 19 September 2002. This particular is relied upon as an act of omission by the defendant, namely, that it failed on 19 September 2002 to have removed the scrap from the site, the existence of which on site contributed to the unsafe premises. 118 While the original work method planned for the fall of the Boiler 6 to the north was reviewed because a coal bunker could not be moved, the decision to drop the boiler in an alternative direction to the west, I find, had no effect upon the unsafe work method implemented on 19 September 2002 to demolish Boiler 6. While the scrap on site was relevant in the context in which the decision was made on 18 September 2002 to perform the controlled demolition to the west the decision itself to drop Boiler 6 to the west is not relied upon as an element of the offence. 119 There was some inference cast that because the 100 tonne excavator was not made available by the defendant to assist in the drop to the north that contributed to the risk. I cannot see this proposition is relevant to the asserted risk to safety. I accept Mr Porta, in his August plan, had originally determined to use the 100 tonne excavator to move the coal bunker and to "pull" the structure. Mr Britton had requested the use of the excavator but given the excavator was unavailable, Mr Britton had said to Mr Elvy: Don't worry about it. I will work out another way to pull the building over using my two 30 [tonne excavators] 120 There was, I accept, an informal arrangement between the defendant and the sub-contractor to allow the sub-contractor the use of excavators but I also accept that was conditional upon the equipment being available. I also accept the equipment was old and often under repair. While the excavator was not made available I accept the methodology had to be changed to drop Boiler 6 to the west. However, the unavailability of the excavator is not an element of the offence as pleaded when on 19 September 2002 another methodology was adopted which methodology created an unsafe work site. 121 Having accepted there were scrap metal around the site which scrap may have included a coal bunker in that it had to be removed and that the bunker lay in the drop path to the north, nonetheless I have difficulty accepting the existence of scrap metal on site had any causal connection or contributed in any way to the pleaded risk to safety on 19 September 2002 namely unsafe premises brought about by the use of an unsafe work method . 122 It is an acceptable proposition that the existence of scrap on the site could have created a risk of injury. However the risk addressed in the charge is the risk to safety which arose from the uncontrolled collapse of Boiler 6 making the premises a risk to health and safety. Simply because the mound of scrap existed on the site does not provide a causal connection to the risk. One could have expected that for such an asserted failure to be established there may have been evidence the mounds of scrap were in the path of the uncontrolled collapse and contributed that way to the risk to health of the employees in their fall from cherry picker. No such evidence was brought forward. While the Regulations require that there should be no scrap in the path of a demolition, evidence revealed Mr Britton had ordered any scrap mounds be removed before the drop to the west. The evidence must go to prove that the existence of scrap contributed to the risk on 19 September 2002, to the risk to health on unsafe premises. 123 I am satisfied while the redundant scrap contributed to the decision to drop Boiler 6 to the west, there is no evidence to satisfy that the mounds of scrap, in the form of the redundant demolition materials, contributed to the risk to health in the uncontrolled drop of Boiler 6 to the west. I do not accept because a Regulation requires no scrap in the path of a demolition and there is evidence which establishes that scrap metal is on site that is sufficient to establish an element to the charge. The existence of the scrap metal must have contributed to the risk. Therefore, I do not accept the existence of the scrap contributed to the asserted risk to safety which arose with the uncontrolled and unexpected collapse of the Boiler 6 on 19 September 2002. This particular has not been established. Particular (e)(ii) The defendant failed to provide a safe system of work for the demolition of Boiler No. 6 at the site, in that: (i) . . . (ii) the defendant failed to ensure an adequate work method was prepared for the demolition of the Boiler at the site. 124 It was generally agreed by the experts, employees of the defendant, employees of the subcontractor and Mr Porta, the engineer himself, that the August work method, as submitted to WorkCover was mirrored in the September plan in all material respects. The basic variation in the September plan was to induce the collapse to the west not in the northerly direction. Therefore the cuts to create the "hinges" in the columns to bring about the collapse in the westerly direction were varied accordingly. 125 I have accepted that the work method proposed in August, and given a permit by WorkCover on 16 September 2002, was fatally flawed. It was flawed as I have held at [69] that Mr Porta did his calculations without re-assessing the structure had been undermined by the act of the removal of cross Beam B11. The new proposed September work method mirrored these errors in the calculation. It was fatally flawed. It was never assessed by WorkCover. It was conducted without the grant of a Permit. 126 The defendant asserted the work method was designed by Mr Porta for the subcontractor and therefore was not the defendant's work method. Further, as there was no work permit issued for the drop the defendant asserted the demolition on 19 September 2002 was an illegal act of the subcontractor but not the defendant's illegal act. 127 I accept the need to obtain a permit from WorkCover was part of the work method and accept the August methodology, for which a conditional permit had issued, had been identified as an unsafe work method. It is of note that a copy of the work method was not provided to the defendant for the agreed review. 128 However, the defendant as a controller on the site had an obligation to ensure the methodology employed on 19 September 2002 was a safe work method. The defendant put in place a regime to ensure, before the demolition of Boiler 6 it would sight and discuss the proposed work method and have it assessed by its demolition expert, Mr Moor. The defendant failed to ensure its regime was respected and thereby it failed to ensure there was an adequate and safe work method employed on 19 September 2002. It thereby failed to ensure there was a premises on which it was a controller, that was free of a risk to safety to workers on site. 129 The defendant did not satisfy itself a permit was issued; it failed to it sight documentation so that it could ensure Mr Porta's calculations were correct in September; it failed to ensure bracing and a secondary support system were in place in the proposed work method; it failed to ensure the proposed methodology was risk assessed. The defendant, once it had a protocol in place had to ensure that protocol was followed. It failed to do so. 130 The principles applicable to an application of a proper system of work were enunciated in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services (2004) 136 IR 449 where the Full Bench stated: [67] The . . . discussion of paper systems in WorkCover Authority (NSW) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at [35] is pertinent: "The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its 'paper systems' are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) v Abigroup Contractors Pty Ltd (2000) 99 IR 196. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. . . . 131 The same obligation must be carried by this controller. Once the defendant was a controller on site and put in place a method to ensure its premises were safe it had to ensure that system was addressed. It had to ensure its protections in place to ensure a safe work method which would ensure safe premises, were implemented. It is not for this court to determine all the steps the defendant had to take to ensure the premises were free from risk. However, and of great relevance, is the defendant as a controller on site had a statutory obligation under the Act that is must ensure the provision of premises free from a risk to health and safe for persons using those premises for work. 132 While the defendant had in place a regime to ensure work methods used on premises over which it had control were safe it failed to so ensure both that it reviewed the August work method and that it reviewed the September work method used on 19 September 2002. The particular therefore is established. Particular (f) The defendant failed to ensure that a permit issued pursuant to cl 332 of the OHS Regulation was obtained prior to demolition work being performed for the collapse of the Boiler in a westerly direction 133 It is asserted the failure by the defendant to ensure work conducted on 19 September 2002 was conducted with a WorkCover permit contributed to the risk on 19 September 2002. Mr Porta assumed a permit would follow his September application. Given that application was only made at midday the day before the relevant date and the Regulations (Clause 333(1)(g)) require that such application be lodged with WorkCover at least 7 days before the work is due to commence (presumably to check it), his assumption made the following day was out of place. 134 The defendant had set in train a procedure where it was to be notified when demolition was to occur. WorkCover had not reviewed the new proposed methodology. Mr Wade, site safety officer of the defendant, had expected at least to sight the permit. Mr Wade expected to sight the work method. Mr Moor expected to review the work method. Mr Elvy expected the subcontractor would inform him of both the timetable and the work method for the collapse of Boiler 6. Of relevance is when a permit had issued on 16 September 2002 for the unsafe system applied for in August, that was not shown to the defendant through Mr Wade. The defendant failed to ensure it sighted the 16 September 2002 WorkCover Permit. It cannot be accepted that because WorkCover issued a permit in September for the August methodology that fact can distract or deflect in any way from the obligation on the defendant to ensure a work method was implemented on a site over which it had control on 19 September 2002. 135 The defendant was obliged to ensure no demolition works on its site were conducted without a permit. In that context the evidence establishes the defendant failed to ensure the work method adopted on 19 September 2002 had been approved by WorkCover. It had a paper system in place with which it did not ensure there was compliance. It failed in its obligation to ensure it sighted a work permit on or before 19 September 2002 for the work performed on a site over which it had control 19 September 2002. The asserted particular is proven. Particular (g) The defendant failed to undertake a sufficient investigation or provide sufficient information concerning the structure of the Boiler prior to demolition work being performed upon it for the purpose of ensuring that any calculations concerning the structural capacity of the columns of the Boiler to sustain the loads imposed during the demolition process for the collapse of the boiler were accurate and did not give rise to the risk of unexpected collapse of the Boiler 136 The time and date of proposed demolitions had to be given to the defendant. The system in place, if adhered to, would have given the defendant an opportunity to ensure there was compliance with the Act, Regulations and Standards required for the demolition of Boiler 6 and to ensure its work premises were safe. I accept the defendant expected to sight a copy of the permit and methodology. 137 Whether the defendant's officers would have recognised the fault in the calculations for the load bearing strength of structure's columns; or whether it would have ensured the acquisition of a permit; or whether it would have recognised the absence of a secondary support structure in the work method which was required under the Regulations and Standards; or whether it would have recognised there was missing a risk assessment of the task is not for this Court to determine. The Act required it must ensure the safety of its premises once it was a controller on the site. Its own regime recognised this obligation. While the defendant remained informed generally it was not given the specificity which it both required and needed to allow it to investigate the calculations of Mr Porta. However, it had the responsibility to ensure it was given sufficient material to investigate the calculations. Its own system required this. 138 I have no evidence to persuade me the defendant by its acts failed to provide sufficient information for the making of accurate calculations. There was no evidence led as to the defendant's obligation to provide structural information. 139 All experts agreed the calculations of Mr Porta were erroneous. The effect of making the cuts to the boiler's columns after three cross beams B1, B11 and B12 had been removed was the columns were required to carry axial loads above their yield strength. While it was the original intention the columns would be pulled by slings attached to an excavator to collapse them with the central cuts creating the hinge mechanism, the assumed mass of over 300 tonnes (Mr Porta's estimate) was too much given Mr Porta's instructions to take out all the cross beams from the boiler. Evidence further revealed even if the large excavator with slings was available it could never have held the structure. There was no bracing or secondary support for the structure in the methodology that was used on 19 September 2002. 140 The defendant I accept on 19 September 2002 had failed to ensure it was provided with the methodology for the collapse of Boiler 6 on 19 September 2002 such that it could conduct a sufficient investigation that a safe work method be conducted on its premises. I accept that failure made a contribution to the risk to health that the unexpected and uncontrolled collapse of the Boiler 6 created. The defendant had knowledge as to the weight of the boiler, etc, it had engineering expertise, and it required its expert to review the process. It was to monitor/investigate any proposed methodology through its expert. Given the prior concerns the defendant had expressed related to faulty calculations and taking into account, its failure to ensure it was shown the methodology, I find the defendant failed to undertake sufficient investigation into the proposed methodology for the 19 September 2002 "drop". Particular (h) The defendant failed to take any steps to ensure that the calculations that were undertaken in respect of the structural capacity of the columns of the Boiler to sustain the loads imposed during the demolition process for the collapse of the Boiler were accurate and did not give rise to the risk of unexpected collapse of the Boiler 141 I believe this asserted failure is encompassed in particular (g). PARTICULAR (i) The defendant failed to undertake a proper risk assessment in relation to the demolition process for the collapse of the Boiler 142 Under clause 330(i)(d) of the Regulations the application for a permit requires a risk assessment for an induced collapse. This is distinguishable from a work method statement (clause 333(1)(c) and (d)). Inspector Rech of WorkCover assumed a risk assessment existed and had been conducted by Mr Porta. Mr Porta assumed he had only to give to Inspector Rech supporting documentation which Inspector Rech requested. However, in requiring a copy of the methodology, the defendant had to ensure under the Act and the Regulations that the risk assessment, a statutory requirement had been conducted. As a controller on site it also had an obligation to ensure under the Regulations that the premises were hazard free and risk assessed. It failed to ensure it was given the proposal from the subcontractor which would have allowed it to ensure a risk assessment was conducted of the work method affecting the safety of the premises. 143 I have examined the relevant JSA issued by the subcontractor. It was directed to the specific task of "dropping" Boilers 6 and 7. However, it is a generic document and it cannot be accepted this was a risk assessment. A risk assessment had to be particular to the methodology to be adopted on the relevant date. The JSA stated relevantly: Basic Job Steps 6. . . . No cutting is to happen until all parties have discussed the cutting sequence in one group meeting and a written document (JSA) specifically detailing the processes is in place and agreed by all. Ensure Workcover approval has been obtained prior to the structure being pulled by slings should it be the case. (emphasis added) Potential Hazards Y. Demolition by pulling with Wire Ropes, Chains, Slings and other pulling devices. Recommended Action or Procedure Y. Y. Demolition by pulling requires the written approval of the NSW Workcover Authority. This can only be achieved after a written submission has been forwarded to the authority. No work of this nature is to be undertaken without the above approval. The area 1.5 to 2 times the anticipated fall zone is to be cleared of any debris that may become airborne when collapsed structure hits the ground. All gas bottles, machinery etc is too (sic) moved from the drop zone. (emphasis added) 144 The JSA acknowledged the need for a formal written work method statement. While a tool box meeting was held on the morning of the demolitions, no formal risk assessment was prepared. The generic JSA acknowledged one was to be prepared. The proposed methodology did not have a risk assessment attached to it. The defendant failed to ensure it received and read such a document and thereby failed to ensure any proposed work method was risk assessed for the demolition that was conducted on 19 September 2002. There was no risk assessment directed to the particular work method adopted. There was therefore a failure by the defendant to ensure there was a risk assessment of the work method adopted on 19 September 2002 which omission contributed to risk to safety of the premises. Particular (j) The defendant failed to ensure that a suitably qualified and experienced engineer was engaged who was able to properly undertake with appropriate skill and care all of the calculations necessary for the collapse of the Boiler 145 The defendant had employed Mr Porta as a contractor engineer prior to the formation of the subcontractor. There was no evidence the defendant was dissatisfied with his work except to challenge his calculations for the prior faulty stack collapse. The defendant did not oppose the subcontractor hiring Mr Porta. 146 While the calculations and procedures adopted were major miscalculations by Mr Porta on 19 September 2002, there was evidence of the care and skill Mr Porta applied to his task. Mr Porta was asked: Q. . . . you (were) living with the pigeons, weren't you? A. I accept the fact that there were referred to the fact that I spent an inordinate amount of time crawling over that structure. . . . Q. That decision having been made by various people, what did you do next? A. Prepared plans, crawled through the structure, to the extent that you could access everything. It was well known that I used to spend most of my time crawling all over the thing, just made plans for the collapse to the north. Evidence established Mr Porta was a careful man. However, balanced against this is the fact that the defendant knew Mr Porta had already made a miscalculation related his methodology for the faulty chimney drop. The defendant was on notice of possible erroneous calculations. The defendant had put in place a protocol to allow a review of all work methods conducted by the subcontractor safe work methods would ensure its premises were safe. It had required of the defendant to give it an assurance its work method were made available so they could be checked by the defendant's expert for the safe working. 147 Mr Porta made a repeated miscalculation which he made in the August work method and which led to the disastrous collapse on 19 September 2002. Even given the defendant's knowledge of a prior miscalculation made by Mr Porta, I find this alleged failure is in the balance. The consideration is whether the prosecution has proven that Mr Porta was not a suitable engineer for the task. Hill J's comments in Workcover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 (at 381) are apposite. The determination must not be made from hindsight but rather with foresight. 148 Mr Porta had been registered as the defendant's Competent person under the WorkCover registration and was transferred on WorkCover records as the subcontractors' Competent person on 12 July 2002. Mr Porta's curriculum vitae revealed a work history and experience in demolition work. On this site he had already overseen safely a number of small boiler and chimney induced collapses. 149 In the circumstances, in balancing the evidence of Mr Porta's work history and experience with the defendant's knowledge of his prior error I am not persuaded it is beyond reasonable doubt or even on the probability that the defendant should have determined by 19 September 2002 that Mr Porta was not a suitably qualified and experienced engineer nor took the appropriate care to perform the necessary calculations for a safe work method thereby contributing to the lack of safety on the premises. This particular is not established. Particular (k) The defendant failed to ensure that a safe system associated with the induced collapse of the Boiler was failsafe and that risks to health and safety were eliminated by the reason of the implementation of a secondary system of restraint as to prevent unexpected collapse 150 There was no secondary system of restraint in the methodology used for this demolition. There was therefore a failure to comply with Condition 3 on the Permit dated 16 September 2002 which related to the August methodology and required that: The machine be attached to the steel structure prior to and during the cutting of the structure to ensure that the structure does not fall back, or until such time as the stability of the structure is established. 151 There was expert evidence that this possible restraint, although approved by WorkCover, would not have provided a successful secondary system as the excavator could not have held back the weight of the structure. The Australian Standard No. 2601 states: 3.1.2 Stability of the structure The structure to be demolished and all its components shall be maintained in a stable and safe condition at all stages of the demolition work. Temporary bracing, guys, shoring, or any combination of these, shall be added for stability where necessary. No protective secondary system was part of the work method used on 19 September 2002. 152 Had the defendant ensured, or as Mr Britton asserted had it "demanded", the work method either the August or September proposed methodology, Mr Moor may have had the opportunity to recognise the faulty calculations in the proposal. Had the defendant ensured compliance with its protocol its expert may have recognised the 100 tonne excavator would not have held the structure. Had the defendant ensured the subcontractor complied with its protocol, it could have recognised the use of two 30 tonne excavators in the September work method would not have held up such a large structure. 153 The defendant therefore failed to ensure on 19 September 2002 there was, in the work method adopted, a secondary restraint on the structure. This particular is established and I am of the view the asserted failure contributed to the risk to health on the premises over which the defendant had control. Conclusion 154 I find therefore the defendant failed to ensure a safe work premises by failing to ensure an adequate work method was prepared for the demolition of Boiler 6 on 19 September 2002; it failed to ensure the appropriate permit for that demolition work was obtained; it failed to investigate the methodology proposed including checking on the calculations used to determine the structural capacity of the columns; it failed to undertake a risk assessment of the process for the collapse of the boiler; it failed to ensure a secondary system of restraint to prevent the unexpected collapse of Boiler 6. 155 Each of these failures are elements of the defendant's basic failure to ensure the implementation of its protocol in place to ensure that premises under its control were safe for work. It failed to ensure its paper system was implemented. 156 I am therefore satisfied the prosecution has proven the four elements of a charge under s10(1) of the Act and the breach of the Act is established. Firstly I am satisfied the defendant was a controller of the premises. Secondly and there was no dispute, I find it has been established the premises were used by people as a place of work. I am satisfied that on 19 September 2002 the premises were not safe and were not free from risk. I am further satisfied those premises were unsafe due to failures on the part of the defendant to ensure a safe work method was employed for the collapse of Boiler 6 on 19 September 2002. I am further satisfied those omission by the defendant were causally connected to its breach of the Act namely the defendant's failure to ensure the premises over which it had control were safe and without risk in the conduct of the controller collapsing of Boiler 6. 157 I find the charge proven. 158 But for the defence raised, I would find the defendant guilty in Matter No IRC5608 of 2004. Defences 159 Section 28 of the Act creates a defence to a charge under the Act, by providing: It is a defence to any charge brought pursuant to the OHS Act or Regulations if it can be proved that: (a) it was not reasonably practicable for the person to comply with the provision; or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. Submissions 160 The defendant asserted it has a complete defence to the charge under s28(a) of the Act because: … it was not reasonably practicable for (it) to comply with the provision … Further, it had an additional complete defence to the charge by reason of s28(b) of the Act because: · it had no practical control over the cause of the risk to health; and · it was impracticable for it to make provision for the commission of the offence at the relevant time. 161 The defendant submitted it was not reasonably practicable for it to comply with s10(1) of the Act because: · the statute and the regulation forbade any involvement of a third party in the execution of the demolition works · it did not know of Demtech's intention to demolish · on 19 September 2001 the method of induced collapse the Boiler 6 was not revealed to it · it was not 'reasonably practicable' for it to ensure a safe work method was in place. 162 The "happening of which" under s28(b) the defendant submitted refers to the creation of the risk or the commission of the offence (being synonymous), not the cause of the risk (McMartin v The Broken Hill Proprietary Company Limited (1988) 100 IR 241 (at 245) per Grove J). Therefore on the balance of probabilities the defendant submitted: · it had no practical control over the cause of the risk to health; and · it was impracticable for it to make provision for the commission of the offence given the development of the work plan was entirely a matter for Demtech 163 The prosecutor, as to the defence raised by the defendant under s28 of the Act, submitted: · the defendant had a presence "all over the site" through its safety officer Mr Wade (and others) and that it had access to work method statements, job safety analyses, minutes of tool box meetings and to Demtech's personnel. It had every possible means of finding out what was happening at the site and how it was happening. It also had the ability to compel compliance with the OHS Act by giving instructions or by acting under the contract. · that the defendant chose to look in the other direction and take no action does not mean it was not reasonably practicable for it to have prevented the contravention of the Act. · it was not reasonably impracticable for the defendant to insist an implementation of the contractual terms between it and Demtech. The implementation and enforcement of a system by which the defendant made · a site safety officer made no attempt to find out what work was being undertaken on 19 September 2002. Simple steps such as ensuring its contractor (Demtech) had a relevant permit could have been taken by the defendant · requiring the submission of work methods was a reasonably practical step by the defendant · as the defendant itself "specialised" in demolition work its skills placed it in quite the best position to assess the system if only it had bothered to see it and consider it. · the defendant had a presence "all over the site" through its safety officer Mr Wade (and others). It had access to work method statements, job safety analyses, and minutes of tool box meetings and to Demtech's personnel. It had every possible means of finding out what was happening at the site and how it was happening. It also had the ability to compel compliance with the OHS Act by giving instructions or by acting under the contract. · the defendant chose to look in the other direction and take no action. It was reasonably practicable for the defendant to have prevented the contravention of the Act. · The regulatory requirements concerning a licence holder did not render it reasonably impracticable or beyond the defendant's control to ensure the safety of persons working at the site on 19 September 2002. Principles and Consideration of Defence under s28 164 The onus under s28 is carried by the defendant employer. It is a civil onus but a substantial one in the circumstance. 165 In the consideration of a defence by the Court the reasonable foreseeability of the risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. In WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Ltd (No 1) (1999) 101 IR 239 Walton J, Vice President considered the question of reasonable foreseeability (at 259): . . . It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. . . . 166 The scope of reasonable foreseeability was enunciated by the High Court in Mclean v Tedman and Anor (1984) 155 CLR 306 (at 311) as requiring: Tak[ing] account of the possibility of inadvertent or negligent conduct on the part of others. . . . The Court reasoned in relation to an employer's obligation: There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to the risk of foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such risk. 167 However, in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 consideration was given to a statutory defence raised for an offence of strict liability. Viscount Dilhorne said (at 185) said: . . . Here the question is not whether the company is criminally liable and responsible for the act . . . but whether it can escape from that liability by proving that it exercised all due diligence and took all reasonable precautions and that the commission of the offence was due to the act or omission of another . . .. That, in my view, is a very different question from that of a company's criminal responsibility for its servants' acts. and (at 186) . . . That an employer, whether a company or an individual, may reasonably appoint someone to secure that the obligations imposed by the Act are observed cannot be doubted. Only by doing so can an employer who owns and runs a number of shops or a big store hope to secure that the Act is complied with, but the appointment by him of someone to discharge the duties imposed by the Act in no way relieves him from having to show that he has taken all reasonable precautions and has exercised all due diligence if he seeks to establish the statutory defence. He cannot excuse himself if the person appointed fails to do what he is supposed to do unless he can show that he himself has taken such precautions and exercised such diligence. Whether or not he has done so is a question of fact and while it may be that the appointment of a competent person amounts in the circumstances of a particular case to the taking of all reasonable precautions, if he does nothing after making the appointment to see that proper steps are in fact being taken to comply with the Act, it cannot be said that he has exercised all due diligence. . . . The application of "due diligence", however does, not remove the obligation on the defendant to adopt a proactive approach to safety issues which seeks to discover and remedy potential risk to others. It is not a question of whether the defendant did envisage a particular danger, but rather whether it should have ( Kellogg (No 1) . 168 In the set of facts before me the defendant did envisage a particular danger, and put in place a protocol to ensure safe working and thereby ensure a safe premises. Mr Porta, not an employee but a contractor to a subcontractor, on 18 September 2002 made, along with the subcontractor, a determination to induce the collapse the Boiler 6 to in a westerly direction. He faxed a copy of the new proposed methodology to WorkCover at 11.56am on 18 September 2002 which methodology he designed on the same day. It was well known to both Mr Porta and Mr Britton, a director and employee of the subcontractor, that there was an agreement and obligation to inform the defendant of both the methodology, the time and date of the proposed induced collapse. 169 The determination to drop Boiler 6 to the west was taken approximately 24 hours before the collapse occurred. It was within 3-4 hours after the preparation for an induced collapse commenced on 19 September 2002 that Boiler 6 collapsed. The demolition of Boiler 6 was conducted on 19 September 2002 also without a work permit from WorkCover. The conduct of the demolition made the premises unsafe for work. 170 The determination to demolish Boiler 6 on 19 September 2002 was an unexplained, unexpected act by the subcontractor. The subcontractor randomly, without a permit, performed a major demolition without, as it was required to and had agreed to, giving the defendant, a licensee and controller on the premises, any notice. The defendant from the time when the subcontractor determined the direction of, and the methodology for, the demolition of Boiler 6 from about midday on 18 September 2002 to the time of the uncontrolled collapse at approximately 11.30am on 19 September 2002 had no reasonably practical way of knowing the demolition was to take place. 171 The court cannot be required to speculate on what the defendant would have done had it been given the proposed methodology. 172 A protocol had been put in place by the defendant to assure it knew how and when the demolition of Boiler 6 was to occur on the work site over which it had control. The prosecution has asserted the defendant was "all over the site" and it turned a "blind eye" to this demolition. There is no evidence to support this proposition. But even if I accept this proposition there is no evidence that they knew on 19 September 2002, the date of the charge, that the demolition was to be conducted nor how it was to be conducted given they were on that date not in the site and were not informed or shown any documents that had been prepared for the work the day before. Mr Wade gave an acceptable reason for not being on the site in the morning of 19 September 2002. The subcontractor had every opportunity to notify the defendant of its act on 19 September 2002. 173 In the circumstance I find the defendant could not have reasonably foreseen the subcontractor would undertake the demolition works on Boiler 6 on the morning of 19 September 2002 without first obtaining a permit from WorkCover; without informing the defendant's officers of the proposed demolition; without giving copies to the defendant, as agreed, to its proposed methodology; and would perform a demolition without any secondary support to the structure and using a methodology without any risk assessment of the task. 174 While a breach of a paper protocol is not sufficient to establish a defence under the Act, I find the defendant acted with all due diligence and was to be assured the protocol would be observed. I find it was not foreseeable that the subcontractor, whether it was under time constraints or through sheer negligence, would act, without a permit from WorkCover, and therefore without an approved work method and without following its agreed procedures, to conduct a major demolition on 19 September 2002. 175 The charge is specifically directed to the defendant's acts on a particular day being 19 September 2002. Section 28(a) 176 The first limb of s 28(a) is relied upon by the defendant and its effect was considered in WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 where Walton J, Vice-President, stated relevantly to this circumstance: [88] . . .there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 177 The defendant had recognised some problems with the work methods but the specific danger, collapsing the Boiler 6 with no approved methodology and no review by Mr Moor could not have been foreseeable. There was little cost and no difficulty or trouble for the defendant to ensure it could review a work method. However the ad hoc behaviour of the subcontractor was not predictable. Whether the defendant could succeed on its s 28(a) defence is arguable. Section 28(b) 178 Section 28(b) of the Act, however, also allows the defendant an opportunity to establish a defence if the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impractical for the defendant to make provision. 179 It has been held in Cleary Bros it is not reasonably practicable to take precautions against a danger which could not have been known to have been in existence, or generally with respect to the happening of an event that is not reasonably foreseeable. (see Walton J, Vice President in Kellogg (No 1)). 180 The circumstances on 19 September 2002 revealed a subcontractor performed a demolition on a structure weighing 300 tonnes and 31 metres in height based on faulty calculations as to the load bearing strength of the structure's columns; by implementing a system without bracing or a secondary support for the demolition of a structure by conducting a demolition without a permit from WorkCover Authority; implementing a work method which did not contain a secondary support for the structure and without a risk assessment and failing to inform with the defendant in order to comply with the protocol. 181 I find it was not reasonably foreseeable the subcontractor would conduct a demolition on 19 September 2002 in such a circumstance. The defendant on 19 September 2002 did not know, nor could it have known, of the risk to safety on premises over which it had control on 19 September 2002. As Hill J said in WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 (at 381), commented in relation to s53 a similar provision to s28 of the Act: . . . If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. . . . 182 The subcontractor performed on 19 September 2002 the demolition in breach of the Act, its Regulations, in defiance of the Australian Standard 2601 and without complying with an agreed protocol. The procedures the subcontractor adopted led to an unexpected, uncontrolled collapse. 183 I find the defendant on 19 September 2002 had used all due diligence to ensure it would know of the time for, and review the proposed methodology of, the collapse of Boiler 6. The defendant had no knowledge of the acts of the subcontractor despite its due diligence. I find it was not reasonably foreseeable that the subcontractor would conduct the demolition in such a circumstance. It was therefore not practicable for the defendant to make provision against it. I find therefore the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impractical for it to make provision on 19 September 2002. 184 I find the defence under s28(b) is established. Orders 1. In the application of s28 of the Act, I find the defence is established. 2. The charge in Matter No IRC5608 of 2004 is dismissed. 3. The question of costs is reserved. Comment 185 In an examination of the circumstance surrounding this breach of the Act the procedures adopted by the WorkCover Authority in issuing permits under Clause 331 of the Regulations for demolition has been given rigorous examination. 186 WorkCover, who had attended on the work site before the collapse of the Boiler 6, took for granted a qualified engineer's calculations were accurate. It did not require the calculations to be supplied nor did it check the calculations on which the methodology for a major demolition was based. Those calculations were faulty. 187 WorkCover approved a work method which did not comply with the Regulations under the Act or the relevant Australian Standard. It failed to ensure there was a risk assessment of the proposed work method and failed to ensure the methodology contained a secondary support for the Boiler. There must be a rigorous application of the Regulations for proposed demolition methodologies. The Regulations required evidentiary materials for both a secondary support structure and risk assessment, be submitted to WorkCover. 188 A WorkCover officer revealed there is access to engineering expertise but there was a presumption a qualified registered engineer would not submit a faulty work method. Consideration must be given to the need for an expert within WorkCover to review proposed methodologies and the calculations on which such methodologies are based to ensure accuracy. 189 Any demolition company who proceeds to demolish a structure without a WorkCover Permit should face severe penalty under the Act, be it in the nature of a fine or disqualification. 190 WorkCover must conduct a review of its procedures for the issuing of WorkCover Permits for demolition. AMENDMENTS HISTORY: 15/09/2006 - Slip rule - Paragraph(s) 158 removed and replacedOrder 1 of 4 removed 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.