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Industrial Relations Commission of New South Wales Decisions |
Last Updated: 20 March 2001
NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION
CITATION : WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) [2001] NSWIRComm 33
FILE NUMBER(S): IRC 2638
HEARING DATE(S): 09/10/2000, 16/10/2000, 17/10/2000, 18/10/2000, 19/10/2000
DECISION DATE: 09/03/2001
PARTIES:
PROSECUTOR
WorkCover Authority of New South Wales (Inspector Martin Carmody)
DEFENDANT
Byrne Civil Engineering Constructions Pty Limited
JUDGMENT OF: Hungerford J
LEGAL REPRESENTATIVES
PROSECUTOR
Mr J J Millar of counsel
Solicitors: Ms M Lagana
WorkCover Authority of New South Wales
DEFENDANT
Mr R Moore of counsel
Solicitors: Mr J McHarg
Malouf Solicitors
CASES CITED: A & M I Hanson Pty Ltd v WorkCoverity Authority of New South Wales (Inspector Kirkby) (unreported, Full Court, CT94/1218, 4 October 1995)
Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467
Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149
Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40
McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241
State Rail Authority of New South Wales v Dawson [1990] 37 IR 110
State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) [2000] NSWIRComm 261
Sydney City Council v Coulson [1987] 21 IR 477
WorkCover Authority of New South Wales (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122
WorkCover Authority of New South Wales (Inspector Charles) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451
WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246
WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32
WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248
LEGISLATION CITED: Occupational Health and Safety Act 1983 s 15(1) s 16(1) s 53
JUDGMENT:
- 63 -
IN COURT SESSION
CORAM: HUNGERFORD J
Friday, 9 March 2001
Matter No IRC 2638 of 1999
WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MARTIN CARMODY) v BYRNE CIVIL ENGINEERING CONSTRUCTIONS PTY LIMITED
Prosecution under section 16(1) of the Occupational Health and Safety Act 1983.
1 This is a prosecution by Martin Carmody, as an inspector of the WorkCover Authority of New South Wales, of Byrne Civil Engineering Constructions Pty Limited for a breach of s 16(1) of the Occupational Health and Safety Act 1983. The sub-section states :
16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work
(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
2 The summons specified the charge as follows :
The defendant, being an employer, between 29 October 1997 and 15 December 1997 inclusive at 10-12 Kent Road, Mascot in the State of New South Wales, DID FAIL to ensure that persons not in its employment and in particular, Darragh Whelan and Matthew Twomey, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health & Safety Act, 1983 in that it failed to make arrangements for ensuring safety and absence of risks to health in connection with excavation work carried out adjacent to a freestanding wall at the south west corner of the said site.
3 The particulars of the charge were set out in the summons in the following terms :
The defendant failed to:
a) Assess the stability of the said wall and the effect excavation work adjacent to the said wall would have on its foundations.
b) Commission a dilapidation survey that encompassed the said wall.
c) Prop, underpin or otherwise stabilise the foundations of the said wall to minimise or eliminate the risk of its collapse.
d) Develop and submit to Consolidated Constructions Pty Ltd a Safety Plan prior to commencing excavation work on the said site.
e) Develop and submit a safe work method statement to Consolidated Constructions Pty Ltd for excavation work carried out adjacent to the said wall.
f) Conduct periodic safety audits on the stability of the said wall.
g) Provide such supervision of Darragh Whelan and Matthew Twomey, whilst carrying out excavation work adjacent to the said wall's foundations, as may be necessary to ensure their health and safety.
h) Assess whether Darragh Whelan and Matthew Twomey were adequately trained and experienced to safely undertake the duties required of them.
As a result of the said failures, Darragh Whelan and Matthew Twomey sustained fatal injuries.
4 A not guilty plea was entered by the defendant and the matter proceeded as a defended hearing. However, as a result of co-operation between the parties a statement of agreed facts was admitted into evidence covering many of the essential ingredients of the charge and so about which there was no issue. It is helpful to cite what was contained in that statement, as follows :
1. As at 15 December 1997
(a) Byrne Civil Engineering Constructions Pty Ltd ("the Defendant") was an "employer" as defined under the 1983 Act and for the purposes of section 16 of the said Act;
(b) Messrs Whelan and Twomey were not employees of the Defendant;
(c) Messrs Whelan and Twomey suffered fatal injuries whilst engaged in the Defendant's "undertaking" at the Defendant's then "place of work" a construction site upon which the head contractor was Consolidated Constructions ("Consolidated") and the Defendant was a subcontractor contracted to perform "detailed earthworks".
2. There was no formal written contract entered into between the Defendant and Consolidated for the performance of the work described as "detailed earthworks". There existed a contract which was partly oral and partly written and to the extent it was in writing it is found in Exhibit 42 (not reproduced).
3. Representatives of the Defendant first attended the site on 12 November 1997 for the purpose of site inspection.
4. Persons engaged to perform work on the site by the Defendant first attended to perform work on the site on 24 November 1997 and attended thereafter on each of the following days: 25 and 26 November 1997 and on 3, 4, 5, 6, 8, 9, 10, 12 and 15 December 1997.
5. At all relevant times the Inspector was properly authorised to bring these proceedings.
5 In the result, the hearing of the charge concentrated on those ingredients for the guilt of the defendant to be made out as to whether the prosecutor had established beyond reasonable doubt that there was a causal nexus between the obligation cast by s 16(1) on the defendant and the fact of a detriment to safety in the circumstances which existed. In other words, the issue in the case focused upon whether it was the defendant who relevantly failed to ensure that the two persons concerned not in its employment were not exposed to risks to their health or safety by reference to the particulars set out in the charge. The thrust of the defendant's case in that respect was that the specific failures alleged by the prosecutor were not the responsibility of the defendant but more properly those of other persons having in mind the contractual situation, standard construction site practice and arrangements on the site for performance of the work.
6 Although those aspects will require detailed consideration later, it is convenient at this point to record that the tender submission by the defendant to the contractor, and which tender was accepted, relevantly included work to be performed on the site for "re-trimming and excavate for retaining wall footing" and "backfill retaining wall". It was in the area of the retaining wall that the subject accident occurred on 15 December 1997 at about 3.00 pm when a free-standing wall near the south-west corner of the site at Kent Road, Mascot collapsed thereby causing fatal injuries to two persons, Darragh Whelan and Matthew Twomey, who were performing the excavation and filling work for the defendant.
7 It emerged from the evidence that the defendant was engaged in the business of civil engineering, pipeline cable and mains laying, and excavations and bulk haulage. The subject site at Kent Road, Mascot was previously a foundry which had been demolished by Davis Earthmoving and Quarrying Pty Limited many months prior to the present incident and that company then performed the bulk earthworks necessary to restore the site after the demolition work. It seems that in June 1997 Develco Project Pty Limited purchased the site from the former owner and carried out certain excavation and filling work, including footings for new retaining walls. On or about 15 August 1997, the work was suspended while Develco negotiated a sale of the site to Cutler Hammer Pty Limited; the sale was completed on 21 October 1997 and Develco then assumed for Cutler Hammer the role of developer of the site for the construction of a purpose-built development being an office/factory complex. Develco (or a related company, Devico Pty Limited) engaged Consolidated Constructions Pty Limited as the principal contractor for the construction work; van der Meer Bonser Pty Limited, a firm of consulting engineers, was engaged by Develco as the design engineer for the project; and Consolidated Constructions sub-contracted the excavation works to the defendant.
8 Importantly for present purposes, the defendant proceeded to perform the excavation work not with its own employees but, under sub-contracts, by using the services of employees of two labour hire companies, namely, J D Services Pty Limited and Subcrete Constructions Pty Limited - the former employed Mr Whelan, who acted as the site engineer for the excavation works, and a Mark Byrne, who was a machine operator on the site; the latter employed Mr Twomey who was used as a labourer. As the parties agreed, the contract between Consolidated Constructions and the defendant as to the precise excavation works was partly oral and partly written and, in general terms, it appeared the contract required the defendant to dig strip footings, excavate pads and trim existing excavations to enable the construction of footings and retaining walls at various locations on the site. Such earthworks were commenced on 24 November 1997 and were under the overall supervision of a Rodney Taylor, Consolidated Constructions' site engineer.
9 The offending brick wall, which collapsed and crushed Mr Whelan and Mr Twomey, was located along the western boundary of the site on an adjacent property owned by The Blue Mountains Water Company. It was of solid brick construction approximately 4.1 m high, 6.9 m long and 230 mm thick with 950 mm returns at each of its ends; the wall was supported by a concrete driveway slab on the adjacent property, but, about 185 mm west of the wall, there was a saw cut in the driveway parallel to the wall and a further saw cut in the driveway about 500 mm to the west of the wall. It was the prosecutor's case that those saw cuts, which had been done some 15 months beforehand when a water main connection was installed, weakened the stability of the wall by removing the benefit of the previous slab and beam construction.
10 On the day the incident occurred, Seamus Benedict Byrne, the principal and sole director of the defendant, visited the site at about 7.00 am and conferred with Benjamin New, the site manager for Consolidated Constructions, concerning the need to further excavate various footing pads on the site, including the length of the brick wall on the adjacent property along the western boundary. Mr Seamus Byrne then left the site leaving Mr Whelan and Mr Twomey to carry out Mr New's instructions. That afternoon, excavation work along the western boundary was performed, with Mr Mark Byrne using an Hyundai 21 tonne excavator and Mr Whelan and Mr Twomey using shovels to dig in the trench beside the brick wall. While using the excavator just north of the wall, Mr Mark Byrne turned around and saw that it had collapsed on Mr Whelan and Mr Twomey who were lying in the trench.
11 The prosecutor's case was outlined by Mr J J Millar of counsel during his opening address in the following way :
It's the prosecution case that the removal of soil beside the wall, that is on the site and below the level of the ground to the west of the wall, greatly reduced the stability of the foundations, and particularly so when the removal of soil went below the foundation of the wall itself; and the safety was further compromised by reason of the saw cuts to which I referred earlier which existed to the west of the wall which thereby prevented the wall gaining some stability or increased stability from the slab to which it was attached upon the property to the west. It seems that, from all of the witnesses that were asked, nobody had any awareness of the existence of the saw cuts which would suggest that nobody inspected the property to the west of the wall itself to see whether, if it was apprehended it was a slab and beam construction and some benefit being contained to the wall being attached to the slab, to see whether that was in fact intact.
...
For the reasons I have indicated concerning the various failures to prop and underpin the wall and ensure the dilapidation survey dealt with the wall being an adjacent structure, and the failure to submit a safe work method statement and conduct safety audits and other matters to which I have referred, it is the prosecution's case that the defendant by each of those matters committed a breach of section 16 by failing to ensure that Messrs Whelan and Twomey were not exposed to risks to their health or safety which arose from the conduct of the defendant's undertaking.
12 The prosecutor's evidence in the case was very extensive. It comprehended sixteen records of interview conducted by the prosecutor and other inspectors of the WorkCover Authority, six statements given to police officers for the coroner's inquest, together with various surveys and plans relating to the site and the proposed construction work, site reports and technical graphs and tables of levels of the excavation works. Admitted into evidence through the prosecutor were nineteen photographs taken by him on 15 December 1997 shortly following the incident showing details of the site and its environment, the collapsed wall and, most helpfully, the excavation trench, the wall's footings and the saw cuts in the concrete driveway. Also, Christopher John Turner, an engineer with the WorkCover Authority, attended the site on 19 December 1997 and eight photographs taken during that visit were admitted into evidence showing the collapsed wall and the excavation trench along the western boundary of the site. Many of the documents admitted into evidence were obtained by the prosecutor as part of his investigations and I will deal with those later to the extent they contained significantly relevant information. Suffice it to record that, during his oral evidence, the prosecutor said he reached the conclusion following his inquiries and examination of plans that the depth of the excavation near the wall from the time Davis Earthmoving and Quarrying left the site to the date of the incident had increased by a few hundred millimetres.
13 Daniel Joseph Leavy gave evidence for the prosecutor. He was a senior professional engineer with the WorkCover Authority engaged in its construction industry team. Mr Leavy graduated in 1985 with a Bachelor of Science and Engineering degree and later became a Chartered Engineer through the Institute of Engineers, Ireland and was registered with the Federation of European Engineers; his special area of practice was in structural engineering. He said the prosecutor asked him to prepare a report in relation to the subject incident as to the causes of the collapse of the brick wall. Mr Leavy attended the scene at Kent Road about two hours after the incident occurred and, as stated in his report admitted into evidence, said it was "based on observations made and measurements taken on site during the investigation on 15 December and further site visits, from information provided by witnesses in subsequent interviews and data made available to WorkCover".
14 The on-site activities were dealt with by Mr Leavy in his report in the following way :
The buildings were demolished between September 1996 and June 1997, and most of the overground debris removed off-site. The Developer took possession of the site in mid-June 1997.
Over the next two months, the remaining debris resulting from the demolition was removed from site, and the ground level generally raised by importing crushed concrete, which was compacted using heavy machinery to attain a predetermined profile. In mid-August, work was suspended until the end of October while negotiations took place with a potential purchaser of the site. Upon resumption, the remaining bulk earthworks were carried out to suit the specific needs of the client. This required some modifications to be made to the previous works. Consolidated Constructions Pty Ltd commenced on site once the bulk earthworks were completed in late November 1997.
Part of the bulk earthworks contract involved carrying out preliminary excavations along the site's northern and western boundaries to prepare the ground for retaining walls which were to be built at a future date. Where these were adjacent to existing buildings, the excavations were stopped at the level of the underside of the buildings' foundations. The south west corner of the site was excavated in July 1997. This represented the lowest point along that boundary and the excavation in front of the freestanding wall resulted in approximately 600 mm depth of soil being removed from beside the strip footing supporting the wall. Approximately 500 mm from the boundary, a 2:1 batter was formed from the excavated level up to the level of fill. The make-up of the wall's foundation at this phase of the works is shown in Figure B4 and Photograph A3 shows a stretch of the western boundary as it would have appeared at the end of this phase of the development.
(Figure B4 and Photograph A3 are not reproduced but otherwise were in evidence in the proceedings.)
15 It was on the completion of the bulk earthworks in late-November 1997 that the defendant commenced the detailed excavations on the site, being 24 November 1997 as indicated in the statement of agreed facts, as confirmed by other evidence, and thereafter such work was performed by the defendant on 25 and 26 November 1997 and on 3, 4, 5, 6, 8, 9, 10, 12 and 15 December 1997. As Mr Leavy observed, the bulk earthworks carried out prior to late-November 1997 (by Davis Earthmoving and Quarrying) "involved carrying out preliminary excavation along the site's northern and western boundaries to prepare the ground for retaining walls which were to be built at a future date". As to the detailed excavations, the work which was performed by the defendant, Mr Leavy observed -
· "... the preliminary excavations were modified to attain the engineering details specified for the retaining walls' footings".
· "A two-tiered footing was required along the south west boundary, with the step located adjacent to a point approximately two-thirds along the length of the freestanding wall".
· "At the time of the accident, the ground adjacent to the wall had been excavated below the top of the strip footing to approximately 1000 mm at the south end, stepping to approximately 600 mm at the north end".
· "Further excavations were required to finalise the footing details; these final excavations were too precise to be done by a machine, so they were being dug by hand".
· "Further work was carried out that reduced the levels of the excavations adjacent to adjoining buildings lower than the bottom of their footings".
· "No precautionary stabilising work, such as propping or underpinning, had been carried out to the structures adjoining the site, including the freestanding wall, in preparation for the excavations adjacent to them".
16 As to the mechanism of failure, Mr Leavy expressed the view that at the commencement of the development the "arrangement of the wall and its strip footing foundation ... was sufficient to support the weight of the footing and the wall" but that "removing the soil from one side of the foundation greatly reduced the stability of the foundation. Additional excavation in the area further weakened the system to such an extent that the soil beneath the strip footing could no longer support the weight of the wall and footing. This resulted in the collapse of the footing, which in turn caused the wall to fall over".
17 Mr Leavy then examined a number of possible explanations why the foundation finally collapsed, including the bearing pressure of the wall on the soil being upset by excavating the soil from in front of the supporting strip footing; the equilibrium of the wall being put into a state of imbalance in the earth pressure on either side of the footing by excavating one side of the foundation; and a tendency of the wall to overturn due to the excavation beneath the strip footing causing instability by increasing the horizontal load from the undisturbed side of the footing. Accepting that all of those three aspects were possible failure mechanisms, Mr Leavy expressed the opinion that the failure sequence was initiated by "the additional excavations carried out on the day of the accident, including the hand excavations", "a gust of wind increasing the horizontal force at the base of the wall" (thereby increasing the stresses in the weakened soil) or "a combination of these". In the result, he concluded :
The excavations on the site in the vicinity of the wall weakened its foundations and left it unstable. This process began with the excavations that were carried out in the second phase of the development whereby the soil adjacent to the wall was reduced to a level below the underside of the foundation. Other factors subsequent to the initial excavation - including the vibrations that were generated in compacting the fill on site to the correct level and which were plainly felt by the people in the adjacent property, the movement of vehicles along the driveway to the Blue Mountain Water Company, heavy traffic along Ricketty Street, and wind and rain - further adversely affected the foundations to the extent that the additional mechanical and hand excavations being carried out on the day of the accident were sufficient to weaken the support from the soil and cause it to fail. The mechanism of failure may have been exasperated (sic) by a gust of wind that initiated the collapse.
18 As to the contributing factors to the collapse of the wall, Mr Leavy made the general comment that whilst a number of factors operated, "including the design of the works, and the organisation and supervision of the work on site", a particular failure was "to identify the risk associated with the wall on the adjoining property at the south west corner of the site". He then detailed, relevantly for present purposes having in mind the way in which the defendant argued its case, the contributing factors to the incident caused by the actions of the parties involved as follows :
7.2.2 Develco Project Pty Ltd. Develco Project Pty Ltd contributed to the accident as follows :
(a) Initially, Develco Project Pty Ltd failed to include the wall in the dilapidation report it commissioned for the site; if the wall had been included in the report, other parties may have paid attention to it in their scope of works for the development.
(b) Develco Project Pty Ltd authorised the excavations that took place in the second phase of the development, including the excavation adjacent to the freestanding wall on the adjoining property in the south west corner of the site.
(c) Develco Project Pty Ltd handed the site over to the Principal Contractor at the end of the second phase of the development with the foundation to freestanding wall weakened by the excavations that had taken place during that phase.
7.2.3 van der Meer Bonser Pty Ltd. van der Meer Bonser did no specific design for any of the retaining walls required in the development but produced a series of generic designs based on the required heights of the walls that utilised geotechnical data supplied by the Principal Contractor. van der Meer Bonser Pty Ltd did not consider it necessary to carry out its own survey to assess the site and adjoining properties prior to producing the detailed design of structures and civil works for the development but depended solely upon the information supplied by the Principal Contractor. As a result, van der Meer Bonser were unaware of the freestanding wall adjoining the south west boundary of the site, and therefore there was no requirement for propping it, or underpinning or otherwise stabilising its foundation in preparing the detailed excavations required for constructing the retaining wall required there.
However, van der Meer Bonser Pty Ltd were involved with the site since July 1997 and had made regular visits there to examine work in progress, including a visit on 25 November 1997 to examine the foundations that were exposed in preparing the footings for the retaining wall in the north west corner of the site. On no occasion did the representative from van der Meer Bonser notice the freestanding wall on the south west boundary of the site.
In addition, at the time of the accident, there was no evidence of requirements to stabilise any of the properties adjoining the site where excavations were being carried out and a number were in a potentially hazardous condition which required immediate rectification.
Note: The design of the earthworks was not in accordance with the BCA, AS 2870 or good engineering practice
7.2.4 Consolidated Constructions Pty Ltd. Consolidated Constructions Pty Ltd contributed to the accident in the following ways:
(a) General Notwithstanding others' responsibilities, the Principal Contractor should carry out an assessment of properties adjoining the site and the effect that excavations or other work to be carried out may have on the stability of their foundations. In this case, Consolidated Constructions Pty Ltd did not carry out such an assessment and failed to recognise the dangerous working environment adjacent to the freestanding wall on the adjoining property in the south west corner of the site.
(b) Provision of information As part of their contract, Consolidated Constructions Pty Ltd was to provide the Design Engineer with all the relevant details to enable the Design Engineer design structures and civil works for the development. However, Consolidated Constructions Pty Ltd did not supply the Design Engineer with any information pertaining to structures adjacent to the site and therefore no allowance was made of them in the structural and civil design.
(c) Project Management Overall project supervision appeared to be poor and not in compliance with the requirements specified in Consolidated Constructions Pty Ltd's own Project Management Manual.
(d) Site Engineer The Site Engineer was inexperienced in excavations and groundworks in general and therefore was not competent to fulfil the criteria for the position outlined in the Consolidated Constructions Pty Ltd's Project Management Manual.
(e) Site supervision Consolidated Constructions Pty Ltd had supervision on site during the second phase of the project and therefore should have been aware of the excavations which had taken place during that phase. In addition, the overall level of supervision on site during the third phase appeared to be poor: there was much evidence of Subcontractors carrying out work unsupervised for periods of time or carrying out work without Consolidated Constructions Pty Ltd's authorisation. A cursory site inspection after the accident revealed a number of other hazards on site, including no stabilisation work to properties adjoining the site where excavations were being carried out (see Photograph A7), a hazardous electrical connection to a site hut, excavations not adequately protected against people falling into them and reinforcing bars without safety caps in low excavations.
7.2.5. Byrne Civil Engineering Constructions Pty Ltd. Byrne Civil Engineering Constructions Pty Ltd did not identify the dangerous working environment adjacent to the freestanding wall and allowed its employees to work there.
(Photograph A7 is not reproduced but otherwise was in evidence in the proceedings.)
19 Although Mr Leavy identified apparent contributing causes by persons other than the defendant, it should immediately be stated, for reasons which will later follow, that that does not necessarily exculpate any liability of the defendant for what occurred in terms of a failure to ensure the health or safety of persons arising from the conduct of its undertaking while they were at its place of work. In other words, and even though persons other than the defendant may have been at fault, so too may the defendant in failing to comply with s 16(1) of the Occupational Health and Safety Act. In any event, and as Mr Leavy observed, the defendant "did not identify the dangerous working environment adjacent to the freestanding wall and allowed its employees to work there".
20 Reference has already been made to the saw cuts which were earlier placed in the concrete driveway and upon which the wall stood. Mr Leavy was of the view that "the principal effect of the saw cut was to change the type of foundation from an edge beam section of a slab-on-ground to a strip footing with an adjacent ground slab". He then added :
The modification to the foundation contributed to the collapse of the wall in that the original foundation, where the edge beam was connected to the ground slab, may have supported the beam and the wall once the soil beneath the edge beam failed. However, a strip footing is a valid method of supporting a wall such as the one that collapsed, and in this case, the foundation and wall would have remained stable if no excavations had taken place adjacent to the footing.
21 During the cross-examination of Mr Leavy, the following evidence emerged :
Q. In terms of the reports you prepared you have also seen photographs of the wall when it was in situ?
A. Yes, correct.
Q. In terms of that particular structure and again putting it in terms of being a structural engineer would that structure have raised any concerns with you had you visited that site?
A. Definitely.
Q. In what way would a concern have been raised with you to that particular structure?
A. One of the fundamental rules of engineering is beware of freestanding structures.
...
Q. Your first conclusion is that from the time the excavations commenced and that would be a time at least in July 1997, the wall was unstable?
A. Yes.
Q. And then you make certain correcting comments, I think to the extent to which things such as vibration and compaction would have further impacted the wall?
A. Yes.
Q. Because you gained a greater understanding of what had occurred in the site in the various phases?
A. Correct.
Q. What you basically conclude is that whatever the two workers were doing that day in terms of their work in the trench it was sufficient to finally take it beyond a critical point?
A. Yes.
Q. But it would be correct to say that the risk of collapse existed from the time of the initial excavation in July 1997?
A. Definitely.
Q. Then the only other thing because I think you had notice both from I think the material you had got from the Bureau of Meteorology as to the wind on that day and also observations of one other witness that there might have a gust of wind against the wall, that was further precipitating factor?
A. At the stage of the incident the wall was literally precariously balanced and anything could have precipitated the actual collapse. It could have been one of the two men, it could have been a shovel of dirt they dug, or a gust of wind, but it was that delicately balanced at this stage.
...
Q. Can I put this to you - what you say is the wall is inherently unstable?
A. Yes.
Q. What you say is you have knowledge of people working doing some shovel work.
A. Yes.
Q. You have knowledge of a gust of wind on the day?
A. Yes.
Q. But in your opinion you cannot say whether it was the shovel work, the wind or both factors in combination that caused the wall to collapse?
A. No, it is impossible to determine the exact precise causative effect.
Q. One possibility that exists, but you cannot reach a conclusion on, is had there been no wind the wall may have continued to be unstable but erect?
A. I cannot say, I would deem it very unlikely. As soon as you start digging underneath the bottom of the footing the wall started to become unstable. The further you dig the more unstable it gets.
22 As a general proposition, I found Mr Leavy's evidence to be credible. It was clearly and forcefully presented and in a manner consistent with the supporting technical details referred to by him. Of importance to me, he outlined an objective analysis of the history and condition of the site, the free-standing brick wall's foundations and construction, modifications made to the wall, excavations near the wall, digging at the footings of the wall, work done on the adjacent driveway (including the saw cuts), on-site activities and mechanisms of the failure of walls by reference to the brick wall here concerned; his conclusions were cogent. In particular, his comment that a visit to the site would have raised his concern about the brick wall because, as he said, "one of the fundamental rules of engineering is beware of freestanding structures", I found to be quite telling and meaningful in my consideration of the task in determining the liability of the defendant for the present offence. I accept his evidence.
23 Mr Seamus Byrne was interviewed by the prosecutor four days after the incident. He could not initially recall whether Mr Whelan and Mr Twomey had received a site safety induction prior to commencing work at the Kent Road site, but, on being pressed, he later said - "I don't believe so, not to my knowledge". As to the instructions given to and supervision of those two persons in their performance of work for the defendant on 15 December 1997, the record of interview of Mr Seamus Byrne stated :
Q.22 Who instructed Darragh WHELAN and Matthew TWOMEY where to work and what to do on the site previously mentioned?
A. I had a meeting with Ben NEW at the site at 7.00 am because he rang me Saturday and told me there was a problem. Darragh was also present during this conversation with Ben. Ben told me that the problem was that various 'footing pads' had been dug 60 to 80 mm too shallow. At this time the surveyor had not arrived and I instructed Darragh not to do any pad footing excavation until the Consolidated Constructions surveyor had arrived. Darragh told me he had no intentions of doing anything until the surveyor arrived. About 5 to 9 I had 'smoko' with Darragh WHELAN, Matthew TWOMEY and Mark BURNS and I left the work site round 9.30am. I relied on Darragh's experience to carry out any instructions from Ben NEW.
Q.23 Who supervised Darragh WHELAN and Matthew TWOMEY when they were working on the site?
A. Darragh WHELAN was left in charge of my scope of works.
Q.24 What qualifications did Matthew TWOMEY and Darragh WHELAN hold?
A. Darragh WHELAN had a honours degree in civil engineering and some qualifications in surveying. I will supply with a copy of his resume. Matthew TWOMEY was a semi skilled labourer who at all times worked under the instruction of the work site manager.
Q.25 How did you verify the validity of their qualifications?
A. In the case of Darragh WHELAN, I contacted his previous employer through my Irish connections, who are, Michael OKEEFE another Civil Engineer that lives in Ireland. In the case of Matthew TWOMEY, Tony TWOMEY who is Matthew's brother, who was employed by Byrne's Civil Engineering at Homebush Bay. Tony approached me and asked if Matthew could start work with me at Homebush. I relied on Tony's word of mouth.
Q.26 What experience in excavation did Matthew TWOMEY and Darragh WHELAN have?
A. At the time Matthew started working with me in October 1996, he had no experience. So I put him on assisting pipe layers to give him experience. Darragh WHELAN from the checks I did in Ireland and his resume.
Q.27 What training in relation to Occupational Health and Safety regarding excavation work on building sites was provided to either Darragh WHELAN and Matthew TWOMEY?
A. I wouldn't know.
24 Mr Seamus Byrne confirmed that the scope of works to be performed by the defendant under its contract with Consolidated Constructions was "to dig strip footings, excavate pads and trimming existing excavation for retaining wall". He said he was the sole director of the defendant and visited the site on a random basis about twenty times during the period of three weeks immediately prior to the incident. On being questioned specifically about the brick wall at the south west corner of the site, Mr Seamus Byrne's record of interview stated his answers as follows :
Q.39 Were you aware of the free standing wall located adjacent to accident scene, prior to the accident on the 15/12/1997?
A. I was aware the adjoining buildings abutting the site boundary. I now wish to make that claim against self incrimination offered to me at the beginning of the interview. I remember standing on top of the stock pile, I think I would have seen the wall which fell and the attached chain mesh fence and shade cloth. I remember talking to Ben NEW about the stockpile about the 11th or 12th of December and I offered him to hire my truck to clean up the site. This is the only time I can remember going over to that corner of the site. On the day of the accident, before 12.00 pm, I was in the vicinity of the wall and I spoke to all the men. Time can be verified by delivery docket of fuel.
Q.40 Was an evaluation made of the stability of that wall prior to excavation being carried out?
A. Not by me.
Q.41 Do you know of any evaluation of the wall that was carried out by any other person?
A. I don't know.
Q.42 Did you examine the wall or its footing prior to excavation being carried out?
A. No.
Q.43 Was the majority of the excavation work done prior by another company?
A. Yes, approximately 90%.
Q.44 Were you aware of a existing concrete saw cutting adjacent to the other side of the wall?
A. No.
Q.45 Did you examine the concrete slab in any fashion on the adjacent property at 31-33 Ricketty St, Mascot?
A. No.
Q.46 Did your company carry out excavation work, ie removal of soil from the base of the free standing wall as part of your contracted work?
A. Yes to my knowledge.
Q.47 In your opinion why was Darragh WHELAN and Matthew TWOMEY working at the base of the wall that fell prior to the accident?
A. I would have to say I don't know because I wasn't there.
25 Mr Seamus Byrne was interviewed further by Senior Inspector Ian Tyler of the WorkCover Authority on 31 March 1998 in the presence of Mr Leavy; again, the interview was recorded and admitted into evidence. After confirming the accuracy of the content of the first record of interview, Mr Seamus Byrne said the defendant proposed "to check with relevant site management what safety requirements and inductions are required for all sites" so as to ensure that a recurrence of an accident of the nature which occurred here did not happen in the future. Mr Seamus Byrne indicated to Mr Tyler he had attended induction training courses for safety on excavation based projects "when working at the mines, Australian Gas Light Company and energyAustralia" and "since about 1986 I have been attending site induction courses, the last one being at Homebush Bay". In terms of direct questions by both Mr Tyler and Mr Leavy concerning the defendant's responsibilities for safety in carrying out excavation work and for any liability therefor, the record of interview stated his answers as follows :
Q21. "Are you aware of Regulation 95 (3) of the Construction Safety Act 1912 in that no excavation work which is likely to reduce, so as to endanger any person employed, the security or stability of any part of any building or structure, whether temporary or permanent, shall be commenced or continued unless adequate steps are taken before and during the progress of the work to prevent danger to any person employed from collapse of the building or structure or the fall of any part thereof?"
A: "I don't know that particular regulation but I know of the document."
...
Q24. "The investigation of this accident has revealed an apparent breach of Section 16 of the Occupational Health and Safety Act 1983 in that BYRNE CIVIL ENGINEERING CONSTRUCTIONS PTY LTD failed to ensure the health, safety and welfare of persons not in their employ whilst at his place of work. Do you have any comment to make with regard to this apparent breach?"
A: "I deny it completely. I did not instruct my men to work there. If I was aware that an unsafe situation existed I wouldn't expect my men to work there."
Q25. "How does Byrne Civil Engineering Constructions Pty Ltd normally assess a site for potentially unsafe working conditions"?
A: "We always assess the site before starting work and any problems notify site management and safety officers on the job. Provide whatever safety measures that are required to prevent an accident. Any distinct dangers we cancel the work."
...
Q26. Investigation of this accident has revealed an apparent breach of Section 50 of the Occupational Health and Safety Act 1983 in that you Seamus Byrne as a Director of the company failed to use all due diligence to prevent the contravention of the Occupational Health and Safety Act 1983 by BYRNE CIVIL ENGINEERING CONSTRUCTIONS PTY LTD. Do you have any comment to make with regard to this apparent breach?"
A. It's the same as the answer I gave before. I would not send my men into an unsafe situation. If I had known that it was an unsafe situation, I would not have had my men on the site at all."
26 A feature of the answers given by Mr Seamus Byrne was that it was not him, and hence not the defendant, who instructed Mr Whelan and Mr Twomey to work near the brick wall and that he would not expect them to have to work in an unsafe situation; he claimed safety assessments of a site were always done by the defendant before work was started and any problems would be notified to site management and safety officers. Also, he said the defendant provided whatever safety measures were required to prevent an accident even to the extent of cancelling the work. That approach by Mr Seamus Byrne was taken up in his oral evidence in the defendant's case. For instance, as to work on the footings on the western side of the site, in his oral evidence-in-chief he maintained the discussion with Mr New on the morning of 15 December 1997 meant that although there was to be work on the pads on the southern boundary of the site "no other work had to be carried out that day" because they had "to wait for the surveyor" (to finalise levels). That position taken by Mr Seamus Byrne, however, is to be seen in light of his admission that the defendant carried out excavation work removing soil from the base of the free-standing wall as part of its contract with Consolidated Constructions and also where he said he "relied on Darragh's (Whelan) experience to carry out any instructions from Mr New". Under cross-examination, Mr Seamus Byrne agreed he would expect Mr Whelan to carry out Mr New's instructions who, in Mr Seamus Byrne's absence, was to direct the work of Mr Whelan, Mr Twomey and Mr Mark Byrne. He maintained that on 15 December 1997 there was no planned work to be done to the footings near the free-standing wall at the south west corner of the site and he went so far as to say, contrary to his statement in the first record of interview on 19 December 1997, that he could not recall whether any work had been done by the defendant in excavating for the retaining wall along the footings on the western boundary of the site working from south to north. The following cross-examination of Mr Seamus Byrne is instructive :
Q. You would not say your recollection is without fault, would you, about this matter?
A. I could say that I can't recall them ever working on the western boundary before the date of the accident.
...
Q. Do you deny that they did that work?
A. Not to my recollection.
...
Q. I will ask you that again, was your company keeping some records day by day of the work that your contractors were doing on this site?
A. Under my supervision I would tell them what to do so there would not be actually written daily records, no.
Q. Your company was not keeping any record of what the workers were doing day by day on the site?
A. No.
Q. You have nothing that you could use by way of reference in the company to refresh your recollection about when this work was done?
A. No.
...
Q. I suggest that when you said to Inspector Carmody in the interview on 19 December 1997 that after you departed the site around 9.30 Darragh Whelan was left in charge of my scope of works, you left it up to Mr Whelan to determine what part of the scope of works he would perform that day?
A. No.
Q. That is what you meant by that answer, is it not?
A. I didn't know. Darragh Whelan was instructed by me at all times. I asked him every morning what he had to do. If there was a problem he was required to meet and that was not part of our daily works, that western boundary was not part of our works for that day.
27 It should be pointed out that the daily site report prepared by Mr Taylor, Consolidated Constructions' site engineer, showed that on 26 November 1997 the defendant performed "earthworks" on the "western perimeter" and "excavation of western perimeter retaining wall progressing from south to north". There were various other references in the daily site report to work performed by the defendant to retaining walls but without specific reference to the location on the site. However, on 4 December 1997, the daily site report showed the defendant performed "earthworks" over the "entire site back-hoe plus driver"; on 9 December 1997, it showed the defendant had an "excavator plus driver digging out retaining wall foundations N/west corner"; on 10 December 1997 it showed the defendant had a "labourer shovel work to retaining wall" and, on 15 December 1997, it showed the defendant performed "earthworks" at the "west bdry retaining wall, south end". Mr Seamus Byrne had no recollection of such work. I find his evidence difficult to accept in matters of detail, sprinkled as it was with an inability to recall important matters and as containing internal inconsistencies. Where conflict occurs, I prefer the evidence of other witnesses to that of Mr Seamus Byrne.
28 In a record of interview conducted by the prosecutor on 23 December 1997 of Mr New, the following answers were given as to the work to be performed by the defendant, in particular that performed by Mr Whelan and Mr Twomey :
Q11. "What type of work was Byrne Civil Engineering Constructions Pty Ltd engaged to perform on this site prior to and on the 15/12/97?"
A: "They were employed to dig out the pad footings foundations and also the retaining wall foundations for the north and western boundaries."
Q12. "Specifically what type of work was Darragh Whelan and Matthew Twomey engaged to perform at the site on 15/12/97?"
A: They were called back as a result of my telephone call to Seamus Byrne on Saturday 13 December to come back to the site to rectify the depth of 2 or 3 of the foundation pads in the office area. Then they were supposed to carry on with the rest of their contract work on the western foundations."
Q13. "Why was Darragh Whelan and Matthew Twomey working adjacent to the free-standing wall on the south west corner of the above site?"
A: I don't really know why they were in that particular area. I thought they were going to recommence in the north-western corner, under Seamus Byrnes supervision."
Q14. "Are you aware that there was a need to remove additional soil from the base of the free standing wall as part of Consolidated contractual work."
A. "No. But our existing boundary was restricted to 150 mm away from that free standing wall. Our new boundary would be 2-300 mm away from the free standing wall approximately."
...
Q16. "Who instructed Darragh Whelan & Matthew Twomey where to work and what to do on the site?"
A: "The two men were employees of Byrne Civil Engineering Constructions Pty Ltd. Instruction went to Seamus to tell them what to do and he directed them. Seamus came to the site every day. On occasions Darragh and Matthew would require technical information from myself."
Q17. "Can you recall Darragh Whelan or Matthew Twomey enquiring from you information in relation to the footings or removal of soil from the base of the free standing wall?"
A. "No, not at all."
...
Q26. "In your statement given to the Redfern police on 16/12/97 you stated that you were aware of the free standing wall located in the south west corner, adjacent the accident scene prior to the accident on the 15/12/97. Do you recall stating this?"
A: "Yes, I was aware of that wall and surrounding buildings."
Q27. "Do you also recall stating that you had no concerns for this free standing wall. If you can recall will you explain why this was so?"
A. "The reason I hadn't any undue concerns about the said wall was that it was off our property behind a chain mesh fence and with all visual examination there was nothing to raise any concern about it."
Q28. "What experience and or knowledge do you have in relation to excavation work adjacent to existing structures?"
A: "Knowledge wise its - you don't undermine any foundations without prior consent from engineers, experience wise it is the same."
Q29. "Did you examine the concrete slab in any fashion on the adjacent property at 31-33 Ricketty St, Mascot?"
A: "No."
Q30. "What evaluation was made of the stability of that wall prior to excavation being carried out?"
A: "We weren't actually doing excavation on it we were just cleaning it up."
...
Q33. "Did you examine the free standing wall prior work commencing?"
A. "No, because I was not aware of the guys going to work in that south west corner other than working from the north west section going down towards the south. During the course of the meetings and other activities I was involved in, it may have been mentioned, but I don't recall."
Q34. "Did you examine the footing of the free standing wall in the south west corner?"
A: "No, to the best of my knowledge we had not been working in that area and I wasn't aware of Byrne Civil employees starting work in that area and working up to the north elevation.
Q35. "Were you aware of a existing concrete saw cutting adjacent the other side of the wall?"
A: "Definitely not."
Q36. "Did you examine the footing of the free standing wall in any fashion on the adjacent property?"
A: "No, because we had not anticipated doing any work in that area at that precise time."
Q37. "Did you examine the concrete slab in any fashion on the adjacent property at 31-33 Ricketty St, Mascot?"
A: "No, that's in relation to the question above."
Q38. "If you had been aware of a cut in the concrete slab, what safety procedures would you have implemented?"
A: "If I was aware, I would have just bumped it with a machine when there was nobody there in a correct safe manner."
29 In an earlier interview of Mr New by a police officer on 16 December 1997, he referred to the discussion on the morning of 15 December 1997 with Mr Seamus Byrne and said "I spoke to him about the pads and the rest of his west elevation. Basically I wanted the pads completed and for him to carry on with the rest of the work as per his contract". He added :
14. In relation to the brick wall that collapsed. The only knowledge I have is that it is a free standing brick wall with a couple of piers on each end of the wall. The brick wall actually stands on the adjacent property and has nothing to do with the construction site I have been managing. There was a mesh fence on the site side of the wall. We had been using the south western quadrant for stock piling soil and spoil from the site. It was considered the least most important area of the work at the present time. The most important was the north western area.
15. I have walked around the site numerous times including the south western corner and noticed the wall, however I had no concerns about the wall as it had no relevance to our project. We are to build on our side of the boundary. I was not worried about stability of the wall, it appeared stable. We had taken a survey of the area and moved our boundary markers back onto our side of the site boundary. The reason why we moved the boundary markers back was to avoid interfering with structures on adjacent properties.
30 Although Mr New, as he said in the record of interview of 23 December 1997, "had not anticipated doing any work in that area (of the brick wall on the south west corner) at that precise time", he did acknowledge at the interview that after Mr Whelan and Mr Twomey had rectified the foundation pads in the office area "then they were supposed to carry on with the rest of their contract work on the western foundations". It is difficult then, it seems to me, but as Mr Seamus Byrne did as well, to understand why Mr New expressed surprise that the two persons were working near the wall on the western boundary. Indeed, in his cross-examination, Mr New again said that Mr Whelan and Mr Twomey on 15 December 1997 were required to work on the pad footings but "if they had time to finish off the rest of their contracted work". The evasiveness displayed by both Mr Seamus Byrne and Mr New in their evidence as to whether the defendant was required to perform excavation work near the footings of the free-standing brick wall at the relevant time of its collapse displays, I think, an attempt by each of them to distance themselves from responsibility for what occurred. It leads me to doubt their evidence in matters of important detail and to accept the evidence of others, such as Mr Mark Byrne and Mr Taylor to which I shall refer, as to these aspects. It is clear, in any case, from the evidence of Mr Seamus Byrne and the documentary evidence that excavation work to the footings of the brick wall at the southern end of the western boundary of the site was part of the defendant's contract with Consolidated Constructions.
31 Most importantly on this aspect of where Mr Whelan and Mr Twomey were supposed to be working when the wall collapsed, Mr Taylor, the site engineer for Consolidated Constructions and who completed the daily site report, was interviewed by the prosecutor and by Mr Tyler on 23 December 1997; the record of that interview contains the following :
Q12. "What type of work was Byrne Civil Engineering Constructions Pty Ltd engaged to perform on this site prior to and on the 15/12/97?"
A: "Detailed excavation work of retaining wall footings, pads and beams. Also excavating trenches for plumbers and electricians."
Q13. "Were you aware of Darragh Whelan & Matthew Twomey working on the site prior to and on the 15/12/97?"
A: "Yes I was."
Q14. "Specifically what type of work was Darragh Whelan & Matthew Twomey engaged to perform at the site on the 15/12/97?"
A: "The formal role with their employer I am not sure, though on the day of the accident they were checking levels of the retaining wall footing on the west boundary and digging the toe of the footing."
Q.15. "Why were they checking levels?"
A: "They were checking levels for the new retaining wall footing."
Q16. "By checking levels does this indicate that the excavation may have been excavated deeper or filled in?"
A: "That is possible."
Q17. "Who instructed Darragh Whelan and Matthew Twomey where to work and what to do on the site?"
A: "I am unaware who had them in that corner on the day, however I provided them with "reduced levels" and engineers sections (provided by the consulting engineer) in relation to the excavation work."
Q18. "Who supervised Darragh Whelan & Matthew Twomey when they were working on the site?"
A: "They had their own supervision as far as I'm aware."
...
Q25. "Did you observe the carrying out of excavation of soil adjacent to the free standing wall on 15 December 1997?"
A: Yes I did. The excavator had carried out work just south of and in front of the free standing wall. Both Matthew Twomey and Darragh Whelan were in the excavated area in front of the wall and just to the south. I recall one of them was digging the toe of the footing with a shovel at the base of the free standing wall and to the south thereof. On one occasion during the day I observed a broken sewer pipe and discussions were being made with the plumber to carry out rectification work."
Q26. "Can you recall to what extent they were excavating and digging the toe of the above mentioned footing?"
A: "I cannot recall the exact depth of the existing footing, I recall the men were scraping back with the excavator and stock piling that material. The two men in the excavated area were digging the toe with shovels as the excavator wasn't appropriate for this detailed work. The toe was approximately 200 by 250 mm as required by the engineers drawings and I can provide you with a copy of this. See my amended notes on Annexure A of Ben New's diagram.
(The said Annexure A showed the excavated trench had been dug significantly below the footings of the free-standing brick wall.)
32 To complete the evidence on this aspect as to where work was to be performed on 15 December 1997, Mr Mark Byrne, the plant operator on the site employed by J D Services on hire to the defendant, was interviewed by the prosecutor on 8 January 1998. The record of interview relevantly stated :
Q17 "Can you tell me in your own words what events took place leading up to and at the time of the accident previously mentioned?"
A At approximately midday I went to lunch with Darragh Whelan and Matthew Twomey to the local cafe. We came back and Darragh gave me instructions to go to work in the south west corner where the free standing wall was located. So I stopped the machine and Darragh explained that we had some excavation to do in that corner and I explained that the area where I was going to work would have to be cleaned up before I carried out any other work. I started to remove the stockpile from that area and got set up in that corner and asked Darragh for a level. Darragh set up his dumpy level and Matthew Twomey went down with the measuring staff and gave Darragh a reading from the wall. Darragh gave Matthew the thumbs up and then Matt gave Darragh a ground level. Darragh took these readings from a reduced level marked on the free standing wall. Matthew Twomey lowered the measuring staff to the ground level and gave Darragh another reading then Darragh did his calculations. Darragh signalled to me a rough estimation with his hands approximately 12 inches he wished this to be excavated. This was a rough estimation of how deep he wished me to excavate. He would later take a more accurate reading. So I excavated that much. I started in that corner and I removed some soil and I exposed an existing sewer line and it broke away causing a sewer leak. The water started to build up in that corner so Matthew asked me to remove some soil away from the sewer pipe creating a drainage point, because it was making it difficult for him to expose the sewer pipe for the plumbers, so I carried on excavating heading north and as I got to the wall there was less soil to be excavated because the area was shallow and pretty close to the correct level. I removed approximately 150 mm. So I found myself continuing in a northwards direction, before I passed the wall I got a second reading from Darragh and Matthew and I carried on as the excavation I had carried out was correct. So I went about 3 metres past the wall, stopped for another reading because I was removing such a small amount of soil that I wondered was the level right. So I got another reading at that point, I looked over at Matt who was over in the corner exposing the sewer and did not disturb him because he looked busy. So I got down out of my machine, got the staff and gave Darragh a reading myself and he gave me the thumbs up. So I got back into my machine and carried on working in a northwards direction. I carried on excavation for approximately 20 minutes exposing soil to the north and Matthew and Darragh were behind me, and were not in clear view. At some stage I looked in their direction and saw that the wall had fallen. I turned the machine around in a southwards direction, lowered the bucket to the ground and jumped out through the front window and ran to the wall, seen Darragh as I was running but I couldn't see Matt. So I ran for help, I met the plumber first. So we all ran back to the wall, raised the alarm. I still could not see Matt, so I got down in the trench and started calling Matt. I could not see him because the wall had fallen on him. At that stage everybody was there trying to remove the bricks from the two lads.
Q18. "What excavation work had you carried out with the excavation machine to the base of the free standing wall prior to the collapse?"
A Approximately 150 mm of soil.
Q19. "Who instructed you to carry out this excavation work?"
A Darragh Whelan.
...
Q26. "Did you observe Darragh Whelan and Matthew Twomey working at the base of the free standing wall prior to its collapse?"
A I did.
Q27. "What type of work did you observe them doing?"
A Darragh was standing with his back to me and Matthew was there digging at the toe of the footing.
33 In relation to the defendant's general approach to safety on the site and to the brick wall in particular, matters which had direct relevance to the particulars of the present charge against it, Mr Seamus Byrne was extensively cross-examined by reference to the answers given in his two interviews. The answers should be seen in light of the fact, as Mr Seamus Byrne said, that the defendant employed only two persons (himself and the company secretary) and all other labour required to enable it to conduct its business was engaged either from labour hire companies or on an independent contractor basis. The following evidence emerged from the cross-examination of Mr Seamus Byrne :
Q. I am asking about this site, why didn't you ensure that they had a site safety induction prior to commencing at this site?
A. They had just come off other sites with the same sorts of inductions.
...
Q. There might be different safety issues about this site, mightn't there?
A. There could have been, yes.
Q. And did it not occur to you that they might need a different site safety induction for this work?
A. No.
Q. The induction is in relation to the issues about a particular site, is it not?
A. That is right. Is it, I don't know.
...
Q. Did you not think before this man started work that they might need a site safety induction about safety issues particular to this site?
A. I suppose so, yes.
...
Q. Have you heard the expression "dilapidation survey"?
A. I have, yes.
...
Q. Is that something you understand to mean this, that an appropriate person surveys an adjacent building and structures to see if they are structurally safe and report on that before work is undertaken on an adjacent site?
A. I am not an engineer. I couldn't comment on that, no.
Q. What do you think "dilapidation survey" means?
A. I presume what you are saying but I don't know.
...
Q. Did you ask anybody to see a dilapidation survey in relation to the adjoining sites?
A. No I didn't.
Q. Was it something that you thought should be undertaken?
A. No I didn't think it was necessary, no.
Q. Why not?
A. Because I didn't think it was necessary for the site.
Q. You believed at the time of the accident that a dilapidation survey concerned the study of the structural state of adjoining building and structure, didn't you?
A. Yes.
Q. You knew that along the northern and western boundaries you were going to be doing some excavating?
A. Eventually, yes.
Q. And digging for the foundations of the retaining walls?
A. Yes.
Q. Did that not make you think that perhaps a dilapidation survey was something you should ask about?
A. No.
Q. Why not?
A. I thought it was a safe site. I was under the assumption from my experience that was a safe site.
Q. Wouldn't reading a dilapidation survey if it is done properly be a way of finding out whether your assessment is correct?
A. If I had required it.
Q. Do you think looking back now it was a mistake not to have looked into that?
A. No because I thought that site was a safe site with my knowledge and I went to that site, I thought that site was safe.
Q. You understand that the point of a dilapidation survey is that somebody qualified conducts that kind of examination to see whether it is safe?
A. That is right, yes.
Q. Do you not agree that looking back now it would have been appropriate to have that survey undertaken?
A. It would have been appropriate to have a dilapidation report on the site by Consolidated, yes.
Q. Including one covering this wall?
A. Including the whole site, yes.
Q. Including the wall?
A. The wall, yes.
...
Q. Were any safety audits conducted by your company during the course of work?
A. No.
Q. Is it your company's practice to conduct safe audits?
A. No.
Q. It never has been the company's practice?
A. What is that?
Q. Safety audits; do you know what that is?
A. Oh yes, supply safety equipment, like that, yes.
Q. An audit whether safety requirements are being met?
A. No.
Q. You do not have such a system?
A. No.
Q. At the time of the accident you did not have such a system?
A. No.
Q. Have you ever had such a system?
A. No.
Q. Would you agree with me that in retrospect it would have been preferable you had such a system at the time of accident?
A. I didn't think it was relevant at that site, this site was a safe site to me.
Q. Were you the only person who supervised Darragh Whelan and Matthew Twomey?
A. Generally.
Q. In relation to this site?
A. That particular day, yes.
Q. Well, on other days but relating to work on this site was there some other person from your company who supervised them?
A. No.
Q. You were that person?
A. Darragh co-ordinated with me, yes.
34 Finally, having in mind the way in which the defendant's case was put, reference should be made to the evidence of Mark Thomas Davies. Mr Davies was a consulting structural engineer employed by van der Meer Bonser as the consulting engineer to Develco and Consolidated Constructions in respect of the subject site. As he said, he "was the design engineer for the job" who controlled the works carried out by van der Meer Bonser. The prosecutor and Mr Leavy interviewed Mr Davies on 5 March 1998. The record of that interview relevantly disclosed :
Q28. What form of site appraisal did you carry out prior to commencing your design work?
A Just assessment of reports and the documents I had at the time (eg geotechnical reports and site survey).
Q29. Did van der Meer Bonser Pty Ltd undertake a site survey prior to commencement of design work?
A No.
Q30. Did van der Meer Bonser Pty Ltd undertake any visual inspections in relation to the state of the site prior to carrying out design work?
A No.
Q31. What notice did you take of the free standing wall along the south west boundary of the site?
A None.
...
Q34. Did the preparations for the footings for the retaining walls along the northern and western boundaries of the site require excavating alongside the footings of the adjacent buildings?
A Yes.
Q35. Did the preparations for the footings for the retaining walls require excavating alongside the footings of the free standing wall situated in the south western corner of the site 10-12 Kent Road, Mascot?
A Yes there is a need to excavate however van der Meer Bonser Pty Ltd were not aware that construction of retaining wall footing had commenced adjacent to free standing wall in the south west corner 10-12 Ken Road, Mascot and 31-33 Ricketty Street, Mascot.
Q36. What is the normal procedure for securing potentially unstable structures on adjacent sites; ie what temporary works do you specify in constructing retaining walls adjacent to other structures?
A A potentially unstable structure such as a wall of this kind would be temporarily propped prior to any construction work taking place in this vicinity. If van der Meer Bonser Pty Ltd had been made aware that works had commenced in this area the above would have been undertaken.
Q37. What stabilising works do you normally instigate when preparatory works for foundations or other excavations result in the excavations going below the top of the foundation level of a structure adjoining the site?
A Sites specific depending on the problem that is created.
Q38. What stabilising works did you specify in preparing the footings for the retaining walls you designed for the site where the excavations exposed the foundation level of structures adjoining the northern and northwestern boundaries of the site?
A Originally nothing was specified because I was unaware of the depth of excavation. I became aware of extent of excavation during retaining wall footing reinforcement inspection. Based on engineering practice I was not concerned with the effect on the stability of the adjacent structure this excavation may have caused.
...
Q43. What allowances did you make for the free standing wall along the south west boundary of the site in designing the footings for the retaining wall in that area?
A None, as I was not aware of the free standing wall.
...
Q46. What allowances did you make in the specification in establishing the procedures for preparing the footings for the retaining wall along the south west boundary adjacent to the free standing wall in that area?
A None because we were never aware of the wall.
35 Mr Davies was extensively cross-examined by Mr R Moore of counsel for the defendant. He conceded he made no examination of the adjacent property, including the free-standing brick wall concerned, prior to preparing the earthworks design documents and he only became aware of the wall when he first visited the site after the demolition work and during the filling phase of the process in November 1997. In explanation, Mr Davies said he did not inspect the south west corner in the proximity of the wall because he understood there were to be no excavations on the site which had been filled and battered down to the boundary. Nevertheless, he acknowledged that excavations did take place for the formation of footings and strip footings for retaining walls of which he inspected a number, although he was unaware there were to be excavations in the proximity of the brick wall as the fill was placed and battered down to the adjacent ground level. Thus, Mr Davies evidence was that on the facts as he understood them there was no reason for van der Meer Bonser to examine the adjacent property and brick wall because, in his words, "the earthworks was carried out in such a way that we battered down to adjacent floor levels and adjacent ground levels so there was no impact on adjacent properties". As to the south west corner of the site, however, Mr Davies, as he said, "was aware that there was a retaining element of some height, the height that was to be determined as required, but I wasn't aware that the works had commenced ... up until the day of the incident".
36 Given the acceptance in his interview with the proposition that the footings for the retaining walls along the western boundary of the site required excavation, a significant matter of present importance, Mr Davies said that "the excavation for the new footing should in no way have gone below the existing wall footing level"; in other words, he was of the view that the depth to which the footing at the wall was excavated was unnecessary from a structural point of view and had not been excavated to that depth with his knowledge. On this aspect, the following evidence from Mr Davies emerged :
Q. But it would be correct to say that you knew that there would be a time that it would be required in the project to do some excavation and construct a retaining wall in the proximity of the free-standing wall?
A. An excavation to nowhere near the depth that was carried out but at the same time when the builder got to that particular point it was - I would have expected the wall to be assessed and if the excavation in any way undermined I would have been called out because that would have then called for temporary propping of the wall or some other nature to make the walls safe during that construction phase.
Q. Leave to one side the depth of the excavation at this time because I have heard what you have to say, and no doubt his Honour has heard as well, about the depth. What I am putting to you is a proposition that you knew that some excavation would need to take place near the free-standing wall?
A. Yes some but there would have been no need to go below the existing footing level.
Q. But you would also know that depending on the extent of excavation there would also have to be a construction of the retaining wall sufficient to retain the fill and the height of the site?
A. Yes.
Q. And so you were aware that there was a need for work to be carried out in the proximity of the free-standing wall involving some excavation and the construction of the retaining wall?
A. It was my expectation that there was a wall to be built there. The height of the wall we were unsure of and that's why the details we produced were for varying heights of wall and I was unaware of the working in that area.
Q. But what I am I suppose asking you is this, you would have been aware that during the construction of this particular project there would have been a need for persons to work in the proximity of the free-standing wall either doing excavation work or construction of the retaining wall?
A. Well, obviously, but can I say that if - the wall should have been assessed as to its stability. You referred earlier to this saw cut on the driveway side, I mean those sorts of aspects should be assessed before any work is carried out.
Q. Can I suggest to you that under the standard which I showed you the person who should have made that assessment was yourself as the designer?
A. No, I do not believe that is correct.
Q. In terms of your evidence who do you say should have made that assessment?
A. I should have been made aware of the situation by the builder.
Q. And so "by the builder" you mean Consolidated Constructions?
A. Yes.
Q. And so you say that Consolidated Constructions should have made you aware that work was to take place in the proximity of the wall?
A. Yes.
Q. And upon learning of that you would have put in steps to safeguard any person working in the proximity of the wall?
A. We would have taken the steps necessary to make the wall stable during any works adjacent.
37 The "standard" referred to by Mr Moore in the questions to Mr Davies was Australian Standard - Guidelines on earthworks for commercial and residential developments (AS 3798-1996); it was admitted into evidence. It was apparent that the questioning of Mr Davies was by reference to the contents of that Standard and it is appropriate, therefore, to identify those parts of it which were specifically referred to. Section 2 - Investigation, Planning and Design, stated that "The investigation, planning and design for projects involving earthworks require the designer to give consideration to those factors which may affect the works", including the following :
(c) Adjoining property Examination to assess whether there is a potential for damage due to vibration, excavation, filling, noise, run-off, dust or other effects of the earthworks, and liaison with the adjoining owners.
In Section 3 - Documentation, the Standard "includes details of the documentation for the design and construction of an earthworks project" and in para 3.2 - Investigation and Planning thereof, stated that "Investigations for the planning of earthworks for use by the designer, the constructer and other interested parties should include ... (b) Site investigation of the project and any associated sites ... (c) Where applicable, an outline of other plans which have been considered in the investigation. This should include the points discussed in Section 2. ...". In para 3.3 - Design and Specification, the Standard stated :
The functional requirements of the design should be documented in the specification and drawings for the earthworks project. This documentation should be sufficiently complete to allow the constructor to unambiguously carry out the works, and for the superintendent (and the geotechnical testing authority, as necessary) to be able to interpret the design and administer the contract.
38 Apart from the witnesses whose evidence I have dealt with above, twelve others provided statements to the prosecutor and to the police concerning this incident and most of them gave oral evidence. I do not propose, with one exception, to deal further with their evidence as much of it concerned confirmation of evidence already led in a more direct form, observations of work on the site on the morning of the incident, events immediately following the collapse of the brick wall and aspects covered in the agreed statement of facts. The exception was the evidence given by David Arthur Pearce, the Technical Manager of Wamac Tool Manufacturing Pty Limited which was located adjacent to the Kent Road site on its western boundary at the end of the concrete driveway between the site and The Blue Mountains Water Company. Mr Pearce said that in the period from October 1995 to May 1996 his employer engaged Country Fire Services to install a water main connection from the fire main in Ricketty Street along the length of the concrete driveway to the premises of Wamac to supply water in case of fire. It was during this work that the saw cuts were placed in the concrete driveway to enable the water conduit to be installed. Significantly, however, Mr Pearce agreed that no difficulties were encountered in carrying out the works and while the person was performing the work "he propped the wall up ... the positions where the props braced the wall are still visible".
39 Mr Millar in his address dealt with the significant pieces of evidence in the large amount of it before the Court by reference to each of the eight alleged failures by the defendant to ensure Mr Whelan and Mr Twomey were not exposed to risks to their health or safety from the presence of the free-standing brick wall. Counsel relied very much on the evidence of Mr Leavy as to the unstable condition and situation of the wall at the relevant time and the factors which contributed to its collapse, as well as the evidence of Mr Davies of the effect on the stability of the wall from the detailed excavation going deeper than the wall's footings. In summary, Mr Millar submitted :
The defendant's attitude to safety in my submission on this site must be a matter of great concern, and your Honour is entitled to take that into account in considering the evidence of Mr Seamus Byrne in defence of the defendant's position. There was no site safety induction conducted by Mr Byrne or anyone at his request, yet the men had been working on the site for about three weeks, he says in exhibit 3, at the time of the accident.
In answer to question 27 in that exhibit, he did not know what training they had in regard to occupational health and safety concerning excavation work on a building site. So not only had he not provided any, but he was not even aware whether they had any.
He agreed there had been no safety audits conducted, no safe work method statements, no program of works, apparently no documents regarding the day to day progress of work or forecasting what work was to be done on particular days. The position seems to be that so far as the work to be done on the western side of the site was concerned, safety was simply assumed, it was never assessed.
The defendant in no way was on the offensive to search for, detect and eliminate to the extent possible, any risk as to safety along that boundary, and in my submission that was its obligation. It was obliged to be vigilant, not to simply passively wait for something to be brought to its attention, and it entirely failed to carry out its duties in those respects particularised in the summons under s 16 on the day of this accident, and in my submission your Honour should be satisfied beyond reasonable doubt as to that failure
40 The fundamental basis for the defendant's resistance to the charge was the existence of the Australian Standard setting out the guidelines on earthworks for commercial developments. Mr Moore traced the sequence of events disclosed by the evidence, in terms of the obligations imposed on certain parties by the Standard, concerning investigation, planning and design of earthworks and the documentation of functional requirements. Counsel identified the responsibilities in those respects as falling on van der Meer Bonser as the designer for the project but where it had not discharged them so that, as counsel said, one "would not be satisfied beyond reasonable doubt that responsibility rested with (the defendant) and (the defendant) alone". Counsel put it as highly that :
... if one was to look for a factor which gave rise to the chain of events which culminated in the incident on 15 December 1997, which led to the fatality of both Mr Whelan and Mr Twomey, if van der Meer Bonser and Mr Mark Davies had followed in any way the Australian Standard there would have been first of all an identification of the existence of the wall. There would have been within the plan of the earthworks a way of handling either the excavation or construction of the retaining wall approximate to the wall, and there would not have been able to be set in train the series of acts and omissions that led to the fatalities on 15 December 1997.
Indeed, counsel advanced the proposition that the omissions of other persons, such as van der Meer Bonser and Mr Davies in particular, because of the Australian Standard removed any liability of the defendant for what occurred. And that was so because the summons related the risks to health "in connection with excavation work" so that the specified particulars of the charge, and certainly those in (b), (d), (e) and (f), contained alleged failures but as to which "there was never any responsibility put on my client in any way to carry out a dilapidation survey ... the only person who was required to consider each of the factors in regard to the adjoining parts (the free-standing wall on the adjacent property) was the designer (van der Meer Bonser)".
41 Otherwise in relation to the particulars of the charge not having been made out, Mr Moore relied on the evidence of Mr Seamus Byrne that when he saw the wall and its footings he considered it to be safe; Mr Byrne's evidence was that he considered the site to be a safe site. That evidence, so counsel submitted, was to be seen in light of the fact that any risks associated with the wall were only assessed by Mr Leavy and Mr Davies, both of whom were qualified structural engineers, and then only after the wall had collapsed.
42 Further, Mr Byrne's evidence was that on 15 December 1997, the date on which the wall collapsed and to which the charge was directed, he understood the defendant's work to be to the pad footings on the southern boundary of the site and with no work on the western boundary in the vicinity of the wall. That being so, Mr Moore effectively said it was not necessary for the defendant (through Mr Seamus Byrne) to assess the safety of the work area near the wall. In any event, the point was made by counsel that Mr Byrne did in fact assess the wall as being safe whereas particular (a) of the charge alleged the defendant failed to "assess the stability of the said wall"; plainly, so the submission went, that was done by Mr Byrne so that the particular was not made out by the prosecutor. In other words, the particular did not require that any assessment had to be erroneous but only that there should have been an assessment, which in fact was done. As counsel said, "what is left at the end of the day is that a wall fell. It raises an inference that the incorrect assessment was made, and that is the distinction we would make on that point".
43 Mr Moore raised a similar defence against particular (h) concerning the alleged failure by the defendant to assess whether Mr Whelan and Mr Twomey were adequately trained and experienced to safely undertake the duties required of them. A similar argument was put by counsel in relation to particular (g) concerning the supervision of Mr Whelan and Mr Twomey in their performance of the excavation work adjacent to the wall. Mr Moore summarised this aspect in this way :
The only consistent evidence in this case ... of anyone perceiving any risks on the wall, are the two structural engineers, that is one of the matters in the case that no one under the Develco regime considered any fault possible. No one under Mr Davies considered any fall. Mr Baker himself never considered a possibility of the wall falling, Mr Taylor, Mr New, my client, Mr Whelan by inference, Mr Twomey by inference, the two people who say a free-standing wall, there is a risk of it falling, Mr Leavy after the wall has fallen and Mr Leavy knowing the inherent weaknesses of the wall.
44 Even if the prosecutor had been found to have made out the strict terms of the s 16(1) offence, Mr Moore relied upon the terms of s 53 of the Occupational Health and Safety Act as providing a complete defence to the charge. Counsel shortly submitted on this aspect :
In regard to areas of section 53 ... what I was going to merely say is this, there are two aspects of the defence, that being found in paragraph (a) and in paragraph (b).
One is the reasonable capability part. The second one is the cause over which the person had no control.
First of all, as far as the assessment of the suitability of the wall is concerned there is no evidence sufficient to make out that particular aspect but if there was evidence sufficient what more than any other employee than an engineer was capable of making the assessment.
...
... What I am saying is that in terms of being in a position to assess it the evidence flows in a direction which I have urged you in the primary submission in that paragraph, that there is evidence upon which that assessment was made, other than to employ a person who was capable of the assessment what more could be done, in other words if it had a qualified person who was competent to carry out the assessment and who quite simply got it wrong.
...
... if a company employed competent staff and they make a mistake, they have behaved reasonably by using the shorthand expression, behaved reasonably, in that they have done all that they could be practically asked to do.
If they had continued to proceed with a person who they knew to be incompetent and this occasion occurred, your Honour would be open to deny a section 53 defence but if you engage competent staff, where there is no allegation against them of being incompetent and there is none in this case what more could a company do in putting into a position a person to make that assessment.
...
If your Honour finds that my client could have done something more in relation to any of these particulars, he would not make out any of the elements of the offence in my view, that it was a case over which he had no control or it was not practical or really what the submission generally is your Honour is that when one looks at the totality of the conduct of the company and its officers in this case one could not find anything that would lead the Commission to find that they had behaved in a manner which left the door open in the way I have described to allow the section 53 defence to be denied.
45 The nature of the duty cast on the defendant by s 16(1) in relation to the work performed on the site on 15 December 1997 by Mr Whelan and Mr Twomey was, in terms of the sub-section, to ensure those two persons were not exposed to risks to their health or safety. In other words, and even though others (such as Develco, Consolidated Constructions and van der Meer Bonser) may have had a like obligation, the defendant here in conducting its undertaking was still subject to the statutory duty at the site concerned as its place of work. It is no answer to the charge, but as Mr Moore sought to put, that the Australian Standard in setting out guidelines for earthworks for commercial developments imposed duties on the designer of the project; the question here was not whether the defendant had breached the Australian Standard but rather whether it failed to comply with s 16(1) of the Occupational Health and Safety Act. Indeed, the fact that the two persons performing the excavation work were doing so at a location where they had worked for only a few days, and where other employers also were performing work, places, in my view, a special obligation on the defendant to ensure the workplace was safe and free from risks: see WorkCover Authority of New South Wales (Inspector Charles) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451 at p 463.
46 It is timely, I think, in view of the thrust of the defendant's reliance on the Australian Standard and the obligations of others on the site, to repeat observations made by me in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 as to the effect and apparent purpose of s 16(1) in securing the health, safety and welfare of persons at work. Interestingly, that case also concerned the collapse of a brick wall on a building site; the defendant there relied on a standard code relevant to the building industry and an argument that defects in the timber bracing used would not have been revealed on inspection. It was said (55 IR at p 49) :
I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer." The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer."
On appeal in A & M I Hanson Pty Ltd v WorkCover Authority of New South Wales (Inspector Kirkby) (unreported, Full Court, CT94/1218, 4 October 1995) the decision at first instance was upheld and the Full Court (Fisher CJ, Bauer and Hill JJ) concluded (at p 22) that the defendant "had a positive duty in the terms of s 15 and s 16 of the Occupational Health and Safety Act to use the correct timber for the making of the brace and of making all safety decisions".
47 Another aspect of the nature of the statutory duty requiring mention, having in mind the way in which the case proceeded, concerned what I saw to be the undue reliance on the actual occurrence of the collapse of the brick wall and the immediate reasons therefor in determining whether the defendant relevantly failed to ensure the safety of Mr Whelan and Mr Twomey. In WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at p 257, Bauer J followed the approach of the Full Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 for the proposition that, as his Honour said, "Whilst ... it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in the passage from C I & D Engineering previously quoted. The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare". The particular passage referred to by his Honour from Haynes v C I & D Manufacturing stated (60 IR at pp 158-159) :
The stated purpose of the OHS Act being "to provide effectively for the safety, health and welfare of all persons in all workplaces" in which "enormous reforms in worker safety, health and welfare" will be achieved in "the protection of workers in their employment from all risks resulting from factors adverse to health" by placing "responsibility on employers to ensure that they operate in such a way as not to endanger their employees" may only be seen in the manner stated by us. The general duties created by the OHS Act such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injuring, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.
48 Of course, and although the nature of s 16(1) in imposing strict liability on the employer is as stated in the authorities cited above, it remains for the prosecutor to prove to the requisite criminal standard of beyond reasonable doubt that it was the defendant employer who relevantly failed to meet the statutory obligation and not some external factor. This has usually been referred to in the cases, appropriately in my view, as the necessary causal nexus between the breach of statutory duty and the detriment to safety occasioned to the worker. In McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241 at p 244, Grove J put it in terms that "it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety". That approach was approved by a Full Bench of the former Industrial Commission in State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 at p 121 and affirmed by the Full Court in Haynes v C I & D Manufacturing (60 IR at p 156).
49 With those principles in mind, I turn to the facts of this case as established by the evidence.
50 The essential element of the charge here was the failure to make arrangements for ensuring safety and absence of risks to health in connection with the excavation work carried out adjacent to the free-standing wall. I am in no doubt that the prosecutor has identified a detriment to safety, namely, the presence of an unstable brick wall at the south western boundary of the Kent Road site and the risks to health and safety thereby occasioned to persons working near the said wall if it collapsed. That detriment existed on 15 December 1997 at the time Mr Whelan and Mr Twomey were performing excavation work in the trench immediately adjacent to the wall. As Mr Leavy said in evidence, "one of the fundamental rules of engineering is beware of free standing structures".
51 Mr Leavy's evidence, as earlier outlined, well established, in my view, the unstable nature of the wall before its collapse by reference to the saw cuts in the concrete driveway and the extent of excavation work performed in the trench so as to expose and undermine the wall's footings. I am wholly satisfied on the evidence that the condition of the wall was such as to require appropriate safeguards to be taken, such as propping or bracing, prior to any excavation work being undertaken along its length. The excavation work actually performed along the wall exacerbated its already unstable condition. Indeed, because of the potential for the wall to collapse onto the site due to vibrations or weather conditions, as indicated by Mr Leavy, I am of the view, even absent any excavation work below the footings, that it would have been prudent for the defendant in performing work along the boundaries of the site, including adjacent to the brick wall, to properly secure the wall. The demolition of the wall during the construction phase of the work, and its later replacement if necessary, would have been a reasonable solution to consider. It was a hazard which should have been attended to so as to avoid risks to persons working nearby or otherwise attending the site.
52 The core issue in the s 16(1) offence has, therefore, been proven by the prosecutor. It then remains to determine whether it was the defendant who relevantly failed to ensure that persons not in its employment, in particular Mr Whelan and Mr Twomey, were not exposed to risks to their health and safety from the identified unstable brick wall. This requires a consideration of the causal nexus with what occurred on 15 December 1997 by a relevant failure of the defendant and that properly requires attention to the particulars of the charge as set out in the summons.
53 Inherent in each of the particulars was the allegation that the defendant was required under its contract with Consolidated Constructions to perform excavation work adjacent to the subject wall on the south western boundary of the site. I have, by the earlier reference to and analysis of the evidence of Mr Seamus Byrne, Mr New, Mr Taylor and Mr Mark Byrne, concluded that excavation work to the footings of the brick wall at the southern end of the western boundary of the site was part of the defendant's contract with Consolidated Constructions. In my view, a review of the evidence makes that finding inevitable.
54 However, Mr Moore put the submission that on 15 December 1997 at the time the wall collapsed, said by counsel to be the relevant time of the offence and to which the particulars of alleged failure by the defendant were directed, there was no reason for Mr Whelan and Mr Twomey to be working near the wall. That submission was based on the evidence of Mr Seamus Byrne that he understood the work required on that day was to the pad footings on the southern boundary of the site with no work on the western boundary in the vicinity of the wall; support was sought also from the evidence of Mr New. Again, I have earlier detailed the evidence concerned but expressed doubts about it to the extent of accepting the evidence of others in this respect, namely, that of Mr Mark Byrne and Mr Taylor. Their evidence, again earlier set out, made it clear that the excavation near the wall at the time of its collapse was performed by Mr Mark Byrne, Mr Whelan and Mr Twomey as part of the defendant's contracted work. I need only add the comment made by Mr New in his interview of 23 December 1997 that, although he had not anticipated any work in the area of the wall on 15 December 1997, once the pads on the southern boundary had been rectified "then they were supposed to carry on with the rest of their contract work on the western foundations". Also, Mr Seamus Byrne said he left the site during the morning of 15 December 1997 with Mr Whelan in charge of the defendant's scope of works and "to carry out any instructions from Ben New".
55 I am satisfied, without any reservations, that the work performed by the defendant along the western boundary of the site and near the brick wall at the time of its collapse was required to be performed as part of its contract with Consolidated Constructions. Even if the work at the time was to be restricted to the pad footings and not extended to the western boundary of the site, the submission by Mr Moore would not, in my view, relieve the defendant of responsibility for what occurred. The charge in the summons, it is to be emphasised, alleged the defendant committed the offence "between 29 October 1997 and 15 December 1997 inclusive"; that is, contrary to Mr Moore's submission, there was no restriction to 15 December 1997 and the particulars of the charge are to be similarly construed over that longer period. The defendant's submissions on this point must fail.
56 Further, and in any event, the evidence of Mr Seamus Byrne that he did not direct work to be performed near the wall on 15 December 1997 and his response under cross-examination "that I can't recall them ever working on the western boundary before the date of the accident" (this latter evidence was inconsistent with his earlier evidence during the interview with the prosecutor on 19 December 1997) would not support Mr Moore's submission that the defendant thereby avoided responsibility. It is apt in that respect to repeat the words of Bauer J in Maine Lighting (100 IR at p 257) - "... the very purpose of the (Occupational Health and Safety) Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry". His Honour's statement of principle was cited with approval by a Full Bench (Wright J, President, Walton J, Vice-President and Hungerford J) of the Court in State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) [2000] NSWIRComm 261 at para 25 where their Honours added "the proposition that inattention or mere inadvertence of an employee serves to show only the need for an employer to be astute in ensuring safety and in meeting all reasonable contingencies": see also WorkCover Authority of New South Wales (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at p 135.
57 As a general comment on the eight particulars of the charge, alleging as they did separate failures by the defendant, it is my view that the offence charged would be made out if it be established that there was a causal nexus involving the defendant in respect of one or more of the particulars so specified. In other words, it was not necessary for the prosecutor to make out each and every particular alleged. Mr Moore accepted that position. Of course, the extent of failure by the defendant by, for instance, the prosecutor's inability to make out some particulars, whilst not sounding in liability, would necessarily affect any penalty imposed in terms of the degree of culpability of the defendant for the offence.
58 Particulars (a), (b) and (f) may be considered together as they all concerned an assessment or evaluation of the stability of the brick wall. I find them to have been established. It is undoubted on Mr Seamus Byrne's evidence, as set out in his record of interview of 19 December 1997, that the stability of the wall, including its footings and the saw cuts on the concrete driveway, was not examined, evaluated, checked or otherwise assessed by the defendant or by anyone on its behalf at any time prior to or during the performance of the excavation work contracted to be performed for Consolidated Constructions on the site. Mr Seamus Byrne thought he would have seen the wall during his visits to the site but other evidence by him conceded he was only ever about 60 metres to 100 metres from the wall at any particular time. His evidence was that he never examined in any way the excavations along the western boundary or the footings to the brick wall; and he was unaware prior to the incident on 15 December 1997 of the existence of the saw cuts in the concrete driveway on the property of The Blue Mountains Water Company. On the basis of that evidence, I do not accept his later evidence that he considered the wall to be safe and that from "visual examination there was nothing to raise any concern about it". Against these particulars, Mr Moore submitted that the observations of the wall by Mr Seamus Byrne and his conclusion, although perhaps erroneous, that it was safe meant the allegations in the particulars failed because indeed an "assessment" was made. I reject that submission.
59 The failures by the defendant to relevantly and properly assess the stability of the wall logically lead to the conclusion that it failed to take any measures to ensure the integrity of the wall so as not to impose a detriment to safety on the site. Once it be established, as I have found to be the case, that the defendant engaged persons to perform excavation work near the wall, then, in my view, it had a responsibility in relation to the health and safety of those persons to ensure the place of work where it was operating was safe. The measures which the defendant allegedly failed to implement related to particulars (c), (d) and (e). Again, on the evidence, none of those measures were taken by the defendant or even considered by it as necessary. So much is clear, I think, from the cross-examination of Mr Seamus Byrne cited earlier in these reasons. It needs no repetition, except to comment that he did not think such measures were necessary because he "thought it was a safe site". I conclude that these three particulars have been made out. The submission by Mr Moore in endeavouring to counter them was that it was not the responsibility of the defendant to take the measures concerned but rather that of Consolidated Constructions on advice from van der Meer Bonser as the designer. I affirm my earlier conclusion that that submission cannot succeed because whatever responsibility may have been on others, the defendant itself had the responsibility in terms of s 16(1) to ensure that persons were not exposed to risks to their health or safety at its place of work in the conduct of its undertaking.
60 In relation to particular (g) concerning the supervision of Mr Whelan and Mr Twomey while they carried out the excavation work adjacent to the brick wall, Mr Seamus Byrne admitted under cross-examination he was the only person who generally supervised the two persons, although in his absence Mr Whelan as an engineer was the supervisor. Having in mind his lack of knowledge, certainly in any detail, of the condition of the brick wall, it does not seem to me that Mr Seamus Byrne could be said to have supervised the excavation in the trench along the length of the wall and certainly not the detailed digging work near the foundations with shovels. The admission by him in his interview by the prosecutor on 19 December 1997 that he did not know why Mr Whelan and Mr Twomey were working at the base of the wall when it collapsed was, I think, an admission that those two persons were not relevantly or appropriately supervised at the time. Particular (g), therefore, was established.
61 Consistent with what I inferred from the evidence to be a somewhat casual approach by the defendant, particularly in the allocation and supervision of work on a day-to-day basis, particular (h) concerning the alleged failure by the defendant to assess whether Mr Whelan and Mr Twomey were adequately trained and experienced to safely undertake the duties required of them falls to be considered. It seems that Mr Whelan since graduating with a degree in civil engineering had about 12 months' experience and Mr Twomey as a labourer also had only about 12 months' experience. However, it is significant that Mr Seamus Byrne verified the qualifications of the two persons orally and in an apparently superficial manner. Importantly, he did not know what training in occupational health and safety regarding excavation work on building sites Mr Whelan and Mr Twomey had had and he relied on Mr Whelan's "experience" to carry out any instructions from Mr New. Further, he said that Mr Whelan was instructed by him at all times but added that "I asked him every morning what he had to do. If there was a problem he was required to meet". It was clear from the evidence that Mr Seamus Byrne was not on the site at all times during the performance of work and that Mr Whelan "co-ordinated" with him. I am satisfied to the requisite standard that the prosecutor has made out a case that neither Mr Whelan nor Mr Twomey was adequately trained and experienced to safely undertake the duties of them having in mind the existence of the safety detriment occasioned by the unstable brick wall.
62 In terms of the summons, I am satisfied that the failures alleged against the defendant by the prosecutor, as set out in the eight particulars, resulted in the exposure of Mr Whelan and Mr Twomey to risks to their health or safety during the relevant period at the Kent Road site in relation to the free-standing brick wall and as a result of which those two persons sustained fatal injuries. It was the defendant who relevantly failed to assess and implement measures to ensure that Mr Whelan and Mr Twomey were not so exposed to detriments to their safety and that is so even though the precise cause for the collapse of the wall was not ascertained. I have already commented, by reference to Dawson, C I & D Manufacturing and Maine Lighting, that it would be erroneous to concentrate too much on the actual cause of the incident causing death as that, as Bauer J said in Maine Lighting (100 IR at p 257) merely "goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare". I respectfully agree and would only add reference to the similar reasoning in WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246 at p 250. In a very real sense, the present case illustrated the proposition that antecedent failures by a defendant established a s 16(1) charge in that they created or allowed the detriment to safety and enabled the direct cause of an incident to result in injury. In WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at p 43, a prosecution for a breach of s 15(1) of the Occupational Health and Safety Act where a structure collapsed when it was struck with an industrial hammer, the distinction I am endeavouring to make was put by me in the following way :
I accept (senior counsel's) submission that the causa causans of the accident was the use of the industrial hammer to strike the legs of the structure. However, that was only the immediate cause of the collapse and which cause could not have become operative without the defendant's failure to assess the stability of the structure on the day it was to be demolished and to provide adequate supervision to ensure the planned system was followed. Put another way, although the causa causans may seem innocuous enough, and as not involving very much culpability on the part of the defendant itself, the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation in failing to asses the structure's stability by adequate supervision at the time it was to be demolished; the failure to ensure work was not performed on the structure prior to the arrival of the mobile crane was contrary to the proposed method as originally planned.
63 Section 53 of the Occupational Health and Safety 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.
Mr Moore relied on both paras (a) and (b) in the section. Counsel's submissions have been summarised earlier and I do not repeat them. It is settled, in my view, that the onus to make out a s 53 defence is on the defendant according to the civil standard of proof of the probabilities: see Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at 470; Sydney County Council v Coulson [1987] 21 IR 477 at 480; and Maine Lighting (100 IR at p 258). However, as a Full Bench (Fisher P, Watson and Macken JJ) of the former Industrial Commission observed in Coulson (21 IR at p 480) it is "a substantial onus nevertheless". I have so approached the issue here.
64 As to the first limb of the defence in para (a), Mr Moore put the proposition that the defendant behaved reasonably in employing competent staff so that "they have done all that they could be practically asked to do". I do not agree. The findings I have made on the evidence, I think, make it plain beyond any reasonable doubt that the defendant simply failed to discharge its statutory duty to assess and to take the appropriate steps specified to remedy the risk to safety occasioned by the unstable brick wall. This limb of the defence must fail.
65 The second limb in para (b) of s 53, in my view, similarly fails. Mr Moore submitted that the defendant had no control over what occurred and that it was impracticable for the defendant to make provision against what happened. Again, I do not agree. I take it that counsel's submissions were based on his earlier expressed proposition that the responsibility for assessing the condition of the brick wall and any remedial steps were properly the task not of the defendant but of others, such as the principal contractor (Consolidated Constructions) and/or the designer (van der Meer Bonser). I have rejected that submission and, for the same reasons, I reject counsel's s 53(b) submission.
66 I am satisfied to the requisite criminal standard of proof that the charge against the defendant here has been made out. I find the offence proven.
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LAST UPDATED: 15/03/2001
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