District Court New South Wales Medium Neutral Citation: SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290 Hearing dates: 27-29 March 2017; 5 April 2017; 11-13 April 2017; 7 September 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Criminal Before: Kearns DCJ Decision: The elements of the offence have been proved beyond reasonable doubt against Freyssinet Australia Pty Ltd. I find Freyssinet Australia Pty Ltd guilty of the offence. I will list the matter for sentence on a date convenient to the parties. Catchwords: CRIMINAL LAW – work health and safety – construction site – head contractor – defendant one of several sub-contractors – numerous workers on site – injured person employed by defendant fell from stairway – stairway and access used by all workers – responsibility for stairway – adequacy of edge protection on stairway – whether risk existed and was foreseeable – reasonably practicable measures available to the defendant Legislation Cited: Work Health and Safety Act 2011 Cases Cited: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 Category: Principal judgment Parties: SafeWork New South Wales (prosecutor); Freyssinet Australia Pty Ltd (defendant) Representation: Counsel: Mr I Taylor SC with Mrs E James appeared for the prosecutor; Mr A Moses SC with Mr D O'Neil and Ms J Alderson appeared for the defendant Solicitors: SafeWork NSW Legal Services (prosecutor); HWL Ebsworth Lawyers (defendant) File Number(s): 2016/44806 JUDGMENT The incident 1. On 10 February 2015 at a worksite at 19-33 Kent Road, Mascot (the site), Mr Oketi Felemi and fellow workers were walking down a stairway (the stairway). The landings of the stairway had timber handrails. When descending the steps close to a landing, Mr Felemi lost his footing. He fell vertically more than three metres from the open side edge of the landing on the stairway onto the bottom landing. Mr Felemi landed on his head and suffered serious brain and other injuries. The charge and the plea 1. Freyssinet Australia Pty Ltd (Freyssinet) is charged with an offence under s 32 of the Work Health and Safety Act 2011 (the Act). It is alleged that on 10 February 2015 Freyssinet was a person conducting a business or undertaking within the meaning of s 19 and that it had a health and safety duty under that section. It is further alleged that the duty was to ensure, so far as was reasonably practicable, the health and safety of workers while the workers were at work in the business or undertaking. It is further alleged that it failed to comply with that duty and that the failure exposed Mr Felemi to a risk of death or serious injury. 2. Freyssinet has pleaded not guilty. The legislation 1. Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. 1. Section 19 relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) ... (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) … (5) … 1. Section 18 provides: In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. The risk 1. The risk pleaded was the risk of workers suffering death or serious injury by falling through the unprotected gap between the edge of the stairway and the handrail. The evidence as to the incident 1. To understand the evidence in its context, it is useful to start by dealing with the evidence as to the incident and the circumstances surrounding that. 2. The stairway was inside a high rise residential tower development under construction. The stairway was inside one of four towers to be constructed on the site. Two of the towers were being constructed at the time of the incident. 3. The stairway was an internal stairway running from the ground level to a basement where there were workers' lockers, lunch room, toilets and offices. There were two other accesses to that basement [1] , but signs erected by Karimbla Construction Services (NSW) Pty Ltd (Karimbla) directed all workers to use the one where the incident occurred. Karimbla was the head contractor/builder on the site. It was often referred to as Meriton. 4. The stairway comprised a set of 13 steps leading down from the ground level to a landing (the first landing). The steps were about 1.1m wide necessitating negotiating them single file [2] . The first landing was about 1.1m x 1.1m. There was then a set of 8 steps continuing in the same direction leading to another landing (the second landing). The second landing was 2.25m x 1.57m [3] . A left hand turn of 180◦ led to another set of steps which led to another landing (the third landing) being the basement level. 5. The vertical distance from the first landing to the third landing was about 3.2m [4] . 6. The set of 13 steps was flanked by brick walls at the sides. There were no handrails in place on this set of 13 steps [5] . Mr Felemi stumbled at the bottom step or steps of this set. The wall on the left hand side (when descending) finished at the bottom step of this set. The first landing was open on the left side and walled on the right hand side. There was a horizontal timber hand rail across the open side of the first landing. It was attached to the edge of the left hand side wall, near the bottom of the flight of 13 steps leading down to the first landing. The hand rail extended horizontally and parallel to the floor of the first landing. The railing extended the length of the landing to just beyond the start of the descent of the second flight of 8 steps. There it was attached to another railing on the open side of the steps going down to the second landing. 7. That other railing was attached at the top end to a vertical metal pipe which was bolted to the top step below the first landing. The metal pipe had a piece at its top shaped something like a U in which the other railing sat. There are several photographs of what I have described [6] . 8. The horizontal railing at the first landing was 1.2m long. The top surface of the railing was 1.1m above the floor of the first landing and the bottom surface, 1.03m [7] . There was no other railing or structure in place on that side of the first landing [8] . 9. On the day of the incident, Mr Felemi and others had been working on Level 4 [9] of one of the high rise residential towers. This tower was known as Quadrant 1. Mr Felemi ceased work for the day at about 3.00pm and was heading to the locker room in the basement with three others. They were Mr El Masri, Mr Semi and Mr Lusseni. 10. The four men were walking down the flight of steps to the first landing. They were descending in single file. The order in which they were walking was Mr El Masri first, then Mr Felemi, then Mr Semi and then Mr Lusseni. They were talking. Mr El Masri from time to time turned his head over towards his left shoulder as they were walking down the stairs. 11. Towards the end of the flight of steps leading to the first landing, Mr Felemi lost his footing. It was his left foot that was affected. Whether he twisted, tripped, slipped or suffered some other mishap is not clear. The result was he left the stairway and fell. In the course of falling, his body turned so that he was head down. He landed on his head. Before doing so, he may also have hit his head on the wall or on steps on the way down. 12. This much that I have recited is not in contention or cannot seriously be contentious. To the extent that any of it is in contention, I am satisfied beyond reasonable doubt of those matters. 13. What is in contention is whether Mr Felemi, when he left the first landing, went under or over the horizontal timber railing. At one level this issue does not matter. Even if Mr Felemi went over the railing, the issue remains whether there was a risk of falling under the railing. Where the issue matters is whether the risk existed or could be foreseen. If Mr Felemi went over the railing, that provides a basis for contending that no risk ever materialised and accordingly one did not exist or, if it did, it could not have been foreseen. 14. There is some hearsay evidence that Mr Felemi went over the railing. There is also hearsay evidence he went under the railing. I take no account of it. The source of the hearsay that he went over the railing clearly enough was Mr El Masri and he gave evidence. Mr Semi and Mr Lusseni also gave evidence and it is the evidence of these three I draw on to reach my conclusion. Mr Felemi also gave evidence, but cannot assist on this as, from the moment of losing his footing, he has no memory of anything that assists on this issue. These four were the only eye witnesses capable of giving evidence as to what happened. 15. Mr Semi said he saw Mr Felemi's foot go through the hole between the top railing and the landing. He saw his body go through the hole [10] . Mr Lusseni saw Mr Felemi fall through the railing under the rail [11] . Mr El Masri's evidence was changeable [12] . 16. I am satisfied beyond reasonable doubt that when Mr Felemi fell from the first landing, he went under, rather than over, the rail. Mr reasons for that are as follows. * Mr Semi and Mr Lusseni were in a better position to see what happened than was Mr El Masri as they were both behind Mr Felemi and Mr El Masri was in front of him. * Mr El Masri commented soon after the event happened that Mr Felemi had gone over the railing. He has not adhered to that. * Mr Semi and Mr Lusseni both gave evidence that, as to some details, may be thought to cast doubt on their evidence that Mr Felemi went under the timber rail. Mr Lusseni, for example, agreed in cross-examination that the answer he gave in an interview to SafeWork inspectors on 11 February 2015 and recorded in Q23 was a different account to the evidence he gave. That needs to be understood in its context. It followed cross-examination over a period in which he firmly adhered to his evidence that he saw Mr Felemi lose his footing and he saw him going under the railing. The evidence in which he agreed the accounts were different was as follows [13] : Q. You agree with me that what you've just told his Honour and again I make it very clear I'm not suggesting you're lying but what you've just told his Honour is not what you told the inspectors in relation to question 23 and the answer there. You don't actually give that version to the inspectors, do you agree with that? A. I agree with that but there's - it's not everything. Q. I'm not being critical I'm just saying that what you've just said to his Honour is different than what appears at question 23 and answer, do you agree with that? A. Yes. The answer to Question 23 [14] , as put to Mr Lusseni, was as follows: "I saw the ending of it so I saw, what I saw was the moment when his whole body just managed to get from underneath the railing. So he was already out of the railing. His leg was already down off the landing and legs were coming up. So he was basically in a horizontal position, sorry, horizontal. Yeah, horizontal position off the landing so he was in mid-air when my eye caught him." To the extent that there is any difference, it is in respect of detail that I do not consider significant. I consider the accounts are essentially consistent. Variations in detail are what one would expect when accounts are given on different occasions, especially two years apart and in different circumstances. Not only in the evidence leading up to the apparent concession as to the different accounts did Mr Lusseni maintain his evidence that Mr Felemi fell under the handrail, but he also maintained that evidence in further cross-examination after that apparent concession. Mr Lusseni was a most impressive witness and so was Mr Semi and they were rock solid in their evidence that Mr Felemi went under the rail. I was impressed by them and their evidence and I accept it. * Mr Semi saw Mr Felemi's foot go through the hole, that is, the hole between the railing and the landing [15] . * Accepting, as I do, that Mr Felemi's left foot went out under the railing, it is almost impossible to conceive of a scenario that would allow him to go over the railing. * I am not impressed by "objective" evidence which was thought by some to be blood and foot marks on the wall. Before the incident, this stairway had been used at least six times day, by about 300 workers, for about six months. Inevitably, the walls would be marked. * I reject the submission that the SafeWork inspectors had a conversation in which they discussed the improbability of Mr Felemi having gone under the railing. It is not supported by the transcript reference relied on [16] . Nor do I consider it is supported by Exhibit PX16B. The audio on Exhibit PX16B is not clear and is hampered by considerable background noise. I have listened to it dozens of times through different headsets and at different volumes. The best I can make out of is, "Do you want to film me walking down the stairs … and (or am) just seeing if it's possible". The highest it got from Inspector Hill on this point was that he could not see how the accident happened [17] . * I do not consider that the investigation or the nature of the investigation undertaken by the investigators in any way casts doubt on my finding that Mr Felemi fell under the railing. The particulars of the charge 1. At this point it is useful to look at the particulars of the charge that have been levelled against Freyssinet. In their final form, they are contained in [6] of the Further Amended Summons as follows: The Defendant failed to ensure the health and safety of workers, in particular, Mr Felemi, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or, alternatively, minimise if not reasonably practicable to eliminate) the risks to health and safety of workers including the risk of falling from height by: Instructing workers not to access stairways and steps at the site unless they were fitted with adequate edge protection; and in particular instructing workers, including Mr Felemi, not to use the stairway until an intermediate rail was fitted, or until other suitable guarding was installed that removed or minimised the risk; and/or Ensuring that all stairways and steps at the site were fitted with guard railing which, if of post and rail construction, either comprised a top rail with one or more intermediate rails spaced such that the maximum clear space between the rails or between the lowest rail and any toe board, where fitted, did not exceed 450mm or, alternatively, fitted with other means such as guard railing of welded mesh construction, which in any case complied with the requirements of Australian Standard AS 1657-2013 "Fixed Platforms, walkways, stairways and ladders – Design, construction and installation"; and/or Identifying that the stairway was not fitted with adequate guard-railing and requesting Karimbla install adequate guard-railing such as an intermediate rail on the landings, or other suitable guarding that would remove or minimise the risk. Elements of the offence 1. There is contention between the parties as to the elements of the offence. It does not matter. Whatever the elements, Freyssinet admits all of them except two. It denies that it failed to comply with its health and safety duty. It also denies that any alleged failure exposed an individual to a risk of death or serious injury. The prosecutor acknowledges that these are elements that must be proved beyond reasonable doubt. 2. It is useful, nevertheless, to set out the elements of the offence. They are to be derived from a combination of sections 19(1) and 32. 3. The starting point is s 32. Under that section, three elements must be established: 1. Freyssinet must have had a health and safety duty; 2. Freyssinet must have failed to comply with that duty; 3. the failure must have exposed an individual to a risk of death or serious injury. 1. As to the first of those elements, it is necessary to turn to s 19(1) to determine if Freyssinet had a health and safety duty. Freyssinet will have had such a duty if the elements of s 19(1) are satisfied. Those elements are: 1. Freyssinet must have been a person conducting a business or undertaking; 2. Freyssinet must have engaged workers; 3. those workers must have been at work in the business or undertaking of Freyssinet. 1. Combined, the elements of the offence are: 1. Freyssinet must have been a person conducting a business or undertaking; 2. Freyssinet must have engaged workers; 3. those workers must have been at work in the business or undertaking of Freyssinet. If those elements are established, then Freyssinet was under a health and safety duty. It is then necessary to establish the following further elements: 1. Freyssinet must have failed to comply with that duty; 2. the failure must have exposed an individual to a risk of death or serious injury. 1. It is the last two elements that are in issue in these proceedings. 2. The elements I have set out will not be of universal application. They will not, for example, be the elements where the relationship between the person charged and the person allegedly exposed to risk is different to the relationship in these proceedings. 3. It remains important to bear in mind that the duty is limited by the section to ensuring health and safety so far as that is reasonably practicable. In this regard, Freyssinet's function on the site limited to post tensioning is relevant. That is a relevant factor, but not a determinative one. All circumstances must be considered to determine what was reasonably practicable. Freyssinet's task and its contract with Karimbla cannot be determinative of the limit of Freyssinet's health and safety duty. 4. Under the contract between Karimbla and Freyssinet, and in practice, Karimbla had extensive safety responsibilities in relation to the site. These proceedings are not about Karimbla's responsibilities. They are about Freyssinet's health and safety duty and that duty, whatever its extent may be, cannot be limited by agreement with Karimbla or by Karimbla's assumption of health and safety responsibilities or by Freyssinet's reliance on Karimbla to provide safe access. Evidence as to the work site 1. It is now useful to turn to the remaining evidence concerning the work site. 2. At the site, a large residential complex was in the course of construction. It was as large as five to six football fields, with over 1200 units to be built [18] . It was to consist of four high rise towers. Each tower was to be 15 levels when completed [19] . They were identified by quadrant numbers 1, 2, 3, 4. The head contractor and builder on the site was Karimbla. Karimbla was a company within the Meriton group of companies. It was sometimes in the evidence identified as and treated synonymously with Meriton. 3. Karimbla had contracted with a number of trades for the carrying out of different aspects of the construction work. Freyssinet was one of those subcontractors. 4. Freyssinet's task on the site was post tensioning work. This involved the laying and tensioning of cables preparatory to concrete laying. It was a specialised task and Freyssinet's work was limited to that. 5. Freyssinet employed Mr Felemi, Mr El Masri, Mr Semi and Mr Lusseni. It also employed Mr Smales, Mr Vieira and others. Mr Smales was employed by Freyssinet as its supervisor. Mr Vieira was employed by Freyssinet as its leading hand. 6. Mr Felemi was employed as a concrete reinforcing stressor. His job involved installing cable stressing before the concrete pour [20] . He had worked at the site from July 2014. Mr El Masri, Mr Semi and Mr Lusseni were doing similar work. 7. At the time of the incident, there were about 300 workers on the site employed by Karimbla or by its various subcontractors [21] . 8. Work was being undertaken on Quadrants 1 and 2. 9. Servicing the site was a basement area which included workers' lockers, lunch room, toilets and offices. It serviced the whole of the site. The basement was accessed by a stairway by each of the workers several times a day. The stairway was described by Mr Vieira as like a highway, by reason of its frequent use [22] . 10. The basement had at last three accesses. Sometimes one or more of the accesses would not be accessible because work was being done on or in it. Karimbla directed the access that was to be used at any given time. It did so by placing tape and signs on the site indicating the access to be used [23] . 11. I have described earlier at [11] to [15] the stairway. That stairway was the one in use at the time of the incident and had been so for about six months. The other stairways could have been used at the time of the incident. In fact at least one of them was, as the one from which Mr Felemi fell was barricaded very soon after the incident. Over the six months before the incident, the stairway from which Mr Felemi fell remained in the same condition particularly as to the placement and position of handrails. [24] Evidence as to safety measures The Karimbla induction 1. Freyssinet's safe work system included the Karimbla induction. Every worker who came on to the site was inducted onto the site by Karimbla. Freyssinet maintained a record of its employees having been inducted by Karimbla [25] . The induction included a site safety quiz which Mr Felemi undertook [26] . The induction also included a Safe Work Method Statement (SWMS) for general construction work for the site [27] . A transcript for the induction is at Exhibit PX 10, Tab H. 2. An example of the content of that induction and the one used for Mr Felemi's induction is in Exhibit PX 1, Vol 1, Tab 11, p 162. Each worker was inducted in relation to the matters in that document. It covered many matters. Significantly, for present purposes, it included the following questions: 2. Do you know who to talk to if you have any questions or problems? … 14. Have you read and understood your Safe Work Method Statements (original emphasis) 1. Mr Felemi, and all workers, knew to talk to the leading hand with any questions or problems [28] . The Freyssinet induction 1. At the outset, I note a summary of steps put forward in Freyssinet's submissions as to its system for identifying and addressing risks. It is, 1. emphasising to its workers the importance, to its workers, of identifying risks; 2. training its workers to identify risks; 3. empowering workers to refuse to perform work, or to undertake any activity, that the worker considered to be unsafe; 4. implementing a comprehensive system of documented Safe Work Method Procedures for dealing with dangerous equipment or undertaking dangerous work; 5. reiterating directly to employees, on an ongoing basis, the importance of ensuring safety while at work; 6. conducting regular toolbox talks (TBTs) at which safety was a common feature; and 7. relying on an expert principal contractor to provide safe access and egress through common areas of the site used by multiple subcontractors and controlled by the principal contractor. [29] To that may be added daily pre-start meetings. 1. The Freyssinet induction followed the Karimbla induction. An example of the content of this induction and the one undertaken by Mr Felemi is in Exhibit PX 1, Vol 1, Tab 16, p266. It included the following. You have been told who the Leading Hand and Safety Representative is for the project? … If I have any questions of concerns about my safety, or the safety of those around me, I will stop work and speak to my Supervisor/Leading Hand Mr Felemi knew who the Leading Hand, Safety Representative and Supervisor were. 1. The other Freyssinet workers also underwent site induction with Freyssinet [30] . They were taught that if there was a safety concern to report it to the safety representative. The safety representative would raise it with the builder [31] . 2. Instruction as to what to do about safety depended on the situation. An imminent issue would involve blocking off the area and reporting it immediately. If it was minor, it could be dealt with on the spot and reported later [32] . 3. Induction documents for the Freyssinet workers included SWMSs, Exhibits DX 4, 5, 6, 7, 8. DX 4 SWMS mono strand post tensioning – installation/pour DX 5 SWMS mono strand post tensioning – stressing DX 6 SWMS mono strand post tensioning – cutting and sealing DX 7 SWMS – pan filling DX 8 SWMS – cutting off strand with grinder The Freyssinet workers were taken through these SWMSs [33] and were familiar with the contents of these documents. 1. Other induction documents for the Freyssinet workers were: Exhibit PX 1, Vol 2, p368 – plant risk assessment, JACK AJ 150 Exhibit PX 1, Vol 2, p393 – plant risk assessment, JACK AJ 300 These documents included material as follows. (Exhibit PX 1, Vol 2, p374) PLANT RISK ASSESSMENT JACK AJ 150 No Step by Step Is there a Risk? Hazard Category Hazard Consequence Likelihood Risk Level Control Measure Consequence Likelihood Risk Level Person Responsible Description of Activity 13.3 ∙ lack of guardrails or other suitable edge protection? Yes Falls from Heights Falling due to no edge protection 5 C E Ensure correct edge protection is in place, If not inform your safety adviser 5 D H Austress Employee, Builder (Exhibit PX 1, Vol 2, p399) PLANT RISK ASSESSMENT JACK AJ 300 No Step by Step Is there a Risk? Hazard Category Hazard Consequence Likelihood Risk Level Control Measure Consequence Likelihood Risk Level Person Responsible Description of Activity 13.3 ∙ lack of guardrails or other suitable edge protection? Yes Falls from Heights Falling due to no edge protection 5 C E Ensure correct edge protection is in place, If not inform your safety adviser 5 D H Austress Employee, Builder 1. Mr Felemi understood the references in the tables in the previous paragraph to be applying to the working area [34] . He understood that if there was not correct edge protection, he was to report it to his leading hand [35] . An occasion to inform his leading hand about edge protection had occurred. He spoke to the leading hand or builder, Karimbla, and Karimbla fixed it [36] . 2. In the context of SWMSs, Mr Vieira agreed with the proposition that the key point for workers employed by Freyssinet was not to work near areas where there was a fall hazard. [37] 3. Mr Felemi was also inducted, as were other Freyssinet employees, in respect of numerous other documents involving tools, plant or work processes [38] . 4. There were pre-start safety talks with Freyssinet workers before the commencement of work every day [39] . Mr Lusseni explained that pre-start meetings were thorough about the day's work and safety if need be. 5. There were TBTs once per week. Safety issues could and would be raised at these talks [40] . TBTs were essentially about safety and in addition to weekly were also held on an as-needs basis [41] . Freyssinet maintained records of TBTs [42] . 6. There was a system in place known to all the Freyssinet workers that if there were any safety issues they were to be drawn to the attention of the leading hand or someone they were working with [43] . 7. Freyssinet employed personnel whose duty it was to attend to matters of safety. At the time of the incident and for some time before, it employed Mr Vieira. It also employed Mr Smales as a supervisor. 8. Mr Vieira had no formal training. His learning was all on the job [44] . His responsibilities included identifying safety issues including working at heights and controls for that [45] . Part of his job before the incident was to check stairways [46] . 9. Mr Smales had done courses for risk management and health and safety representative and numerous other courses. He had training identifying hazards. This included training about risks involved with working at heights and control measures for that [47] . 10. Mr Smales described his duties as including allocation of man power and setting up of work areas. His duties were described in a Freyssinet "Roles and Responsibilities" document [48] as including, In conjunction with the Leading Hand, arrange pre starts, tool box meetings, safety talks and demonstrations to promote safety and environmental awareness. Recording toolbox meetings on the AF-S-REP-555 Record of Tool Box Meeting form and submitting the report to the QSE Coordinator. 1. Safety issues could be fixed in a number of ways. Some could be fixed by Freyssinet itself. Some could be fixed by asking the appropriate subcontractor to do it. Some could be fixed through the safety committee and by asking Karimbla to do it. Under this system, if ever there was a safety issue, the majority of times it was fixed [49] . 2. As part of Freyssinet's safety approach it had a representative on the site's safety committee. That was Mr Cameron Valentine. Each company on the site had a representative on the safety committee. They did a safety walk each week [50] . 3. Freyssinet completed monthly safety reports and provided them to Karimbla [51] . This was a Karimbla requirement. The report required the subcontractor to provide information on work activity with assessments, changes to SWMSs, training and induction of employees and any non-compliances or reportable matters. Once a month, Mr Vieira would complete one of these forms and supply it to Karimbla [52] . All reports in the months leading up to the incident revealed Freyssinet was compliant. 4. Mr Vieira was also familiar with and used Freyssinet's Workplace Inspection Checklist [53] . It was to identify any safety issues [54] . That was completed weekly [55] . It was the leading hand's responsibility [56] . This form required Mr Vieira to have checked over 100 safety items and mark off on them. In the months leading up to the incident there was no item requiring attention. Mr Vieira did a regular inspection and completed such a checklist [57] . If a matter needed fixing, he would go to the person responsible [58] . That may be the Karimbla site supervisor. 5. Mr Vieira did risk assessments including where there was a risk of a person falling two metres or more [59] . Part of his job was to check whether access and work platforms met or exceeded legislative and standard requirements. [60] 6. At the time of the incident, Mr Benjamin Reyes was the national safety manager for Freyssinet [61] . He gave evidence that once a week, workers undertook a workplace inspection. That included access to and egress from the working areas. It would not be practical to inspect access and egress over the entire work site. In a number of answers, Mr Reyes confined the safety assessment of access to accesses to working platforms. There were, however, two answers where his evidence was not so confined. The first was as follows [62] , Q. The hazard identification, does that extend to all areas where workers need to access in order to get to a work site? A. Utilising designated pathways is the extent of which we identify further access ways on site. [63] The stairway was part of a designated pathway to and from the working deck. 1. The second answer was as follows, Q. How about access and egress that the workers actually use from wherever they start in the day to the workplace? A. Onto the working deck, yes. Q. That's possible-- A. --That's the intent of this. Q. It's possible is it for a check to be done or inspection to be done of the access and egress from the lunch room up to the working deck? A. It all depends - this is a workplace inspection that's done once a week. Workplace access and egress being a dynamic construction site can change between the time the workers start to the time that they go to smoko. The stair case that we use or the access we use in one instance might not be the access we use at another. We're given a moments notice so using the designated access that the head contractor provides us is generally what the gentlemen will do going to and from the workplace. This particular workplace inspection check list will identify any access and egress onto the working deck which is designated the workplace for the, the PT workers. [64] 1. There was nothing dynamic about the stairway. It was a fixture. It was used every day for about six months before the incident. Over that six month period, it did not change, and nor did the railing. It remained as I have described in [11] to [15]. 2. Freyssinet also had a Workplace Inspection Report [65] . This was also a document prepared weekly by Mr Vieira. It recorded results of inspection where there was a matter of safety, the action to be taken, when the task was to be completed and when it was completed. These reports disclose occasionally an issue relating to hand rails. This appears on 18 occasions between 1 September 2014 and 2 February 2015. In each instance, the place where attention was required was a working site and not a stairwell or access. On all but one occasion the matter was attended to on the day it was raised or the following day. 3. Freyssinet communicated the content of its QSE Common Rules [66] to all its employees [67] . That content included a direction that all access and work platforms be checked and tagged by a suitably qualified and competent worker before authorising access to Freyssinet workers [68] . Mr Smales considered that applied to working areas [69] . It also included the following: When safety elements (access, work platforms …) are to be contractually provided by a third party, they must be supplied as requested. All access and work platforms must meet or exceed legislative and standards requirements. In the event of third party not providing the required access, we must not enter the area concerned and refer without delay to the Company Management. [70] 1. In the context of checking and tagging, Mr Smales was asked about the stairway. His answer was [71] , That stairwell or the stairwells to get down to the lunch rooms, again with a changing area, some areas are sometimes closed off, sometimes they were reopened again so they could change from day to day. Tagging was not a measure appropriate for the stairway, but this was not on the basis that the area was changing. The stairway had not changed for about six months before the incident. 1. Mr Smales said that if an access or work platform did not meet the required standards, Freyssinet would go to Karimbla, or to whomever was responsible for the task, and ask for it to be fixed [72] . It was also the practice if the required access was not provided not to enter the area and to refer the matter to the Karimbla management. [73] . 2. The QSE Common Rules also required a Project Risk Assessment be available for this project [74] . There was. It was a Karimbla document [75] . It contained some detailed information about working at heights. It did not specifically deal with staircases. 3. The "PROJECT RISK ASSESSMENT" document [76] also set out the responsibilities of the leading hand [77] . They included responsibility for the health and safety of workers. If Mr Vieira identified a hazardous situation, he could fix it and tell the site supervisor [78] . 4. Freyssinet had a Take Five system [79] . This was an opportunity for a worker to take five (minutes) to look at his work site and raise any matters of concern he might have. 5. Freyssinet's processes included identifying the risk, assessing it, using the risk matrix, controlling it using the best risk control, documenting it on a template and re-evaluating as new hazards arose [80] . If control measures were not effective, work was to cease [81] . Employees were taught that if there was an access or work platform that did not meet legislative or standards' requirements, they should not go there [82] . It was part of Mr Vieira's job to check that accesses and work platforms met legislative and Standards' requirements. [83] Documents 1. In addition to documents already referred to, there were others. 2. The "OUR SAFETY VALUES AND GUIDING BEHAVIOURS" document was a Meriton document being a mission statement document, a document of guiding principles [84] . 3. The "WHS AND E MANAGEMENT PLAN" was a Meriton/Karimbla document prepared for the site [85] . This was at one time called "OHS & E MANAGEMENT PLAN" [86] . It is a general, overall document. The SWMSs are task-specific documents [87] . 4. The "PROJECT QUALITY, SAFETY AND ENVIRONMENT PLAN" document was a Freyssinet document prepared for the site [88] . The purpose of this document was to set out how work was to be done in a manner ensuring safety as far as that could be ensured [89] . 5. The "PROJECT QUALITY, SAFETY AND ENVIRONMENT PLAN" document had documents within it. One was entitled "Roles and Responsibilities". The responsibilities of the National Safety Manager were set out in it [90] . One of the responsibilities was organisation of safety committee meetings. Mr Reyes had responsibility for making sure they were organised as per legislation. The committee met on a monthly basis [91] . His responsibility also included tasks in respect of "high risk projects". The task in this case was not considered a high risk project [92] . 6. Within the "PROJECT QUALITY, SAFETY AND ENVIRONMENT PLAN" document also was a "Safety Management Manual". One of the things it required was a project manager engineer to identify hazards/risks in meeting with the safety manager, quality manager, QSE coordinator, site supervisor and leading hands. Mr Reyes considered this was a reference to Freyssinet employees [93] . One of the hazards to which consideration was given was working access and heights. If there was a risk of a person falling two metres or more, Freyssinet's approach was to adopt risk control measures. Those measures would include protective barriers and edge protection [94] . The edge protection would be a post and rail barrier with a mid-rail, handrail and possibly toe board [95] . This was a detail Freyssinet included in its tender documents [96] . It applied to the working deck and access to the working deck [97] . 7. Karimbla provided Safety Observation Report forms [98] . Completion of these by subcontractors was part of the process of subcontractors, including Freyssinet, monitoring and reviewing their SWMSs and reporting this to Karimbla. 8. Karimbla had a Workplace Safety Committee [99] and it maintained a record of safety committee inspections [100] . 9. Freyssinet had a document entitled "Edge Protection Requirements" [101] . This is a post-incident document, but a later iteration of a document that existed prior to the incident. The earlier version did not specifically refer to guardrail, mid-rail or toe board. It mentioned the standards required. This document was prepared for the workers. 10. Under "DISCUSSION POINT" the Edge Protection Requirements document contained the following [102] : * No works are to be conducted in an area of 3 meters [sic] around unprotected floor or edge openings; * Where there are unprotected floor or edge openings, or permanent structure stairs being used as access ways which do not have supports, a mid and guardrail; notify the client using a hazardous observation notice. Mr Reyes agreed that the "DISCUSSION POINT" was to discuss with workers that things such as unprotected floor, edge openings and permanent structure stairs being used as access ways should have supports, being a mid-rail and guardrail and, if not, the client should be notified. He considered that the reference to permanent structure stairs was a reference to stairs such as the stairway. [103] 1. There was in place at the time of the incident a Standard – Australian Standard AS1657-2013 "Fixed platforms, walkways, stairways and ladders – Design, construction and installation" (the Standard) [104] . 2. The Standard applied to the stairway. It required guardrailing and handrails. The Standard required guardrailing to be installed on the exposed side of the stairway and landing being the side from which Mr Felemi fell. It specified the nature of the guardrailing required. In broad terms, it required a top rail, an intermediate rail or welded mesh [105] . After the incident 1. A steel mesh barrier was put up at the base of the stairs after the incident [106] . Inspectors Hills and Reyes attended the site on 11 February 2015 before 9.00am. Inspector Hill directed the stairway to be barricaded at the lower levels. He conducted some interviews. 2. The inspectors left the site at about 2.20pm. This was earlier than intended. It was because news, incorrect as it turned out, had come through that Mr Felemi had died. 3. Inspectors Hill and Reyes returned on 12 February 2015. Measurements, photos and a video were taken [107] . I have made some observations about one of these videos earlier at [23]. 4. Inspector Hill directed Karimbla to undertake remedial steps. He required a minimum of a secure top rail, mid-rail and kickboard. His notebook records "Adequate materials are to be used to ensure structural integrity. To ensure all holes within the vertical members base plates" [108] . A couple of hours later, when he checked the work that had been done, he was not satisfied with it. This time his notebook records "Deemed inadequate due to both integrity + obstructed walkway top landing, meshing stuck out". The obstruction related to the handrail and meshing stepped out into the walkway [109] . The handrail was not affixed to the wall as it should have been. Karimbla had left a gap between the end of the top rail and the wall. As to integrity, Inspector Hill could not recall if the holes in the base plates had been attended to [110] . Inspector Hill provided further instruction for Karimbla to rectify the problem. The problem was then rectified [111] . 5. A couple of days after the incident, Mr Lusseni raised with Karimbla an issue in respect of a lack of mid-rail. That was at the edge of a building. He got a response that he was going overboard, but after raising the matter with Mr Smales, it was attended to [112] . 6. Freyssinet changed its documentation after the incident to specifically include stairways [113] . After the incident, Karimbla prepared a high risk SWMS for installing handrails and fire stairs [114] . Analysis 1. I am satisfied beyond reasonable doubt that there was a risk, that the risk ought to have been known to Freyssinet and that Freyssinet could and should have taken remedial action to address the risk. 2. The risk is defined in [5] in the Further Amended Summons as: "… the risk to workers, including Mr Felemi, of death or serious injury by falling through the unprotected gap between the edge of the stairway and the temporary handrail …" 1. It is clear that all elements of the offence are established necessary and sufficient to find that Freyssinet had a health and safety duty within the meaning of s 32(a) of the Act. The duty was to ensure health and safety "as far as (was) reasonably practicable". There was a risk 1. Common sense suggests, even dictates, that the configuration of the stairway and handrail at the time of the incident meant that there was a risk. At the first landing, there was a significant gap formed roughly by the floor of the landing and the handrail as the horizontal boundaries and the edge of the wall and the metal pipe as the vertical boundaries. Its dimensions were approximately 1.1m horizontally and 1.03m vertically. That is a gap of dimensions sufficiently large for any person to fall through should he or she slip, trip or fall on the steps or landing. Images of this gap are contained in several photographs [115] . There was a risk of fall, slip or trip over the exposed edge. Such an event could result in a fall to the third or bottom landing of over three metres. Such a fall could result in serious injury or death. The one handrail in place meant that, compared to there being no handrail, the risk of accidentally falling from the exposed edge was lessened. It did not eliminate that risk. 2. I reject the submission that investigators investigating the incident commented that they could not see how the incident occurred. The evidence does not support this. I also reject any submission to the effect that there was any pushing, shoving or horseplay involved in the occurrence of the incident. The evidence does not support this. For reasons given elsewhere, I am satisfied that the evidence given by Mr Semi and Mr Lusseni to the effect that Mr Felemi accidentally fell and went under the handrail is to be accepted. The risk ought to have been known to Freyssinet 1. The risk ought to have been known to Freyssinet. 2. There was an issue as to whether Freyssinet was aware of the condition of the stairway, in particular, that it had a top rail only and no mid-rail and if it was aware of that whether it was aware of the risk. The evidence as to Freyssinet's actual knowledge comes from Mr Smales. 3. I was impressed by Mr Smales as a witness, but he did give some evidence that was confusing. In chief he said that he had used the stairway before the incident. I am satisfied that this was so and that it was in the week before the incident as he was on site for about a week before the incident. He then said that he identified that it had no mid-rail [116] . He said that he spoke to someone, probably Mr Valentine, about it. I am satisfied that he did speak to someone about it, that it was probably Mr Valentine, though that is not critical, and that it was in the week before the incident. Mr Valentine was Freyssinet's representative on the site's safety committee. Mr Smales thought he probably raised it with Mr Vieira but he could not recall that [117] . The point of raising this with Mr Valentine, or whomever, and maybe Mr Vieira is that if there was no mid-rail, there was a safety issue. In cross-examination he said he had used the stairway and he did not notice it as being unsafe. He would have raised it if he did. Later in cross-examination, it was sought to establish that the earlier evidence had not been directed to the stairway in question, but to staircases generally and Mr Smales agreed with this. The evidence first given in chief by Mr Smales that he identified no mid-rail was so clearly related to the subject matter of the stairway that the answer must be read as directed to that and not to staircases generally. He also gave some evidence in re-examination that confirmed his evidence in-chief, but he later had doubts about that [118] . I think Mr Smales has probably conflated the stairway and stairways at the site generally and had not appreciated any distinction when he gave that answer, and the answer was not intended to refer to the stairway. 4. I am satisfied that Mr Smales did use the stairway before the incident. I am satisfied it was then in the condition it was in at the time of the incident, that is there was no mid-rail. His raising the matter of no mid-rail with Mr Valentine, or whomever, went to stairways generally. 5. I am not satisfied that Freyssinet had actual knowledge of the risk in relation to the stairway. 6. The absence of a mid-rail posed or was capable of posing a safety risk. Mr Smales was aware of that. That was the point of his reporting the absence of mid-rails generally to Mr Valentine, or whomever he reported it to. Mr Smales's raising of the issue establishes Freyssinet was aware of the risk of injury, including serious injury, by reason of falls from stairways. 7. There were ways other than Mr Smales's knowledge in which Freyssinet was aware that the absence of a mid-rail or other edge protection on an exposed edge of a staircase posed a risk of falling. 8. One way is demonstrated through Freyssinet's tendering process where Freyssinet included, as part of its tendering documents, a standard condition that it required head contractors to comply with. That was that where workers were working at height where they could fall two metres or more, edge protection in the form of handrail, mid-rail and, maybe, toe board were required [119] . The purpose of this was to prevent workers and materials falling through the gap [120] . This evidence may be confined to the working platform, but there is no reason why the principle or purpose underlying it would not apply to other surfaces where workers could fall two metres or more. The only difference could be in the degree of risk. 9. Another way in which Freyssinet was aware that the absence of a mid-rail or other edge protection on an exposed edge of a staircase posed a risk of falling lies in other documents of Freyssinet. Several of Freyssinet's documents support the fact that Freyssinet knew of the risk of serious injury that could result from fall from heights. Any one of these documents alone supports this. The documents are: * the plant risk assessments referred to in [53] above. These specifically address "Falls from Heights" and "Falling due to no edge protection"; * the Workplace Inspection Checklist referred to in [67] above had a section dealing with prevention of falls which included work platforms and guarding [121] ; * the Workplace Inspection Reports referred to in [72] above which record, from 1 September 2014 to 2 February 2015, 18 instances relating to handrails. The purpose of handrails was to prevent falls from exposed edges; * Project Quality, Safety and Environment Plan referred to in [85] above which, in several instances, refers to working at heights or fall from heights or using effecting barriers and edge protection [122] ; * the precursor of the "Edge Protection Requirements" document referred to in [88] and following above. There were differences between the precursor document and the document in evidence, but not such as to affect this point. 1. Even if these documents did not apply to the stairway because they were confined in their application to high risk construction activities or to working platforms or accesses leading directly to working platforms, they nevertheless establish that Freyssinet was aware of the risk of injury in fall from heights. The circumstances on a working platform may well be different to the circumstances in using a staircase, but a fall from height remains a fall from height with the same potential consequences, whatever the circumstances. The prospects of such a fall from a staircase may be considerably less than from a working platform, but that does not affect the fact under consideration here and that is that Freyssinet knew of the risk of injury involved in a fall from height. 2. Freyssinet's knowledge of the risk of injury involved in fall from height is also established by the testamentary evidence. That evidence included the following: * the evidence of Mr Smales referred to in [62] and [105] above; * the evidence of Mr Vieira referred to in [68] above; * the evidence of Mr Reyes referred to at [85] and [89] above. 1. Even if the evidence I have referred to above does not establish that Freyssinet was aware that the absence of a mid-rail on an exposed edge of a staircase posed a risk of falling with potentially consequent serious injury, it does establish that Freyssinet ought to have been aware of this. There is other evidence that establishes that Freyssinet ought to have been so aware. 2. I take judicial notice of the fact that in residential and commercial premises, the open side of a staircase has a handrail and an infill between the handrail and the landing or stairs, the infill being balusters or near horizontal parallel rails, or some other form of infill. This is commonplace and notorious [123] . Building sites under construction are different to completed residential and commercial premises. There is accordingly a limit to which that fact can be used. It can be used to demonstrate that those infills are in place to prevent people falling over the edge of such staircases because without those infills that risk exists. 3. Freyssinet ought to have been aware of the risk through the Standard. It is plain the Standard applied to the stairway and that the requirements of the Standard had not been met. For reasons which I give later [126], the prosecutor's case on particular 6.b. is not made out. The fact that particular 6.b. is not made good does not mean that the Standard did not apply to the stairway. It applied to the stairway by its own force. Nor does the prosecutor have to make good particular 6.b. for the Standard to have relevance. It remains relevant on issues such as whether Freyssinet ought to have known that the stairway was unsafe or posed a risk and whether it ought to have known that there was any reasonably practicable way of addressing any risk. 4. As a prudent and safe employer, Freyssinet ought to have known of the existence of the Standard and its contents relevant to the stairway. Freyssinet had a limited specialised role on the site. That is relevant to what work was expected of Freyssinet in the execution of the works generally and to how it should address any safety issue relating to the stairway. It cannot be used to limit the duty it owed to its own workers. The stairway was a means of access used by Freyssinet workers at the work site. It was also used by about 300 others who were workers of other subcontractors. Again, the extent of use by others cannot be used to limit the duty Freyssinet owed to its own workers. Under the contract, Karimbla assumed significant safety responsibilities. Yet again, that cannot be used to limit the duty Freyssinet owed to its own workers. 5. Freyssinet had no expertise in Standards relating to staircases. It did not need any expertise. Mr Smales, without reference to any Standard, identified that an absent mid-rail on a stairway posed a risk of fall from the stairway with potential resultant injury [124] . Further, Freyssinet's lack of expertise with respect to Standards is not to the point. The point is it had a duty to its workers. It had a duty to ensure, so far as reasonably practicable, the health and safety of its workers. That duty extended to accesses, including the stairway. Rather than rely on its lack of expertise as to staircases, edge protection and Standards, it should have undertaken a positive exercise in checking the safety of the stairway. Under its own documents, it had a duty to check that accesses and work platforms met or exceeded Standards' requirements [125] and this was part of Mr Vieira's job [126] . 6. The duty of an employer to an employee to provide safe access is a concept well known to and entrenched in law. Freyssinet's health and safety duty extended to the stairway as an access. Further, Freyssinet's documents recognise this. Those documents include: * Freyssinet's Workplace Inspection Checklist. It itemises over 100 matters on the checklist. Not all relate to the working platform or its direct access. Obvious examples are the items related to "Amenities" and "Traffic Control" [127] ; * the Workplace Inspection Reports before the incident contain instances of safety issues not limited to the working platform and its accesses being attended to. These include "NEED A BETTER WALK WAY FROM Q1 TO Q2", "Need more water taps in the middle of the site + bubblers", "Need more taps in middle of site + Bubblers for Grouting" [128] . 1. Testamentary evidence also supports Freyssinet's recognition of the stairway as an access in respect of which it had a health and safety duty. Mr Reyes's evidence referred to in [69] and [70] above, supports that. Less directly so does the evidence of Mr Vieira. He said he did not do a risk assessment on the stairways leading from the lunch room. The reason he volunteered was "Why would you do a risk assessment on something that you think is okay?" [129] . The reason offered was not that the stairway did not come within the role and responsibility of Freyssinet. 2. There was nothing difficult or complex about the nature of the duty Freyssinet owed concerning the stairway. Despite all the evidence about the work site being an organic site and constantly changing, even during the day, that evidence does not apply to this stairway. There was no change to this stairway over the six months it was used before the incident. Further, it was used by each worker about six times per day. In very simple terms, Freyssinet had a duty to be aware of the condition of accesses its workers were using and to know whether those accesses were safe. 3. The evidence establishes, and I find, Freyssinet: * knew there was a risk of serious injury if a person were to fall from height. That height may be defined as two metres or more; * knew that an absent mid-rail on the open edge of a staircase posed a risk of a person falling from the edge of the staircase; * ought to have known that the stairway lacked a mid-rail; * ought to have known that because there was no mid-rail, there was a risk of Mr Felemi falling from the open edge of the stairway. 1. Freyssinet submitted that it was not reasonably practicable for it to have identified the risk for a number of reasons which are conveniently summarised at [7.26] of its written outline of submissions. That paragraph lists the following reasons: 1. the remoteness of the risk; 2. Freyssinet had no right to control or alter the Basement Stairway; 3. the Basement Stairway was a common access way, that had been designated by the Principal Contractor as a safe means by which to access the lunch sheds; 4. Karimbla had expertise as a principal contractor, including in relation to formwork, and had a process for inspecting risks arising at common areas of the Site, such as the Basement Stairway, but did not itself identify (to use the Prosecutor's words) "that the stairway was not fitted with adequate guard-railing"; 5. other subcontractors, with expertise in formwork (which Freyssinet did not have) participated in Karimbla's common area risk identification procedure through membership of the Karimbla Site Safety Committee, but did not themselves identify "that the stairway was not fitted with adequate guard-railing"; 6. the Stairwell was used by a multitude of trades on a regular basis, none of whom raised issue with the guarding at the Basement Stairway; 7. it is unreasonable to require an employer to conduct a risk assessment of an entire Site that is changing on a regular basis throughout any given day, even though its workers are only required to be performing duties in a designated area. 1. I do not accept Freyssinet's submission in circumstances where: * falls from heights at work were identified by Freyssinet as risks; * it had identified in fact that absent mid-rails on stairs were a risk; * its health and safety duty applied to the work site and accesses used by its workers at the work site; * it should have been aware of the condition of the work site and of the accesses; * had it been so aware, it would have been aware of the absence of a mid-rail; * the absent mid-rail posed a risk of fall with potential serious injury, being a risk of the nature of which Freyssinet was aware; * the risk was obvious even though it had not been acted on by anyone before the incident. Freyssinet should have addressed the risk 1. There was remedial action available to Freyssinet to eliminate or minimise the risk. This calls for a consideration of the particulars that have been levelled against Freyssinet. The particulars are set out at [24] above. Particular 6.b. 1. The prosecutor must fail in respect of particular 6.b. This is for two reasons. The first is that the particular requires a standard of Freyssinet that the Act does not. The Act requires ensuring health and safety so far as is reasonably practicable. The particular would impose an obligation of ensuring not so limited. The second reason is that the particular seeks to put on Freyssinet an obligation in relation to "all stairways and steps at the site". There were several stairways and steps at the site, some of which Freyssinet had nothing to do with. There cannot have been any obligation on Freyssinet to do anything about those stairways and steps. 2. Of the remaining two particulars, I find it convenient to deal with them in reverse order. 3. In considering these particulars, it is important to bear in mind that Freyssinet's obligation extended only to what was reasonably practicable. I accept Freyssinet's submission that just because a step may be taken, that of itself will not amount to a breach [130] . 4. Breach involves consideration of what was reasonably practicable and that brings matters in s 18, as well as other matters into consideration. I consider these in the discussion below. 5. I start by making some observations specific to the first two items in s 18. 6. There was some debate about the meaning of "the likelihood of the hazard or the risk concerned occurring". It does not matter. I need to consider two matters. I need to consider whether a risk existed and, if it did, the likelihood of its coming to fruition. I have determined that a risk as particularised existed. That was a risk to Mr Felemi of death or serious injury from falling through the gap between the edge of the stairway and the hand-rail. 7. The next matter to consider is the likelihood that he would so fall and suffer death or serious injury. 8. The likelihood of that occurring was slight. Freyssinet calculated, and it was not challenged, that before the incident there were over 200,000 movements of workers on the stairway without incident. That is a relevant consideration pointing to the unlikelihood of the incident occurring. I do not find the fact that the inspectors investigated the scene without harnesses to be at all persuasive. The circumstances were entirely different. 9. The second item is "the degree of harm that might result from the hazard or the risk". It cannot be in doubt that fatality was a foreseeable consequence of a person falling from the first landing of the stairway to the third landing. Particular 6.c. 1. Particular 6.c. states that Freyssinet failed to take the step of: Identifying that the stairway was not fitted with adequate guard-railing and requesting Karimbla install adequate guard-railing such as an intermediate rail on the landings, or other suitable guarding that would remove or minimise the risk. 1. There are, in effect, two aspects of this particular. One is identifying the condition of the stairway and the other is making a particular request of Karimbla. 2. Freyssinet did not identify that the stairway was not fitted with adequate guardrailing. It should have identified this. Had it identified this, there is a number of things it could have done. The one relied on by the prosecutor here is to have requested Karimbla to "install adequate guard-railing such as an intermediate rail on the landings, or other suitable guarding that would remove or minimise the risk". That was a simple step to take. It was a step in accordance with practice on the site where if safety issues arose, they were addressed with the appropriate subcontractor or the builder (Karimbla). Mr Smales raised the issue of the absence of mid-rails in relation to staircases generally with Mr Valentine [131] or some other person. Either of these gentlemen could have raised the matter with Karimbla and made the request identified in the particular. 3. The evidence does establish that where requests were made by Freyssinet of other subcontractors or of Karimbla in relation to safety matters, they were attended to in the majority of instances. There is ample reason to expect that if a request had been made of Karimbla to remedy the stairway, it would have been attended to. Practically every item in the Workplace Inspection Reports from 1 September 2014 to 2 February 2015 was attended to [132] . Furthermore, Mr Vieira said that if a contractor did not respond to a safety request it would be escalated by going to the builder (Karimbla) and then "he has got to do it" [133] . He added that if the issue of mid-rail on the stairway had been raised with Karimbla, "they would have done something about it" [134] . One would think this is especially so considering the extent to which the stairway was being used and the relatively simple task involved in remedying it. Simplicity of the task is demonstrated by the fact that it was remedied, albeit on the second attempt, after the incident and in very quick time. Alternative staircases were available to be used when the remedial work was being done and one was used. 4. I do not think Freyssinet's submission that staircases did not require mid-rails as a general practice is made good. When considering staircases of the nature of that involved in this case, the Standard required it and so did common sense. The evidence of Mr Smales does not support Freyssinet's submission. In his evidence, he was talking about instances where work might be undertaken in a staircase area at the time or where the site was "organic" and changing day by day [135] . The stairway was in a static condition and had been for six months before the incident and no work was being done on it or near it. 5. Freyssinet's submission is that this request would have gone nowhere because it has not been established that had the request been made of Karimbla, it would have acted on it, or if it did, it would have carried out the task properly. As to the former, it was submitted that there were widespread failures before the incident with the absence of mid-rails, that this was an ongoing problem after the incident and that even as late as July 2015, Karimbla allowed stairways at the site without mid-rails. As to the latter, it was submitted that the first attempt by Karimbla to remedy the problem after the incident was an unsatisfactory attempt and it had to be re-done at the direction of Inspector Hill, thereby demonstrating that any request by Freyssinet was likely to be met with a result that was unsatisfactory and one that would not cure the problem. 6. The evidence does not support Freyssinet's submission. 7. Inspector Hill's evidence does not support missing mid-rails, except in one instance on 4 March 2015 [136] . 8. Freyssinet's submission relies in part on evidence of Mr Sykes. The parties debated whether his evidence supported widespread failures and ongoing problems with respect to absent mid-rails. I do not think it did, but it is not a matter of much moment. The critical question here is whether Karimbla would have responded appropriately on a request by Freyssinet to install adequate guardrailing. I am satisfied beyond reasonable doubt that it would have. 9. Mr Vieira's evidence referred to at [138] supports that Karimbla would have acted on a request to fix the problem. 10. The evidence relating to the incident in July 2015, though after the incident, also supports that Karimbla would have acted on a request. What the evidence revealed about the occasion in July 2015 was that it occurred on 23 July 2015. It was an instance of no mid-rail on a stairway. The evidence went further. It was reported and remedied the same day [137] . 11. Further, Exhibit PX 8 has seven Workplace Inspection Reports completed by Freyssinet from 2 March 2015 to 20 November 2015 covering a total of 26 varying items. All but three of them were attended to on the same day. One was attended to the following day [138] . The other two were noted as 'ONGOING" and related to housekeeping and trip hazards. This supports the position that matters reported were attended to promptly. 12. Freyssinet also relies on the evidence of Mr Reyes to support the submission that Karimbla did not adequately deal with safety issues across the site when matters were reported to them [139] . This evidence supports the fact that the same hazardous conditions could keep cropping up in workplace inspection reports [140] . It does not support the submission that the matters were not attended to by Karimbla when reported to it. His evidence further on was that Karimbla was very good at activating items and that to his knowledge all matters raised were attended to. [141] 13. Freyssinet also submitted that not all staircases have a mid-rail and whether there was one would depend on the type of posts. It was further submitted that Karimbla would not have installed a mid-rail if requested to do so by Freyssinet because the type of post installed would not support a mid-rail. The reference to the post is a reference to the pipe described in [14] above. There are several answers to that submission: 1. an obligation to install a mid-rail, if such an obligation arises, cannot be overridden by the existence of a post that would not support a mid-rail; 2. the evidence does not support the submission that the post would not support a mid-rail; 3. even if it did, a mid-rail could be installed by installing a proper post; 4. Karimbla, in fact, did install a mid-rail after the incident and did so in very quick time. 1. Freyssinet knew from practice and experience on the site that safety matters could be and were raised with Karimbla and that Karimbla addressed them. It would have cost Freyssinet nothing to request Karimbla install adequate guardrailing. Karimbla could have and would have attended to the request in quick time with no disruption to the work schedule. 2. I am satisfied beyond reasonable doubt that Freyssinet did fail in relation to the matter alleged in particular 6.c. Particular 6.a. 1. In particular 6.a., the prosecutor alleges Freyssinet failed by not: "Instructing workers not to access stairways and steps at the site unless they were fitted with adequate edge protection; (i) and in particular instructing workers, including Mr Felemi, not to use the stairway until an intermediate rail was fitted, or until other suitable guarding was installed that removed or minimised the risk". 1. There was debate about the meaning of this particular. I do not consider that, on its proper reading, it required Freyssinet workers to undertake an inspection and examination of stairways and steps. The allegation here, on its proper reading, is that Freyssinet should have inspected and assessed whether stairways and steps had adequate edge protection and should have been aware that the stairway did not and should have instructed Mr Felemi not to use it until an intermediate rail was fitted or other suitable guarding was installed. 2. Further, the particular is not to be read as contended for by Freyssinet as applying to all stairways and steps at the site as particular 6.b. does. It is to be read as applying to stairways and steps used by Freyssinet's workers. This reading is also supported by particular 6.a.(i). 3. There can have been no undue onus or hardship on Freyssinet in requiring it to determine if the stairway had adequate edge protection. It did not have that protection and, for reasons already given, Freyssinet should have been aware of that. In the circumstances, instructing Mr Felemi not to use the stairway was a step available to it and one that could and should have been taken. 4. There was ample evidence that if a safety matter was not attended to, workers were not to go there, even ceasing work if need be. [142] 5. In this instance, Freyssinet instructing its workers not to use the stairway would not have resulted in work ceasing as there were other stairways available. Even if work did cease while adequate edge protection was put in place that would have been for a short time. 6. In these circumstances, particularly if the step in particular 6.c. was not available, Freyssinet should have taken the step mentioned in particular 6.a. 7. I am satisfied beyond reasonable doubt that Freyssinet failed in relation to the matter alleged in particular 6.a. 8. For reasons given, I am satisfied beyond reasonable doubt that the fourth element of the charge ([29] above), namely that Freyssinet failed to comply with its duty under s 19(1) has been established. Did Freyssinet's failure expose Mr Felemi to risk of death or serious injury? 1. The next element for consideration is whether Freyssinet's failure exposed Mr Felemi to a risk of death or serious injury. 2. There are two failures to consider here. They may be shortly described as the failure to request Karimbla to remedy the problem and the failure to direct its employees not to use the stairway until it was fixed. 3. For reasons given, I am satisfied beyond reasonable doubt that had the request particularised been made of Karimbla, Karimbla would have attended to it and installed adequate guardrailing. 4. The very purpose of adequate edge protection is to stop personnel falling from the exposed edge. Had it been in place at the time of the incident on the stairway, it would have prevented Mr Felemi's fall to the third or bottom landing. At the very least, it would have minimised the risk of that occurring. A mid-rail was a step Mr Reyes identified as a needed improvement and he thought a mid-rail "wouldn't have gone astray" and would have addressed the risk [143] . 5. Had the step in particular 6.a. been implemented by Freyssinet, the risk would have been avoided. 6. I am satisfied beyond reasonable doubt that the fifth element of the charge ([29] above) namely that Freyssinet's failure exposed an individual, Mr Felemi, to a risk of death or serious injury has been established. Conclusion 1. The elements of the offence have been proved beyond reasonable doubt against Freyssinet Australia Pty Ltd. 2. I find Freyssinet Australia Pty Ltd guilty of the offence. 3. I will list the matter for sentence on a date convenient to the parties. ****** Endnotes 1. (TD2,77.01) 2. (TD3, 49.45) 3. (Exhibit PX 1, Vol 1, p34; TD2, 16 and 19) 4. (TD2, 21.22) 5. (Exhibit PX 1, Vol 1, p27) 6. (Exhibit PX 1, Vol 1, Tab 1, pp 5-8, 11, 14; Tab 4, pp 27 -30, 33, 37-40, 43) 7. (Exhibit PX 1, Tab 3, p35; Exhibit PX 1, p17; TD2, 35.35; TD2, 17.15) 8. (TD2, 19.17; Exhibit PX 1, p17[5]) 9. (TD2, 59.14) 10. (TD2, 70.46-71.26; TD3, 2-15) 11. (TD3, 27-29; 42-49) 12. (TD3, 58-62; 65; 70-74) 13. (TD3, 45.26-.36) 14. (TD3, 43.33-.39) 15. (TD2, 70.46-71.26; TD3, 2-15) 16. (TD6, 67.31-68.42) 17. (TD7, 109.05) 18. (TD5, 4.25) 19. (TD3, 67.28) 20. (TD2, 58.06) 21. (TD2, 81.45) 22. (TD4, 75.16; TD4, 78.35-.39) 23. (TD3, 41.17-.35) 24. (TD4, 65.10; 67.06) 25. (Exhibit PX 1, Vol 1, Tab 17) 26. (TD2, 63.20; Exhibit PX 1, Tab 11, pp163-4) 27. (Exhibit PX 9; TD5, 13.30) 28. (TD4, 61.35) 29. [6.51] Defendant's Outline of Submissions 30. (Exhibit PX 1, p262; TD3, 31.15-34; Exhibit PX 1, Vol 2, p265) 31. (TD2, 76) 32. (TD3, 32-33) 33. (TD4, 21.22) 34. (TD2, 67.35-.39) 35. (TD2, 67.49–68.01) 36. (TD2, 68.11-.22) 37. (TD4, 77.44) The reference in the transcript to "floor" should be "fall". 38. (Exhibit PX 1, Vol 2, pp201, 217, 227, 240, 250, 268, 282, 292, 305, 319, 328, 341, 356) 39. (TD2, 60.39-61.11; TD3, 53.34-.50) 40. (TD2, 60.39-61.11; 64.08) 41. (TD3, 53-54) 42. (Exhibit PX 10, Tab K; TD5, 17.19) 43. (TD4, 21.47 – 22.15) 44. (TD4, 53.50) 45. (TD4, 54) 46. (TD4, 82.19) 47. (TD4, 10-12.35) 48. (TD4, 10.29; Exhibit PX 1, Vol 2, p42) 49. (TD4, 15-16) 50. (TD4, 16.47) 51. (examples are in TD5, 14.07-.28; Exhibit PX 1, Vol 1, Tab 13) 52. (TD4, 58.27) 53. (Exhibit PX 1, Tab 14; TD5, 14.34) 54. (TD4, 18.30) 55. (TD4, 19.04) 56. (TD4, 19.09) 57. (TD4, 58.36) 58. (TD4, 59.17-61.22) 59. (TD4, 64.06) 60. (Exhibit PX 1, Vol 1, Tab 12, p167; TD4, 62.30) 61. (TD7, 162.15) 62. (TD8, 173-175) 63. (TD8, 174.13-.16) 64. (TD8, 175.22-.39) 65. (Exhibit PX 1, Tab 15; TD4, 19; TD5, 15.10) 66. (Exhibit PX 1, Vol 1, Tab 12) 67. (TD4, 22.32) 68. (Exhibit PX 1, Vol 1, Tab 12, p167) 69. (TD4, 23.25) 70. (Exhibit PX 1, Vol 1, Tab 12, p167-168) 71. (TD4, 24.05-.07) 72. (TD4, 24.33-.35) 73. (TD4, 23.20-24.41) 74. (TD4, 23.09; Exhibit PX 1, Vol 1, Tab 12, p167) 75. (Exhibit PX 1, Vol 1, Tab 6, p150) 76. (Exhibit PX 10, Tab C; TD5, 11.18; Exhibit PX 1, Vol 1, Tab 6) 77. (p43 of the document) 78. (TD4, 56.39) 79. (TD4, 25.09) 80. (TD4, 26) 81. (TD4, 26.49-27.08) 82. (TD4, 61.45; 62.20-63.09) 83. (Exhibit PX 1, Vol 1, Tab 12, p167; TD4, 62.30) 84. (Exhibit PX 10, Tab A; TD5. 11.01) 85. (Exhibit PX 10, Tab B; TD5, 11.09) 86. (Exhibit DX 17) 87. (TD5, 62.20) 88. (Exhibit PX 1, Vol 2, Tab 18, p1; TD5, 13.17) 89. (TD7, 163.16) 90. (Exhibit PX 1, Vol 2, p36-7) 91. (TD7, 164.24) 92. (TD7, 165.15) 93. (TD7, 167.24) 94. (TD7, 167.31-168.07) 95. (TD7, 168.49) 96. (TD7, 168.30-43, 169.20) 97. (TD7, 168.07; D8, 184.43) 98. (Exhibit PX 10, Tab L; TD5, 17.42) 99. (Exhibit PX 10, Tab M; TD5, 19.25, 19.36) 100. (Exhibit PX 10, Tab N; TD5, 20.39) 101. (Exhibit PX 1, Vol 1, Tab 8) 102. (Exhibit PX 1, Vol 1, Tab 8, p156) 103. (TD8, 189-190) 104. (Exhibit PX 1, Vol 1, Tab 5) 105. (Exhibit PX 1, Vol 1, Tab 5, cl 6.2.1.2, 6.2.1.3, 7.2.5, 7.2.6) 106. (TD2, 10.45; Exhibit PX 1, Tab 4, p25; TD5, 5.19) 107. Exhibits PX 16A, B) 108. (Exhibit PX 15; TD7, 88.25) 109. (TD7, 92.34) 110. (TD7, 92.33) 111. (TD6, 63.18-.45; TD7, 93.45) 112. (TD3, 51, 52) 113. (TD4, 30.27–35.13; 67.44-69.17) 114. (Exhibit PX 10, Tab P; TD5, 22.04) 115. (Exhibit PX 1, Vol 1, pp5, 6, 7, 27, 28, 30, 33, 37, 38, 40, 42, 43; Exhibit PX 10, p680) 116. (TD4, 36.02; 47.48) 117. (TD4, 37.26) 118. (TD4, 47.46-48.12) 119. (TD7, 168-169) 120. (TD7, 170.26) 121. (Exhibit PX 1, Vol 1, Tab 14, p179) 122. (Exhibit PX 1, Vol 2, pp11, 13, 15, 71, 136, 137) 123. s 144 Evidence Act 1995 124. [102] to [107] above 125. (Exhibit PX 1, Vol 1, Tab 12, p167) 126. (TD4, 62.33) 127. (Exhibit PX 1, Tab 14) 128. (Exhibit PX 1, Vol 1, Tab 15, pp249, 251, 256) 129. (TD4, 64.16) 130. (Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 [15], [38]) 131. (TD4, 36) 132. (Exhibit PX 1, Vol 1, Tab 15) 133. (TD 4, 73.47) 134. (TD4, 75.25) 135. (TD 4, 39.08-.31) 136. (Exhibit DX 19 at pp92-93) 137. (Exhibit PX 8, p20) 138. (Exhibit PX 8, p22) 139. (Submissions, 7.30) 140. (TD8, 176.41-.46) 141. (TD8, 177.29-.41) 142. (Exhibit PX 1, Vol 2, p15; Exhibit PX 1, Vol 2, Tab 16; TD3, 64.36; TD4, 22.08; TD4, 23.20-24.41; TD4, 24.41; TD4, 26.49-.27.08; TD4, 27.08; TD4, 33.44; TD4, 61.45; TD4, 62.20-63.09; TD4, 77.43 (the reference to "flow" hazard in the transcript should be "fall" hazard); TD4, 83.08; TD7, 166.32) 143. (TD8, 195.32-.40; 181.13) 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: 27 October 2017