Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nikolovski v Michael John McCrudden [2011] NSWIRComm 45 Hearing dates: 14 February 2011; 15 February 2011; 16 February 2011 Decision date: 12 April 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: The defendants are guilty of a breach of s 10(1) of the Occupational Health and Safety Act as particularised by the Amended Application for Order. The parties are to contact my Associate with details of their availability for the purposes of listing the sentencing hearing. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 10(1), s 26 - industrial building project - roofing work sub-contracted - requirement to safety mesh roof before laying roofing sheets not followed - effective control of work by defendant - failure to implement and maintain safe system of work - failure to provide fall protection - failure to conduct adequate risk assessment - failure to adequately supervise - failure to induct roofing workers - roofing sub-contractor falls from roof and suffers fatal injury - defendant alleges builder responsible for erection of scaffolding and handrails to protect roofing sub-contactor - defendant alleges builder paid cash to roofing sub-contractor to ignore safety rules and to work as directed by builder - allegation of effective control passing to builder because of cash payments - lack of evidence to support defendant's allegations - defendants' non-delegable responsibility under Act to ensure safety of sub-contractors - responsibility not removed because of sub-contracting arrangements - offence proved Legislation Cited: Occupational Health and Safety Act 2000 s 10(1) s 26(1) Cases Cited: Inspector Chadwick v Denbur Constructions Pty Ltd [2004] NSWIRComm 195 at [18] McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464 Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 43 WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (No 2) (2003) 121 IR 283 at [42] Category: Principal judgment Parties: Inspector Nikolovski (Prosecutor) Michael John McCrudden (Defendant in 09/1169) CJM Roof Services Pty Ltd (Defendant in 09/1171) Representation: Mr R Reitano of counsel (Prosecutor) Mr J Pearce of counsel (Defendants) Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) Adams and Partners Lawyers (Defendants) File Number(s): IRC 1169 and IRC 1171 of 2009 Judgment 1In late December 2007 and early January 2008, industrial units were being constructed at a site in Somers Street, Lawson in the State of New South Wales. The construction of these units was being undertaken by Construction Management Services Pty Ltd ("CMS") whose sole director was Mr John Tanner. During much of this period, CMS employed a foreman at the site but a good deal of the work was sub-contracted. One such sub-contact was entered into with CJM Roof Services Pty Ltd ("CJM") whose working director was Mr Michael McCrudden. CJM was wholly owned by Mr McCrudden. CJM was invited to quote and its quote was ultimately accepted to install metal roofing to the structure together with various metal facias, gutters, downpipes, cappings as well as safety wire. 2CJM carried out its work at the Lawson site through sub-contractors. During this period, the only employee of CJM was Mr McCrudden's son, with all other work being performed through sub-contractors. The work of the company was roof plumbing. Mr Gerry Murphy was a sub-contractor who had worked in that capacity for CJM over a number of years on a number of sites. Ultimately, CJM sub-contracted the roofing work at the Lawson site to Mr Murphy. It was in this capacity that Mr Murphy was present on the site on Saturday, 5 January 2008. Mr Murphy was working alone either on 5 or 6 January 2008 when he apparently fell from the roof structure and was fatally injured. 3As a result of investigations carried out by the WorkCover Authority, Inspector Nikolovski commenced proceedings in this Court for alleged breaches of the Occupational Health and Safety Act 2000. This judgment deals with charges against CJM, alleging a breach of s 10(1) of the Act and further proceedings against Mr McCrudden alleging a breach of s 10(1) of the Act by virtue of the operation of s 26(1). 4Section 10 of the Act provides: 10 Duties of controllers of work premises, plant or substances (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). 5In each case, the particulars provided were identical except to the extent necessary to deal with the difference between the entities involved. It is therefore sufficient to set out the Amended Application for Order relating to CJM as follows: FAILED TO Ensure that the premises were safe and without risks to health to people who were not CJM's employees, in particular, Gerard Murphy, while they were at the premises, contrary to Section 10(1) of the Act. The particulars of the charge are that: (a) The "work" referred to in these particulars refers to the work of installing safety mesh and roofing sheets at the premises; (b) The "risk" referred to in these particulars and in the charge is the risk of Mr Murphy falling from height to the ground; (c) CJM did not ensure that a falls arrest device, mobile scaffolding, elevated work platforms or similar equipment was provided to Mr Murphy to ensure the premises were safe and without risk to health to Mr Murphy; (d) CJM did not ensure that safety mesh was installed beneath the roof area at the premises to ensure the premises were safe and without risk to health to Mr Murphy; (e) CJM did not ensure that guard rails were installed around the edge of the roof area at the premises to ensure the premises were safe and without risk to Mr Murphy; (f) CJM did not ensure that a falls arrest device such as a harness or similar device was used by Mr Murphy while he was at height at the premises so as to ensure the premises were safe and without risk to Mr Murphy; (g) CJM did not ensure that Mr Murphy was provided with an induction to the site at which CJM or someone on its behalf explained to Mr Murphy that he was not permitted to be at height unless safety mesh was in place or he used a harness or similar falls arrest device or worked from an elevated work platform or scaffold so as to ensure the premises were safe and without risk to Mr Murphy; (h) CJM did not ensure that a risk assessment was conducted that identified the risk at the premises and the means by which it could be controlled, such as using a harness or falls arrest device or working from an elevated work platform or scaffold or having safety mesh in place so as to ensure the premises were safe and without risk to Mr Murphy. As a result of the acts and omissions of CJM, Mr Murphy was exposed to the risk at the premises. Mr Murphy's death was a manifestation of that risk. 6As the case developed it became clear that there was little disagreement about the unsafe manner in which the roof work was performed on site. The major issues became: who had responsibility for installing handrails and scaffolding around the site for the purposes of the roofing work? and, whether the safety system laid down by CJM in its Safe Work Method Statement ("SWMS") had been effectively set aside by an arrangement between Mr Tanner and Mr Murphy whereby the payment of a cash amount of either $1,000 or $2,000 was offered by Mr Tanner and accepted by Mr Murphy on the basis that Mr Tanner would exercise control over the way in which the roofing work was performed by Mr Murphy and that Mr Tanner's directions in that regard were to circumvent and override the safe working system of CJM at the site. In essence, the defendants alleged that their SWMS, if properly applied at the site, would not have resulted in any risk to Mr Murphy: CJM had effectively lost control of Mr Murphy's work actions because of a bribe offered by Mr Tanner in order to have Mr Murphy perform the work quickly and unsafely and not in accordance with any requirements laid down for the work by CJM. THE EVIDENCE 7There was no great conflict in the evidence as to the actual system of work for the roofers at the site. Mr Murphy was assisted from time-to-time by his two sons (Justin and Tony Murphy) and Mr Jim Azzopardi. It appears that Mr Gerard Murphy had a continuous association and presence at the site with the other three men acting as labourers and attending from time-to-time. None of the three labourers were present at the site on 5 or 6 January 2008 when the fatal accident took place. Mr Murphy had attended the site sometime before starting work in order to measure the work for the purposes of his quote. 8Employees on the site gave evidence that, during the time that Mr Murphy was working on the roof assisted by the labourers, there was no induction provided although Mr Tanner stated that he would conduct a site induction for Mr Murphy and his labourers once they provided their green cards. This did not occur. The work was being performed on the roof trusses with Mr Murphy and his labourers using roof sheeting on which to walk and moving that sheeting as the work progressed. Mr Murphy and the labourers worked while standing on unsecured sheeting and also jumped between trusses. The distance from the roof trusses to the concrete floor of the building was between approximately five and seven metres. The roof was not fitted in its entirety with safety mesh before the insulation and roofing sheets were secured but was applied at a width at a time as the job progressed, apparently because there was no scaffolding or cherry picker available to permit the entire roof to be safety meshed before the other roofing work commenced. No harnesses were used by Mr Murphy or the labourers while working on the roof. There was nothing stopping or preventing an employee from falling off the edge of the building. Mr Tony Murphy had not participated in any risk assessment with his father while working on the site. There were no handrails or scaffolding around the edge of the building. There was nothing to prevent Mr Murphy and his labourers from falling from the roof while performing their work. 9The system of work that should have been adopted at this Lawson site was addressed by Mr McCrudden both in a statement tendered in evidence and in the course of oral evidence. Mr McCrudden had not been personally able to visit the site in order to assess the appropriate safety standards because the job, although arranged for some period, was called on very short notice by Mr Tanner for work to commence on the roof on 21 December 2007. Mr McCrudden was personally looking after this site but took his annual holidays approximately at that time and was unavailable until after 5 January 2008. 10CJM had used Mr Murphy as a sub-contractor for some years and Mr McCrudden was aware that Mr Murphy had been a contractor for many years prior to that and was regarded as a very experienced roofer who had been working in the industry for over 25 years. 11The defendant company's safety approach was to provide sub-contractors with a generic Site Documentation Pack. The Pack contained the safety management plan and SWMS. The document was designed so that it could be modified for use at particular sites. In September and October 2007, the documentation contained within the Pack had been modified and updated and the Pack Documentation was finalised by approximately mid-October 2007. This Pack contained: a safety management plan; two SWMS covering fascia, gutter and downpipes and metal roof plumbing; a register of equipment; appropriate safety footwear and a WorkCover position paper on working off step ladders; a letter of commitment; a copy of the most recent toolbox safety meeting reports; details of license numbers and certificates of currency; and, risk assessment forms. Each sub-contractor working for the defendant company carried the Documentation Pack in a folder provided by the defendant. 12According to Mr McCrudden, the following matters were a pre-condition to commencing work on a site: * the principal contractor to provide and make available to the sub-contractor the workplace management plan; * the subcontractor to show to the principal contractor the Documentation Pack so that the principal contractor could take copies of the safe work method statement, details of license numbers, certificates of currency and other documents that he chose; * the sub-contractor to complete induction training as provided in the workplace management plan; * the sub-contractor to undertake an assessment of the risk associated with the workplace and complete the sub-contractor risk assessment form and provide a copy to the principal contractor. 13Mr McCrudden had explained the latest work method statements to Mr Murphy in approximately mid-October 2007. After going through the documents with him, Mr Murphy signed an acknowledgement. 14Mr McCrudden explained the way in which the generic Pack operated. He had worked for Mr Tanner on three other sites. At each of those sites the defendant company had provided Mr Tanner with a copy of the work method statement and a copy of the risk assessment for the job. On those occasions the risk assessment documents were returned and signed by the relevant sub-contractor that the defendant company had provided for that work. The risk assessment usually came with the first invoices for the work that had been performed. From the outset of working with Mr Tanner, Mr McCrudden insisted that the job be scaffolded by Mr Tanner's company, indicating that if it was not scaffolded by the builder, Mr McCrudden would not quote. On each occasion, Mr Tanner apparently agreed that the job would be scaffolded by his company. 15When the defendant company first contracted with Mr Tanner's company, Mr McCrudden had a "reasonably" detailed discussion with Mr Tanner about the then current version of the work method statement and the risk assessment analysis. He told Mr Tanner that all sub-contractors had a work method statement and a risk assessment analysis with them when they arrived at a site and that, prior to starting the job, they would carry out a risk assessment. The sub-contractors would give Mr Tanner's site manager a signed copy and the sub-contractors, in due course, would return a signed copy of the risk assessment analysis to Mr McCrudden. Mr McCrudden informed Mr Tanner that he would rely on the risk assessment analysis in order to be satisfied that the work was to be carried out in accordance with the defendant company's work method statement and risk analysis assessment. Mr Tanner was to contact Mr McCrudden if there were any problems. Mr McCrudden had this arrangement in place with Mr Tanner when he secured the roofing work at the Lawson site. 16The CJM "Health Safety and Environment - Site Documentation Pack" was in evidence. That Pack contained a generic SWMS for the work of insulation, metal roofing and trims. That document bore the date 15 October 2007 and had been prepared by Mr McCrudden. The document carried a note in the following terms: "Sign-off to be provided at toolbox talk." 17Under the CJM SWMS, the job was divided by reference to numbered items, the relevant job step, identification of the potential hazard, the controls to be adopted and the identification of the person who would ensure that the controls were implemented. Item 6 of the SWMS referred to scaffolding and identified the potential hazard as "fall, trips, falling objects, collapse". The control was to undertake a risk assessment regarding "kickboards etc". The other controls listed were: ensure scaffolding has been certified for metal roofing work; ensure ladders are available for access and are secured correctly; scaffolding to be clean, level and uncluttered; scaffold not to be used if not safe - in which case contact supervisor. As a generic document, the person who was to ensure this happened was left blank and was to be completed on site. Item 9 dealt with the installation of safety wire to specification and was said to be a reference to safety mesh for the roof. The potential hazard identified was manual handling, large rolls, trips, falls, lacerations and contusions. The controls to be adopted were: wear appropriate PPE; refer to company policy on manual handling; scaffold to be clean, level and uncluttered; use correct fixing techniques. Step 10 dealt with the task of installation to specifications and identified the same potential hazards and the same controls as for Step 9 in the installation of safety wire. Step 11 involved progressively laying the sheets into position. Step 12 dealt with securing each sheet to the battons. 18While Mr McCrudden was waiting to hear from Mr Tanner about the commencement of the Lawson site job, the defendant company held a toolbox meeting on 3 December 2007. At this meeting the SWMS for the defendant company was discussed in detail with the sub-contractors who attended. Each person attending the meeting was given a copy of the site Documentation Pack and the contents of the pack were "thoroughly" discussed. Mr Gerry Murphy was present at this meeting that lasted between two and three and a half hours. 19Other safety matters addressed at the meeting were dealt with by Mr McCrudden. Of relevance to the present matters, Mr McCrudden stated that he led a discussion on risk assessment forms and the way in which each builder had different rules. He told the meeting that the sub-contractors had to complete the risk assessment before they commenced work and must sign the document before they started work. If there was any risk they were to walk away from the job and to contact Mr McCrudden and the matter would then be taken up. Mr McCrudden said he stressed to them that they were not to commence work if there was any risk. It came as a surprise to Mr McCrudden when, on 7 January 2008, he attended the site after the accident and Mr Tanner had asked for copies of the CJM site documentation pack. Mr McCrudden told Mr Tanner that he should have had copies of those documents from Mr Gerry Murphy and Mr Tanner replied that he not had the time to induct him. 20In relation to the charges as particularised, the effect of Mr McCrudden's evidence was that, while he had taken steps to have sub-contractors follow his generic SWMS and to conduct a risk assessment on the Lawson site, he did not attend prior to the accident nor did anybody else from the defendant company attend the site to ensure that the safety system adopted by the defendant company was in fact being adhered to on the site. The result was that Mr McCrudden and the defendant company, CJM, were unaware whether Mr Gerry Murphy and his labourers had been inducted to the site and were unaware whether they were using harnesses when working on the roof of the building. Similarly, they were unaware whether hand railing and scaffolding had been erected although Mr McCrudden was firmly of the view that this would be the obligation of Mr Tanner's company, CMS. Mr McCrudden was also unaware whether there were any mobile work platforms or other safety devices available at the site for use by the sub-contracting team led by Mr Murphy. In addition, the CMS Purchase Order directed to CJM carried the following notation: "Work Method Statement to be issued prior to commencing on site." CJM made no enquiries as to whether this direction had been complied with by Mr Murphy, according to its usual practice. 21While this catalogue of acts or omissions is established on the evidence it was submitted that, whether or not the charge in each case was made out needed to be considered in the light of the evidence and submissions concerning, firstly, whose obligation it was to supply the handrails and scaffolding for the roofers, and secondly, whether the control exercised by CJM was effectively terminated by an agreement between Mr Gerry Murphy and Mr Tanner for the payment of $1,000 or $2,000 whereby they agreed that Mr Murphy would no longer work in accordance with the instructions of CJM but would perform work under the control and direction of Mr Tanner. That alleged agreement included an agreement whereby Mr Murphy would work on the roof without the protection of handrails and/or scaffolding or other safety equipment such as a harness. 22The first matter to be considered, therefore, is an examination of the evidence as to the entity having the responsibility for providing the handrails and scaffolding and any other protective equipment for use by Mr Murphy and his roofing team at the Lawson site. Mr McCrudden's evidence was that, in late August 2007, Mr Tanner contacted him concerning the Lawson site. Mr McCrudden's company had worked at three previous sites erecting home units for Mr Tanner's company, CMS. That work involved carrying out fascia and guttering and during discussions Mr McCrudden made it clear to Mr Tanner that, unless scaffolding was to be provided by Mr Tanner's company, he would not quote for the job. At that stage he was told that Mr Tanner's company would supply the scaffolding. After that conversation, Mr McCrudden experienced no difficulties with performing work for CMS and certainly none in relation to compliance with occupational health and safety standards. At each of the jobs Mr McCrudden's company provided Mr Tanner with copies of the Work Method Statement and the risk assessment for that work. On every occasion, the risk assessment document was signed and returned by the relevant sub-contractor. Mr McCrudden had visited all the previous three sites on which his company had worked for Mr Tanner's company and had seen the work in progress. He had observed that there was scaffolding in place as required and as far as he was aware, that had been put in place by CMS. 23When Mr McCrudden spoke to Mr Tanner about the Lawson site he had no further discussion about the question of scaffolding because, from the beginning of the first job, he had made it clear to Mr Tanner that CJM required Mr Tanner's company to provide scaffolding on the worksite and that CJM would not work without scaffolding. He assumed that Mr Tanner would let him know if some other arrangement was to be made. 24On 3 September 2007, Mr McCrudden prepared an estimate for the Lawson site work and sent it to CMS. Mr Tanner had provided him with a copy of the elevations and the roof plan for the site. The estimate document set out in detail the description of the work to be performed, the quantities required, the charge rate, the appropriate tax and then provided a total figure. The total for this estimate was slightly more than $80,0000. Under the column describing the work a number of products were to be supplied, including the supply and installation of metal fascia and a quad guttering system in the quantity of 66 metres, downpipes and cappings as well as the supply and installation of metal trim deck 4.2 roofing-zinc in a quantity of 1.215m. There was also a description in the following terms - "e/o roof protection handrail" indicating a quantity of 66 metres at a rate of $15.50. The estimate also carried the following note: (a) scaffold/handrail requirements over two metres to be supplied by builder to WorkCover standards. (b) crane hire by builder if required. 25In his oral evidence, Mr McCrudden stated that the estimate document dated 3 September 2007 was used to quote for jobs. Mr McCrudden's attention was drawn to the entry in the words "e/o roof protection handrail" and was asked to explain that reference. Mr McCrudden replied that, with this job, CJM had quoted also for the fascia and the guttering and the guttering had been included in the total of 66 linear metres. The handrail protection was for that purpose and in order for the fascia and the guttering installation inside the roof. That handrail protection was to be installed before the commencement of the roof sheets for the fascia to help the fascia and gutter installer. The installation was to occur between each of the units. After the site visit it became clear that the fascia could not be attached because there were no outriggers. Mr McCrudden was of the view that Mr Murphy had talked to someone in order the delete the gutters from that particular section and instead, overlapping of sheets was used. The overlapping system was used in place of gutters. Under the original proposal, the installation of the fascia and gutter would have occurred before work began on the roof. Because the nature of the work had changed it was no longer necessary to provide these handrails. 26In cross-examination it was pointed out to Mr McCrudden that, in his statement, he had made no reference and had given no explanation of the entry "e/o roof protection handrail." Mr McCrudden stated that entry was not relevant to the roofing and that the "extra over handrails" were being put on the roof for fascia and guttering installation alone. They were being installed to prevent people from falling: because the fascia was not being installed he had no obligation to supply the handrails associated with that work. Mr Tanner knew of this development and he was not charged for that element appearing in the estimate document. In later evidence, it was clarified that Mr Murphy had nothing to do with the fascia and guttering installation as that was covered by a different trade. In view of that situation, he did not speak to Mr Murphy about the extra over-protection for the handrails in relation to that work. The only conversation Mr McCrudden had with Mr Murphy about handrails concerned the roofing work he was to perform and the fact that a difficulty had arisen about installing handrails. 27Mr McCrudden stated that the note concerning scaffolding and handrails over two metres being supplied by the builder to WorkCover standards appearing in the estimate document was to cover all forms of fall protection involving work over two metres in height and therefore covered the provision of a scissor lift, a mobile scaffold or a galvanised work platform. In essence, they were all part of scaffolding. Mr McCrudden had been told by Mr Tanner that a mobile scaffold would be provided. 28Also placed into evidence were two records of interview with Mr McCrudden conducted by WorkCover Inspectors. Mr McCrudden told the Inspectors that his company did not install scaffolding but they knew their requirements for each job: but scaffolding, if required on a particular job, would be for the perimeter of that job. The responsibility for installing that scaffolding was always with the main builder because other trades used the scaffolding. The process for roof layers was to safety mesh the entire roof before starting work on laying the roofing sheets. 29Mr McCrudden said that the estimate document and the entry regarding "e/o roof protection handrail" was not provided because the system used by his company could not go on a concrete wall. That problem was notified to Mr Murphy who was to talk to Mr Tanner, as the onsite supervisor at that stage, in order to make some other arrangements. He noted that if scaffold was required on the job that was over a certain height it was to be provided by the builder. Mr McCrudden did not think that Mr Tanner had access to handrails and that was why CJM was asked to quote in relation to that matter. 30In relation to scaffolding, CJM's requirement was that it was to be supplied by the builder because it would be used by other trades. It was therefore the responsibility of CMS and that of Mr Tanner, as the site supervisor, to have the scaffolding installed. When asked how he ensured that the scaffolding was provided as per the contract purchase order between CMS and CJM, Mr McCrudden said that he did not do so - but CJM's estimate clearly marked that it was up to the builder to provide scaffolding over a certain height as required and therefore it was the responsibility of CMS. 31When asked as a director of CJM what system Mr McCrudden had in place to ensure that persons installing roofing materials or working at height did so safely and without risk to health, he replied that any work above two metres required scaffolding. With roofing work "they have a handrails system around it." This particular site had "para-brick walls" and as far as he was aware, the only requirement his company needed there was a handrail. Any other scaffolding requirements needed would be provided by the builder. 32Mr Tanner's oral evidence was that he had a discussion with Mr McCrudden whereby CJM was to provide the guardrail around the roof line and that was included in his quote. Mr Tanner's company, CMS, was to provide scaffolding on the eastern unit towards the end of unit 8 because there was a gutter to go across that end and scaffolding associated with that work was to be provided by CMS. Mr Tanner's attention was drawn to the estimate document and the note that stated that scaffold/hand rail requirements over two metres were to be supplied by the builder to WorkCover standards. He agreed that CMS was the builder and while his company was to provide the scaffolding, he was not to provide the handrails. His company was to provide scaffolding to the eastern end of the unit because a box gutter was to be installed. The quote by CJM had the provision for handrails and there were handrails on the scaffolding. A platform was not simply erected without a hand rail around it and scaffolding had a hand rail. 33Mr Tanner believed that the estimate was clear that the hand rail for which he was responsible was for the scaffolding at the eastern end of unit 8. Attention was then drawn to the reference to "scaffold/hand rail" requirements over two metres to be supplied by the builder: Mr Tanner stated that was the scaffold he had earlier referred to that was to go around the eastern end of unit 8 where the large gutter was to be installed. This item, also appearing in the sub-contractor purchase order provided by CMS, was not a reference to a hand rail going around the side of the building. He asserted that the supply of handrails quoted for by CJM was for handrails around the periphery of the building but not the eastern end. The handrails referred to there were handrails for scaffolding as scaffolding had to have a hand rail. 34Mr Tanner was then asked to look at his record of interview with WorkCover Inspectors where he was shown the CJM estimate. He agreed that, at the time of the accident, the handrails had not been installed. His attention was then directed to the note that said scaffold/hand rail requirement over two metres were to be supplied by the builder to WorkCover standard. Mr Tanner said, in relation to that provision, that the method used by the roofers with the installation of the safety wire was that, as a rule, they did not use scaffolding from inside the building to stand on but they walked on the roof sheets. There was no scaffolding erected at that stage. 35When asked whether CMS was to provide the scaffolding, Mr Tanner replied that the scaffolding was to be supplied for the erection of the gutters at the eastern end of the building and those gutters were not to be installed at that time. He was then shown the CMS purchase order and the reference to scaffold/hand rail requirements over two metres being supplied by the builder. Mr Tanner said that he item referring to the hand rail was a mistake by the office but there was no scaffolding supplied at the time of the fatal accident. In his oral evidence Mr Tanner accepted that his reference in that interview to the "office" was a reference to his office. 36In his oral evidence Mr Tanner confirmed that the reference to hand rail in the CMS purchase order was a mistake. Mr Tanner stated that it had to be understood that, in the industry, a roof protection hand rail referred to hand rail around the periphery of the roof level. The reference in the CJM estimate to "e/o roof protection hand rail" was an extra cost and referred to a hand rail around the periphery of the building. The quantity referred to in the estimate was 66 metres, probably lineal metres. He agreed, however, that 66 lineal metres would not go right around the building because, from memory, he believed it was approximately 64 metres or 67 metres long only on one side. 37Later in his oral evidence, Mr Tanner said that he had a conversation with Mr Murphy about the absence of handrails on the walls of the building and had told him the handrails were to be supplied by CJM. He denied telling Mr Murphy that there was a problem with fixing the handrails because the walls were concrete and there was a difficulty about putting holes in the concrete walls. He said his company did not try to install handrails around the building because that was the responsibility of CJM. He understood that CJM were obtaining or organising others to install the handrails. He thought some companies had come on site to quote for that purpose but had left and did not return. This happened at approximately the same time that Mr Murphy commenced on the site. He denied having a conversation with Mr Murphy where Mr Murphy stated that he would not commence the work until the handrails were installed. He pointed out that, in fact, Mr Murphy had started the work without the handrails. 38Mr Tanner could not remember a conversation with Mr Murphy when Mr Murphy stated that because his sons were working with him he did not require handrails and in any event, he did not need handrails at that time. He did not know whether this statement was made in circumstances where Mr Murphy was climbing on the roof and where Mr Tanner had confronted him and asked him about the handrails. Mr Tanner did not remember Mr Murphy making that statement. His attention was then drawn to answers he had given to the WorkCover Inspectors in a record of interview. In answer to one question, Mr Tanner was shown in the record of interview that the sub-contractors of CJM had commenced working on the roof and he said to them that there were no handrails erected and Mr Murphy said that he had his sons working with him and he did not require handrails at that time. Mr Tanner accepted that he had given that answer in the interview but that was a long time ago. He accepted that the statement given to the Inspectors shortly after the accident was correct. 39Later in his record of interview Mr Tanner told the Inspectors that the requirement for working at heights on the site, especially on the roof, required a hand rail to be erected around the periphery of the building. This was "a requirement of the sub-contractor roofer, CJM", but when Mr Tanner questioned Mr Murphy he said he did not need the handrails at that time. Mr Tanner accepted that answer was correct and also accepted that there was an inconsistency with his oral evidence. 40In the interview with the WorkCover Inspectors, Mr Tanner was asked how he ensured that the scaffolding/handrails were provided as per the CMS and CJM sub-contract purchase order. Mr Tanner answered that he confronted Mr Murphy when he was climbing on the roof and at that time there were three people working. He asked Mr Murphy about the handrails and Mr Murphy said that they did not want the handrails up at that stage and so they were not erected. The scaffolding that CMS was to provide at that time was scaffolding for the guttering and Mr Murphy and his team were not putting up the guttering and so the other scaffolding was not erected. Mr Tanner said there was a mobile scaffold that the company owned and that was on the site to be erected when required by them. 41Again, in his oral evidence, Mr Tanner agreed that there was an inconsistency between his oral evidence and the answers he provided to the WorkCover Inspectors. Mr Tanner accepted that, from 21 December 2007 to 5 January 2008, he had allowed Mr Murphy to work on the roof without handrails being in place. Mr Tanner understood that working on the roof without handrails was contrary to the requirements of the work method statements of CJM that they were to provide the handrails. Mr Tanner said that he did request the handrails to be erected but that was not recorded in the record of interview because he was not asked about that matter. 42In the record of interview with the WorkCover Inspectors, Mr Tanner was directed to the estimate supplied by CJM and the purchase order prepared by CMS in similar terms. In both documents it was stated that the hand rail was to be provided by the builder. Mr Tanner replied that was a typographical error on the order - his wife typed all the orders but in the body of the order there was a quote and it had been spelt out that the hand rail was to be provided by the roofer, CJM. The estimate already dealt with the provision of protection handrails and that was to be supplied by CJM and it was a mistake therefore to have mentioned the handrails in the notes where it referred to "scaffold/hand rail" requirements over two metres to be supplied by the builder. That second reference should not have been there. It was included as a mistake because it was already covered by the earlier provision whereby CJM would provide roof protection handrails. 43Next it is necessary to consider the evidence in relation to the alleged bribe said to be offered to Mr Murphy by Mr Tanner. The totality of the direct evidence in relation to this matter arose in the cross-examination of Mr Tanner in the present proceedings. There was also a brief reference to the circumstances in which money was paid to Mr Murphy during the course of Mr Tanner's interview with WorkCover Inspectors. In that interview, Mr Tanner said that on the Thursday of the week that Mr Murphy commenced at the site "workmen" came to him and said that Mr Murphy could not buy lunch because he did not have any money. The workers said that Mr Murphy could not work without having something to eat so Mr Tanner called in Mr Murphy and asked him what was his problem. Mr Murphy told him that he did not have any money and he had not been paid a cent on this job: because it was Christmas and Mr Tanner knew that Mr McCrudden was going away on leave, he asked Mr Murphy how much he needed. A short time later Mr Murphy returned and asked for $1,000 to help him out. 44As he could not allow the man to go without food, Mr Tanner transferred $1,000 by email into his account so he could have access to the money by Friday. Mr Tanner said he was not concerned about the $1,000 because he though he would simply adjust it against the McCrudden/CJM sub-contract. The next morning Mr Murphy asked for the $1,000 to be paid in cash into his account because if it went into his account via email he could not access the money until the following Monday. Mr Tanner then made arrangements for the money to be paid in cash into Mr Murphy's account. 45In oral evidence, Mr Tanner said that he was sitting in the office having morning tea with Mr Flanagan and Mr Bonfield when Mr Flanagan told him that Mr Murphy did not have any money for food. Mr Flanagan then told him that he could not buy morning tea so Mr Tanner asked Mr Flanagan to arrange for Mr Murphy to see him. He believed this occurred on the Thursday - this appears to be a reference to Thursday, 20 December 2007. He asked Mr Murphy what was his problem and Mr Murphy said he had performed a lot of work, had put on part of the roof and he had not been paid any money for Christmas. He had submitted a claim but CJM had not paid him. Mr Tanner asked him how much he required and Mr Murphy said $1,000 should do because the weekend was approaching. 46Mr Tanner arranged for his wife to transfer money to Mr Murphy with the view that he would adjust the account when Mr McCrudden returned from holidays. He told his wife that Mr Murphy did not have any money to buy food, he could not travel because he had lost his driver's licence and his sons were not coming to work everyday. He then informed Mr Murphy that a cheque would be paid into his account as he had given them an account number but Mr Murphy returned and asked for the money to be paid in cash because he would be unable to cash the cheque until Monday. Mr Tanner then spoke of the cheque being "paid in" on the Friday but he understood that it could not be made available until Monday and so Mr Tanner paid him in cash. Mr Tanner agreed that on Friday, 21 December 2007 he paid Mr Murphy in cash. 47It was then put to Mr Tanner that he gave that money to Mr Murphy to stop him objecting to working without handrails. Mr Tanner denied that was so and said he paid the money because Mr Murphy did not have any money to buy his lunch, morning tea or pay for his train ticket. It was then put to Mr Tanner that the money was paid to Mr Murphy because Mr Tanner wanted him to build unit 7 and unit 8 and cover them before he finished putting the safety mesh across the whole roof but Mr Tanner denied that. It was further put that Mr Tanner required roofing on those two units as quickly as possible and that is why he approached Mr McCrudden to have the roofing material delivered on 21 December 2007. Mr Tanner denied that he ever directed what units were to be covered first. 48Later, it was put to Mr Tanner that he felt guilty because he had made an arrangement with Mr Murphy that he would work without the handrails but that was rejected by Mr Tanner. He rejected the suggestion that the money was paid to Mr Murphy for that purpose. Mr Tanner denied that there was a payment of more than $1,000. The money was offered on the Thursday and paid in cash on the Friday. Mr Tanner denied that he paid Mr Murphy another $1,000 on 4 January 2008. Mr Murphy had wanted payment so he would have money over the weekend. Mr Murphy's dire circumstances had been raised with him by Mr Flanagan who asked Mr Tanner if he could do something about it. Mr Tanner was told, after Mr McCrudden returned from leave, that Mr McCrudden had paid Mr Murphy $4,000 shortly before Christmas. 49It was put to Mr Tanner that he had also told Mr Bonfield that he had paid the money to Mr Murphy to help him through Christmas but Mr Tanner did not remember that conversation. Mr Bonfield was likely to know about the arrangement because he was present in the site office when the discussion took place with Mr Murphy about his circumstances. It was again put to Mr Tanner that he paid the money to Mr Murphy so that firstly, he would work without handrails and secondly, to ensure that units 7 and unit 8 would be the first to have secured roofs. Mr Tanner denied those propositions. It was also put to Mr Tanner that his company's bank statement showed that a cheque for $1,000 was cashed on 21 December 2007. Mr Tanner repeated that, initially, his wife was to write a cheque but when Mr Murphy wanted the money in cash, an arrangement was made to pay it into his account in cash. He accepted that a cheque was drawn to pay the $1,000 to Mr Murphy. Mr Tanner confirmed that Mr Murphy arrived on the site on 20 December 2007. 50Having regard to Mr Tanner's evidence of how the manner of Mr Murphy's financial circumstances came to his attention, it is appropriate in this respect to consider the evidence of Mr Flanagan and Mr Bonfield. Mr Flanagan did not mention the loan or Mr Murphy's circumstances in two interviews with the WorkCover Inspectors. He was not asked any questions in relation to such a transaction. In his oral evidence at the hearing, in cross-examination, he was asked if he ever had a conversation with Mr Tanner about Mr Murphy not being able to pay for his lunches. Mr Flanagan was unsure about such a conversation and agreed that he did not remember having such a conversation. He was asked if he knew that Mr Tanner had paid Mr Murphy at least $1,000 in cash while he was on the site to which Mr Flanagan replied that he was not aware of such a payment. 51In his interview with WorkCover Inspectors, Mr Bonfield did not mention the payment of any cash money to Mr Murphy or the circumstances in which that occurred nor was he asked any questions about that subject. In his oral evidence he spoke of knowing that Mr Tanner paid some cash to Mr Murphy to help him over the Christmas break. Mr Bonfield thought the amount paid was $1,000 and he knew that because he talked to Mr Murphy and they became friends. Mr Bonfield was not sure whether the money was cash in hand but he thought it was to help Mr Murphy "get through" and also because Mr Tanner was pushing him along to get the job finished. He said that Mr Tanner had kept the first two units covered with sheeting so that he could keep the workforce on the job when it rained. He had heard Mr Tanner say that he wanted the first two factory units covered with roof sheeting so he could continue work when it rained. That conversation involved Mr Bonfield as well because he was performing the welding work and he would risk electrocution if he was required to weld in the rain. Mr Bonfield said that he thought he had heard that conversation possibly more than once. He noted that the job seemed to be "crawling along" because of the rain and Mr Murphy's sons had let him down a few times. 52Mr Bonfield was asked about Friday, 4 January 2008 and whether there was an issue on that day about Mr Murphy not having any money. Mr Bonfield said he was unsure about that but noted that Mr Murphy had enough money that day to buy a few a beers, a hotdog and put a few dollars through the poker machines at the hotel. He was not sure if there was ever an issue after Christmas about Mr Murphy not having enough money. In re-examination, Mr Bonfield was asked if in any conversation he had with Mr Tanner or Mr Murphy, had he been told the reason for the payment? Mr Bonfield said that the reason Mr Murphy was paid the money was to get him through Christmas and in return for the money he had to come in and work. Mr Tanner had told him that he had given Mr Murphy the money so that he would come in and continue working. Mr Murphy had not mentioned the money to Mr Bonfield. DELIBERATION 53It is appropriate to commence by considering the evidence as to the way in which the work was actually performed at the Lawson site as distinct from what was required under the defendants' SWMS. As to the issue of control, for the purposes of s 10 of the Act, the Court accepts the submissions for the prosecutor that, under the contractual arrangements between CMS and CJM, CJM clearly reserved to itself the ability to insist upon compliance with the provision that scaffolding and hand railing requirements over two metres were to be supplied by the builder to WorkCover standards. The CJM Health Safety Environment Site Documentation Pack gave CJM real control of the site. That document defined induction extensively and the topics to be covered by induction. CJM had expressed their intention to sub-contract this work at the Lawson site and the Site Documentation Pack made it clear that CJM would ensure that the sub-contractors provided a SWMS for their specialised work and that CJM would review the SWMS. The Safety Policy spoke about CJM ensuring that the work at the site was undertaken safely and that a risk assessment was to be performed to identify and control potential hazards in the workplace. Under this document, CJM or its sub-contractors were not to commence work unless the principal contractor had made available a copy of the Safety Management Plan that was relevant to the sub-contractors and CJM had undertaken a risk assessment associated with the work to be carried out. 54There were a range of other matters whereby CJM reserved control of the work in the interests of safety but an extensive analysis of these provisions is unnecessary in light of the frank concession made by counsel for the defendants that CJM had "a lot of control" under the contractual arrangements with CSM: as earlier indicated, a significant part of the defendants' case was that they had lost that control because of the bribe Mr Tanner was said to have paid to Mr Murphy. On the totality of the evidence, the Court is satisfied that CJM and Mr McCrudden had significant control over the work that was to be performed by the roofing sub-contractors engaged to perform the roofing work at the Lawson site. This finding is consistent with the approach adopted to the element of "control" by the Full Bench in McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464, especially at p 478 et seq. 55The Court also accepts the prosecutor's submission that the nub of this matter was the failure of the defendants to ensure that the safety mesh was installed to cover the entire roof before work commenced on installing the insulation and fixing the roof sheets. Acceptance of this proposition does not detract from the other serious omissions such as the failure to ensure that fall arrest devices and other equipment, mobile scaffolding and elevated work platforms were provided to avoid a fall risk as well as the failure to install guard rails around the edge of the roof area as well as an appropriate induction and the conduct of a risk assessment at the site. 56Both the prosecutor and the defendants accepted that a large element of the risk of falling when performing this roofing work would have been met by the initial installation of the safety mesh as required both under the defendants' SWMS and industry practice as referred to in Mr McCrudden's evidence as well as the WorkCover Code of Practice dealing with safe work on roofs. In particular, the Code of Practice had been in operation for a number of years prior to this accident and referred to the first essential step in ensuring that the work was performed safely was to plan and prepare for its safe execution and that such planning and preparation should involve consultation with "all engaged in the work". A role in this process was set out for planning by the designer, the builder and the roof contractor, in this case, CJM. The Code spoke of the roofing contractor considering safe work issues for this work in addition to collaborating with the builder or principal contractor in overall job planning. In preventing falls, the Code spoke of the recommended method being the use of safety mesh and guard rails. The Code referred to other available methods including individual fall arrest systems, scaffolding, safety nets or a combination of methods. 57The recommended system for prevention of falls during roof sheet laying was permanent safety mesh securely fixed to the structure over the area to be roofed in conjunction with appropriate edge and perimeter protection. The Code laid down the correct placement of the mesh, how the mesh was to be cut to length from the roll and run out over the roof using a continuous rope system. It was noted that task could be safety undertaken from scaffolding positioned at each end of the roof. Specifically, the Code stated the meshing of the roof frame was to take place before loading the roof with bundles of decking. Workers were to avoid walking or standing on the mesh and the use of scaffolding, scissor hoists, safety net or individual fall arrests systems would protect workers installing the mesh. Directions were given as to how the joins were to be tied off and how guard rails were to be used. 58In this regard the evidence demonstrated that the defendants were not present on site nor did they use any other method of inspection or audit to ensure that the safety mesh was fitted to the entire roof and fitted before any roofing sheets were laid. The evidence shows that Mr Murphy, in the absence of any on-site direction by the defendants, went about the task of laying the mesh that did not accord with the WorkCover Code or the defendants' SWMS - it was inherently risky because it was essentially a "lay as you go" approach to the work. This approach resulted in the roofers walking on unsecured roof sheeting and jumping between the trusses without fall protection. If scaffolding or scissor hoists had been available, there was at least an opportunity for the work to be performed in accordance with the Code but that did not occur. 59As earlier noted the evidence showed that, at the Lawson site, there was no induction of the roof contractors, there was no scaffolding at height around the perimeter of the building, there were no guard rails installed around the perimeter and the workers did not wear any fall arrest equipment. No risk assessment was undertaken. All of these matters were addressed in CJM's Site Documentation Pack but no steps were taken to ensure that the paper system of safety was implemented and enforced on this site. Mr McCrudden's evidence about the operation of the company was that CJM had very few employees with the work being performed by contractors directed to work in accordance with the Site Documentation Pack. In many respects, this operation at the Lawson site meant that the roofing team under Mr Murphy was left to their own devices. 60One particular example of this approach was the obligation on the sub-contractor to conduct a risk assessment. Mr McCrudden's evidence was that the risk assessment "usually" accompanied the first invoices forwarded by the sub-contractor - leaving an indeterminate period during which no one from CMJ could give consideration to the adequacy of the risk assessment for that site or conduct a review of it. Mr McCrudden said that this system operated such that he relied upon the sub-contractors to conduct a risk assessment and Mr Tanner calling him if there were any problems. That approach resulted in CJM having little or no involvement in the risk assessment. 61During addresses it was submitted for CJM that Mr Murphy was the defendant company's supervisor on site and by implication it was Mr Murphy's duty to ensure that the safety system, laid down by CJM, was adhered to in carrying out the work. The evidence, however, does not support a conclusion that Mr Murphy was engaged as the supervisor on site for CJM and the totality of the arrangement, including requirements made by CJM, showed that Mr Murphy was a sub-contractor to CJM for the performance of the roofing work and nothing more. There was no letter of appointment or other document or conversation alleged whereby this supervisory role was conferred upon Mr Murphy. Indeed, Mr McCrudden's evidence was that his son was the CJM supervisor with all other work being undertaken by sub-contractors because the market for the work was not conducive to employment arrangements. 62Under this system of operation, CJM worked on many sites at the one time with very limited resources to oversee the operations at each site and ensure compliance with occupational health and safety laws and the company's own safety rules. Mr McCrudden's evidence was that Mr Murphy was a very experienced sub-contractor in this roofing speciality and in effect, he relied upon his expertise to perform the work to a proper workmanlike standard and to do so safety. The way in which the arrangement operated at the Lawson site from the time Mr Murphy and his crew commenced work at the site was, in effect, to allow CJM to delegate its responsibilities to Mr Murphy and his team. 63It has long been accepted under various provisions of the Occupational Health and Safety Act that responsibilities under the Act cannot be delegated to another party: provisions of the Act imposing obligations do not contemplate that those obligations are capable of being delegated to some other entity as the whole scheme of the Act operates on the basis of a web of responsibility and recognises that, even in situations of sub-contracting, there are a variety of obligations owed ( WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (No 2) (2003) 121 IR 283 at [42]. In Inspector Chadwick v Denbur Constructions Pty Ltd [2004] NSWIRComm 195 at [18] Boland J noted that, where sub-contractors failed to ensure the safety of their employees, that occurrence will often reflect a failure on the part of the principal contractor. As already noted, at this site CJM made no arrangements for on-site supervision or surveillance to ensure that their safety system was being adhered to. In short, the CJM safety system was not enforced in any way during the period identified in the statement of charge. 64The suggestion that Mr Murphy was delinquent in his duties and responsibilities to CJM is of little assistance to the defendants. As is so often stated by the Court in dealing with safety prosecutions, the Occupational Health and Safety Act requires employers, in specified circumstances, to ensure the safety of employees and non-employees. the Full Bench in Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 43 stated: Those obligations are not diminished because of the error or negligence of an employee, although such matters may refelct on the degree of culpability of the employee for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 65The defendants' case was that if Mr Murphy had adhered to its system of work then there would have been no risk to safety. That approach cannot be accepted in the circumstances of this case because the defendants did not take any steps to ensure that those safety measures were adopted, maintained and enforced on the site. The major thrust of the defendants' submissions went to the issue of who was responsible for installing handrails and scaffolding and whether or not the defendants' control over Mr Murphy had been removed by Mr Tanner giving money to Mr Murphy to ignore the defendants' safety rules and work unsafely and quickly to finish the job. 66The evidence of Mr McCrudden and Mr Tanner about who had the obligation to provide scaffolding and handrails around the perimeter of the building was in direct conflict. It does seem common ground that, at one point, metal fascia and gutters were to be installed although ultimately this was not possible. Mr Tanner's evidence was that he was responsible for the hand railing of a particular gutter at the east end of the building. Mr McCrudden's evidence was that he was to supply the handrails for the fascia and guttering work but that was another specialist task and in any event, it was not be performed by Mr Murphy. That work was not required and there was no charge. 67Apart from this evidence the most significant evidence is the content of the estimate/quote provided by CJM. In relation to the description of the work, that estimate/quote contained a description in the following terms: "Supply and install metal fascia and quad gutter." That was in a quantity of 66 linear metres. It is significant therefore that later in the estimate/quote, the "e/o roof protection handrail" also specified 66 linear metres. That is consistent with Mr McCrudden's evidence as to the use to be made of that protection hand rail as set out in the quote by CJM. In addition, Mr Tanner conceded that 66 metres of handrail would not be sufficient to extend around the perimeter of the building which was between 6 metres and 67 metres long on one side only. In fact, 66 metres was totally inadequate for that task, suggesting that the entry was addressing another matter altogether. 68When Mr Tanner's attention was drawn to the terms of the purchase order prepared by CMS that reflected the estimate/quote of CJM and used the same terms, including the provision that scaffold/hand rail requirements over two metres were to be supplied by builder, he attempted to avoid the conclusion that it was therefore the obligation of CMS to provide the perimeter scaffolding and handrails for the roofing work to be performed by Mr Murphy and did so by suggesting that it was a mistake made in his office by his wife when the purchase order was being typed. The difficulty for that proposition is that the CMS Purchase Order directly reflects the estimate/quote of CJM, a quote that Mr Tanner agreed was accepted by CMS. Mr Tanner was not preparing new items of supply but was operating on the CJM quote. 69Mr Tanner's categorisation of this entry as a mistake also carries with it the strong suggestion that the terms used by CJM in their quote regarding the builders' liability for scaffold and handrails over two metres was indeed a reference to scaffolding and hand railing for the perimeter of the building for the purposes of the work of the roofing sub-contractor. The Court is unable to accept Mr Tanner's evidence is this regard and accepts the evidence of Mr McCrudden that the arrangement with Mr Tanner and CMS was that the scaffolding and handrails around the perimeter of the building was to be supplied by CMS. Mr Tanner did not deny Mr McCrudden's evidence as to the usual practice of the builder providing scaffolding. That contractual obligation, however, did not absolve CJM from its duty to ensure that that scaffolding was in fact supplied and erected and properly maintained during the time that the roofing sub-contractors were on-site. As already indicated, the evidence demonstrates that CJM took no steps in relation to this part of its obligations on the site. 70In relation to the alleged bribe made by Mr Tanner to secure control over the work of Mr Murphy and in particular to have him work without fall protection and otherwise to work unsafely contrary to the system adopted by CJM, the evidence is unsatisfactory. There is evidence that two payments of $1,000 were made to Mr Murphy by Mr Tanner on approximately 21 December 2007 and 4 January 2008. Mr Tanner agreed that he made one payment on 21 December 2007 but denied making the other payment. He also denied that the payment was made for the purposes of subverting the safe system of work required by CJM. Mr Tanner's evidence is that this matter was raised by Mr Flanagan in the site office and that Mr Bonfield was present, apparently on the first day that Mr Murphy was on the site. Mr Tanner's recollection was that Mr Flanagan raised the issue that Mr Murphy did not have any money, could not buy morning tea or lunch, had difficulty getting to work when his sons did not drive him and that he was in financial difficulties. Mr Flanagan's evidence did not support such a conversation. Mr Flanagan said that he could not recall a conversation nor having a discussion with Mr Tanner about Mr Murphy's financial position and inability to pay for his lunches. Also, he did not have any idea about a $1,000 payment to Mr Murphy by Mr Tanner. 71Mr Bonfield was aware that Mr Tanner had paid Mr Murphy cash to help him out through Christmas and Mr Murphy had told him that this payment had been paid to him. In later evidence, however, Mr Bonfield said that Mr Murphy had not mentioned the money. Mr Bonfield understood the money was paid either for work performed by Mr Murphy or to help out and also to ensure that Mr Murphy kept attending the site to finish the job: the basis of this understanding was not established. He had heard Mr Murphy and Mr Tanner talking about the job being finished and the fact that Mr Tanner needed the first few sheds to be roofed in order to allow work to be performed under cover when it rained. Mr Tanner's evidence was that the money was paid to Mr Murphy because he was in financial difficulties and that he knew Mr McCrudden was on holidays and therefore Mr Murphy could not be paid by Mr McCrudden over the Christmas period. The money was to be deducted from Mr McCrudden's account. 72The allegation made by CJM is most serious. The entire proposition put on behalf of CJM was that Mr Tanner was in financial difficulties with cash flows and Taxation Office problems and that the work was running behind schedule. In order to overcome these matter and problems he had paid in total $2,000 to Mr Murphy to ensure that two of the units were roofed, out of normal sequence, so that there would be a covered space for men to work when it rained on the site. There was no satisfactory evidence drawn to attention to establish a "normal sequence" of roofing and none suggested by Mr McCrudden. The money was also said to be paid to secure control over Mr Murphy's work and to ensure that he would not require scaffolding or handrails and would be working in an unsafe manner and therefore more cheaply in Mr Tanner's interests rather than under the system of safety required by CJM. 73While there is evidence of some of Mr Tanner's difficulties and there was also evidence that Mr Murphy, although paid a significant amount by Mr McCrudden and was also in financial difficulties, there is a lack of crucial evidence linking the payments made to the sinister outcome alleged by CJM. Mr Tanner's memory was shown to be unreliable and Mr Bonfield contradicted himself. Mr Flanagan had no particular reason to remember this incident from late 2007 regarding a person who had just started on the site. Having regard to the seriousness of the allegation and that it also reflects on Mr Murphy who is no longer able to defend himself in this regard and that Mr Tanner's evidence in relation to these allegations occurred while he was a witness for the prosecution and without the protection of a legal representative acting in his interests, the Court regards those combination of circumstances as leaving it in a position where, in fairness, no such detailed finding as alleged by the defendant, CJM can be made. It is equally open on the evidence to conclude that, if Mr Murphy was in a difficult financial position, he may simply have thought that it was not in his interests to complain about the lack of scaffolding and handrails at the site because that would only delay the work: if he could not work, he could not be paid and in those circumstances he simply decided to continue with the work notwithstanding the risks associated with working at heights at this site. On the evidence, that is at least as strong an inference as suggested by the payments and the circumstances of Mr Tanner as the inference pressed by the defendant, CJM. 74It should be noted, however, that even if Mr Tanner had made this arrangement with Mr Murphy, CJM failed to attend the site and ensure the safety of the sub-contractors. Attendance at the site by a CJM representative and enforcement of the company's safety rules would have rectified the numerous safety deficiencies found on the site. 75Having regard to all of these matters, the Court finds that the defendants are guilty of a breach of s 10(1) of the Occupational Health and Safety Act as particularised by the Amended Application for Order. The parties are to contact my Associate with details of their availability for the purposes of listing the sentencing hearing. 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. Decision last updated: 12 April 2011