Workcover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 (19 December 2001)

Last Updated: 31 December 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325

FILE NUMBER(S): IRC 1666

HEARING DATE(S): 09/07/2001, 10/07/2001, 11/07/2001, 12/07/2001

DECISION DATE: 19/12/2001

PARTIES:

PROSECUTOR:

WorkCover Authority of NSW (Inspector Farrell)

DEFENDANT:

Ross Colin Morrison

JUDGMENT OF: Walton J Vice-President

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr P Skinner of counsel

SOLICITOR:

Mr N A Correy

Moray & Agnew Solicitors

DEFENDANT:

Mr Morrison (self represented)

CASES CITED: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432

Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149

Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58

Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Fisher,P, No's 1212 & 1213 of 1990, 30 June 1992)

Kennedy Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57

Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84

Mansell v Anytime Industrial Services Pty Ltd [2001] NSWIRComm 237

WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278

WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239

WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362

WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383

WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251

LEGISLATION CITED: Occupational Health and Safety Act 1983 s16(2) s53(a) and (b)

Swimming Pools Act 1992 s10

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: WALTON J, Vice -President

19 December 2001

Matter No. IRC 1666 OF 2000

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR FARRELL) v ROSS COLIN MORRISON.

PROSECUTION UNDER SECTION 16(2) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 1983.

Judgment

[2001] NSWIRComm 325

Introduction

1 This matter concerns a prosecution by Inspector Anthony Farrell of the WorkCover Authority of New South Wales ("the prosecutor") of Mr Ross Colin Morrison ("the defendant") alleging a breach of s16(2) of the Occupational Health and Safety Act 1983 ("the Act"). Section 16(2) of the Act imposes the obligation on a self-employed person to "ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work."

2 At the relevant time, the defendant carried on a business as a licensed swimming pool builder. The prosecution arose out of a project undertaken by the defendant to construct a swimming pool at domestic premises in Port Macquarie. The pool was being constructed concurrently with the construction of a new dwelling at the property. Construction of the dwelling was being undertaken by Mr David Schrader, assisted by a number of subcontractors.

3 The defendant signed a contract with the owners of the property (Mr and Mrs Hollingworth) to construct the pool in August 1997. Construction of the pool commenced on 8 December 1997 and was substantially completed on or around 19 December 1997. Upon completion of the project, the pool was partly filled with water. This was necessary as a result of the type of pool which had been installed. The defendant arranged for steel mesh to be placed so as to cover the pool whilst work continued on the house. Some time before the date of the accident, the mesh was removed by Mr David Schrader and Mr Bruce Myers (a sub-contracted carpenter) in order to complete work around the pool. The mesh was not subsequently replaced.

4 On Saturday, 23 May 1998, two sub-contracted tilers were working at the site, namely, Mr Barry Pharo and Mr Raymond Gaul. The two sub-contractors commenced work early in the day tiling, sections of the interior of the house. At approximately 9am, Mr Gaul's wife brought their three year old son, Jack, to the site to be cared for by Mr Gaul whilst he continued working. Mr Gaul and Mr Pharo subsequently left the site, together with the child, to obtain food from a nearby McDonalds restaurant. Upon returning, they consumed the food and Mr Gaul and Mr Pharo recommenced work whilst the child played around the house.

5 At approximately 10.30am, Mr Gaul noticed that he could no longer hear the child playing. He went to the rear of the house where the pool was situated and found the child floating face down in the pool. Mr Gaul jumped in the pool and removed the child from the pool. He called for help and Mr Pharo ran out onto the street to obtain assistance. The site was attended by neighbours who attempted to resuscitate the child. An ambulance later arrived and further attempts were made to resuscitate the child. Tragically, the child did not retain consciousness and was pronounced dead at hospital shortly afterwards.

6 The charge contained in the summons for prosecution was in the following terms:

On 23 May 1998 at a swimming pool construction site at 62-64 Commodore Crescent, Port Macquarie in the State of New South Wales the defendant, being a self-employed person, did fail to ensure that persons not in his employment, more particularly Jack Liam Gaul, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while those persons not in his employment were at the defendant's aforesaid place of work contrary to section 16(2) of the Occupational Health and Safety Act 1983.

7 The particulars of the charge were as follows:

1. The defendant was at all material times a self-employed person carrying on business as a licensed swimming pool builder.

2. On 22 September 1997 the Hastings Council ("the Council") approved an application for the construction of a swimming pool at 62-64 Commodore Crescent, Port Macquarie in the State of New South Wales ("the site") on behalf of J. and E. Hollingsworth ("the owners").

3. On 24 October 1997 the Council approved an application from the owners to construct a new dwelling at the site.

4. The Council granted approval in respect of the swimming pool construction at the site subject to a number of conditions including the following:

(i) The pool is to be separately enclosed in accordance with the requirements of the Swimming Pools Act, 1992 with a safety fence of a design approved by council in accordance with AS1926-1986.

(ii) The pool is not to be filled with water until such time as the fence is erected or other measures taken to prevent entry.

5. On 15 May 1997 the owners contracted with David Schrader Homes ("the building contractor") to construct a residential dwelling on the site.

6. On 2 November 1997 the owners contracted with the defendant to construct a swimming pool on the site.

7. Between 8 December 1997 and 20 December 1997 the defendant completed construction of the pool on the site to the extent that it could be practically completed at that time given the state of other building works on the site but did not complete installation and connection of any filtration system at that time.

8. Following partial completion of the pool contract work on or around 20 December 1997 the defendant filled the pool with water to a level of 1.2 metres in the deep end and to approximately 600 millimetres in the shallow end.

9. The defendant left the site for an extended period from about 20 December 1997 pending other works being carried out at the site by the building contractor.

10. Prior to leaving the site the defendant covered the swimming pool with F62 reinforcing steel mesh which was tied together to form one complete square and also supported by several lengths of timber to prevent it falling into the pool.

11. On 22 February 1998 the defendant observed the mesh covering the pool to be still in place.

12. On a date unknown between 22 February 1998 and 20 April 1998 the mesh covering the pool was removed by the building contractor in order to enable completion of concreting around the pool area prior to tiling work.

13. On or about 20 April 1998 Sean O'Brien, the building inspector employed by the Council attended the site to make a wet area inspection and advised Bruce Myers, the carpenter engaged by the building contractor to have the building contractor cover the pool or contact him.

14. On 22 April 1998 the defendant went to the site and observed the pool to be uncovered and saw the mesh had been removed and left lying next to the boatshed.

15. On or about 22 April 1998 the defendant removed the mesh from the site.

16. In or about the middle of May 1998 the defendant returned to the site and carried out the installation of the pool filtration system and observed that the pool remained uncovered at this time.

17. On dates unknown between 22 April 1998 and 25 May 1998 one of the owners, Jack Hollingsworth, visited the site and observed that the pool was uncovered.

18. On 4 May 1998 the council building officer, Sean O'Brien, visited the site again and observed that the pool was uncovered.

19. In or about early May 1998 Raymond John Gaul and Barry Pharo ("the tilers") were engaged by the building contractor to carry out tiling work at the site.

20. The tilers commenced work at the site on 23 May 1998 at about 7.30am.

21. At about 8.45am the wife of one of the tilers, Wendy, dropped off their three year old son, Jack Liam Gaul ("the deceased"), at the site into the care of Raymond John Gaul.

22. Between 9am and 9.20am the tilers, along with the deceased, went for morning tea at a McDonalds Restaurant returning to the site around 9.20am.

23. Shortly after returning to the site Raymond Gaul had a conversation with the owners out at the front of the site in relation to the layout of the front patio at which time the deceased was present and playing around the yard in view of the owners and Raymond Gaul.

24. After the owners left the site and Raymond Gaul resumed grouting in the front foyer. He shortly afterwards realised he could not hear the deceased playing and making noises. He then walked into the lounge room and could see the deceased floating face-down in the swimming pool.

25. Raymond jumped into the swimming pool and lifted the deceased out the water and called for help.

26. Barry Pharo, the other tiler, assisted and an ambulance was called.

27. An attempt at resuscitation of the deceased was made by neighbours and shortly afterwards by ambulance officers.

28. The deceased was taken to hospital by ambulance but was not able to be resuscitated and pronounced dead shortly after 11am on 23 May 1998.

29. The conditions of the Council's building approval in respect of the swimming pool had not been met in that:

(a) An approved safety fence was not erected.

(b) The swimming pool was partly filled with water.

(c) Other measures to prevent entry to the swimming pool were not in place and the defendant failed to ensure compliance.

30. At all material times the site constituted a place of work.

31. The defendant:

(a) Failed to ensure that the swimming pool, while substantially filled with water, was properly covered or fenced.

(b) Removed the metal mesh covering from the pool and took it from the site leaving it in a dangerous condition without such covering.

(c) Failed to ensure that proper fencing was erected to prevent access to an unprotected swimming pool.

(d) Failed to comply with the conditions of the Council's building approval to ensure fencing was erected before the swimming pool was substantially filled with water.

(e) Failed to comply with the Council's building approval by not taking any other measures necessary apart from fencing to ensure that the pool was safe.

8 Summonses were also issued in relation to the same accident against a company known as Jamaryl Pty Ltd, of which the defendant was the sole shareholder and director, charging an offence under s16(1) of the Act (Matter No. IRC 1663 of 2000) and against the defendant, as a director of Jamaryl Pty Ltd, charging an offence under s50 of the Act (Matter No. IRC 1662 of 2000). These two summonses were dismissed at the conclusion of the evidence in these proceedings when it became clear the prosecutor sought to adduce no evidence in support of those charges. The evidence established that the defendant entered the contract to construct the pool in his own right rather than as a representative of Jamaryl Pty Ltd.

9 The proceedings in this matter were heard together with proceedings relating to two summonses issued against Mr David Schrader charging offences under s16(1) of the Act and s17(1)(a) of the Act. A plea of not guilty was entered on behalf of Mr Schrader at the outset of the hearing. At the commencement of the third day of the hearing, however, Mr A Quinlivan of counsel, who appeared for Mr Schrader, entered a plea of guilty in relation to the offence charged under s16(1) of the Act. By consent, the prosecutor discontinued the prosecution under s17(1)(a) of the Act on condition that no further proceedings be brought in relation to the matter.

10 The proceedings then continued in relation to the charges against the defendant only. The defendant, at all times, represented himself at the hearing.

The Evidence

11 A number of witnesses were called to give evidence in these proceedings and certain documentary evidence was tendered. The prosecutor called Inspector Farrell of the WorkCover Authority of NSW and Mr Colin West, the District Co-ordinator for the WorkCover Authority of NSW in Port Macquarie. Mr West attended the site of the accident on 25 May 1998, together with Inspector Dawson who was then in charge of the investigation. Inspector Dawson was unfortunately unable to complete the investigation of the accident as a result of health issues and did not give evidence in these proceedings.

12 The prosecutor also called a number of persons who were involved in the construction work at the site. The prosecutor called the father of the deceased child, Mr Gaul, his business partner, Mr Pharo, and one of the owners of the property, Mr Jack Hollingworth. A number of contractors who were, at various times, working on the site were also called to give evidence. These included Mr David Wilson, a plasterer contracted by Mr Schrader, Mr Bruce Myers, a carpenter who worked extensively at the site, and Mr Schrader himself.

13 Inspector O'Brien of Hasting Council was called to give evidence concerning his inspections of the site and discussions which were alleged to have taken place with the builders concerning the site. Senior Constable Stephen Cherry, who was then stationed at the Port Macquarie Police Station and attended the site on the day of the accident, was also called to give evidence concerning his observations. The defendant gave evidence in his own defence and called Mr Henry Rock, who resided at a neighbouring property, to give evidence.

14 Various documentary evidence was also tendered by the prosecutor and the defendant. This included a series of photographs of the site taken by Mr West when he attended the site to investigate the accident on 25 May 1998. Various documentation relating to the project was also tendered, including the building application relating to the construction of the pool, the notice granting approval issued by Hastings Council, as well as the contract between the owners and the defendant. The building application and contract relating to the construction of the house were also tendered. Documentation relating to inspections of the site conducted by Inspector O'Brien on behalf of the Council was tendered, as was a report completed by Inspector Dawson of the WorkCover Authority of NSW for submission to the coroner.

15 A number of issues arose out of the evidence. A considerable amount of evidence was adduced from a number of witnesses concerning the events leading up to the accident. The deceased child was dropped off at the site some time between 8.30am and 9am on the morning of the accident. It is clear that after attending the local McDonalds restaurant, Mr Gaul and Mr Pharo resumed work. Their evidence was that they were both occupied doing some grouting work in the hallway of the premises. The owners also attended the site around this time and had a brief discussion with Mr Gaul concerning the tiling. At this time, the deceased child appeared to have been playing both at the front, inside and at the back of the house. Mr Hollingworth gave evidence that the child had been playing at the front of the house whilst he was discussing the tiling.

16 There was some uncertainty concerning how the deceased child came to be in the vicinity of the pool. Mr Pharo stated that there was no work reason why the doors should have been opened, but that the doors must have been opened at some point, perhaps to obtain air. Mr Gaul gave evidence that the doors were open when they arrived at the site, but later indicated that he had "opened them all up" prior to Jack arriving on the site to assist in the drying of the grouting work they were performing on that day. There can, in my view, be no doubt that the sliding doors were opened prior to Jack having arrived on the site.

17 The evidence of both Mr Pharo and Mr Gaul indicated that the child was playing inside the house with a ball and that they had heard him playing out the front of the house. Mr Gaul stated that his son had been by his side while they had a brief discussion as to how much longer they would be at the site and that the child had then gone through the house into the garage where he could be heard playing. Despite having agonised over that period for some time, Mr Gaul stated that was the last time he could remember having seen or heard his son prior to finding him in the pool.

18 Whilst it is of no particular significance in the assessment of the culpability of the defendant, I am satisfied, on the evidence, that the child gained access to the pool from inside the house via the sliding doors at the rear of the living area. After viewing the photographs, it was clear that the sliding doors provided easy access to the pool at the rear of the house. The sliding doors were undoubtedly open throughout the day. Relevantly, there was no barrier between the sliding doors and the pool. Both Mr Pharo and Mr Gaul conceded that despite the fact they were working in the vicinity of the sliding doors, it was possible that the child had gone past them without them having noticed to obtain access to the pool area. As earlier noted, the evidence indicates that the child was at the front of the house and inside the house. It is, therefore, most likely that access was gained through the sliding doors to the pool.

19 As has been discussed, the defendant was contracted by the owners of the property in August 1997 to construct the pool. He arranged for a building application to be submitted to Hastings Council on 20 August 1997. The Council granted approval on 22 September 1997. Approval was granted subject to certain conditions, including:

1. The pool is to be separately enclosed in accordance with the requirements of the Swimming Pools Act 1992 with a safety fence of a design approved by Council in accordance with AS 1926-1986. The provision shall also apply to above ground pools.

2. The pool is not to be filled with water until such time as the fence is erected or other measures taken to prevent entry.

...

20 The defendant commenced construction of the pool on 8 December 1997 and the project was substantially completed on or about 19 December 1997. The defendant gave evidence that it was not possible to complete all work on the pool, particularly the installation of the filter system, as considerable work was still to be completed on the house. The defendant also conceded that the contract required him to complete certain cleaning and service work once the pool was ready for use.

21 When the construction of the pool was substantially complete, the defendant partly filled the pool with water and placed and tied reinforcing mesh over the top of the pool supported by timber beams taken from elsewhere on the site. All witnesses who had worked at the site during this period agreed that the pool had been covered until some time probably in early April 1998. The evidence of Mr Schrader and Mr Myers was that they removed the mesh as a result of the need to complete concreting work around the pool. In evidence in chief, for example, Mr Myers stated in relation to the mesh covering the swimming pool:

Q. Was that covering in place at the time of the accident to the little boy?

A. No.

Q. Do you know when it was last there, to your knowledge, relating that to the time of the drowning?

A. I can't remember off hand no.

Q. Was is a matter of [days], a matter of weeks?

A. Weeks, probably several weeks.

Q. Do you know what happened to, I think you said, the mesh covering?

A. It was taken off the pool and just placed to the side of the pool between the pool and the boat shed.

Q. Who took it off, do you know?

A. Myself and David Schrader.

Q. Why was that?

A. We had to concrete around the area around the back level of the house and the mesh was sticking out past where we had to concrete and stuff.

22 Both Mr Myers and Mr Schrader conceded that the mesh was removed without consulting the defendant. When cross-examined by the defendant, Mr Schrader stated that removing the mesh was "a matter of absolute necessity ... to continue with the work" and that it was his intention to replace the mesh after the work was complete.

23 However, the defendant did subsequently become aware that the mesh had been removed from the pool when he visited the site on 22 April 1998. The defendant's evidence was that he was contacted by Mr Schrader at or about 19 February in relation to some piping which needed to be moved to allow the concreting to be completed. In his evidence in chief, the defendant stated:

On Sunday 22 February 1998, I moved the pipes and I was there from 7.30 to 9am. Jack Hollingworth was in attendance while I was there. I at no time went back to the site or indeed was called to the site by any person until Wednesday 22 April and the reason for going there at that time was I had concluded a service call at a property a number of doors up at number 88 Commodore Crescent and as I had not heard from anybody in regards to the completion of the house and indeed the cleaning up of the pool, I just called in to see where things were up to. At that time I noticed the mesh covering on the pool had been removed. It was down on the public thoroughfare next to the canal, waters edge.

I inquired with Mr Bruce Myers, who seemed to be the only person on site at that time, however, there may have been people inside which I didn't see at the time. Mr Myers said to me - so I inquired of Mr Myers what he was doing in relation to having the mesh down on the canal. In other words, to my consideration it had been discarded, the mesh was off the pool at that stage. He said they had matters in hand in regards to the covering of the pool or making the pool safe. I said to him "Do you need this mesh at all?" He replied, no.

I considered where it was at that stage dangerous in relation to where it was positioned so I removed it from the site upon the knowledge that they had - Mr Myers had taken other steps to provide some sort of covering for the pool or indeed fencing. However, at that time the house was at a situation where it was at lock-up stage. It had the roof on it, all the doors and windows were in place. I noticed that the doors had sliding screen doors like amplimesh type thing safety screens on them at that stage and my knowledge of the code as regards to swimming pool fencing on the canal and having been involved in the swimming pool industry for over 18 years, I considered that the pool was in compliance at that stage with the Swimming Pools Act and indeed Hastings Councils' regulations.

24 The defendant indicated under cross-examination that he considered at this time that the builders had assumed responsibility for the safety of the pool. Under cross-examination, the defendant stated:

Q. ... what I am suggesting to you is whatever conversation did or did not take place with Mr Myers you are saying to this court, are you not, that the topic of recovering the pool arose with Mr Myers, you are saying that, aren't you.

A. Yes.

Q. And therefore it clearly was something that you considered at the time that you visited the site, 22 April 1998, that is the necessity to recover the pool?

A. At that stage I did, yes.

Q. An indeed really that is how you see your defence, is it not, that it was not your responsibility, it was the builder's in relation to that site and that pool being uncovered?

A. At that particular time I did. When I originally installed the pool I took those steps and those steps were sufficient to prevent entry, which is stated in number 2 of the application.

25 Mr Myers' recollection of the conversation with the defendant concerning the removal of the mesh from the pool differed considerably. He also stated that it was the intention to replace the mesh, but that the mesh had been removed from the site by the defendant. He stated that the defendant had offered that Mr Myers could use the mesh in the concreting, but that he had refused. He denied indicating to the defendant that he would cover the pool. When cross-examined by the defendant, Mr Myers stated:

Q. When I came that day to remove the mesh down by the boat shed where I saw it, there were two pieces down there and one piece possibly somewhere else because there were three pieces there altogether. I spoke to you, not at length, but I spoke to you in regards to what was the reason for the mesh being down there. Do you recall that?

A. I don't recall you mentioning the reason for the mesh being down at the bottom. The only area I remember the mesh being is between the pool and the boat shed on that same level.

Q. So you do not recall the content of the conversation being in regards to the covering of the pool?

A. No, sorry.

Q. So you do not believe that I would have said something in relation to the mesh if I didn't want the pool re-covered?

A. I don't recall anything like that. I mean the only thing I can recall was that you asked if we wanted to use the mesh on the concrete. That was my understanding of the conversation and obviously, no, we didn't want to use the mesh.

Q. You do not recall me saying that you could have the mesh to re-cover the pool or to take other steps to cover the pool if you didn't need the mesh?

A. No, I can't remember that.

26 Having reviewed the evidence, I consider that a conversation took place between the defendant and Mr Myers concerning the mesh. Although Mr Myers did not recall the content of the conversation suggested by the defendant, he agreed that a conversation had taken place in relation to the removal of the mesh. I also accept the defendant's evidence that he received from the conversation the impression that the builders had considered the need to recover the pool. I consider that the defendant gave evidence in a forthright, direct and truthful manner. Furthermore, the defendant's recollection of the conversation was consistent with other aspects of the evidence. In particular, the defendant's evidence was consistent with the statements of Mr Schrader and Mr Myers that they intended to replace the mesh after the concreting was completed.

27 However, it is necessary to indicate the limits of the defendant's evidence in this respect. Perhaps the most important aspect of this evidence is that it established that the defendant was aware, on 22 April 1998, that the mesh had been removed from the pool. The defendant conceded that he had no more than a brief conversation with Mr Myers. He neither sought nor obtained any specific undertaking from Mr Myers as to the manner or timing of the covering of the pool or the taking of other steps so as to avoid access to the pool (which was at the time partially filled with water) at any time from 22 April 1998 to the date of the accident. The defendant could not suggest that he was given any undertaking that the mesh would be replaced on the pool because, by his own admission, he removed the mesh from the site on that day. It was also evident that the defendant took no further steps to ensure that the pool was recovered or that any other suitable material was available for that purpose.

28 Another question arose from the evidence concerning the inspection of the site by Inspector O'Brien of Hastings Council. Mr Myers gave evidence that Inspector O'Brien attended the site around 20 April 1998 and requested he tell Mr Schrader to cover the pool. Mr Myers stated that he later told Mr Schrader that the Inspector wanted the pool to be covered. Mr Schrader confirmed that Mr Myers had informed him that the Inspector had instructed the pool should be covered. The evidence in this regard was complicated by the fact that Inspector O'Brien was unable to recall either observing that the pool was not covered or having a conversation with Mr Myers in relation to the need for the pool to be recovered. The Inspection Request forms which were tendered in evidence confirmed that Inspector O'Brien attended the site around this time, but did not disclose any matter relating to the pool. However, notwithstanding the inability of the Inspector to recall the conversation, I accept the evidence of Mr Myers and Mr Schrader that such a conversation took place. Their accounts were consistent and I find no reason to doubt their evidence in this regard.

29 A further dispute arose in the evidence as to whether Mr Schrader had conveyed the Inspector's request to the defendant. Mr Schrader gave evidence that he 'ran into' the defendant on the streets of Port Macquarie a couple of days after his conversation with Mr Myers and conveyed the message from Inspector O'Brien that the pool should be covered. In evidence in chief, Mr Schrader stated:

Q. Now did you have a conversation with Ross Morrison after that conversation with Mr Bruce Myers where you mentioned that Mr Bruce Myers had said to you in that regard?

A. Yes.

Q. What did you say to Mr Morrison, as best you can recall?

A. "Sean O'Brien has been on the site and he has required the mesh to be returned and put on to the pool."

Q. And is it your recollection that the time frame as to this which came from Mr Myers, in essentially around about mid April, is correct?

A. Yes, approximately.

Q. I mean I have wrapped a few things up there but was it about mid-April that Myers spoke to you?

A. Yes, it would have been.

Q. About how long after that did you have a conversation with Mr Morrison that you have just related?

A. It would have been between one and three days.

30 Mr Myers gave evidence that Mr Schrader had informed him of the conversation with the defendant. The defendant denied that this conversation took place. Having considered the evidence, I do not consider that it is necessary to come to a definite conclusion concerning this question. Regardless of whether any conversation took place between Mr Schrader and the defendant, the defendant conceded that he was aware that the mesh had been removed as a result of his visit to the site on 22 April 1998. If it is necessary to make a finding in relation to this matter, I accept the evidence of the defendant. As has been mentioned, I consider his evidence was generally given in a forthright, direct and truthful manner. The defendant accepted responsibility for his actions when appropriate. In contrast, I consider that Mr Schrader was, in his evidence, at times evasive and adopted an attitude generally of attempting to deny any responsibilities in relation to the pool and the accident generally.

31 A final issue arose concerning the absence of any barriers that would have prevented access to the pool area down the side of the house. This question was said to be relevant to whether the fencing complied with the Swimming Pools Act 1992 and Council requirements. Mr West, who inspected the site on 25 May 1998, gave evidence that there was mesh in place at the sides of the house preventing access to the rear of the site. This was confirmed by photos taken at the site on that day. However, evidence was given by a number of persons who worked at the site that there were generally no barriers at the sides of the house up to the time of the accident. Senior Constable Cherry, who attended the scene on the day of the accident, also gave evidence that there were no barriers at the side of the house. The defendant accepted that this was the case. Although there was no evidence before the Court as to when and how the mesh was installed at the side or house, I accept the evidence that there were no barriers in place at the time of the accident that prevented access to the pool area at the rear of the house.

The Submissions

The Prosecutor

32 Mr Skinner of counsel, who appeared for the prosecutor, submitted that the essential elements of the offence under s16(2) of the Act were that persons not employed by the defendant were exposed to risks to their health and safety, that the risk arose from the conduct of the defendant's undertaking and that the exposure to risk took place at the defendant's place of work. Mr Skinner noted that the defendant pleaded that he was a self-employed person.

33 The risk relied upon by the prosecutor was of a child falling into the pool and drowning. Mr Skinner submitted that it was not necessary to determine precisely how the accident occurred and specifically how the child came to drown in the pool. In this regard, Mr Skinner cited the decision of the Full Bench of this Court in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432. It was submitted that it is not an accident itself which constituted the offence, but rather the failure of the defendant to ensure that persons are not exposed to risks at the defendant's place of work as a result of the defendant's undertaking. Mr Skinner contended that the risk was not restricted to the circumstances of the accident in question.

34 It was submitted that the risk in this case was constituted by the pool not being covered and by there being access down the sides of the house to the pool area. Mr Skinner submitted that it was not in issue that the pool was not covered at the time of the accident. It was contended that the risk of a child falling into a pool and drowning was clear and demonstrated by the events of this case. However, Mr Skinner submitted that the risk was not restricted to a child who was on the site. It was submitted that the evidence established that there were no barriers at the sides of the house so as to prevent access to the site from the street. As such, it was submitted that, on the day of the accident, a risk existed to persons other than the deceased child.

35 Mr Skinner further submitted that this risk arose from the defendant's undertaking and at the defendant's place of work. It was submitted that the contract between the defendant and the owners of the property was not completed by the time of the accident. The defendant, it was contended, had only been partly paid and was required by the contract to return to the site to finish off the work on the pool. As a result, it was contended that the risk arose from the defendant's undertaking and that the site remained the defendant's place of work at the time of the accident.

The Defendant

36 The defendant made submissions which were addressed to each particular of the charge and some more general submissions in his defence of the charge. I have below distilled the primary aspects of those submissions with respect to the issues of culpability and defences arising under s53. It should be noted that whilst the defendant was unrepresented he appeared to have been reasonably adept at making his submissions in his defence. Nevertheless, as will be apparent from the consideration of this matter, the Court has considered, both in the light of the defendant's submissions and generally, such issues as may reasonably arise, on the evidence, in relation to culpability and s53 defences (particularly, in both aspects, in relation to legal issues).

37 The defendant submitted that he had completed the construction of the pool and that the installation of the filtration system and other ancillary cleaning and instruction tasks were delayed pending the further progress of the residence. He submitted that he was not required to do any further work until the house was complete and had no reason to visit the residence. When the construction of the pool was completed, the defendant submitted, he took steps to comply with the Council requirements by ensuring that the pool was covered with mesh. The defendant contended that he was entitled to expect that the mesh would not be removed.

38 The defendant submitted that Mr Schrader and Mr Myers conceded that they had removed the mesh from the pool and that this was done without the knowledge or authorisation of the defendant. He contended that, in removing the mesh from the pool and not consulting or seeking advice from the defendant, the builders had assumed responsibility for the safety of the pool including replacing the mesh or adopting other measures to ensure the safety of the pool. It was submitted that it was impracticable to suggest that the pool installer should be expected to monitor the pool and replace mesh whenever the builders may need to remove it to complete any building works.

39 The defendant submitted that his recollection of the conversation with Mr Myers should be accepted. He conceded that the conversation may not have been entirely clear between himself and Mr Myers, but submitted that his recollection was correct. He stated that he removed the mesh from the site only on the understanding received from Mr Myers that other measures would be put in place to prevent the pool from becoming a risk to persons on the site. The defendant also submitted that it was impracticable for the mesh to be replaced at that time because concreting work around the pool was still ongoing.

40 Furthermore, it was submitted that it was not practicable for him to take responsibility for the safety of the pool at the site. The defendant contended that he had no control over the site, including the activities of the builders and other tradespersons working at the site from time to time. Even if he had replaced the mesh on 22 April 1998, it was submitted, he had no means to police the site and ensure that the mesh was not removed again. In addition, the defendant contended that it was impracticable to make provision to ensure the safety of a three-year-old unsupervised child on a building site. On this basis, the defendant submitted that a defence had been established under s53 of the Act (although the defendant directed particular attention to s53(a) of the Act).

41 In relation to the risk of a person entering the site from the street, the defendant submitted that on 22 April 1998 and on the day of the accident, the site presented no greater risk to persons than other properties in the same development. The defendant submitted that the exemption provided in the Swimming Pools Act in relation to waterfront properties meant that the pool was not required to be fenced. The defendant noted that by 22 April 1998, the house was locked up and complied with the Council requirements and the Swimming Pools Act.

Consideration

42 It is possible to resolve the question of the existence of an offence under s16(2) of the Act relatively shortly. The starting point for such considerations must be to observe that the uncovered and partly filled pool presented an inherent risk to persons on the site. The risk was amply demonstrated by the tragic accident that resulted in the death of a three year old child which is the subject of these proceedings. However, the risk was not limited to the risk that children, who may be on the site, could fall into the pool and drown. There was also a danger presented to persons working at the site that they may fall and injure themselves, albeit that the danger of drowning may have been less severe. As Mr Skinner pointed out, there was also the possibility of persons gaining access to the site from the street via the sides of the house and from the canal. The defendant quite properly conceded that the uncovered pool constituted a danger. This risk was, in my view, the direct result of the failure of the defendant to ensure that the pool, when filled with water, remained covered or fenced.

43 It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158; Drake Personnel at 452 - 454 and WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [68]. As has been discussed, I consider that the evidence supports the conclusion that the deceased child wandered to the area in the vicinity of the pool directly from the house. However, the fact that the pool was uncovered put persons, particularly children, at risk of falling and injuring themselves no matter how they obtained access to the site. It is apparently against this risk that the Council required the defendant to make certain provisions as a condition for granting the building approval. The defendant failed to ensure that this was done.

44 The defendant submitted that the builders, particularly Mr Schrader and Mr Myers, had assumed responsibility for the safety of the pool and that the defendant was entitled to rely upon them to ensure that the pool remained safe. I do not regard this submission as enabling the defendant to resist the charge. The defendant was correct to point out that the builders had responsibilities in relation to the safety of persons at the site. The builders had more direct control over the site and were involved in construction work at the site on a continual basis at the time of the accident. This is reflected in the fact that Mr Schrader was prosecuted for offences under the Act.

45 However, the fact that other persons had responsibilities in relation to the safety of the site does not absolve the defendant from his duty under the Act to ensure that his undertaking, that is, the construction of the pool, did not give rise to risks to health and safety of persons at the site. As I observed in Cleary Bros (at[65]):

Not infrequently, a number of employers, contractors or individuals may be involved in working at a particular site. All these parties may have responsibilities in relation to the maintenance, cleaning, design or construction of equipment or structures in use on the site. Risks of injury may arise as a result of failings by a number of parties involved in an operation or of the difficulty in co-ordinating between the different operators: see, for example, WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 and Inspector Mansell v Anytime Industrial Services Pty Ltd [2001] NSWIRComm 237.

46 These comments are particularly pertinent in the present case. A number of persons had responsibilities in relation to safety at the site, most notably the builders. However, s16 of the Act requires, subject to the defences provided by s53 of the Act, that every employer and self-employed person ensure that persons are not exposed to risks to their health and safety as a result of their undertaking. It was not open to the defendant, in compliance with his obligations under the Act, to rely entirely upon the builders to ensure the safety of the pool.

47 The defendant conceded that the risk was occasioned as a result of his 'undertaking', that is, the construction of the pool, and that the site remained his 'place of work'. Nevertheless, given the unrepresented status of the defendant, I have reviewed these concessions in light of the authorities bearing upon the question as to whether or not the risks to health and safety earlier discussed in this judgment arose at the defendant's 'undertaking' and 'place of work' for the purposes of s16(2) of the Act. I am satisfied that the concessions were properly made, particularly having regard to the discussion which now follows.

48 The Full Bench in WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 at 262 considered that when dealing with issues raised under s16(1) as to an employer's "undertaking" and "place of work", it was appropriate to deal with the two aspects of the section separately.

49 The phrase "place of work" is defined in s4 of the Act to mean "premises, or any other place, where persons work". The question of whether a particular location in which an accident occurs is an "employer's place of work" for the purposes of the Act is a question of fact to be determined on all the facts and circumstances of a particular case: Technical and Further Education Commission (at 262).

50 What is properly to be considered an employer's "place of work" for the purposes of s16 of the Act was considered by Fisher CJ (then Chief Judge of the former Industrial Court of New South Wales) in Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos. 1212 & 1213 of 1990, 30 June 1992). That case involved prosecutions under ss15 and 16 of the Act arising from the collapse of a heritage building facade which was being maintained as part of a large redevelopment operation in Hunter Street, Sydney. The defendant, in that matter, was a firm of engineers contracted to design the system of support for the heritage facade during the redevelopment. The facade collapse resulted in injury to both employees of the defendant who were involved in inspections on the site (giving rise to the prosecutions under s15 of the Act) and employees of other contractors on the site (giving rise to the prosecutions under s16 of the Act). The defendant pleaded not guilty, contending that the definition of "place of work" in s4 of the Act and the reference to the "employer's place of work" in ss15 and 16 of the Act should be construed as referring to the defendant's general office, being a site over which the defendant exercised "control", as opposed to the various construction sites which the defendant as a firm of engineers was periodically required to attend. Fisher, CJ in rejecting that submission, stated (at 11):

I consider that this specialised Act should be interpreted in industrial terms as a practical document applying to the customary organisation and industrial circumstance of the building and construction industry, of which Parliament would have been aware.

Today, working on building and construction sites, are many classes of employees, manual workers, tradesmen, contractors, sub-contractors, skilled operators, engineers, consultants and professionals. They come in many categories of contractor, sub-contractor, and manufacture and erection contractors. Commonly they may work on one or more sites a day. Even this facade retention contract required four separate firms (see par.3 of the Statement of Facts) and many classes of labour for its completion.

In the sense advanced by Mr Gee, their "place of work", even though they may see it for only a few minutes a day, might be an office, a builders yard, a warehouse store or factory. Mr Gee's submission would on many sites, disqualify at any one time the greater part of the work force from the concept of being "at work" while attending the site to work.

I consider the phrase "at work" in s15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving the site, as well as here, inspection or reinspection, maintenance and periodic checks. Whilst this work was being performed the employer is subject to the duties case upon him by the Act.

With respect to the duty under s16(1) I consider the employer's conduct of his undertaking includes here the design of the façade retention structures, the safe retention of the façade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the site collapsed.

51 The decision in Inspector Charles v Meinhardt and the phrase an "employer's place at work" in s16 of the Act were considered by a Full Bench of this Court in Mainbrace Constructions Pty Ltd v Workcover Authority of New South Wales (Inspector Charles) (2000) 92 IR 84. In that case, the defendant was the principal building contractor, who had been engaged, amongst other things, to demolish and reconstruct an interior wall of a building. That wall had attached to it, iron angle support brackets for a trafficable ceiling above, cable trays and thermostats as well as other things. The wall itself and the iron brackets provided physical support to the trafficable ceiling above. For the removal and attachment of the cable trays and thermostats the defendant engaged a contractor, Kennedy-Taylor. During the demolition and reconstruction, temporary supports were put in place. With the reconstruction of the new wall all but complete, and after the removal of the temporary supports, employees of Kennedy-Taylor accessed the trafficable ceiling for the purposes of determining the appropriate location for the reattachment of the thermostats. The ceiling collapsed and the men were injured. The defendant, at no time, was required to perform work on the ceiling itself nor did it have control of access to the ceiling.

52 The parties were agreed, and the Full Bench was satisfied, that the first two elements of the offence under s16(1) had been established. That is, the defendant was an employer and the persons whom the prosecutor alleged had been exposed to the relevant risk were not in the defendant's employ. The questions on appeal were whether the risk to safety and the consequent manifestation of that risk by the collapse of the trafficable ceiling occurred at the defendant employers "place of work" and, further, whether it arose from the defendant's undertaking.

53 With regard to the expression 'place of work', the Full Bench said at [48] - [52]:

48 It is our view that the work carried out by the appellant so affected the ceiling and was in such proximity to it that the ceiling space, including the trafficable suspended ceiling, must be regarded as the defendant's place of work for the purposes of s16(1). To place an interpretation on "place of work" by, for example, limiting it strictly within the lines on an architect's drawing or to the construction of a wall but not the ceiling to which it is attached and the space above it, would relieve the appellant of any liability in respect of any area in the "immediate environs" that may be affected by the acts or omissions of the appellant. Such an approach would, we believe, defeat the objects of the statute.

49 In WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 the Court (Wright J, President, Walton J Vice President, Hungerford J) said at 261:

The decided cases make it plain that the question of whether the "employer's place of work" ingredient in s16(1) is made out is a question of fact notwithstanding any broad construction of the provision that is appropriate (see, for example, Inspector Clarke v W C Meinhardt and Partners Pty Limited (unreported, Fisher CJ, 30 June 1992) and Inspector Page v Woolworths Ltd).

50 In Inspector Clarke v Meinhardt the question arose as to whether the public footpath and roadway onto which the facade of a city building collapsed were within the defendant's place of work. Fisher CJ held:

With respect to the duty under s16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed.

51 In Inspector Page v Woolworths Ltd (unreported, Peterson J, 9 September 1994) his Honour adopted the approach of Fisher CJ in Inspector Clarke v Meinhardt in opting for a broad construction of "place of work" in s16(1) and referred to the "immediate environs which may be affected by the conduct of that business" as being included within the meaning of the term.

52 While each case will indeed be a question of fact, we consider that a broad construction of the term "place of work" in s16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case.

54 As to the expression 'undertaking' in s16 of the Act, the Full Bench in Mainbrace Constructions stated, relevantly to this matter, (at [19]):

The issue comes down to whether the re-connection of the thermostats to the newly erected northern wall was part of any contract or arrangement between the appellant and Kennedy Taylor, and whether the three employees were in the ceiling space pursuant to that requirement. (emphasis added)

55 In that case, the Full Bench considered there was no evidence indicating that the reattachment of the cable trays and thermostats was part of the defendant's contract and, therefore, was not to be considered a part of the defendant's undertaking. That aspect of the prosecution in Mainbrace failed.

56 A similar consideration of the expression 'undertaking' in s16 of the Act is to be found in the judgment of Cahill J, in Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58. In that case the defendant, a small company operating a demolition and excavation business, was contracted to demolish the Seabreeze Hotel near Tom Ugly's Bridge in the Sydney suburb of Blakehurst. The defendant, in order to prevent debris from falling onto the footpath or roadway of the adjacent Princes Highway, hired a company to erect a hoarding. The hoarding was erected and secured to the face of the building to be demolished. The structural integrity of the hoarding was such that it would not be stable if it were not attached to the building - that is, if it were a free standing structure. The trial judge found that the hoarding, when in that condition, was not stable and was not erected in accordance with the relevant Australian Standards. In due course, the connection between the hoarding and the building was severed by the defendant so as to allow the building to be demolished. No steps were taken by the defendant to contact the scaffolder to have them secure the structure of the hoarding (or remove it) and the defendant took no steps to itself secure the hoarding. Shortly thereafter, during high winds, the hoarding collapsed onto the adjacent footpath and roadway causing damage to passing vehicles and minor injuries to the vehicles occupants.

57 The collapse of the hoarding occurred on Sunday 6 November 1994. The contract of the defendant was found by his Honour to have been concluded on 8 November 1994.

58 Counsel for the defendant in that matter did not dispute that the adjacent footpath and roadway were part of the defendant's "place of work", if the defendant did, in fact, have on the day of the collapse, an "undertaking" within the meaning of the Act. What remained in issue was whether, on the day in question, the defendant was conducting an undertaking.

59 His Honour noted that most of the demolition work had been completed and considered the terms of the defendant's contract. The contract noted that certain work was to be performed by the defendant. At the date of the collapse not all that work had been completed. That work was the subject of discussion between the defendant and its principal on 8 November 1994. His Honour noted that following the discussion on 8 November it was agreed that the remaining work would be completed pursuant to a separate contract with the defendant. His Honour noted a certificate of practical completion was issued to the defendant by its principal and the defendant "handed over" the site to its principal. This brought the defendant's contract to an end. His Honour considered the defendant's undertaking as follows:

Having regard to these considerations, I am of the view that the defendant's connection with the site cannot be regarded as being at an end until a handover to the proprietor had been effected in circumstances where the proprietor's project manager signified his satisfaction that the work required had been satisfactorily completed. Until that occurred, the demolisher, in this case the defendant, in my opinion was to be regarded as possessing a place of work, and as conducting an undertaking in relation to that place of work, within the meaning of s.16(1) of the Act. In my view, that handover did not take place until 8 November at the earliest. The date of the collapse of the scaffolding and of the alleged offence was 6 November. (emphasis added).

60 In the present case, the defendant's work involved the construction of the pool. It is evident that the risk arose from the construction of the pool and the fact that the pool was not covered at the time of the accident. The partial filling of the pool with water increased the risks associated with the pool not having been adequately covered or enclosed. Although the majority of the work on the construction of the pool had been completed by the defendant, it was clear that the contract between the defendant and the owners of the property required the defendant to undertake further work, particularly the installation of a filtration system and final cleaning and instructions to the owners. The defendant's undertaking was not finished until the pool was finally completed and ready for use. The defendant understood his further obligations in this respect and, indeed, carried them out upon the owners moving into the completed premises. The site remained a "place of work" in the sense referred to in Meinhardt, namely "every area which may be affected by the work being done" and an undertaking for the defendant at the time of the accident.

61 It follows from the foregoing discussion that the defendant failed to ensure that persons not in his employment, particularly Jack Gaul, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking whilst they are at the defendant's place of work. The defendant is thereby guilty of an offence under s16(2) of the Act in relation to the charge brought in these proceedings, unless he establishes a defence under s53 of the Act.

62 In my view, the submissions advanced by the defendant may be treated as also seeking to establish a defence under s53 of the Act. I shall examine those submissions and the defences generally in the light of the evidence in this matter. Section 53 of the Act provides:

53. Defence

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

63 To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake Personnel at 457; Kennedy Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 at 82 and Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) at 102. The meaning of the term "reasonably practicable" has been the subject of discussion in the recent judgment of this Court, as presently constituted, in Cleary Bros (at [81] - [88]). I adopt that discussion for the purposes of this judgment.

64 As has been discussed, a significant submission advanced by the defendant was that the builders, Mr Schrader and Mr Myers, had assumed responsibility for the safety of the pool. That submission was advanced on two bases. Firstly, that the builders had assumed responsibility for the pool because they had removed the mesh in the first place. Secondly, that following the discussion with Mr Myers on 22 April 1998, the defendant was given at least an implicit assurance that the builders would take steps to ensure that the pool was safe. The defendant submitted that he was entitled to rely upon the builders. Further, the defendant submitted that it was not practicable for the defendant to make provision against the removal of the mesh. The defendant, it was contended, did not have control of the site or control of persons working at the site. It was also contended by the defendant that, given the nature of the site, it would not have been practical for him to have "policed" the site to ensure that the mesh was not removed.

65 Even accepting the defendant's version of events, which I have substantially done earlier in this judgment, I do not consider that this submission established that it was not reasonably practicable for the defendant to comply with the Act or that the risk was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provision. In the defendant's account of events, his conversation with Mr Myers was only brief and the defendant accepted that the effect of the conversation might not have been clear between himself and Mr Myers. The conversation was not such as to constitute an express undertaking to ensure that the pool would be covered and certainly did not involve any undertaking being sought or given as to the manner in which any replacement covering would be installed or the timing of such installation. Neither can the defendant suggest that he was given any undertaking that the mesh would be replaced because, on his own account, he removed the mesh from the site on the day. In my view, this conversation was not sufficient to discharge the reasonable obligations of the defendant to ensure that the construction of the pool did not create risks.

66 It was not reasonable for the defendant to take no further steps after 22 April 1998 to ensure that the mesh was replaced or some other cover or fencing installed on the pool. There were a number of measures available which were not only reasonably practicable, but which, in my view, constituted the minimum steps that should have been taken once the defendant became aware that the mesh had been removed. The defendant could have approached Mr Schrader, who was in control of the site, to clarify what steps were to be taken and to seek some kind of undertaking that the pool would be covered where possible. The defendant could have returned to the site soon afterwards to check that the builders had taken appropriate measures to cover or fence the pool. Furthermore, the defendant could have (whether in liaison with Mr Schrader or otherwise) himself replaced the mesh at the earliest possible time.

67 The defendant correctly pointed out that he had limited control over the site and persons working on the site. There were certainly limits to the measures that it would have been reasonable for the defendant to adopt so as to ensure that the pool remained covered and otherwise did not present risks to the health and safety of persons at the site. The defendant had completed the majority of his work at the site and could not reasonably be expected to be constantly present at the site to ensure that risks did not arise. However, this does not remove or diminish the fact that the defendant failed to take any steps to ensure that the pool remained covered, even after he became aware that the mesh had been removed. As has been discussed, there were a number of steps which were reasonably open to the defendant to take. The fact that the defendant could not remove all risks associated with the pool does not obviate his failure to take steps which were reasonably available.

68 The foreseeability of a risk to health and safety may be a consideration in assessing the practicability of a defendant taking measures to address the risk: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 259 and Cleary Bros at [87]. In my view, it was reasonably foreseeable that the covering placed on the pool by the defendant at the completion of the first stage of his work may have been removed or disturbed during the course of the building project. In any event, in this case, the defendant was actually aware of the risk and did, in fact, foresee the danger presented by the uncovered pool. Although the mesh was removed by Mr Schrader and Mr Myers without the knowledge of the defendant, he became aware of the fact that the mesh had been removed when he visited the site on 22 April 1998. The defendant conceded that on that day he was concerned with the danger posed by the pool. Having foreseen the risk, the defendant should have taken steps to address that danger. It was, in my view, reasonably practicable for the defendant to do so.

69 There is one final matter that should be mentioned. An issue was raised during the course of the hearing concerning whether the fencing at the site complied with the Swimming Pools Act and the Council conditions upon the granting of building approval. That Act requires that outdoor swimming pools that are situated on premises on which a residential building is located must be surrounded at all times by a child-resistant barrier. Relevantly, that Act provides for an exception in the case of pools situated on waterfront properties. Section 10 of that Act provides:

10. Exemption for swimming pools on waterfront properties

(1) This section applies to both new and existing swimming pools.

(2) A swimming pool that is situated on premises having frontage to any large body of water (such as a permanently flowing creek, a river, a canal, a pond, a lake, a reservoir, an estuary, the sea or any other body of water, whether natural or artificial) is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations.

(3) The diagram in Part 4 of Schedule 1 illustrates the provisions of this section.

(4) A reference in this section to a residential building does not include a reference to a structure (such as a garage or shed) that is ancillary to the building if the structure is not itself used for residential purposes.

70 Questions were raised during the proceedings concerning whether the Swimming Pools Act applied to a residential premises where the dwelling was under construction and whether s10 of that Act required that barriers be placed at the side of the house to prevent access to the pool area from the street. Differing views were expressed in relation to those matters. I do not consider that it is necessary to resolve those questions in this case. The Swimming Pools Act is evidently directed at the owners of residential premises in which an outdoor swimming pool is situated. It is not determinative of the obligations of an employer or self-employed person under the Occupational Health and Safety Act in relation to ensuring the safety of persons in the workplace.

71 It is sufficient to observe that the failure to cover the pool created an obvious and serious risk at the defendant's place of work. This risk was recognised in the conditions of the grant of building approval that required that the pool not be filled with water until such time as the fence is erected or other measures taken to prevent entry. I do not consider that this requirement was satisfied at the time of the accident. The defendant conceded that a danger had been created by the removal of the mesh from the pool and he recognised that danger at the time he became aware that the pool was no longer covered. That danger, and its seriousness, were amply demonstrated by the tragic circumstances of this case.

72 Having regard to the foregoing discussion, I do not consider that the defendant has established a defence under s53 of the Act.

73 I find the offence proven in relation to the prosecution brought in Matter No. IRC 1666 of 2000 and thereby find the defendant guilty of an offence under the Act, as charged, in the summons in Matter No IRC 1666 of 2000. I will hear submissions on penalty on a date to be fixed by arrangement with the prosecutor and the defendant.

LAST UPDATED: 20/12/2001