No 2] [2003] NSWIRComm 108 (10 April 2003)

Last Updated: 22 May 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Martin Carmody v Luke Tsougranis [No 2] [2003] NSWIRComm 108

FILE NUMBER(S): IRC 4365 and 4368

HEARING DATE(S): 25/03/2002, 26/03/2002, 27/03/2002, 28/03/2002, 29/08/2002, 30/08/2002, 02/09/2002, 15/10/2002, 09/12/2002, 10/12/2002, 11/12/2002, 12/12/2002, 11/02/2003

DECISION DATE: 10/04/2003

PARTIES:

PROSECUTOR:

Inspector Martin Carmody

DEFENDANT:

Luke Tsougranis

JUDGMENT OF: Haylen J

LEGAL REPRESENTATIVES

PROSECUTOR:

Ms P Lowson of counsel

SOLICITORS:

Moray & Agnew

Ms R Sutton

DEFENDANT:

Mr D Sibtain of counsel

SOLICITORS:

Gadens

Ms K Levi

CASES CITED: Inspector Carmody v George Agapiou [2001] NSWIRComm 268

Inspector Clarke v W L Meinhardt and Partners Pty Ltd (unreported, Fisher CJ, 1212 and 1213 of 1990, 30 June 1992

Inspector Carmody v Luke Tsougranis (2002) NSWIRComm 282

Haynes v C.I & D Manufacturing Pty Ltd (1994) 60 IR 149

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

Inspector Page v Woolworths Ltd, unreported Peterson J, CT93/ 1044, 9 September 1994)

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

State Rail Authority (NSW) v Dawson (1990) 37 IR 110

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

WorkCover Authurity of New South Wales (Inspector Hannon) v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246

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

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

LEGISLATION CITED: Evidence Act s 128 (2)

Occupational Health and Safety Act s 4 s 16(1) s 53

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: HAYLEN J

10 April 2003

Matter No IRC 4365 of 2000

Inspector Martin Carmody v Luke Tsougranis [No 2]

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

Matter No IRC 4368 of 2000

Inspector Martin Carmody v Luke Tsougranis

Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

JUDGMENT

[2003] NSWIRComm 108

INTRODUCTION

1 The defendant has been charged with a breach of s 16(1) of the Occupational Health and Safety Act 1983 and, in the alternative, has been charged with a breach of s 17(1)(a) of the Act in the event that the s 16 breach is not established. As will become clear from what follows in this judgment, I am satisfied that the defendant was an employer in a relevant sense and at a relevant time, and it is therefore unnecessary to consider the alleged breach of s 17(1)(a) of the Act.

2 The defendant is a structural engineer who was engaged to provide engineering advice including plans for footings in connection with the renovation of a house in Bourke Street, Redfern. During the course of this building work a freestanding wall collapsed, killing one building worker and seriously injuring one of the builders, both of whom were then engaged at the site. A short version of the relevant facts may be found in an interlocutory judgment, Inspector Carmody v Luke Tsougranis (2002) NSWIRComm 282.

3 The summons alleged that on 3 September 1998, at a construction site situated at 730 Bourke Street, Redfern, the defendant, being an employer, failed to ensure that persons not in his employment and, in particular, Michael Papaianni, Jim Zaronias, Nicholas Clements, Gaetano Savoca and Carl Hamilton, were not exposed to risk to their health or safety arising from the conduct of his undertaking, namely, the provision of structural engineering advice, directions and drawings for use at the premises by those persons whilst they were at his place of work.

The alleged offence was particularised in the following way:

1. The defendant on or about late May or early June 1998 was engaged by George Agapiou, the owner of the premises ("the owner"), to provide structural engineering advice, directions and drawings for use by persons engaged by the owner, for the conduct of certain works involving renovations to the existing structure and the addition of a new structure at the premises.

2. Pursuant to the defendant's engagement with the owner, the defendant provided structural engineering advice, directions and drawings for use by the builders in pursuance of that engagement.

3. At all material times on and prior to 3 September 1998 there was a free-standing double brick wall ("the wall") in the rear northern boundary of the premises which was:

(i) not fully bonded into the cross wall at the rear of the front section of the premises to which it abutted;

(ii) was not a party wall fully bonded into the cross walls of 728 Bourke Street, Redfern, the adjoining premises.

4. On and prior to 3 September 1998 works were carried out by Michael David Papaianni and Carl Mark Hamilton ("the builders"), and their employee Jim Zaronias at the premises, pursuant to the builders' contract with the owner, in reliance on the structural engineering advice, directions and drawings provided by the defendant.

5. In the provision of such structural details and advice the defendant:

(a) had not investigated the depth of the base or structural integrity of the footings of the wall;

(b) had not made a detailed assessment of the structural integrity of the wall itself;

(c) had not provided any requirements in his design to provide appropriate temporary support for the wall;

6. At all material times on and prior to 3 September 1998 the defendant failed to instruct the owner or the builders to ensure the wall was laterally braced or otherwise supported to ensure it was not at risk of toppling prior to any of the works being conducted.

7. On 3 September 1998 Jim Zaronias sustained fatal injuries and Michael David Papaianni sustained serious injuries when the wall toppled and fell upon them.

4 From the evidence, the following matters were established and in large part were not in contest:

(a) Mr Agapiou was the registered proprietor of the Lot upon which the premises, 730 Bourke Street, Redfern, was situated and was also the owner of the adjoining property, 728 Bourke Street;

(b) between August 1997 and March 1998, Mr Agapiou consulted a draughtsman, Mr Kourepis, in relation to plans for renovation and additions to the premises at 730 Bourke Street, leading to Mr Kourepis preparing plans and specifications to be submitted to South Sydney Council;

(c) Mr Kourepis apparently visited the site for the purpose of preparing plans but no demolition or other work had been commenced by early March 1998;

(d) by the end of March 1998, when Mr Kourepis had finalised the plans and specifications, he observed that demolition work had been carried out involving the substantial removal of the previously existing rear section of the premises at 730 Bourke Street;

(e) Mr Agapiou had carried out demolition work to the extent that the previously existing rear section of the premises had been removed except for a wall on the rear northern boundary which was 6 metres in length and 6.3 metres high, of double brick construction and rendered on both sides;

(f) towards the end of March 1998, Mr Agapiou lodged a building application with the Council seeking consent to carry out the renovation and additions set out in the plans prepared by Mr Kourepis;

(g) on 8 May 1998, the Council granted consent to Mr Agapiou's building application but subject to certain conditions contained within Council's approval. On 27 May 1998, Mr Agapiou obtained an owner/builder permit;

(h) sometime between April and June 1998, discussions were held between Mr Agapiou, Michael Papaianni and Carl Hamilton concerning their engagement as builders in relation to the plans which Mr Agapiou had submitted to the Council;

(i) in late May or early June, Mr Agapiou engaged the defendant, an engineer with Luke Tsougranis and Associates in relation to the structural engineering requirements associated with the building work. Mr Agapiou provided Mr Tsougranis with a copy of the Council approved plans;

(j) Mr Tsougranis visited the site and prepared design drawings which included footing details to support a new wall to be erected adjacent and parallel to the rear northern boundary wall, and footings to support a new concrete slab at the rear of the premises;

(k) on or about 31 July 1998, Mr Papaianni, Mr Hamilton and a Mr Zaronias met with Mr Tsougranis and discussed aspects of the work to be performed for Mr Agapiou;

(l) in early to mid-August 1998, the builders commenced work at the premises. Mr Papaianni and Mr Hamilton arranged for Mr Zaronias to work as a casual labourer at the site;

(m) on 3 September 1998, besides Mr Papaianni, Mr Hamilton and Mr Zaronias, there were present at the building site a Mr Clements and Mr Savoca. At approximately 12.45 pm, the rear northern boundary wall fell into the site trapping Mr Papaianni and Mr Zaronias. Mr Papaianni sustained serious injury, but Mr Zaronias died as a result of injuries sustained by the collapse of the wall.

5 Inspector Carmody commenced proceedings for various breaches of the Occupational Health and Safety Act 1983 against Mr Agapiou, Mr Papaianni, Mr Hamilton and Mr Tsougranis. Mr Agapiou pleaded guilty to an offence under s 17(1)(a) of the Act and was dealt with by Kavangh J in a judgment delivered on 1 November 2001 (Inspector Carmody v George Agapiou [2001] NSWIRComm 268).

In Mr Agapiou's case, an Agreed Statement of Facts was tendered and that document was also tendered in the present proceedings. Insofar as it is of relevance in the present proceedings, that Agreed Statement of Facts contained the following:

...

2. At all material times GEORGE AGAPIOU ("the defendant")... was a person with control to any extent of non domestic construction site premises situated at 730 Bourke Street, Redfern in the state of New South Wales.

3. At all material times on 3 September 1998 the defendant made the aforementioned premises available to persons (not being the defendant's employees) as a place of work, and in particular, Michael Papaianni, Jim Zaronias, Nicholas Clements, Gaetano Savoca and Carl Hamilton, for the purpose of carrying out renovation to the existing structure and addition of a new structure at the rear of the existing structure.

4. The defendant was at all material times a registered proprietor of the lot upon which premises were erected at 703 [sic] Bourke Street, Redfern in the state of New South Wales hereinafter referred to as "the premises".

5. On 8 May 1998 the defendant obtained consent from South Sydney City Council to conduct certain works at the premises involving renovations to an existing structure, demolition of part of the existing structure and erection of a new structure in accordance with plans and specifications, subject to certain conditions stipulated by the Council.

6. Demolition of the previously existing rear section of the premises was carried out by or on behalf of the defendant substantially between March and the beginning of May 1998 inclusive.

7. The defendant did not have any qualifications to carry out demolition work.

8. The plans and specifications called for retention of the northern rear boundary wall of the rear structure and this was excluded from the demolition works which had been conducted by or on behalf of the defendant prior to 8 May 1998.

9. Between approximately April 1998 and June 1998 the defendant engaged Michael David Papaianni and Carl Mark Hamilton ("the builders") to carry out certain works required in accordance with the Council approved plans and specifications for the premises.

10. The defendant engaged Luke Tsougranis, an engineer, of Luke Tsougranis & Associates ("the engineer") in or around late May or early June 1998 to provide structural advice, directions and drawings for use by the builders with respect to the conduct of the works specified in the Council approved plans and specifications.

11. The defendant failed to ensure that the builders and the engineer were advised that the rear northern boundary wall of the premises which remained was:

(i) not fully bonded into the cross wall at the rear of the front section of the premises to which it abutted;

(ii) was not a party wall fully bonded into the cross walls of the adjoining premises.

12. The defendant did not instruct the builders to provide bracing or other means to laterally support the rear northern boundary wall prior to conducting the works including any excavation works adjacent to it.

13. On 3 September the defendant did not maintain the existing building and in particular the rear northern boundary wall in a stable condition in that he did not provide any proper bracing or other means to laterally support it whilst works, including excavation works, had been and were continuing to be carried out immediately adjacent and parallel to it.

14. On 3 September 1998 the rear northern boundary wall toppled and caused fatal injuries to Jim Zaronias and serious injuries to the builder, Michael David Papaianni, when it fell onto them.

6 With the consent of the prosecutor, the case against Mr Hamilton was stood over to enable the cases against Mr Agapiou, Mr Tsougranis and Mr Papaianni to be completed. Following the plea of guilty entered by Mr Agapiou, the proceedings against Mr Tsougranis and Mr Papaianni were listed at the same time but when the matter was called, Mr Papaianni appeared in person and sought an adjournment in order to finalise arrangements for him to be legally represented. Although obviously inconvenient, that course was not opposed by the prosecutor and the case proceeded only against Mr Tsougranis. In Mr Tsougranis' case, the prosecutor called both Mr Papaianni and Mr Hamilton, resulting in issues of self-incrimination arising and the application of s 128 of the Evidence Act. Those issues are dealt with in the first judgment (Inspector Carmody v Tsougranis (2002) NSWIRComm 282). In the light of that judgment, there were a limited number of matters which were able to be canvassed in evidence by the parties with Mr Papaianni. .

SIGNIFICANT ASPECTS OF THE EVIDENCE

7 In light of the manner in which the parties developed their submissions, it is necessary to consider numerous aspects of the evidence.

Inspector Carmody visited the building site on 3 September 1998 at about 1.40 pm. He observed that there were properties adjoining 730 Bourke Street and they appeared to be connected on both sides - they were connecting structures. The Inspector proceeded to the rear of the property and saw a double brick wall that had collapsed. The Inspector observed some excavation trenches and some formwork. Also present was a pile of bricks, reinforcement mesh and trench mesh. The Inspector also arranged for photographs to be taken, as well as undertaking some measurements. The formwork was adjacent to and quite close to the end of the collapsed section of the wall and was approximately 400mm in depth. The collapsed wall had been erected on sandstone block footings and some of these footings were now evident with the collapse of the wall. The Inspector also saw a green coloured gas line lying in the trenches. He also observed a cross-wall with timber blocks, referred to as "spud blocks", that had nails protruding from them and were placed between the brick joints. He described it as a "very old fashioned tying system for brickwork". The Inspector was able to see the heads of approximately ten such nails down each side.

8 Mr Tucker was a land surveyor who was contacted by Mr Agapiou early in July 1998. Mr Agapiou engaged Mr Tucker to carry out a survey and to locate the boundaries of the property at 730 Bourke Street. Mr Tucker said that he had completed his survey work by 24 August 1998. Mr Tucker stated that he had not seen Mr Tsougranis at the site and that it was no part of his retainer from Mr Agapiou to determine levels at the site.

9 Mr McIntyre was a building assessor employed by South Sydney Council and had approved Mr Agapiou's building application in relation to 730 Bourke Street. The application comprised the architectural plan, the letter of approval containing the conditions upon which the application was granted and included the requirement for an owner/builder licence. A copy of such licence was duly received and kept with the Council file. Mr McIntyre said that from 1993 Council officers no longer conducted inspections and instead relied upon people on a register of engineers. The registered engineers were relied on by the Council to perform structural inspections and to give a structural certificate. Mr Tsougranis was on the register of engineers for South Sydney Council.

Mr McIntyre was unaware of any demolition taking place at the premises prior to issuing the building approval: that building work required Council approval. Between giving building approval and 3 September 1998, the Council had not received any structural detail for the purposes of approval. This was said to be Mr Agapiou's responsibility; he also failed to submit a survey certificate.

10 Mr Kourepis was asked by a family friend related to Mr Agapiou to assist in the preparation of the plans for Council approval for building work that Mr Agapiou wanted to undertake at 730 Bourke Street, Redfern. He had a number of discussions with Mr Agapiou over a period of time and attended at the property and, by March 1998, had completed plans for the work and had delivered them to Mr Agapiou. At the time of delivering the plans, Mr Agapiou told him that he had cleared the site at the rear of the property ready for construction. Mr Kourepis was shown the demolition work and reminded Mr Agapiou that he needed Council approval. Mr Agapiou apparently made no response. Mr Kourepis had prepared the plans on the basis that Mr Agapiou would lodge them with the Council. There had been a discussion about a fee and Mr Agapiou had bargained for a lower price. Mr Kourepis confirmed that, by March 1998, all demolition at the rear section was complete when he saw the property. He also confirmed that the original intention was to have a 280mm cavity brick wall but Mr Agapiou had instructed him to use a single skin wall, using an existing wall which was standing at the rear end on the boundary of the property.

In his drawings, Mr Kourepis had stipulated footings which had a depth of 600mm. He accepted that he did not have any expertise in relation to structural engineering and he had included that detail as a recommendation and to assist in quoting and for costing purposes. He also agreed that, prior to preparing the plans, he did not conduct or commission any surveys and the plans contained no levels. Mr Kourepis informed Mr Agapiou that he required an engineer for the project, that Mr Agapiou knew of that requirement and asked for a recommendation. It was Mr Kourepis who mentioned Mr Tsougranis as he lived close by.

11 Mr Agapiou ran a small grocery shop from 728 Bourke Street, a property which had been in his family for a number of years and in which he had been a joint proprietor with two other children of the family since the 1970s. He was also the owner of the adjoining property, 730 Bourke Street, and had been the owner of that property since 1975 or 1976. Mr Agapiou had confirmed that he had spoken to Mr Kourepis about drawing up plans for the renovation of the property at 730 Bourke Street, and that Mr Kourepis had come to the premises in early 1998. Mr Kourepis provided the final set of plans which were to be provided to the Council for approval. Mr Agapiou lodged the plans with the Council. When the Council approved the plans Mr Agapiou was told that he needed an owner/builder permit, which he subsequently obtained.

12 Mr Agapiou said that, while he was waiting for approval of his plans, he had contacted Mr Papaianni whose name had been given to him by a friend. Mr Papaianni came to the site with a partner, but prior to that the engineer had come to the site. The engineer had been contacted prior to the builder and the engineer was Mr Tsougranis. Mr Tsougranis' name had been supplied by a friend.

13 Mr Agapiou said that he informed Mr Tsougranis that he was undertaking renovations for a four bedroom terrace at 730 Bourke Street and that he wanted Mr Tsougranis to do "all the necessary engineering" , to organise all the engineering certificates and deal with whatever problems and issues were required of him in this area. It was approximately a week after Mr Agapiou picked up the approved building plans that Mr Tsougranis came to the site. Mr Agapiou gave a copy of the plans to Mr Tsougranis and told him that he required certificates for any structural work that was needed to get the job done. Mr Agapiou stated that Mr Tsougranis had said it would take four to five weeks to draw the plans, that the cost would be $600 and that Mr Tsougranis would lodge the documents with the Council.

14 As best Mr Agapiou could remember, when Mr Tsougranis first came to the site, the rear of the property had been demolished. Mr Agapiou said that he had demolished the back part of the terrace and he thought that took place between February and June or July 1998.

15 It was Mr Agapiou's memory that shortly afterwards Mr Tsougranis, with "an off-sider" or maybe just the off-sider, returned to the site and took some measurements.

16 Mr Papaianni was contacted by Mr Agapiou after lodging the plans with Council in about April or May 1998. Mr Agapiou was confident that he had shown a copy of the documents to Mr Papaianni and asked him if he was interested in doing the renovation. Mr Papaianni came to the site with his partner and they discussed the job with Mr Agapiou. At that stage, there was definitely no back part to the terrace. The best Mr Agapiou could do was to estimate that this meeting took place during the month of May. At this meeting, he gave the builders the plans and the specifications. Mr Agapiou said that he believed he asked the builders to give him a costing for the job. The two builders then sent him a quote and he agreed on the figure which they had tendered. The quotation was agreed to with Mr Papaianni. Mr Agapiou gave the builders a key to start work and that was commenced at about the beginning of August 1998. On reconsideration, Mr Agapiou thought that the plans had been approved when he saw the builders and that would have placed it about June or July. He thought that Mr Tsougranis had first come to the premises at 730 Bourke Street in around April 1998 having regard to the date of the building approval.

17 It was Mr Agapiou's recollection that he did not obtain the engineer's plans from Mr Tsougranis prior to 3 September 1998; Mr Tsougranis told him that he would lodge the plans with Council. The builders had told Mr Agapiou, probably on the second occasion they had visited the site, that they were going to contact the engineer directly: they told Mr Agapiou that they had made an appointment to see the engineer in relation to the engineering works.

18 On 3 September 1998, Mr Agapiou had gone on to the site to give the workers a coffee break. He went to the building site between 10 am and 11 am and saw the two builders on the site, together with the plumber and an off-sider and Jim the labourer. On that day, they were pouring the concrete for the footings to be laid and the trenches were being dug.

19 Mr Agapiou agreed in cross-examination that he did not have a very long conversation with Mr Tsougranis on the two occasions they met. He could not readily recall what was discussed on these occasions. He did recall that Mr Tsougranis said he would take care of the structural plans and whatever else had to be done with the engineer's work. Mr Agapiou agreed that it was late May or early June when he first gave Mr Tsougranis the Council plans, although he may have given him a copy of the plan earlier.

20 Mr Agapiou accepted that he saw Mr Tsougranis only twice in relation to this job and those occasions were relatively close in time.

21 It was accepted by Mr Agapiou that he had not called Mr Tsougranis to tell him that he had received a quote from the builder or that he had engaged a builder or that the work had commenced. He only spoke to Mr Papaianni and Mr Hamilton about commencement of the work. It was Mr Agapiou's recollection that the builders had not gone to speak to Mr Tsougranis before they had provided him with a quote for the job. Mr Agapiou understood that Mr Tsougranis would conduct inspections of the work and, prior to the accident, the builders had told him that Mr Tsougranis was coming out to check the steel works at the site. Mr Agapiou left it to the builders to make whatever contacts were necessary with Mr Tsougranis. Mr Agapiou had not told Mr Tsougranis that the building work had commenced because he believed that the builders had spoken to Mr Tsougranis, and that is how he would have known what was happening on the site.

22 Mr Clements was a plumber who was engaged by Mr Agapiou to perform plumbing work at 730 Bourke Street in 1998. He had been at the site around July but there was no building in the back part of the premises at that time. He commenced work at the site around 1 September 1998 with Mr Savoca who was helping him out. They had laid some drainage lines before the slab was laid and this work was performed at the rear of the house. There was a slight excavation, no more than 150mm, for these lines. On 1 September 1998, the trenches for the footing were not dug. On 3 September he had instructed Mr Savoca to be at the site and to lay a gas pipe from the front to the back of the premises and later that day Mr Clements also attended the site. That pipe was run through the footing trench on 3 September. The trench which now held the gas pipe had not been dug out on 1 September when he had previously been at the site.

23 Mr Clements had arrived at approximately 12.30 pm on 3 September and besides Mr Savoca, Mr Papaianni, Mr Hamilton and Mr Zaronias were present. After he had lunch, he walked to the backyard and saw Mr Zaronias and Mr Papaianni. Mr Zaronias was holding a mattock, or something similar, and was scraping at the trench with the mattock. Mr Clements and Mr Savoca then walked to the back of the property and into the street behind: he then heard a crashing sound and turned around. Mr Clements realised that there was a wall on the boundary and it had collapsed and was covering Mr Papaianni and Mr Zaronias. He assisted in removing the bricks covering the two men.

24 Mr Papaianni had been told about the building works by Mr Hamilton probably in early June 1998. Mr Hamilton asked him whether he was interested in the work and he replied that he was. Mr Papaianni first attended the site at 730 Bourke Street about six weeks before the accident, during July, with Mr Hamilton. On that occasion, he spoke to Mr Agapiou who gave them the architectural plans, although Mr Papaianni was not sure whether he was supplied at that time with the engineering plans or whether that was later. The structural plans were received from Mr Agapiou and they may have been received on the day the quote was formulated or maybe a few days before. Mr Papaianni had no recollection of speaking to Mr Agapiou about who was the structural engineer before the quote was submitted on his second visit to the site. Mr Agapiou was asked for Mr Tsougranis' details so that the builders could speak with him. They telephoned Mr Tsougranis and organised to see him that afternoon. Mr Papaianni, Mr Hamilton and Mr Zaronias attended the meeting with Mr Tsougranis. This meeting took place a couple of days before work commenced on the site and was probably about four weeks before the accident. At this time, the builders had already supplied the quote to Mr Agapiou. The purpose of speaking to Mr Tsougranis was to check beam size specifications and to talk to him about an opening in the front part of the building that was to be enlarged. There was also discussion about the slab which was going outside to the inside and support to an internal wall, and to discuss an expansion joint in the slab between the old building and the new extension.

25 Mr Papaianni asked Mr Tsougranis if he had a stamped copy of the plans because the builders had only an unstamped copy. Mr Tsougranis told them that it was okay as he certified the work and to go ahead and do the work and call him when they were ready for inspections. This occurred in early August.

26 Mr Papaianni said that the day he saw the engineer he had taken a copy of the plans given to him by Mr Agapiou. Mr Papaianni was of the view that the plans in respect of footings and the slab were straightforward and, although there was not any great detail, it involved just the slab itself being a 4 inch slab with a top mesh: the footings were just basic trench mesh, top and bottom steel. The plans, including the engineering plans, were kept on site in a folder held by Mr Hamilton.

27 In cross-examination, Mr Papaianni denied that he collected the plans from Mr Tsougranis, saying that the plans were obtained from Mr Agapiou. He also denied that he told Mr Tsougranis that they were tendering for the job - they had gone to discuss issues relating to beam sizes, the expansion joint and support of two stud walls. Prior to attending that meeting with Mr Tsougranis, Mr Agapiou had given him the engineering details - it was those details that were being clarified at the meeting.

28 Mr Papaianni said that, in the discussion with Mr Tsougranis, they informed him that the job was due to commence or had commenced - "that is exactly what we went there for". Mr Tsougranis had not given them written details but had looked up his tables and told the builders the size of the beams that had to be used. That verbal indication was sufficient for the builders.

29 After the meeting in July 1998 with Mr Tsougranis at his office, Mr Papaianni did not see Mr Tsougranis again or have any conversation with him thereafter. Mr Papaianni said that Mr Tsougranis was to be contacted by Mr Agapiou when the builders were ready for inspection of the steel work - that did not happen because the accident happened.

30 Mr Savoca worked casually helping Mr Clements perform plumbing work. At 730 Bourke Street, he worked for one or two days before the accident doing work associated with the drainage, gas and water. He was laying pipes in the back yard in trenches that were already dug and finished. When he started this work, there was no formwork in the trenches. At this time, he thought the trenches were approximately 400mm deep. Mr Savoca said that he was not required to dig for his work as the trenches were already dug and he just laid the gas, sewerage and water pipes in the trenches. Mr Savoca confirmed that he was working at the site on 3 September 1998 at the time of the accident.

31 Mr Hamilton agreed to give evidence subject to the protections provided by s 128(2) and (7) of the Evidence Act: after consideration, a certificate is issued. He had been asked by Mr Agapiou some two or three months before the job started if he was interested in carrying out the renovation at 730 Bourke Street. The job actually started in August 1998 about three weeks before the accident. Mr Agapiou had contacted Mr Hamilton in May or June 1998 and, before going to the site, Mr Hamilton spoke to Mr Papaianni and asked him if he would be interested in being involved in the job. They both went to the site together and met Mr Agapiou sometime in June 1998.

32 At the site, Mr Hamilton could not recall any structure being present at the rear of the premises. After that meeting, Mr Agapiou gave Mr Hamilton some plans indicating the scope of the work for which he wanted a quote. Mr Hamilton could not recall whether it was at the first or second meeting with Mr Agapiou that he had been given architectural plans but, when they were received, he and Mr Papaianni met three or four weeks before the job commenced and prepared a quote. That quote was provided to Mr Agapiou probably in early July 1998. Mr Hamilton said that he was also given the structural plans to formulate a quote but he could not remember when he received those plans. The structural plans were given to him by Mr Agapiou. Mr Hamilton rang Mr Agapiou after the quote had been prepared and informed him of the figure, and the quote was then reduced to writing and supplied to Mr Agapiou. There was some additional work required by Mr Agapiou and those matters were factored into the quote. Both the architectural plans and structural plans had been provided prior to the quote being submitted. Mr Hamilton stated that the work on site had commenced one or two days before the builders met with Mr Tsougranis.

33 Arrangements were made to go to Mr Tsougranis' office but Mr Hamilton did not inform Mr Agapiou that this meeting was taking place. At the meeting with Mr Tsougranis, it was Mr Papaianni who did the talking: he had the plans with him and all the paper work and raised the matters for clarification with Mr Tsougranis. At this meeting, the details of the structural plans prepared by Mr Tsougranis were not discussed. The discussion was mainly about work inside the house, the moving of some walls, general information for the job, the propping of internal walls and some sizing for steel beams that were to be put in. Mr Hamilton recalled that Mr Tsougranis advised on the size of the beams, but mostly everything was in the drawings: if there were any questions, the builders were to contact Mr Tsougranis.

34 Mr Hamilton recalled that Mr Papaianni asked Mr Tsougranis whether the Council would inspect the work and Mr Tsougranis replying that as structural engineer he was the authority over that work: it was in his control - not the Council. This meeting occurred very early after the commencement of the work, possibly within the first few days when general preparation inside the house had been undertaken.

35 The plans were taken from Mr Tsougranis' office after the meeting and were kept at the site for reference. In relation to the structural engineering drawings, Mr Hamilton took all his instructions from Mr Papaianni.

36 In relation to the wall that had collapsed, no instructions had been given to Mr Hamilton to brace or support it. After the meeting with Mr Tsougranis, Mr Hamilton had no further contact with him before the accident on 3 September 1998.

37 In cross-examination, Mr Hamilton could not be certain of what plans were discussed at the meeting with Mr Tsougranis, but he denied that Mr Papaianni told Mr Tsougranis that they were quoting on the job. Mr Hamilton said that the quote had been given to Mr Agapiou before the work started. Mr Hamilton was able to say that an extract of a drawing as well as the house plan were taken by Mr Papaianni to the meeting with Mr Tsougranis. It was Mr Hamilton's recollection that Mr Papaianni had a copy of the structural drawings and possibly Mr Tsougranis brought out his own set of drawings during the discussion. Mr Hamilton was unsure of all the papers and plans that Mr Papaianni had at the meeting but he did recollect that there was a plan and a number of papers. Mr Hamilton agreed that it was possible that Mr Tsougranis gave the structural detail to Mr Papaianni at that meeting. Mr Hamilton rejected the proposition that Mr Tsougranis said to Mr Papaianni, "Here are the plans for the job but they have not been lodged with Council yet and Mr Agapiou needs to pick them up so that lodgement can take place", or that "these are the first plans to leave the office". Mr Tsougranis never mentioned that the plans were "unapproved".

38 Mr Hamilton had noticed the wall which subsequently collapsed when he came to the site. Although he had not closely looked at it he did not recall seeing any marks on the wall that suggested or indicated the previous level of the floor.

39 When excavation began at the rear of the building site, Mr Hamilton did not contact Mr Tsougranis before that work commenced and to the best of his knowledge neither did Mr Papaianni. Mr Hamilton sought no advice from Mr Tsougranis regarding excavation at the site.

40 Mr Turner was a senior engineer with the construction team employed by the WorkCover Authority of New South Wales and had prepared an engineering report on the collapse of the wall at 730 Bourke Street. He was qualified as a Bachelor of Engineering in Civil Engineering, a degree obtained from the University of New South Wales in 1983. In addition, he had undertaken certificates of competency at TAFE in relation to rigging, scaffolding, dogging and crane driving. In his employment with the WorkCover Authority, he had undertaken probably hundreds of site safety inspections and undertaken assessments of proposed systems of work in the construction industry and assessments of construction projects site safety plans. He had been a WorkCover representative on a number of Standards Committees.

41 Mr Turner had attended the scene of the accident on 3 September 1998, a little over two hours after its occurrence. His report was based on observations made and measurements taken on site during his inspection that day, from other visits and information provided by witnesses in subsequent interviews and other data made available to him by the WorkCover Authority. He noted the nature of the structure, its layout and the fact that there had been significant demolition. He was of the opinion that the rear section of the premises had been added on to the front section of the house, possibly over 50 years ago. He also noted that the walls of the rear section were not bonded to the front section: they butted up to the cross-wall without interlocking of the brickwork.

42 Mr Turner gathered information from the Bureau of Meteorology regarding the weather at the approximate time of the collapse of the wall. From two recording points he noted that at approximately 12.45 pm the peak recorded gusts of wind were 22 knots at Mascot and 20 knots at Fort Denison. Mr Turner was of the view that the wind on the day would not have been a problem for a correctly supported structure but it would have provided a horizontal load on the wall, towards the site.

43 Mr Turner then made some observations about additions to 728 Bourke Street, the adjacent property and additions which had occurred around 1987. That modification included extending part of the rear section of the building to butt up against the collapsed wall and the provision of a roof over the resulting enclosed courtyard. Mr Turner stated that the outer skins of the new brick wall were partially supported by brick ties and nailed into the collapsed wall. The rear structure over the courtyard was also connected to the collapsed wall with screws and expansion anchors. He also observed that the wall which collapsed was not, in his opinion, a "party wall". A party wall was one built as a common structural wall for buildings on either side and was therefore an integral part of both buildings. However, while the collapsed wall was along the boundary, it did not constitute a party wall as there appeared to have been no contact with the structure of 728 Bourke Street prior to the additions referred to earlier. In Mr Turner's opinion, the modifications to No 278 had not permanently weakened the collapsed wall, although during installation of the strip footing the stability of the wall would have been reduced. Once completed, the adjoining walls and courtyard roof provided some additional support to the collapsed wall.

Mr Turner then noted that the demolition of the rear section of the building removed horizontal support from the wall, which had previously been provided by the roof and floor structures and the return walls, both external and internal. These supports would have prevented the wall from rotating under the effect of horizontal load. The vertical load on the foundation of the collapsed wall was reduced by the removal of the existing structures and the associated live loads. Mr Taylor then expressed the following view:

With the demolition complete, the rotational support for the collapsed wall was removed. From this time on the rotational forces imposed by wind loads were resisted by the rear addition to 728 Bourke Street. This addition was able to provide substantial support against rotation to the north but only minimal support for rotation to the south (into the site). The rotational support to the south was provided by the brick ties that were nailed into the collapsed wall to support the return wall on the No. 728 addition, and the connections for the courtyard roof structure. The brick ties and connections were installed to resist shear loads not the tension loads required to prevent wall rotation. The nailed in connection used on the brick ties provides good, shear strength but minimal tensile strength. The collapsed wall was therefore left in an unstable condition as a result of the demolition.

44 In relation to the excavation for the footings, Mr Turner noted that this excavation extended the entire length of the collapsed wall and was "nominally 400mm deep x 450mm wide". This excavation was said to be approximately equal to or below the wall's existing sandstone footing. Mr Turner also noted the persons trapped under the wall had been trimming the excavations that morning and shortly before the collapse. The final trimming of the excavation, in Mr Turner's view, may have taken the level of the excavation to slightly below the base of the collapsed wall's footing, if it was not already below that level. That trimming would have removed the side support provided by the sand under the footing, thus further reducing the footing's bearing capacity on the inner side.

45 Having identified the demolition of the rear section as greatly reducing the stability of the wall, the excavation of new footings removing support provided by the soil such that even a slight over excavation would have taken the excavation to below the base of the footing, and the final trimming may have further removed the side support provided by the sand under the footing, Mr Turner expressed the view that failure of the wall then occurred through:

(a) overload of the weakened footing as the sand supporting the footing moved into the excavation, causing the footing and wall to rotate into the site; or

(b) the wind load from the north being sufficient to overcome the support provided by the weak connections to No 728 and the wall rotated into the site; or

(c) a combination of the above.

Mr Turner was of the view that a combination of the identified factors was the most likely cause of the collapse.

46 Mr Turner reached the following general conclusion:

The demolition of the existing structure left the collapsed wall without rotational support on the side facing into the site, leaving the wall in an unstable condition from that time on. The wall at the rear of 728 Bourke Street provided horizontal support that prevented the wall falling outwards but provided little support against movement into the site. Excavations on the site in the vicinity of the wall weakened its foundations and left the collapsed wall in a more unstable condition. The additional trimming of the excavations being carried out on the day of the accident may have further weakened the foundations. The failure was most likely initiated by a gust of wind providing a horizontal load sufficient to initiate the collapse of the already unstable wall. The wind conditions on the day of the accident were from the north and had increased to a fresh breeze at the time of the collapse. ...

No evidence was found to indicate that special considerations were made in regard to maintaining the stability of the wall, at the time of demolition, when designing the footings or in carrying out the work of excavating and preparing for new footings.

47 Mr Turner further expressed the view that there were a number of parties who had contributed to the collapse of the wall by their acts or omissions. In relation to the engineer, Mr Turner expressed the view that, in providing a footing design without reference to the collapsed wall, either as instructions on how to achieve the footing without destabilising the wall or that the owner/builder should check on the wall's stability and foundation and take measures to maintain stability during the work, the engineer had contributed to the collapse of the wall. He also noted that the footing design did not specify a level, either absolute or relative to the site.

48 Mr Turner had examined the sandstone blocks which comprised the footings to the collapsed wall. He noted that the surfaces were all weathered and not clean which indicated that they had not been broken or pieces chipped off either during the collapse or in the short time frame beforehand. In cross-examination, Mr Turner was not able to be definitive as to whether the excavation was below the base of the footings but the excavation was down to the base of the footings. A certain amount of scraping or trimming of the sandstone blocks would not have a major effect on stability but, if trimming was carried out to the base of the blocks, it would affect stability.

49 In relation to weather records, Mr Turner accepted that late in August 1998 there appeared to be northerly wind gusts which did not lead to the wall collapsing. It was possible that the stability of the wall was changed by the more recent excavation near the wall.

50 In relation to the wall as a "party wall", Mr Turner agreed that, when a wall runs down the boundary line, there are restrictions on what can and cannot be done on either side of the wall because both properties rely upon it. He accepted that a party might be entitled to construct an extension or some structure that had a single skin wall that abutted the party wall, and that was one of the possibilities he saw on the No 728 side of the wall. In such cases, he agreed it would be expected to see the single skin wall tied in some way to the party wall using framing ties. Mr Turner further agreed that, of all the people who were involved in this particular development on No 730, it was Mr Agapiou who was in the best position to know all the facts about both properties including the wall, or at least was in the best position to find out about it. Mr Turner knew from Council records that the extension on the No 728 side of the wall in or about 1987 was done by Mr Agapiou personally or through his agents and using contractors. Mr Turner further agreed that Mr Agapiou should have consulted professionals as to the demolition of the remaining structures on the No 730 side. Because of his involvement in the 1987 renovation at No 728, Mr Agapiou either knew about the absence of bonding to the wall or, alternatively, he could have found out.

51 Mr Turner was aware that the conditions of approval issued to Mr Agapiou by the Council required him to maintain any structures in a stable condition during demolition work. In relation to Mr Tsougranis conducting some investigation about this wall to determine its nature and condition, Mr Turner was of the view that he could either investigate it or assume the worst case and deal with that proposition: if investigation was going to be more expensive than just putting in protective measures, he could ignore the investigation and go straight to those protective measures.

52 Mr Turner agreed that excavation adjacent to a party wall was a circumstance where a structural engineer should be consulted. He was aware that the balance of the rear of No 730 had been demolished between March or May 1998 and had remained standing until September 1998. The only significant change to the environment during that period was the excavation of a trench alongside the wall shortly before its collapse and associated levelling around the whole site. Mr Turner agreed that the fact that the new wall had stood until September 1998 without falling over was evidence of some bonding but was not necessarily evidence of reasonable bonding. It may have also withstood several gusts of wind but Mr Turner stated the fact that something did not collapse did not mean that it was not in danger of collapsing. A combination of circumstances may lead to the "last straw" of support being lost. Strictly speaking, it was not a freestanding wall but there was not sufficient bonding to call it a bonded wall either.

53 While Mr Turner could accept that the footings on the No 728 side were undermined at the time of earlier construction and that the sand and soil around it may have escaped, he would normally expect that that void would be filled at least to a major part by the cement when pouring the concrete footing. It did not look as though there was a wholesale or large amount of movement.

54 Mr Turner agreed that it would be reasonable for an engineer to assume works had not commenced until the structural plans had been approved. However, if the engineer had become aware that other works on site were commencing and no structural plans had been submitted to Council, the engineer would be entitled to assume that if they (the builders) were not following the rules in that respect, they were probably not following them in other areas.

55 Mr Turner stated that there was nothing about the structural plan prepared by Mr Tsougranis to indicate that it was produced for a restricted purpose only. Nothing indicated that it was drawn for tender purposes only. The state of the document indicated that there was no intention that there would be a need for a revised version. It was fairly normal to place additional information on a plan advising that was the extent of enquiries made and, if the builder was travelling beyond it or changing things, there was a need to re-consult. There was nothing in the plans as a reference point signifying excavation which would allow an assessment to be made of over-excavation.

56 In relation to expectations that a building or a structure was tied with framing ties, such an expectation may be normal but if it was critical to the structural stability then it needed to be checked out. It was necessary for the expectation to be, in fact, correct. Mr Turner said that he would normally expect a comment on the plans about excavating alongside a wall requiring the wall to be considered, or having another expert do it. There was something to show that there was digging right beside an existing wall but there was nothing on the plans that showed whether the engineer had considered the stability of the wall and therefore had approved of digging down beside it. Quite often, there is an indication by the engineer that something has not been done and may need to engage somebody else to check the stability of a particular structure that you are digging down right beside it. Mr Turner rejected the notion that all a note of that nature was doing was reiterating the Council conditions. Looking at this plan, the engineer had shown a wall going down beside an existing wall, but there was no indication that the engineer had considered the stability of the wall. As a builder, Mr Turner would contact the engineer and say, "You show digging down beside the wall, but do not say how far" - he would have checked it out.

57 Mr Taylor was called by the prosecution as an expert geotechnical engineer. He described geotechnical engineers as those who make a study of the soil conditions insofar as they relate to the performance of buildings or structures that might be erected on the soil. That required an awareness of the limits in terms of load that could be applied to the soil and the way a building may respond as a result of movement of the soil and load. Mr Taylor provided a report which he restricted to expressing views on strictly geotechnical matters or matters of general engineering relevance, but excluding matters normally involving structural engineering knowledge or experience. He also provided comment on a report prepared under instructions from the defendant by Mr Smee, a structural engineer.

58 Mr Taylor identified the purpose of his inspection and report was to undertake geotechnical investigation of the foundation conditions beneath the wall and adjoining buildings with a view to determining the properties of the foundation soils and the probable cause or causes of the failure of the wall. Excavations were made adjacent to the perimeter walls standing on the northern and southern boundaries in the vicinity of the collapsed wall for the purpose of determining footing details to the wall. A sample of sand was recovered from the excavation made adjacent to the northern boundaries for the purpose of assessment and laboratory testing. That testing indicated a very loose condition in the sand to a depth of 300mm at the northern boundary and/or depth of 450mm at the southern boundary. Evidence from both inspection and testing at the site indicated that the wall that had collapsed had been supported on discrete sandstone block footings bearing at a depth of some 370mm below the ground surface level. The sands beneath the foundation were found to be mainly loose and very loose in the upper 200mm to 300mm, although some disturbance to the density of the sands may have occurred as a result of footing displacement during the collapse of the wall.

59 After referring to the nature of the granular soils present at the site and observing that the soils developed bearing capacity almost entirely from internal particle friction, Mr Taylor concluded:

From the calculations of ultimate bearing capacity it can be seen that the estimated pressure of 130kPa applied to the foundation of the wall prior to excavation works commencing for the adjacent footing construction was only marginally above the ultimate bearing capacity of the material at the time. Excavation of the new foundation trench beside the wall, though, seriously reduced the bearing capacity of the foundations to the wall to the extent that bearing capacity failure occurred, resulting in the rotation and collapse of the wall.

Mr Taylor further concluded that the bearing capacity of the wall foundation had been severely jeopardised by excavation works being undertaken to construct a new foundation beside the wall, giving rise to bearing capacity failure which triggered the collapse of the wall. That opinion was formed in the context of a finding that the granular foundation soils beneath the wall were comprised of very loose to loose fine and medium grain sand.

60 Mr Taylor also provided a letter responding to a report prepared for the defendant by Mr Smee, a structural engineer. In this document, Mr Taylor noted that Mr Smee referred to the footings for the extension as 150mm to 170mm below the stone footing on the collapsed wall, whereas Mr Taylor's own measurements showed that the footing depth for the adjacent extension was some 290mm below the footing to the wall. It was noted that Mr Smee had listed likely causes of the wall collapse, and that the two engineers were in agreement in relation to those matters. Mr Taylor wished to emphasise that the excavation adjacent to the wall footing at the time of the accident "clearly was the triggering event"; however, in view of the limited bearing capacity afforded by the sand at the shallow depth of the footing to the party wall, any of the four causes listed could have been considered material.

61 It was noted that Mr Smee had apportioned much of the responsibility for the accident to the builders and the owner/builder, and had argued that the defendant, Mr Tsougranis, had little or no responsibility for the construction issues which led directly the collapse. Mr Smee had stated that Mr Tsougranis designed a combined footing and slab, reducing the overall depth to a minimum alongside the existing party wall. The depth selected, in Mr Smee's view, was reasonable and would not normally be a cause for concern in relation to existing footings. Mr Taylor disagreed with this statement in that calculations he made showed the effect of excavating the trench to the stipulated depth of 400mm beside the party wall effectively reduced the bearing capacity of the wall footing to only 40 per cent of its normal capacity. This reduction was believed to be quite significant and should have been a matter of concern in the initial design of the footing system prepared by Mr Tsougranis.

62 Mr Smee had offered the opinion that it was reasonable for Mr Tsougranis to assume that the party wall was adequately connected to the return walls and that the footing was adequate. Mr Taylor noted however that as the building was over 100 years old, it would have been reasonable to have assumed that, having passed its normal "design life", neither the foundations nor the structural ties either complied with current regulations or continued to function in accordance with the original design intent.

63 In his oral evidence, Mr Taylor said that, for a building of this age, it was unusual for it to have concrete footings, as they were commonly made from masonry which would deteriorate over time. He stated that it was generally accepted in the engineering world that the method of protecting steel which was used in ties was to galvanise it, but that system did not come in until 50 years ago and prior to that he would assume that there was no protection provided to the ties. Without the ties being galvanised, they were not protected from corrosion.

64 Mr Taylor also gave evidence that a design that required some excavation for footings meant that there was a risk or a potential risk of undermining an adjoining structure. In those circumstances, the plan should have contained a note that the engineer was to be notified by the builder prior to foundation works commencing on the site. An engineer in those circumstances would initially inspect the first sod of excavation to check on the footing to the wall that may be undermined and thereby ensure that the relative depth of excavation to the depth of the footing was such that the wall would not be in jeopardy during the temporary works for the period of time that the trench was open. An engineer called at this stage could then specify other measures to safeguard the structure alongside which the work was taking place.

65 Mr Taylor was closely cross-examined in relation to his report and the opinions expressed in his letter dealing with the report of Mr Smee. Mr Taylor confirmed that the four factors identified by Mr Smee in combination with the effect of the wind meant that the collapse of the wall was inevitable. In his view, it was an accident waiting to happen. Mr Taylor said that he had expressed an opinion on the basis of a 400mm excavation. He agreed, that if the slab was to rest on the ground, it would be necessary to excavate a trench for the footing to a depth of only 290mm on the basis that the slab was specified at 110mm. A slab that was to sit on the ground requiring a trench of 290mm would mean that an excavation of 400mm would be over excavation. An excavation of 290mm, as opposed to 400mm, below ground level would not reduce bearing capacity to 40 per cent but would reduce it to about 60 per cent. In Mr Taylor's view, it did not matter what the extent of the excavation was - any excavation left the wall unstable. Only very minimal excavation could have been successfully undertaken without it jeopardising the condition of the wall.

66 Mr Taylor accepted that he had assumed an embedment of the wall of 370mm below ground level because he observed the sandstone block footings to be 120mm and 250mm, producing a combined depth of 370mm. Mr Taylor also assumed that the sandstone footing would be below ground level and would not have protruded above ground level. The measurements taken on site suggested that depth of embedment. Because of the wall collapse and the rotation of the footings, it was difficult to take a precise measurement of actual embedment. While Mr Taylor accepted that the footing of the wall might have been greater than 370mm below the original ground level, that was improbable. Although Mr Taylor accepted that the level of embedment could have been as deep as 500mm or 600mm, the analysis in his report operated on 370mm and was based on what he saw after the accident. It was also based on the level of the ground at the commencement of the excavation for the trench. He therefore did not have to consider a higher level of embedment. In cross-examination, he accepted Mr Smee's assumption that normally footings of this nature would be 500mm - that was reasonable to assume. In re-examination, Mr Taylor accepted that, if the footings had been embedded at 500mm below ground level, then some of the bricks on the wall would be below ground level as well as the sandstone footings. However, Mr Taylor did not observe any discolouration of the bricks and he would expect to see such discolouration if the bricks were in fact below ground level.

Mr Smee was a structural engineer with long experience who became a consultant to MBK in January 2001. He provided an expert's report on the collapse of the wall at 730 Bourke Street on the instructions of solicitors acting for the defendant. In providing his report, Mr Smee was asked to assume a number of facts including:

(a) that Mr Tsougranis provided drawings at the end of July 1998 for those who picked up the drawings to be able to provide a quotation for the work;

(b) prior to 3 September 1998, Mr Tsougranis had not been informed that a builder was on site, let alone that excavation had commenced;

(c) on 3 September 1998 at 11.00 am, a message was left for Mr Tsougranis, when he was not in, requesting an inspection the following day. At this stage, Mr Tsougranis was not aware work had commenced on site and believed his drawings had not yet been submitted to Council.

It is also apparent from his report that Mr Smee was either told or assumed that Mr Tsougranis had no control over the site and had been instructed that Mr Tsougranis had not been to the site since June - July 1998, prior to the accident.

67 In October and November 1998, Mr Smee attended the site, inspecting the remains of the wall and making observations. He was present when excavation was carried out to confirm the location and depth of all existing footings at the premises at 730 Bourke Street.

68 The report observed that the original two-storey sections of Nos 728, 730 and 732 were built at the end of the 19th century, forming a solid row with common front and back walls. The rear section of No 730, occupying some 3 metres, was built a little later with a skillion roof, rather than the pitched roof comprising the roofs to the front sections of all properties. The party wall between Nos 728 and 730 was continued on the same line to the rear, and was connected to the joint and toothed into both sections of the wall. The floor level of the shop at No 728 and the front room of No 730 were lower than the general floor level of the original building and matched the footpath level rather than being several steps above the footpath.

69 Mr Smee understood that the rear section of No 728 was constructed some 10 - 15 years ago. It was observed, with the party wall now collapsed, that a new skin had been built on the No 728 side, using the party wall as the external skin or common wall and forming a cavity between the new internal skin and the party wall. No ties connecting the new wall to the party wall were installed: where the new external skins of the east and west walls of the extension to No 728 met the party wall at the front and back of the extension, these walls abutted the party wall but were completely ineffectively tied. The ties used would be completely ineffective in providing restraint.

70 The footings of the renovation extension of No 728 were exposed during the excavation carried out during the site viewing in October 1998. Mr Smee stated that this revealed that the footings for this extension had been taken some 150mm - 170mm below the stone footing for the party wall, removing support for the party wall footings at that time and resulting in sand of considerably less bearing capacity under the party wall footing this work. He thought it possible that the party wall would have collapsed on to No 728 during the 1980s extension due to excavation below its footing, if it had not been held by return walls on No 730. In building the renovation/extension on No 728, no such restraint was provided by the cross-walls and the new inner skin of No 728, due to the inadequate connection referred to above.

71 Mr Smee noted that the footings of the new party wall and the demolished section were measured to be 400mm - 420mm below floor level: he took the floor level to be what was obviously the intended floor level of the concrete that was being poured and that was indicated by the level of formwork or "edge boards" around the perimeter of the concrete to be poured. Mr Smee did not know what the original floor level was or the original ground level at the rear of the property. It was possible that the demolished rear section had a floor level one step higher than the front section, although this was not evident at the time of the inspection, nor did Mr Smee think it would be evident at the time of the visit of Mr Tsougranis.

72 Mr Smee was of the view that seeing fresh cut marks on the stone blocks indicated that the trimming of the footing had occurred on the No 730 site. Stone fractured off the party wall stone footing and adhering to the concrete footing of the No 728 extension suggested the stone footing was probably cut back on the far side during the 1980s building work carried out on No 728. In his view, if left with a normal coating of dirt, it was unlikely bonding would be sufficient to fracture the stone when the wall tilted and collapsed.

73 Also observed was excavation undertaken by the builder which was "in line with Tsougranis' drawing". Although the full depth was not evident alongside the party wall, excavation of a depth at least down to the depth of the existing footing had taken place.

74 Having regard to the architectural drawings, which Mr Smee said indicated footings 600mm to 650mm below floor level, Mr Tsougranis had modified the footings reducing the depth of the rib slab to 400mm alongside the existing party wall and 486mm beyond the party wall. This footing design of Mr Tsougranis was appropriate and reasonable, according to Mr Smee, for the following reasons:

(i) the reduced depth and ribbed slab design was sufficient for a footing on sand;

(ii) the architectural drawings indicated the floor carried through at one level and it would be reasonably expected the new floor would be the same level as the existing one. Mr Smee was instructed that no direction was given to Mr Tsougranis as to a change of floor level;

(iii) the reduced depth would be less likely to affect the existing adjacent footing, as the depth of that footing would normally be 500mm or greater below the floor with this 500mm minimum made up of flooring, floor joists and bearers (200mm - 250mm), air space (usually a minimum of 150mm) and embedment in the ground (100mm - 150mm minimum). The engineering drawing did not, and would not, normally specify levels when none were provided to the engineer on the architectural drawings. With no steps shown initially on the architectural drawing, it would be reasonably assumed that the level of the new rib concrete floor slab would match the existing floor level. Mr Smee continued:

Once work commenced on site it would be normal for an exploratory excavation to be made by the builder to check the level of the existing flooring. I would expect a competent builder to carry out such an exploratory hole and to be aware that excavation should not extend as low as, or below, an adjacent footing in sand.

75 Mr Smee was firmly of the view that the collapsed wall was properly to be regarded as a party wall. It was a continuation of the party wall on the same line as the front section. The wall could serve as an external wall for either No 728 or No 730 if the structure on one side or the other was removed. The position was stated thus:

Indeed, it is required that such a wall should be tied into, and stabilised by, structures on both sides, so that if the structure on one side was removed permanently, then the wall being the external skin of the remaining side's building would rely on that remaining structure for stability.

76 The structure erected on the No 728 side of the party wall and, using the party wall as an external skin, was poorly and inadequately connected to that wall. No ties were provided from the new inside skin to the party wall and only a few quite inadequate ties were provided from the return external skin perpendicular to the party wall. In Mr Smee's opinion, there was no reason for the engineer to believe or suggest, when he saw the site in June/July 1998, that the wall was not well connected and might be unstable or a danger.

77 The collapse of the wall was said to be due to a combination of factors, namely:

(a) excavation below the party wall footing when renovating No 728 more than ten years before, resulting in a loosening of sand and reduction in bearing capacity under the party wall footing;

(b) lack of adequate connection of the new construction of the renovation of No 728 to the party wall;

(c) removal of supporting walls on the No 730 side of the party wall as part of the demolition and renovation of No 730;

(d) excavation adjacent to the footing of the existing party wall for the new footing on No 730 side, to a level where support for the existing footing was jeopardised, bearing in mind that the sand was loosened by previous work on No 728, and trimming the stone footing, which both removed part of the footing and caused vibration, which would further loosen sand, reducing the support.

78 In relation to the causes of the collapse, Mr Smee made the following statements:

8.2 The party wall was firstly at risk because bearing capacity was reduced at the time of the previous extension ... and the construction of that extension did nothing to provide support or restraint for the party wall ... additionally it would have been difficult to identify the lack of restraint, and an inspection inside the renovated area would have apparently confirmed that the cross-walls were tied well to the party wall while in fact the cross-walls were well tied to additional internal skin and not the party wall. There would be no reason for either the current builder or the engineer to suspect that the extension had reduced the strength and stability of the party wall, rather than provide support for the wall, as it should have done.

8.3 Removal of cross-walls on the No 730 side would not be seen as critical assuming reasonably founded footings and support from the walls on the other side (No 728). However, this removal contributed to the collapse when considered in conjunction with the other causes.

8.4 The excavation for new footings adjacent to the existing footings, apparently without establishing the level of the existing footings, and referring it to the engineer, along with cutting back (or trimming) the old stone footings, was the final (and initiating) cause of the collapse.

Without all of these factors, Mr Smee was of the opinion that the collapse would never have occurred.

79 In relation to responsibility for the collapsed wall, Mr Smee noted that the architectural drawing was all that would usually be provided to an engineer for the design of a small project such as this renovation and there would be no reason for the engineer to request further information. In his view, Mr Tsougranis designed a combined footing and slab reducing overall depth to a minimum alongside the existing party walls. The depth selected was reasonable and would normally not be a cause for concern in relation to existing footings. Importantly, Mr Smee expressed the view that Mr Tsougranis had no control over the site and had been instructed that he had not been to the site since June/July 1998. He was not aware that work had commenced on the site and indeed would not have expected that work to commence as he believed (as was the case) that his engineering drawings had not been submitted to Council. Mr Smee also noted the requirements of the specification of the plans approved by Council which stated that, when excavating the existing foundations, footings and walls should be securely supported by appropriate means. In his view, the builder clearly did not observe this requirement. The person who was aware of the full situation, in Mr Smee's opinion, and who would have therefore overall responsibility, was the owner of both No 728 and No 730, Mr Agapiou, who was familiar with the first renovation at No 728, and he was acting as the owner/builder for the renovation at No 730.

80

The following additional observations were made by Mr Smee:

10.3 For purposes of documentation, the depth of the existing footing of the party wall would have reasonably been expected to be lower than the 400mm deep rib of the proposed new footing ...and investigation of the footing would normally be carried out at the commencement of excavation, and before general extensive new footing excavation. As Tsougranis was not aware a builder had been commissioned, let alone commenced on site without Council approved engineering drawings, he was not in a position to discuss with the builder such a course of action, which in any case should have been normal procedure for a competent builder.

10.4 The party wall still had return walls on No 728. It would be quite reasonable to assume these walls were well tied to, and provided further stability for, the party wall. The only detailed estimate that could be made would be an invasive and destructive investigation of the junction of these walls to check the adequacy of tying. Such an investigation would not be normal, and you would be entitled to assume return (or cross) walls were tied to the external skin, or party wall.

10.5 Requirements for temporary support of such a wall while excavating nearby are covered in the specification ...the builder did not observe this requirement.

81 There was some disagreement between Mr Smee and Mr Taylor as to what might be a safe bearing capacity for the wall. Mr Smee made the point that he considered work which had previously taken place on the No 728 side below the level of the footing might reduce the safe bearing capacity of the wall below what he believed was acceptable. Absent the undermining of the footing on the other side of the wall and assuming that there was embedment of 100mm above the bottom of the footing, Mr Smee said he would expect that to be adequate to support this wall. Mr Smee thought that the values used by Mr Taylor in his report were too low in assessing what would be a safe bearing capacity. In relation to the original floor level or the original ground level at the rear of the property, Mr Smee was not able to express a view.

82 Mr Smee accepted that, if some of the assumptions he made when preparing his report were incorrect, his conclusions may vary from those contained in the report. Mr Smee said he was familiar with terrace houses in the Redfern and Surry Hills area and accepted that they had been built over a 100 years ago. The additions into the rear of such premises were probably built more than 50 years ago and certainly prior to the war, and there were often later additions. On his inspections, Mr Smee had noted signs of trimming on both sides of the sandstone blocks. Mr Smee accepted that the trimming was not completed to the full length of the stone and that the marks he had observed could be consistent with the use of a mattock. Mr Smee had not seen anything at the rear of No 730 Bourke Street which would indicate to him where the floorboards had been located prior to demolition. He did not look for nor observe a line above ground level below which there was no concrete render at the rear wall of No. 730 Bourke Street. He agreed that houses of this type in Redfern commonly used skirting boards, and the render with a lime component in it which was more likely to suffer damage than concrete render. It was usual for the lime render to continue behind the skirting boards to just above the floor level - the skirting covered the gap, which was usually an inch or so. That may leave a render line which is straight but with a slight variation. The finish would not be in a straight line like a ruler, but would be straight in the sense that the render would end just above the floorboard level. If skirting boards were removed, Mr Smee expected that some render would come loose and there would be some signs of damage to the render. There could also be some damage to the lime render in removing the timber boards.

83 It was normal for a builder to check the depth of footings by means of one or two localised excavations and it was not something that Mr Smee would expect to be performed by a structural engineer. In his experience, if he was to be involved in such a task, someone else would perform the digging and he would look at it at the time when work was starting. He was asked if he would put an instruction on the plan to advise the making of a spot check by excavation or a note to some like effect. Mr Smee replied:

Certainly today I would be putting such a note, and probably over the last few years that that would apply, I think putting more notes on drawings every year. If a specific note - I think certainly in hindsight I would be doing it, I can tell you that. At the time, 1998 I think it would have been a nice thing to do but I am not sure that you would see it on every drawing, no.

Mr Smee said that he had not seen many of these types of notes in a similar situation in 1998, but that more notes were being put on the company's own drawings now. In 1998, his company was beginning to implement what is called a quality assurance programme and certainly over that period more notes had been placed on plans.

84 Mr Smee accepted that observations made by Mr Taylor in relation to allowable bearing capacities were based on his assessment of the soil and sand and that was Mr Taylor's area of expertise, and Mr Smee would not cavil with the views expressed on that basis. Mr Smee accepted that the removal of soil alongside the footings of the wall had the effect of reducing the ultimate bearing capacity. He accepted that the wall rotated and collapsed rather than sank and thus there were other factors in play in addition to the ultimate bearing capacity.

85 It was accepted by Mr Smee that, where the excavation was a little lower, that would be the side of the wall likely to give first. He also accepted that where this wall was inadequately restrained for horizontal loads on the 728 Bourke Street side, any reduction in the ultimate bearing capacity would have an effect on the stability on the wall - any reduction would affect its stability.

86 Mr Smee had also assumed that the original floor level was at the same level as the new floor: he thought that would be a normal assumption and he did not know any different, and so assumed that both floors were the same level. He also assumed that the top of the formwork represented the new level of flooring when the concrete slab was poured.

87 In relation to Mr Tsougranis' structural plan, if that had been the final form for submission to Council, Mr Smee would have expected a signature or something like that on it - a little more on the plans. Mr Smee said he would not make any enquiry of the owner/builder if the level of the floor at the front of the house had been changed in order to satisfy himself of the level at the rear of the premises for the slab. He thought this was an architectural matter or dealt with at the level of the builder.

88 A proposition was put to Mr Smee that, if there was a change in the plans in relation to the front rooms with the intention of altering the floor level so to produce an even floor level throughout the building, whether it was prudent for the structural engineer, in such circumstances, to make enquiries as to where the new floor level was to be. Mr Smee stated that, once the engineer became aware of such a change, unless there was formwork in place or something else to give him an indication, "probably a question would be reasonable". Mr Smee did not think it was necessary for the structural engineer to state on the plans the assumption he made about the existing floor level. Mr Smee thought that nothing further was needed since, as originally drawn, part of the floor was still in place. It might, however, be prudent to make such a note when the drawing was changed to show the concrete at the front of the premises.

89 On the basis that the boundary between the two properties was running down the middle of the wall, Mr Smee was prepared to assume that the wall was connected and adequately joined or adequately tied. Given that the extension to the rear of No 728 had not been built at the same time as the wall, Mr Smee agreed that it would be prudent to have access to the rear of No 728 to have a look at the wall. Mr Smee agree that, while there were degrees of prudence, given the different eras when the building work had taken place in relation to this wall, it would be prudent to assume inadequacy rather than adequacy of the tie. Mr Smee said he would still suggest it was reasonable to assume that it had "some tie". It was open to the engineer to add a direction to the structural engineering plan that the wall be propped. Such notes were effectively directions to people performing the work on the site.

90 When asked what a structural engineer would do when faced with a building of the age of 730 Bourke Street and the more recent addition of the wall, assuming that it was tied, but trying to ascertain whether it was adequately tied, Mr Smee said it was very difficult to ascertain adequate tying. This involved an investigation, over some significant length of the height of the connection or the abutment, and could result in something of a "mess". On the assumption that it was not worth the effort to make a destructive investigation, and assuming that the wall was tied but not being able to establish for certain whether it was adequately tied, Mr Smee agreed that the only other thing that could be done would be to add a note to the plan to prop the wall. If there was very little excavation, Mr Smee would not expect to see such a note on the structural plans. More commonly, things were covered with a general note about maintaining stability: if anything was to be written, a more general note would appear. It was also open to speak to the architect or to the owner/builder, who would be the best source, to satisfy oneself as a structural engineer that there would not be a great deal of excavation.

91 Mr Tsougranis was a certified practising engineer who had been granted his certificate in 1979 or 1980. He nominated structural engineering as his field of engineering. In relation to his practice, he described it as being focused on residential, small scale commercial and industrial, both new and renovation work, and also providing consulting and site inspection services as requested during the course of construction. Residential work was well over 60 to 70 per cent of his total work. He lived in Bourke Street, Redfern between 1963 and 1970 and he moved his practice to Bourke Street in 1991 and had been located there ever since. He had undertaken "quite a few" projects in the Redfern/Newtown/Surry Hills area. These were renovations and new residences, conversions of industrial warehouses to townhouses, apartments or studios. His own office in Bourke Street was of similar vintage to the property at 730 Bourke Street. Mr Tsougranis had been intimately involved in the renovation of his office. He was able to nominate other properties of a similar structure to 730 Bourke Street upon which he had undertaken work and said he was familiar with these structures so as to know "what to expect".

92 In working on these types of properties, Mr Tsougranis stated that footings of sandstone blocks were to be expected in the order of 350mm. Common walls or a perimeter wall with no cavity, and slate as a damp proof course, was also expected. More often than not, there were two courses of sandstone and stone block and the depth of footings could vary between 350mm up to about 400mm - 500mm in depth. This would be the combined measurement of the two layers of sandstone. In his experience, he had found such footings to be embedded to 200mm and in places 400mm to 500mm embedment. In this area, the ground was granular and sandy but was not clay.

93 At the time of the collapse of the wall at 730 Bourke Street, Mr Tsougranis was trading under the name Luke Tsougranis and Associates and he was in partnership with his late wife. The firm had engaged, at the time, an engineer in the capacity of a structural draughtsperson. The practice was incorporated in October 2001 as Tsougranis and Partners Pty Ltd, and Mr Tsougranis was the sole director.

94 On 1 June 1998, Mr Agapiou had contacted Mr Tsougranis' office regarding a new project and left his telephone number for a return call. Mr Tsougranis did not know Mr Agapiou. Mr Tsougranis contacted Mr Agapiou the following day and arrangements were made for him to visit the premises to discuss the preparation of structural plans for the proposed works. At about 5.00 pm that day, Mr Tsougranis went to 728 Bourke Street and met Mr Agapiou. Mr Agapiou showed him a set of architectural drawings and then they proceeded next door to No 730 to inspect the site. After a discussion concerning the particulars of the job, Mr Tsougranis took a set of the drawings to study and promised to give Mr Agapiou a quote for the structural engineering drawings he was to prepare. Mr Tsougranis rang the next day, 3 June 1998, and informed Mr Agapiou that the structural details and plans would cost $800, which would include the preparation of plans and three site inspections during the construction phase in order for him to certify the end product. Mr Tsougranis said that, because the Council no longer carried out inspections on structural matters, he had to inspect the reinforcement prior to the pouring of the footings; the first floor and roof framing prior to cladding, and the completed project. Mr Tsougranis informed Mr Agapiou that there was a special form used by the Council, in two parts: in relation to the first part, after Mr Agapiou picked up the drawings, Mr Tsougranis would have to fill in that first part so Mr Agapiou could lodge the plans with Council. He told Mr Agapiou that it would take three to four weeks to draw the plans and Mr Agapiou agreed to proceed on that basis.

95 The project was then entered into the "job book" and Mr Tsougranis instructed Mr Cassimatis (the engineering draughtsman) to place the architectural floor layout into the computer. Mr Tsougranis drew some freehand sketches on an architectural plan of a typical draft slab for Mr Cassimatis to also put into the computer.

96 On 27 July 1998, Mr Cassimatis told him that Mr Agapiou had telephoned the office and was considering replacing the front timber ground floor with concrete. Mr Tsougranis telephoned Mr Agapiou and arranged to inspect the area. Mr Tsougranis and Mr Cassimatis then walked down the street to the site. The drawings were not completed prior to 27 July 1998. When Mr Tsougranis walked through the front section of the house at 730 Bourke Street, the floor boards were removed but the joists and bearers were still in place. Walking towards the back area, he recalled that, although the area was not level because of the demolition material, he got the feeling that the ground at the rear of the property was up to 100mm higher than the soil level at the front. His recollection was that the rear part, the back yard, was substantially higher than where the building was prior to demolition. He could see on the common wall with No 728 where the original floor level was, which was approximately 300mm to 400mm higher than the soil that he could see. He could see a straight line below this, 300mm to 400mm, and there was bare brickwork and no cement render. He did not search for the footing of that wall but he was "conscious" of the wall and that the top of the footing was not visible.

97 At this time, Mr Tsougranis observed that the wall that collapsed, (which he called a party wall, between Nos 728 and 730) "was all in one plane". From his experience, that indicated that the wall was a party wall and that the cross-walls or perpendicular walls from No 728 abutted against it. Standing at the back of the property looking towards the front, he could see the skillion roof of No 730 pitching towards that party wall and also a skillion roof on No 728 pitching towards No 730. From these observations, Mr Tsougranis assumed that it was a party wall because of the nature of the roof. Because the cross-walls of No 728 were abutting that party wall, he assumed that the perpendicular walls from No 728 were bonded to the wall which collapsed.

98 Mr Tsougranis' assumption about the wall being a party wall was one made by visual observation, noting where the wall stood and the nature of the roof at the rear of No 730 and No 728. He did not try to investigate whether the cross-walls were bonded into this party wall because there was no non-destructive test that he was aware of which he could conduct. The alternative was to remove render from the intersection of the two walls to see whether those walls were bonded. Even if it was discovered that there was a new type of material to the party wall and there was no bonding, it was still possible that the wall could have been tied through framing ties. If there were framing ties, there were no tests that could be performed to determine their adequacy, apart from demolishing the walls. He was not aware of any other test he could have undertaken apart from a destructive test.

99 Having observed a line along the wall below which there was no render, Mr Tsougranis assumed that the original floor level was 300mm - 400mm above the undulating sand level. There was no sign of the footings on the wall being exposed, and he concluded that he would not be interfering with the existing structure at all. At the time that Mr Tsougranis made these observations, he did not think that his structural design plans were completed: they were only in a sketch form. He had given the draft slab detail to Mr Cassimatis to draw. From his experience in this area, his expectation was that the sandstone footing would be 300mm - 500mm deep and would comprise one or two block sandstone courses.

100 Having observed that the sandstone footing could not be seen, and having regard to his design involving a 400mm deep footing, meant that there would be very little, if any, excavation below the existing level of the ground. Any excavation would not have interfered with and would be marginal to the existing footing.

101 At neither of his two visits did Mr Tsougranis have any knowledge of whether or not there had been works performed on the No 728 side of the property. He had no conversation with Mr Agapiou as to whether there had been works on the No 728 side of the property. Mr Tsougranis confirmed that he had prepared the initial sketches, and that Mr Cassimatis put them into the computer to produce the final plan. The sketches had been prepared prior to 27 July 1998 and the finalised plan was produced between 27 and 31 July 1998, after attending the site for the second time. The plans in the computer processed by Mr Cassimatis were put on disc and taken to Sydney University where they were printed out on tracing paper as a hard copy. When that was done, Mr Tsougranis looked at the printed copy, was satisfied with it and some copies were taken. He gave a copy to the builders on 31 July 1998.

102 When he prepared the structural design, Mr Tsougranis said that he did so making an assumption. He had looked at the architectural plan on which there was a reference to the proposed ground floor plan and that the front verandah level was to be raised to match the existing floor. There were no other notes anywhere on the floor plan to indicate a change in floor levels. He looked at the southern elevation which showed the ground level on the side of the house to be level with the patio at the back of the proposed works which appeared to be level with the backyard. There was a doorway leading out from the laundry through the side passageway with a step down to get to the passageway. He therefore assumed that the previous floor level he saw as a mark or line on the wall was going to be retained. In addition, Mr Tsougranis had not seen any survey pegs on the site, and he would expect to see something of that nature to indicate that there were going to be changes in levels. There was no note on the architectural drawings to suggest that the levels were to be changed at the rear of the property. There was only a note that the level was to be raised at the front of the property. In his two conversations with Mr Agapiou on 2 July 1998 and 27 July 1998, he did not mention anything about levels. From his experience, Mr Tsougranis was not aware of any physical evidence present at the site which he might expect to see to indicate that there was to be a reduction from an original floor level to a lower floor level.

103 Mr Tsougranis was able to say, by reference to a photograph, that the use of a foam expansion joint demonstrated the level of a concrete floor at the front of the house and also indicated what was the original floor level. There was an unrendered portion of the wall between the top of the foam where the cement render started, and that indicated that the proposed floor level was to be lower than the original floor level.

104 Although he did not go into any detail with Mr Agapiou about the basis of his fee, Mr Tsougranis said that the charge of $800 included three site inspections. After his second visit, Mr Tsougranis returned to the office and started finalising the drawings for the rear section. The first paper version of the final structural detail was produced on 31 July 1998. That document was then discussed on 31 July 1998 with three men who came to his office without an appointment. They introduced themselves as builders tendering for the job at 730 Bourke Street and asked a number of questions. Mr Hamilton and Mr Papaianni were two of the three but Mr Tsougranis was unable to remember the name of the third person but assumed that it was Mr Zaronias.

105 Mr Papaianni did most of the talking. He said they had come to pick up drawings at the request of Mr Agapiou so that they could price the proposed works. It was then that they were given the first paper copy from the tracing paper procured from Sydney University. They asked about the front half of the building and the use of concrete. Mr Tsougranis told them that he had not done anything in relation to the detail because there were a number of ways of executing that job and he was not sure how the builder wanted to do it.

106 There were a number of ways of pouring the concrete slab and one of the builders told Mr Tsougranis that they would discuss it and let him know. They then told him that Mr Agapiou was intending to enlarge the opening between the front two rooms: they knew the new width and were able to tell Mr Tsougranis the details. Mr Tsougranis did some calculations and told them the sizes of the beams required. Then there was a discussion of the methodology of propping the interior wall in order to install the two steel beams. This conversation was all about the front of the house.

107 Mr Tsougranis said that he was giving these details orally to the builders for the purpose of tendering. When he gave them the drawings, he said that this was the first copy to leave his office and that the plans had to be lodged with the Council by Mr Agapiou. He explained that the Council's policy was to have structural engineers perform inspections in relation to structural matters, and he was going to carry out the inspections during the construction period in order to certify that the works had been done in accordance with the drawings. After that meeting, he did not give a copy of the plans to Mr Agapiou and Mr Agapiou did not contact him. The drawings had not been completed.

108 Mr Tsougranis was asked why he altered the depth of the footings in the detail of his drawings against those proposed by the architectural drawings. He answered that the architectural drawings had shown strip footings, which were a lot deeper than for a raft slab. He said, in this type of situation, where there was to be building up against an existing wall, he always tried to minimise the depth of excavation in order to lessen any effect it might have on the existing structure. He had noted that the original floor level was somewhere between 300mm - 400mm above the soil level and he concluded that having a raft slab of 400mm overall depth would have very little effect on the existing footing. He said the general rule here would aim for a raft slab, because the footing of the existing wall protruded beyond the face of the wall. If one was to rely on a strip footing, the mere presence of that protrusion of that existing footing would either (a) prevent building a wall where it is intended, depending on how much is protruding, or (b) would require trimming the protrusion and underpinning the footing walls. The raft slab that he designed overcame the problem because he specified 400mm, where he could see that there was at least 300mm - 400mm above the soil level to the intended floor level.

109 When asked how he knew what the intended level of the floor would be, Mr Tsougranis said that was drawn from the architectural plans - they were his reference. He pointed to the architectural plans and the fact that there was a note "fill into existing ground level", which indicated there was going to be a change in floor level in the house. There was no note anywhere to indicate any change in levels at the back. There was no indication anywhere that there was going to be a change to the rear level. The significance of the note was that the draughtsperson and the owner were conscious of addressing the floor levels - it was not something that was omitted or left out - there was a clear indication on the drawing where a change in level was to take place. The importance for him was that it meant the remaining floor levels were to be retained. Mr Tsougranis took the note "fill into existing ground level" to mean that the front room was lower than the ground level: the note required the floor level to be raised to the existing ground level.

110 Mr Tsougranis had no discussions with anyone else about the topic of levels because he did not feel it was necessary. The floor plan indicated in which area there was to be a change. The discussion with Mr Papaianni and Mr Hamilton occurred on 31 July 1998. The next time he heard something about this project was on 3 September 1998, when a message was recorded in the office that Mr Hamilton had rung to book for an inspection on the following day, 4 September 1998. Mr Cassimatis had recorded that message in the book, but Mr Tsougranis did not recall who Mr Hamilton was from the 31 July 1998 meeting. Before he could attend to inspect the site, he received a telephone call from South Sydney Council informing him that there was an accident and asking him to attend the site. That was the first time Mr Tsougranis had heard that works had actually commenced on the site.

111 Mr Tsougranis attended the site and saw that the wall had collapsed. He noticed that the structure of No 728 was of recent construction and he noticed there was no bond between the cross-walls of No 728 to the party wall. This was a surprise to him.

112 Other drawings had been given to Mr Papaianni and Mr Hamilton for tendering purposes, to enable them to quote for the job. It was not uncommon, said Mr Tsougranis, for builders to come to an engineer and request copies of the engineering drawings for tendering purposes. They had mentioned the name of Mr Agapiou and they told him that Mr Agapiou had asked them to come to him to pick up the drawings. He did not verify any of this with Mr Agapiou. It was not necessary to verify these matters with Mr Agapiou because the builders knew his name, the plan was for tendering purposes, he was happy with his drawings and there was no reason why they should not have the drawings. The drawings had not yet been submitted to the Council and were still preliminary. Mr Tsougranis clarified that statement by saying that the drawings were incomplete insofar as they did not address the work that Mr Agapiou had given instructions about on 27 July 1998, namely, the concreting of the front portion of the residence. His drawings also made an assumption, which had to be verified by Mr Agapiou, because he had two steel beams supporting the first floor walls which were originally to have been over the kitchen window and he had a note saying that the window was to be relocated and that was something to be discussed with Mr Agapiou - whether he wanted that window relocated or for Mr Tsougranis to indicate another steel beam to support those two steel beams.

113 It was accepted by Mr Tsougranis that his drawings did not deal with any temporary support for the wall. The plans did not deal with this issue because his design and his detail of a slab 400mm deep and his visual inspection meant that there was going to be no interference with that existing wall. His inspection on 27 July 1998 revealed there was a wall, the party wall, that was standing. There were cross-walls that were abutting against it. It was assumed, as was normal practice, that those walls had been bonded to that party wall and, since that wall was standing, and since there was going to be no interference with the footing of that wall, he concluded there was no need for any such note or support.

114 As an engineer, Mr Tsougranis said he was conscious of the stability of the structure when designing a structural element - if it were felt that there was a need for a wall or for the structure to be braced then an engineer would make a comment, but if the scope of the works did not interfere with the wall, then no comment was made. If it is warranted because of the design, then the engineer would make comments and recommendations and designs. However, if it is only because of the way that a builder wants to do a particular thing, then it is up to the builder to design or to consult about support for a wall.

Mr Tsougranis accepted that there was some added responsibility on a structural engineer to give advice if there was an owner/builder rather than somebody who was a builder by trade, but then it was only if the scope of works warranted particular advice.

115 It was not Mr Tsougranis' practice to lodge plans he had drawn with Council. He had in the past lodged structural details with Council but not with South Sydney Council. There were occasions where, if he was on his way to his office, he would lodge the plans just to assist the owner or the builder and after having been requested to do so. He received no such request from Mr Agapiou.

116 The site was inspected by Mr Tsougranis again in October 1998, together with Mr Smee and Mr Turner from the WorkCover Authority. He made a visual inspection and noticed some fresh cuts, trimming of the sandstone footing on the party wall. He noticed that the foam, or the expansion joint, was fixed to the top of the sandstone blocks which indicated that the floor level had been lowered from its original level, by at least 300mm - 400mm.

117 In cross-examination, Mr Tsougranis said that, in his experience, terrace houses in the Redfern area mirrored each other and it was common to have additions in the rear section which were both abutting against a common wall. It was his experience that the construction of the wall and the addition on either side was built at the same time, so that the alterations on each side were bonded on the same wall.

118 On his first visit to 730 Bourke Street on 3 June 1998, he had not observed the markings on the wall as being the previous floor level - that had been observed on 27 July 1998. The sketches were prepared for Mr Cassimatis to draw after the visit on 3 June 1998. It was at this stage that his handwritten sketch showed depths and widths. Mr Tsougranis said that he had not necessarily assumed at the time he drew the sketches, that there was to be a trench type excavation. He accepted, to an extent, there could have still been an excavation. He thought the worst possible scenario for excavation at that time would have been about 290mm, but this was only a preliminary drawing and he had only come to see the site, to see what was proposed and to pick up the set of architectural drawings.

119 On 27 July 1998, he attended the site with Mr Cassimatis. On this inspection, he noticed a line along the wall in the backyard beneath which there was no concrete render. This was a fairly level line which ran just about all along the five or six metres of the wall. Mr Tsougranis did not recall whether he observed such a line on the back wall at the rear, if he had turned around and faced the building. During the visit, he had not noticed the top of the foundation sandstone.

120 After being shown a survey of Bourke Street, Mr Tsougranis accepted that the structures at No 728 and No 730 were not the common rear structures that he had referred to earlier in his evidence but, nevertheless, they were not uncommon in the area. Mr Tsougranis defined a "party wall" as a wall which entitles both parties access to and usage of that wall. It was also accepted by Mr Tsougranis that the fact that both parties were entitled to use the wall did not mean that both parties utilised the wall at the same time at the initial construction of the wall and, if a structure was consequently built near the wall where there was no structure originally, the new structure would not be bonded into the wall by way of interchanging bricks. However, Mr Tsougranis said it was to be expected that a party wall would be maintained as a stable structure. Mr Tsougranis also accepted that, in relation to terrace houses 50 years or more ago, alterations or additions were made to the rear comprising a double brick wall which was constructed in the backyard on footings and that these abutted but did not join and were not joined by interlocking brick to the existing wall in the front of the building. If, after the construction of such a wall, something was being constructed near that wall or being incorporated as part of the structure, Mr Tsougranis was of the view that there was an obligation that the cross-walls be bonded. One way of bonding was by way of interlocking bricks. There were other means of bonding, by use of framing ties or wall ties.

121 Mr Tsougranis accepted that he could have asked to go into No 728 to remove some of the render to examine the joins. The removal of some render 400mm - 500mm down the wall would allow it to be quickly established whether the building was bonded into the old wall by way of interlocking bricks. It would have also revealed whether there were newer bricks, and the type of bricks used in the structure.

122 During his inspection on 27 July 1998, Mr Tsougranis agreed that he had taken notice of the structure on the other side of the wall at No 728 because he was aware that he had produced a sketch drawing which involved the placement of a new wall immediately adjacent to the existing wall and which might involve excavation immediately adjacent to that wall. In this way, he agreed that he had turned his mind to the question of the stability of the wall by thinking about what was on the other side.

123 He accepted that he had no knowledge whether there was a cavity wall in the alterations to No 728 and had no knowledge whether there were any other internal cross-walls, but had assumed that there were: but it was "not that critical" whether they were or were not in that state. He had reached no conclusions whether the alterations to No 728 had been built at the same time as the wall or at some other time. He had not investigated the form of bonding that existed between the extension of No 728 and the wall, and he did not do so because there was no effective investigation available unless he demolished the wall.

124 He also accepted that he had, in his professional life, come across structures that had not been built to a proper standard, but there was no non-destructive test to ascertain how the wall was bonded at No 730. He agreed that, prior to 3 September 1998, he had not gone into the rear of No 728. He really did not have to investigate these matters because the plan did not result in applying any extra load to the wall and the degree of excavation, if any, was to be "very minimal" - therefore no further investigation by him was warranted.

125 He had observed that the skillion roofs at No 728 and No 730 appeared to have merged on the boundary. He observed the cross-walls at No 728 to the boundary and he assumed that they were "somehow connected". Coupled with the fact that the wall was standing at the time of his inspection without cross-walls to No 730, he had assessed the stability of the wall on such considerations.

126 The extent of excavation that was possible without affecting the stability of the wall depended on how much soil was above the top of the footing and how much of the footing would have necessarily protruded from the face of the wall. Mr Tsougranis thought that anything up to about 100mm below the top of the footing, not from the ground level, but the top of the footing, would not necessarily have been of concern. If there was to be an excavation below that point, Mr Tsougranis agreed it would have been appropriate to put a direction on his plans to prop the wall or to underpin it. Mr Tsougranis said he operated not only on the basis of the existing floor level being maintained, but also that there would be no trimming of the footings without the builder informing the engineer and seeking an instruction. He agreed that it was important that no excavation, or only minimal excavation, take place next to the walls.

127 The architectural plans were accompanied by specifications but they were not passed on to Mr Tsougranis and it was not normal for that to be done. Mr Tsougranis understood that there would be excavation because the plan used strip footing. Mr Cassimatis was a qualified civil engineer who had been employed by Mr Tsougranis for about one year. He had been used in the capacity as draughtsman and the preparation of the plans for No 730 was part of his usual draughting duties. Mr Tsougranis could not recall whether he or Mr Cassimatis had gone to the University to produce the hard copies of the plan.

128 Mr Tsougranis accepted that his assumption, that the existing floor level would be maintained, required an amount of sandy soil to be brought into the backyard. While the gap was approximately 290mm between the ground level and the bottom of the slab, it was not necessary that this was the amount of sandy soil to be brought in because the rear ground level was not even. He accepted that material had to be imported to raise the existing level but he had not calculated whether that would be 5, 9 or 15 cubic metres, but that had to be done.

129 During the course of his evidence, Mr Tsougranis was shown photographs of the site but none of them showed the line of rendering which he took to indicate the previous level of the floor. He did not see any skirting boards on the collapsed wall. It was not uncommon to have them: some houses had them and some did not. The line of render he saw did not have chunks out of it indicating that skirting boards had been removed.

130 It was accepted by Mr Tsougranis that, if the lime mortar render had finished at the floorboards, it could have been damaged when the floorboards were removed. He did not accept that, if the lime mortar had finished above the floorboards by some small distance, the lime mortar would not have been straight. He did accept that, if the render had finished above the floor boards by a small margin, it would have been covered by a strip of material to cover the gap between the floor boards and the mortar, but he would not agree that the removal of such covering would be likely to damage the render.

131 The assessment that the floor level was 300mm to 400mm above ground level was made by Mr Tsougranis on the basis that such a level would be consistent with a rear timber floor and the fact that the front portion of the building had a timber floor. The 300mm to 400mm would normally be made up of 100mm of floor joists, 100mm of bearers, although he did not see any floor structure or a void that is normal for a timber floor construction. He accepted that he took no measurements of the floor level in the front of the building.

132 As a member of the Institute of Engineers, Mr Tsougranis said that he was aware of the Institute's Code of Ethics which placed a significant emphasis on the responsibility of engineers in relation to the safety of the community: the code required issues of safety to be put above sectional interests. He agreed that, when a structural engineer provided a plan, that plan overrode the specifications that an architect might include on architectural plans. A structural engineer, he agreed, was at the top of the hierarchy of building work. He expected any note or direction put on a structural engineering plan to be followed by people who received that plan. The note on his structural plans that the first floor window was to be relocated was notice to the builders to have regard to that matter in relation to the architectural plan.

133 The telephone call record book was shown to Mr Tsougranis and he identified entries written by Mr Cassimatis. The entry for 24 July 1998 was made in red ink and was in Mr Cassimatis' writing. The next entry was for 27 July 1998 and was in Mr Cassimatis' writing. Mr Tsougranis agreed that it appeared to be written over. He said that he did not work on weekends and that the number underneath the numerals "27" appeared to be the numerals "25". The entry for 2 September 1998 was also in Mr Cassimatis' handwriting. There was only one entry on the page, but over the page there were further entries with a date written in blue ink, "3/9". The blue ink date entry was written by Mr Tsougranis. He thought he had inserted that date on 3 September 1998, or soon thereafter - it was possible that it was inserted after 3 September 1998. Mr Tsougranis denied that those entries were in fact made on 2 September 1998. He accepted that the entries, apart from the date, were not in his handwriting. Mr Tsougranis agreed that, as to the following page after the first entry, the first time he saw those entries was on 3 September 1998. Mr Tsougranis accepted that he may have written the date 3 September 1998 on the top of the page after the wall had collapsed but he was not sure when he did so.

134 Mr Tsougranis said the message received from Mr Hamilton was to make an appointment for Mr Tsougranis to inspect the footing reinforcement. Mr Tsougranis thought that he was told about the message, which is timed at 11.00 am, about 1.00 pm when he received a telephone call from the Council while he was in a meeting with a client. Having received the telephone call from the Council and having regard to its nature, he terminated the meeting, and that is when Mr Cassimatis told him that Mr Hamilton had rung for a footing inspection the next day.

135 Mr Tsougranis agreed that, when he came to view the site, he made a number of assumptions and it was clear to him that the wall was of some age and had been standing for some considerable time. His expectation was that the wall was tied with the cross-walls of No 728 and the scope of works would not have interfered with the existing state of the wall. There was no extra load applied nor digging much below the existing ground level. He agreed that he assumed the wall was tied and so did not justify any invasive work to find out if it was in fact tied. No invasive work was warranted because the plan did not require anything to be done to the wall in terms of applying any extra load nor digging much below where the footing was - the wall was not really being disturbed in any form or shape.

136 When asked whether it was just a matter of prudence to prop the wall when it was too troublesome to find out whether the wall was tied, Mr Tsougranis stated that would be done if the wall was to be disturbed. At the time of the inspection, the cross-walls of No 730 were already removed and the wall was already standing there. The plans did not call for anything to be done - they were not even touching that wall within the scope of the works that was anticipated. There was an indication that there would be very little, if any, excavation next to the wall because of where the original floor level was in relation to the soil level.

SUBMISSIONS FOR THE PROSECUTION

137 It was submitted by the prosecution that the defendant's structural drawings included the design for the footings for the concrete slab upon which the rear extension was to be built at 730 Bourke Street. The drawings indicated a depth of the footings for most areas of 400mm and a depth of a slab of 110mm.

138 Between 1 and 3 September 1998, trenches were dug for the footings for the slab. In accordance with the structural engineering plans, one of those trenches was dug immediately adjacent to the free standing walls.

139 The prosecution accepted that under s 16(1) of the Act, the elements of the offence created by the section, which were to be established to the criminal standard of proof, were as follows:

(i) that the defendant was an employer;

(ii) there were persons who were not employees of the defendant who were exposed to risks to their health and safety;

(iii) that the risk arose from the conduct of the undertaking of the defendant;

(iv) that the exposure to risk at was the defendant's place of work.

140 The evidence disclosed, so it was submitted, that the defendant was an employer. The defendant admitted that he was an employer at all relevant times, and there was evidence that Mr Cassimatis performed work in relation to the creation of the structural plan. The owner/builder, Mr Agapiou, was aware that the defendant had an "off-sider", although uncertain as to whether or not Mr Cassimatis had, in fact, attended the worksite. The defendant stated Mr Cassimatis had, in fact, attended the site.

141 It was consistent with the objects of the Act that, in the absence of a specific requirement that there be a connection between the employee of the defendant and the place of work on the day of the offence, it was appropriate that the requirement imposed on the prosecution is read as being limited to the plain words of the section, namely, that the prosecution must, and only, establish that the defendant is an employer. This element of the offence had been made out.

142 There was an abundance of evidence establishing that Mr Papaianni, Mr Hamilton, Mr Zaronias, Mr Clements and Mr Savoca were all persons who worked in the vicinity of the collapsed wall on or before 3 September 1998. None of them were employees of the defendant. The evidence demonstrated that it was clear that each of these persons was exposed to risk to their health and safety: Mr Zaronias was fatally injured in the collapse of the wall, while Mr Papaianni suffered serious injuries when the wall collapsed.

143 The occurrence of an injury was not necessary to establish an offence. In relation to the premises at 730 Bourke Street, there was a risk to the safety of the persons identified as performing work in the vicinity of the wall. Since the demolition of structures at the rear of 730 Bourke Street some time prior to 17 April 1998, the wall was in an unstable state and, with the exception of inadequate ties by way of nails protruding from an extension on the premises at 728 Bourke Street, the wall was essentially freestanding. The detriment to safety was identified as arising from the provision of structural engineering plans which instructed that work be performed immediately parallel to an unstable wall, where the work itself carried a significant risk of further destabilising the wall and where the plans did not direct that the wall be braced. In these circumstances, there was a clear potential risk to any person performing work in the vicinity of the wall. The risk was further elevated once the performance of work involved the excavation of a footing trench in accordance with the plans, directly adjacent and parallel to the collapsed wall. The evidence of Mr Smee, Mr Taylor and Mr Turner was that there were risks associated with even minimal excavation.

144 In relation to the defendant's undertaking, it was identified as being the work he performed as a structural engineer out of his offices at 676 Bourke Street, Redfern. It was in that capacity that the defendant was retained by Mr Agapiou, the owner/builder of 730 Bourke Street, to provide structural engineering work at the site. For a fee of $800, the defendant had agreed to provide the structural engineering plans and visit the site on three occasions during construction and to provide certification. On the evidence, it was the defendant alone who was to be the structural engineer and who was retained to perform structural engineering at the site.

145 The defendant acted consistently with the role of being the engaged structural engineer when visited by the builders, Mr Papaianni, Mr Hamilton and Mr Zarionas in July/August 1998. The prosecutor accepted that, although accounts of this visit and the content of the conversation during the visit differ, there was sufficient consistency to indicate that the defendant viewed himself and acted as the person retained to provide structural engineering advice in general in respect of the site, as well as being retained to provide the structural engineering plan.

146 The defendant placed this meeting as occurring on 31 July 1998, while the builders said it took place early in August 1998. Mr Hamilton said it occurred a day or two after work had commenced and Mr Papaianni stated that it occurred towards the end of one week and that work commenced the following week. It was submitted that the fact that Mr Zaronias was in attendance supports the other evidence that this meeting occurred after work had commenced. The defendant had not indicated how he knew the meeting occurred on 31 July 1998.

147 There was consistency in the evidence of the builders, in the broad sense that they all agreed that the matters discussed included the size of beams to be required in the front part of the house, support of an internal timber wall during the concrete pour and some discussion concerning certification of the plans.

148 In relation to what constituted and was encompassed by the concept of the conduct of an undertaking in s 16(1), the prosecutor relied upon the unreported judgment of Fisher CJ in Inspector Clark v W L Meinhardt and Partners Pty Ltd (unreported, Fisher CJ, 1212 and 1213 of 1990, 30 June 1992) for the proposition that, in the prosecution of an engineer under s 16(1) the conduct of the undertaking included the design of the façade retention structures, the safe retention of the façade and residual maintenance and inspection, while the place of work included every area which may be affected by the work being done, which in that case included the hoarding, the external scaffolding over the hoarding and the area of the street beneath the hoarding upon which the façade collapsed.

149 In this case, the provision of the structural plans by the defendant was done in performance of the work for which he was retained by Mr Agapiou. The defendant's evidence suggested that the plans were provided to the builders at their request in order for them to prepare, tender and/or quote for the building work and that the plans were not complete to the extent that they did not contain details in respect of the matters discussed concerning the front of the house.

150 In relation to these matters, the prosecution made the following submissions:

(i) the evidence did not support the defendant's contention that the builders sought the plans for tender purposes. It was never put to Mr Agapiou that he was tendering out the work, nor was it suggested to Mr Agapiou that anyone other than Mr Papaianni and Mr Hamilton were to perform the building work. This position was consistent with other evidence that Mr Agapiou engaged people on the basis of word of mouth recommendations or references. The workers were not cross-examined as to starting at a later date nor were they cross-examined to explore specifically the work that they had performed prior to 3 September 1998. The evidence of the builders and Mr Agapiou was that the quote for the building work had been provided to Mr Agapiou prior to the meeting between the builders and the defendant at his offices;

(ii) while there was some uncertainty about the provision of the plans to Mr Agapiou, it was submitted that that uncertainty resulted from "recall difficulties" from the lapse of time rather than being due to any real inconsistency. Both Mr Papaianni and Mr Hamilton gave evidence that they had obtained the plans from Mr Agapiou prior to attending the meeting with the defendant;

(iii) if it was accepted that the defendant did provide the builders with the plans on 31 July 1998, it was still possible for the builders to have already prepared a sufficiently accurate quote on the basis of the specifications and the architectural plans;

(iv) if it was accepted that the engineering plans were provided to the builders for tendering purposes (which the prosecution did not accept), the failure of the defendant to mark the plans for tender only or to indicate in any way that they were not to be used for building purposes results in the point being moot;

(v) the reason the defendant would not have marked the plans as suggested above is because, on his own evidence, insofar as the plans contained details concerning footings for the rear extension, including the wall adjacent to the collapsed wall, his clear evidence was that the drawings were in every way complete for that work. The evidence was summarised as follows:

(a) the defendant did not consider the stability of the collapsed wall after 27 July 1998 because he formed the view that at that time no or minimal excavation was necessary in relation to the footings to be excavated parallel to the collapsed wall;

(b) the defendant did and does not accept that minimal excavation could affect the stability of the wall;

(c) the reason the defendant believed that no or minimal excavation would be necessary was because of his assumption as to the final floor level. That assumption was based on an alleged observation of a line running along the collapsed wall (above which was concrete render and below which were bricks) which he assumed represented the previous floor level, which he assumed would be the new floor level;

(d) notwithstanding the importance of that assumption, the defendant did not indicate on the plans the assumptions as to the new floor level which would underpin the conclusion regarding excavation. Further, the defendant took no actual measurements in relation to the existing floor levels in the front of the house where the joists, although not the floorboards, were still in place. Nor did he measure the alleged line on the wall, but rather estimated that the line was approximately 300mm to 400mm above ground level, and represented the place where the floor boards had been;

(e) the defendant thus assumed that the new floor level was intended to be the same as the previous floor level. He did not discuss the floor level with any person;

(f) although five of the witnesses could have given evidence about the wall prior to its collapse, only one, Mr Hamilton, was remotely cross-examined about it. He did not notice any such line. Mr Agapiou, Mr Papaianni, Mr Clements and Mr Savoca were never asked about the line, nor were Mr Taylor or Mr Smee. The photographs of the wall produced in evidence did not disclose such a mark;

(g) nor did the defendant identify what further advice would be required from him if excavation were more than minimal or if the floor level was to be anything other than that assumed by him.

151 It was submitted that it was part of the engineer's undertaking to have regard to the stability of the existing walls (including examining the footings) in circumstances where the work to be performed in the vicinity of such walls put the persons performing that work at risk if such walls were in fact unstable. The defendant asserted that it was not possible to assess the stability of the wall without undertaking destructive tests. The prosecutor, however, submitted that this proposition was untenable for the following reasons:

(i) the defendant did not ask to inspect the premises at 728 Bourke Street nor did he in fact inspect the premises at 728 Bourke Street. Accordingly, at the time, he was unaware of the extent to which investigations would be "destructive" as he simply had no actual knowledge of how the extension of No 728 was joined at No 730;

(ii) although he claimed to have observed No 728 on many occasions, it was clear from the photograph in Mr Smee's report that the perspective, alleged by the defendant as being all-revealing, in fact revealed nothing of the roof line and its apparent joinder to No 730;

(iii) as an inspection would have immediately revealed the extension at No 728 was not built contemporaneously with the collapsed wall, and had the defendant made those enquiries, at the very least, he would have been on notice that the collapsed wall was bonded to 728 Bourke Street only to the extent that the extension in the 1980s had caused it to be so joined. He certainly would not have been able to presume that the extension at 728 Bourke Street was a fully interlocking, simultaneously built extension comparable to the one that had been removed from the rear of No 730.

152 Beyond assuming that the wall was a party wall and bonded to an extension on No 728 in a mirror image type building, it was submitted by the prosecutor that the defendant, in fact, had not turned his mind to the stability of the collapsed wall. The defendant's explanation that, because of the assumed floor level no or minimal excavation would be involved, was not credible. Overall, the defendant's evidence was said to be marred by inconsistencies and self-serving statements unsupported and even contradicted by other evidence. Mr Agapiou's evidence was that the arrangement he had made with the defendant encompassed the defendant performing all the necessary structural engineering work in respect of the site at 730 Bourke Street. Mr Agapiou recalled that the defendant had indicated that the price of $800 included preparation of design, three site inspections and certification of the work for the local Council.

153 There was no evidence suggesting that Mr Agapiou was told or made aware by the defendant of any limitations to the retainer. Mr Agapiou was not directly advised by the defendant of any steps he had to undertake. The defendant indicated that, when the plans were provided to the builders, there was an intention that they would be passed on to Mr Agapiou for Mr Agapiou to take steps to lodge them with the Council. Neither the builders nor Mr Agapiou gave any evidence to the effect that the builders were aware of that situation, nor that they did, indeed, pass the plans to Mr Agapiou.

154 It was submitted that the issue of whether or not the plans were provided to the local Council was irrelevant to the prosecution. It was never suggested to Mr McIntyre, the witness from South Sydney Council, that, if the plans had been submitted, the Council would have done anything other than certify the plans provided.

155 Once the prosecution had established that a particular occurrence or event fell within the meaning of a person's "undertaking", the next question was whether there had been sufficient precautions taken in terms of the Act to avoid the risk. It was submitted that it was clear from the evidence that the builders used the defendant's plans in order to place and excavate the footings for the concrete slab in the rear yard. It was also clear the plans did not contain a direction to brace the walls, even though it would have been prudent for such a direction to be included.

156 By reference to the summons, the prosecutor submitted that it had established the relevant failures: the failure to include a notation on the structural engineering plan directing the wall to be braced; also, that the plan contained directions concerning the construction in the rear of No 730, which directions put the builders and other persons at risk because the work was being performed in the vicinity of the wall and also, in fact, increased the instability of the wall as the work involved excavations alongside the wall.

157 Next, the prosecutor turned to the issue of whether the exposure to the risk occurred at the defendant's place of work. It was noted that "place of work" was defined in s 4 of the Act to mean "premises or any other place, where persons worked". The decision in Meinhardt was relied upon for the proposition that the place of work includes every area which may be affected by the work being done. Similarly, the judgment of the Full Court in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 was relied upon for the proposition that a broad construction of the term "place of work" in s 16(1) of the Act was proper.

158 In this particular case, the defendant had visited the site twice, was consulted by the builders on engineering work in general, had supplied plans that were final insofar as the rear extension was concerned and that around the time of the wall collapse, had received a message arranging for an inspection of the steelwork on the site. Under the verbal retainer from Mr Agapiou, the defendant was the engineer on site and made himself available for that purpose. In those circumstances, it was submitted, the construction site at No 730 was the defendant's place of work for the purposes of s 16 of the Act.

159 All the elements of the prosecution brought pursuant to s 16 had thus been made out to the requisite level of proof. No defence had been made out under s 53 of the Act. Possible defences inferred from the defendant's evidence were identified as including:

(i) that it was not possible to examine the nature of the bonding or tying between the structure on No 728 and the collapsed wall without undertaking destructive tests;

(ii) that the plans were provided to the builders for the purpose of the builders to either tender for the work or provide a quote for the work;

(iii) that the plans still required certification by Council;

(iv) that the defendant did not know that the work had commenced on site.

160 In relation to these matters, the prosecutor noted that none of them would have prevented the defendant from putting a direction on the plan to brace the wall in view of the fact that the defendant was unable to ascertain positively that the wall was otherwise secure. In relation to these defences, the prosecutor made the following submissions:

(i) none of Mr Hamilton, Mr Papaianni or Mr Agapiou were of the view that the quote had been provided after 31 July 1998. Indeed, Mr Hamilton's evidence was that the visit to the engineer occurred after work had commenced;

(ii) none of Mr Agapiou, Mr Papaianni or Mr Hamilton were cross-examined about the nature of the work performed between the commencement of the work and the date the wall collapsed, notwithstanding that that part of the defendant's case seemed to depend upon the delay in work between 31 July 1998 and the date of the wall collapse;

(iii) Mr Papaianni's evidence in respect of the disbursement of the funds from Mr Agapiou was consistent with there having been a number of weeks' work performed prior to the wall collapsing. Overall, the evidence of the witnesses was to be preferred in relation to the question of the defendant's knowledge of the commencement of the work;

(iv) there was no evidence that a certification process by Council would have affected the plans as they were produced. In the absence of a direction or description of the plan as a "draft", neither the certification nor the commencement of work affected the issue;

(v) more importantly, the defendant's evidence was that, in relation to the footings for the slab in the rear yard, those parts of the plans were completed to finalisation.

(vi) to the extent that the defendant provided information concerning the beam size in the front room and the method of conducting the concrete pour in the front part of the house, the information conveyed verbally was sufficient for the builders to perform their work. There was no cross-examination of the builders about conversations with Mr Agapiou concerning the decision as to how to perform the pour in the front of the house. Mr Papaianni's evidence was that the engineering details on the plan and the information provided was all straightforward. It should also be noted that, in relation to the issue of the quotation, the specifications accompanying the architectural plans had been provided to the builders and provided sufficient information;

(vii) while it was true that the builders were under a separate obligation to identify the wall as a hazard and to brace the wall, and also that the Council's specifications made reference to bracing structures as required, the evidence was consistent that the engineer's directions are the final source of authority and override the architectural plan and the specification. To that extent, where an issue in respect of bracing a wall arises (as it did in this case), then the failure of the engineer to place a direction on the plans was a relevant failure that was not mitigated by the failures of other players on the question of liability.

161 The defendant's evidence as to the difficulty of assessing the stability of the wall by entering 728 Bourke Street was reduced to irrelevance by the defendant's explanation as to why he did not further consider the stability of the wall - namely, that the excavation work was only going to be minimal or non-existent. The defendant had made a deliberate decision not to consider the stability of the wall further because of his belief the work would not affect the stability of the wall. Even so, the prosecutor submitted that the investigation of 728 Bourke Street would have had the important effect of distinguishing, in the defendant's mind, between an extension contemporaneously built with the collapsed wall (which, of its nature, was likely to be bonded into the wall) and a newer structure which, in fact, existed. The failure to investigate by going into No 728, where there had clearly been extensive demolition of a pre-existing and previously incorporated structure at 730 Bourke Street, left the defendant with no information upon which he could properly base his assumption concerning the integration of the collapsed wall with the structures at 728 Bourke Street. Further, the defendant's observations in respect of the extension at 728 Bourke Street should have indicated a new extension, as it showed a skillion roof covering the entire property, whereas the original rear extensions were consistent in incorporating a light well and did not extend across the entire back yard.

SUBMISSIONS FOR THE DEFENDANT

162 It was submitted that the prosecutor had failed to establish that any risk to which persons not in the employ of the defendant were exposed arose from the conduct of the defendant's undertaking. It was submitted, to the extent that those persons were exposed to a risk, that risk arose from the conduct of others. The prosecutor had failed to prove the causative link between the conduct of the defendant's undertaking and the relevant risks.

163 It was submitted that the defendant's undertaking required him to prepare a structural detail for a footing on the basis of architectural plans which had been provided to him. Those plans instructed the engineer as to the nature of the relevant development. The obligation of the defendant was to prepare a structural detail for a footing which would be apt for that development. The only change in levels indicated on the architectural plans was the raising of the front room of the house, where no structural detail was required. The defendant prepared the requisite detail for the extension. The detail contemplated the adoption of a raft slab, comprising a 110mm slab and a 290mm footing protruding beneath that slab at its perimeter. Such a slab design was suitable and appropriate because it would not require any interference with the adjacent party wall, and either no excavation or minimal excavation beside that wall.

164 The risk arose from the conduct of the builders lowering the floor level for the extension. Such a reduction in floor levels was not contemplated by the architectural drawings, being the only instructions which had been given to the defendant regarding the scope of works. In the circumstances, any risk said to have arisen arose as a consequence of the intervening conduct of the builders in lowering the floor level of the rear of the premises.

165 The prosecutor had not contended for a different interpretation of the architectural plan. The prosecutor had not tendered any evidence as to the effect of the agreement between Mr Agapiou and the defendant contemplating a reduction in level for the rear of the property. For some reason, which was not clear from the evidence, a decision was taken by either the builders or Mr Agapiou to lower the floor level for the new extension without consulting the defendant.

166 The evidence of Mr Agapiou was criticised as lacking detail. His evidence was said to be vague and constantly lacking in recollection. During the course of cross-examination and re-examination, the memory of Mr Agapiou was otherwise exhausted.

167 It was significant that the defendant, as a witness, had a clear and detailed recollection in respect of many aspects of the events which led up to the accident, including the terms of his retainer. The plans he was given by Mr Agapiou to enable him to prepare the structural detail indicated that there would be no reduction in the floor levels from those which obtained prior to the demolition of the wall. The defendant prepared his structural detail on the basis of those plans and did not otherwise have any conversation with Mr Agapiou regarding any reduction in the floor levels.

168 It was said that the defendant gave compelling and detailed testimony of his recollection regarding the level which obtained at the rear of the property. He recalled seeing what was plainly the previous floor level of the rear of the property marked on the party wall as a render line. He recalled seeing that line at or about 300mm to 400mm above ground level, and recalled the fact that the top of the sandstone footing of the party wall was not evident. In those circumstances, the design which was adopted by him would, at most, have required an excavation to a depth of 100mm adjacent to the party wall. On no account would it have required an excavation of at least 400mm below ground level. Whilst the defendant's recollection was tested under cross-examination, no evidence was tendered by the prosecutor which proved that the floor level which had previously obtained at the rear of the premises was other than as the defendant had described. Neither Mr Turner nor Mr Carmody undertook any analysis to determine whether there had been any reduction in ground levels or floor levels.

169 The risk to safety did not arise as a consequence of the requirement that work be undertaken adjacent to the party wall. The wall had remained standing, without any additional support, for a period of at least six months prior to the collapse. As a consequence, the wall itself did not pose a risk unless there was some need to destabilise the wall. The design produced by the defendant did not require any destabilisation of the wall.

170 Both Mr Taylor and Mr Smee gave expert evidence as to the bearing capacity and stability of the party wall and the impact of excavation next to that wall. Mr Taylor, in his report, undertook some calculations which were later the subject of revision. It was submitted that Mr Taylor's evidence was, at times, confusing and inconsistent. On the contrary, Mr Smee gave his evidence in a clear and concise manner. He expressed the view that, with a confinement of about 150mm, the sand surrounding the party wall would have safely retained the wall. The works directed by the defendant as a consequence of the issue of his structural detail did not require any interference with the wall so as to destabilise that wall. At most, an excavation trench of 100mm in depth was required, leaving an embedment of approximately 300mm for the party wall.

171 Mr Turner, giving evidence for the prosecution, frankly conceded under cross-examination that the over excavation of the footing trench was a large contributing factor to the collapse of the wall. He conceded that the collapsed wall had all the indicia of a party wall and that, in those circumstances, one would expect bonding in the form of framing ties between the extension on No 728 and the collapsed wall. He agreed that it would not have been possible to see whether that extension was properly bonded without undertaking a destructive investigation. He also agreed that the wall was able to remain standing for six months, withstanding the elements and without any additional support. Thus, the risk to safety therefore arose from the prospect of destabilisation of the wall. However, the defendant's detail did not require, or contemplate, any destabilising activity. The risk to safety, thus, did not arise from the conduct of the defendant's undertaking.

172 It was not part of the defendant's undertaking to provide warnings as to the stability of the party wall, as the defendant's undertaking did not require or contemplate any works which might impact upon that wall. The defendant was not retained to advise generally on structural engineering matters in respect of the project. He was retained, and it was his undertaking, to design the structural footings which he designed and, consequently, to undertake inspections for the purpose of certification for a fee of $800. The payment of a fee of $800 was not consistent with the existence of a general retainer to advise in respect of the project. Given that the design of the structural footing would not impact upon the party wall or its stability, the assessment of the party wall and the provision of warnings regarding its bracing did not form part of the defendant's undertaking.

173 It was not part of the defendant's undertaking to investigate the depth of the footing of the party wall, as the works directed by the defendant could never have required an excavation which revealed more than a nominal percentage of that footing. Such an investigation would have revealed nothing more than that which was anticipated, and has subsequently been proved to be the case, as to the depth of the footing.

174 It was submitted that, for all of these reasons, the prosecution under s 16 must fail. If the elements of the alleged offence were found to be made out, then the defendant submitted a defence had been established pursuant to the provisions of s 53 of the Act. The defendant cited the judgment of Hill J in WorkCover Authority (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 and the following extract:

(i) If the happening of an event is not reasonably foreseeable, it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight.

The defendant submitted that the question posed was: "Was it reasonably foreseeable at the time that the party wall was in danger of collapse?"

175 It was noted that Mr Turner conceded that it was reasonable for the defendant to assume that the party wall was bonded to the extension to No 728, given the fact that it had stood unsupported for several months, and that only destructive tests could have revealed the absence of bonding. The evidence of the defendant as to his experience in the area regarding properties similar to the subject property confirmed the proposition that it would not have been reasonably foreseeable that the party wall would be a freestanding wall. It was certainly the case that hindsight had shown that the wall was not properly bonded. However, the absence of bonding is something which the ordinary prudent engineer would not have reasonably foreseen. The mere fact that the occurring of an event is possible does not mean that it is reasonably foreseeable.

176 Nor would it have been reasonably foreseeable that the footing for the party wall had been undermined on the No 728 side of the wall. No observation or investigation would have given any indication of that fact. It would not have been reasonably foreseeable that, contrary to the directions contained in the architectural plans, the Council building approval documents, the specification and reasonable prudent building practice, the builders would reduce the levels at the rear of the property and over-excavate the trench adjacent to the party wall without first consulting the engineer.

177 Each of the above occurrences and factors, it was submitted, must have been reasonably foreseeable to enable the defendant to have taken steps to overcome those occurrences and factors. Unless each of these matters was reasonably foreseeable, the defendant was obliged to do nothing more than he did. It was not reasonably practicable to do anything which could not be reasonably foreseen.

178 The defendant accepted that it would have been possible to insert a simple note on the defendant's structural details. However, the boundaries of the defendant's obligations in such a case must be examined by reference to what is reasonable and what is not. It would be possible to contemplate an infinite variety of events, in respect of which a note might be framed, warning as to the potential risk of such events. It is possible to imagine a situation where a builder, in consultation with an owner, erected a three storey building following the preparation of a structural detail for a single storey footing. While such an event may be foreseeable, it would not be reasonably foreseeable. The question is whether and, if so, to what extent, the insertion of notes on the defendant's drawing was reasonably practicable. The defendant submitted that the insertion of a warning would only be reasonably practicable where the event to which the warning is directed is reasonably foreseeable.

179 In the present case, it was not reasonably practicable for the defendant to do more than he did, as the collocation of events which transpired were not reasonably foreseeable.

DELIBERATION

180 The offence under s 16(1) of the Act, in essence, alleged that, in the provision of structural details, the defendant had not investigated the depth of the base or structural integrity of the footings of the wall; had not made a detailed assessment of the structural integrity of the wall itself; and had not provided any requirement in his design to provide appropriate temporary support for the wall. As can be seen from the way in which the case was conducted, the defendant has focused substantially upon the accident and has attempted to identify others, including the builders and the owner/builder, Mr Agapiou, as bearing responsibility for the collapse of the wall. Bearing in mind the terms of the charge, this focus by the defendant failed to address the essence of the offence alleged. In WorkCover Authority of New South Wales (Inspector Hannon) v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246, at [12] Hungerford J said:

I have to say, as will become apparent from my reasoning, that I have found the bulk of the expert evidence, principally that given during cross-examination and which required so much hearing time, was of little assistance in furthering a determination on the subject charges. Effectively, that evidence was directed to the causa causans as the immediate reason for the explosion itself rather than what I see to be the relevant approach here as requiring attention to the causa sine qua non as the mix of existing factors but for which the direct cause could not have become operative and so the explosion would not have occurred. In other words, it seems to me, the bulk of attention focused on the accident per se instead on the identified detriments to safety which were the subject of the two charges. It is true, as Mr Simpkins said, that it is necessary for a causal relationship to be established linking the defendant to the safety detriments in order for the charges to be made out, but, in my view of the expert evidence, it was taken to extreme and unnecessary lengths coming down, it may be said, to an academic review of applied scientific theory.

181 It was pointed out by Hungerford J that, in State Rail Authority (NSW) v Dawson (1990) 37 IR 110, it was necessary that a causal nexus be shown between a breach and the fact of detriment to safety. The Court went on to remark as follows:

Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, without more, does not establish any liability in the employer; and that is so unless some causal nexus is established between the breach of statutory duty and the detriment occasioned to the employee.

His Honour then referred to the judgment of the Full Court in Haynes v C.I. & D. Manufacturing Pty Ltd (1994) 60 IR 149, and the discussion of the breadth of liability created by s 15, s 16 and s 17 of the Occupational Health and Safety Act, noting the view expressed that the trial Judge had emphasised too much the accident itself as the relevant detriment to safety. The Full Court stated (at 157):

Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose '(t)o secure the health, safety and welfare of persons at work' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Division 1 of Part 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident.

Hungerford J went on to state:

16. A Full Bench (Wright J, President and Walton J, Vice-President and with whom Peterson J agreed) of the Court in Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 453 adopted as a correct statement of law and principle in relation to s 15 the reasoning as above stated in McMartin, Dawson and Haynes. In doing so, their Honours added (at 453) 'the observation that an offence under s 15(1) is constituted by the failure to ensure that employees are not exposed to risk, rather than the failure to prevent a particular accident.

In referring to Haynes, their Honours directly put the position in the following way (at 452):

The general duties created by the OH&S Act are directed at obviating 'risks' to the health, safety and welfare of persons in the workplace ... The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

17. To similar effect, in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 a person was electrocuted while cleaning kitchen equipment and his Honour said as to the causal nexus with the relevant detriment to safety the subject of the charges (at 439-430):

Section 17, like ss 15 and 16, requires that the liability of the employer be established by an examination as to whether there is a causal nexus between the breach of statutory duty and the detriment occasioned to the employer and not, as appears to be at least implicit in the defendant's submissions, by attention being given to the relationship between the conduct of the defendants and the actual accident or hazard that caused the fatality ... the break in time between the movement of the grill and the cleaning operations and electrocution does not break the causal nexus in relation to the event. The detriment to safety was occasioned by the failure to ensure that disconnection of power before the cleaning operation commenced or steps necessary to be taken in preparation thereof.

18. Having in mind the defendant's approach in the present case by arguing the lack of a causal connection by reference to the incident affecting Mr Newton, that is the explosion (or fireball), I think it both timely and appropriate to refer to what I see to be the rationale for the approach to the vice to which s 15, and hence s 16, of the Occupational Health and Safety Act is directed. That was done by me in Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50 and I repeat it as follows:

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 15(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 Ltd v Braistina (1986) 160 CLR 301 at 309: 'Insofar 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'.

It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179:

The commanding principle in the construction of a statute passed to remedy evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable.

Again, and to similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22:

In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit.

182 More recently, Walton J, Vice-President in WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIRComm 325 at [43] has succinctly stated the position in the following way:

It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident.

183 It seems to me that the views expressed in these passages are apposite in dealing with the present case against the defendant.

In applying this approach, one matter seems uncontroversial in light of the evidence called by both parties: that is, that this freestanding wall was unstable if there was to be any significant excavation along the footings. In these circumstances, the question arises as to what was the obligation of the defendant under the Act, as the structural engineer who was providing the relevant plans for the builders and the owner/builder and who stood, as he conceded, at the top of the hierarchy of those involved in the building work. Although some attention was paid in the evidence to what might reasonably be expected of a professional engineer in the circumstances of the defendant, the focus of such evidence tends to distract attention from the substance of the enquiry, namely, whether the defendant had ensured the health and safety of those who were not his employees working at this building site. Mr Smee, a very experienced engineer who was called to give expert evidence on behalf of the defendant, accepted that in recent times a lot more notes were being placed on structural engineering plans than might previously have been the case. While Mr Smee thought this was not necessarily so in 1998, but was certainly so in the years since, his evidence was a recognition that what may have been previously acceptable, in a professional sense, has been altered by the absolute nature of the offences created by the Occupational Health and Safety Act. Evidence of what may be acceptable professional or business practice may not always be sufficient to establish compliance with the duties and obligations imposed by the Act.

184 To answer the question which is posed in the circumstances of this alleged breach, it is necessary to consider a deal of the evidence in light of various denials by the defendant. The essence of the defendant's case appears to be that he had only been to the site twice, had little contact with Mr Agapiou as the owner/builder and had spoken to the builders only in the context that he understood them to be in the process of tendering for the job. It seems critical to the defendant's case that his structural plans were not completed, had not been submitted by the owner/builder to Council and that he was unaware that the building work had commenced especially at 3 September 1998 when the wall collapsed.

185 The most confusing aspect of the evidence is, precisely what plans were in the hands of the builders prior to meeting Mr Tsougranis at his office apparently on 31 July 1998, and precisely what was discussed at that meeting.

The thrust of Mr Tsougranis' evidence is that the plans had been reduced to hard copy form just prior to meeting with the builders on 31 July 1998, but that he had not sent them to Mr Agapiou. Mr Agapiou said that he had not received those plans until after 3 September 1998. However, Mr Papaianni stated that he had the structural plans at the time of the meeting with Mr Tsougranis in his office and that was what the meeting was all about, namely, to clarify the structural details. He denied collecting the structural plans from Mr Tsougranis and stated that he had received them from Mr Agapiou just before the quote was finalised. He took the structural plans to the meeting with Mr Tsougranis because he wanted to speak to the engineer about them.

186 Mr Hamilton said that the quote was prepared in early July 1998 and he was given the structural plans to formulate the quote although he could not remember when he received them but they were given to him by Mr Agapiou. He had both the architectural and structural plans prior to the quote being submitted. Mr Hamilton did say, however, that at the meeting the detail of the structural plans was not discussed and they talked mainly about the work which was inside the house. Mr Tsougranis had told them that, as the structural engineer, he was in control, not Council, regarding the detail of the plans and inspections.

187 In cross-examination, he was not particularly certain of what plans were discussed at the meeting but said that Mr Papaianni had a copy of the structural drawings, but then agreed that it was possible that Mr Tsougranis had given Mr Papaianni the structural drawings at the meeting. Later in evidence he said they had discussed "the whole situation". Observing Mr Hamilton as he gave this evidence, it was my impression that, while he was willing to accept the possibility that Mr Tsougranis gave Mr Papaianni the structural plans at the meeting, he actually believed that the plans had been provided to the builders prior to that meeting. Significantly, Mr Hamilton denied that Mr Tsougranis had said, while handing over the plans, that they had not been lodged with the Council, that Mr Agapiou needed to pick them up to lodge them and that these were the first plans to leave his office. Mr Hamilton thus rejected significant aspects of Mr Tsougranis' evidence.

188 Mr Agapiou's evidence was that the builders had told him that they had made an appointment with the engineer in relation to the engineering works. Further, it was part of the deal that Mr Tsougranis would lodge the plans with Council. This evidence appears to be consistent with the builders having the structural plans before that meeting.

189 It was Mr Tsougranis' evidence that Mr Papaianni said to him that he had come to pick up the drawings at the request of Mr Agapiou so he could price the works. Each aspect of that evidence is denied by Mr Papaianni and Mr Hamilton and otherwise does not seem supported by the evidence of Mr Agapiou. On his version, the builders had come to pick up the structural drawings for Mr Agapiou so they could quote on the job and he had given them a hard copy of the structural plans but did not check or verify with Mr Agapiou that they were builders from whom he had sought a quote. He did not think being approached in this way was unusual in any event because they were only preliminary drawings. It became evident in later evidence that the drawings were not "preliminary" in relation to the footings and that they were, in that regard, complete as to technical detail. It is also a strange omission that Mr Tsougranis, having given hard copy plans to the builders, did not give them a copy to pass on to Mr Agapiou so that he could lodge them with the Council consistently with his expectations. That suggests that Mr Agapiou and the builders did already have the structural plans in their possession, at least just prior to the meeting in Mr Tsougranis' office.

190 In relation to Mr Tsougranis' knowledge of whether the job had started or not, Mr Papaianni said that he had told Mr Tsougranis at the meeting in his office that the job had commenced or was just about to commence. In addition, Mr Papaianni said that he had told Mr Agapiou to contact the engineer for the inspection of the steel work. Mr Hamilton's memory was that the job had actually started in August 1998 and that the work at the site had commenced one or two days before the builders met with Mr Tsougranis. Mr Agapiou said that he had not informed Mr Tsougranis that the work had commenced or that he had engaged builders or received a quote. He had the builders' quote before they told him they were going to see Mr Tsougranis to discuss the plans. He said that, prior to the accident, the builders had told him that Mr Tsougranis was coming to check the steel works on the site. Mr Agapiou had left it to the builders to contact the engineer. Mr Agapiou said that he had not told Mr Tsougranis that the works had commenced because the builders had spoken to Mr Tsougranis and in that way he would know what was happening on site.

191 The builders had commenced work at the beginning of August 1998. Mr Tsougranis said that he had received a call from Mr Agapiou on 27 July 1998 about using a concrete slab in the front of the house and that he had attended the site that afternoon. The telephone call register book recorded such a message being received from Mr Agapiou. The telephone register book also recorded at 11.00 am on 3 September 1998 (the day of the accident) that Mr Hamilton had telephoned, leaving his mobile number with the further notation, "Bourke Street 2.00 pm inspection tomorrow". This entry was in the handwriting of Mr Cassimatis. There was some suggestion in the cross-examination that this call was not taken on 3 September 1998 but may have been taken the day before. The call register book indicates calls taken on 1 September 1998 and an altered entry suggesting that no calls were taken on 2 September 1998 (wrongly carrying the figure "8" indicating the month of August 1998): the alteration seems to be from the number "2" to the number "3". These two entries are in red ink, as a number of the entries are on that page of the book in relation to the date. At least two other dates on that page have been altered. The very next page carries the date "3/9" but is not an entry in red ink. It was Mr Tsougranis' evidence that he had put that date in the book and that it was probably done after the accident. If the previous entry was correct as being 3 September 1998, being an entry on the previous page, that first entry for that day records a telephone conversation which was received at 10.30, whereas on the following page, and allegedly on the same date, the first entry is for a telephone call received at 9.15 am, a second telephone call at 10.20 am and a third telephone call received at 10.35 am. The fourth telephone call received that day was at 11.00 am from Mr Hamilton. The remaining entries in the telephone message register indicated that, as one would expect, the times of calls received are noted in a strict time order. The alterations to the dates in the book and the evidence of Mr Tsougranis that he actually inserted the date "3/9" sometime after the accident creates a doubt as to the accuracy of these dates in the telephone message book.

192 There is a distinct possibility that the message from Mr Hamilton was received on 2 September 1998 making an appointment for an inspection of the steel work on site the following day, being 3 September 1998. That approach certainly fits in with the state of the work on site at 730 Bourke Street, as by 3 September 1998 final trimming was taking place and formwork had been laid. The general thrust of the evidence was that the concrete footings were to be poured that day. Mr Tsougranis said that he was to inspect the reinforcement prior to the pouring of the footings: the note in his telephone book, "Bourke Street 2 pm inspection tomorrow" he understood was to inspect the footing reinforcement. It appears therefore that Mr Tsougranis was aware that this note related to the work at 730 Bourke Street. In the light of these matters, it is difficult to accept Mr Tsougranis' evidence that when he was told of the inspection he could not recall Mr Hamilton.

193 It will be remembered that Mr Papaianni stated that he had telephoned to make an appointment later that day to see Mr Tsougranis about details on the plans and to get size specifications for steel beams that were to be incorporated in the structure. Mr Tsougranis indicated that the builders had arrived without an appointment and there is nothing recorded in his telephone message book concerning this meeting. That may not be unusual if Mr Papaianni had called while he was at the site (a short distance away) and it was convenient for Mr Tsougranis to see him shortly thereafter. What is of some significance is that, on 27 July 1998, the message record book contains a notation that Mr Agapiou had telephoned wanting to use a concrete slab in the front of the building. According to Mr Tsougranis' evidence, he and Mr Cassimatis attended the site the same day. It was Mr Tsougranis' evidence that, four days later on 31 July 1998, the builders had attended at his office. It seems extraordinary that, on 27 July 1998, Mr Tsougranis would not have been informed that builders had been engaged and that work had either started or was about to start. Mr Agapiou's message requiring a discussion about using a concrete slab at the front of the building might also have been an indication that the building work was soon to commence if it had not already commenced. Indeed, Mr Tsougranis attended on the same day he received that telephone call. Mr Agapiou did not have a good recall of these events and was somewhat vague in his evidence.

194 Mr Tsougranis then commenced work on the final plan, according to his evidence, and it was ready at least by 31 July 1998, which is the date upon which Mr Tsougranis suggested the builders attended at his office to discuss the plans and the specifications of steel beams. This time frame suggests a need for prompt attention to the finalisation of the plans. Even if Mr Tsougranis' account (which is strongly rejected by the builders) is accepted, that the builders told him they were there simply to quote, combined with Mr Agapiou's telephone message a few days before, surely these events suggested to Mr Tsougranis that the building work could not be far off commencement date. Mr Tsougranis, on his evidence, made no enquiry of the builders as to when they might start if their tender was successful, nor did he suggest to them that they could not start on the structural work under his plan until it was approved by Council. These factors tend to tell against Mr Tsougranis' version of events. That view finds some support in Mr Agapiou's evidence that he did not inform Mr Tsougranis that the work had commenced because the builders had already spoken to Mr Tsougranis and he would thereby know what was happening on site. This evidence of Mr Agapiou suggests that, at the time of the meeting between the builders and Mr Tsougranis, the work was about to commence, if it had not already commenced.

195 According to Mr Tsougranis' evidence, he had attended the site on 27 July 1998 and had produced his drawings in hard copy form so that they were available on 31 July 1998 when he met the builders in his office. Mr Tsougranis was not able to say why it was 31 July 1998 that this meeting took place with the builders and there is no record of an appointment in the telephone record book and the evidence of the witnesses was general in placing this event at the end of July 1998 or the beginning of August 1998 and around about the time the work commenced on the site. What is of interest is that once these plans were finalised as Mr Tsougranis says by 31 July 1998, why did he not contact Mr Agapiou and tell him to pick them up for lodging with Council? It was his evidence that he had to fill in part of the application form for Mr Agapiou to lodge the plans for approval. Lodging of the plans could not be achieved by giving a copy of the plans to the builders who, on Mr Tsougranis' evidence, were using it for the purposes of quoting only. Mr Tsougranis would have to send a copy of the plans with the first part of the application form completed by him to Mr Agapiou or arrange for Mr Agapiou to pick them up before those plans could be lodged with the Council.

196 Mr Tsougranis suggested that, at this time, although a hard copy had been produced, the plans were incomplete. That evidence was later clarified by Mr Tsougranis accepting the plans as to the details for the footings was finalised but the structural details for the front of the house were yet to be finalised. Further, it is curious that the builders turned up on 31 July 1998 to speak with Mr Tsougranis about the detail of the plans when, on Mr Tsougranis' evidence, Mr Agapiou had not been informed that the plans were finalised nor had he been provided with the final set of plans for the footings. It is clear that, in Mr Tsougranis' mind, the footing details were finalised in order for there to be any useful discussion with the builders. Mr Tsougranis said that missing details included the fact that Mr Agapiou had to inform him what was to be done about the relocation of a rear window: but Mr Tsougranis had spoken to Mr Agapiou and had visited the site just four days earlier and had not, apparently, raised this issue. Indeed, Mr Tsougranis' evidence was that he told the builders that Mr Agapiou had to lodge the plans with the Council for approval, a conversation which they denied had occurred. Why had he not informed Mr Agapiou of this on the 27 July 1998 visit when the plans were within days of completion?

197 Mr Tsougranis attempted to emphasise the early stage of these plans by telling the builders, when he gave them a hard copy to take away for purposes of quoting, that these were the first plans to leave his office. That was a strange and seemingly unnecessary comment to make to people who were merely quoting on the project. It was a statement that both builders rejected as having been said by Mr Tsougranis. Indeed, Mr Papaianni said, and the effect of the evidence of Mr Hamilton was, that the work could go ahead even though the plans had not yet been approved by Council because Mr Tsougranis was to certify the work and he would look after that aspect. Mr Papaianni had raised the fact that the plans were not stamped and asked for a stamped copy. Mr Tsougranis had told him that it was "okay", that he certified the work and that they should go ahead with the work and call when they were ready for a site inspection.

198 While there is a deal of confusion and sometimes a lack of precision about this evidence, I am satisfied that the following matters have been established:

(a) Mr Tsougranis had prepared the final structural details for the footings prior to the meeting with the builders;

(b) those structural plans had been supplied, in some form, to Mr Agapiou prior to the builders' meeting with Mr Tsougranis;

(c) that the builders had the structural detail for the footings in their possession when they met with Mr Tsougranis in his office;

(d) that Mr Tsougranis was aware that work had begun or was shortly to begin in circumstances where his structural detail for the footings had not yet been certified by the Council;

(e) that Mr Tsougranis had informed the builders that, despite the absence of Council approval, he would inspect the work to ensure its compliance with his drawings and details.

199 The next issue is one which I regard as crucial in the determination of the charge against the defendant. As can be seen from the summaries of the evidence and submissions, the defendant's approach was that he was engaged on a very narrow and specific task of designing the footings, a fact which was confirmed by the modest amount of his fee, $800. On this approach, all Mr Tsougranis was required to do was to attend to the design of the footings; in the course of designing the footings he had noted that there was an indication of an existing wall where the previous floorboards had been located; by reference to the architect's drawings there was no indication that this level would be dropped or in any way altered and, indeed, the only notation about levels on the architect's drawings was to raise the level of the floor in the front rooms but there was no relevant notation in relation to the rear area where the footings would be placed. Mr Tsougranis had observed that the mark around the wall was 300mm - 400mm off the ground and that therefore there would be virtually no excavation or minimal excavation required for the footings supporting the slab. Thus, he concluded that there was no need to further consider the stability of the freestanding wall. Mr Tsougranis, based on his knowledge of this vintage of houses in the area, concluded that the wall was likely to be fixed or bonded to the wall next door and at one end bonded to the adjacent wall of the house; and that the footings for the wall of a house of this vintage would be likely to be between 300mm and 400mm into the soil, and possibly further in this case, because he could not see the capping of the foundations. On the basis that the wall had stood for some months, and that there was substantial support from the earth around the footing of the wall and there would be little or minimal excavation around the footing to support the concrete slab, the wall could be assumed to be stable. Therefore, the stability of the wall was not to be doubted. It was submitted on the defendant's behalf that, considering the nature of Mr Tsougranis' brief and its limitations, the terms of his undertaking were restricted and it followed that his obligations under the Act were likewise restricted or confined.

200 The evidence discloses that Mr Tsougranis considered the stability of the free standing wall, but made a number of assumptions based on his experience of this vintage of housing in the Redfern area, which led him to the conclusion that little or no excavation was needed next to the wall and that there was, in such circumstances, no requirement to brace the wall or otherwise support it. Those same assumptions and circumstances made it unnecessary, in his view, to place any note on his structural plans for the footings to either indicate his assumptions or to advise why it was unnecessary to give additional support to the freestanding walls.

201 Mr Tsougranis did say that, as an engineer, he was conscious of the stability of the wall when designing a structural element: if he felt the need for bracing of the wall then he would make a comment on the plans. He accepted that he assumed an added responsibility as an engineer to give advice where the owner/builder involved was not a builder by trade.

202 Mr Tsougranis assumed, on the basis of his experience of terraces in the Redfern area, that they mirrored each other; that it was common for joined terraces to have additions in the rear abutting a common wall; and that additions on either side of the wall were built at the same time and therefore bonded to the same wall. Later in his evidence, Mr Tsougranis accepted that at 728 and 730 Bourke Street there was no common rear structure as he had assumed. He had not gone into No 728 to check this out and he could have checked for bonding of the wall, but he did not.

203 Mr Tsougranis had prepared sketches for Mr Cassimatis after the inspection of 3 June 1998. He said at this time he had not decided if there would be a trench type excavation and he was turning his mind to it when he did the sketches but these were only preliminary drawings. He thought that the worse possible case would be an excavation of 290mm. There is no indication that at this stage he gave consideration to the stability of the wall.

204 On 27 July 1998, while attending the building site, he took notice of the structure on the No 728 side because he had produced a sketch drawing which involved placing a new wall immediately adjacent to an existing wall, which might involve excavation immediately adjacent to that wall. He agreed that, in this way, he had turned his mind to the question of the stability of the wall by thinking about what was on the other side.

205 He had reached no conclusions as to whether alterations to No 728 were built at the same time as the wall or at some other time. He conducted no investigation of the bonding between the extension of No 728 and the wall. He had not gone into the rear of No 728 to inspect the structures there. Mr Tsougranis said that the skillion roofs "appeared" to have merged on the boundary. He assumed that cross-walls at No 728 to the boundary were somehow connected. He assumed the stability of the wall because it was standing, without cross-wall support to No 730. He assumed the existing floor level was to be maintained because he noticed a line of render on the wall below which were revealed bricks, indicating the line of the previous floor. There was nothing on the architectural plan which indicated that any floor level was to be altered apart from in the front of the house. The fact that there was such a note drawing attention to alterations to the front of the house confirmed his view that there was to be no alteration at the rear of the house to the previous floor level. He did not measure the floor level from the line he had seen on the wall but assessed it to be 300mm to 400mm above ground level. Mr Tsougranis accepted that, if the existing floor level was maintained, an amount of sandy soil had to be brought in and laid for the slab to rest on. There was no architectural note to this effect. Mr Tsougranis agreed that, if excavation was to be undertaken 100mm below the top of the footing, it would be appropriate to put a direction on the plan to prop the wall or to underpin it. In his view, it was important that no trimming take place to the footings and that there be no excavation or very little excavation next to the wall. Mr Tsougranis told no-one about these assumptions nor that there was to be no trimming and virtually no excavation.

206 It is to be remembered that, at the time that these assumptions were made by Mr Tsougranis, the owner/builder, Mr Agapiou, had demolished the surrounding structures. The freestanding wall had thus lost the support of other walls and the roof. Some of the assumptions made by Mr Tsougranis were easily checked: he could have gone to No 728 to see what structures were there which would have revealed a different period for the building of structures in the rear of that property; he could have actually measured the distance between what he regarded as the previous floor level and the ground level at the rear of the site; he could have asked the architect, the owner/builder or the builders whether his assumption about the level of the floor at the rear of the property was correct, especially since he made this assumption on 27 July 1998 when he spoke to Mr Agapiou, and when he spoke to the builders only four days later: opportunity for such discussions abounded.

207 In relation to the line of render which indicated where the previous floor level had been, there was no other evidence which supported the existence of such a line. Only Mr Hamilton was cross-examined about the existence of the line; although he had worked on the premises for a considerable time up until the collapse of the wall and had not closely looked at the wall, he had seen no such line. There was no suggestion in Mr Tsougranis' evidence that this line of render was difficult to see. After the wall had collapsed, Mr Tsougranis and his advisers were given access to the site while the wall and the footings were inspected and photographs taken of the site, but he appears at no time to have suggested the importance of the line on the wall. No photographs taken by any of the persons who attended the site showed this line. Mr Smee had seen nothing at the rear of No 730 to indicate the level of the floor prior to demolition. Allowing for the fact that the wall had collapsed, there were some larger pieces of the wall remaining which may have assisted in demonstrating the existence of the line referred to by Mr Tsougranis: not only was there no evidence of such a search being made, no-one else appears to have been informed of the existence of this line and the quite critical role it played in the assumptions made by Mr Tsougranis. Curiously, the line left by the previous floor does not seem to have appeared on the rear wall of the main building.

208 Mr Tsougranis defended the assumption he had made in relation to the bonding of the wall on the basis of his understanding of this type of housing in the area and the expectation that a party wall would be interlocked or bonded in some way to a cross-wall. There was some debate as to what constituted a party wall but for the purposes of these proceedings I do not need to finally settle that issue. In addition to his professional experience with similar buildings and structures, Mr Tsougranis said that there was no test known to him which would permit him to determine whether the wall was bonded either by interlocking bricks or by steel ties other than completely destructive tests. He did accept in cross-examination that removal of a small amount of render might assist in determining whether there was interlocking brickwork but he did not regard that as a satisfactory approach.

209 Mr Smee had expressed the opinion that there was no reason for the engineer to believe or suggest, when he saw the site in June/July 1998, that the wall was not well connected and might be unstable or a danger. While Mr Smee was prepared to assume that the wall was connected and adequately joined or adequately tied, given the extension to the rear of No 728 had not been built at the same time as the wall, he agreed that it would be prudent to have had access to the rear of No 728 to look at the walls. He also agreed that it might be prudent to assume inadequacy rather than adequacy of the tie in relation to a wall such as this, although he said it was reasonable to assume that it had "some tie". As noted earlier, and importantly, when asked what a structural engineer would do when faced with a building of the age of No 730 and the more recent addition of the wall, assuming that it was tied, but trying to ascertain whether it was adequately tied, Mr Smee said it was very difficult to ascertain adequate tying because destructive investigation was not appropriate: in the absence of being able to establish for certain whether the wall was adequately tied, Mr Smee agreed that the only other thing that could be done was to add a note to the plan to prop the wall. He thought that, if there was very little excavation, he would not expect to see such a note on the structural plan. More commonly, things were covered by a general note about maintaining stability and it was open to speak to the architect or the owner/builder, who would be the best source, to satisfy oneself as a structural engineer that there would not be a great deal of excavation.

210 I regard these matters to be of real significance. Mr Tsougranis' duty was to ensure the safety of persons not his employees, who were working at the site. This was a building site and it was obvious that a number of contractors as well as the builders were likely, from day to day, to be in attendance. Mr Tsougranis could not ensure their safety in relation to this wall by making assumptions, even if they were based upon his professional experience as to the nature of such a wall. This wall was quite large and its surrounding supporting structures had been removed. Mr Tsougranis made assumptions about the depth of its embedment in the soil and its support, assumptions about support for the wall in the adjoining property without checking, and assumed that no excavation was required, but did not ask the owner/builder or the builder about that matter. A wall that had all its surrounding building support removed and relied on embedment in circumstances where he could not be sure that the wall was properly bonded or tied left Mr Tsougranis in a position where he could not ensure that the wall was stable. There was no suggestion that supporting the wall by bracing or propping involved an unwarranted or heavy expense. Indeed, the wall did not have to be braced at all if Mr Tsougranis had placed a note on the plan simply stating that any excavation or trimming of the foundation would impair the stability of the wall. Such a note could have required consultation before work on the footings commenced.

211 This was not a case where, in the exercise of his professional judgment, Mr Tsougranis did not have to consider the stability of the wall. He readily accepted that the erection of another structure near this existing free standing wall required him to give consideration to the stability of that wall. He had turned his mind to that issue but had satisfied himself on the basis referred to above, that its stability was not a problem. Having applied his mind to the problem and having resolved the issue to his satisfaction based on the various assumptions referred to earlier, Mr Tsougranis in fact failed to ensure the safety of those who might be working on the site during the course of the construction work.

212 It is appropriate at this point to consider some aspects of the expert evidence given during the proceedings. Mr Turner was of the view that the wall was unstable from the time of the demolition carried out by Mr Agapiou. He rejected the fact that the wall had withstood gusts of wind for several months as being definitive of the stability of the wall - by 3 September 1998 it had lost its last straw of support.

213 Mr Taylor said that the excavation caused the fall of the wall, noting that the soil was very sandy and did not provide a high grade of support. However, in his view, the wall was a risk for a number of factors. He believed that the reduced excavation contemplated by Mr Tsougranis' re-design would still lead to the collapse of the wall. The building was over 100 years old and was past its normal "design" life. It was reasonable to assume, in his view, neither the foundations nor the structural ties complied with current regulations or continued to function as originally intended because of the effect of aging: it was reasonable to assume that the ties were not protected from corrosion. In his view, this was "an accident waiting to happen". It did not matter what was the level of excavation as any amount of excavation would have further rendered the wall unstable. As a general comment, Mr Taylor said that any design requiring excavation meant that there was a risk or potential risk of undermining an adjoining structure. In such circumstances, there needed to be a note requiring the engineer to be notified prior to work on the foundation commencing: the engineer would normally check the first sod of soil turned and then assess the effect on stability of the proposed excavation. There were two further matters to which Mr Taylor referred. Firstly, he stated there was nothing on the plan signifying the excavation which would allow an assessment to be made of what would be over-excavation. Secondly, any expectation as to the adequacy of tying to the adjoining wall "needed to be correct".

214 Mr Smee believed that the stability of the wall was adversely affected by the previous renovations and excavation. He nominated four factors which in combination caused the wall to fall, and one of those factors was the removal of supporting walls as a result of demolition carried out by Mr Agapiou. Mr Smee said it was normal, at the commencement of excavation, for the structural engineer to investigate the footing with the builder. He agreed that any reduction in the bearing capacity of this wall would have an effect on the stability of the wall. He was asked about the change in the level of the floor in the front of the building as indicated on the architectural plans with the apparent desire to produce an even floor throughout the building. Mr Smee accepted that in those circumstances the structural engineer might raise the question as to what was the level that was desired, and such a step would be reasonably prudent. It might also be prudent to make a note on the plans about assumptions as to the floor level.

215 In relation to prudent steps, Mr Smee accepted that it was prudent to have access to the back area of No 728 because that would show that the exterior was not built at the same time as the wall at No 730. It would also be prudent to assume the inadequacy of the ties in such circumstances. He accepted that, if the effectiveness of the tie could not be established, then it would be appropriate to prop the wall. If the structural engineer was to satisfy himself that there was minimal excavation to be carried out, it was open to him to speak to the owner/builder or the builder as the best source of information. It had been noted by Mr Smee that Mr Tsougranis had reduced the depth of the footing from 600mm in the architectural plan to 400mm in his structural plan. Mr Tsougranis said that he had reduced the depth of the footing in this way because, as a structural engineer, he would always try to minimise the depth of excavation to lessen the effect on an existing structure.

216 In light of this expert evidence, I am able to make the following findings:

(a) any design requiring excavation meant that there was a potential risk of undermining an adjoining structure, in this case, the free standing wall;

(b) the wall, once deprived of its surrounding structures, was at risk of being unstable;

(c) attendance at the site with the builders when excavation commenced would have shown the soil in which the wall was embedded was very sandy and was unlikely to provide a high degree of support for the wall;

(d)) it was appropriate for the defendant to speak to any or all of the owner/builder, the architect or the builders to satisfy himself that there would be no or minimal excavation carried out next to the wall;

(e) the defendant could not have been sure of the effectiveness of the steel ties, given the age of the building and the lack of protection against corrosion;

(f) it was appropriate for the defendant to inspect the adjoining property and consider the structures at the rear of that property, as it should have raised concerns as to the level of support being provided to the wall;

(g) a note in the architectural drawings indicating a change in the floor level at one point of the building should have prompted an inquiry from the defendant as to the desired level of the floor throughout the building, including the rear section.

These findings, together with the evidence referred to earlier in this judgment, establish that the wall was at risk of falling and that the defendant failed to ensure against that risk in the ways particularised in the summons.

In relation to any disagreement among the three experts, I prefer the evidence of Mr Turner and Mr Taylor, who dealt with different engineering aspects. While I found the evidence of Mr Smee generally helpful, he was asked to make a number of assessments based on assumptions which I have found not made out on the evidence. Mr Smee accepted that, if the assumptions upon which he proceeded were not correct, then it may lead him to vary his conclusions. Nevertheless, Mr Smee's evidence on matters of general engineering principles did not seem to depart from those expressed by Mr Turner and Mr Taylor. This is not a case where I found differences of emphasis to be critical.

217 On the basis of the above analysis of the evidence, I find that as to paragraph 5 of the Particulars, the defendant had not investigated the depth of the base or structural integrity of the footings of the wall; had not made a detailed assessment of the structural integrity of the wall itself, and had not provided any requirement in his design to provide appropriate temporary support for the wall. In addition, I find the allegation contained in paragraph 6 of the Particulars also made out, namely, that at all material times on and prior to 3 September 1998 the defendant failed to instruct the owner or the builders to ensure the wall was laterally braced or otherwise supported to ensure that there was not a risk of toppling prior to any of the works being conducted.

218 It will be clear that I have not approached these alleged breaches on the basis that they were the direct and immediate cause of the accident which occurred on 3 September 1998. For the reasons already outlined, this free standing wall had been deprived of its surrounding building support and was therefore at risk of falling. On my assessment of the evidence, it was necessary to provide a requirement in the design for the provision of appropriate support for the wall, and there was a failure to instruct the owner or the builders to ensure the wall was laterally braced or otherwise supported to ensure that it would not fall. These are the primary findings which satisfy me, to the requisite standard, that a breach of s 16 against the defendant has been made out. In relation to the failure to investigate the depth of the base or structural integrity of the footings, and the failure to make a detailed assessment of the structural integrity of the wall itself, I am satisfied on the expert evidence that, in the particular circumstances of this freestanding wall having had its surrounding supports removed, including roof support, it was always a potential risk to safety, and investigation of the depth of the base of the wall and a proper consideration of its structural integrity would have allowed the defendant to advise the owner/builder and the builders as to the dangers which would arise if there was excavation carried out next to the freestanding wall.

219 On the defendant's approach there was no detriment to safety arising from the work he performed having regard to the narrow focus of his engagement. In relation to this aspect, I accept the submission for the prosecution that the detriment to safety arose from the provision of structural engineering plans which instructed that work be performed immediately next to an unstable wall where the work itself carried a significant risk of further destabilising the wall and where the plans did not direct that the wall be braced or supported. As Mr Turner noted, there was nothing in the plans signifying excavation which would allow an assessment to be made of over-excavation.

220 It will be recalled that the defendant submitted that his undertaking required him to prepare a structural detail of the footings on the basis of architectural plans which had been provided to him. It was said that those plans instructed the engineer as to the nature of the relevant development. The obligation of the defendant was to prepare a structural detail for a footing which would be apt for that development. There was no indication of a change of level at the rear of the house indicated in the architectural plans. It was submitted that the prosecutor had failed to establish any risk to persons not in the employ of the defendant that arose from the conduct of the defendant's undertaking. The suggestion was that, to the extent that persons were exposed to a risk, that risk arose from the acts of others. Thus, the prosecutor had failed to prove a causative link between the conduct of the defendant's undertaking and the relevant risk. Further, it was submitted that it was not part of the defendant's undertaking to provide warnings of the stability of the party wall, as the defendant's undertaking did not require or contemplate any work which might impact upon that wall. It was said that the defendant was not retained to advise generally on structural engineering matters in respect of the project but rather he was retained, and it was his undertaking, to design the structural footing and to undertake inspections for the purpose of certification. It was said the payment of a fee of $800 was not consistent with the existence of a general retainer to advise in respect of the project. The argument was then developed that, as the design of the structural footing would not impact on the party wall or its stability, the assessment of the party wall and the provision of warnings regarding bracing did not form part of the defendant's undertaking. In a similar way, it was said that it was not part of the defendant's undertaking to investigate the depth of the base of the footing of the party wall as the works directed by the defendant would never have required an excavation which might reveal more than a nominal percentage of that footing.

221 It is appropriate at this point to repeat the terms of s 16(1):

Every employer shall ensure that persons not in the employer's employment are not exposed to risk to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

It is apparent from the submissions made on behalf of the defendant that it is not in contest that the work site was, in the relevant sense, the defendant's place of work. The focus of attention appears to be on an identification of what was the defendant's "undertaking", as that term is used in s 16(1) of the Act. The notion of a "place of work " and an "employer's undertaking" have been broadly construed and for understandable reasons. Thus, in Inspector Clarke v W C Meinhardt and Partners Pty Ltd it was held that the "place of work includes every area which may be affected by the work being done". Similarly, the place of work includes the immediate environs which may have been affected by the conduct of the business (see Inspector Page v Woolworths Ltd, unreported Peterson J, CT93 /1044, 9 September 1994).

222 The Full Bench in WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 at 262 was of the view that, under s 16(1) of the Act, an employer's "undertaking" and "place of work" were appropriate to be dealt with separately. In relation to the expression "undertaking" in s 16, the cases suggest that it is necessary to consider the contract or arrangement involving the defendant. Thus, in Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58, Cahill V-P was of the view that, although the work undertaken by the defendant was coming to an end, it had not concluded until there was a handover to the proprietor upon satisfaction that the work had been properly completed. Similarly, a Full Bench in Mainbrace Constructions focused on the contractual or other arrangements involving the defendant. These considerations informed the conclusion reached by Walton J, Vice-President in WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison.

223 As to the contractual and other arrangements, Mr Agapiou's evidence was that he told Mr Tsougranis about the nature of the work and indicated that he wanted him to do "all the necessary engineering" - he asked Mr Tsougranis to "organise and do all the engineering certificate or problems or whatever he was required" to do. The task was to attend to the required certificates or "any structural stuff that needs to be done to allow the job to be done". It is also clear from the evidence that the contract or arrangements went beyond designing the footings for the rear concrete slab but also involved a number of other parts of the proposed structure, including the relocation of windows, the installation of steel beams and the placing of a concrete slab at the front of the house in place of the existing timber flooring. It was common ground that these matters were discussed with Mr Tsougranis when the builders came to speak to him. In my view, they reflect the nature and scope of the arrangement between Mr Agapiou and Mr Tsougranis. The builder, Mr Hamilton, had said that during their meeting, Mr Tsougranis said if there were any questions which arose the builders were to contact him. On 27 July 1998, according to Mr Tsougranis' evidence, Mr Agapiou had telephoned him to enquire about using concrete in the front of the house. Mr Tsougranis immediately attended the site to discuss that matter and to finalise his drawings. Perhaps more importantly, it was Mr Tsougranis' evidence that he had turned his mind to the stability of the freestanding wall, and it was based on a number of assumptions that he came to the view that there would be little or no excavation next to the wall, and therefore it was not necessary to advise that the wall be braced or otherwise supported, or to place a note to that effect on the plans. Mr Tsougranis also accepted that he was conscious of the stability of the wall when designing a structural element near or close to that wall. It follows, in my view, that the narrow approach of the defendant to the concept of "undertaking" in s 16 cannot be sustained in this case. Having regard to the breadth of that concept and the evidence, I am satisfied that the risks identified arose from the conduct of Mr Tsougranis' undertaking.

224 Further, I accept the prosecutor's submission that Mr Tsougranis' undertaking was the work of a structural engineer, engaged by the owner/builders in relation to the building works to be carried out at 730 Bourke Street. Mr Tsougranis had agreed to provide plans and three inspections - none of the inspections had been carried out before the accident. The arrangements were clearly still on foot as at 3 September 1998.

On Mr Tsougranis' own evidence and the evidence of the expert witnesses, it was part of his undertaking to consider and evaluate the stability of the wall and how it may be affected by any excavation. The defendant's submissions to the contrary are not sustainable.

225 It was submitted on behalf of the defendant that, if the prosecution was found to be made out, then a defence had been established in accordance with s 53 of the Act. Reference was made to the judgment of Hill J in WorkCover Authority (Inspector Mayo-Ramsay) v Maitland City Council where his Honour, dealing with reasonable practicability, said:

If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight.

The defendant then posed the question to be answered in the following terms: "Was it reasonably foreseeable at the time that the party wall was in danger of collapse?"

226 In answering this question, the defendant again pointed to the fact that it was reasonable for the defendant to have assumed that the party wall was bonded to the extension of No 728, given the fact that it stood unsupported for several months and that only destructive tests could have revealed the absence of bonding. The defendant had experience in the area regarding properties similar to the subject property and on that basis it would not have been reasonably foreseeable that the party wall would be a freestanding wall. Nor would it have been reasonably foreseeable that the footing for the party wall had been undermined on the No 728 side of the wall. There was no observation or investigation which would have given any indication of that fact. Lastly, it was not reasonably foreseeable that, contrary to the direction contained in the architectural plans, the Council building approval document, the specifications and reasonable prudent building practice, the builder would reduce the levels at the rear of the property and over-excavate the trench adjacent to the party wall, without first consulting the engineer. In the present case, it was not reasonably practicable for the defendant to do more than he did, "as the collocation of events which transpired were not reasonably foreseeable".

227 What the engineer was faced with at this building site was a large, double brick rendered wall which had the support from surrounding walls and the roof removed as a result of demolition by the owner/builder. While he was able to make assumptions about the support given to a party wall, Mr Tsougranis could not be certain of adequate bonding or adequate tying. He was involved in designing a footing which involved possibly, minimal, excavation next to that structure. He accepted that building another structure next to the wall raised questions of stability - that was one reason the footings were reduced in depth in his re-design. The expert evidence underlines the inherent instability of this wall - in those circumstances, the risk was real and foreseeable and it was not impracticable for Mr Tsougranis to place a note on his plans either outlining the assumptions upon which he had designed the footings or directing that the wall was to be braced or otherwise supported, especially if there was to be other than MINIMAL excavation. Mr Turner put it bluntly: Mr Tsougranis had to investigate the stability of the wall or assume the worst case and deal with that proposition. If it was costly to investigate he should have gone straight to the protective measures. It follows that a defence under s 53(1) has not been made out.

228 In light of these maters, I find that the offence charged under s 16(1) of the Act has been made out against the defendant.

229 I propose to relist the matter in approximately two weeks' time in order to programme the hearing of submissions on penalty.

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LAST UPDATED: 10/04/2003