District Court New South Wales Medium Neutral Citation: SafeWork NSW v The Austral Brick Co Pty Limited [2018] NSWDC 387 Hearing dates: 23, 24, 25, 26, 27, 30, 31 July 2018 and 1, 2, 3, 9, 10, 17 August 2018 Date of orders: 11 December 2018 Decision date: 11 December 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2 I will not enter final orders until the prosecution has had an opportunity to consider the application pursuant to section 5AE Criminal Appeal Act 1912. 3 I will list the matter on 4 February 2019 to determine the appropriate course. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker CRIMINAL PROCEDURE – pleadings – particularisation – case shift – danger of prejudice to defendant WORK HEALTH AND SAFETY – whether pleaded measures reasonably practicable – whether reliance on specialist contractor reasonable – whether cessation of work reasonably practicable – safety management system – objective knowledge of defendant OTHER – work at heights – brittle asbestos roof – specialist contractor engaged to undertake repairs – worker fell through roof – safety mesh – catch platform – job safety environmental analysis Legislation Cited: Criminal Appeal Act 1912 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulation 2013 Cases Cited: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 [3]-[6]. Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998). Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 Texts Cited: AS/NZS 4389.1996 'Safety Mesh' How to Manage Work Health and Safety Risks 2011 Managing the Risk of Falls in the Workplace 2011 Safe Work on Roofs Code 2009 Work Health and Safety Consultation, Co-operation and Co-ordination Code 2011 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) The Austral Brick Co Pty Ltd (Defendant) Representation: Counsel: Mr B Docking (Prosecutor) Mr A Moses SC with Mr P Sharp (Defendant) Solicitors: SafeWork NSW (Prosecutor) Seyfarth Shaw (Defendant) File Number(s): 2016/367184 Publication restriction: None Judgment Introduction 1. The Austral Brick Co Pty Limited (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Nathan Shearer, Trevor Smith and Peter Smith, workers at work in the business or undertaking, to a risk of death or serious injury contrary to section 32 of the Act. 2. Mr Shearer was employed as a plumber by Allied Plumbing Pty Ltd (Allied). Allied had for about 17 years provided plumbing services to the defendant at numerous sites including at Plant 2 of its premises located at 738-780 Wallgrove Road, Horsley Park (Plant 2). On 30 January 2015 Mr Shearer, Trevor and Peter Smith were working on the roof of Plant 2 to repair a box gutter. At about 8:25am, Mr Shearer fell through the roof sheeting of Plant 2 about 6.5m to the concrete floor and was fatally injured. 3. The defendant admitted that Elements 1 and 2 of the offence were established beyond reasonable doubt on the evidence. 4. The issues in the case are: 1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [6] of the Summons? (Element 3) 2. Did the defendant's breach of duty expose Mr Shearer to a risk of death or serious injury? (Element 4) Facts 1. The defendant conducted a business manufacturing brick and pavers at the Horsley Park premises. 2. Allied was owned and operated by Trevor Smith. Trevor Smith was a director of Allied and it had been in existence for 32 years. Trevor Smith was a licensed roof plumber and had approximately 40 years' experience. Peter Smith was the son of Trevor Smith and was employed by Allied. Peter Smith was a licensed roof plumber and had about 16 years' experience. Nathan Shearer was an employee of Allied and the son-in-law of Trevor Smith. He was a qualified roof plumber, but had not completed the training to become a licensed roof plumber. The distinction being that Mr Shearer did not have a licence to conduct his own business as a roof plumber. Each of the employees of Allied was trained to work at heights. Prior to the incident, Trevor and Peter Smith had undertaken a four day training course on asbestos. 3. In or about January 2008 the defendant ceased production from Plant 2, with the intention of recommencing production when and if required in the future. In or about November 2014, the defendant started to take steps to recommission Plant 2. As part of that work John Lowe, a production supervisor of the defendant contacted Trevor Smith of Allied to attend and undertake repairs to the roof of Plant 2 in order to make it waterproof. 4. The roof of Plant 2 was constructed of steel beams and purlins, covered with asbestos cement corrugated roof sheets (AC sheets). Some of the AC sheets had been replaced at various times with non-asbestos fibre cement sheets. The different roof sheeting could be differentiated by its colour. The roof of Plant 2 consisted of three gable rooves, joined by two box gutters running the length of the building and drained by downpipes coming down adjacent to steel columns. The box gutters had been made from asbestos cement flat sheets and the downpipes were also asbestos cement pipes. In some areas, there was wire mesh installed under the AC sheets. The roof above the kilns and the dryers of Plant 2 was in a poor state of repair. The manufacturing process gave off acidic fumes that affected the integrity of the steel beams and purlins. In some places the AC sheets were unsupported and the wire mesh had rusted through. 5. In or about December 2014 Trevor Smith attended Plant 2 and spoke to Mr Lowe and Stephen Wall, the state manufacturing manager of the defendant. Mr Wall was in charge of production at the Horsley Park premises and throughout New South Wales. At that point in time, Mr Lowe was responsible for organising the necessary contractors to recommission Plant 2. On that occasion Trevor Smith was shown an area of the roof of Plant 2 where a box gutter was leaking. 6. At the initial inspection, Trevor Smith, Mr Lowe and Mr Wall discussed the work. Trevor Smith suggested that the easiest way to effect the repair was to install a galvanised sheet metal liner into the existing box gutter and to seal it with sand and cement. This would obviate the need to remove the existing asbestos cement box gutter. The men identified some of the areas of the roof as "no go zones" including the areas adjacent to the kilns and the dryers, because the roof appeared to be unsupported in those areas. The defendant agreed to make available an elevated work platform (EWP) for the purpose of the workers accessing the roof. 7. Trevor Smith and Peter Smith had previously worked on the roof of Plant 2 on a number of occasions. In or about June 2014, Allied had replaced roof sheets in Plant 2 and refitted purlins and the wire mesh under the roof sheets. In December 2014 and January 2015, Allied had replaced fibreglass roof sheets and repaired steel guttering. 8. There were signs on the roof of Plant 2 that read: WARNING BRITTLE ROOF COVERING USE PLANKS OR LADDERS IN EMERGENCY ONLY STAND OR WALK UPON LINES OF NAILS OR SCREWS 1. Trevor and Peter Smith were aware of these signs on the roof of Plant 2. The Allied workers had adopted the practice of walking on the screw lines as these indicated the presence of purlins underneath them. Trevor and Peter Smith understood this to be industry practice in accordance with their training, and it was a practice that they observed Mr Shearer to follow. 2. The defendant had in place a work health and safety system that applied to contractors at Plant 2. Contractors were required to undertake a site specific induction consisting of the viewing of a video presentation and then answering a questionnaire. The induction covered the elements of the work health and safety system of the defendant including the need for contractors to complete particular documentation. Each contractor was required to be inducted to site every two years. Each contractor was required to sign in and out of the site in a visitors book. 3. At Plant 3 and at other sites of the defendant, there was a Contractor's Assembly Point/Induction Centre (the CAP). The CAP consisted of a bench along which there was signage on the wall in the form of a flow chart requiring a contractor to move through the identified 12 steps before commencing work on the site. [1] At each step, if a form was required to be completed the book containing the form was in a holder on the wall underneath the signage relating to that form. Step 1 was the sign in book. Step 2 required the contractor to complete the induction quiz. Step 3 required the completion of a Job Safety and Environmental Analysis (JSEA). Step 5 required the completion of a working at heights permit. Step 7 required the contractor to confirm that all power tools were tested and tagged. Step 8 required the contractor to consider if all of their licences to operate mobile plant were current, for example EWP and crane licences. Step 9 required the contractor to consider if all personnel had the required personal protection equipment and safety devices. Step 10 required the contractor to complete a permit to work form. Step 11 required the contractor to hand back the job when complete and to sign out. Step 12 directed contractors not to proceed with any work if they had concerns about the JSA or safety and directed them to contact various employees of the defendant. If the contractor could not satisfy steps 7-10 and 12 the signage directed them to 'STOP DO NOT PROCEED'. 4. Allied was familiar with the CAP at Plant 3 at the Horsley Park site. In December 2014 to January 2015 there was no such set up available at Plant 2. However, the relevant forms to be completed were kept on the table in the fitter's workshop in Plant 2 and Allied workers went to the fitter's workshop to complete the required documentation. The Allied workers understood that it was a requirement of the defendant to complete the necessary documentation prior to commencing work at the site. 5. On 22 April 2014 Trevor Smith completed an Induction Signoff form. In that form Trevor Smith acknowledged the defendant's WHS compliance requirements relating to a number of matters including the health and safety policy, contractor's responsibilities, risk management processes, working at heights safety and asbestos on site. Trevor Smith provided details of his licence to operate as a plumber, including as a roof plumber, and his licence to operate an EWP. Trevor Smith acknowledged by signing that document that he had been inducted and understood the need to comply with the defendant's WHS system and that he had understood the verbal and written information, instruction and training. 6. On 3 April 2014 Trevor Smith completed a Contractor Induction Assessment form, scoring 17 out of 17 for his comprehension of the induction information. 7. On 22 April 2014 Peter Smith completed the same induction process. 8. On 8 February 2013 Mr Shearer completed a similar induction process. 9. For the work in the December 2014 to January 2015 period Allied completed the following documents from the defendant's WHS system in relation to the work of repairing the box gutter on the roof of Plant 2. 10. On 3 December 2014 Allied completed a Job Safety Environmental Analysis (No 015141) dated that day for the task of 'Working at Height' (JSEA). [2] The JSEA identified the potential risk of a fall from height and rated that risk as low. The JSEA listed the use of a scissor lift or an EWP as a precaution against that risk. The JSEA was signed by Trevor and Peter Smith. The JSEA form did not provide for the JSEA to be reviewed or authorised by an employee of the defendant. The JSEA was left in the book after it was completed. The JSEA was revised on 9 January 2015 by adding a reference to 'Hot Work' which is not otherwise relevant. The JSEA was signed by Trevor and Peter Smith, but not by Mr Shearer. 11. On 3 December 2014 Allied completed a Working at Heights Permit (No 009045) dated that day, signed by Trevor Smith as the responsible supervisor of Allied (WAHP-45). The WAHP-45 identified the relevant control measure to be used was a portable or fabricated mobile platform (scissor lift) with harnesses required if so specified in the risk assessment. The WAHP-45 was signed by all three of the Allied workers. [3] The WAHP-45 was left in the book after it was completed. 12. On 3 December 2014 Allied completed a Contractor Permit to Work (No 009045) dated that day, and signed by Trevor Smith, Peter Smith and Mr Shearer on behalf of Allied (CPTW-45). By signing the document the Allied workers were accepting that the they understood the toolbox instructions to safely conduct the scope of work and that the work would be completed in accordance with the documented JSEA. The CPTW-45 was signed by Trevor Smith on behalf of Allied to accept a handover of the area where the work was to be undertaken if it was not under the direct supervision of a supervisor of the defendant. The CPTW-45 was left in the book after it was completed. The CPTW-45 represented that Allied and its employees: 1. were certified, licensed and competent to undertake the scope of work; 2. had a current induction; 3. had tools and equipment that were fit for duty; 4. had any hazards at the site identified and explained to them; 5. had completed a risk assessment and documented a JSEA; 6. would be adequately supervised; 7. had a Working at Heights Permit; 8. had conducted a toolbox meeting. 1. On 9 January 2015 Allied completed a Working at Heights Permit (No 009046) dated that day, signed by Trevor Smith as the responsible supervisor of Allied (WAHP-46). The WAHP-46 identified the relevant control measure to be used was an EWP with harnesses required. The WAHP-46 was left in the book after it was completed. The WAHP-46 was signed by all three of the Allied workers. [4] 2. On 9 January 2015 Allied completed a Contractor Permit to Work (No 009046) dated that day, and signed by Trevor Smith and Peter Smith on behalf of Allied (CPTW-46). The CPTW-46 certified the matters referred to in [24] above. The CPTW-46 was left in the book after it was completed. The incident 1. On 30 January 2015 each of the three Allied workers arrived in separate work vehicles at Plant 2 between 6.00am and 6.30am. Either Peter Smith or Nathan Shearer completed the visitors book on behalf of all three of them. 2. The Allied workers set up the elevated work platform and ascended onto the roof. To get to where they needed to repair the gutter the Allied workers had to walk on the roof across two of the gables, a distance of about 30-40m. To do so they walked on the screw lines. 3. The gutter insert comprised three or four pieces of metal sheeting, which were brought up and carried across the roof. Trevor Smith dropped the first piece of lining into the gutter while Peter Smith and Mr Shearer carried the other sections up onto the roof. 4. The gutter was cleaned out with a trowel or shovel, and the new sections of lining were dropped in on top. The workers were required to stand on the roof to perform this task. 5. When the task was nearly completed, Peter Smith began packing up to go to his next job. Mr Shearer headed back towards the EWP to bring back a bucket of sand and cement, which was to be used to fix the insert in place at either end. 6. Trevor Smith was riveting the pieces of the gutter insert together when he heard a noise behind him. Upon hearing the noise, he walked over and saw that Mr Shearer had fallen through the roof. Trevor Smith estimated the diameter of the hole to be approximately 3 feet. He had his back to Mr Shearer and did not see him fall. Mr Shearer fell approximately 6.4 metres through a section of the roof that was between two supporting purlins. 7. Shane Jugl and Damien Ninness, two contract tradesmen engaged by the defendant, both witnessed Mr Shearer fall to the ground. His head and the right side of his upper body impacted the ground first. The ambulance service was called at approximately 8:27am. Mr Jugl and Mr Ninness attempted to administer first aid until the ambulance arrived. 8. Mr Shearer died on 31 January 2015 as a result of his injuries sustained in the fall. The elements of the offence 1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and prove it beyond reasonable doubt. 2. 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. The elements of the offence are: 2. Element 1 The defendant was conducting a business or undertaking; 3. Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 1. (ii) while the workers were at work in the business or undertaking; 2. Element 3 The defendant failed to comply with its health and safety duty; and 3. Element 4 The failure exposed an individual to a risk of death or serious injury. The relevant law 1. The offence is one of strict liability: section 12A of the Act. 2. A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act. 3. A duty provided for by the Act is not transferable: section 14 of the Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: section 16 of the Act. 4. If more than one person has a duty in relation to the same matter under the Act, each duty holder must, so far is as reasonably practicable, consult, co-operate and co-ordinate activities with all other duty holders in relation to the same matter: section 46 of the Act. 5. The PCBU must, so far as is reasonably practicable, consult with the workers who are to carry out work for the business or who are likely to be affected by a health or safety matter: section 47 of the Act. Consultation includes sharing relevant information with the workers, giving them a reasonable opportunity to express their views and to contribute to the decision making process, taking into account the workers' views and advising them of the outcome of the consultation process in a timely manner: section 48 of the Act. Consultation is required, inter alia, when identifying hazards and assessing risks to health and safety from the work and making decisions about ways to eliminate or minimise those risks: section 49 of the Act. 6. The content of the duty is set out in section 19 of the Act, which 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. (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 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 … (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. 1. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law. 2. The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 3. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury. 4. The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67]. 5. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 [3]-[6]. 6. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it, or minimise it. 7. "Reasonably practicable" is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about; 1. the risk, and 2. ways of eliminating or minimising the risk, and 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk. 1. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity, and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33]. 2. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ. 3. The phrase "exposed to risks" contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess. 4. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]. 5. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J. 6. The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ. 7. The use of a contractor with specialist skills or knowledge is a relevant consideration: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. Where a contracting party relies on a specialist contractor to perform a task demonstrably within the contractor's area of expertise, it would not ordinarily be practicable for it to do more, provided that the task undertaken reasonably appeared to have been carefully and safely performed by the contractor: Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998). 8. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 9. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32]. 10. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable. 11. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129]. 12. Clause 78 Work Health and Safety Regulation 2013 (the Regulation) requires a PCBU at a workplace to manage risks to health and safety associated with a fall of a person from one level to another that is reasonably likely to cause injury. This includes a fall on a surface through which a person could fall. The PCBU must ensure, so far as is reasonably practicable, that the work is carried out on the ground or a solid construction. Solid construction means a surface that is structurally capable of supporting all persons and things that may be located on it. 13. If the risk of a fall cannot be eliminated, the PCBU must minimise the risk of a fall by providing adequate protection in accordance with clause 79 of the Regulation. Clause 79 requires the provision of a fall prevention device, or if that is not reasonably practicable, a work positioning system or if neither a fall prevention device or a work positioning system are reasonably practicable, a fall arrest system. 14. A fall prevention device relevantly includes working platforms and covers: clause 79(5) of the Regulation. A work positioning system means any plant or structure that enables a person to be positioned and safely supported at a location for the duration of any relevant work being carried out: clause 5(1) of the Regulation. A fall arrest system means plant or material designed to arrest a fall: clause 5(1) of the Regulation. 15. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. 16. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]. 17. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378. 18. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130]. consideration Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [6] of the Summons? 1. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37]. 2. In order to find Element 3 established I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take one of the steps set out in the particulars of breach in [6](a)-(d) of the Summons and that the step was reasonably practicable. Inspector Tzakos' evidence 1. Inspector Tzakos was qualified by the prosecution as an expert on safety issues. The defendant challenged his expertise, but withdrew the objection to his evidence after the voir dire and his evidence became evidence in the hearing. In cross-examination it became clear that Inspector Tzakos had made a number of fundamental errors in interpreting the various Codes of Practice that undermined a number of his opinions. Further, he was at least initially involved in assisting the lead investigator in the investigation, before being retained as an expert. In the circumstances, I have afforded his evidence little weight. General matters 1. The risk posed to the workers was the risk of falling through the roof or off the roof of Plant 2, during the course of the work. The AC sheets had been in place for many years and were known to have become brittle. 2. The defendant had actual knowledge of the risk. It had caused to be installed signage on the roof of Plant 2 warning of the risk and prohibiting persons from walking directly on the roof. 3. In response to the risk the defendant had prohibited its employees from working on the roof of Plant 2 and required that specialist contractors be retained to perform any such work. 4. The knowledge of the defendant included the matters referred to in its WHS system and its prior knowledge of Allied, and the actions of the defendant included the steps that it had required Allied to take in its WHS system. The information provided by Allied to the defendant could also be considered part of the consultation and co-ordination process provided for in section 46 and following of the Act. 5. The defendant's WHS system consisted of 15 modules. Module 1 concerned formulating a list of the applicable law and other safety material that was to be referred to in the WHS system. The National WHS Manager of the defendant was required to update the references on a six monthly basis. Module 1 incorporated the Act, the Regulations, selected Australian Standards and approved codes of practice including the How to Manage Work Health and Safety Risks 2011 (the Risks Code) and the Work Health and Safety Consultation, Co-operation and Co-ordination Code 2011 (the CCC Code). I am satisfied that the defendant had actual knowledge of the legislation and codes of practice referred to in Module 1. 6. Module 1 did not incorporate AS/NZS 4389.1996 'Safety Mesh' (the Standard) or the Safe Work on Roofs Code 2009 (the Roofs Code) or Managing the Risk of Falls in the Workplace 2011 (the Falls Code 2011). The content of the Roofs Code and the Falls Code were readily available to the defendant, especially through its WHS Managers. The Falls Code included reference to the Standard and I am satisfied that the content of it was readily available to the defendant. Further, the defendant employed WHS staff at the Horsley Park site who were available to be consulted, if required. 7. I am satisfied that the defendant knew or ought to have known of the control measures that were generally available to eliminate or minimise the risks of falls from height. 8. I am satisfied that the risks associated from working at heights were not encountered by the defendant on a regular basis or as a part of its core business. The evidence was silent as to how often, if at all, any of its employees were required to work at height. Mr Lowe and Mr Wall were not trained to work at height or qualified to use an EWP. 9. Mr Lowe became the supervisor of the work required to recommission Plant 2, but was not in the maintenance department or used to the processes and systems involved. His main role was to supervise contract labourers to clean out the mud from Plant 2 that was present as a result of a flood. The other work involved fitters, who were being supervised by the leading hand fitter and some electrical work. The electricians were working under a detailed SWMS prepared by their head contractor. Mr Lowe was a qualified electrician and had the ability and opportunity to supervise their work, although it is not clear from the evidence that he did so. The Contractor Permit to Work Management System Procedure (MSP) required an authorising supervisor to be trained in the procedure. Mr Lowe was not asked if he had received that training. 10. Mr Lowe could not physically supervise the work of Allied on the roof because he was prohibited by the defendant from going onto the roof of Plant 2 and he was not trained to do so. Mr Wall was in a similar position. Mr Wall had some familiarity with the defendant's WHS system by reason of his position, but his involvement with Allied in relation to the work was minimal. 11. The defendant knew from the application of its contractor management system that Allied had made the representations set out in [24] and [26] above. Allied had operated at Plant 2 and other sites of the defendant safely for about 17 years. In that period the defendant had issued one non-compliance notice to Allied for failure to isolate a power source in conducting a particular task. Mr Wall was aware that the defendant had purchased aluminium scaffold boards for use on the roof of one of the Plants at the Horsley Park premises. Mr Wall had also seen Allied using timber boards and EWPs with harnesses. (a) The defendant should have informed Allied Plumbing that the wire mesh installed under the roof of Plant 2 was not installed to operate as safety mesh, did not comply with AS/NZS 4389.1996 'Safety Mesh' and was not a fall prevention device. 1. Particular (a) is based on the premise that it was reasonably foreseeable for the defendant to know that the wire mesh installed under the AC sheeting was or could be relied on by Allied as being compliant with the Safety Mesh Standard and thereby could be relied on as a fall prevention device. 2. The objective facts can be stated as follows. The wire mesh was installed before the AC sheets were affixed to the beams and purlins. From the age of the building it was apparent that Plant 2 was constructed before 1996, when the Standard was introduced. 3. Inspector Maddaford gave evidence that it was common building practice in the 1960's to install wire mesh over beams and purlins of a roof to keep the roof sheeting from falling through the framework of the roof whilst the sheeting was being affixed. At that time, before the publication of the Safety Mesh Standard, the mesh was not intended to operate as a fall prevention device. 4. There were parts of the wire mesh that were missing including near the kiln and the dryers, where the wire mesh had rusted out and in the area where Mr Shearer fell, which could be observed in the photographs taken from the floor of Plant 2 after the incident. There was no discussion about the wire mesh at all between Trevor Smith, Mr Lowe and Mr Wall on the occasion when the work was being discussed, or after that point up and until the incident. Allied did not specify the wire mesh as a control measure in the JSEA completed on 3 December 2014. The employees of Allied were specialist roof plumbers whose ordinary work caused them to work at height regularly, particularly on top of commercial roofs, including those constructed of AC sheeting including Plant 2. 5. In my view it was not reasonably practicable for the defendant to have anticipated that Allied were relying on the presence of the wire mesh as a fall prevention device. In this case Allied was in the best position to know about the use of safety mesh as a fall prevention device and about the content of the Standard. Work at height did not form part of the defendant's core business. The Roofs Code and the Standard were not incorporated into Module 1 of the defendant's WHS system. In contrast, working at height on asbestos roofs was a part of the core business of Allied. The Allied workers were experienced in doing that work. Allied held itself out as being competent, trained and experienced to do that work. There was no reason in the evidence for the defendant to doubt that the representations of Allied on those matters were untrue. 6. Trevor and Peter Smith gave evidence that they assumed that the wire mesh could be relied on as a fall prevention device, but neither of them raised this possibility with anyone from the defendant. Allied did not specify in its JSEA that it was relying on the wire mesh as a fall prevention device. 7. The evidence of Mr Lowe and Mr Wall was clear that prior to the incident they did not know whether or not the wire mesh was safety mesh. They would have had to make enquiries with others if the question had been asked of them. 8. Allied was a specialist contractor. It was a licensed roof plumber. The work it was being asked to do was to make the guttering on the roof of Plant 2 waterproof and was thereby within its specialist expertise. No employee of the defendant had the required expertise to perform the work and they were not lawfully permitted to do so without a licence. The work of a licensed roof plumber is often required to be performed at height. The workers from Allied had been trained at working at heights. Trevor and Peter Smith had been trained to work on asbestos roofs. 9. Allied knew that the defendant did not require it to perform the work in an unsafe manner and that it could have requested other equipment to be supplied by the defendant, if such equipment was required to perform the work safely. 10. The wire mesh was missing in some areas, including in close proximity to where the box gutter was to be repaired. The fact that the mesh was missing was observable from the photographs taken from the floor of Plant 2 after the incident. Trevor and Peter Smith knew that there were areas where the wire mesh had rusted through, particularly in areas close to the kiln and the dryers. 11. The evidence of Trevor and Peter Smith was that they assumed that the wire mesh was present as a safety measure and that they would not have worked on the roof if they had been told that the wire mesh was not intended to be a fall prevention device. I do not accept that evidence for the following reasons. 12. First, the JSEA did not list the wire mesh as a control measure that Allied was relying on when completing the work on the roof. The assertion that Allied relied on the wire mesh as a safety measure was not made until a time after the incident, when Allied had been charged with an offence and it was in a position to gain an advantage from making that assertion. 13. Second, a visual inspection from the floor of Plant 2 would have revealed that the coverage of the wire mesh was incomplete in the area where the work was to take place and elsewhere, for example where the wire appeared to have rusted through. The missing wire mesh was obvious from the photographs taken after the incident. Despite alleged inspections by Trevor and Peter Smith, they both failed to notice the missing wire mesh. Further, Allied took no steps to undertake a closer examination of the wire mesh in the area that the work was to take place. On the day of the incident the EWP was available and could have been used to get closer to the roof and to undertake an integrity test on the mesh. In my view, Trevor and Peter Smith did not notice the missing wire mesh and did not take the opportunity to examine it closely because they were not relying on its presence as a fall prevention device before the incident. 14. Third, the evidence of Trevor and Peter Smith was inconsistent as to their prior knowledge of the content of the Standard and the specifications needed for the wire mesh to be considered safety mesh within the meaning of the Standard. Trevor Smith gave evidence that as a result of observing construction of industrial buildings over the years that he assumed that the wire mesh laid under roof sheeting was put there as a safety measure to prevent persons on the roof from falling through it. Trevor Smith denied any knowledge of the requirements of the Standard. However, in one job about ten years earlier he had replaced some fibreglass roof sheeting and at that time looked up the specifications required for the wire mesh to be installed underneath it. I am satisfied that Trevor Smith knew about the specifications in the Standard from that time. The evidence of Peter Smith was similar that for that job, he looked up the specifications required for the installation of the safety mesh. I would infer that he consulted the Standard to obtain that information and that he was also aware of the requirements for the wire mesh to be considered to be a fall prevention device. Neither Trevor nor Peter Smith took steps to ensure that the wire mesh installed at Plant 2 complied with the installation requirements or subjected it to an integrity test as provided for in the Standard. Further, Allied had previously supplied to the defendant a SWMS authored by the Master Plumbers Association that made reference to the Standard. 15. I would pause to note that the way this evidence was led from both Trevor and Peter Smith by the prosecutor was problematic. The question was asked of both of them to the effect, 'Did anyone from the defendant tell you that the wire mesh was not safety mesh?' This and similar questions implied that the defendant was under an obligation to inform them of this fact. In the circumstances of the incident, it is unsurprising that they would latch onto a negative response. It was only later in their evidence that they were asked neutrally what they knew about 'safety mesh'. Both then gave contradictory evidence to the effect that they had seen the Standard. In my view, their evidence was tainted because they were asked leading questions or inadvertently led by the methods adopted in their examination-in-chief on controversial matters. Further, both Trevor Smith and Peter Smith gave evidence to minimise their own culpability in the incident. Their disavowal of the relevant Codes and the processes involved in the preparation of the JSEA and other relevant documentation was not believable. I have exercised considerable caution in accepting their evidence and have only done so where I have expressly indicated that. 16. I am not satisfied beyond reasonable doubt it was reasonably practical for the defendant to inform Allied that the wire mesh was not fitted in compliance with the Standard, because this was known by Allied and because Allied was not relying on the mesh as a fall prevention device. (b) The defendant should have undertaken and/or caused Allied Plumbing to undertake a visual inspection of the underside of the corrugated cement roof of Plant 2 that documented observations from the inspection and identified that the roof was brittle or fragile and should not be walked on to undertake the planned work and wire mesh was missing in some areas. 1. Particular (b) required an underside inspection of the roof and the documentation of the result of that inspection to demonstrate two matters that were already well known to Allied. 2. The workers from Allied had recent experience in working on the roof of Plant 2 and were familiar with the warning signs affixed to the roof. That signage made it clear that the roof was brittle and that it should not be walked on, except in the case of an emergency. 3. The workers from Allied also knew that there were areas of the roof where the wire mesh was missing, in particular adjacent to the kiln and the dryers. Further, it was obvious from an inspection from the floor of Plant 2 that the wire mesh was missing in the area adjacent to where the work was to take place. For the reasons stated, Trevor and Peter Smith did not undertake an adequate visual inspection of the wire mesh because they were not relying on it as a fall prevention device. 4. I am not satisfied beyond reasonable doubt that the inspection required by particular (b) would have had any impact on how the work could have been carried out safely, because Allied had actual knowledge of the matters intended to be the subject of the required inspection, it was obvious that the wire mesh did not comply with the Standard. (c) The defendant should have prevented workers from working on the roof of Plant 2. 1. The cessation of work can be a reasonably practicable measure, and whether it is or is not is a question of fact: John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 at [114]. 2. The prosecution's argument on this particular was very difficult to discern and it was the source of a number of legal arguments throughout the hearing. The prosecutor expressly opened that it was not part of the prosecutor's case that the defendant had failed to comply with its WHS system, but that the existence of the system would prove knowledge of the risk and available control measures that were reasonably practicable. In opening, the prosecutor accepted that the only relevant control measures that should have been taken were the matters pleaded in [6] of the Summons. 3. Counsel for the prosecutor said at T13 line30: This case is not about proof of a causal connection between the pleaded risk In Annexure A [to the Summons] and particular 5 and a failure to implement the defendant's paper systems. 1. And continued at line 41: I repeat, this case is not about proof of a causal connection between the risk and a failure of the defendant to implement paper systems. 1. As I have already set out, the risk of serious injury or death from a 6-7m fall was obvious and no reference to the defendant's WHS system was required to establish that. 2. In opening the prosecution pointed out that the defendant's WHS system required contractors to be authorised to conduct work on the roofs of the defendant's buildings. The Working at Height and Prevention of Falls MSP relevantly provided: A "working at height" permit is required when contractors and others undertake work at heights. A JSEA may be completed by the contractor and does not require the participation of the Site Supervisor. However the JSEA must be site and task specific and be provided to the Site Manager/Supervisor prior to job commencement. … Brickworks employees are not permitted to work (eg repair and maintain) on top of Brickworks' building roofs. The Site Manager must authorise contractors who conduct roof work. To work on roofs a specific risk assessment and JSEA is required in line with State Regulatory requirements refer to WHS-MSP-All-01.002. 1. The prosecution continued in the opening that, in the absence of wire mesh that complied with the Standard there was no 'fall prevention mechanism' (which I interpolate to mean fall prevention device) and therefore the work should have been prohibited. 2. Mr Wall gave evidence that the defendant considered that it was inappropriate to review a contractor's JSEA, particularly where they are providing specialist services, and this was reflected in not requiring the participation of the defendant's supervisor in the completion of the JSEA as referred to in [107] above. 3. On day 6 at T481, the defendant took objection to the questions asked in examination-in-chief of Mr Lowe. In particular, Mr Lowe was being asked about his knowledge of Allied's JSEA and its contents. Mr Lowe's evidence was that he had not seen the JSEA before the incident and had in fact only seen it when it was shown to him by his lawyer in the course of preparation of answers to a section 155 notice. The prosecutor contended that the JSEA only identified the EWP as a control measure and did not identify the risk of falling through the roof when walking across it to where the gutter was to be repaired. If the defendant's WHS system had been followed, the prosecutor contended that the tasks would have been broken down and identified, leading to the identification of the risk of falling through the roof and the need for additional control measures or precautions. 4. Mr Lowe gave evidence that he was not an authorising supervisor for the purpose of the defendant's WHS system. He had been tasked with getting Plant 2 up and running again, but he was not in the maintenance department and was generally unfamiliar with the procedures of supervising contractors. 5. In the prosecution's closing submissions, it was contended that particular 6(c) was reasonably practicable because working on the roof of Plant 2 posed a risk of serious injury or death to the workers from falling through the roof that could not be eliminated or minimised, by reason of the following: 1. the wire mesh installed was not safety mesh complying with the Standard and could not be relied on as a fall prevention device; 2. fall arrest systems could not be used because there were no anchor points on the roof and it was not practicable to drill holes in the AC sheets for the purpose of fixing anchor points; 3. industrial safety nets were not practicable because no enquiry had been made about the integrity of the roof structure to support them (when laden and under strain, if a person was to fall into one). 1. The prosecution's closing submissions continued by referring extensively to the defendant's WHS system. Finally, the prosecutor sought to demonstrate that the defendant had given conflicting accounts of who was responsible for what under the defendant's WHS system. 2. Particular (c) seems to me to be predicated on the fact that the defendant knew or ought to have known by reason of the documents completed by Allied that it was not employing any effective control measure to eliminate or minimise the risk of a fall through the roof of Plant 2. The high point of this potential argument is the content of the JSEA, which failed to break the work down into sequential tasks, to identify the risks to be addressed in each and to specify appropriate control measures. 3. It was not a particular of the charge that the defendant should have reviewed the JSEA provided by Allied. 4. The defendant had decided not to review the content of JSEA's for specialist contractors because it believed that it may lack the knowledge to comment on a safe work method for specialist work. In my view, this was a reasonable approach in so far as it applied to the work of licensed roof plumbers who were in a better position than the defendant to know and control the risks involved in the work. 5. I am satisfied that Mr Lowe's supervision of the work was not as was intended by the defendant's WHS system. Mr Lowe had been charged with getting Plant 2 up and running again but was not ordinarily required to engage contractors. I am satisfied that the WAHP and CPTW documents were not completed and the process of authorisation was not undertaken in the manner intended by the defendant's WHS system. The JSEA was not reviewed by the defendant, but it is unclear whether or not this was required by the defendant's WHS system. 6. On the other hand, the defendant had in its possession information from its WHS System that established that Allied could perform the work safely. The workers from Allied were experienced, licensed and trained to perform work at heights. Allied had been providing plumbing services to the defendant for about 17 years and had only been given one non-conformance notice for an electrical issue. Mr Wall had seen the Allied workers on other occasions taking appropriate precautions. The defendant had made it clear to Allied that it would support it to perform the work safely by providing any equipment necessary. 7. The work was required to be done. The water leak would have led to other health and safety issues. In my view the work could have been performed safely, by adopting the method on the warning sign on the roof of Plant 2. 8. I am left confused about the prosecution case on this particular and I have a reasonable doubt. I am not actually persuaded that the particular has been made out to the criminal standard. 9. I am also concerned that the prosecution's case has shifted during the course of the hearing and that there is the real danger of prejudice to the defendant if I were to accept the prosecution's final submissions on this particular. 10. I am not satisfied beyond reasonable doubt that it was reasonably practicable on the facts of this case to have prevented the workers from working on the roof. (d) The defendant should have implemented or caused Allied Plumbing to implement a fall-arrest measure in the form of catch platforms, ie a temporary platform located below the area of the roof of Plant 2 to catch a worker in the event of a fall. 1. Particular (d) required the construction of scaffolding underneath the roof of Plant 2 to act as a catch platform in the event that a worker fell through the AC sheeting. The particular did not specify where the catch platforms were to be located. In submissions, it was suggested that a catch platform was required underneath where Mr Shearer fell. 2. In my view, in order to be effective a catch platform had to be present beneath the area where the workers were required to walk across the roof and where they were required to work. A catch platform must not permit a fall of more than 1m. It was therefore required to be sloped to match the pitch of the roof. There was no evidence about the intended route that the workers would have been required to take to get to the place where the gutter repair was to be effected. There was no evidence as to the dimensions of the required catch platform. 3. There was fixed plant on the floor of Plant 2 in various locations, but no evidence as to its precise whereabouts. The evidence did not demonstrate the required route of the workers, the location of the fixed plant or whether the catch platform could be constructed in the required area by reference to the location of the fixed plant. 4. The evidence that the catch platform could be constructed by scaffolders was based on limited observations and anecdotal evidence. 5. Inspector Tzakos accepted in cross-examination that he had not been to Plant 2 and could not form an opinion as to whether it was reasonably practicable to construct a catch platform. 6. I am not satisfied beyond reasonable doubt that the construction of a catch platform was reasonably practicable. Conclusion on Element 3 1. I am not satisfied beyond reasonable doubt that the prosecution have established Element 3 of the offence. Element 4 - Did the defendant's breach of duty expose Mr Shearer to a risk of death or serious injury? 1. For the reasons expressed I have not found that the defendant has breached its duty. 2. If I am wrong on that conclusion and particulars (a) and/or (b) are established, then each of the pleaded failures would not have exposed the workers to the risk, because each of the relevant matters was known to Allied. 3. If I am wrong on that conclusion and particulars (c) and/or (d) are established, then each of the pleaded failures would have exposed the workers to the risk, and I would be satisfied beyond reasonable doubt that the defendant's failures exposed the Allied workers to a risk of death or serious injury. 4. I am not satisfied beyond reasonable doubt that the prosecutor has proved Element 4. Conclusion 1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2. I will not enter final orders until the prosecution has had an opportunity to consider the application pursuant to section 5AE Criminal Appeal Act 1912. 3. I will list the matter on 4 February 2019 to determine the appropriate course. Endnotes 1. A photograph of the CAP became Exhibit 33 in the proceedings. 2. The original became Exhibit 45 in the proceedings. 3. The original became Exhibit 46 in the proceedings. 4. The original became Exhibit 48 in the proceedings. 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: 13 December 2018