District Court New South Wales Medium Neutral Citation: SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160 Hearing dates: 27 April 2020 Date of orders: 01 May 2020 Decision date: 01 May 2020 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1. I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the offence. 2. I find NSW Bricklaying Pty Ltd guilty. 3. I will hear the prosecutor on sentence. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured Legislation Cited: Interpretation Act 1987 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 JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 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 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Royall v The Queen (1991) 172 CLR 378 S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 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 Category: Principal judgment Parties: Department of Customer Service (Prosecutor) NSW Bricklaying Pty Ltd (Defendant) Representation: Counsel: J Paingakulam (Prosecutor) Solicitor: Department of Customer Service (Prosecutor) File Number(s): 2019/243425 Publication restriction: None Judgment Introduction 1. NSW Bricklaying Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(2) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Quoc Thong Tran to a risk of death or serious injury contrary to section 32 of the Act. 2. A solicitor appeared for the defendant at the first two mentions of the proceedings before the Court on 23 September 2019 and 18 November 2019. From that time, the prosecutor has had no further contact with the defendant. 3. The matter was listed for an ex parte hearing on 27 April 2020. The hearing proceeded on the basis that the defendant has entered a plea of not guilty, and the prosecution is required to prove the elements of the offence beyond reasonable doubt. 4. At about 10.00am on 16 August 2017 a recently constructed brick wall at 3 Barellan Street, Carlingford (the site) collapsed on top of Mr Tran who was working at the site, causing him fatal injuries. The brick wall was constructed by the defendant to a height of about 6metres. When the defendant left the site on 15 August 2017, it was not adequately braced to prevent its collapse. Facts 1. At the hearing, the prosecution tendered a bundle of documents. Counsel for the prosecutor pointed out that a number of them would not ordinarily be admissible against the defendant in the form that they were tendered. I have had regard to only the following documents, from which the facts set out in [6] to [32] are established: 1. Company search for the defendant dated 4 January 2018; 2. Signed Record of Interview with Jawad Fayazi, sole director and secretary of the defendant, dated 20 February 2018 (ROI); 3. Plans for the construction at the site approved by the City of Parramatta Council dated 4 October 2016; 4. Quote provided by Spot on Constructions addressed to Bobby Wang dated 9 July 2017; 5. Report of Death of a Patient to the Coroner completed by Dr Noel Eatough of the NSW Ambulance Service dated 16 August 2017; 6. Statement of Constable Shyam Singh dated 26 August 2017; 7. SafeWork NSW Guide, Masonry Wall Safety During Construction Work, published in 2009; 8. WorkCover NSW, Construction Code of Practice, July 2014; 9. Photographs of the site after the incident. 1. The defendant was incorporated on 5 February 2015. Its sole director and secretary was Jawad Fayazi. 2. The plans indicated that a residential duplex was being constructed at the site. The two residences were divided by a partition wall running down the centre of the building for its entire length. The plans specified that the partition wall was a brick cavity wall of 270mm thickness with a 50mm gap. From this evidence, I infer that the bricks used were 110mm wide. 3. At about 10.00am on Wednesday 16 August 2017, Constable Singh and Constable Thomas Brozka responded to a broadcast over police radio of a report that a wall had blown down, trapping construction workers underneath it. The officers attended the site where it appeared that construction was taking place. Constable Singh observed a 10 foot high wall, with a pile of bricks on the left hand side of it. He observed two workers and Constable Brozka pull an Asian male out from underneath the rubble. This male was later identified to Constable Singh as Viet Ha Le. The police and the other two males then removed more debris and found an Asian male on his knees with his head on his right shoulder. This person was later identified to Constable Singh as Mr Tran. Mr Tran was unresponsive and appeared to have injuries to his nose, the right side of his face, his shoulder and his chest. He was removed from the rubble and placed on a concrete slab where the police officers performed cardio pulmonary resuscitation until an ambulance arrived. 4. At about 10.25am Dr Noel Eatough of the NSW Ambulance Service arrived at the site by helicopter and took over treating Mr Tran. Dr Eatough pronounced Mr Tran's life extinct at 10.48am. Later that day, Dr Eatough prepared a Report of Death of a Patient to the Coroner (Form A) that recorded he had received a history that the building collapsed onto Mr Tran at about 9.50am and that thereafter Mr Tran had displayed no signs of life. 5. The police established a crime scene and closed the construction site. Contact was established with SafeWork NSW and Inspectors Craig Hall and Sharon Cook attended the scene shortly thereafter. 6. On Tuesday 20 February 2018 Mr Fayazi participated in an interview with Inspector Craig Hall at the SafeWork NSW office in Liverpool. At the conclusion of the interview, Mr Fayazi signed and dated each page of the Record of Interview. Inspector Hall told Mr Fayazi that he was investigating the fatal injuries inflicted on Mr Tran by the collapse of a partition wall at the site on 16 August 2017. Mr Fayazi confirmed that he was the sole and managing director of the defendant and authorised to answer questions on behalf of the defendant. 7. Mr Fayazi described himself as a working director and that he usually engaged four or five workers at any given time depending on the size of the job. Mr Fayazi confirmed that he had control over the bricklaying work at the site and everything associated with completing the partition wall. Mr Fayazi told Inspector Hall that he was given information about the construction of the wall by a person known to him as "Bobby". Bobby was in control of the site and supervised the construction work taking place at the site. Bobby directed Mr Fayazi to build the wall initially to a height of 3 metres, because the height of the ceiling was 2.7 metres and he wanted a further 300 mm for timber joists. Mr Fayazi thought that Bobby was the cousin of the owner of the building. Mr Fayazi met Bobby on a number of times on site and corresponded with him by telephone and email. Prior to commencing the job, Bobby had come to see Mr Fayazi at another site on three or four occasions to discuss the work. 8. Mr Fayazi was present at the site on each day that the defendant undertook work at the site. Mr Fayazi told Inspector Hall that the partition wall was built in two stages, the ground floor took a total of two to three days and the first floor took two full days and on the third day the defendant's workers left at 9am. 9. Mr Fayazi told Inspector Hall that he complied with his obligations under the WHS legislation by making sure that the site "looked safe". The defendant did not have a Safe Work Method Statement (SWMS), although it had used them on other jobs. There was no discussion between Mr Fayazi and Bobby relating to safety. Mr Fayazi described the job as "a fairly small and easy job". Mr Fayazi told Inspector Hall that he kept up to date with WHS knowledge by reading the SWMS documents given to him from other companies. He understood the hazards involved in the nature of the job at the site by looking around. Mr Fayazi described it as looking routine and there appeared to him to be no specific risk that required specific attention. There was a risk of a fall from height which was controlled by the use of a mobile scaffold. 10. Mr Fayazi consulted with his workers and contractors at the site verbally at the start of every morning. Mr Fayazi considered there to be nothing to discuss because the workers that he was using were all experienced and knew their job. 11. Mr Fayazi described Bobby as the supervisor and "in charge of everything". Mr Fayazi intended to do whatever Bobby told him to do. Bobby was the sole point of contact that Mr Fayazi had in relation to the job. Mr Fayazi accepted that he was the person on behalf of the defendant that was responsible for verifying that resources were available and processes were put in place to eliminate or minimise risk to health and safety. 12. Mr Fayazi told Inspector Hall that the agreement between the defendant and Bobby was verbal. Mr Fayazi contacted Bobby by use of a mobile telephone number and an email address. 13. Mr Fayazi told Inspector Hall that the defendant's scope of works at the site was to lay bricks and to build the partition wall in two stages and then when the timber frames were laid, to come and complete the external walls of the duplex. The defendant was paid on a per brick basis and invoices were addressed to Bobby's company, WZY Developments Pty Ltd. Mr Fayazi did not know about the involvement of any other person in the building work at the site. 14. Mr Fayazi was advised at about lunch time on 16 August 2017 that the partition wall had collapsed. He received a call from a person known to him as "Andy", who he understood was Bobby's cousin. Mr Fayazi tried to call Bobby with no success. He then spoke to Andy again because he thought he was joking. Andy told Mr Fayazi that a person had died and Mr Fayazi later saw it on the news. 15. Mr Fayazi believed that the wall collapsed because of the wind on the day of the incident. He accepted that there should have been bracing installed to control the risk of the wind blowing the wall over. Mr Fayazi told Inspector Hall that the defendant left the wall standing and that it was Bobby's responsibility as the builder to ensure that the wall was braced. 16. Mr Fayazi believed that the defendant commenced work at the site about two weeks prior to the incident. Bobby supplied the bricks and other materials. The defendant supplied tools, mixed the mud and laid the bricks. Mr Fayazi told Inspector Hall that everything else, including site safety and bracing, was the responsibility of Bobby. 17. Mr Fayazi said that on the first day that he worked at the site that the defendant built the partition wall from the ground level to about 1.4 metres in height, the full length of the building. He then left the site for two days and returned to complete the ground floor partition wall to a height of approximately 3 metres. He then left the site for approximately two weeks to allow the carpenters to erect the framework. 18. To Mr Fayazi's observation, the wall was never braced or supported after it was constructed to the single level height of approximately 3 metres. Mr Fayazi did not think that bracing was required. He did not think that it would fall over. He told Inspector Hall that he had never heard of a wall falling over like that. Mr Fayazi did not know if the wall should have been braced when it was standing unsupported on the slab and constructed to a height of approximately 3 metres. He told Inspector Hall that that was something that the builder needed to consider. Mr Fayazi said that the defendant was only there to lay bricks, everything else, including safety and the safety of other trades, was the responsibility of the builder. Mr Fayazi said that the defendant did not quote to brace the wall to this point and it was never discussed with Bobby and not in the defendant's scope of works. 19. Mr Fayazi told Inspector Hall that whether or not work was permitted to continue at the site with the wall being unbraced was a matter for the builder. He accepted that the defendant did not put in place any measure to eliminate the risk of the wall collapsing, because it was not the defendant's job. 20. About two weeks after completing the partition wall to the height of 3 metres, the defendant returned to the site. At this time, the ground floor timber frame was completed for both sides of the duplex. 21. On 12 August 2017 the defendant commenced work building the second level of the brick partition wall. Work was again carried out for the whole day on Monday 14 August 2017 and again on 15 August 2017, but only until 9am. During the course of this work the wall was built to a height of between 6 and 7 metres. During the construction of the wall to the second level height, the wall was not braced or supported. Mr Fayazi considered that it posed no risk and that when the construction of the wall was completed it was the role of the builder to assess and brace the wall. Mr Fayazi said that he did not have the equipment necessary to brace the wall and that he was not appropriately qualified to erect adequate bracing. He was paid, per brick laid, plus GST and not to complete any other work. 22. Mr Fayazi told Inspector Hall that he did not give any consideration to the risk of the wall collapsing due to high winds. He proceeded on the basis that once he left the site it was the responsibility of Bobby because he was in charge of the site. Mr Fayazi said that he was not sure if high wind should have been taken into account, but when he left the site, high wind was not an issue. He told Inspector Hall that the builder needed to do something and that if he had not put in bracing then he should have told others not to go near the wall when the wind blew up and it became dangerous. Mr Fayazi accepted that the defendant had done nothing to eliminate the risk of the wall collapsing. 23. Mr Fayazi told Inspector Hall that it takes about two weeks for mortar to cure properly so the wall was not as strong as it would eventually be and that gave rise for the need for Bobby to have done something such as bracing the wall. Mr Fayazi believed that Bobby should have braced the wall, or more importantly let the workers on site know when the wind became an issue. 24. The prosecutor accepted that another Person Conducting a Business or Undertaking (PCBU), Spot On Constructions, had provided a quote referring to "wall bracing" at the site. 25. The photographs of the site taken after the incident showed that there was some timber bracing of the partition wall to the height of the first level. The timber bracing had no diagonal member, which is inconsistent with the guidance material, discussed below. 26. In late 2009, WorkCover NSW issued a guide entitled "Masonry Wall Safety During Construction Work" that was published on the internet ("the Guide"). The Guide identified the risk that during construction work, masonry walls could fail due to side loads on the walls including the side loads created by wind. The Guide stated that such failures could result in serious injuries or fatalities. The Guide provided that the safety of masonry walls during construction work could be improved with good planning, preparation, risk management and (where required) temporary supports. The Guide noted that temporary supports are often required until a wall is incorporated into the completed structure. The Guide stated that principal contractors and masonry contractors are jointly responsible for the masonry work on site. It was necessary to identify who was responsible for installing, inspecting and removing any temporary supports, the design and material for temporary supports, to identify no-go zones and to provide instructions for workers, including site induction and supervision. The Guide provided that a masonry contractor must prepare a SWMS for review by the principal contractor before work is commenced. 27. The Guide provided that principal contractors and masonry contractors are jointly responsible for risk assessment, which should identify any walls that may need temporary support during construction work. The Guide provided that the risk assessment should include identification of walls from design drawings as needing temporary supports, the proposed sequence for wall construction including whether cross walls or returns will be constructed so that the wall can be supported, the rate of construction and the proposed stop heights of the structural adequacy of the foundations, the likely weather conditions for the location and the season and the proposed height, width and layout of the walls. The Guide provided that there should be an ongoing inspection programme to inspect the walls and temporary supports for damage until the building is complete. The Guide specified the maximum unsupported wall height for different types of brick walls at various wind speeds. The Guide provided that the maximum unsupported wall height, for a cavity wall using bricks 110mm wide was 2500mm for winds under 30km/hr or 1250mm for winds in excess of 30km/hr. The Guide provided that temporary supports be installed no more than 3 metres apart and were effective only to the height of the diagonal brace member of the support. 28. The Guide provided that the risk of collapse of masonry walls during construction could be controlled by building walls at the same time as cross walls, installing temporary supports, monitoring weather conditions and installing no-go zones identified by barricades or other physical identifiers to keep people outside of potential collapse zones. The Guide provided that temporary supports were required to be fixed to the floor and to the wall in accordance with design specifications and that they were to be maintained until the wall was incorporated into the completed structure or there was alternative support installed, such as the construction of a cross wall. The Elements of the Offence 1. The prosecution bears the onus of proving the elements of each 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 pleaded against the defendant are: * Element 1 The defendant was conducting a business or undertaking; * Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, that the health and safety of other persons was not put at risk from work carried out as part of the business or undertaking. * Element 3 The defendant failed to comply with its health and safety duty; and * Element 4 The failure exposed an individual to a risk of death or serious injury. The Relevant Law 1. The offences are offences of strict liability: section 12A of the Act. 2. A person can conduct a business or undertaking alone or with others and it does not need to be for profit or gain: section 5 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. The content of the duty is set out in section 19 of the Act, which relevantly provides: (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of 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 … (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 … 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. 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. 8. 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]. 9. 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. 10. 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]. 11. One of the matters a duty holder must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51]. 12. The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that a worker has carried out work carelessly or omitted to take a precaution does not preclude the duty holder from establishing that everything that was reasonably practicable in the duty holder's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f. 13. 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. 14. 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]. 15. 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. 16. 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 1 – Was the defendant conducting a business or undertaking? 1. The defendant was duly incorporated and is a "person" within the meaning of the Act: section 8(d) Interpretation Act 1987. 2. Mr Fayazi admitted in the interview with Inspector Hall that the defendant was conducting a business, supplying the labour of bricklayers to undertake construction of the duplex building at the site and that it was paid according to the number of bricks laid. 3. I am satisfied beyond reasonable doubt that the prosecutor has established Element 1. Element 2 – Did the defendant owe Mr Tran a health and safety duty? 1. Section 19(2) of the Act provides that a PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. 2. The term "other persons" when used in section 19(2) is a reference to persons other than "workers" who are provided for by section 19(1): SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 and S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 at [62]. This can include any person on or near a workplace. 3. Mr Tran was present at the site as a carpenter. He did not come within the definition of a worker provided for in section 7 of the Act because he was not performing work for the defendant or working in furtherance of the business or undertaking of the defendant: SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 at [98]-[104]. 4. The defendant's construction of the wall posed a risk to the health and safety of other people present on the site during its construction and after its completion, unless and until it was adequately braced or incorporated into the completed structure. 5. I am satisfied beyond reasonable doubt that the prosecution has established Element 2. Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [11] 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 the steps set out in the particulars of breach in [11] of the Summons and that the steps were reasonably practicable. The pleaded risk 1. The pleaded risk was the risk of persons including Mr Tran being struck by and/or crushed by debris from the collapse of an unsupported or inadequately supported brick wall at the site. The likelihood of the risk 1. The likelihood of the risk occurring was high if inadequate precautions were taken to eliminate or minimise it. The partition wall was built to a height of between 6 and 7 metres and it was not supported by cross-walls. The higher the wall was constructed the more likely it was that it would be impacted by side loads from the wind. The degree of harm 1. The degree of harm that could eventuate was serious. There were a number of workers required to work adjacent to the wall and in the potential fall zone, if it were to fail. The unsupported wall posed a risk of death to a number of workers. The defendant's knowledge of the risk and the ways of eliminating the risk 1. The risk was obvious. It was a risk outlined in the guidance material. The Guide specified the ways of eliminating and/or minimising the risk. 2. Mr Fayazi told Inspector Hall that he did not think that a wall like that could fall over. But, he also said that Bobby should have assessed the wall to see if it needed bracing and that Bobby should have excluded the workers from the immediate vicinity of the wall if the wind got too strong. I find it difficult to accept that the defendant did not have actual knowledge of the risk, but in any event the defendant should have had knowledge of the risk and the ways of eliminating or minimising it, because the Guide was published on the internet from late 2009 onwards. 3. I will now turn to each of the pleaded particulars of breach of duty. (a) Undertake a risk assessment 1. The prosecutor alleged that the defendant should have undertaken a risk assessment to identify the risks associated with the bricklaying work at the site, that assessed any identified risks and the most appropriate control measures to be implemented to control those risks. 2. Clause 34 of the Regulations imposed an obligation on the defendant to identify any reasonably foreseeable hazards that could give rise to a risk to health and safety. Clause 35 of the Regulations imposed an obligation on the defendant to eliminate or minimise those risks, so far as it was reasonably practicable to do so. Clause 36 of the Regulations imposed an obligation on the defendant to implement control measures in response to the risks identified. 3. The Guide identified the risk that a brick wall could collapse as a result of side loads applied to it, including a side load imposed by the wind. The Guide identified that builders and masonry contractors, which would include the defendant, were jointly responsible for risk assessment, which should identify any walls that may need temporary support. The Guide specified the control measures that could be employed to control the risks identified. 4. It is clear from the evidence that the defendant did not undertake a risk assessment. It did not have a SWMS for the work at the site. 5. The defendant was legally obliged to conduct it's own risk assessment. I am satisfied that the conduct of a risk assessment would not have involved any inconvenience or cost to the defendant. I am satisfied that the cost of conducting a risk assessment was not grossly disproportionate to the risk. 6. I am satisfied beyond reasonable doubt that the undertaking of a risk assessment was a reasonably practicable step that the defendant should have taken to eliminate and/or minimise the risk. (b) install temporary supports for masonry brick walls during the construction phase of the masonry brick walls 1. The prosecutor accepted that the defendant was not engaged to install temporary supports to the partition wall. I infer from the evidence, that another PCBU was engaged to install the temporary supports, because it provided a quote for "wall bracing". There is no evidence as to who installed the inadequate temporary supports to the lower part of the partition wall. 2. I am not satisfied that the prosecutor has established this particular. (c) install exclusion zones identified by barricades or other physical identifiers, to keep people outside potential collapse zones around masonry brick walls 1. The implementation of an exclusion zone delineated by "fencing, tape or signage" is a control measure identified in the Guide. 2. An exclusion zone could have been delineated at minimal cost and inconvenience to the defendant. I note that the defendant did not have the equipment on the evidence to set up barricades, but it could have used tape and signage to do so. 3. It would not have been reasonably practicable for the exclusion zone to have been put in place for an extended period, for example, until the structure was completed, because that would have prevented other people from working at the site on other aspects of the building, such as the work that was being done by Mr Tran. However, I am satisfied that the identification of an exclusion zone pending the installation of temporary supports to the wall was a reasonably practicable measure that the defendant could have taken. I am satisfied that this is a step that the defendant should have taken to minimise the risk until the builder arranged for the installation of the temporary supports that were required. 4. I am satisfied that the cost of setting up an exclusion zone was not grossly disproportionate to the risk. 5. I am satisfied beyond reasonable doubt that setting up an exclusion zone was a reasonably practicable step that the defendant should have taken to eliminate and/or minimise the risk. (d) prohibit workers from working within the exclusion zones around masonry brick walls that do not have temporary supports installed (e) develop, implement and enforce an adequate work procedure (f) provide information, training and instruction to workers in relation to the risks to health and safety arising from the construction of masonry brick walls as identified in paragraph 11(a) (g) provide information, training, induction and instruction to workers in relation to the safe system of work for the construction of masonry brick walls as identified in paragraphs 11(b) – 11(e). 1. It is convenient to deal with these particulars together. 2. The terms of these pleaded particulars refer to "workers" rather than persons. It is unclear if the use of that word is intended to be a reference to the defined term in section 7 of the Act which would only include the defendant's workers, or to a person performing work at the site. 3. The defendant did not have a SWMS for the bricklaying work at the site. It had used SWMSs at other sites, when they were provided by other companies. Mr Fayazi told Inspector Hall that the only steps he took to provide for the health and safety of his workers was to have a look around the site to identify any problems. He then communicated with his workers through tool box talks at the start of each day. 4. On the evidence, Mr Fayazi did not turn his mind at all to the matters referred to in the Guide. I am satisfied that if an adequate SWMS for the bricklaying work at the site had been developed that it would have provided for the things pleaded in particulars 11(d), 11(e)(ii) and (iii) and it would have constituted the provision of information, training and advice to the defendant's workers that a risk assessment was required and that the control measures that I have identified should be put in place to control the risks identified. 5. The matters in paragraph 11(e)(i) and (iv) are not established on the evidence. The Guide provides that a cavity wall constructed of bricks 110mm wide can be unsupported to a height of 2500mm. Further, the Guide provides that work must cease on a cavity wall constructed of bricks 110mm wide in winds exceeding 30 km/hr if it exceeds 1250mm high. 6. I am satisfied that an adequate SWMS could have been devised, implemented and enforced by the defendant relating to the work at the site with minimal inconvenience and/or cost. 7. I am satisfied that the cost of developing, implementing and enforcing an adequate SWMS for the work at the site was not grossly disproportionate to the risk. 8. I am satisfied beyond reasonable doubt that developing, implementing and enforcing an adequate SWMS for the work at the site with the features provided for in 11(d) and 11(e)(ii) and (iii) was a reasonably practicable step that the defendant should have taken to eliminate and/or minimise the risk. 9. I am satisfied beyond reasonable doubt that the prosecutor has established Element 3. Element 4 – Did the defendant's breach of duty expose Mr Tran to a risk of death or serious injury? 1. The defendant built the partition wall to a height of between 6-7 metres. The bottom 3 metres of the wall was inadequately supported and the remaining top part of the wall was wholly unsupported. There was a risk that the wall would collapse if the wind applied a side load to it. There was a risk to the health and safety of persons who were present in the fall zone of the wall if it collapsed, such as Mr Tran. 2. That risk included a risk of death or serious injury, and the death of Mr Tran is evidence of the existence of the risk. 3. I am satisfied that if a risk assessment was conducted that it would have identified the risk that the partition wall could collapse and injure a person in the fall zone. 4. I am satisfied that the defendant should have delineated an exclusion zone after the wall was completed to prevent persons such as Mr Tran entering the fall zone, at least until temporary supports were put in place. 5. By failing to do each of these things the health and safety of Mr Tran was put at risk by the work of the defendant, which could have been avoided if the defendant had taken the reasonably practicable steps identified. 6. The remaining particulars of breach relied on by the prosecutor were focussed on providing for the health and safety of "workers". A contextual interpretation of the pleading leads me to the conclusion that it is intended to refer to the defendant's workers. I am not satisfied that taking the pleaded steps for the benefit of the defendant's workers would have prevented Mr Tran from being exposed to the risk and I do not need to consider those breaches further. 7. I am satisfied beyond reasonable doubt that the prosecutor has established Element 4. Conclusion 1. I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the offence. 2. I find NSW Bricklaying Pty Ltd guilty. 3. I will hear the prosecutor on sentence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2020