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Industrial Relations Commission of New South Wales Decisions |
Last Updated: 7 March 2003
NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION
CITATION : WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 35
FILE NUMBER(S): IRC5432,IRC5433,IRC5434,IRC5436,IRC5438,IRC5502,IRC5503
HEARING DATE(S): 11/02/2002, 12/02/2002, 13/02/2002, 15/02/2002, 19/02/2002, 20/02/2002, 25/02/2002, 26/02/2002, 27/02/2002, 04/03/2002, 05/03/2002, 06/03/2002, 11/03/2002, 12/03/2002, 13/03/2002, 18/03/2002, 19/03/2002, 20/03/2002, 25/03/2002, 26/03/2002, 09/04/2002, 01/05/2002, 06/05/2002, 08/05/2002, 13/05/2002, 14/05/2002, 15/05/2002, 17/10/2002
DECISION DATE: 27/02/2003
PARTIES:
Prosecution:
WorkCover Authority of NSW (Insp Maltby) & Anor
Defendants:
Abigroup Contractors Pty Limited & Luis Bustamante
JUDGMENT OF: Kavanagh J
LEGAL REPRESENTATIVES
Prosecutor:
The Hon J.W. Shaw QC with Mr P.M. Skinner of counsel
Solicitors:
Ms S.J. Tankard
Moray & Agnew
Defendants:
Mr B.D. Hodgkinson SC
Solicitors:
Mr L. Connolly
Clayton Utz
CASES CITED: WorkCover Authority of NSW (Inspector Maltby) & Anor v Abigroup Contractors Pty Ltd & Anor (2002) 116 IR 65
Page v Walco Hoist Rentals Pty Limited (No 1) (1999) 87 IR 286
WorkCover Authority of NSW (Insp Keenan) v Lucon (Australia) Pty Ltd & Ors (2002) 112 IR 332
WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of NSW & Ors (2001) 108 IR 121
Richardson v The Queen (1974) 131 CLR 116
Drake Personnel v WorkCover Authority NSW (1999) 90 IR 432
Carrington Slipways Pty Ltd v Inspector R J Callaghan (1985) 11 IR 467
Haynes v CI&D Manufacturing Pty Ltd (1994) 60 IR 149
Holmes v Spence (1992) 5 VIR 119
WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, Nos CT1247-9 of 1993, 24 July 1995, Peterson J)
Kirby v A&M I Hanson Pty Ltd (1994) 55 IR 40
State Rail Authority of New South Wales v Gregory Thomas Dawson (1990) 37 IR 110
WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248
WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (2000) 95 IR 383
WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239
WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Material Ltd (1999) 91 IR 119
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84
Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627
WorkCover Authority of NSW v TRW [2001] NSWIRComm 52
WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182
WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284
R v Associated Octel & Co Ltd [1996] 1 WLR 1543
Inspector Clarke v WC Meinhardt and Partners Pty Limited (unreported, Fisher CJ, CT1212&1214 of 1990, 30 June 1992)
WorkCover Authority of NSW (Inspector Keenan) v Technical and Further Eduction Commission (1999) 92 IR 251
Whittaker v Delmina Pty Ltd (1998) 87 IR 268
WorkCover Authority of NSW (Inspector Gordon) v Wallis (unreported, Cullen J, CT1011 of 1995, 14 August 1996)
WorkCover Authority of NSW v Cruden (1996) 67 IR 469
Quin v Hill [1957] VR 429
LEGISLATION CITED: Occupational Health and Safety Act 1983
Occupational Health and Safety Act 1985 (Vic)
JUDGMENT:
- 185 -
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
IN COURT SESSION
CORAM: KAVANAGH J
Date: Thursday 27 February 2003
IRC5432 of 1999
WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED
Prosecution under s15(1) of the Occupational Health and Safety Act 1983
IRC5433 of 1999
WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED
Prosecution under s16(1) of the Occupational Health and Safety Act 1983
IRC5436 of 1999
WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED
Prosecution under s15(1) of the Occupational Health and Safety Act 1983
IRC5434 of 1999
WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED
Prosecution under s16(1) of the Occupational Health and Safety Act 1983
IRC5438 of 1999
WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED
Prosecution under s16(1) of the Occupational Health and Safety Act 1983
IRC5502 of 1999
WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE
Prosecution under s19(a) of the Occupational Health and Safety Act 1983
IRC5503 of 1999
WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE
Prosecution under s19(a) of the Occupational Health and Safety Act 1983
JUDGMENT
(as to liability)
1 The WorkCover Authority of New South Wales proceeds with five charges against Abigroup Contractors Pty Limited (“Abigroup“) and two charges against an individual, Luis Bustamante. The prosecutions are brought under the Occupational Health and Safety Act 1983 ("the Act"). They relate to two gas explosions which occurred near Kogarah Railway Station on Monday, 4 December 1995 where upgrade works were in progress.
2 Following the first explosion, which occurred shortly after 2pm, a gas induced fire continued to burn for over two hours as endeavours were made to locate a gas leak and extinguish it. At approximately 4pm on the same day, there was a second explosion. The first explosion was sited outside an entertainment centre operating from a shop front near Kogarah Railway Station entrance called the Family Amusement Zone (FAZ). The second explosion occurred inside the FAZ.
3 As a result of the first explosion two persons, Mina Bakhoum and Gregory Maybury, sustained fatal injuries. As a result of both explosions, at least 16 other persons sustained burn injuries, as well as wounds, from the blasts. The burns ranged from third degree burns to burns of a minor degree. Those injured were members of the public, shop employees, shop owners and officers from the New South Wales Police Force and Fire Brigade who had answered emergency calls to attend the scene.
4 The prosecutions were brought by Inspector Kathleen Maltby against Abigroup and by Inspector Paul Anthony Mansell against Luis Bustamante. Mr Bustamante was the foreman for Abigroup on the Kogarah Railway Station Upgrade (KSU) site. The prosecution was represented by Hon J.W. Shaw QC with Mr P.M. Skinner, of counsel. Mr Shaw QC appeared when legal issues were addressed. Mr Skinner called all prosecution evidence. Both Abigroup and Mr Luis Bustamante, the defendants, were represented by Mr B.D. Hodgkinson SC. The litigation, as to the liability of the defendants for breaches of the Occupational Health and Safety Act 1983 as charged, was heard over 30 days and involved the evidence of 40 witnesses with 400 documents admitted as 83 exhibits. The matter went thrice on appeal to the Full Bench on interlocutory matters.
The Act
5 The defendant company is charged under two sections of the Act: two of the breaches were brought under s15(1) of the Occupational Health and Safety Act 1983 and three charges were issued under s16(1) of the Act. The relevant sections of the Act state:
s15 Employers to ensure health, safety and welfare of their employees
(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.
(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:
(a) to provide or maintain plant and systems of work that are safe and without risks to health,
(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,
(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,
(d) as regards any place of work under the employer's control:
(i) to maintain it in a condition that is safe and without risks to health, or
(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,
(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or
(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:
(i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or
(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.
. . .
16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work
(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
. . .
The Summonses
6 For convenience the breaches are considered in the order of the chronology of events leading up to and including the day of the explosions. The charges cover three distinct periods: firstly, 10 November 1995, the day the gas service was disconnected; secondly, between 10 November 1995 and 4 December 1995 during which period demolition and construction occurred on the KSU site; thirdly, on 4 December 1995, the day of the two gas explosions.
7 Two charges relate to events on the day of 10 November 1995. One is brought under s15(1) and the other under s16(1) of the Act.
Matter No. IRC5432 of 1999
The breach is pleaded against Abigroup under s15(1) of the Act:
On or about 10 November 1995 at Kogarah in the state of New South Wales, the Defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular, Maurice Bolger, Paul Poidevin and Luis Bustamante contrary to s15(1) of the Occupational Health and Safety Act, 1983 in that it:
i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health;
ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated;
v) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
a) within one metre of a building to be demolished;
b) that was not adequately protected or identified;
c) in which earthmoving works were to be performed.
vi) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
a) location of the charged gas supply line;
b) the risks associated with work adjacent to the charged gas supply line;
c) the type of work that might be carried out adjacent to the charged gas supply line;
d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
Particulars
1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (“KSU”).
2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU.
3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited (“AGL”) to disconnect the gas supply to Shops 3 and 7.
4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah.
5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur.
6. The gas supply line remained charged.
7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line.
8. The Defendant was aware where the gas supply line had been cut and capped by Princi.
9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated.
10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
11. The Defendant failed to adequately protect the charged gas supply line on the KSU.
12. The Defendant failed to adequately identify the charged gas supply line on the KSU.
13. The Defendant failed to adequately mark the charged gas supply line on the KSU.
14. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
15. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.
8 The second charge relates to events on 10 November 1995.
Matter No. IRC5433 of 1999
The breach is pleaded against Abigroup under s16(1) of the Act:
On or about 10 November 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to s16(1) of the Occupational Health and Safety Act, 1983 to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant:
(i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health;
(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
(iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated;
(v) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
(a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(c) in which earthmoving works were to be performed.
(vi) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
(a) location of the charged gas supply line;
(b) the risks associated with work adjacent to the charged gas supply line;
(c) the type of work that might be carried out adjacent to the charged gas supply line;
(d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
The failures (i) to (vi) alleged in this summons are therefore similar to those recited in matter No. IRC5432 of 1999.
Particulars
1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (“KSU”).
2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU.
3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited (“AGL”) to disconnect the gas supply to Shops 3 and 7.
4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah.
5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur.
6. The gas supply line remained charged.
7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line.
8. The Defendant was aware where the gas supply line had been cut and capped by Princi.
9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated.
10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
11. The Defendant failed to adequately protect the charged gas supply line on the KSU.
12. The Defendant failed to adequately identify the charged gas supply line on the KSU.
13. The Defendant failed to adequately mark the charged gas supply line on the KSU.
14. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
15. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.
9 Two charges relate to events between 10 November 1995 and 4 December 1995:
Matter No. IRC5436 of 1999
The breach is pleaded against Abigroup under s15(1) of the Act:
Between 10 November 1995 and 4 December 1995 at Kogarah in the state of New South Wales, the Defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular Maurice Bolger, Paul Cejka, Paul Poidevin, Troy Morris, Paul Warren, Barry Jessop and Luis Bustamante contrary to s15(1) of the Occupational Health and Safety Act, 1983 in that it:
(i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health;
(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area.
(iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated.
(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line.
(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
(a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(c) where earthmoving machines were operated.
(vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
(a) location of the charged gas supply line;
(b) the risks associated with work adjacent to the charged gas supply line;
(c) the type of work that might be carried out adjacent to the charged gas supply line;
(d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
There was a further risk alleged in this charge namely that recited in (v).
Particulars
1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (“KSU”).
2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU.
3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited (“AGL”) to disconnect the gas supply to Shops 3 and 7.
4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah.
5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur.
6. The gas supply line remained charged.
7. The defendant was aware of where the gas supply line had been cut and capped.
8. The building was mechanically felled by the use of an excavation which commenced on or about 21 November 1995 and was completed by 4 December 1995.
9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the building.
10. The defendant used a stake to mark the gas supply line when it became exposed.
11. The defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were operated.
12. The defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line.
13. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
14. The defendant failed to adequately protect the charged gas supply line on the KSU.
15. The defendant failed to adequately identify the charged gas supply line on the KSU.
16. The defendant failed to adequately mark the charged gas supply line on the KSU.
17. The defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
18. The defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the work statement.
The second of the charges covering the period between 10 November and 4 December 1995:
Matter No. IRC5434 of 1999
The breach is pleaded against Abigroup under s16(1) of the Act:
Between 10 November 1995 and 4 December 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to s16(1) of the Occupational Health and Safety Act, 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant:
(i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health;
(ii) Failed to take adequate steps to ensure gas supply lines charged with gas were not situated in areas where construction work was to be performed
(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
(iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated
(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line.
(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
(a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(c) where earthmoving machines were operated.
(vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
(a) location of the charged gas supply line;
(b) the risks associated with work adjacent to the charged gas supply line;
(c) the type of work that might be carried out adjacent to the charged gas supply line;
(d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
The extra alleged failure as pleaded in Matter No. IRC5436 of 1999 above at (v) is again recited in this charge.
Particulars
1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (“KSU”).
2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU.
3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited (“AGL”) to disconnect the gas supply to Shops 3 and 7.
4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah.
5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur.
6. The gas supply line remained charged.
7. The defendant was aware of where the gas supply line had been cut and capped.
8. The building was mechanically felled by the use of an excavation which commenced on or about 21 November 1995 and was completed by 4 December 1995.
9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the building.
10. The defendant used a stake to mark the gas supply line when it became exposed.
11. The defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were operated.
12. The defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line.
13. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
14. The defendant failed to adequately protect the charged gas supply line on the KSU.
15. The defendant failed to adequately identify the charged gas supply line on the KSU.
16. The defendant failed to adequately mark the charged gas supply line on the KSU.
17. The defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
18. The defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the work statement.
As to the particulars provided in Matter No IRC5436 of 1999, the summons recited 14 similar particulars as in Matter No. IRC5432 of 1999 (see paragraph 7). The prosecution however did not press Particular 7 but added four extra particulars to those already relied upon in the charge brought under s15(1) of the Act.
10 The third time span is reflected in one charge against the defendant company. It relates to events on 4 December 1995, the day of the explosions.
Matter No. IRC5438 of 1999
The breach is pleaded against Abigroup under s16(1) of the Act:
On 4 December 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to s16(1) of the Occupational Health and Safety Act, 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant:
(i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health;
(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
(iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated;
(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line.
(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
(a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(c) where earthmoving machines were operated.
(vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
(a) location of the charged gas supply line;
(b) the risks associated with work adjacent to the charged gas supply line;
(c) the type of work that might be carried out adjacent to the charged gas supply line;
(d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
Particulars
1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (“KSU”).
2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU.
3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited (“AGL”) to disconnect the gas supply to Shops 3 and 7.
4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah.
5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur.
6. The gas supply line remained charged.
7. The Defendant was aware of where the gas supply line had been cut and capped.
8. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995.
9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building.
10. The Defendant used a stake to mark the gas supply line when it became exposed.
11. On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter.
12. The excavator was used to create the batter in the area where the gas supply line was situated.
13. The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU.
14. The Defendant failed to prevent the operation of earth moving machinery on the construction are close to the charged gas supply line.
15. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah.
16. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape.
17. At approximately 2.00p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ.
18. Between 2.00 p.m. and 4.00 p.m. on 4 December 1995, the Defendant was advised of the explosion which had occurred.
19. At approximately 4.00p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ.
20. The gas explosions were of sufficient extent and severity that persons were injured thereby.
21. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
22. The Defendant failed to adequately protect the charged gas supply line on the KSU.
23. The Defendant failed to adequately identify the charged gas supply line on the KSU.
24. The Defendant failed to adequately mark the charged gas supply line on the KSU.
25. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
26. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.
In this matter, the prosecution did not press Particulars numbered 7 and 9 of Matter No IRC5432 of 1999 (see para 7) but added thirteen new Particulars numbered 8-20 related to events on 4 December 1995.
11 The defendant company pleaded not guilty to each and every charge.
12 It is necessary to comment upon the form of the summonses. The Commission sitting in Court Session is considering charges under the Occupational Health and Safety Act 1983 to which the application of the criminal standard of proof, beyond reasonable doubt, is applicable. The summonses, as recited above, are, on their face, unusual as to form. Each summons filed against the defendant company recites a charge under the Occupational Health and Safety Act 1983. Each then recites, in roman numerals ((i) to (vi)), a series of alleged failures on the part of the defendants. Technically these alleged failures are, in form, particulars, although not so identified. The summonses on their face then identify the "Particulars" the prosecution relies upon. They are numbered from 1 to 18 (some varied). These particulars are a mix of facts (some later agreed) and a re-statement of alleged failures as recited in the summonses from (i) to (vi). They also enunciate a further few alleged failures.
13 I find the summonses pleaded against the defendant company, Abigroup are, in form, confusing, in content, repetitive.
As against Mr Bustamante
14 Two charges have been laid against Mr Bustamante personally as the foreman/supervisor on site for the defendant company. They are both brought under s19(a) of the Occupational Health and Safety Act 1983.
The Act
15 Mr Bustamante faces two individual prosecutions both brought under s19(a) of the Act. Relevantly, s19 of the Act states:
s19 Employees at work to take care of others and to co-operate with employer
Every employee while at work:
(a) shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work, and
(b) shall, as regards any requirement imposed in the interests of health, safety and welfare on his or her employer or any other person by or under this Act or the associated occupational health and safety legislation, co-operate with the employer or that other person so far as is necessary to enable that requirement to be complied with.
16 The first charge against Mr Bustamante relates to his acts or omissions, as an employee, on the day of 10 November 1995 at the KSU site.
Matter No. IRC5503 of 1999
On or about 10 November 1995 at Kogarah in the State of New South Wales, the defendant being an employee of Abigroup Contractors Pty Limited whilst at work and contrary to s19(a) of the Occupational Health and Safety Act 1983 failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur.
Particulars
1. The Defendant was a Foreman for Abigroup Contractors Pty Limited ("Abigroup") at the Kogarah station Upgrading ("KSU").
2. Abigroup engaged Josef & Sons Contracting Contraction Pty Limited to perform work including the demolition of Shops 3,5,7 and 7 Railway Parade, Kogarah ("the Building") as part of the KSU.
3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7.
4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah
5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur.
6. The gas supply line remained charged.
7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line.
8. The Defendant observed where the gas supply line had been cut and capped by Princi.
9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated.
10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
11. The Defendant failed to adequately protect the charged gas supply line on the KSU.
12. The Defendant failed to adequately identify the charged gas supply line on the KSU.
13. The Defendant failed to adequately mark the charged gas supply line on the KSU.
17 The second alleged breach by Mr Bustamante relates to his acts or omissions between 10 November 1995 and 4 December 1995.
Matter No. IRC5502 of 1999
Between 10 November and 4 December 1995 at Kogarah in the State of New South Wales, the defendant being an employee of Abigroup Contractors Pty Limited, whilst at work contrary to s19(a) of the Occupational Health and Safety Act 1983 failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur.
Particulars
1. The Defendant was a Foreman for Abigroup Contractors Pty Limited ("Abigroup") at the Kogarah station Upgrading ("KSU").
2. Abigroup engaged Josef & Sons Contracting Contraction Pty Limited to perform work including the demolition of Shops 3,5,7 and 7 Railway Parade, Kogarah ("the Building") as part of the KSU.
3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7.
4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah
5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur.
6. The gas supply line remained charged.
7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line.
8. The Defendant observed where the gas supply line had been cut and capped by Princi.
9. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995.
10. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the building.
11. The Defendant used a stake to mark the gas supply line when it became exposed.
13. The Defendant failed to prevent the operation of earth moving machinery on the construction area close to a charged gas supply line.
14. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous as the job completed.
15. The Defendant failed to adequately protect the charged gas supply line on the KSU.
16. The Defendant failed to adequately identify the charged gas supply line on the KSU.
17. The Defendant failed to adequately mark the charged gas supply line on the KSU.
As to the Particulars of this charge, Nos 1-8 of the charge above were repeated and nine further particulars were provided.
18 Mr Bustamante pleaded not guilty to each charge.
THE LIMITATION PERIOD
Application under s49(4) of the Act
19 After the close of evidence in the trial of these charges, brought under the Occupational Health and Safety Act 1983, both defendants, Abigroup and Luis Bustamante, submitted the prosecution had failed to establish a basis for the reliance on the extended time limit under s49(4) of the Act. The defendants submitted there was a deficiency or inadequacy in the evidence such that s49(4) of the Act would not operate so as to extend the time for commencing proceedings beyond the two year time limit allowed under s49(1) of the Act. The defendants further submitted no document filed by the prosecution when bringing the charge, or evidence led by the prosecution in the trial, referred to a Coronial inquiry, the Coroner's Report or any reliance upon s49(4) of the Occupational Health and Safety Act 1983.
The Act
20 Relevantly, s49 of the Occupational Health and Safety Act states:
49. Time for instituting proceedings for an offence.
1. Notwithstanding anything in any Act, proceedings for an offence against this Act or the regulations may be instituted within the period of two years after the act or omission alleged to constitute the offence.
2. . . .
3. . . .
4. If a Coroner's inquest or inquiry is held and it appears from the Coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within two years after the date the report was made or the inquest or inquiry was concluded, as the case may be.
Preliminary Issue
21 I find this application must be determined as a preliminary issue before determination of issues at trial on fact and liability. The date of issue of the summonses was 12 October 1999 and the date of the incident was 4 December 1995. The statute requires a summons to issue within two years of the alleged act or omission held to constitute the offence. For these prosecutions to be held to be "in time" the summonses had to issue, with reliance by the Prosecutor placed upon the provision of s49(4) of the Act, which provision extends the time limitation, to within two years after a Coronial Report was concluded or Coronial proceedings completed. The Coronial Report in this matter was brought down after the proceedings were completed. The Report is dated 17 October 1997. The summonses were therefore issued within days of the date of the expiry of limitation period as set out in s49(4).
22 When the defendants brought this application at the close of the trial, the prosecution made application, and was given leave, to call further evidence to address the issue raised by the defendants as to compliance under s49(4) of the Act (see judgment of this Commission sitting in Court Session in WorkCover Authority of NSW (Inspector Maltby) & Anor v Abigroup Contractors Pty Ltd & Anor) (2002) 116 IR 65 [at 25] (published 6 August 2002)).
23 The form in which material was placed before me in this application was of little assistance. The prosecution identified a number of elements to the charge and recited alleged failures contributing to the "risk" to health and safety. It relied upon 400 pages of repetitive quotes from the Coronial Report and proceedings in support of its submission that, as to each charge and dealing with each particular pleaded, it appeared an offence had been committed within time. The defendants stated it advanced argument only in those areas in which it could submit there was a deficiency or inadequacy such that s49(4) would not operate so as to extend the time for commencing proceedings beyond the two year limit set out in s49(1) of the Act. Notwithstanding the defendants brought the application, its submissions were limited given the prosecution relied upon 400 pages of coronial material in their submissions.
Legal principles
24 In Page v Walco Hoist Rentals Pty Limited (No 1) (1999) 87 IR 286, Wright J, President, Hungerford and Schmidt JJ held as to the application of s49(4) of the Occupational Health and Safety Act 1983 (at 292):
. . . for the subsection to apply it need not be shown from the coroner's report of inquest proceedings that an offence had been committed in fact but only that it appeared to be so. . . . it only has to be found, where a coroner's inquest is held, that it appears or seems from the report or proceedings that an offence has occurred.
25 The test to be applied is an objective test. This was accepted by both parties (see WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd & Ors (2002) 112 IR 332 [at 79]; and WorkCover Authority of NSW (Inspector Maltby) & Anor v Abigroup Contractors Pty Ltd & Anor).
26 In Lucon, the Full Bench of the Commission sitting in Court Session addressed the legal characterisation of a prosecution commenced outside a prescribed time limitation. The effect of a successful challenge to such a prosecution has been described as a plea in bar or, alternatively, as a defence. Lucon addresses the legal characterisation of such an application:
90 There appears to be some difference of approach as to the accurate way to characterise limitation provisions in criminal proceedings. One view is that limitation provisions operate as a plea in bar to prosecution: see for example, R v Tait (1995) 80 A Crim R 374 at 377; R v. Cooling [1990] 1 QD R 376 at 378; (1989) 44 A Crim R 171 at 173. The other view is that a limitation provision operates as a defence: Pearce v. BHP Steel (AWI) Pty Ltd (1998) 8 Tas R 337 at 339, (1998) 85 IR 305 at 306 and Adams v. Chas S Watson Pty Ltd (1938) 60 CLR 545 at 553.
91 The critical point for present purposes, however, is that made in R v Cooling ([1990] 1 QD R at 378), where Thomas J said, with the concurrence of Ambrose J:
Commencement of the Prosecution within the prescribed time limit is not an element of the offence, and there is no requirement that the indictment show compliance with such requirement on the face of the indictment.
92 . . . limitation provisions do not affect the jurisdiction of a court but rather provide a defence or plea in bar.
27 The defendants, I believe properly so, conceded the distinction between the characterisation as a plea in bar, or a defence, while arguable, does not distract from the following relevant principles as stated in WorkCover Authority of NSW (Inspector Maltby) & Anor v Abigroup Contractors Pty Ltd & Anor) [at 34]:
i) commencement of proceedings within a statutory limitation period does not constitute an element of the offence: WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68 at [91]-[92]; Mansell v TMG International Pty Limited [2002] NSWIRComm 112 at [85]-[88]; R v Cooling (1989) 44 A Crim R 171 at 173
ii) a conviction upon a prosecution commenced outside a limitation period is unlawful: Tait (1995) 80 A Crim R 374 at 377; R v Cooling (1989) 44 A Crim R 171 at 174-175
iii) a statutory limitation period on the commencement of criminal proceedings cannot be waived, or made the subject of negotiation, as if it were a private privilege: Tait (1995) 80 A Crim R 374 at 378; R v Cooling (1989) 44 A Crim R 171, per Derrington J at 175 and
iv) a statutory limitation period does not deprive an appropriate court of the jurisdiction to determine whether or not proceedings were commenced in time. Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 at 377, 385, 388-389, 392; Adams (Deputy Commissioner of Taxation) v Chas S Watson Pty Limited (1938) 60 CLR 545 at 553, 559.
28 If, therefore, it is found these prosecutions were commenced outside a limitation period as determined under s49(4), the success of such an application would act as a plea in bar or defence to the charge and this results in the charge being dismissed. As the charges were brought within days of the time allowed when there were coronial proceedings it remains to be determined whether it appears from the Coroner's Report an offence has been committed.
Consideration
29 In the grant of leave, the prosecution tendered two affidavits sworn 28 May 2002 and 20 August 2002 by Miss Susan Jean Tankard, solicitor. Annexures included the Inquest Report of the State Coroner dated 17 October 1997; the Inquest Exhibits Register; the Coronial transcript and proceedings and some correspondence between the parties. The prosecution in Annexure "D" to the affidavit sworn 20 August 2002 identified much of the relevant material it relied upon from the primary material. The prosecution from that material, made specific submissions based on statements in the Coroner's Report and statements from the coronial proceedings made by Maurice T. Bolger, Paul W. Poidevin, Peter G Dean and Luis Bustamante, all from Abigroup, the defendant company; Insp Paul Anthony Mansell from WorkCover and John Princi from AGL; Robert Burns Campbell, a plant operator; Daniel R Josef, supervisor, Josef & Sons, Ray Furfaro and Eddie Blackwell of the SRA. All documentation was admitted solely for the purpose of the determination of the s49(4) challenge by the defendants to the charges.
30 The defendants submitted material from submissions before the Coroner, particularly submissions of the CWM against Abigroup, should not be considered by the court. I agree with the view expressed by Schmidt J in WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of NSW & Ors (2001) 108 IR 121 [at 98] who said:
98 The view that an offence appeared from the coronial proceedings must have some rational basis. Assertions or allegations by one party in submissions to the Coroner as to what another party's position, conduct or responsibilities were, or should have been, cannot provide a rational basis for the view that an offence appears to have been committed, which that other person is charged with.
99 These conclusions are of some significance here. Again, reference to the SRA will demonstrate the point. In the particulars with which it was provided, reference was made to submissions advanced to the Coroner for CWM. On my approach, it follows that while the prosecutor may have had regard to submissions advanced to the Coroner for CWM, in coming to the view that the offences with which the CWM joint venturers were to be charged appeared from the coronial material to have been committed, the same conclusion was not available in relation to the offences with which the SRA was charged.
I therefore reject from my considerations any reliance by the Prosecution on the CWM submissions to the Coroner against the interests of Abigroup.
31 The issue before me for consideration in the application brought by the defendants is whether it appears from the Coronial Report and proceedings that each offence has been committed by the defendant and whether, therefore, each proceeding is commenced within time under s49(4) of the Act. The initial question is whether it appears the defendants by its acts or omissions created a risk to the health and safety of its employees at the KSU site, as charged. While all the alleged failures pleaded as constituting each offence may have to be considered to determine the gravity of an offence, at trial, I do not believe each of the seven alleged failures and each of the 15 (approximately) other particulars relied upon by the prosecution need separate consideration once it appears from the Coronial Report and proceedings that an offence has been committed in breach of the particular provisions of the Act relied upon in the charge.
As Against Abigroup
Matter No IRC5432 of 1999
32 This charge is brought under s15(1) of the Occupational Health and Safety Act 1983. The elements of the charge require the defendant company, as an employer, to ensure its employee's health, safety and welfare at work. The summons alleges a number of acts or omissions on the KSU site that contributed to a risk to safety by the defendant company on 10 November 1995. The defendant company submitted the material relied upon by the Prosecutor does not demonstrate there was:
a failure to ensure the health and safety and welfare at work of all its employees and in particular, Maurice Bolger, Paul Poidevin and Luis Bustamante.
33 The following coronial material is relied upon by the prosecution to assert the defendant was an employer performing work at Kogarah and that the defendant's employees, including the named employees, were at work on 10 November 1995:
Statement of Maurice T Bolger, Project Manager, Abigroup to Police 19/12/95
I am aware that Abigroup was awarded the contract for the upgrading of Kogarah Railway Station for the SRA. The term upgrading is written into the contract and is the term used for the type of work that we do, that is, upgrading the current facilities. The contract was awarded on 18 October, 1995; site possession was 30 October, 1995; and site establishment commenced on 30 October, 1995. This establishment entails the installation of temporary site shed facilities for the duration of the contract. This occurred in the car park of Station Street, Kogarah. The first actual activity was to position barricades and hoardings to the perimeter of the site. This took place on or about 10 November, 1995. . . . As part of the commencement in conjunction with Abigroup site representatives the demolisher contacted the local service authorities, that is, gas, water and electricity as required to have existing facilities terminated from the above shops prior to actual demolition work commencing. . . .
Statement of Maurice Bolger - to Police - 19/12/95
. . . On the physical commencement of works on-site, I then visited the site on a daily basis . . . with the exception of the week commencing 13 November, 1995 and ending 20 November, 1995 . . . .
Statement of Luis Bustamante, Foreman, Abigroup - to Police - 20/12/95
I have been employed with Abigroup . . . . for the past 18 months in the capacity of Site Foreman. My duties include the organisation and co-ordination of sub-contractors and general supervision. I in turn report to Maurice BOLGER, the Project Manager with the Abigroup company.
Statement of Paul Poidevin to Police - 18/12/95
. . . I first attended the Kogarah Railway Station construction site in mid November, 1995 . . .
Statement of Luis Bustamante, Foreman, Abigroup - to Police - 20/12/95
When I first approached the man from AGL I saw that he had removed the pavers from the footpath in a rectangular shape measuring approximately 800 mm by 700 mm. I saw that this exposed area led from the front of the building alignment towards the footpath 800 mm and across the front of the building parallel to the building 700 mm. I saw the exposed yellow gas pipe about 350 mm below the surface of the pavers. I could see the yellow gas pipe had been capped, but I can't recall the colour of the cap. The distance from the front of the building to the gas cap was approximately 400 mm . . .
From the Coronial Report (para 13)
I am also satisfied that the gas was disconnected to the excavation site on 10th November, 1995 and Mr. Bustamente (Abigroup) was present . . .
34 I accept there is no material that appears to support the proposition that Mr Poidevin was at the site on 10 November 1995. I do not believe however the lack of such material is fatal to the charge being brought.
35 I am satisfied the above material relied upon appears to reveal the presence of Mr Bustamante and Mr Bolger on site on 10 November 1995. It appears both were Abigroup's employees. I am satisfied it appears the defendant, Abigroup, was an employer at Kogarah on 10 November 1995. I am satisfied, if it appears there was a risk on the KSU site on 10 November 1995, it was a risk to the safety of the defendant's employees.
36 One of the particular acts or omissions pleaded against the defendant is on 10 November 1995 it:
failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health.
The defendant, as to this alleged failure, submitted there was no material from which it appears in the cutting off of a gas supply line it was, as at 10 November 1995, left in a position which was unsafe and posed a risk to the health and safety of its employees. The material reveals:
Statement of John Ferguson, Manager, Gas Supply South Sydney, AGL to Police 7/12/95
. . . the last page of the computer printed paper is what we call a service order which outlines a date and time a call is received to disconnect a gas service at number 7 Railway Parade and that date on which the call was received was on the 8th of the 11th 95 at 1458, and that service order was despatched to a crew on the 10th of the 11th 95 at 8 am, and at 9:30 am they arrived and carried out the disconnection of the company service, the building line.
Statement of John Princi, Ganger, AGL to Police 12/12/95
I went to the gas connection at number seven to disconnect it. I old fellow about 58 or 60 who was wearing the same uniform as the other demolition workers came up and said that he was going to demolish the shops and wanted to see where I was going to cut the pipe. This man stayed and watched the whole time I disconnected the gas.
Statement of John Princi, Ganger, AGL to Police 12/12/95
. . . I moved the pavers from the immediate area and dug down around the valve and the pipe. The pipe was about ten to twelve inches into the ground. I disconnected the nylon pipe by squeezing the nylon pipe with a squeezer tool and cut the pipe. I cut the pipe about ten to twelve inches from the valve. This was going to leave the pipe a total of nearly two feet from the building alignment. I glued a cap on the end of the pipe. . . .
Statement of John Princi, Ganger, AGL to Police 12/12/95
I then took the gas box from it's original position and put it at the end of the capped pipe. I filled the hole in with the sand and replaced the pavers back into position. I never dug back as far as the first elbow. The pipe was in a horizontal position and I never moved it. I said to the demolition guy, 'This box shows you where the pipe is cut off. This side is live (indicating street side of box) and this side is dead.' (indicating shop side). He said, 'Okay'. I said, 'If you are going to dig, make sure you dig by hand first to find where the pipe is. If you want the pipe cut back further call us.' He said, 'No we are only going to remove the bricks and pull down the buildings. We're not going to excavate past the edge of the building.' I said, 'If you are only going to move the bricks then that's alright.' It normally takes a couple of hours to complete a job like this. From looking at the AGL record I see that I logged an hour and a half for the job at number seven. From 8am to 9.30am. I left and went to another job.
Statement of Luis Bustamante, Foreman, Abigroup - to Police - 20/12/95
. . . I could see the yellow gas pipe had been capped, but I can't recall the colour of the cap. The distance from the front of the building to the gas cap was approximately 400 mm. I can't remember the conversation I had with the man from AGL, but when I saw this I told him that it was too close and to re-do and cap it off further away as possible in order to clear the later demolition of the building. I explained to him that we had to demolish the walls and the foundations and I wanted it to a safe working distance. He said that he would do it, that it would not be any problem in doing it. I then saw him remove a number of pavers in a direction leading away from the building and I left that area and continued with other work. When I came back the second time about 2 hours later the man from AGL was preparing to leave. I saw that he had replaced the brick pavers and he then left. I did not see where he had capped the pipe. I did not tell him how far from the front of the building to cap it, he did not ask me how far from the building to cap it and he did not tell how far from the building he did in fact cap it. However he did show me a metal box with a cap on it with the words 'gas' which he told me he had placed at the end of the capped pipe. This gas cap was approximately 1200 mm from the front of the building. I didn't measure it, but it was definitely further away from the front of the building when I first saw the capped pipe and asked him to move it. After that I carried on with my normal duties.
The Coronial Report (para 13)
WorkCover Inspector Mansell described the procedure used to disconnect the gas service as being at best inadequate, no maps were maintained by AGL showing where the pipes were located and it was not reasonable to allow pressurised gas pipes to remain in place while demolition work is being carried out . . .
The Coronial Report (para 35)
Under no circumstances should a live gas pipe be allowed to exist on the site of major industrial works such as was occurring in this case.
Statement of Inspector Paul Mansell - 29/12/95
No demolition work should be carried out in the vicinity of active gas piping.
37 I am satisfied it appears from the coronial material there was a failure to cut the charged gas supply line to a position which was safe. The charged line was left within one metre of the building alignment which was known by the defendants to be marked for demolition. The defendant company, it appears, on 10 November 1995 knew it was to demolish buildings, walls and foundations and knew the purpose of the disconnection was to make "a safe working distance". It appears from the coronial material, the position in which the charged gas supply line was left, exposed the defendant's employees on the KSU site on and from 10 November 1995 to a risk to their safety.
38 It may not therefore be necessary to consider any further allegations to determine it appears from the coronial material an offence under s15(1) has been committed on 10 November 1995 and therefore the charge is brought within time under the provisions of s49(4) of the Act. However, I will give consideration to two further alleged failures.
39 It is alleged the defendant company on 10 November 1995:
failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed
The defendant company submitted it does not appear from the material relied upon by the Prosecutor that construction work was to be performed on this site on 10 November 1995 in the area of the capped charged gas supply line. This submission implies construction work had to be performed on 10 November 1995 for the charge to be pressed.
40 However, it appears from the coronial material, as quoted above, the defendant company through Mr Bustamante and Mr Bolger, was aware on 10 November, 1995 that construction work was "to be" performed on the KSU site. Mr Bustamante revealed the gas pipe was cut off 1200mm (approximately one metre) from a building wall to be demolished. Mr Bustamante revealed the cut off point was within an area where "walls and foundations were to be demolished". Further, it appears from some of this material the AGL worker revealed to Mr Bustamante where the cut off point was and identified from where the line was charged.
41 The defendant company further submitted the coronial material revealed construction work was to commence on 18 November 1995 and as the charge brought alleges construction work commenced on 10 November 1995 it must therefore fail. As to whether it appears this was a construction site on or about 10 November 1995 some of the following material is relevant:
Statement of Maurice Bolger - to Police - 19/12/95
. . . site establishment commenced on 30 October, 1995 . . . The first actual activity was to position barricades and hoardings to the perimeter of the site. This took place on or about 10 November, 1995.
Statement of Paul Poidevin - to Police - 18/12/95
. . . I first attended the Kogarah Railways Station construction site in mid November, 1995 when I set up the construction huts . . .
Statement of Robert Josef, Company Director, Josef & Sons, to WorkCover 20/12/95
Q10. What was to be demolished
A. Shops No 3,5,7 and 9, and the stairs leading up to the platforms on both sides of the station.
Q11. What date did demolition commence?
A. 8th or 10th November 1995.
I reject the submission for the charge to be valid there had to be construction work performed on 10th November 1995. However, the material reveals it appears demolition/construction work may have begun on or about 10 November 1995 when the disconnection occurred. It appears from the coronial material the defendant company failed to take adequate steps to ensure no gas supply line charged with gas was situated in areas where construction work was "to be" performed.
42 A third particular relied upon by the prosecution is the defendant:
failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area
As to the protection of the charged gas supply line, the defendants submitted the material does not support this allegation. The defendants argued, from the material, it appears the charged gas supply line having been cut and capped as at 10 November 1995 was covered in sand, pavers had been replaced over the sand covering the pipe and the original gas box had been placed over the end of the pipe where it had been cut and capped. The defendants submitted it appeared, as the line was covered with pavers, it was protected. The coronial material reveals:
Peter G. Deane General Manager, Abigroup to WorkCover, 12/03/96 (Additional Statement)
. . .
The original protection of the capped gas service was the paving bricks and gas marker. After the brick pavers were removed, the protection included star pickets and barrier meshing. This is what stayed in place until last viewed by Luis Bustamante.
We did not view or agree to any changed protection of the gas service. If it was changed or removed after . . . it was done without our knowledge or agreement.
Statement of John Princi, Ganger, AGL to Police 12/12/95
I then took the gas box from it's original position and put it at the end of the capped pipe. I filled the hole in with the sand and replaced the pavers back into position. I never dug back as far as the first elbow. The pipe was in a horizontal position and I never moved it. I said to the demolition guy, 'This box shows you where the pipe is cut off. This side is live (indicating street side of box) and this side is dead.' (indicating shop side). He said, 'Okay'. I said, 'If you are going to dig, make sure you dig by hand first to find where the pipe is. If you want the pipe cut back further call us.' He said, 'No we are only going to remove the bricks and pull down the buildings. We're not going to excavate past the edge of the building.' I said, 'If you are only going to move the bricks then that's alright.' It normally takes a couple of hours to complete a job like this. From looking at the AGL record I see that I logged an hour and a half for the job at number seven. From 8am to 9.30am. I left and went to another job.
Statement of John Princi, Ganger, AGL to Police 12/12/95
. . . I cut the pipe about ten to twelve inches from the valve. This was going to leave the pipe a total of nearly two feet from the building alignment.
Statement of Luis Bustamante, Foreman, Abigroup to Police 20/12/95
. . . I explained to him that we had to demolish the walls and the foundations and I wanted it to a safe working distance. He said that he would do it, that it would not be any problem in doing it. I then saw him remove a number of pavers in a direction leading away from the building and I left that area and continued with other work. When I came back the second time about 2 hours later the man from AGL was preparing to leave. I saw that he had replaced the brick pavers and he then left. I did not see where he had capped the pipe. I did not tell him how far from the front of the building to cap it, he did not ask me how far from the building to cap it and he did not tell how far from the building he did in fact cap it. However he did show me a metal box with a cap on it with the words 'gas' which he told me he had placed at the end of the capped pipe. This gas cap was approximately 1200 mm from the front of the building. I didn't measure it, but it was definitely further away from the front of the building when I first saw the capped pipe and asked him to move it. After that I carried on with my normal duties.
Statement of Insp Mansell of 29/12/95
No demolition work should be carried out in the vicinity of active gas piping for the obvious reason that those pipes and fittings can be damaged or pulled apart thus creating risks to persons nearby. Damage by mechanical force to pipe work can cause leakages at points that are difficult to identify and repair.
43 This particular alleges not only a failure to protect the pipe on 10 November 1995 but a failure to identify and warn of the existence of the charged gas supply line in a construction area. The coronial material revealed:
Coronial Report, para 32
the failure of Josef & Sons and Abigroup . . . their failure to ensure that the workplace site was as safe as possible by the proper disconnection and marking of the 'live' gas pipe . . .
and
Coronial Report, para 32
there was a clear lack of care with regard to workplace safety on the construction site
and
Coronial Report, para 13
WorkCover Inspector Mansell described the procedure used to disconnect the gas service as being at best inadequate . . .
and
Coronial Report, para 35
Under no circumstances should a live gas pipe be allowed to exist on the site of major industrial works, such as was occurring in this case.
and
Statement of Insp Mansell of 29.12.95
No effective barrier was provided to prevent machinery coming in contact with the gas pipe. . . . it is not reasonable to allow pressurised pipes to remain in place while demolition work is being carried out.
Coronial Report, para 34
The practice of marking services with a 'star picket' or 'wooden stake' and 'brightly coloured bunting' should be reassessed by industry as on this occasion the method of marking the gas pipe was, to say the least, inadequate.
Coronial Report para 13
. . . Inspector Mansell described the stake and bunting marker on the construction site as inadequate. I accept these criticisms as being justified in the circumstances.
44 I am satisfied it appears from the Coronial Report the defendant company failed to provide and maintain a system of work to adequately protect, identify and warn of the existence of a charged gas supply line in a construction area.
45 The prosecution also pleaded in this charge under s15(1) against the defendant company a number of further alleged particulars to the charge, namely, the defendant:
Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
a) within one metre of a building to be demolished;
b) that was not adequately protected or identified;
c) in which earthmoving works were to be performed.
and
Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
a) location of the charged gas supply line;
b) the risks associated with work adjacent to the charged gas supply line;
c) the type of work that might be carried out adjacent to the charged gas supply line;
d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
and:
failed to (realise) the existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous
and
failed to take steps to remove a charged gas supply line from a construction area where earth machines were to be operated
and
failed to have the demolition site examined by a competent specialist for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
and:
failed to record the nature of the gas hazard and proposed method of dealing with the hazard in the Work Statement.
46 I do not believe it is necessary for the Commission sitting in Court Session to consider all the above particulars of the alleged offence. I am of the view from the coronial material I have considered in relation to the first three alleged failures of the defendant company, that on 10 November 1995, it appears the defendant company failed to ensure, in the capping of a gas supply line at the KSU site, that it was left in a safe position. It appears from the coronial material the charged gas supply line charged with gas was left in an area where construction work was to be performed and it appears from the material there was no system to adequately protect, identify and warn of the existence of a charged gas supply line in a construction area.
47 I am therefore persuaded it appears from the coronial material the three alleged failures considered provided a risk to the safety of the defendant company's employees and therefore it appears an offence under s15(1) of the Act has been committed by the defendant company at the KSU site on 10 November 1995. I am therefore persuaded the proceedings in Matter No. IRC5432 of 1999 have been instituted within time under s49(4) of the Act.
Matter No IRC5433 of 1999
48 This charge is limited to the day of 10 November 1995 and is brought under s16(1) of the Act. The charge relates to the defendant's failure:
on 10 November 1995 in the conduct of its undertaking at its place of work to protect persons who were not its employees from a risk to their safety.
49 The alleged failures and the particulars relied upon by the Prosecutor are in all relevant respects the same as those pleaded in Matter No. IRC5432 of 1999, the s15(1) charge. Accordingly, the defendant relied upon similar submissions to those considered in the prior matter to submit the offence as charged does not appear from the coronial material.
50 The defendant company further submitted it did not appear any person, not in the employ of the defendant company, was exposed to a relevant risk on 10 November 1995 arising from the conduct of the defendant company's undertaking at its place of work. As to whether there were persons on site on 10 November 1995, other than Abigroup employees, the following evidence is relevant:
Additional statement of Peter Deane 12/3/96
Site Diary records
. . .
Monday 6 November 1995 SRA flagmen . . . look over job site with Abigroup Foreman . . . for any obvious problems or obstructions.
and
during the course of the demolition work . . .- Capital Works Management, the Project Managers, were on site discussing protection of services and public safety on a continual basis . . .
Statement of John Princi, Ganger, AGL to Police 12/12/95
On Friday 10th November 1995 John and I went to Railway Parade Kogarah. I have been shown AGL computer records assisted my memory as to the time and date I attended.
I am persuaded it appears from the coronial material that persons not in the employ of the defendant were on the KSU site on 10 November 1995.
51 I adopt my consideration of the coronial material related to the alleged failures in Matter No. IRC5432 of 1999, repeated in this charge (see paras 36-46), it appears the defendant company was, through Mr Bolger and Mr Bustamante present on site, performing work as supervisors on 10 November 1995. Mr Bustamante played an active part in the positioning of the capping of the charged gas supply line. He was acting in his capacity as supervisor on site. It therefore appears the defendant company was, in the conduct of its undertaking at its place of work, on 10 November 1995 at the KSU.
52 It appears the charged gas supply line was left in a position that was unsafe in an area which was already, or was to be, a construction site on 10 November 1995. From the coronial material it further appears the charged gas supply line was not properly protected and identified nor any proper warning given of its existence. I am persuaded it appears such failures led to a risk to safety.
53 It appears therefore from the Coronial Report and proceedings the defendant company committed an offence under s16(1) of the Act in that the defendant company on 10 November 1995 failed to ensure that persons, not in its employ, were not exposed to risk to their health and safety arising from its undertaking at its place of work. I am therefore satisfied the proceedings were brought within time under s49(4) of the Act.
Matter No IRC5436 of 1999
54 This further charge is brought under s15(1) of the Act and relates to the second period which has been identified in the chronology of events on the KSU site, between 10 November 1995 and 4 December 1995. It was agreed the charge covers the alleged acts or omissions of the defendant company from 11 November 1995 and 3 December 1995 (inclusive). It is alleged the defendant:
failed to ensure the health, safety and welfare at work of all its employees and in particular Maurice Bolger, Paul Cejka, Paul Poidevin, Troy Morris, Paul Warren, Barry Jessop and Luis Bustamante.
55 The following material appears in the Coronial Report and proceedings as regards the employees of the defendant company on site during this period:
Statement of Luis Bustamante, Foreman, Abigroup to Police 20/12/95
. . . The employees who were permanently on site were the Administrator Troy MORRIS, a labourer Paul WARREN and myself. There were a number of other employees were attended the site regularly, but who did not work there permanently. Those persons from Abigroup include the Foreman Paul POIDEVIN, the Project Manager Maurice BOLGER and a Labourer Barry JESSOP.
Additional Statement of Peter Deane, GM, Abigroup, to WorkCover (Insp Maltby) 13/03/1996, Q18 Additional answer
Q. What procedures do Abigroup Contractors Pty Limited have in place in the event that services are exposed during construction/demolition work.
. . .
A. Monday 6 November 1995 - SRA flagmen on site inspecting the works. Also look over job site with Abigroup Foreman - Mr Paul Poidevin - for any obvious problems or obstructions.
Tuesday 14 November 1995 - Peter Serghis from the SRA on site conducting cable searches over site.
Friday 17 November 1995 - Cable search conducted over whole site with Peter Serghis and Laurie Hall from the SRA and Roger Sibley from Capital Works Management and Luis Bustamante, Site Foreman, Abigroup Contractors Pty Limited.
Tuesday 21 November 1995 - Cables search conducted by Mal Ridgeway with Roger Sibley, Luis Bustamante and Maurice Bolger, Abigroup Contractors Pty Limited Project Manager.
I am satisfied it appears from the material the named persons in the charge were Abigroup employees on site between 10 November 1995 and 4 December 1995.
56 As to the presence of the charged gas supply line on the KSU site between 10 November 1995 and 4 December 1995, the coronial material reveals:
Statement of Inspector Paul Mansell - 29/12/95, page 7
This pipe was left for over two weeks with no attempt made to have it "cut off" further back "off site". This presented a real risk on the site.
Peter G Deane General Manager, Abigroup to WorkCover 12/03/96 (Additional Statement)
Also, during the course of the demolition works Abigroup site personnel and Capital Works Management, the Project Managers, were on site discussing protection of services and public safety on a continual basis. The Superintendent had no problems with our protection set-up.
Additional Statement of Mr Deane to WorkCover 12/3/96
Luis Bustamante last inspected the protection of the gas service in the demolition area on Thursday 30 November or Friday 1 December 1995. The Superintendent inspected the area around the gas capping on Friday 1 December 1995 and found that protection of this area appeared adequate.
The original protection of the capped gas service was the paving bricks and gas marker. After the brick pavers were removed, the protection included star pickets and barrier meshing. This is what stayed in place until last viewed by Luis Bustamante.
We did not view or agree to any changed protection of the gas service. If it was changed or removed after Friday 1 December 1995, it was done without our knowledge or agreement.
I am satisfied it appears from the coronial material the charged gas supply line remained charged and in an unsafe position on the KSU site during the period of this alleged breach.
57 As to the work performed between 11 November and 3 December 1995 this appears to have been an active construction site:
From Coronial Proceedings, Statement of Robert B Campbell, Plant Operator, Josef & Sons to Police 11/1/96, para 4:
On 2 December, 1995 I was directed by the company, Josef and Sons to go to the Kogarah site. My job was to load demolished material onto trucks . . .
From Coronial Proceedings, Statement of Robert B Campbell, Plant Operator, Josef & Sons to Police 11/1/96
Q8. What work did you perform at the Kogarah Railway Station with that bobcat?
A. Loading the demolition of the shops.
Q9. Were you the only driver of the bobcat?
A. No I shared with the tipper driver, Dennis.
Q10. Is Dennis employed by Josef and Sons?
A. Yes.
Q11. Other than yourself and Dennis were there any other drivers of excavating machinery working on the Kogarah Railway site employed by Josef and Son for the duration of the excavation and demolition?
A. Yes, theres Dennis, me and George. George only drives the bobcat not the excavator. He has another driver driving a 30 tonne SUMATANO excavator by the name of Richard BARRETT.
Q12. Are you aware of what functions the other drivers of the bobcat performed whilst at the Kogarah Railway site?
A. They also cleaned up as well. I wasn't there every day. I arrived about the time the photograph dated 24/11/95 was taken. That's me standing in front of the bobcat and Dennis is driving.
58 I am satisfied it appears construction work was performed on the KSU site in this period and the charged gas supply line continued to be inadequately protected, identified and no proper warning given of its existence.
59 As well as the alleged failures as to the presence of a charged gas supply line left on a construction site (already considered) further failures are relied upon in this charge, namely, the defendant company:
failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line;
and
took no steps to remove a charged gas supply line from a construction area where earth machines were to be operated;
and
failed to prevent the operation of earth moving machinery on the construction area close to a charged gas supply line;
and
the existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
60 These alleged failures all relate to the alleged activities of earth moving machinery particularly an excavator on site in the period 11 November to 3 December 1995 (inclusive). The coronial material relied upon as to the use of an excavator on site in an area near a charged gas supply line during the relevant period is as follows:
Statement of Robert B Campbell, Plant Operator, Josef & Sons to Police 11.1.96
Q12. . . I wasn't there every day. I arrived about the time the photograph dated 24/11/95 was taken. That's me standing in front of the bobcat and Dennis is driving.
and
Q8. What work did you perform at the Kogarah Railway Station with that bobcat?
A. Loading the demolition of the shops.
Q9. Were you the only driver of the bobcat?
A. No I shared with the tipper driver, Dennis.
Q10. . . ..
Q11. Other than yourself and Dennis were there any other drivers of excavating machinery working on the Kogarah Railway site employed by Josef and Son for the duration of the excavation and demolition?
A. Yes, theres Dennis, me and George. George only drives the bobcat not the excavator. He has another driver driving a 30 tonne SUMATANO excavator by the name of Richard BARRETT.
Q12. Are you aware of what functions the other drivers of the bobcat performed whilst at the Kogarah Railway site?
A. They also cleaned up as well. . . .
Statement of Christopher Stoeski, Leading Hand, Josef & Sons, to Police 5/12/95
The first time I saw the gas pipe exposed was when the excavator pulled away the footings from the Fish and Chip shop last week. I could see the gas pipe was yellow plastic conduit which was capped by a red plastic cap. This pipe was leading to the metal gas cap placed in the footpath, but became exposed when the soil subsided under the pavers on the footpath. When the pipe became exposed I told Lewis and together we put a wooden marker to indicate the pipe into the ground.
Statement of Christopher Stoeski, Leading Hand, Josef & Sons, to Police 5/12/95
After the gas pipe became exposed we completed demolishing the footings we moved onto the other area and commenced demolishing the concrete stairs. The smaller excavator which we used to demolish the buildings was removed and a larger excavator was brought in for the stairs and the area near the stairs. After we commenced work on the stairs which were approximately 6 to 7 metres away we did not work near the exposed gas pipe again.
From Coronial Report para 32
The failure of . . . and Abigroup to make an appropriate application to the WorkCover Authority, their failure to ensure that the workplace site was as safe as possible by the proper disconnection and marking of the 'live' gas pipe, . . .adds to the conclusion that there was a clear lack of care with regard to workplace safety on the construction site.
I am satisfied during the relevant period it appears a charged gas supply line was left in a construction area where an excavator operated.
61 Other particulars also relied upon, are the defendant company:
failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.
and
failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
62 I do not believe it is necessary to consider the above particulars. I am satisfied the defendant failed to ensure the charged gas supply line was properly protected, identified and any proper warning given of its existence on a construction site where an excavator operated. I am persuaded it appears such failures led to a risk to safety and therefore it appears from the coronial material the defendant company failed to ensure persons in its employ were not exposed to a risk to safety between 10 November 1995 and 4 December 1995.
63 It follows it appears an offence has been committed under s15(1) of the Act and the proceedings, I find, have been instituted within time under s49(4) of the Act.
Matter No. IRC5434 of 1999
64 This charge is brought under s16(1) of the Act and alleges between 10 November 1995 and 4 December 1995 the defendant:
failed to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking at its place of work.
65 The statement of Mr Campbell (see para 57) reveals it appears persons not in the employ of Abigroup were on site between 10 November and 4 December 1995. It appears those persons were on the KSU construction site, at work, during the relevant period.
66 I am also satisfied it appears from the coronial material, including Mr Deane of Abigroup's chronology of activities on site as referred to previously, the construction site at Kogarah was, in the relevant period, the defendant company's place of work in which it was conducting its undertaking.
67 As to the "risks" on site in this period I rely on the material considered as to the alleged failures in matter No. IRC5436 of 1999 brought under s15(1) of the Act for the same relevant period. The particulars relied upon in this charge are similar and the reasoning of the court is applicable to this charge (see paras 55-62).
68 I am persuaded therefore from the coronial material it appears the charged gas supply line was left on the KSU site in a position which was unsafe where construction activity was taking place between 10 November and 4 December 1995. It appears there was a failure to properly identify, protect and warn of the existence of the charged gas supply line. It appears these failures created a risk to safety on the KSU site between 10 November and 4 December 1995 to persons not in the employ of the defendant company.
69 It appears therefore from the coronial material an offence was committed under s16(1) of the Act in the relevant period. I find the prosecution was therefore instituted within time under s49(4) of the Act.
Matter No. IRC5438 of 1999
70 This charge is the sole charge related to the third time period identified in the chronology of activities on the KSU site. The charge relates to the day the two explosions occurred, Monday 4 December 1995. It is alleged the defendant committed a breach of s16(1) of the Occupational Health and Safety Act 1983 on 4 December 1995 when it:
failed to ensure persons not in its employ were not exposed to risks to their health and safety arising from the conduct of its undertaking at its place of work.
71 The defendant company made no particular submissions relating to the application of s49(4) to this charge. Accordingly, I simply consider the material in the Coronial Report and proceedings.
72 From the material in the Coronial Report and proceedings it appears persons such as Mr Campbell and Mr Stoeski were persons not in the employ of the defendant company and who were at work on the KSU site on 4 December 1995.
From Coronial Report (para 30)
Mr Robert Campbell was operating a Daewoo excavator on the site on 4th December, 1995. In the course of operating that excavator he cut a batter running from the northern end of the site towards the southern being towards the ramp and the northern wall of Mei Yee Fashions. He had a partially obscured view of the work he was performing with the bucket and other difficulties resulted in him working with the bucket and arm at full extension . . . Campbell was aware of the stake and bunting which had been placed there to mark the pipe but he said that meant nothing to him. He further stated that he was told by Mr Stoeski that all services had been cut off. Campbell further claimed while using the Daewoo he saw the yellow pipe exposed for about one foot (not near where the stake and bunting were placed) and he stopped work. . . . Campbell agreed that the nature of the controls and the magnitude of the forces generated by the excavator itself was such as to make it, at least, unlikely that the driver of the excavator would perceive the precise point, nature or force of an impact between the bucket of the excavator (or its teeth) and pipe. Added to that is the fact that Campbell was working in an unstable situation - driving an excavator with bucket and arm at full extension and cutting a batter.
Statement of Robert Campbell to Police 11/01/96
I was given instructions by the foreman, Chris STOSEKA [sic] as to what materials had to be removed by the bucket excavator. I said 'What services are here?' He said 'They have all been cut off'. I assumed from that the excavation site was clear of any services including gas and water. I also checked on the footpath for any gas hatches, by this I mean the gas type fitting to indicate there is gas connected. At this point there was no exposure of any pipes out of the ground that I saw.
Statement of Robert Campbell to Police 11/01/96
. . .On the Monday, 4 December, 1995 I was digging, using the bucket, near the end of where the gas pipe was, this is the top of the batter, which is the top surface of the existing dirt. The edge of this batter is about 5 metres from the dress shop wall. This batter had to be evened up to about a 45 degree angle as such you are removing excess material and shaping the batter. Whilst doing this with the excavation bucket I saw the side of a yellow pipe. I stopped immediately and called Chris, the foreman over. I said 'What is this?' indicating the pipe. The part I had exposed was the part of the pipe leading into the elbow of the pipe. He said 'It's just the existing line after they cut it off.' I knew it was a gas pipe.
Statement of Robert Campbell to Police 11/01/96
On that day and part of Monday, 4 December, 1995 I loaded the demolished material onto trucks, by demolished material I mean broken concrete, some wood, but mostly concrete. I loaded material from the railway stairs to half way along the excavation site to the south end (dress shop and amusement parlour end). The machine was standing about two metres from the gas pipe towards the railway stairs.
Statement of Robert Campbell to Police 11/01/96
I assumed that this was the old pipe and had been cut off much further away from the batter. I still had to keep digging and dress the batter but I kept away from the pipe. Chris had a look around the pipe and said 'It's OK'. He exposed the elbow part of the pipe and the end with the stopper on it and it stuck up in the air but I don't know how much. I could see for myself that it was ok. The pipe was still intact in its bed or trench.
Statement of Inspector Paul Mansell, 29/12/95 (pages 7-8)
In my opinion the cause of the gas leak at Railway Parade on 4 December 1995 was due to 'live' gas pipe being permitted to remain in the area of work when machinery was being used in demolition/building work.
and
This pipe was left for over two weeks with no attempt made to have it 'cut off' further back 'off site'. This presented a real risk on the site.
and
No demolition work should be carried out in the vicinity of active gas piping for the obvious reason that those pipes and fittings can be damaged or pulled appart [sic] thus creating risks to persons nearby. Damage by mechanical force to pipework can cause leakages at points that are difficult to identify and repair.
and
All gas pipes must be adequately marked and effective barriers placed so that damage to pipework be minimised.
I am satisfied it appears from the coronial material there were persons not in the defendant company's employ conducting activities in a construction area with the use of an excavator on or near a charged gas supply line.
73 As to the KSU site from the following coronial material it appears on 4 December 1995 it was an Abigroup place of work in the performance of its undertaking:
Additional statement of Peter Deane 12/3/96
Luis Bustamante last inspected the protection of the gas service in the demolition area on Thursday 30 November or Friday 1 December 1995.
. . .
We did not view or agree to any changed protection of the gas service. If it was changed or removed after Friday 1 December 1995 it was done without our knowledge or . . . .
Statement of Maurice Bolger, Abigroup to Police19/12/95
I have been employed with the Abigroup group of companies for the past 9 years. I am currently the Project Manager for the Kogarah Railway Station Project. I have to oversee the total administration and construction of the Project on behalf of Abigroup Contractors Pty Limited. This is done with the assistance of the workers on site. . .
74 From the Coronial Report and proceedings I am satisfied it appears a charged gas supply line was left in a position that was unsafe in an area which was a construction site on 4 December 1995. It further appears the charged gas supply line was not adequately protected and identified nor any adequate warning given of its existence. I am persuaded such failures of the defendant company in the performance of its undertaking at its place of work on 4 December 1995 it appears led to a risk to the safety of persons not in the employ of the defendant company under the provisions of s16(1) of the Act. I am satisfied therefore the proceedings were instituted within time under s49(4) of the Act.
As against Luis Bustamante
Matter No. IRC5503 of 1999
75 It is alleged on or about 10 November 1995 the defendant being an employee of Abigroup whilst at work and contrary to s19(a) of the Act:
failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur.
76 This charge relates to a single day, 10 November 1995, the day the gas was disconnected. At trial, the prosecution conceded in their final address the evidence led had not met its onus to prove Mr Bustamante was present on site on 10 November 1995. Therefore, the defendant submitted as the matters raised in respect of matter No IRC5503 of 1999 were no longer a live issue dealing with the application brought by them under s49(4) in relation to this charge being commenced out of time, is academic and unnecessary. I reject this submission. The issue raised under the s49(4) application is whether it appears from the Coronial Report and proceedings an offence was committed. The defendant's submission reveals the real difficulties in the conduct of proceedings attached to the bringing of the s49(4) application so late in proceedings as here at the close of trial. The authorities have clearly commented upon such an interruption to the trial process (see authorities as referred to in WorkCover Authority of NSW (Inspect Maltby) & Anor v Abigroup Contractors Pty Ltd & Anor) [at 36-45]; and matters such as Price v Humphries [1958] 2 QB 353; R v Day (1940) 29 Crim App R 168; [1940] 1 All ER 402; R v Turner [1910] 1 KB 346; Dever v Crevey; ex parte Crevey (1992) 1 Qld R 237; R v Waller [1910] 1 KB 364).
77 Much of the evidence before the Coroner and in the Coronial Report as to the activities of Mr Bustamante on 10 November 1995 was not admissible in the trial but was placed before me by the prosecution for the purpose of the s49(4) application.
78 There are many statements in the Coronial Report and proceedings herein referred to which reveal it appears Mr Bustamante was on site "at work" on 10 November 1995 (see para 36). It appears he was an Abigroup employee (see para 33). It appears there were employees from Abigroup and AGL on site on 10 November 1995. it appears AGL cut and capped the gas supply line at Shop 7, Railway Parade, Kogarah. The capping was within one metre of a building which was to be demolished. The gas supply line remained charged. The defendant was present when the capping occurred and observed where it was capped and took no steps to remove it from what he acknowledged was to be a demolition site (see para 36).
79 It appears from the coronial material the defendant was the foreman on site and knew demolition was to occur and he was responsible for making the site safe and the cutting to be a safe working distance (see para 36).
80 It appears the defendant marked the capped gas service with a wooden pole and relies on the paver protection (see paras 42 and 60).
81 It appears the defendant failed to take steps to adequately protect, identify and mark the charged gas supply line (see paras 42, 60, 78). It appears the defendant failed to remove the charged gas supply line in an area where construction work was designed to occur and failed to realise its existence was inherently dangerous and he took no steps to ensure earth moving machines did not operate in the area which was "to be" a construction zone (see paras 36, 42, 47 & 60).
82 It therefore appears Mr Bustamante failed to take reasonable care for the health and safety of persons who were at his place of work and who may have been affected by his acts and omissions in that the defendant did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur.
83 I am satisfied from the Coronial Report and material it appears an offence was committed under s19(a) of the Act and therefore the charge was brought within time under s49(4) of the Act.
Luis Bustamante
Matter No. IRC5502 of 1999
84 It is alleged between 10 November and 4 December 1995 at Kogarah, the defendant being an employee of Abigroup, whilst at work contrary to s19(a) of the Occupational Health and Safety Act 1983:
failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur.
85 The defendant submitted this charge applies for the period 11 November to 3 December (inclusive). The defendant submitted nothing appears from the coronial record that supports the proposition the failures as alleged arose before the commencement of the demolition work that being 18 November 1995.
86 I have already considered the relevant coronial record and found it appears from the coronial material this was a construction site on or about 10 November 1995. It appears from the coronial material the KSU site became an active construction site by 30 October 1995 (see para 33). It appears the defendant was "at work" in the relevant period (see paras 55 & 56) and served on the KSU site as foreman (see para 33).
87 It appears from the coronial material the marking of the capped charged gas supply line continued, under Mr Bustamante's supervision, on the site in the requisite period to be a stake and bunting. It appears from the coronial material the markings or identification of the charged gas supply line in the relevant period continued to be approved (see para 42).
88 It appears construction and demolition work was active on the site during the period. It appears there was an excavator and earth moving machinery on the KSU site in the period (see para 57). The defendant failed to address the existence of a charged gas supply line in an area where construction work was performed and earthmoving equipment used. I am further satisfied it appears from the coronial material Mr Bustamante took no steps to remove the charged gas supply line from the construction site and in the use of a stake and bunting it appears he failed to adequately protect, mark and identify the charged gas supply line. I am satisfied such failures could be held to be a acts and omissions which have affected the safety of others and such failures appear as his failure to take "reasonable care" at his worksite.
89 Accordingly, it appears from the coronial material there was an offence committed under s19(a) of the Act in that the defendant failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant it appears did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. Therefore the charge is brought within time under s49(4) of the Act.
The Trial
90 Having determined all summonses issued against both defendants have been issued within time under the Act the matters go to trial. The court must view the evidence offered at trial to determine the liability on each and every charge brought against Abigroup Pty Ltd and on each charge brought against the other defendant, Luis Bustamante. It is noted some of the material considered above in the s49(4) limitation application was either called, tendered and/or admitted in the trial of the charges.
Agreed Facts
91 Relevantly and of great assistance to the court an Agreed Statement of Facts was tendered in the trial.
As to the parties to the prosecution and companies present on the site it was agreed:
1. Inspector Paul Anthony Mansell of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983 and is empowered under Section 48 of the said Act to institute proceedings against Mr Luis Bustamante.
2. Inspector Kathleen Maltby of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983 and is empowered under Section 48 of the said Act to institute proceedings against Abigroup Contracting Pty Limited.
3. Abigroup Contractors Pty Limited [ACN 000 201 516] (Abigroup) is a corporation duly incorporated in New South Wales with its registered offices at First Floor, 25-29 Bridge Street, Pymble NSW 2073.
4. The State Rail Authority of New South Wales (SRA) is a statutory authority constituted pursuant to Section 4 of the Transport Administration Act, 1988 (NSW).
7. AGL Gas Networks Limited [ACN 003 004 322] (AGL) is a corporation duly incorporated in New South Wales with its registered office at AGL Centre, 111 Pacific Highway, North Sydney NSW 2060.
8. The SRA was the relevant Authority which owned the Kogarah Railway Station and its surrounding areas, including shops 3, 5, 7 and 9 Railway Parade, Kogarah. Prior to demolition in 1995, these shops operated with the trading names:
(a) Shop 3 - Railway Fruit Market;
(b) Shop 5 - Railway Fruit Market;
(c) Shop 7 - Kogarah Seafood
(d) Shop 9 - Toy/Gift Shop
As to the task on site it was agreed:
9(a) The SRA required the Kogarah Railway Station and its environs to be upgraded.
(b) The project was called the Kogarah Station Upgrading (KSU), which included in part demolition of the concrete steps at the entrance to the Station on the eastern side; the uplifting and removal of pavers in the mall area outside Kogarah Town Centre; the demolition of retail shops 3, 5, 7 and 9 Railway Parade, Kogarah, and construction within the KSU.
As to the contracts for work on site it was agreed:
10(a) For the purpose of tendering to the SRA for the right to provide services for upgrades to various metropolitan stations, a group of companies formed a joint venture, the Station Upgrade Joint Venture (SUJV).
(b) The SUJV was constituted by the companies TMG International Pty Limited, Edwards Madigan Torzillo Briggs Pty Limited, Group One Interiors Pty Limited and three further corporations, Arup Partner Pty Limited, Ove Arup Consult Pty Limited and Ove Arup Pty Limited.
(c) Arup Partners Pty Limited, Ove Arup Pty Limited and Ove Arup Consult Pty Limited traded pursuant to the business name Ove Arup & Partners.
(d) The SUJV in furtherance of the joint venture operated and traded under the name of Capital Works Management (CWM) which was registered as a trading name on 15 December 1994
11(a) The SRA engaged SUJV (later renamed CWM) on 29 July 1994 for the design, tender process and the supervision to completion of the upgrading of a number of SRA facilities including the Kogarah Station upgrading (KSU).
(b) SUJV was appointed as the Project Manager and the Superintendent of the contract at the KSU between the SRA and Abigroup.
As to the work on site it was agreed:
12. AGL Gas Networks Limited (AGL):
(a) carried on business as a supplier of gas;
(b) was the owner of gas supply lines in Railway Parade, Kogarah;
(c) was the owner of the gas within the said gas supply lines;
(d) had the care, control and management of the said gas supply lines and of the supply of gas within the lines;
13(a) In and around the Kogarah station area gas was reticulated by means of a yellow nylon tubing, known as "Goldline", "Rilsan" or "Rilsanol".
(b) Prior to the use of Goldline, gas was reticulated through galvanised metal pipes.
(c) The Goldline in the relevant vicinity of the KSU was inserted in the prior galvanised metal reticulation pipes.
14. The premises to the south of 3, 5, 7 and 9 Railway Parade on the western side of Railway Parade and the border of the railway line were as follows:
(a) No 11 Railway Parade - Mei Yee Fashions Ladies Dress Shop;
(b) No 13 Railway Parade - Family Amusement Zone (FAZ) being an electronic amusement centre and games parlour;
(c) No 15 Railway Parade - St George Tobacconist Shop;
(d) No 17 Railway Parade - Oasis Seafood Café.
As to the events of Monday 4 December 1995, it was agreed:
15(a) Monday 4 December 1995 was the scheduled picnic day for the building industry including employees of the SRA and Abigroup.
(b) Employees of the SRA, including the safety officers were not present at the KSU.
16(a) At approximately 1.55 p.m. Constable Adams and Constable Stephens attended in a Police motor vehicle from Kogarah Police Station.
(b) Whilst stationary at the lights at the corner of Railway Parade and Montgomery Street, they were able to smell gas.
17. At approximately 1.57pm the Police Officers inspected a crack in the pavement outside FAZ where gas was escaping.
18. The Police Officers called for further Police to attend and attempted to direct people away from the area.
19. At approximately 2.00 p.m. a gas explosion occurred.
20. The explosion blew out the front of FAZ causing damage to a number of shops in the immediate vicinity.
21. As a result of the explosion, Mina Bakhoum and Gregory Maybury sustained fatal injuries. At least 16 other persons sustained burn injuries.
22. Members of the New South Wales Police were present at Railway Parade, Kogarah.
23. Members of the new South Wales Fire Brigade were also present, misting the flames.
24. At approximately 4.00 pm on 4 December 1995, a second explosion occurred inside FAZ.
25. A number of Fire Brigade officers were inside FAZ when the second explosion occurred.
92 I am satisfied the two WorkCover Inspectors were empowered to institute these proceedings against each defendant, and that Abigroup is a company duly incorporated in NSW.
The Contracts
93 After determining the Kogarah Railway Station and its environs be upgraded as part of a NSW Station Upgrade programme, the SRA formed the SUJV/CWM to plan and design the work. The SUJV/CWM acted as Project Manager. The SRA then called for tenders for the upgrade work. The tender document read in part:
STATE RAIL AUTHORITY OF NEW SOUTH WALES
CITYRAIL
SPECIFICATION No. C94/0848
CONSTRUCTION OF EASY ACCESS & UPGRADING
WORKS AT KOGARAH STATION
Tenders close at 10.00 am on
Wednesday 19 July, 1995
. . .
PREAMBLE
. . .
As a part of its achievement of this objective, CityRail has established a Station Upgrading Programme to upgrade 294 stations in the CityRail Network over a five year period.
CityRail wishes to appoint a Construction Firm (hereinafter termed the "Contractor") specialising in the construction of similar projects to undertake this Construction Contract which involves the provision of all materials, labour, plant and equipment necessary for the construction of Easy Access and Upgrading Works at Kogarah Station.
Technical details of the work are specified in Part E of this Specification. The Contract shall be on the basis of fixed lump sum (not subject to Rise & Fall).
Tenders will be evaluated in accordance with the criteria set out in clause A13 - Evaluation Criteria.
Track Possessions may be involved with this Contract (refer to Tender Schedule B11 and Appendix 5).
94 Abigroup was the successful tenderer. The written contracts between the SRA and Abigroup were by way of letter and specification. They are dated and signed on 18 October 1995. The letter of acceptance from the SRA relevantly states as follows:
State Rail Authority of New South Wales
Central Contracts
Contracts & Procurement Division
. . .
18 October 1995
The Secretary
Abigroup Contractors Pty. Ltd.
P.O. Box 195
PYMBLE NSW 2073
Attention: Mr. Paul Cejka
Dear Sir,
CONTRACT No. 95032
CONSTRUCTION OF EASY ACCESS &
UPGRADING WORKS AT KOGARAH STATION
The State Rail Authority of New South Wales accepts your Company's Tender dated 19 July 1995 for the Construction of Easy Access & Upgrading Works at Kogarah Station, in accordance with Specification No. C94/0848 for the Adjusted Fixed Lump Sum Price (not subject to Rise and Fall or Exchange Rate Variation) of $4,319,930 made up as follows:
Original Tender Price: $4,426,700
less option to deleted Tactile Tiles: $ (106,770)
Adjusted Fixed Lump Sum Tender Price: $4,319,930
The Contract between the Authority and Abigroup Contractors Pty. Ltd. shall be entirely constituted by this Letter of Acceptance and the documents listed in the Schedule below.
The Date for Practical Completion of the Works shall be 220 calendar days from the date of this Letter of Acceptance. The Date for Possession of Site will be notified serarately by the Superintendent.
. . .
Contract No. 95032
All details of work under the Contract will be arranged with your Company directly by the Superintendent, the Construction Manager, Capital Works Management, Level 7, 55 Clarence Street, Sydney NSW 2000 (telephone (02) 262 4088).
In accordance with the General Conditions of Contract all payment claims/invoices must be forwarded to the Superintendent for certification.
. . .
SCHEDULE
1. Specification No. C94/0848 "Construction of Easy Access & Upgrading Works at Kogarah Station" (comprising Preamble, Parts A to E, Appendices 1 to 5 and Notes of Site Meeting held on 3 July 1995).
2. Your Company's Tender dated 19 July 1995 for Specification No. C94/0848.
3. Facsimile dated 26 July 1995 from the Authority to your Company (1 page).
4. Letter dated 26 July 1995 from your Company to the Authority and its enclosures (19 pages).
5. Letter dated 22 August 1995 from your Company to the Authority (1 page).
6. Facsimile dated 21 September 1995 from the Authority to your Company (2 pages).
7. Letter dated 21 September 1995 from your Company to the Authority (1 page).
8. Facsimile dated 18 October 1995 from your Company to the Authority (1 page).
Yours Faithfully
J KOUTSIS
GENERAL MANAGER
CONTRACTS & PROCUREMENT
The schedules No 1-8 referred to were not tendered.
95 The contract relevantly stated:
Construction of Easy Access & Upgrading Works at Kogarah Station
SPECIFICATIONS
Preamble
CityRail wishes to appoint a Construction Firm (hereinafter terms the "Contractor") . . . to undertake this Construction Contract which involves the provision of all materials, labour, plant and equipment necessary for the construction of Easy Access and Upgrading Works at Kogarah Station.
. . .
D3 RESPONSIBILITIES OF THE CONTRACTOR
D3.1 Construction and Commissioning
The primary responsibilities of the Contractor during Construction and Commissioning shall be:
(a) Construction
(i) in a thorough and tradesmanlike manner and using the best materials and workmanship consistent with the Specification, construct and complete the whole of the Works in accordance with the Contract including:
(A) correctly set out the Works in accordance with the Contract and to provide all instruments and things necessary for that purpose. Dimensions shall not be obtained by scaling from the drawings. The Contractor shall check all dimensions and setting out prior to the commencement of the Work. The Contractor shall verify the dimensions of existing work before proceeding and shall notify the Superintendent of any discrepancies;
(B) On a daily basis, monitor and upgrade (as required) all pedestrian walkways, their guard rails, and adjacent construction components to give good unimpeded access to the general public.
(C) supply all materials, labour, plant and equipment and everything else necessary for the execution and completion of the Works and the Contractor's obligations under the Contract, including such site establishment, services and facilities as are usually provided by a contractor to its sub-contractors;
(D) establish, maintain and administer an industrial relations policy for the Works which will facilitate the timely and economical completion of the Works;
(E) keep the site and work under the Contract clean and tidy and regularly remove rubbish and surplus material;
(F)(i) comply with all other obligations imposed upon it by the Contract; and
(ii) use Quality Assurance Procedures to monitor the manufacturing and construction activities and verify compliance with
a) relevant standards recommendations and statutory requirements
b) the Specification including any necessary testing and techniques
(b) Commissioning
(i) to manage and co-ordinate the initial occupation, operation and commissioning of the Works and the activities of others necessary for commissioning in accordance with the Contract;
(ii) within fourteen (14) days after the Date of Practical Completion to remove all of the Contractor's temporary buildings, workshops, plant and equipment on the site and leave the site clean and tidy and ready for immediate use or occupation; and
(iii) to rectify the defects which become apparent during the Defects Liability Period within a reasonable period as required by the Superintendent.
(iv) use Quality Assurance Procedures to monitor compliance with
a) the Specification
b) any performance criteria called for
D4 CONSTRUCTION PROGRAMME
. . .
D4.2 Approval
The Superintendent will accept or reject the Construction Programme within two (2) weeks after the delivery of the Construction Programme. The Contractor shall amend and resubmit the Construction Programme as directed by the Superintendent until the Superintendent accepts the Construction Programme. Such acceptance shall not restrict the Superintendent from requiring adjustments to the programme to prevent undue interference to the travelling public at no change in Contract price. Timing changes of such adjustments to be as agreed between both parties.
D4.3 Formal and Details
(i) The Programme shall take the form of activity-oriented network-analysis diagrams showing stages of the works and activities which accurately represent the Contractor's proposed method of completing the entire work under the Contract and with the critical path clearly defined.
(ii) In preparing the network, the Contractor shall ensure that the total resources required for the execution of the work according to his programme the Contractor The Programme the Contractor The Programme are at all times within the resources he can provide or call upon.
(iii) The Contractor shall ensure that the sequence and time requirements for the operations of all parties associated with the Works, including the Principal's on-site Operations and approvals required by Authorities, are including in the Programme. . . .
D5.3 Working Areas
Work outside of the designated construction zones shall only be carried out with the prior approval of the Superintendent and when permitted shall be carried out so as to cause minimum disturbance to Railway Staff and the General Public.
The Contractor shall provide all fencing and hoardings around the work areas to separate the work areas from public areas and to keep safe the public to the satisfaction of the Superintendent.
. . .
D5.6 Site Access
The Contractor shall arrange for his own access to the site, including any negotiations and agreements with local property holders and/or councils.
. . .
D7.3 Obeying Instructions of the Superintendent
All persons engaged by the Contractor shall carry out immediately any instructions issued by the Superintendent.
In the event of such instructions not being complied with to his satisfaction, the Superintendent shall have power to stop immediately al work by the Contractor on or off the Principal's property pending full compliance with such instructions.
. . .
D7.4 Awareness of Conditions of Works
The Contractor shall ensure that all persons engaged by him in connection with the work under the Contract are acquainted with and clearly understand all special conditions as far as his particular duties are concerned. If, in the opinion of the Superintendent, any person misconducts himself or is incompetent or negligent in the performance of his duties or, for some other reason, does not meet the requirement of the Contract, the Superintendent may direct that such person be removed from the site.
D7.5 General Safety Requirements
The Contractor shall at all times take all necessary precautions for the safety of all workmen engaged on the work under the Contract and of the public, appropriate to the nature of the work and the conditions under which it is to be performed, and shall comply with all statutory requirements and any other safety measures as directed by the Superintendent.
D8 WORKING PROCEDURES
D8.1 Control of Times and Locations for Work
The performance of any work by the Contractor on the principal's property shall be confined to such times and such locations as are determined by arrangement with the Superintendent.
D10.2: Existing Operational Services
10.2(d) Underground Services
Prior to the commencement of work on site, the Contractor shall take all possible steps to ascertain the location of all underground services (i.e. cables, pipes and the like) in particular by:
(i) Site inspection
(ii) SRA underground services search reports - apply to local District Electrical Engineer, local District Signal Engineer, local District Civil Engineer & Telecommunications section
(iii) Enquiries direct to Public Utilities for bridges, subways & land adjacent to platforms
Notwithstanding the information provided by the SRA search reports and enquiries to Public Utilities, the Contractor shall assume that unrecorded services may be encountered and shall take all necessary precautions against damage to services or risk of electric shock to people in vicinity when any excavations are made.
Where services are exposed the Contractor shall take all necessary steps to protect them from damage due to the construction work or vandalism
In the event of any damage to cables, pipework or other underground service, the Contractor shall immediately inform the Superintendent and take all necessary precautions to protect the damaged portion. In the case of damage to cables assume the cable is still live until advised otherwise and take all necessary steps to prevent risk of electric shock to workers and the general public.
D10.2(e) The Contractor shall contact the Superintendent before commencing work on the site and shall inspect the location of all services in the presence of the Superintendent. The Contractor shall immediately notify the Superintendent in the event of damage to any water, gas, steam, compressed air, electric, drainage, sewerage, telephone, fire alarm, control cable or other services in the area
Where a service is identified to the Contractor in the Contract or is evident on the site or has been pointed out by the Superintendent the Contractor shall be responsible for the cost of any necessary repairs to that service should it be damaged by the Contractor.
D15 SITE MEETINGS AND CONTRACTORS REPORTS
. . .
D15.1 Site Meetings
Regular site meetings will be held for the purpose of assessing progress and co-ordinating the work.
The Contractor will chair site meetings and will keep minutes of the proceedings, and shall within five (5) working days provide copies of the minutes for all present at the meeting and others concerned with the matters discussed. The Superintendent shall receive a copy of all such minutes.
96 The contract should be viewed as most comprehensive. It detailed under E1 the Scope of the Works. Finer details were in the Technical Specifications sections which covered general building requirements, demolition, groundworks, concrete, masonry, structural steel, metalwork, woodwork, glazing, hardware, partitions, roofing, suspended ceilings, doors, tiling, resilient finishes, plastering, painting, carpets, hydraulic services, fire protection services, electrical services, mechanical services and lift services.
97 Appendices to Part E1 contained - door, finishes, signage, furniture and miscellaneous detail schedules; schedule of drawings; schedule of SRA standard drawings (woodwork), schedule of SRA standard drawings (graphic art), performance specifications (tiles), performance specifications (tactile tiles), schedule of approved standard luminaries for installation on railway station, schedule of standard lighting columns and schedule of SRA standard electrical drawings.
98 The defendant company, therefore, for the purpose of the construction of the Easy Access and Upgrading Works at the KSU was, under the contract, responsible for preparing the site, the daily work programme, the quality of the said work, all fencing and hoardings around the work areas, general safety requirements for all workmen engaged under the contract and for the safety of members of the public. They were responsible for all statutory requirements relating to the works. They were particularly responsible for the location and protection of services.
99 It appears in the negotiations leading to the contract there was a site meeting on 3 July 1995 between Abigroup and the SRA. No particulars of that site meeting are before me.
The KSU Site
100 Shop Nos 3,5,7 and 9 beside the Kogarah Railway Station were to be demolished as part of the upgrade. They were situated beside the railway line on the eastern side of the railing and the western side of Railway Parade, Kogarah. When the shops were demolished, there remained four shops on Railway Parade on the SRA site: from north to south, Shop No 11 - Mei Yee Fashions, Shop No 13 - Family Amusement Zone, Shop No 15 - St George Tobacconist and Shop 17 - the Oasis Seafood Café. Also to be demolished were the old concrete stairs to the railway platforms and a retaining wall left after the shops were demolished on site.
101 The demolition of the shops, stairs and surrounds was sub-contracted out to a demolition company, Josef & Sons Contracting Pty Limited.
102 There was then construction work to be done by Abigroup to build a ramp to allow for access to platform No 4 of the Kogarah Railway Station. The platform extension work was performed then by SRA employees and was overseen and involved the work of an Abigroup employee. Some steel work was to be constructed and delivered to the site for the platform extension by the defendant company.
103 The responsibility for the management of the site is relevant. Gary Martin Dilly was the nominated Superintendent of the SUJV/CWM. He stated:
It essentially took over the operations of an SRA department whose objectives were to originate designs for stations and general maintenance on the CityRail network, superintend the detail design from external architects, superintend the construction and anything else in relation to what the SRA asked us to do.
. . .
. . . All of those functions and responsibilities that I had under that contract I passed on to the superintendent’s representative, who acted in my stead.
That person was, he revealed, Roger Sibley whose role at the KSU, Mr Dilly said was:
. . . to administer the contract and carry out those duties nominated in the contract between Abigroup and the SRA.
104 Abigroup had three permanent employees on site, Luis Bustamante, the site project supervisor, often referred to as the site foreman, Troy Adrian Wayne Morris, the site administrator and Paul Andrew Warren, a leading hand labourer. Paul Cejka was the construction manager of Abigroup overseeing all the above persons. He visited the site approximately twice a week. Mr Cejka, a civil engineer, had a number of project managers under his control working on the various Railway Station upgrades. Abigroup, it appears, held more than one contract. Maurice Bolger was the project manager for Kogarah who answered to Mr Cejka. Mr Bustamante and Mr Morris reported to Mr Bolger. Mr Bolger regularly visited the site but was not based there. Paul Wayne Poidevin was construction supervisor for Abigroup responsible for Platform Reconstruction on a number of the upgrades including the Kogarah platform extension. He used Kogarah as his base but went to other upgrade sites.
105 Evidence revealed on 1 November 1995, Mr Bustamante and Mr R. Josef inspected the site. Mr Bolger revealed on 30 October 1995, Abigroup, under its contract, was granted access to the KSU construction site by the SRA.
106 Mr Cejka accepted clauses 10.2(d) and (e) in the contract between the SRA and Abigroup mandated Abigroup take all possible steps to ascertain the location of underground services. He accepted the clauses put an obligation on Abigroup to contact the superintendent (SUJV/CWM) before commencing work on the site and Abigroup was to inspect the location of all services in the absence of the superintendent. This responsibility was borne by “the site team, being the Project Manager and the Project Supervisor.” Mr Bustamante said at first of his own responsibility at Kogarah he "had control of every activity". In a later statement he amended this answer to say he had "overall control of work activities on site".
107 Abigroup determined to sub-contract out part of the demolition and construction work on site. Mr Cejka let the sub-contracts. He had dealt previously with Josef & Sons Contracting Pty Ltd (Josef & Sons) and, as to this tender for demolition work, he recalled, after the tender process closed, he went back to Mr R Josef, the company's principal and said:
. . . if he would like to have another look at his price and if he could get below a certain amount of money – I can’t recall what it was – then I could see him getting the work on the site.
108 Abigroup engaged Josef & Sons to perform most of the demolition work required on site. The task of Josef & Sons was to demolish a number of shops and the concrete stairs to Platform 4 found on the eastern side of the KSU. The contract between Abigroup and Josef & Sons was settled through a series of letters dated 4 July 1995, 7 November 1995 and 8 November 1995. Josef & Sons Pty Limited is now under external administration. A further company, Josef & Sons Contracting Pty Limited was a related trust company and the owner and/or lessee of demolition equipment used on this site. In accordance with the contract, Mr Bolger required a number of Work Method statements from the demolition subcontractors. These were provided by Josef & Sons and minuted at the site meeting on 21 November 1995. Work on site started earlier.
109 Robert Josef ("Mr Josef") was the principal of the demolition company, Josef & Sons and his son, Daniel Josef, also worked for the company. Both Mr Josefs gave evidence. Mr Josef faces charges brought by the WorkCover Authority under the Occupational Health and Safety Act 1983. A Certificate under s128 of the Evidence Act 1995 was issued to him. The evidence he gave is not therefore admissible in any charge brought against him or in his capacity as a director of a company under the Occupational Health and Safety Act 1983 related to this evidence. Mr Josef was also a director of Josef & Sons.
110 Mr Josef, during and after the contract was signed dealt on a day-to-day basis with Mr Bolger representing the defendant, Abigroup. He identified the three letters which, joined together, made up the contract between his company and Abigroup for the demolition work. Relevantly, as part of the contract, the letter dated 14 July 1995 stated:
JOSEF & SONS CONTRACTING PTY LTD
14 July 1995
Abigroup Contractors Pty Ltd
25-29 Bridge Street
Pymble NSW 2073
Attention: Kevin L. Wadde (maurice bolger)
Dear Sir
Re: KOGARAH STATION UPGRADE DEMOLITION WORKS
Thank you for the opportunity you have given us in pricing this project. Our price is Seventy Five Thousand Dollars ($75,000.00) for the following scope of work:
1. Demolish of stairs and landings - 2 off
2. Demolish retail shops 3,5,7 & 9
3. Remove and store brick paving within hoarding line in front of shops 3,5,7,9
4. Remove entry gates and turnstile
5. Remove trees on Station Street side
Please note that our price does not include any allowance for hoarding or scaffolding, termination of services, any hazardous material removal.
Extra over cost for installation of hoarding for the duration of the demolition is $140,000.
Yours faithfully
Robert Josef
Director
JOSEF AND SONS CONTRACTING PTY LTD
111 On 7 November 1995 a further letter was sent repeating the first agreement and adding:
Additional cost of $4,000.00 for the following as discussed on site:
a. Demolition of kerb and footpath for new dressing
b. Demolition of existing crossing
c. Demolition of stairs and widening to entry gate
d. Demolition of 10 metres length of retaining wall at the back of shops
We also wish to advise that we are not willing to carry out the removal and relocation of the existing signage inasmuch as we believe that it is physically impossible to do so.
112 On 8 November 1995 a further letter referred to the price and the "scope of work" as follows:
1. Demolish of stairs and landings - 2 off
2. Demolish retail shops 3,5,7 & 9
3. Remove & store brick paving within hoarding line in front of shops 3,5,7 & 9
4. Remove entry gates and turnstile
5. Remove trees on Station Street side
6. Hoarding for 6 months duration
7. Dismantling of signage and handover to Abigroup (all care taken but no responsibility for any damages)
The Disconnection of the Gas
113 Before demolition and construction began, services on site had to be disconnected. Some questions of fact as to events surrounding the disconnection of a charged gas supply line were raised. As to findings of fact, I will deal with them within the chronological order of events and determine, from the evidence, the relevant factual findings necessary for my determination as to liability for the breaches as charged. At times the credibility of many of the witnesses was challenged. On some issues those witnesses gave clear and unambiguous evidence but when issues of concern to their interests were raised, evidence became vague. Some of the witnesses themselves face charges under the Occupational Health and Safety Act 1983 and their evidence was in this trial given after the issue of a certificate under s128 of the Evidence Act 1995. Such evidence in this trial would therefore not be admissible against them. There were some allegations that there was collusion related to the testimony of some Josef & Sons employees involving activity on site on 4 December 1995. These challenges and conflicts are dealt with as they arise in this consideration.
114 AGL reticulated its gas supply on this site, the KSU site, through a yellow nylon tubing known as Goldline or Rilsan or Rilsanol. Prior to the use of Goldline, the supply of gas was reticulated through galvanised metal pipes. The Goldline in the vicinity of the KSU had been inserted into the galvanised metal reticulated pipes which had been used to carry the gas supply and which conveniently remained in place. Elbow joints were used to alter the direction of the Goldline gas pipe to allow a new direction for the charged gas supply line and/or to allow gas connections to various premises. These elbow joints were sealed to the adjacent sections of Goldline with glue. In order to insert the elbow joints into the Goldline it was necessary to cut and remove a section of the existing galvanised metal pipe.
115 The main gas supply pipe was laid down the eastern side of Railway Parade, Kogarah and it crossed under the roadway, in a westerly direction, to a point directly outside the FAZ. The line then made a right angle turn and continued along the building alignment of Railway Parade in a northerly direction past the shops for more than five metres where the charged gas supply line made a right angle turn to the west to connect to the gas supply at Kogarah Seafood, Shop No 7. On the footpath was a metal cap marked “gas”. It is necessary to note before demolition there were two seafood shops. This marked the charged gas supply line leading into Kogarah Seafood. The Kogarah Seafood was one of the shops to be demolished. Shop No. 17, the Oasis Seafood shop was left standing in the bank of shops not demolished.
116 On 8 November 1995, a service order was placed with AGL for the disconnection of gas to Shop Nos 3 and 7. The order was placed by Josef & Sons in accordance with the term of their contract. It became clear there was only a gas connection to Shop No. 7.
117 John Princi of AGL with two others from AGL disconnected the gas service on 10 November 1995. Mr Princi cut the pipe and removed the gas box in the footpath from its original place and put it back further from the building alignment over the cut pipe. Mr Bustamante, the Abigroup Supervisor, told Police he spoke to the AGL workman when he came to the site to disconnect the gas. Mr Princi of AGL gave evidence he told the person from the company who joined him when asked how far from the front of the shop was the disconnection point:
That was about 150, 200 - about 200, say, from the shop.
It was put to Mr Princi in cross examination:
Q. . . . do you remember somebody suggesting that it was too close to the building?
A. He say that, but even if you say that, I said, “Where you want the pipe cut”? And he said, “There is good enough, where you're cutting”.
. . .
Q. Do you now say you recall a person suggesting to you that it was being cut too close to the building?
A. He never said anything to me. He never said anything to me. I went to do the job and he was watching and he never said nothing to me. . . .
. . .
Q. Why, when I asked you the earlier question, did you say “He say that”?
A. He probably will say but not to me; he could say to somebody else but he didn't say to me.
Sometime later, Mr Princi said in evidence:
A. But if he was said – if he said to me to cut it back and I cut it back where he wants, the job was done where he wants.
. . . I remember I told about that gas pipe -if he wants the pipe cut off back, if he's going to dig the footpath. This is exactly what I said . .
118 Mr Princi was cross examined to the effect in his statements to the Police and WorkCover he could not recall the words of any conversation he had on 10 November 1995. As to the assessment of Mr Princi’s recollection tendered was an excerpt from the WorkCover Authority's Record of Interview dated 13 December 1995 where Mr Princi said:
I said if you want assistance to cut the pipe back give us a call . . . I said if you want the pipe cut back further call us
. . .
I said if you do need more assistance call the gas company and we coming back.
119 Anthony Neil Gregson Brown, a communications officer for Agility Services, a service company for AGL, was at November/December 1995 working directly with AGL and he, by chance, attended at the site of the KSU on 10 November 1995 with Mr Princi as an observer. His duties as a communications officer required him to allocate jobs and to identify the nature of that work. There were codes used to identify the nature of the work. When the order was received either over the telephone or by way of a job order, the code identified to the field personnel the task. Mr Brown attended this disconnection because he wished to see work "on the job": that is - how the tasks he allocated were performed.
120 Mr Brown saw Mr Princi find the gas valve outside the building line of a shop which he identified as one of a couple of shops all closed off with their windows darkened. A spade, a bar, a cold chisel and a mallet were used to perform the task. The valve cover was taken off, the nylon pipe was found, cleaned, cut and was then squeezed off, glued and capped. When challenged as to the order of these activities Mr Brown said:
. . . you remove the pavers, remove the path valve cover; he dug, he exposed the pipe; he cleaned the pipe; he got squeezers; he squeezed the pipe off and he cut it. Then he cleaned it again and then he glued it.
Mr Brown heard part of a conversation between Mr Princi and another person. His recollection was:
John Princi asked the gentleman what they were going to do. The gentleman told him and Johnny said, ‘Look, where are you demolishing to'? . . .
It was Mr Brown's recollection this conversation occurred after the gas was squeezed off but before the gas valve plate was replaced. He recollected that the cut off was a couple of feet back from where they found the valve. The pavers were then placed back in position.
121 John Zivan Marjanovic, a technician who now works with Agility, was in November 1995 also an employee of AGL. He attended with Mr Princi. It was his recollection as to where they cut the charged gas supply line back:
A. I remember was before the path box path valve . . . .
Q. How far - ?
A. We cut it off before that.
Q. How far before?
A. A foot - can't remember exactly.
He agreed the order identified it was to be a cut off at the building line and later said:
Q. . . . it would be fair to say you're not now sure how far from the building the pipe was cut off; would that be right?
A. Yes, roughly two foot.
. . .
Q. Might have been three feet?
A. No, I don't think so.
122 Mr Marjanovic recollected a man walked through a building door and joined them and Mr Princi showed the man what had been done and where the pipe had been cut off. He recollected the man seemed happy with where it had been cut off. It was Mr Marjanovic's recollection the man to whom Mr Princi spoke came out when the gas lines were exposed. Mr Marjanovic was questioned as to whether he was required by AGL to talk to somebody on the site before a disconnection job was performed and he replied:
If somebody's there to talk to, yes. If nobody there, we know what to do.
In relation to this job he added, as to finding somebody to talk to:
Like I said, we couldn’t go anywhere. There was like a brick wall. It was I think all boarded up.
123 Christopher Stoeski, the leading hand labourer for Josef & Sons gave evidence. He was also issued a certificate under s128 of the Evidence Act as he faces prosecution by the WorkCover Authority under the Occupational Health and Safety Act 1983 related to these two explosions. His recollection as to the gas being cut off was different from that of other witnesses. He recollected the gas people came on two separate occasions to the site. The first time he said was before the demolition started and by the second time they were called the roofs were off the buildings and they were demolished to half way down the walls. He said:.
At the start when we put up the fences around the shops, the shops were still standing. The gas bloke, he was there, a labourer told me, but he went, so it was just disconnected off the wall into the pavers.
On the second occasion Mr Stoeski referred to the demolition site in the following way:
The roofs were there, the wall was there, and we spotted the pipe and so he got called up again to cut it shorter.
He then said Mr Bustamante determined AGL should be called a second time to cut the pipe a little further back from the building alignment.
124 Mr Bustamante, Abigroup's supervisor, gave no oral evidence as he faces two charges under the Occupational Health and Safety Act 1983 which were heard along with these prosecutions against the defendant Abigroup. Mr Bustamante however gave statements to the Police on 20 December 1995 and the WorkCover Authority on 18 December 1995 and 3 March 1996. His statements were admitted against the defendant, Abigroup. He confirmed he was present when AGL disconnected the gas on 10 November 1995. He said:
. . . The day the gas company came to do the disconnection I was on site, and after they finished the disconnection I checked it, I found out it was too close to the building to be demolished. So I asked the gas man doing the work to redo it and cut off that line further away from the old building line. Which he did.
In his statement to Police on 20 December 1995, Mr Bustamante said as to the gas disconnection:
6. I remember when the man from AGL came out to disconnect the gas I carried out an inspection of his work as he was about to finish. I saw that the disconnection was too close to the existing building and I asked him to re-do it and cut it off further away from the existing building to be demolished. This building was the old fish and chip shop, I think it was number 7 Railway Parade, Kogarah.
7. When I first approached the man from AGL I saw that he had removed the pavers from the footpath in a rectangular shape measuring approximately 800 mm by 700 mm. . . . I saw the exposed yellow gas pipe about 350 mm below the surface of the pavers. I could see the yellow gas pipe had been capped . . . The distance from the front of the building to the gas cap was approximately 400 mm. . . . when I saw this I told him that it was too close and to re-do and cap it off further away as possible in order to clear the later demolition of the building. . . . I saw that he had replaced the brick pavers and he then left. . . . This gas cap was approximately 1200 mm from the front of the building. . . . it was definitely further away from the front of the building . . .
Mr Bustamante could not recall where the employees of Josef & Sons were when he talked to the AGL employee but said they were on site. He was questioned by the WorkCover Authority on 8 March 1996:
Q12. At that time did you know which shops were to be demolished?
A. Yes.
Q13. Which ones?
A. Fruit shop fish shop and the florist. Shop No. 3 to 9.
Q14. If you were aware that all these shops were to be demolished why didn't you ensure that the gas was disconnected further back so as to be outside the construction site during demolition?
A. Was disconnected outside the area of the demolition. As I said before I asked the gas man to disconnected the pipe further away from the area of demolition..
Q15. What did he say in response to that?
A. He will do it and he did it.
125 The defendant company submitted Mr Bustamante's statements placed before the Commission in Court Session should not be accepted as Abigroup, the defendant company, was not able to cross examine as to their content. I have considered this submission but I reject it and accept the statements of Mr Bustamante given to the Police on 20 December 1995 and WorkCover on 18 December 1995 and 3 March 1996. I therefore reject the evidence of Mr Stoeski as to the two visits of AGL to the site. There was no documentary evidence, such as an AGL booking with code or any oral evidence, from other witnesses including the AGL witnesses, to corroborate this recollection.
126 I accept the point of disconnection of the gas supply to Shop No 7 was cut back to one metre (approximately) away from the building alignment. (It is noted all the witnesses refer to the cut back point in different measurement terms be it inches, feet, millimetres and/or metres). I find Mr Bustamante was on site and, whether the original cut back was adjusted or not at his request, he accepted the cut back point as marked by the gas plate. I accept pavers were placed back over the line. I find Mr Bustamante knew this service cut back was for the purpose of demolition of the shops. He stated to Police:
I explained we had to demolish the walls and the foundations and I wanted it to a safe working distance.
Later I find Mr Bustamante accepted placement of the gas cap:
This gas cap was (approximately) 1200 mm from the front of the building.
The AGL employees suggested the cut off point was "200" or roughly "two feet". I accept the cut off point was within approximately one metre of a wall to be demolished. I find Mr Bustamante accepted a charged gas supply line be left one metre (approximately) from a building wall which was to be demolished. He accepted this was a safe distance. He did so on behalf of the defendant company.
The Marking of the Gas Service
127 Mr Stoeski's evidence reveals he was on site on a day the gas service was cut back. On that day, Mr Stoeski said he and Mr Bustamante placed a stake to mark the site of the disconnection. The defendant company submitted Mr Stoeski's evidence was this was done on a second day AGL was called and therefore Mr Stoeski's evidence should be discounted. The defendant company submitted all the evidence of Mr Stoeski, given in the context of his incorrect recollection of two visits by AGL, should not be accepted.
128 Mr Stoeski said he was with "Luis" on the second visit by AGL. He said of the pipe cut:
A. Yeah, was cut off away from where it was, a bit further down. I don't know how much it was, but it was uncovered; we stuck a peg in there.
Q. You stuck a peg in there?
A. Yes, when the gas bloke went.
Q. Sorry?
A. When the gas bloke went, we stuck a peg in there.
Q. What did you stick the peg into?
A. The surface of the pipe.
. . .
He identified it was Luis with him when he first stuck the stake in. Mr Stoeski later added further markings on the instruction of Mr Josef. He said in relation to the marker:
Q. When did you do that?
A. Could have been the same day or the next day; I just don't remember.
Q. Why did you do that?
A. So indicates that's gas was there.
Q. You say "we". Who is the "we" who put a little yellow flag on it?
A. I don't remember.
Q. You say, "We stuck a peg in there", who is "we"?
A. At the start I'm sure it was me and Luis.
Q. Did anyone tell you to do that?
A. Well, I think it was me and Luis.
Q. My question is did anyone tell you or Luis to do that?
A. It was me and Luis. No, I didn't ask anyone. It was just me and Luis there.
129 Mr Stoeski said he first marked the capped end of the charged gas supply line with a peg and he was assisted by Mr Bustamante. A single pole, without any further identification, was put at the point of the capped end of the charged gas supply line.
130 Mr Bustamante in his various interviews was asked about the gas marker:
Q. Did you make up a timber marker, with the assistance of Chris Stoeski to indicate the position of the gas pipe?
A. We put some sort of protection but I can't remember exactly what it was.
As to this type of marking, Mr Bustamante in interview on 3 March 1996 with WorkCover:
Q.16 Is it usual practice to indicate an exposed gas pipe by using a star picket/stick and bunting?
A. Yes. It is usual practice to indicate, locate and protect any services by using timber barriers, barricades, pickets, bunting, fence panels or any suitable protection, including barriers or fences separating workplace from the public. That pipe in question had a double protection, one was the fence separating the workplace from the public and the second the star picket and plastic barricade (yellow and orange) where the pipe was cut off, disconnected.
This later statement made by Mr Bustamante is a statement out of context. On consideration, I accept the evidence of Mr Stoeski that together he and Mr Bustamante first marked the capped end of the gas with a stake/peg/pole.
131 Later on 21 March 1996 by way of a letter from Abigroup to the WorkCover Authority, Mr Cejka wrote Mr Bustamante wished to amend some of his prior statements of 18 December 1995 and 3 March 1996:
Q. After the demolition of Nos 3 to 9 Railway Parade and before removal of the pavers commenced, what action did you take regarding the presence of the disconnected gas pipe that was present underneath the pavers?
The original answer was 'none'. The amended answer read:
A. None, it was the responsibility of Josef & Sons . . .
. . .
A. . . . After pavers were removed I assisted Chris Stoeski (Josef and Sons) to install star pickets and barrier mesh.
132 It was Mr Josef who ordered before the shops were demolished that a further stake be put on the ground and something around it to mark the charged gas supply line at the point where the gas had been disconnected. It was his recollection the gas connection was marked originally with a piece of pipe sticking up and the employees then put a broom handle next to the stake and wrapped bunting around it. Mr Josef, as to the marking, was asked:
Q. Is the method of marking the gas pipe that you requested Mr Stoeski to adopt on this site one you'd used previously?
A. Yes.
Q. On what sort of sites.
A. Every site where you come across something that's underground and hazardous or whatever and you don’t want anybody near you, you stake and put bunting on it.
Q. Why do you do that?
A. So people don’t go around it. Most of our people know that works with a demolition company would know that if there's a stake there or something with a bunting on it, you know, it’s something underneath it. That's a standard. There is no standard for it but if you work in the demolition company you know and basically if you work on building sites you know that if there's something with bunting on it, there's something underneath.
As to the gas pipeline he was asked:
Q. Did you know whether or not that was a live gas pipeline?
A. It was alive.
Q. How did you know that?
A. Because I knew that’s where it was cut off and that's why we left the bunting and that's why we left the mark, so everybody knows it is live and if it sticks out a bit, they are aware of it even more. There's no standard for this, unfortunately. (emphasis added)
133 As to any proper warning given as to the existence of a charged gas supply line on site, Mr Josef referred to the marking saying:
Q. Did you yourself give any people such a warning?
A. Well, everybody on site knew that's where the gas line was. It was common knowledge.
Q. Did you yourself warn people not to go near it?
A. I warned my crew and everybody and they all knew, yes. They were experienced people that worked there, so they understood the site.
134 It was Mr Daniel Josef who made the call to AGL to disconnect the gas service. He recalled seeing the stake marking the site where the gas was disconnected and described it in the following way:
A. It was a stake, a pole, something straight . . .
. . .
A. I remember we had a stake in it – it was staked with an orange vest, I think . . .
135 As to Abigroup's particular knowledge of the marking of the charged gas supply line and their general policy on site, Peter Gibson Deane, general manager of the building section of Abigroup, was asked what procedures Abigroup had in place, at the time, when services such as a charged gas supply line remained on a building site in a live state, that is live with gas. He replied:
Abigroup has a safety policy which means that the company personnel and supervisors must act safely at all times. In an instance such as this, this is a decision made by the senior supervisor on site as to what action should be taken should a service be exposed. This is routine on all projects where services are exposed routinely.
He said as to services on a construction site generally:
A. They are exposed routinely and if I can explain what that means, when I say ‘exposed’, that could mean exposed with a shovel, because the gas company or electricity company says it is here, and you expose it and you see it: "Left exposed" means, in the opinion of the supervisor, what is the safest thing to do and, in this instance, because it varies from time to time, it was exposed and marked.
Q. You accept that as a safety procedure?
A. Yes, I do.
Q. "Live gas" marked in a demolition site is a safety procedure?
A. Your Honour, when the company did the M2 Tollway there were thousands of services exposed as you cut through Sydney. Each one of those would be identified and marked and moved either to a location – or identified or moved to a location which was deemed safe at the time. It may have been inside a fence, outside a fence, but it was where the supervisor determined was safe.
. . .
A. You mean was there a standard?
Q. Yes.
A. No, we had no standard. Each occasion would dictate a requirement
. . .
A. Each circumstance, depending on the sort of service and the location of it and its position in a work site, may determine that it might need to be marked in a different way. If it's down in a hollow, it might need a flag on it. If it's up on a hill, it may need something else. It is the way of best identifying where it is.
136 It was Mr Deane's (of Abigroup) opinion a marking of star pickets with luminous harnessing was adequate as that would signify there was something there and it should not be touched. He acknowledged one post would not hold up luminous harnessing but opined two posts could and he believed three posts was the ideal.
137 Mr Poidevin, the Construction Supervisor for Abigroup at the KSU, attended the site. He recalled he was shown a disconnected gas service by Mr Luis Bustamante prior to starting work on the platform extension. He recalled it being marked by a piece of metal pipe with a piece of timber and a piece of ribbon around it. The ribbon he identified as safety ribbon. He was asked:
Q. What, from your experience, would you have done as a supervisor on site if a gas pipe had been exposed during the construction work?
A. I would have marked it exactly the same way, only probably a little bit better.
138 Ronald Robert John Turnbull of the SRA had been to the KSU site approximately twice before the explosions. Glen Smithers was his safety officer on the site and stationed there full time. Mr Smithers’ role on the site was to ensure no construction work went too close to the track and, if he identified risk, he had authority to stop work. It was Mr Turnbull's view he and Mr Smithers' major responsibility was for the safety of the rail corridor. Mr Turnbull had noted the bunting on the site whose purpose he identified as keeping people away from a danger. His view was the markings identified there was a potential trip hazard. He was asked:
Q. . . . In your experience was the use of bunting, in the way you've described, a regular occurrence within the industry up to 1995?
A. You've got to be very careful with bunting. Bunting we use – say we have – I will give you an example – electricians on a step ladder and we want to – on a station. He's up on the step ladder, so we usually put bunting around and so people come along and see the bunting. You do get some idiots but most do walk around it, but if it was an excavated hole where you had a 5 metre drop it’s not good enough, because bunting has a tendency to rip, to break, so we have to put a more substantial manproof fence around it. If you take a guy on a step ladder, that’s good enough. Something more potentially dangerous, it is not good enough.
139 Mr Dilly of SWV/CWM noted on the site some logs, some star pickets and some warning tape. These markings were, he thought, appropriate to mark a danger area. He commented the markings were appropriate but he had not seen such around a live charged gas supply line before. He knew, particularly, on the KSU site, the tape wrapped around the star pickets identified the existence of a gas main. In Mr Dilly's view a supervisor on a construction site, with his training and experience and his awareness of safety issues was qualified to make decisions as to what particular form be used for marking a charged gas supply line on site.
140 Two documents related to Standards in the demolition/construction industry were tendered in evidence. They were, Australian Standard, The Demolition of Structures, first published as AS2601-1983, second edition 1991 and Australian Standard, The Demolition of Structures known as SAA Demolition Code, AS 2601-1983; first published 1983. Neither standard addressed the marking or disconnection of services.
141 As to the marking of the charged gas supply line I am satisfied at the time of these explosions in 1995 there was no general standard in place within the construction industry to require with particularity the identification on a demolition/construction site a charged gas supply line service.
142 I am further satisfied the markings used were those generally used on construction sites to identify a hazard. They did not identify the particular nature of the hazard and, as on this site, the marking did not identify there was a charged gas supply line behind the hazard marking still on site. It is noted the marking indicated only the gas supply line's capped end.
143 I am satisfied from the evidence, Abigroup knew where the charged gas supply line had been disconnected and on 10 November 1995 accepted a stake was a suitable marker. I find within a day or so a further stake and bunting was added and this was accepted as a satisfactory marking for such a hazard. Sometime later, as a photograph of the site of 24 November 1995 reveals, a log was also placed in front of the stake and bunting. It also appears on that day a milk crate was near the stake and some cement was near it. No evidence was led that any particular verbal or written warnings were issued to any employee or other persons on site.
144 I am further satisfied the defendant company accepted the marking by the stake and bunting and the occasional line of logs was adequate protection and identification and marking for persons on its worksite to be made aware of the existence of a charged gas supply line on site.
Demolition of the Shops
145 After the charged gas supply line was disconnected and marked as a hazard with the stake and bunting, a fence was erected to define the demolition site. The fence was erected on or about 13 November 1995. The fence was placed across the footpath from Shop No. 11, the Mei Yee Fashion shop, where demolition of the four shops was to cease.
146 Relevantly, as to the demolition of the shops and other work, Josef & Sons submitted to Abigroup at a site meeting on 21 November 1995, a "Method Statement for Demolition Works Kogarah Train" which read:
All services will be terminated prior to any demolition work commencing "A" class hording will be installed 10 meters away from the external face of the building or structure being worked at if practicable while the internal building area will remain blocked of all access.
EXISTING SHOPS
The inside of the shops will be cleaned off all loose rubbish and equipment. Floor covering, ceiling tiles and frames and lightweight wall panelling and frames will be removed manually with the rubbish generated loaded into trucks for proper disposal off site. The roofing sheets (corrugated iron) will be removed next and will be done manually. The roofing sheets will be lifted up individually with the screws cut by gas cutting or bolt cutters. One fire extinguisher (water type 9.4 litre) will be placed below the area being worked at and one at the top. The removed sheets will be allowed to fall to the inside of the shops where it will later be picked up for loading.
The brick walls be removed next using bobcat and will be pushed/pulled in. The brick walls adjacent to the property to be retained will be demolished manually by workers working off mobile scaffolds. The ground slab will be demolished using an excavator.
CONCRETE STAIRS
The junction of the slab to be demolished against the slab to be retained will be saw cut to isolate the area to be demolished. A 30 ton excavator fitted with concrete pulveriser will munch the concrete structure from the top working down. The excavator will be working off the ground slab and at no point in time will the be (sic) excavator be sitting on top of a suspended slab.
147 This Work Method Statement was signed off by Mr Adler on 13 November 1995 and was signed off by Mr Morris, the Abigroup Quality Controller on 27 November 1995. The Work Method statement itself is undated.
148 Attached to one of Mr Morris's quality control documents signed 7 December 1995 by Mr Morris and signed-off by Mr Adler on 30 November 1995 is a further Work Method statement relevant to "Proposed Methods of Demolition for stairs and landings" which statement is dated 21 November 1995.
149 There was some dispute as to when the Work Method documents came into existence. Mr Morris revealed he did not begin work on site until 25 November 1995. The quality control documents were not required until after his work began. I do not accept, given the state of the evidence, that quality control was rigorously adhered to on site before the demolition contractor began work.
150 By letter dated 21 November 1995 to Abigroup, Josef & Sons stated the work method proposed three alternative methods. As of three options, Josef & Sons preferred Option 2 as the best of the three. Abigroup however chose Option 1. That option, only directed to work on stairs not to the demolition of the shops, was as follows:
OPTION 1
1. Build stairs & deck outside working area (stairs 150 x 130, 2.0m wide);
2. Erect protection screen;
3. Demolish (pulveriser) stairs and remove debris;
4. Dismantle stairs & protection screen.
151 Mr Bustamante revealed the demolition work began three weeks before the explosion. The demolition work he described included the removing of four shops: their windows, ceilings, roof, walls, floors and foundations. The work was done with excavators, bobcats and by hand detail.
152 Arthur Douglas Begg, a Crane Operator employed by Reids’ Excavations went to the KSU site on Tuesday 21 November 1995 and worked as directed by Josef & Sons' foreman. Using his excavator he demolished the shops. A bobcat was there to clean up the debris. He was there continually from the Tuesday to the Friday, that is, from 21 to 24 November 1995. As was his practice he asked about existing services but he was not directly instructed as to the existence of a charged gas supply line.
153 Robert Burns Campbell, a plant operator, also worked for Josef & Sons in November and December 1995 at the KSU. He recalled working with both an excavator and a bobcat where they were demolishing a fish shop. A photograph revealed the day was 24 November 1995. Throughout the demolition he described a truck being used to remove materials. The bobcat and excavator were both used in this period. Mr Campbell identified "bunion" (bunting) in the photograph:
. . . what we call plastic fencing is called bunion. It’s a form of divider between the posts when we want to partition something off.
He identified the "bunion" as something other people could call "bunting". Mr Campbell said while working at the site in November 1995 he was not told what the star picket and bunting represented. As was his practice when he came on site, he looked at the area and noticed logs and a stake but was certain he was not told anything about them.
154 After the demolition of the four shops had been completed, the wall of the Mei Yee Fashion, the first remaining shop (No. 11), identified the southern boundary of the site. Abigroup employees had responsibility to construct a ramp to the south of the site behind the stake from east to west to the alignment of the station platform. The ramp was near the southern wall. The ramp work required fill and ballast material to bring it up to the right level. It then had to be graded. The work was done by a bobcat and a tipper truck was used to carry the infill. The ramp was built of blue metal and earth. All materials were brought to the site, dropped and spread for the construction of the ramp. Abigroup played a major role in its construction and there is a suggestion employees of Josef & Sons helped.
155 Barry James Jessop, a labourer from Abigroup recollected being shown by Mr Poidevin of Abigroup the site including a stake with tape around it. He was told the stake marked a charged gas supply line and the gas had been "stopped off". He used a bobcat to build the ramp across the southern end of the demolition site moving the soil and ballast. He recollected seeing a water pipe near the marking and that it protruded from the ground and had a bend in it. The bend was bent upwards he revealed. The photograph endorses this description of one of the markings at the capped end of the gasline.
156 Ron Allan Milne, a self employed operator and truck driver, worked as a sub-contractor to Abigroup on the KSU site and his last two days on site were 23 and 24 November 1995. He added dirt fill to the ramp and constructed a ballast at the bottom of the ramp to tidy up the area. He was told of the underground gas service pipe by Mr Poidevin and noted the pipe was like a PVC piping and yellow. He recalled a stake sticking out of the ground near the area in which he worked.
157 The KSU required the ramp to be constructed for access so it could move materials over the footpath past the shops and down to the railway line to allow Abigroup and the SRA to construct an extension of the Kogarah Railway platform. This work of the platform extension was overseen by Ray Furfaro, a civil engineer with the SRA with Edwin Eric Blackwell of the SRA. Mr Furfaro and Mr Blackwell were responsible for the work “within the rail corridor” which was defined as within the limits of the platform and where there was track work. They did random checks of the site. To build the platform extension, heavy vehicles were brought down the ramp to drop sand and concrete. In one day, 24 November 1995, Mr Poidevin who was supervising the extension for Abigroup said the platform extension was almost completed. He described the building of the extension to the platform in the following way:
A. You've got to excavate all the ballast away, put it beside the track for the whole extension, which I think roughly was about 10 or 12 metres long, which – we take the ballast away. We lay in a layer of DGB, which is 200 thick, beside the track. We put a 50 mm cover of sand over that. We then lay what's called box culverts. Have you heard of that terminology? It’s actually a pipe – box culvert, but they’re laid upside down and that’s what creates the platform. We then fill that with sand inside. We then lay Bondeck, reinforcement, formwork and concrete.
Q. Do you say you could do all this in one day. You looked a bit doubtful when you said it?
A. We could do it in one day.
158 I am satisfied by 24 November 1995 the ramp at the southern side of the demolition site was constructed and it was then used as access to allow the building of the platform extension. I am satisfied the platform extension was almost completed in one day, 24 November 1995. I am satisfied the building of the ramp and the construction of the platform extension required the moving, by heavy equipment, of soil, blue metal and building supplies across the site. This movement of construction materials was conducted along the ramp built over the charged gas supply line and close to the capped end of the live charged gas supply line. I am further satisfied Abigroup played a significant role in the construction of the railway platform extension through Mr Poidevin.
159 A photograph tendered taken by Mr Josef was most revealing as to the site the day of 24 November 1995. It showed a site with significant activity. The defendant company rejects the submission of the prosecution that this was a cramped site. I accept, from the evidence in the photograph, and from an inspection the court made of the site, the site was within a contained area. On one side was the railway line and next to it, on the eastern side, was the long but narrow bank of shops, then a footpath, then Railway Parade. Much of the activity as described by witnesses was endorsed through the photograph. The perimeter hoarding had been opened allowing access to the site across the ramp, under which was the charged gas supply line, to a truck, two excavators and a bobcat. Where the shops had been demolished some foundations were still in place. The site had a significant drop to the west. The ramp is not clear on the photograph but the stake and markings are visible to the north of the ramp. The stake and bunting were in place during the activity of 24 November 1995. The photograph indicates the markings were by way of a bent pole and another longer wooden stake which held, near ground level, a piece of bunting around it. There was a wooden log to the north of the stake and a milk crate to the east. To the west of the stake was a hole lined with what looks like a lump of cement in semi circular shape and quite deep. The placement of the cement was not referred to at all in evidence. Beside the cement lies on the ramp to the west, a tall pile of sand and coming out of the sand some formwork or a beam towards the platform. The photograph reveals the stake and markings of the capped end of the charged gas supply line are close to the northern edge of the ramp though the distance is unclear. A couple of safety barriers are erected on the footpath. The pavers remained on the footpath but appear to stop either where the ramp begins at the building alignment or they are buried under the ramp construction. It is more likely however they were taken up. The bobcat had some pavers piled beside it and Josef & Sons were contracted to take the pavers up for re-use.
160 After the shops were demolished, the charged gas supply line lay over five metres within the building site. Mr Josef said in evidence:
Q. Do you see where those logs are?
A. Yes.
Q. Could they get in behind where those logs are?
A. Yeah, yeah. Well, basically between the back wall of the shop and where that bunting is . . . that was about five metres wide.
Q. From --
A. From the wall.
Q. From the bunting - towards where the bunting is?
A. Yes, towards the bunting, about five metres wide.
161 Mr Josef explained he took the photograph as there was so much activity on site and as his company was responsible for the cleaning up of the site he felt concerned so much activity would result in his company incurring extra costs for the cleaning up. The photograph also revealed what looks like a crane, an excavator and a truck as machinery on site at the time of the photograph.
162 Mr Bustamante's recollection was the demolition was completed one week before the explosions. Perhaps this was correct as to Abigroup's activities on the site but this was not correct generally as to Abigroup's actions and responsibilities related to the site. The evidence revealed while the shops had been demolished, there was further demolition work to be done by Josef & Sons on the stairs to the north of the site and the cleaning up of the site was still to be completed. That work included completing the demolition of stairs, removing the old stairs used as access to the platforms and cleaning up the site of demolition rubbish. An alternative stair case had to be installed to allow public access to the platforms. Abigroup remained the supervisor on site throughout all these activities and Mr Bustamante was the foreman. Mr Bolger clearly monitored all activities on site, in accordance with his role.
163 Mr Josef, in his dealings with Abigroup, dealt mainly with Mr Bolger. On Thursday 30 November 1995 or Friday, 1 December 1995, Mr Josef received a facsimile letter from Mr Bolger informing him of Abigroup's concern as to delays on the site. The delay related to the unsatisfactory installation of temporary stairs to the station platform. There had been a consequent delay in demolishing the eastern side staircase because the temporary staircase, which been installed, had not been accepted by the contractor as satisfactory. It had to be redesigned. The facsimile read:
Facsimile Transmission
To: Joseph & Son Fax No. 316 6148
Attention: Robert Joseph Date: 30-11-95
From: Maurice Bolger Time:
Project: Kogarah Station Ref:
Subject: Demolition progress with programme
Message: You have delayed our programme by not installing the temp stairs correctly first time. You have delayed our programme further by virtue of your excavator/cruncher breaking down before even [sic] reaching Site.
We require you to accelerate the work to ensure you finish as per programme as agreed.
Note: ensure west side hoarding/scaffold is ready for machine once finished on eastern side.
164 As to the effect of the facsimile upon him, Mr Josef said:
You know, when they start putting pressure on you, you know it's very hard to say no and when the phone calls come and the letters come you know usually trouble follows. That's out of my experience as a contractor over 32 years, your Honour, you know, so what's not written – there's a lot said that's not written and a lot of pressure is put on us that, you know, nobody knows about but it's still there and you basically got to roll with that.
It was Mr Josef's view once he received the facsimile it meant that, “. . . you get your finger out”. While the facsimile did not state a timetable, Mr Josef says pressure was placed upon him to complete all works "the fax doesn't say it but the phone call does". As a result of the facsimile Mr Josef revealed:
A. We had to go back – that's why we went back on 4th, just to clean up the remainder of the stairs.
Q. How did you arrange to go back on the 4th, the Monday?
A. He was busting my chops and I just said "We'll have to be back on Monday".
Q. Are you aware that it was a picnic day for Abigroup?
A. Yes, I do.
Q. How was it that your men were on site on that day?
A. Because they wanted to work to finish the job off so we could get out of it, and they they'd work it and take another day off.
Q. Did you ask someone about going onto the site on that day.
A. Yes, I did.
Q. Who was that?
A. Maurice Bolger.
Q. Anything in writing?
A. No. No, he said he doesn't know about it.
Q. Sorry?
A. His answer was he doesn’t know about it.
Q. What did you ask him?
A. I just said, “We’ll have to go back on Monday” and he said it was a picnic day and there were not – they were not going to be on site. I said, “All we have to do is just clean up the stairs” and he said, “As far as I know I don’t know about it” and that was the answer, that was it.
Q. Did you speak to anyone else in Abigroup about going on site on that day?
A. Not personally.
165 Monday, 4 December 1995 was Union Picnic Day and the Abigroup and SRA site employees had a day off. This was then joined to a usual fortnightly rostered day off and therefore no work was to be done by Abigroup on the site on the Monday or Tuesday. Work was to resume on the Wednesday, the last day on which, under the contract, Josef & Sons had to complete the demolition work. It was Mr Josef's view he had to have all works completed speedily.
166 Abigroup denies it put any pressure on Josef & Sons to complete the demolition work early or at all. There is significant dispute between all parties, Abigroup, SRA, CWM and Josef & Sons as to whether any permission was granted to Josef & Sons to work on the site on Monday 4 December 1995, the union picnic day. The contract revealed the SRA had to know of work on site. The evidence reveals the SRA was involved in some discussion re activity on site on the picnic day.
167 After the facsimile was received the demolition jobs identified as needing completion were: removing a wall running parallel and near to the railway station; old concrete stairs to the railway station had to be demolished; the site had to be levelled and cleaned up. The slope of the site had to be given a "batter". A batter allowed the land to be gradually sloped down to the station.
168 Mr Bolger, Abigroup's project manager, agreed he sent the facsimile on 30 November 1995, the Thursday before the explosions. He acknowledged the facsimile requested an acceleration of the works to ensure the programme, meaning the demolition, was finished as per the agreed timetable. When asked what he meant by the words “accelerate the work” he answered:
To maximise utilisation of all hours available on days of work to ensure best results in accordance with our program.
He defined “days of work” as six days a week from 7am in morning until 5pm. He said Mr Josef’s work crew finished work each day at 3-3.30 pm and he required and requested they work until five o’clock.
169 Mr Bolger agreed Mr Morris (the quality surveyor employed by Abigroup) had communicated to him a request from Mr Josef and/or his employees that they might be able to work on the site on the Monday. Mr Bolger said:
I spoke with Luis to confirm that we were or weren’t working on that particular day, but I was pretty clear that we weren’t intending working on that day and from that concluded that there wasn’t any work so there wouldn’t be any work on that day.
He then called Mr Josef and said:
. . . the site wasn’t opening or operating on that particular day, so there wouldn’t be any work on that day.
It was Mr Bolger's recollection both these conversations took place on the Friday afternoon.
170 When questioned as to the conversation with Mr Josef, Mr Bolger said he could not recall the exact words and he could not recall anything Mr Josef said to him. It was put to him Mr Josef asked him by telephone whether his employees could work that day, Mr Bolger replied:
He may have asked or repeated his inquiry towards working on that day . . .
but Mr Bolger confirmed:
. . . there was to be no work on that day.
171 It was conceded by Mr Bolger he did not mention any conversation with Mr Josef on the topic of Josef & Sons working on the site on 4 December 1995 in a statement to Police made on 19 December 1995. When questioned he replied he did not think to mention it. He agreed he also did not mention in his statement any conversations with Mr Morris or Mr Bustamante.
172 Evidence then revealed a letter was sent by Mr Bolger after the incident to Mr Josef dated 7 December 1995 which letter stated:
We express our concern in your Company's actions by working on site Monday, 4 December 1995, instead of just picking up your excavator from site and leaving immediately as advised. We will not allow you in the future to pick up plant or work on site without Abigroup being in attendance.
Mr Bolger said he had not seen the letter until it was shown to him on the day of the hearing. He could not then recall the conversation that gave rise to him using the words in the letter, namely, that permission had been granted for Josef & Sons to move equipment off the site on the Monday.
173 The evidence of Mr Bolger goes to the heart of one issue in dispute between the parties, namely, whether Josef & Sons had permission to work on the site on the day of a union picnic and further, and of much more relevance to these prosecutions, whether it was within the knowledge of the defendant company that work was being performed on that day. While I do not believe the issues are determinative as to whether the defendants, under the Occupational Health and Safety Act 1983, have met its obligations to provide a safe workplace, they do raise questions as to the credibility of some witnesses.
174 I found Mr Bolger’s evidence as to the conversations on the Friday arising out of the facsimile he sent to Josef & Sons as vague, at times unresponsive and often, as to the content of the recollected conversations, incomplete. The revelation of the letter written after the incident, which letter is read in the context of Mr Josef’s evidence, that after the incident, letters were flying everywhere as to responsibility, reveals Abigroup, through Mr Bolger, had direct knowledge Josef & Sons were considering being on the site on Monday 4 December 1995. If Mr Bolger is believed they were going on to the site to move an excavator. He had not revealed knowledge of this activity to any investigator nor to the court until the letter was shown to him at the hearing. I found Mr Bolger an unsatisfactory witness as to events and conversations following the receipt of his facsimile.
175 Mr Cejka of Abigroup, as to a subcontractors’ general access to the site, stated:
Initially they would have been required to get access to the site but once they started on the site, then it wouldn’t be necessary for them to see Luis every day that they were – you know, they've got to get into this point or get into that point of the site.
Mr Cejka, when asked if Abigroup employees were not working on the site, what notification would be given to the subcontractors, replied they would have been made aware there was not to be any work done on site by word of mouth from Mr Bustamante or Mr Bolger.
176 Mr Stoeski knew it was a Union Picnic Day. He recalled a conversation he had with Mr Bustamante, and Mr Glen Smithers of the SRA, about the closing of the site on Monday, 4 December 1995. He did not recall the conversation being limited to the moving of the excavator on the Monday because, as he said:
I don’t make that decision about the excavator. It is up to the bosses to decide when to get them out.
177 Mr Smithers recollects of the movements of Mr Bustamante:
A. . . . he did come round and I think he was with the foreman of the demolishing mob. They had trouble getting their machine off on that particular Friday and they wanted to know whether it was all right for them to come in Monday or Tuesday to take the said machine off.
Q. What sort of machine was that?
A. An excavator.
When asked whether he had any difficulty with them coming on to the site on the Monday or Tuesday he said he had no problems. He recollected he reminded Mr Bustamante and Mr Stoeski there would be no SRA safety officers working on the site on the Monday or Tuesday of the following week. He could not recall anything Mr Bustamante said to him. He was asked the following questions:
Q. What I want to suggest to you is that Mr Bustamante actually responded to you by saying words to the effect that, ‘Yes, that’s right, I know that it’s a picnic day and flexi day.’?
A. The exact words were, I think, that would it be a problem if these guys came and got the machine off the site on that particular day – one of those particular days.
Q. He also told you, didn’t he, that nobody from Abigroup was going to be on site?
A. That’s right.
Q. You recall him saying words to that effect?
A. Yeah.
Q. He told you that no work was to be done?
A. That’s right.
Mr Smithers then rang Mr Turnbull, the SRA Senior Site Supervisor, and told him Josef & Sons were coming onto the site to take the machinery off on the Monday or Tuesday.
178 As a result of the facsimile, I accept it became an imperative on Josef & Sons to complete the demolition work. Mr Josef determined work would have to be done on the Saturday morning as usual and if not completed then work would have to proceed on site on the Monday, 4 December 1995. I am satisfied there was pressure placed on Josef & Sons by Abigroup through Mr Bolger to "accelerate" the demolition work and in so finding, I reject the evidence of Mr Bolger. I accept the completion date was originally Wednesday 6 December 1995 and that there had been delays. I accept the facsimile from Mr Bolger and conversations he had with Mr Josef forced a speeding up of the outstanding demolition work so it could be completed before Abigroup returned to the site on the Wednesday 6 December 1995 and in accordance with the terms of the contract, for the demolition and cleaning up work to be completed by that date. I find the facsimile infers Mr Bolger was aware of the nature of the work to be completed on site.
179 I find, while the evidence does not establish Mr Bolger specifically gave permission to work on the site on Monday 4 December 1995, he made it clear he expected activity on the site over the holiday period to ensure, when Abigroup returned to work on the Wednesday, all demolition work on site was completed. I find, if the demolition work could not be completed on the Saturday morning, Mr Bolger was aware there would be work performed by the demolishers on the site over the following days. I further find Mr Bolger knew the nature and scope of the works he required be completed. I accept Mr Bolger put that pressure on Josef & Sons and knew, in effect, the pressure would result in activity until all demolition work and cleaning up work on site was completed - whatever day completion was effected prior to the Wednesday return to work by Abigroup employees.
Demolition Work on Saturday 2 December 1995
180 Bernath Adler, a civil engineer employed by Josef & Sons, oversaw the removal of the stairs both on the eastern and western side of the Kogarah Railway Station. Before the demolition of the stairs he had visited the site with Mr Josef and noticed a hessian bag which was surrounded by yellow tape. When he inquired he was told it marked the dead end of a gas pipe. He suggested there were three or four pegs around that yellow tape, which he identified as warning tape. It was his view the markings identified a certain hazard:
. . . you know it’s there, so it shouldn’t be a problem.
181 He described the demolition of the station stairs to the north of the site by the use of an excavator and a pulveriser. A smaller excavator was then brought in to finish the demolition work in areas where the large excavator could not reach. It was Mr Adler's recollection the large excavator had been brought in mid-week and finished its work on the Thursday or Friday, that is, 1 December 1995. A smaller excavator had to finish the trimming using a hydraulic hammer interchangeable with a bucket.
182 Mr Adler said he instructed the operator of the smaller excavator, Mr Campbell, on the Saturday, to trim near the building and to finish to the end of the stairs. He also knew after demolition, a batter had to be constructed on the site to finish it off. The batter had to be extended from the site where the stairs had been removed down to the access ramp. Mr Adler's recollection was he specifically told Mr Campbell not to do any cleaning up around the access ramp. He could not recall if he repeated this instruction on the Monday morning. He agreed the work was not completed on the Saturday.
The Site on Monday 4 December 1995
183 One issue becomes relevant before the activities on site on this day are examined, namely, if the charged gas supply line was still marked with the stake and bunting when the work began on the day of the explosions and/or was the charged gas supply line exposed?
184 Mr Bustamante on 20 December 1995 to Police stated:
After the pavers were removed, that was on the Thursday or Friday before the gas explosion, I saw the capped end of a yellow gas pipe laying exposed in a flat position in the ground. The yellow gas pipe was exposed about 200mm in length and it was laying in a shallow hole about 300mm by 300mm. When I saw the end of the pipe it appeared to be in good condition and undisturbed. That was the last occasion on which I saw the yellow gas pipe prior to the explosion.
185 In his first WorkCover interview on 18 December 1995, he was asked:
Q37. How did you become aware that the yellow gas pipe had been exposed?
A. It was visible.
Q38. Did any one tell you they had exposed the yellow gas pipe?
A. I don't remember that. We all knew it was there, ie Chris from the demolishers.
Q39. Who was responsible for exposing the yellow gas pipe?
A. Chris. Because he was in charge of the demolition and removal of the pavers.
Q40. What did you do once you were aware that the yellow gas pipe had been exposed?
A. Chris and myself we made sure no other work was carried out around that pipe to protect it.
Q41. Who did you tell at Abigroup that the yellow gas pipe had been exposed?
A. I don't think I told anyone else.
Q42. After the gas pipe was exposed, what inquiries did you make to AGL about having the pipe disconnected closer to existing buildings ie No. 11 railway Parade?
A. I didn't make any.
Later on 3 March 1996, Mr Bustamante was asked by WorkCover:
Q20. When did you first become aware that the gas pipe had been exposed?
A. At the time when the pavers were removed, it happened within a week before the gas explosion.
186 Mr Bustamante did not work on the Saturday. I am persuaded the final pavers left on site were removed before the work on the Saturday was commenced. I am persuaded Mr Bustamante saw some yellow gas pipe exposed at this worksite prior to 4 December 1995. His last day before the explosion was Friday 1 December 1995.
187 Mr Josef arrived a little late on the Monday morning to the site and noticed someone had buried the pipe and the marker was missing:
Q. So you actually that morning went to the area of the gas pipe?
A. Correct.
Q. And you couldn't see anything at all?
A. No.
Q. Could you see any metal pipe?
A. Nothing.
And:
Q. Which area?
A. The area where the gas line was because I couldn't see it, so I assumed somebody buried it and I knew the proximity of the pipe and I was standing basically on top of it, I must have been. I went with my hands like this (indicates) . . .
And:
A. . . . the first time I noticed it was gone was on the morning of the 4th.
Q. When had you been there previously to the 4th?
A. I was there on the Saturday.
Q. Was it in that position on the Saturday?
A. From my memory it was.
188 Mr Adler recalled when he first went to the site somewhere between 20 and 25 November 1995 he noted a hessian bag and a yellow tape marking. He was asked:
Q. Can you remember the last time, then, before that time you saw those pipes and the yellow hessian bag and the yellow tape?
A. It wasn't there the last few days of November, so 28th, 29th - it hasn't been there anymore.
Q. Thank you. Did you see anything in that area after those items had been last there?
A. Can you be more specific?
Q. Well, you say those items weren't there after the end of November. Did you see what was there or not at that spot on the site after that time?
A. Was nothing left.
Q. Did you see anything after the time you recall those items had been removed on the site in that area to indicate anything in relation to a gas pipeline?
A. No. No.
. . .
Q. Did you see, after the tape and pickets were not visible to you, any sign of the gas pipe?
A. No.
Q. You noticed that, you say, the pickets weren't there?
A. Yes.
Q. So we take it you looked in that area?
A. Yes.
Q. You didn't see any yellow pipe?
A. No.
Q. Did you see any other pipes exposed?
A No.
Q. You would have noticed the yellow pipe?
A. Yes.
Q. You understood yellow pipe to be gas pipe?
A. Yes.
Mr Adler's evidence as to what he saw on Monday 4 December 1995:
Q. At any rate, this hessian bag and the yellow tape and I think you said poles or sticks that you saw, can you recall whether they were there on 4 December 1995?
A. I recall not seeing them there anymore.
189 Mr Stoeski's evidence as to what he saw on Monday 4 December 1995 is as follows:
Q. Were you working on the site on the day there was the explosion?
A. Yes, sir.
. . .
Q. Was the peg and the yellow flag there on that day?
A. On that day, I don't remember it.
. . .
Q. . . . You said yesterday that you couldn't remember the peg and the yellow flag, which you'd referred to earlier as being placed by you at the point where the gas was disconnected, being on the site on that Monday, 4 December 1995?
A. No, sir, I don't remember it.
. . .
Q. On the day that the work was being done, the day of the explosion, 4 December 1995, what did you see in the ground at that point?
A. I seen the orange pipe.
Q. How much of it?
A. Oh, a couple of inches or so - a few inches.
And later Mr Stoeski was asked of the wooden marker and mesh on 4 December 1995:
Q. Was it there or not there, or you didn't notice?
A. I didn't notice it there. It could have been not there.
190 Mr Campbell was the operator of the excavator on the day of the explosion. He was also on the site on 24 November 1995 as confirmed by the photograph. On 24 November 1995 he said of the markings:
Q. Do you know why those objects were in that place on that day?
A. No, I wasn't aware of what that actually represented.
Q. Did you go and look at that area at all?
A. I looked at that area, yes.
Q. Did you see anything when you looked at that area?
A. Only that the logs were there and that the stake was there.
Q. Did anyone tell you about that area and those items?
A. No, they did not.
Mr Campbell was then asked as to the markings on 4 December 1995:
Q. The objects in the circle, were they there on 4 December 1995, to your knowledge?
A. The log wasn't but only the peg was - the steel star picket peg with the bunion piece on it.
And later he said:
Q. As you moved towards the ramp, did you notice anything in the area where the top of the ramp met the pavement level of the building site?
A. The top of the ramp met the paving?
Q. Yes.
A. Of the site?
Q. Anything in that area, did you notice?
A. Are we talking at the top of the actual truck access ramp?
Q. Yes. Do you remember the other photograph I showed you and you pointed to the stick or the picket, I think you said?
A. But that wasn't at the ramp.
Q. The bunion?
A. Yes, but it wasn't at the ramp.
Q. Are you saying those materials weren't there on that day?
A. Those materials were there that day.
Q. Let me just clarify it.
. . .
Q. I put it clumsily. Do you know the area I'm talking about?
A. Yes, where the steel picket was.
Q. What was in that area on that day that you saw?
A. Nothing. We're talking about 4 December?
Q Yes.
A. Nothing. It was just levelled off all the way back to the ramp. There was no rubble there; there was no logs there; there was no nothing.
Q. Were the items that were in the photograph taken 24 November 1995 in that area still?
A. No, they weren't.
Q. Were you told about anything being in that area that you had to watch out for?
A. No, I wasn't.
Q. Were you told about anything in relation to underground services on the site on that day?
A. No, I wasn't.
Q. Were you told anything about gas services on the site on that day?
A. No, I wasn't.
191 As to the markings on site on 4 December 1995, Mr Campbell "made checks" of the footpath area looking for services but said he did not check the star picket or bunting nor ask Mr Stoeski what it was there for. The defendant company submitted the two approaches asserted by Mr Campbell are inconsistent. The defendants submitted Mr Campbell maintains the bunting was present on 4 December 1995 and was still present whilst he was creating the batter. They submit he identified its placement away from where the evidence indicated it was originally. He also says that he was working in the area near it but still did not check it. Such views, the defendants submitted are contradictory.
192 The evidence as to the pipe being exposed during this period I have found is limited. Mr Bustamante saw the yellow gas pipe exposed after the removal of the final pavers on the Thursday or Friday before the explosion. He recalled Mr Stoeski also knew the line was exposed. Mr Bustamante did not recall telling anyone else from Abigroup about the exposed charged gas supply line. He stated to Police on 20 December 1995:
After the pavers were removed, that was on the Thursday or Friday before the gas explosion, I saw the capped end of a yellow gas pipe laying exposed in a flat position in the ground. The yellow gas pipe was exposed about 200 mm in length and it was laying in a shallow hole about 300mm by 300mm. When I saw the end of the pipe it appeared to be in good condition and undisturbed. That was the last occasion on which I saw the yellow gas pipe prior to the explosion.
Mr Josef's evidence was he saw a 6 inch piece of yellow gas line sticking out plus a marker. Mr Stoeski said "we spotted the pipe".
193 The defendants submitted the Commission in Court Session should not accept any evidence of Mr Josef and find him unreliable. Further, Mr Stoeski's observation should be dismissed as it was made in relation to his evidence there had been a second call-back to the site of AGL. The defendant company submitted the evidence of Mr Bustamante as against Abigroup is an untested observation which is not consistent with those of other witnesses who have claimed that the gas pipe was not exposed before 4 December 1995. The defendants for this submission relies on the words of Mr Campbell, the excavator operator, who said the gas pipe was not exposed when he arrived on the site and commenced work on 4 December 1995.
194 I do not find it essential to make a finding as to whether the gas pipe became exposed in this period in order to determine whether there was a risk to safety on the KSU site between 11 November and 3 December 1995 (inclusive). On balance I nonetheless accept the statements of Mr Bustamante, Mr Stoeski, Mr Josef and Mr Adler who identified there had been disturbance and a partial exposure of the Goldline pipe by 3 December 1995.
195 The evidence makes it difficult for the court to determine when the star pickets and markings were removed from the capped end of the gas supply line and in what circumstances they were removed. I however accept they were not there when work began on 4 December 1995. I accept by the morning of 4 December 1995 the markings had been removed from the capped end of the charged gas supply line though they remained on the site. I accept there was a partial exposure of the charged gas supply line before 4 December 1995.
The Work on Site on 4 December 1995
196 Abigroup employees were not at work on Monday 4 December 1995, the day of the incident. Mr Bustamante and Mr Bolger did not attend on site either on that day or on the previous Saturday. The Saturday morning was ordinary work time for the demolishers and evidence reveals both Mr Bolger and Mr Bustamante knew work would be performed that morning. Mr Campbell was the excavator operator on 4 December 1995, the Monday. He did not recall working on the site on the Saturday.
197 Mr Robert Josef's evidence in chief, as to where work was to be performed on site on 4 December 1995, was as follows:
Q. Did you see anything in relation to a gas pipeline on the site?
A. I don't know who pulled it out - somebody went and pulled a gas pipe out of the ground.
Q. Did you see that, did you?
A. Yeah.
Q. To your knowledge, had your men been working in that area?
A. No, I left strict instructions not to.
Q. Who did you give those instructions to?
A. Bob Campbell specifically.
Q. Were you told anything about where they had been working?
A. No, I saw them where they were working.
. . .
Q. You said, "Why would they be working - why would they be working next to the gas pipe? What reason would they have to work?" Right?
A. That's correct.
Q. What do you mean by that?
A. It wasn't part of our site. The site was handed over. We had no work to do in that area whatsoever, so why would they be working there specifically when they were warned not to go in there?
Q. The site had been handed over to who?
A. To Abi. That part - that part of the site was handed over to Abi the minute they started using it as a ramp.
. . .
Q. Did you observe the site as a whole on that side of the railway station?
A. Yes, I did.
Q. Was there any work required of Josef & Sons or their employees at the southern end of that site?
A. That's the shops end?
Q. Yes.
A. No.
. . .
Q. You said, in answer to questions from my learned friend, Mr Josef, before lunch, that you instructed Mr Bob Campbell not to go near the area where you said there was a gas pipe?
A. That's correct.
. . .
Q. When did you have that conversation with Mr Campbell?
A. When I first got on site on the Monday morning.
Q. Monday the --
A. The 4th.
Q. Of December 1995?
A. That's correct.
198 Mr Stoeski, the foreman for Josef &Sons, said of work on 4 December 1995:
Q. Were you working on the site on the day there was the explosion?
A. Yes, sir.
Q. What were you doing on that day on the site?
A. Cleaning up.
Q. What do you mean by "cleaning up"?
A. Cleaning up the rubble and timbers laying around. On the morning there's a bit of extra work on the stairs and cleaning up for the job to get out.
. . .
Q. What work was being done in relation to the batter?
A. They done it with an excavator, sloped it down on the ground. I didn't watch him how he done it because I wasn't there; I was on the other side.
Q. Other side of what?
A. The railway, sir.
Q. Are you saying the man operating the excavator made a batter?
A. Yes, sir.
Q. That was close by the gas line?
A. Well, till the end of it - it could be about 3 metres away till the end or something.
Q. When did you last see him doing that work?
A. Well, actually I didn't see him do the work. When I came back from the other side, it was already done, okay, but I was walking up and down, so I don't really - you know, can't remember that I went there or not.
Q. What was the purpose of that work - that is, making the batter?
A. That's what Abigroup wanted.
Q. For what reason? What's the batter on an excavation site?
A. I suppose so, sir, nobody can fall down into the hole. That's what I think it was for.
199 Mr Bernath Adler of Josef & Sons, responsible for demolition of the staircase to the north of the site, said, as to work that day:
Q. Are you saying that you asked Mr Campbell to leave the small material that he was digging out nicely on the batter?
A. Not digging out.
Q. That he was cleaning up, I'm sorry.
A. Yes. The material he hammered was above ground level, so we are not talking digging.
Q. How was he to leave it on the batter?
A. After he hammered, he's taking off the hammer and with the bucket clean up the area where he hammered and place it nicely on the batter, with the bucket.
Q. All right. In relation to the area between the stairs and the ramp at the southern end of the site, how far did the batter extend?
A. The same batter was extending from the red columns to the access ramp.
Q. To your knowledge at that time did that go over or near where the gas pipeline had previously been marked by the hessian bag and the other objects you've described?
A. The batter was near the hessian bag area.
Q. Was there anything to indicate that area on the day that Mr Campbell was working?
A. No.
Q. Did you say anything in relation to going near or not near that area?
A. Yes.
Q. What did you say to him?
A. I asked - I ask him specifically not to go close to the access ramp. The access ramp at the beginning of the job was in a decent condition and it became very untidy, not from our work, and I asked him specifically not to go in the area there and do any clean-up.
Q. When did you say that to him?
A. I think I mentioned it to him on Friday - on Saturday, while we were working. I don't know if I repeated it on Monday morning.
200 In cross examination Mr Adler was asked:
Q. What in your estimation is the closest the excavator got to the area that you'd previously seen the marker and tape in?
A. Shouldn't be closer than 3 or 4 metres.
. . .
Q. What I'm asking you, though, is that in that southern end of the site in the area near the ramp, was there any need to do any further battering work?
A. Battering, no - battering as such, no.
and:
. . .
A. The demolition has been completed. The demolition of the shops - they were completed. The area was to be handed over to Abigroup in order to put their ramp in . . .
201 Mr Trajcevski, a Josef & Sons labourer on site, repeatedly, in chief and in cross examination couldn't remember. His command of English was poor:
Q. Did you see what the machine was doing inside?
A. Was working but I don't remember exactly. The job nearly finished that day.
202 Mr Daniel Josef, the son of Robert Josef, was asked what work was being performed on 4 December 1995. He persistently needed assistance from a prior statement to Police to assist his recollection, even for evidence in chief:
Q. . . . Can you remember anything further about what Mr Campbell was doing on the site on Monday, 4 December 1995?
A. Well, when I was there he was underneath the steps jackhammering the footings out and cleaning that up.
. . .
Q. How was he moving it out?
A. He was breaking it up with a jackhammer and moving it with a bucket and probably loading it to a truck but I wasn't there, so --
. . .
Q. Was the excavator doing something as well as removing the foundation from the steps on that day?
A. Yes.
Q. What was it doing?
A. It was making a batter between the first - between the two levels.
Q. Between which two levels?
A. Between the upper level and the lower level.
. . .
Q. What's a batter?
A. A batter is a slope created so the - so it doesn't basically collapse, so the top level, it's cut at a natural angle of repose.
. . .
Q. Can you see an object on the batter that you could easily identify?
A. Yes.
Q. What's that?
A. I suppose it's the gas line.
Q. So where the gas line is, is that where the batter is?
A. Yes.
. . .
203 In cross examination of Daniel Josef:
Q. I want to take you to 4 December. With the assistance of looking at the statement, you were able to recall that you were on site from 8am to about 12 noon?
A. Sure.
Q. You've described during that time that there was work going on at the staircase.
A. Yes.
Q. That's at the northern end of the site. Whilst that work was going on, do you recall what the southern end of the site looked like?
A. Southern end - like just the description of what it looked like?
Q. Yes.
A. Yeah, there was - right next to the wall there was a ramp, right next to the wall, that was used for access to get down to the tracks. They were doing some track work there or they were doing something in there. Then there was just the dirt there in an escarpment, or whatever you would like to call it.
Q. Josef & Sons had at the commencement during the demolition process worked in that area?
A. Yes.
Q. That is the southern end of the site?
A. Yes.
Q. After the demolition process, there was just the stairs left to be demolished?
A. The stairs on the eastern side, the stairs on the western side and the bus shelter on the western side.
. . .
Q If I suggested to you that you told the police that you hadn't done any work near the location of the exposed gas pipe for close to two weeks, would that accord with your recollection?
A. It wouldn't accord with my recollection because I don't remember, but if it's in a statement, then yes.
. . .
Q. Again, having refreshed your memory by reading that paragraph, are you able to tell us whether or not the excavator on Monday, 4 December 1995, was working near the gas pipe?
A. When I was there, he wasn't.
Q. Is it possible that the batter that you had referred to you as being mentioned in the statement was a batter in the area of the staircase that was being broken up and taken away on the 4th?
A Yes.
204 Mr Campbell stated he started work on the site at about 7am on Monday 4 December 1995. Mr Stoeski the foreman directed him as to work required. At first he was loading materials into the truck to remove rubble from the site. He began work in the middle of the site. He lifted up loads of broken concrete and placed them in the back of a tipper truck. He said the excavator he was operating swivels on its base 360 degrees and he had to move it back and forth to pick up and to heap the materials. The clean up task he estimated was completed just before lunch time between 12 noon and 12.30pm.
205 Mr Campbell says Mr Stoeski then instructed him to cut the batter. To do this, Mr Campbell worked the excavator from the northern end - the staircase end of the site - to the southern end of the vertical cut. He identified the actual vertical tapered off at the railway ramp. The excavator was facing north but he was moving south. He was progressing backwards. He had noted on 4 December 1995 the "bunion" and stake were not on or near the ramp. No logs were near it on that day either. He had not been warned to watch for any hazard on that day. He noted the ramp had been partly levelled off. He reached the southern end of the site at about one o’clock. It was then he “exposed the gas pipe”. He tells of his activity on the day of the explosion:
A. The cut of the batter was very minimal to what you normally do, and it was only a 300 cut, what they call a 300 cut, that section off the top. By the time I got to that point of where the actual gas pipe appeared to be, I was unaware of this, I was running out of materials to complete the formation of the batter, and I said to Chris Stoeski, ‘Well, we’re not going to have enough material from the batter edge or the vertical edge to complete the batter. He said, "Start grabbing it off the top." I’d say it'd been levelled out. He said ‘They are going to be digging footings and piers here later on and that. There will be plenty of material to put back for what you take off the levelled area, and take some off the top". So I started taking some off the top. That’s when I exposed one end of the gas line.’ . . . .
Q. When you started taking some off the top, as you said, how did you do that?
A. Just by using the bucket digging into the surface of the material . . .
Q. How deep did you dig into the surface of the material?
A. Well, there’s no calculation on actually each time you take what we call a bite but it could have been 200 or 300 mm at a time.
Q. When you did that, what happened?
A. Well, the first time I dug it in two swipes this happened – there was no visible signs of anything. The second time it showed what I've said before at the site of the gas pipeline. It still had dirt on top.
Q. What did you see?
A. I seen a yellow gas pipeline.
Q. Did you know it was a gas pipeline?
A. I did by the – yes.
Q. How much of a gas pipeline did you see?
A. At that particular time, about a metre of it ...
Q. How did you see it in relation to the ground?
A. Well, because, the bucket, as the teeth drove down over the pipe, I assumed that's what they did, because we don’t see nothing as the teeth go into the ground, you have to understand that. It’s buried underground. As the bucket comes up we see what marks it leaves in the ground. The dirt on the top had stayed there, but the teeth must have dragged itself along the edge of the pipe, leaving the edge of the pipe exposed.
Q. Did you see the end of the pipe?
A. Not at that stage.
Q. How exposed was the pipe?
A. Well, as I said, the side of it was showing to my vision.
Q. What did you do then?
A. I stopped.
Q. Why did you do that?
A. You can’t keep going when you see a service like that.
Q. Why do you say that?
A. Because you don’t know whether its live, dead or what.
Q. What did you do then?
A. I called up Chris Stoeski, who was further down the track and asked, ‘What is this?’
Q. Did you or he or together do something?
A. Yeah, he examined the pipe. He kicked the dirt off the top of it, discerned that the bucket hasn't driven into it or damaged it in any way. I got off myself. Between the two of us we dug around it by foot or they brought up a shovel eventually and dug around it for about a metre, two metres, and we could see there were no fractures or damage done to it in any way, shape or form. By that time it was exposed to the end cap.
Q. What did the end cap look like?
A. It’s a white piece of nylon and it’s like a cap effect and it's put on the end by the gas company and it is glued on there. It did have some sort of dogleg on it ...
Q. Where was the dogleg – can you describe the dogleg? What did it consist of?
A. Well, it’s just an extension of the plastic cap and it’s, like, it tapers from probably a pen size to about a pen diameter size, and the idea of it is it can be stuck in the ground to sort of hold the gas pipe straight, because there’s no balance on that end with the gas in it, you know, and I think the idea is to be sort of a stabiliser in the ground.
Q. . . . At the time there was the observations by the Josef & Sons men, I think you said he did something with his feet first-off, Mr Stoeski?
A. I only exposed the side of the pipe. As I dug most of the top surface soil off, it left very little left and there still was some on the top of the pipe which you could easily take off with your boot and, as I said, we took off as much as we could by foot in the area that I dug with the intention of examining the pipe.
206 He proceeded to finish the batter but was careful not to go back near the pipe. He continued work on the excavator. He could reach to the other side cutting the batter without going towards the pipe. He revealed the batter ran past the pipe and said:
I dug up to the pipe, dressing the batter, and there was still a small section of that I could reach across from the arm and redress the batter without driving any more further forward.
207 Mr Campbell said the excavator’s arm could reach another two or three metres ahead of the excavator’s tracks which he had identified from photographs as near the demolition site boundary fence. He only needed to reach out a further two metres to complete the batter. He said:
. . . We're digging around cables all the time. . . . We are digging up, under and over ... I stopped the tracks on the northern side but I operated the bucket on the southern side of it, still dressing the batter to complete the batter. Basically, that would have put it [the excavator] towards, pretty close to the ramp.
He sited his excavator as three metres from the boundary fence in the demolition site and stated:
When the bucket leaves the surface of the ground I can’t see what happens underneath the ground.
208
Mr Campbell continued working and while he was on the excavator a shopkeeper came to the site saying:
Gas is leaking out in the street.
Mr Campbell directed the shopkeeper to Mr Stoeski. Mr Stoeski walked down the street with the shopkeeper. Mr Campbell continued to dress the batter until he completed the task. Mr Stoeski came back saying “Gas is leaking” and Mr Campbell advised “Ring the Gas Company.” Mr Campbell noted some of the Josef & Sons' labourers going towards the shops and Mr Stoeski revealed he sent his men to the spot where the gas was leaking. Mr Campbell, having finished his work, began to drive the excavator towards the northern end of the site. A labourer came to help him put down plywood boards so the tracks of the excavator did not damage the pavers. These were to the north entrance of the site. The excavator was near the kerb at the north entrance away from the ramp area when he heard the explosion. Mr Campbell denied he was ever told the pickets and the bunting marked the end of a gas pipe. He did not make the inquiry on 24 November 1995 as to the presence of the pipe because he was only operating a bobcat on that day and was not required to dig.
209 Mr Campbell would not agree he worked on the Saturday. Any discrepancy between this evidence and what he said to the Police he accounted for in his inability to identify events by date as put to him. When the Police asked him if he worked on 2 December 1995 he agreed he may have said "yes" thinking the date was in fact the 4th, the date of the Monday. He denied Mr Adler only directed him to clear up the rubble down near the stair area on the site. He denied Mr Adler ever defined what areas he was to work on the site. Mr Campbell said he was directed by Mr Stoeski.
210 Mr Campbell then revealed he had made two different statements to WorkCover. The court asked why that occurred and the following evidence was revealed:
A. Well, the first statement was false. I’ll explain it as best I can. When I was on site that day or the next day and I was to make that statement with WorkCover, with Kathy Maltby, and Robert Josef approached me and he said to me what was I going to say and I said to him I was going to say that I didn’t know where the gas pipe was and he told me he was going to – him and his men were going to say they all knew where it was and we stayed a couple of metres away from it and that if I persisted in saying that and the gas company had, you know, like, checked their statements and seen one of them were different, what would happen is they're going to get suspicious and say we hit the pipe.
Mr Campbell said:
He said "I've been talking to the gas authority people and the WorkCover all morning" which I seen him talking to them, and he said they believed the machine had nothing to do with it and he said, ‘You’ll be the odd one out. It will be six of us against you.’ So I went along with it, regrettably, on the principle of keeping a uniform thing because I've been in the business long enough to know that all people who put services underground are going to blame anybody, the closest to them. After I got to thinking about it a long time there, and worried about making a false statement, that’s why I went back in December and made it as it was to the police statement.
He then revealed what he believed had occurred in his use of the excavator:
What I believe, the bucket clawed across the top of it. The tooth rubbed along the side of side of it. The teeth would drag along the side of pipe but they have what they call a cutting edge on the bucket where the teeth are welded. That’s a flat piece of steel. It rides up over the pip, it skids along. It will stay up. If there's a fair percentage of earth there, it will skid along that earth leaving a piece, but the teeth will be deeper. That’s what I believe happened, why I seen that, the side of it, because the two came very close to it and to the side of the pipe and skimmed the dirt away and I saw the side of the pipe, not the top of it.
211 In cross examination it was put to Mr Campbell he told the Coroner he had not seen any galvanised pipes in the ground at all anywhere on the site. His answer was:
That might be wrong. I seen the galvanised pipe in the ramp, but not at the point where the gas pipe was.
He was further cross examined about taking orders from Mr Adler. He said Mr Adler outlined to him in the morning what he wanted done on site but Mr Stoeski was the supervisor from whom he took his instructions. He was asked:
Q. . . . When you were making this batter, were you pushing dirt down or were you pulling it?
A. Doing a bit of a both scenario. You start off as you cut the back, sort of 45 is half the batter and the other half, if you can imagine a cut line like this on the floor level, as you take the top off, the bucket has sliced half the vertical off. The other half on the bottom stays virgin ground. By drawing that motion with the excavator – it doesn’t matter what angle it works to – you format the batter top into the lower area of the batter and you're virtually building it out with excess material to put a plane on it. It’s a very hard process to explain, but you virtually build out the bottom another couple of hundred more and when you play with the bucket it crushes it in.
Q. Where do you say the vertical was when you were cutting?
A. The vertical - if you get that photograph of the Reids excavator, you will see that he is sitting right beside the vertical. What he has dug out, that used to be there.
212 The site was flattened at the top but at the time Mr Campbell began the work it had a vertical edge above where the excavator had worked to remove a wall running parallel to the station. On Mr Campbell's view the top of the demolition site, that is the eastern side of it, looked as if it had already been partly dressed. It was put to him the vertical was not there on the Monday, but his answer was:
It was. Why was I cutting the batter?
It was further put to him that he had not told any of the authorities to whom he had made statements about the detail of running out of material and that was why he moved material from the top of the gas pipe. Mr Campbell suggested that such detailed questions were not asked of him. He was asked:
Q. When you say you exposed this gas line, I think you described the bucket going in and running along the side of the gas line.
A. Well, like I said, I can't see what happens when the bucket’s cutting-edge or teeth leave the surface of the ground, but by looking at where the teeth marks went and the amount of dirt left on it, it appeared that the teeth had gone over the pipe and the actual cutting edge had skidded along the top of the pipe.
At the time he and Mr Stoeski examined the pipe he saw Mr Stoeski “lifting it up”.
213 John Hatzikiriakos was a restaurateur at a take-away seafood restaurant, Shop No. 17, at Kogarah Railway Station. His shop was next door to the tobacconist who was next door on the south side to FAZ. The Mei Yee Fashion Shop was next to FAZ to the north side. Mr Hatzikiriakos noticed a smell of gas coming into his shop through the air conditioning. As the smell of gas grew stronger he checked his kitchen equipment and then went to the demolition site. He saw a worker digging on an excavator. He noticed:
. . . he was digging and all the time he was digging there was two pipes. He was turning off from the ground two pipes, a thicker one and a thinner one.
Q. Yes.
A. And the two guys, they were in on the site there, I called them, I said: “We've got a gas smell”. He says: “We know. We've got the gas company on the way. We've called already the gas company.” I said “OK.” . . . So I went back to the restaurant. As the smell was getting worse, I went back outside again.
Mr Hatzikiriakos saw the excavator lifting the pipes to about one metre above ground level.
214 By 1pm AGL had not arrived, and just prior to the first explosion Mr Hatzikiriakos determined to ring “000”. He told Mr Wally Afiouni, the tobacconist next door, of his intention to make the call. Mr Afiouni revealed he had already made a call. Two police officers then arrived, a police lady and a policeman. Mr Hatzikiriakos identified to the policeman the gas was coming from a spot in the footpath. He observed:
Yes, the workmen they came into my restaurant, the excavators; whatever the guys that were working on the site land, they called me out, “John, the gas is not coming from the pipes there” because I spoke to them. I said: “Look, the man is doing damage there, that's where the gas is coming from” - that's where I thought it was coming from.
He identified he had this conversation when he went back to the demolition site the second time around. He saw the workmen as the police officers arrived trying to put some barricades around the site. Then as he went back to his shop he heard the explosion. He saw people suffering burns. He tried to assist a person who was alight. His daughter was seriously burnt. She was five months pregnant.
215 Mr Hatzikiriakos revealed the excavator was digging up the two pipes, a thick one and a thin one, and at the same spot he saw a yellow pipe lying around on the site. He said after the explosion he saw the thin pipe, the thick pipe and the yellow pipe laying on the ground.
216 Mr Stoeski first heard of the gas leak when "George", one of the shopkeepers, the tobacconist, screamed he could smell gas. Mr Stoeski checked the "orange" pipe on the ground. He uncovered it by hand as he knew it was there. He checked the pipe and called one of his labourers who also checked the pipe. They determined no smell was coming from the pipe. He and Bruno, a labourer, then walked down to where they saw a gas marker outside the shop, FAZ. There they noticed a smell of gas coming from the footpath “by way of a sizzling noise”. They rang Mr Daniel Josef to report the gas leak and Mr Stoeski and Mr Bdaric started putting barricades up around that area of the footpath.
217 Shop owners came and went complaining about the gas smell. Mr Stoeski left his labourers, Bruno, Hassan and George, at the barricade but they had to move in and out from the barricaded area because the smell of gas was too strong after a few minutes. Mr Stoeski then heard the first explosion. He saw the seafood café owner’s daughter being burnt. He assisted the injured.
218 Senior Constable Robert Leslie Stephens, accompanied by Constable Kelly Adams, was called to the KSU site. On arrival he surveyed the site. It was Constable Stephens' immediate opinion there was a major gas leak which was potentially dangerous. He asked a worker he identified as the site manager had he contacted the gas company and was told “yes”. The site manager also commented “. . . the pipe is not leaking over there”. The site manager indicated and the Constable noted a yellow pipe which was exposed about 1.5 metres out of the ground in the excavation site. The first half metre was protruding from the ground and was at an angle of about 20 degrees from the ground. It was facing parallel to the railway lines northward. A metre along the pipe had a bend in it at about 60 degrees to the ground and was facing north/north west. It was a pipe with a silvery grey coloured cap. The pipe came out of the ground from the embankment where dirt had been dug away. The Constable recalled when he sited the yellow pipe he also noted an excavator was behind it. He did not recall seeing the excavator working at the time.
219 Constable Stephens made a call for further help. He then heard an explosion, saw movement and a flash past his right eye. He was knocked down to the ground. He suffered injury and spent eight days and seven nights in intensive care.
220 Constable Adams, Constable Stephen's companion police officer suggested the noise of the excavator was so loud they had moved away to make the call for help. Constable Stephens did not recall being distracted by anything occurring on the excavation site. Constable Adams heard Constable Stephens contact Kogarah Police Station and the supervisor's vehicle. Police follow this procedure in situations where officers on site identify they need help. At the time of the call back to the Police Station she recollected:
A. There was a big yellow machine in the background where they were doing all the work, just excavating, just making a lot of noise, so we were having a lot of trouble hearing the radio.
Q. What was the noise; was it its engine or movement?
A. Just like a big roadworks vehicle – the way they pull soil back and things like that. It was just a big machine going?
Q. It was going at the time, was it?
A. Yes.
Q. When you say “going” was the engine running or appearing to do something at that time?
A. Yes, it was making the noise where the bucket comes up and goes down, like an excavator. You could hear gears and everything. It was very close to where we were standing. It was very loud.
Q. Did you observe it doing anything?
A. Yes.
Q. What did you observe it doing?
A. Moving around and working.
Q. Can you just describe the working? You have said what you heard. I'm asking what you saw.
A. There was a huge fence erected, like a safety fence, a mesh fence, and behind that it was just moving back and forward and the bucket was going – I think it must have been excavating or moving ground and things like that, clearing the ground.
Q. Did Constable Stephens have to repeat some of the message?
A. That’s right, yes.
. . .
Q. Did you turn around to face the amusement zone southward?
A. Yes, we were looking – we were trying to decide how far we were going to evacuate. We were looking to see where the people were and how many shops back we would have to consider about evacuating.
Q. Did you call out to some ladies in the dress shop.
A. Yes.
Q. Was that near by?
A. Next door.
Q. Were you looking down towards the south when in effect there was the sound which you now know to be an explosion.
A. Yes.
Q. You were injured in the explosion yourself.
A. Yes.
Constable White suffered burns and cuts in the first explosion.
Findings
221 Mr Robert Josef and Mr Adler claimed there was no work to be done near the southern end of the KSU site and it had already been handed over to Abigroup. Mr R. Josef stated the excavator driver was told not to go near the gas pipe. Mr Adler stated the excavator should not have been closer than 3 or 4 metres to the gas pipe. Mr Stoeski agreed the excavator made the batter, but could also not recall the excavator's activity, except to say he did not see it go near the gas pipe and the excavator remained some three metres away. Mr Daniel Josef agreed a batter was to be finished but remembered very little except the excavator should not be near the gas pipe. Mr Trajcevski, although on site throughout, could not recall any activity of the excavator.
222 The way in which the evidence was presented to the court as to activities on site on 4 December 1995 is of concern. The position/disturbance of the gas pipe becomes central to the issue as to whether any acts or omissions of the defendants created a risk to safety or there was a failure to take reasonable care on this site during two particular periods of time. The prosecution led evidence from five witnesses working for Josef & Sons at the site to say they did not see the excavator go near the charged gas supply line and all claim they were not near the area where the pipe was capped when, as Mr Campbell admitted, he disturbed the pipe. The prosecution did not attempt to challenge the evidence and credibility of these witnesses, although the prosecution intended to submit their evidence was false. No leave was sought to cross examine them on this aspect of their evidence, although s38 of the Evidence Act 1995 – in particular, sub-paras (1)(a) and (b) – appear to provide ample grounds for so doing (see Glasby (2000) Vol 115 A Crim R 465). It is obvious evidence alleging a conspiracy to give false testimony and the attempt to suborn Mr Campbell is relevant – indeed, crucial to the Court’s assessment of the credibility of the witnesses concerned. It was clearly not in the interests of those contending for the reliability of the Josefs’ employees to elicit evidence of the contradictions or anomalies, nor did they have a duty to do so. The matter only came to light when the Court asked why Mr Campbell had made two statements.
223 Mr Campbell was cross examined as to the variation between statements he gave to WorkCover. From such cross examination, it appears the last statement endorsed the evidence he gave to the Court. He was also cross examined as to his sworn evidence before the Coroner which varied from his last statement and evidence. The significant admission of Mr Campbell was he did not stay at least three to four metres away from the position of the charged gas supply line but worked his excavator over the charged gas supply line.
224 The Court raised its concerns as to the state of this evidence. In submissions the prosecution was asked:
Her Honour:
Mr Campbell, I thought, made a lot of admissions, didn't he?
Counsel:
He did, your Honour.
Her Honour:
What do I say about your witnesses when Mr Campbell distinguishes himself in the evidence and I have five saying one thing and him saying another?
Counsel:
We put them all up: Mr Deane of Abigroup, all the Abigroup men through to Mr Campbell through to the police officers.
Her Honour:
Until I heard Mr Campbell, they were all put up as what they were saying was true. Surely I was entitled to believe that. Then it was by consent I asked a question, by mere chance. How do I handle that?
Counsel:
Having judged the various witnesses, it may be you can't come to a view. It may be that you have to disbelieve some and believe others.
Her Honour:
What about circumstances where they have been put to me as witnesses? What if I hadn't asked that question, which was something very simple, from my recollection? Why do you say fifty-fifty? Why did you give a second statement? Then he said "because five of them had conspired", et cetera, et cetera. You led all those witnesses before me saying they didn't go near the pipe and then suddenly I have the driver of the place going over it and saying, "I went over it, your Honour", and they all agreed they were going to say they were away from it. What if I hadn't asked that question?
Counsel:
Your Honour wouldn't have known, nor would we. If we had known, we would have explored it.
Her Honour:
You knew there was a second statement and why he gave the second statement.
Counsel:
He said something in the second statement but, your Honour, we put all the witnesses in and they say what they like.
Her Honour:
They are witnesses of truth, I assume, if you are going to rely on them.
Counsel:
I can't not call a witness who is relevant; that's not how a prosecution works. That is its distinction. If this was a civil case, I would only be putting in witnesses I rely on by the action of calling them. Your Honour can assume they are progressing the case.
Her Honour:
If you have five witnesses saying one thing, Mr Skinner, and a sixth witness saying something at variance with no reason why it is different until an accidental question is asked, haven't I got to weigh five against one on a particular view that could have coloured a judgment and the evidence is an allegation of conspiracy?
. . .
Did you not call them to rely upon them, or do you say you called them and you do not rely on their evidence?
Counsel:
I call them as the prosecutor to put the relevant evidence before the court.
Her Honour:
Then in submissions you are free to say which part of the evidence you rely upon and which part you don't?
Counsel:
I would have thought that orthodox, your Honour, completely orthodox in at least a criminal prosecution where the prosecutor has the obligation to put witnesses in. it is extreme adverse evidence which is different to the case as opened where they move off their statements, whatever, one makes application under the Evidence Act, as I think I did with Mr Bolger. As to the rest we say, "These are their statements, we put them up." What else can we do, your Honour? Indeed, one doesn't confer with them.
225 Of course, there is no reason why Mr Skinner – or those instructing him could not have interviewed Mr Campbell concerning his two statements; indeed, they were in such marked contradiction that such a clarification was called for. Furthermore, the other witnesses should not have been left in the position where serious allegations were going to be made about them without their having the opportunity to respond. The evidence given by the five Josefs’ employees was unfavourable to the prosecution case. Although there may have been an obligation to call them in all but exceptional circumstances, which may well not have existed here, but which it is unnecessary for me to determine (see Richardson v The Queen (1974) 131 CLR 116; see also The Queen v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 65; R v Kneebone (1999) 47 NSWLR 450) there was also a duty to test their evidence if there was – as there clearly was – a proper basis for so doing.
226 On the other hand, if Mr Campbell’s evidence was unfavourable to the prosecution case, he ought to have been cross examined to expose its true character. Even if it were not so unfavourable, s38(1)(c) of the Evidence Act 1995 would have permitted cross examination on his prior inconsistent statements if leave were granted, as it inevitably must have been in the circumstances. In the result, had the court not, per chance, asked the critical question, a vital part of the evidence would almost certainly not have been revealed. The Court would, in all likelihood, have been left with the situation where five witnesses contradicted the evidence of a sixth, with vital information explaining this state of affairs being, in effect, concealed.
227 The prosecutor accepts he had the duty to adduce all relevant evidence. I do not see how this duty did not also include presenting the evidence about the conspiracy and the duty to cross examine the five witnesses and/or Mr Campbell about it. This is especially so having regard to the absence of a party with an interest in testing the evidence of the Josefs’ witnesses. Mr Campbell should have been called first and the explanation for his two statements adduced. This would have provided the evidentiary basis for cross examining the other witnesses under s38 of the Evidence Act 1995. All the relevant evidence would then have been before the Court.
228 Mr Hodgkinson addressed the state of the evidence as follows:
The conflict between Robert Campbell and Robert Josef arises, if Mr Campbell is to be believed on his allegation, that R Josef was prepared to approach him in order to have him falsify the information that he intended to convey to WorkCover and the police. More than that, he had and was prepared to organise his other men into the same conspiracy.
If he's to be believed, then you cannot believe anything that R Josef says because R Josef set out, as at 4 December, to mislead everybody about the facts surrounding this issue to his own interest. If you accept what Mr Campbell says about this, you cannot accept Mr Josef unless there is an objective factor that supports something he says.
The next proposition is this: if you were to reject Mr Campbell's allegation, if you were to say, well, look, that is not made out, we can't accept what Mr Campbell says about that, then that must cast doubt over Mr Campbell's evidence in its entirety because it amounts to an allegation of a very serious kind Mr Campbell is prepared to make in circumstances where, if he's not accepted, the very untruthful foundation of it would permeate everything else that he says. It shows that he's prepared to falsify evidence for his own benefit, whatever that is, in a way that is most serious.
The difficulty this court has is that the prosecutor hasn't provided you with a basis to resolve that conflict. It arises in this way: Mr Campbell is called late in the prosecution's case. That's neither here nor there in every real sense, because it was to WorkCover that Mr Campbell took the information that his original statement was wrong in a very, very significant way, and wrong in a significant way that conflicted with those other persons, R Josef, et cetera, who were members of the Josef & Sons team on site on that day.
The WorkCover Authority, as prosecutor, don't attempt to resolve that conflict, even though it is known to them, by raising it in any way with the earlier witnesses, most particularly with R Josef. They don't provide your Honour with the capacity to assess R Josef's evidence on the point and Mr Campbell's evidence so that this problem might be resolved.
Even if it could be said that they weren't on notice of the actual detail of it, which is really, with respect, quite a long bow for them to draw given that it was Campbell who approached WorkCover to disclose this information, they don't then attempt to raise this issue in this trial.
Certainly, Mr Campbell's evidence is given late among the witnesses, but it is not given at a time when, for the purpose of addressing this issue, those earlier witnesses could not have been called back to the trial so that your Honour would have a basis upon which this conflict could be resolved. No application was made for that to take place. The very unsatisfactory position, then, is that there isn't a basis to resolve it and that then permeates the evidence of both of those persons, so that the unresolved conflict makes it very difficult in determining whether reliance at any factual point can be placed upon R Josef or R Campbell, or neither of them, and that, in my respectful submission, in part leads to the proposition that the prosecutor simply hasn't made out the case here to the relevant standard.
229 In the result, I accept Mr Campbell as a credible witness who wanted to assist the court by admitting his excavator worked near the charged gas supply line on Monday 4 December 1995 while moving earth to create a batter. Some details of his evidence could be challenged as to its accuracy but I accept the description he gave to the court of his recollection of the work he performed on 4 December 1995 as accurate.
230 In essence Mr Campbell's evidence was Mr Adler, Mr Stoeski, and the two Mr Josefs and another, Mr Trajcevski, were all going to deny to the WorkCover investigators, who were taking statements, the excavator on 4 December 1995 went near the charged gas supply line. He originally determined to join them in this denial. He admitted before me and in a very recent statement to WorkCover, which statement he initiated, that on 4 December 1995 as he drove his excavator he "exposed one end of the gas line". I accept Mr Campbell as a witness of truth.
231 However, although I accept Mr Campbell’s account of what happened at the site, I am unable (and am not for present purposes required) to come to any finding as to whether any offences relating to the perversion of the course of justice were committed by the Josefs’ witnesses. It would be inappropriate to do so principally because the allegations of conspiracy and suborning were not put to them. Even so, the allegations made on oath by Mr Campbell are so serious, I consider it appropriate to refer the evidence of four of the five witnesses to the Director of Public Prosecutions for such action as may be considered appropriate. Although some of the relevant witnesses already face charges under the Occupational Health and Safety Act, 1983 related to this incident, the matter for the Director’s consideration is of an altogether different character and may be, in a number of respects, more serious.
232 As to the site after Mr Campbell disturbed the pipe, Mr Campbell admitted he saw the yellow of the Goldline and knew it was a gas pipe. Mr Stoeski's evidence was when he first saw the pipe on 4 December 1995 he uncovered it by hand to see if it was broken. He brushed the sand from the pipe without disturbing it. Mr Stoeski said he did not hold, pull or turn the pipe. The description provided by Mr Stoeski as to the actions undertaken by him when the gas pipe was first noticed on the site on 4 December 1995 is not inconsistent with the description provided by Mr Hatzikiriakos as to the actions of the excavator on the pipe. The defendants submitted there would not have been any need for Mr Stoeski to uncover the pipe if the pipe had been lifted into the air by the excavator as described by Mr Hatzikiriakos. Further, Mr Campbell recalled Mr Stoeski kicking soil off with his foot.
233 It follows from Mr Hatzikiriakos's evidence the pipes were disturbed by the excavator. It is not necessary the Commission in Court Session must be satisfied as to whether the pipe was scratched by the bucket of the excavator. Further because the pipes, when looked at by Mr Campbell and Mr Stoeski, still had some dirt on the top does not mean they had not been disturbed. I infer, after the gas line and water pipe were pulled out of the ground they fell back down into the earth and in doing so I accept the evidence of both Mr Stoeski and Mr Campbell as to how they found the gas pipe.
234 I am satisfied Mr Campbell's excavator, while making the batter, picked up the gas supply line and the water pipe with his excavator. I find from the independent evidence of Mr Hatzikiriakos the pipes were raised one metre above ground level by the excavator.
235 Mr Galasso of AGL, on the site after the explosion and fire was extinguished, noted a “kink” in the Goldline pipe. “I think it was the long end". It was his view the kink was a bending mark or a mark made by bending. He agreed he did not know how the kink got there. He identified the length of the Goldline pipe which he had pulled out of the galvanised pipe as being approximately eight millimetres long. When he first saw the pipe it was sticking up at a 45 degree angle from the ground. He acknowledged it was not in its normal position because it should have been buried in sand. He said to the construction employees around him, “Did youse hit this pipe?” They said “No”. Mr Galasso opined the score marks on the pipe happened when it was put through the galvanised pipe or could have been caused by a rock or brick underneath the pipe. The defendant company submitted there is no evidence the marks such as they were on the pipe were caused by the excavator. A number of witnesses who attended the site on 4 December 1995 did not see any significant damage to the pipe.
236 The defendants submitted the observations by Mr Campbell must cast doubt over his recollection of the events. Mr Campbell said the capped end of the pipe had a "dog leg" on it. The defendant company submitted it was clear from his evidence that he was not referring to the elbow (and this was different from the evidence he gave to the Coroner). Such evidence the defendant company further submitted casts doubt on all the observations of Mr Campbell on 4 December 1995.
237 I do not make any conclusions related to any particular marks on the pipes or when such marks were made. It remains open to conclude either some or all of the marks were on the pipes before it was disconnected from the joint outside FAZ or the excavator bucket made the marks or new marks on the pipe.
The site after the first explosion
238 Detective Sergeant Barrie Bourchier was called to Kogarah Railway Station after the first explosion. He saw a scene which he described as “somewhat chaotic.” He noted considerable damage to the FAZ shop. Its windows and doorways made of glass were blown out into the street and the aluminium frames of the windows and doors were lying on the footpath and, in part, on the roadway, twisted and bent. A video game machine, quite large, lay in a charred condition on the footpath about 1.5 metres from the entrance to the FAZ shop. He noted a crack on the footpath which ran in the north-south direction near the gutter and saw flames being emitted from that crack. He thought the crack to be about 1¾ metres in length.
239 A command centre for police was set up at the site as were centres for the other emergency services, the ambulance and fire brigade. Detective Bourchier attempted to co-ordinate the movement of people from the area and sought the names of witnesses. Vehicle and pedestrian traffic was stopped from entering the area and assistance was provided to convey injured persons to hospital.
240 The detective stayed at the scene for 15-20 minutes and then returned to the police station to make telephone inquiries as to how many persons had been admitted to St George Hospital. He then returned to the scene. He again noted flames coming from the footpath directly in front of the FAZ. A team of AGL persons were by then digging a hole near the area of the flame. The flame continued to burn. The fire brigade were putting a “fog of water” over what the police officer identified as the burning building. Fire brigade officers then went into the FAZ shop. The police officer opined the second explosion occurred at 3.30pm. He identified it occurred in the basement area of the FAZ.
241 After assisting the injured, the detective went to St George Hospital to take notes from the number of injured persons, approximately 16 people. The nature of their injuries were burns and cuts. He had seen both deceased when he first attended the scene of the accident. He saw a 19 year old man with burns that appeared to be to 70% of his body, with skin peeling. The man was unconscious. He identified him as Mr Mina Bakhoum. He saw a second, older man, with burns to 80% of his body also unconscious. He identified him as Mr Gregory Maybury. He saw a female initially unconscious. She also had burns to all her extremities but to a lesser degree. He noticed a male police officer with burns to his face, right arm, right side and right hand with a number of significant cuts to his right hand. A female police officer had burns to her face, hands and legs and cuts to her legs. A number of other persons had lesser burns and numerous cuts. He also saw fire brigade officers with burns to their neck and inflammation of their eyes. Many of the victims also suffered from cuts. Two of the persons identified by the police officer died as a result of their injuries, namely, Mr Bakhoum and Mr Maybury. It is agreed at least 16 other persons sustained burn injuries.
242 Two AGL officers, Damian Paul Lindsay and Liugino Galasso answered the emergency call on behalf of AGL. They arrived after the first explosion. They endorsed the description of the scene at the site as given by Detective Bourchier. They arrived at the site about 2.20pm. They immediately began digging in front of the FAZ shop because of the crack in the footpath but realised this showed virgin ground. In order to find a gas main they would have expected to strike sand. They went searching up Railway Parade for an isolation valve. Mr Galasso went into the demolition site and saw a metre of Goldline sticking out of an old galvanised pipe with a 90 degree elbow and with another metre of pipe on the end with an end cap. He and his partner shut off other valves but the gas kept leaking through the footpath. It was then a "bubbling" was identified coming from the other side of Railway Parade - the eastern side. When they dug up the road, the employees found sand. Mr Galasso donned his fire suit and breathing apparatus, dug out to the main line, found a “T” connection taking the charged gas supply line across Railway Parade towards the shops and “squeezed it off there.” The fire went out. There Mr Lindsay found the 90 degree elbow without any Goldline connected to it but they opined this was where the Goldline which had been inserted into and taken out from the galvanised pipe had been joined to the main gas line which travelled across under Railway Parade.
243 After a short break Mr Galasso then walked over to the construction site and pulled out the rest of the Goldline pipe which was “in the gal.” He measured the Goldline and paced it out and then dug into the area where it's length reached. The spot was in front of the FAZ.
244 The two AGL employees were but two of the very brave officers on this site. Each gave their evidence in a straightforward manner without drama. Yet their individual work was performed on what has been described as “a chaotic site” where two explosions had occurred and where they attended upon a live flaming gas leak and were at personal peril. The police officers called to the site, one of whom was seriously injured, also told of the events with clarity. Not one of these servants of the public invited any mention of their courage and bravery. Some suffered serious injury. This court must put on record for the public of New South Wales the community's gratitude for their outstanding work in such dangerous circumstances.
The Investigation
245 Detective Bourchier returned to the scene at 5 o’clock, to make an inspection of the FAZ building, the demolition site and the surroundings areas with Crime Scene Officer Tuck and a Sergeant Horne, representatives from the AGL, State Rail, Abigroup and Josef & Sons. Officer Tuck took a number of photographs on this inspection. The detective noted the Goldline, yellow, nylon gas pipe lying at the bottom of the excavation site. He estimated the line he saw was 10 to 12 metres. He also noted the excavator parked in the mall beside the excavation site and also a yellow coloured bobcat parked nearby. He identified inside the excavation site a batter. He described it as:
about 40 degree batter coming from the pavement down to the bottom of the excavation site which had been levelled.
The batter was approximately 1.5 to 2 metres in depth.
246 The detective noticed the yellow nylon Goldline pipe found on the excavation site had a number of “kinks” on it. He identified a kink to the left of the elbow joint which he opined was caused by a metal collar which was found on the pipe. It is not in dispute a metal collar is part of the original galvanised metal gas line and the collar somehow had slipped down the line. The detective noted another kink on the line which he proffered had been made by the line being bent back on itself. The “kinks” were described as being in the form of an indent on one side and on the other side an enlargement of the normal diameter of the pipe. When asked to describe a mark, the detective stated:
Part of it is a depression across the pipe and part of it is an enlargement of the diameter of the pipe.
The detective identified the Goldline pipe had a right angle joint in that part of it which was exposed on the construction site. The detective played an investigative role in relation to the explosions. He interviewed Mr Luis Bustamante and took a written statement from him. He also interviewed Mr Bruno Bdaric, a labourer on site and took a written statement.
247 As to the excavation site the detective noted an excavator and/or machinery could be brought into the site from the northern end closest to the existing railway station. At the southern end of the excavation site, against the northern wall of the Mei Yee Fashion Shop No. 11 he noted an earth and blue metal ramp which could also give access to Platform No. 4 of the Railway Station. The ramp ran across the building site from east to west. The detective believed, from inquiries, the northern access was limited to vehicles such as the excavator whereas the ramp in the south of the site provided access to all types of machinery.
248 The detective revealed the weather conditions were very hot, very dry and very windy on 4 December 1995. He noted on the day of the explosion some water at the bottom of the ramp on the construction site. Track marks of the excavator were identified within the excavation site. The track marks ran north to south inside the excavation site. The excavation site, the detective commented, had a considerable amount of debris upon it including logs, wood, bricks, pallets and tyres. The detective agreed the 15 metre Goldline had been moved from the site by police for the purposes of taking photographs and to examine it for forensic evidence.
249 Detective Senior Constable Tim Mealing, attached to the Incident Reconstruction Section of the Forensic Services Group, New South Wales Police Force also gave evidence related to plans of the site. He prepared plans under a system known as "photogrammetry" which he identified as:
The method of producing a surveyed scale plan by using three dimensional photography. This is achieved by using a stereo-metric camera which consists of two cameras mounted a known distance apart, etc.
250 In effect, the plan of the site is drawn to scale and then various objects identified as physical evidence, are placed on the plan in accordance with the scale of the plan. This is done when two cameras are used to photograph the objects on site and to assist in the placement of them according to scale. The plans are prepared accordingly. The associated photographs were tendered. The detective revealed he incorporated into the plan only “items of interest.” In cross examination the detective conceded the photographs revealed other articles lying around the construction site which were not placed in the plan because they had not been identified by the investigators as “articles of interest.”
251 Detective Tuck took photographs within the first half hour of his arrival at the site at 2.50pm. He then left the scene and entered a Pol Air helicopter and took photographs of the site from the helicopter. A number of aerial shots were tendered. He then returned to the site and took a further significant number of photographs from about 3.50 pm. The photographs reveal the excavator and the bobcat had been removed from the scene between the time when the first photographs and the aerial photographs were taken and when the detective later returned to the site to take the second lot of photographs. The detective also took further photographs on 5 March 1996 in the car park of the Kogarah Police Station. These photographs were of the Goldline pipe which had been removed from the demolition site. In cross examination it was conceded by Detective Tuck the width of the ramp could not be determined from the photogrammatic plan. The detective however identified where the water pipe protruded out from the embankment in the construction site.
252 Expert evidence was called by the prosecution from Dhammika De Silva, a research scientist with the CSIRO who, in 1997, was a senior scientist employed by Gas Technology Services which was a subsidiary of the Gas and Fuel Corporation of Victoria. Dr De Silva was accepted as an "expert" for the purpose of this litigation and his report headed “Investigation of Nylon Join Failure: Preliminary Report,” with annexures was tendered. The report was prepared over a period of time and findings were supported by various experiments carried out and identified in the annexures. Following these tests which included a visual and microscopic examination of the gas pipe concerned, Dr De Silva opined:
The following conclusions can be drawn from the examination of the pipe and socket joints recovered from the Kogarah fire site and the tensile shear strength testing of laboratory prepared elbow joints;
1. Visual and microscopic examination did not show evidence of faulty workmanship that would have contributed significantly to a reduction in the strength of the joint.
2. Examination of the 15 mm length of pipe produced evidence that the force which caused the joint failure was less than the force necessary for permanent deformation of 32 mm nylon pipe.
2. (Sic) Tensile shear strength of the Kogarah joints were significantly less than the strength of the laboratory prepared joints; pipe strain at joint failure was also about 14 per cent of the pipe strain reached by the laboratory prepared joints.
3. The results of the tensile shear tests on the Kogarah site joints fall within and outside the AGL specification requirement for joint strength of nylon socket joints.
The issues raised by the significant difference in tensile shear strength properties, between the elbow joints from the Kogarah fire site and the reference joints prepared in the laboratory, can be best addressed, in the first instance, by examining the tensile shear strength of joints of a similar age (or older) assembled under similar conditions, but by different personnel.
253 It was Dr De Silva’s view the detachment of the nylon pipe occurred at the joint in front of the FAZ Amusement Centre. Much of the relevant testing as to the tensile shear tests he conducted were not conducted with pressure on the elbow joint. Because of the mechanism of joining the pipes at the joints the strength of particular solvents became important. Dr De Silva agreed if the solvent was weak it would create a weak joint. If it was misapplied or inappropriately applied that could also weaken the joint. The prosecution conceded the failed joint was not the joint tested by Dr De Silva for the simple reason that joint had failed on 4 December 1995. The joints which he tested as to tensile shear were similar joints.
254 As to the tensile shear tests, two modes of joint failure were observed – either the pipe pulled off cleanly from the socket or the pipe broke away from the socket by a peeling and tearing action. In the shear test failure tear and/or peel was the more common failure mode. Three of the Kogarah site samples at the joints were tested and other samples also tested.
255 An AGL specification for tensile shear strength nylon of a socket joint was set at “No less than 60 per cent of pipe yield.” This pipe yield could be translated to approximately 6.0 kN and the minimum strength acceptable to AGL at approximately 3.6 kN. It was also therefore concluded that the strength of one of the Kogarah site joints was within the requirement of AGL specification while the joint at the other end was below the requirement. Mr de Silva referred to the elbow joint where the cap was found as the undamaged elbow. The three joints in the tests recognised as the Kogarah joints failed rather than tore or peeled. The results were as follows:
(a) The other joints had a tensile strength similar to the tensile strength of the pipe.
(b) The other joints failed at over 6.0 kN load and strain of approximately 0.26. (kN are kilo newtons which is a weight of force. 9.86 kN is about one kilogram.)
(c) The Kogarah samples failed at under 5.0 kN load and strain of 0.04.
It was therefore concluded the behaviour of the Kogarah samples was significantly different from the behaviour of the laboratory prepared samples in that the Kogarah samples were much weaker in tensile shear characteristics.
256 The defendant company submitted the significantly different results from the Kogarah joints may, at least in part be, explained by a different strength glue that was used at the time they were manufactured. Dr De Silva expressed the view after his examination of the pipe, the glue had been correctly applied and he would not agree there was evidence sufficient to conclude the glue was a feature contributing to the joint failure.
257 Dr De Silva established the three joints taken from the Kogarah site upon which he was able to conduct tests had a significantly lower resistance strength than joints prepared either by AGL or in his own laboratory. The three joints registered strengths of 2.07, 4.9 and 3.5 kilonewtons respectively. Dr De Silva conceded the joint that failed at the Kogarah site was likely to have a strength less than these and the defendant company submitted the joints at Kogarah were not of a standard of 3.5 kilonewtons or better. They were significantly less than that and the joint that failed had an unknown strength because it could not be tested.
258 The defendant originally suggested the pressure of the gas had the effect of pushing the pipe towards the north away from the joint in the gas pipe outside FAZ and that would or could have had an effect on the pipe. However, the parties in submissions agreed pressure in the pipe was small enough not to act as a factor in the dislodgment of the pipe from the joint outside FAZ.
259 Dr De Silva understood from his instruction for the preparation of his opinion the end of the pipe was “snagged” by an excavator bucket. He took that to mean:
The movement of a backhoe bucket would have touched the pipe and dragged it from its original position. That's what I understood by "snag”.
It was Dr De Silva's view such a pull could cause the pressure that brought about the dislodgement of the pipe. It was acknowledged by Dr De Silva that the failure occurred quickly once the pressure was put upon it.
260 Dr De Silva's evidence persuades the court there were no deficiencies in the joint assembly especially reflective of any lack of adhesion used. He could identify no defect in the joint at the time it was made or which subsequently developed which could lead to the failure of the joint.
261 A consideration of these prosecutions under the Occupational Health and Safety Act 1983 do not require the court to make findings as to the cause of the explosions. However, Mr Campbell's new evidence, read with the independent evidence of Mr Hatzikiriakos and Dr De Silva, allow a finding the activities of the excavator in the moving of soil to create a batter on the southern end of the KSU site which activity included the pull, as described in evidence, or the "turning off from the ground", of the gas pipe (which raised the pipe approximately a metre above the ground) I find caused the Goldline pipe to be disturbed and to dislodge from its elbow connection sited outside the FAZ. I am further satisfied the gas leak outside the FAZ arose from the disconnection of the charged gas supply line at that point.
262 I find on 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at the elbow joint adjacent to the FAZ located in Railway Parade, Kogarah. Further, the detachment of the gas supply line at the elbow joint allowed gas, which was under pressure within the line to escape and at approximately 2pm on 4 December 1995 there was a gas explosion in the vicinity of the FAZ. Further, at approximately 3.45-4pm on 4 December 1995 a second gas explosion occurred in the vicinity of, or from the basement of, the FAZ. The gas explosions were of such force and severity that two persons were killed and many others suffered injury.
Charges pleaded against Abigroup
263 The charges against Abigroup are brought under either s15(1) or s16(1) of the Act. The breaches relate to the defendant company's obligations to employees and/or persons not in the employ of the defendant company. The charges and the particulars supplied, alleging acts or omissions by the defendant company, leading to a risk to safety on the KSU site can be identified during three distinct periods and are given consideration in their chronological order in this determination. If liability is found on any charge, an issue as to the gravity, that is the objective seriousness, of such an offence becomes relevant. As one or both parties have addressed their submissions directed to all or many of the alleged failures and the other alleged acts or omissions of the defendants, either generally or specifically, the court will deal with each breach and the many relevant alleged failures in its consideration as to whether there was an offence committed under the Act.
Applicable Legal Principles
264 As to the duty of an employer under s15(1) and s16(1) of the Act, in Drake Personnel v WorkCover Authority of NSW (1999) 90 IR 432 (at 452), the Full Bench of the Industrial Relations Commission of New South Wales stated:
. . . The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances . . . Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. . . the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety.
In Carrington Slipways Pty Ltd v Inspector R J Callaghan (1985) 11 IR 467, Watson J said (at 470):
. . . there would appear to be no reason to make any implication that the words 'to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing , securing or making certain.
265 The mere exposure of persons to risks to their health and safety can give rise to a breach of the employer's obligations under the Act. In Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149, the Full Bench of the then Industrial Court of NSW said the following (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 Div.1 of Pt.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
And, in Holmes v Spence (1992) 5 VIR 119, Harper J said (at 127):
The issue is whether the employer had provided a safe working environment. This he did not do if these were practical steps available to [the employer] which, although not taken, would have reduced the risk of foreseeable accident if they had been taken.
And, in WorkCover Authority of NSW (Inspector Smith) v Dubavo (unreported, CT1247-1249 of 1993, 24 July 1995) Peterson J said (at 18):
The concept of failure by the employer involves necessarily a failure to take a step which the employer was able to take to avoid the relevant risk. Liability is not absolute in the sense that it must provide for the unknowable. If the risk is both present and capable of being known to be present, then liability is absolute, subject to the defences provided by s53.
266 While an employer is not liable for risks which are merely speculative or unduly remote (see Kirby v A&M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the duties imposed under the Occupational Health and Safety Act are strict and onerous.
267 There is a need for a causal connection between the breach alleged and the detriment to safety. In State Rail Authority of New South Wales v Gregory Thomas Dawson (1990) 37 IR 110, the Industrial Commission in Court Session read the obligations of an employer in the context of the Act to be the relationship of the breach to the risk. The court said (at 121):
. . . the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee.
Bauer J considered this "nexus" in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 (at 257):
Whilst . . . it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in . . . C I & D Engineering . . . . The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that (the) failure gave rise to a risk to health, safety or welfare.
268 The concept of the causal nexus/causal connection as an element of the general duty has been recently commented upon by Walton J, Vice President in WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (2000) 95 IR 383 (at 439-440) as follows:
. . . 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 employee and not . . . by attention being given to the relationship between the conduct of the defendants and the actual accident or hazard . . .
and in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 (at 253) Walton J, Vice President held:
As previously mentioned, the defendant raised the question of causation. Many decisions of this Court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s 15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a 'causal nexus' between the conduct of the defendant and the consequent risks to the health, safety and welfare of its employees: (see McMartin v The Broken Hill Proprietary Co. Ltd (2000) 100 IR 241; Drake Personnel Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 91 IR 432 at 449; Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209; State Rail Authority (NSW) v Dawson (1990) 37 IR 110, at 120-121; Haynes v C I & D Manufacturing Pty Ltd 1995) 60 IR 149, at 1560157 and Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50). There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: see WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 at 377.
However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety.
269 The authorities establish it is not the cause of the incident itself which must be assessed but the acts and omissions of the defendant company as identified in the alleged breach which lead to a risk to the safety of its employees and others on its worksite. The Commission sitting in Court Session must give consideration to this in its determination as to whether an offence has been committed under the Act.
270 The prosecution must therefore establish a breach of the Act on the part of the employer lead to a "risk" to safety. Proof of an offence does not require a demonstration particular measures should have been taken to prevent the risk. It is sufficient either to show how the employer failed to provide for the health and safety of its employees creating the alleged risk or to prove facts causing the detriment to safety and the causal connection to the employer's acts or omissions (see WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Material Ltd (1999) 91 IR 119).
271 In R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, the English Court of Appeal interpreted the meaning of the word "risks" in s3(1) of the Health and Safety at Work Act 1974 (UK) to mean the mere possibility of danger.
272 Therefore the elements of the charge under s15(1) of the Act which the prosecution must prove beyond reasonable doubt are:
1. the defendant was an employer at the time of the alleged breach;
2. that there was a risk to employees' health or safety;
3. that there was a causal nexus between the defendant's breach and the risk to employees' safety;
4. that the risk was to employees at work.
273 There are five elements to an offence under s16(1) of the Act. The Full Bench of the Commission sitting in Court Session in Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 [at12] (and adopting the words of Peterson J in Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994) said the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s16(1):
1. The defendant was an employer;
2. there were persons not employees exposed to risks to their health or safety;
3. the risk arose from the conduct of the defendant's undertaking; and
4. the exposure to risk was at the defendant's place of work.
There is a further element to the s16(1) charge. The prosecution must prove beyond reasonable doubt there is a causal nexus between the breach and the risk to the person not in the defendant company's employ.
274 It is in the application of these principles that consideration is given to each charge brought by the prosecution against the defendant company.
Matter No. IRC5432 of 1999
275 This breach is pleaded under s15(1) of the Occupational Health and Safety Act 1983 against Abigroup Contracting on or about 10 November 1995. It is alleged:
the Defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular, Maurice Bolger, Paul Poidevin and Luis Bustamante contrary to s15(1) of the Occupational Health and Safety Act, 1983
276 The defendant company submitted generally, as to liability for the alleged offence, the Commission sitting in Court Session should not accept evidence of later activity on site or later events to establish any alleged offence on 10 November 1995.
277 This charge relates to the day of 10 November 1995 when the gas supply line was disconnected on the KSU site. It is alleged an unsafe system of work was adopted by Abigroup which exposed its employees to a risk to their health and safety. The gas was cut off by AGL employees who were called by Josef & Sons, the demolition sub-contractors to Abigroup, the defendant company. A number of alleged failures are pleaded against the defendant company as to that "unsafe system" of work.
278 As to two of the elements of this offence as pleaded under s15(1): whether the defendant was an "employer" on this KSU site on 10 November 1995 and whether such employees were "at work" the following evidence is relevant. Mr Bolger was asked:
Q. Would you be advised of each and every term of the contract? Would you have that duty or would you be instructed generally as to what you were meant to do under the contract?
A. Normally we would be given copies of a contract-type document for reading, so that we had an awareness of what the contract included for.
Q. Do you know if you were given a copy of the contract that was entered into by Abigroup in relation to State Rail Authority in relation to this project?
A. Yes, I was given a copy or shown a copy of the contract.
Q. Would you agree that the contract was awarded and the final documents were signed 18 October 1995?
A. Yes, as I recall, yes.
Q. When was site possession?
A. Oh, I couldn't be specific. My estimate or memory would tell me it was probably two weeks after that date.
Q. I think you gave a statement to the police.
A. That's correct.
Q. I think you used the term "site possession" and "site establishment" as processes that were done 30 October 1995; would that be right?
A. Yes.
Q. What's the difference between "site possession" and "site establishment"?
A. Site possession is when the client, in this case the State Rail Authority, would give over possession of the site to the successful contractor for us to cordon off or fence off site and commence establishment, namely, placement of site sheds and accommodation required to undertake our works.
Q. From that time on, when you say "possession", Abigroup possessed the site?
A. That's correct.
Q. How did it possess it in the sense of excluding other people from going on it, other persons from going on it?
A. We would put up temporary fencing to cordon off the designated work areas that could be on a progressive basis relevant to the staging of the works and the progress of the works from the start until the finish.
Q. Abigroup didn't have personnel that did every single job on site - it subcontracted; is that correct?
A. That's correct.
Q. The demolition work was subcontracted; is that correct?
A. That's correct, yes.
Q. It was contracted to companies controlled and operated by the Josef family?
A. That's correct.
Q. Were you aware of that at the time?
A. Yes.
279 I am satisfied from the evidence the defendant was an employer on 10 November 1995 and it had contracted to perform Easy Access and Construction for the upgrading work at Kogarah Station. I am further satisfied the defendant took possession and occupied the site by 30 October 1995. Further, I am satisfied Mr Bolger, the defendant's employee, knew on or about 10 November 1995 the site was to be a construction site and he had details of the company's obligations under the contract. Evidence revealed Mr Bolger received copies from Mr Josef of the details of their tender for the demolition work. He received a copy of the tender letter of Josefs & Sons dated as early as 14 July 1995 and he therefore knew of the tender for demolition work and the nature of the work.
280 However, there is little evidence before me as to Mr Bustamante's knowledge of the ambit of the construction work to be performed or that he had on or about 10 November 1995 studied any construction plans. He clearly, from his own admission, however, knew it to be a demolition site. He did say he had control of "overall activities" on site but the evidence only goes to persuade me Mr Bustamante knew on 10 November 1995 of demolition work to be performed. He had attended at a site meeting with Mr Josef but as Mr Josef's work was demolition I am only persuaded Mr Bustamante was cognisant of that part of the work by 10 November 1995. The statements he gave all concentrate on activities related to the demolition part of the contract and do not refer to either work on the ramp or platform extension.
281 The defendant company however signed this contract in its final form on 18 October 1995. It called for tenders from sub-contractors for the demolition work as early as 14 July 1995. The contract was titled for "Easy access and construction for the upgrading work at Kogarah Railway Station". I am satisfied through the documentation placed before me and by the words of Mr Bolger the defendant company knew by 18 October 1995 and well before 10 November 1995 the site was to be a construction site and the ambit of the work under the contract. An analysis of the contract reveals the very wide scope to the works and duties of Abigroup on site.
282 As to the circumstances on site on the day of 10 November 1995, the defendant company submitted there is no evidence any of its employees were on site as alleged on that day. The prosecution must prove as an element of the offence there was a risk to the defendant company's employees at work on the said date. In the recitation of the charge, all Abigroup employees on site are covered but it particularly refers to the presence on site of Mr Bolger, Mr Poidevin and Mr Bustamante. I am not satisfied, given the state of the evidence, Mr Poidevin was on site on 10 November 1995. He was asked:
Q. Were you on site in November of 1995?
A. Yes.
Q. On a daily basis?
A. No, not on a daily basis.
Q. So how often would you have visited the site in November 1995?
A. If I recall, in November I actually set the sheds up for the site, basically set up all the sheds in the car park and really established all that until Luis took over as general foreman and from then, I was basically on and off site. I used to use that as my base each day. I'd go there and have to go to other jobs.
Q. By the time Luis took over as foreman and you went to a less frequent attendance basis, had the fruit market and fish shop been demolished on that site?
A. The fish shop had. The fish shop, yeah, they'd both been demolished at that stage.
Mr Bolger said he was on site from commencement of the first week of November but he was not there full time. There is no corroborative evidence as to his presence on 10 November 1995. His evidence was limited and he did not admit to being on site on 10 November 1995. I cannot be persuaded on the evidence before me he was on site on 10 November 1995.
283 I am, however, satisfied Mr Bustamante was on site. He attended on the KSU site during the disconnection of the gas pipe by the AGL employees on 10 November 1995. I am therefore satisfied Abigroup was an employer with employees on the site on 10 November 1995.
284 Even if Mr Bustamante, as foreman on site, was the only Abigroup employee on site that day and may have been involved in the creation of the alleged risk, the defendant company has an independent obligation to ensure the safety of Mr Bustamante. He was their supervisor. As Bauer J observed in Maine Lighting Pty Ltd (at 257):
The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.
This observation was recently adopted by the Full Bench in Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 [at 15].
285 The obligation of an employer under the Act to an employee extends not only to the ideal worker but to the careless, inattentive and inadvertent worker as well. In Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627 at 629; (1982) 16 ALJR 872 at 873 the court said:
. . . the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee performing his allotted task.
A similar point was made in WorkCover Authority of NSW v TRW [2001] NSWIRComm 52 where Boland J said [at 13]:
. . . However, the duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable.
286 There was particularised a number of alleged acts or omissions against this defendant company on site on or about 10 November 1995. The prosecution alleges against the KSU defendant company that it:
failed to take adequate steps on 10 November 1995 to ensure the cutting off of a gas supply line which was charged, was affected in a position which was safe and without risk to health.
The defendant company submitted AGL were the relevant experts on site during the disconnection of the gas service. The disconnection was performed by Mr Princi, a ganger employed by AGL for 38 years, with Mr Marjanovic, another ganger and with another person acting in an observer's capacity. The defendant company submitted the gas was being cut off for the purpose of allowing the buildings to be demolished. As the computer generated record for the job performed, identified through an AGL code, the disconnection of a gas pipe was to be at the "building line" therefore the Commission sitting in Court Session would find it was AGL who chose the site of the disconnection and it was AGL employees who chose where to cut off the line. The work being done, the defendant company submitted, was the work of the disconnection of the gas pipe which was not work being done by Abigroup or its employees but by the AGL expert on site on 10 November 1995. Further, as AGL were the owners of the pipeline and the gas contained in it (at least until that gas was sold to and used by a consumer) it was not an act for which the defendant company was responsible.
287 I reject the submission of the defendant company the work being done on 10 November 1995, was the work of AGL employees only and, as AGL were the owners of the gas supply line, it was not work being performed by the defendant company. Mr Bustamante said he had overall control of work activities on the KSU site. Evidence revealed he carried the title of Project Supervisor but was known on site as the Site Foreman. I find relevant to this consideration the evidence which revealed the defendant company knew on or about 10 November 1995 the gas disconnection was required because demolition and construction work was to be performed on site. On 10 November 1995 Mr Bustamante acknowledged to the AGL employees there was demolition work to be done. It was known by the defendant company the work was, under the Abigroup contract with the SRA, for demolition and construction work at Kogarah.
288 The defendant company, in the alternative, submitted while it had under contract an obligation related to the protection of services on the site, its obligation to have the services cut off were discharged by having Josef & Sons, its sub-contractor undertaking the task. The evidence discloses it was normal industry practice to have the demolition contractor have the services, including gas, cut off from the site. This was accepted by the contractor Josef & Sons. Evidence revealed Mr Daniel Josef made the booking with AGL to cut off the gas supply. As it was not the responsibility of the defendants to disconnect, the defendants submitted, there could be no breach by the defendants under the Occupational Health and Safety Act 1983 related to the disconnection. The defendants submitted, further, while Josef & Sons did not communicate with AGL to cut the charged gas supply line off at a point past the demolition area this cannot be held to be the responsibility of the defendant company.
289 The obligation to provide a workplace free from a risk to the health and safety of its employees resides with the employer under the Occupational Health and Safety Act 1983. The defendant company was contracted for the construction stage of the KSU. It tendered out the demolition work but its foreman/supervisor on site remained responsible for "overall activity on site". The evidence revealed, within the defendant company, a line of authority and to whom Mr Bustamante reported and to whom each other responsible employee reported. As an employer, and in its capacity as the site contractor for the demolition/construction stage under the Occupational Health and Safety Act 1983, the defendant company had an obligation to provide safe working. Specifically, under its contract, it also held an obligation to protect the supply of services onto the site.
290 I reject the submission the defendant company could pass over to a sub-contractor its obligation for safe working. As Walton J, Vice President said in WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 [at 65]:
. . . Not infrequently, a number of employers, contractors or individuals may be involved in working at a particular site. All these parties may have responsibilities in relation to the maintenance, cleaning, design or construction of equipment or structures in use on the site. Risks of injury may arise as a result of failings by a number of parties involved in an operation or of the difficulty in co-ordinating between the different operators: see, for example, WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 and Inspector Mansell v Anytime Industrial Services Pty Ltd [2001] 119 IR 57 (sic) 34.
And in WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 [at 54]:
. . . the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace.'
291 I have found as a fact against this defendant company, Mr Bustamante was at the site on 10 November 1995 and was aware of the spot to which the charged gas supply line was cut back to within one metre from a building alignment and that building was, within his knowledge, to be demolished. The defendant company submitted, if it is found Mr Bustamante, in his capacity as the supervisor of the defendant company, was present on 10 November 1995, the evidence reveals the defendant company, through its representative, took the initiative in seeking to have the gas pipe cut off at a greater distance from the building alignment than was originally proposed by the AGL representative. Mr Bustamante, the defendant company submitted, stated he asked the AGL worker to redo the disconnection and cut it further away from the existing building. Abigroup, it was submitted, through this request, took all reasonable steps to ensure the pipe was cut off at a safe distance from the building to be demolished. The defendant company submitted therefore, in taking all reasonable steps to ensure the pipe was cut off at a safe distance from the alignment of the building, it met its obligation to ensure at this worksite there would be no risk to the health and safety of its employees.
292 I reject this submission. The evidence reveals Mr Bustamante, if I accept he had the conversation with the AGL worker as to a cut back of the pipe, accepted the cut off point which he said was 1200 mm (approximately) from the alignment of a wall of a building to be demolished. The AGL employees suggested the cut off point was "200" or roughly "two feet". I accepted the cut off point was within approximately one metre of a wall to be demolished. The defendant company knew this was to be a demolition and construction site. I do not accept the cutting off of a gas supply within one metre (approximately) of a building to be demolished, even if at 10 November 1995, Mr Bustamante had only limited knowledge of the site as a demolition site and not as a full construction site, was safe. Mr Bustamante revealed he knew walls, foundations, etc of the shops had to be demolished. His statements as to his conversations with AGL were directed to recognising the site as a demolition site. Whether on 10 November 1995, he had full knowledge of the other roles the defendant company had under the contract to construct a ramp and assist and co-ordinate the platform extension is unclear. It was proven, later in time he had full knowledge. I find, even on limiting Mr Bustamante's knowledge to viewing the area as a demolition site on 10 November 1995, it was unsafe of him, on behalf of the defendant company, to leave a charged gas supply line in its capped position within one metre of a building to be demolished.
293 The defendant company further submitted it was at all times reasonable for Abigroup to rely upon the experts, that is employees from AGL, to cut the pipe off and make it safe for demolition purposes. However, it is the obligation of the defendant company as an employer under the Act to provide a risk free environment at its worksite to which this consideration is directed. I accept the evidence Mr Bustamante had the opportunity to direct AGL as to where he required the cut off point of the charged gas supply line. He did not do so. I find the defendant company did not ensure the gas supply line was cut off in a position which was safe and without risk.
294 It was further alleged the defendant:
failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed.
Mr Bustamante on the day of the disconnection was aware of the demolition works to be performed on the site. Such work he described as involving the demolition of walls, doors and windows of the shops. With his knowledge on 10 November 1995 Mr Bustamante allowed the disconnection of a charged gas supply line within a metre of a wall to be demolished. Further, the defendant company through the contracts knew the site was being prepared for both demolition and construction. It knew the ambit of the works to be completed. The name of the contract was "Construction of Easy Access & Upgrading Works at Kogarah Station". The defendant company knew the building of a ramp and the extension of the Kogarah Railway Station platform was also involved in their contractual works as well as shop demolition. The shops were in part being demolished for the purpose of "easy access" that is easy access to the Railway Station which was to be upgraded by extension. The contract was signed by the defendant on 18 October 1995, approximately one month before the day to which this charge relates. The defendant company had begun negotiations with the sub-contractor for the demolition part of the contract before 14 July 1995. The contract was approved and the letter of acceptance mentioned a site meeting held on 1 July 1995 with Abigroup. I accept the evidence confirms the defendant company had assumed control of the site on 30 October 1995. I find the defendant company knew this to be a construction site on 10 November 1995.
295 Further, the defendant company was aware on 10 November 1995, after demolition, the contract required Abigroup employees to construct an access by ramp for the platform extension. The ramp was to be built over the area where Mr Bustamante agreed to leave the charged gas supply line on 10 November 1995. Mr Bustamante failed to take adequate care to have the charged gas supply line removed from an area where he knew by 10 November 1995 demolition work was to be performed. The defendant company, allowed the disconnection of a charged gas supply line at a point where it knew construction work was "to be" performed. Even if Mr Bustamante was not fully cognisant of the works to be performed on that day the defendant company had an obligation to inform him before services were disconnected so, on its behalf, he could ensure adequate steps were taken to ensure safety on site.
296 I am satisfied the defendant company failed to take adequate steps to remove the charged gas supply line from an area which it knew was "to be" a construction site.
297 A further alleged failure relied upon by the prosecution was the defendant company:
failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area.
298 Protection of the Line
As at 10 November 1995, the defendant company submitted the charged gas pipe, after it was cut off, was lying in a position underneath the paving that made up the mall area. Before and after the work was carried out the charged gas pipe was buried under pavers and therefore the defendant company did not, simply by cutting back the gas supply line and placing it back in the ground under pavers, create any risk to any person including its own employees. Once cut, capped and covered by fill with the pavers replaced, the defendant company submitted, the buried charged gas supply line created therefore no relevant risk. The gas pipe was at that time under the Council mall area and in a position that it had occupied prior to any work being done. Its position underground was marked by the usual metal gas marker in the footpath. As at 10 November 1995, the defendant company submitted the position of the pipe did not expose any employee of Abigroup, at work, to a relevant risk for the purposes of s15(1) of the Act. Further, such pavers provided the usual protection to the charged gas supply line which on 10 November 1995 was in the mall area.
299 I have given consideration to the defendant company's submission the charged gas supply line lay protected by pavers, as it had before the cut off, and therefore the capped line provided no risk to safety. I reject the submission. The circumstances in which the act of cutting back the charged gas supply line occurred are relevant. The act was performed within a system of work designed for the purpose of demolishing four shops and to allow other demolition work on the site including heavy construction work for the platform extension and the building of a ramp. Excavators would be used. This was known to the defendant company on 10 November 1995.
300 Mr Bustamante knew the geography of the KSU site which I find is also relevant to my determination. To the west of the shops to be demolished was a railway line. To the east, a footpath, then Railway Parade, a road servicing the Kogarah Railway Station. Between the footpath and the rail line was a bank of small shops only (approximately) two rooms deep. The charged gas supply line cut off point was affected in a position one metre from a building alignment of a shop which was to be demolished. One point of access to the site was at the south end of the site across the footpath to the building where the charged gas supply line entered the construction site. The evidence as to what hoardings were in place on 10 November 1995 is unclear. However, the line was not cut back to allow for the easy manipulation of the type of heavy equipment to be used in demolition and construction. While the evidence reveals the pavers were taken up then placed back on 10 November 1995, the site had already been identified by the defendant company as part of a construction zone in which demolition and construction would occur.
301 I find the existence of a charged gas supply line left on a construction site was inherently dangerous whether the line was covered with pavers or not. Pavers covering a charged gas supply line in a mall which carried pedestrian traffic is a much different circumstance to pavers covering a charged gas supply line in an area "to be" a construction site.
302 Identification and Warning of the charged gas supply line
Further, the "marking" of the existence of the charged gas supply line and the identification, the gas supply line behind its cut off point remained charged on 10 November 1995 becomes relevant. As best the Commission sitting in Court Session can determine from the evidence, the presence of the pipe was marked by a single stake on 10 November, 1995. Mr Stoeski recollects he did this with Mr Bustamante on one of the days he recalls AGL came to the site. Mr Bustamante said he accepted the marking of the pipe on 10 November 1995 by a single stake. A single stake, without any further identification, was originally placed at the point of the capped end of the charged gas supply line.
303 While a single stake marking the capped end of the gas supply line may have provided identification of a hazard it provided no identification that the particular hazard was a charged gas supply line. The evidence revealed a further stake and bunting were soon added as markers but this occurred after 10 November 1995. Whether this was a satisfactory marking is to be considered in a later (in time) charge but the use of single stakes to mark a charged gas supply line on site on 10 November 1995 is a failure to properly identify the hazard. Even if a single stake can be held to identify generally a warning of an existing hazard, there was no identification of the type of hazard it identified. A charged gas supply line on a known demolition/construction site is a particular hazard. It was not so identified.
304 There was no evidence offered as to any proper warning given to employees of Abigroup on 10 November 1995 as to the existence on site from then on of a charged gas supply line. While Mr Bustamante may have been the only Abigroup employee on site that day, it was an act of omission by the defendant company on 10 November 1995 to fail to warn either Mr Bustamante, who did not recognise this risk to safety, and its other employees of the existence of a charged gas supply line on this construction site from that date. Further, a single stake on a site of demolition and construction cannot be held to be proper protection, identification and warning of a gas hazard. I find the evidence as to this alleged failure persuasive.
305 A further alleged failure relied upon by the prosecution is that the defendant company:
failed to provide and maintain a system for performing work that was safe and without risk where a charged gas supply line was situated
This allegation required, on 10 November 1995, the defendant company, aware it was working in a demolition/construction zone and aware of the existence on the site of a charged gas supply line, to design a system of work with a specific identification of a charged gas supply line on site and a work method adopted to reflect this. The obligation is the defendant company, as the employer, had to design a system of work which identified the hazard and design a work method for all tasks to be performed which acknowledged the existence of a charged gas supply line. The simple marking of the line with a pipe on 10 November 1995, I find, does not meet the requirement for the design of a safe system of work which must take into account, on a construction/demolition site, the hazardous existence of a charged gas supply line on site. If the defendant company made a positive determination to leave a charged gas supply line on site the nature of the hazard had to be fully identified and a system of work designed, and the associated work methods acknowledge, the hazard was identified as "gas". There is no indication there existed on 10 November 1995 designed work methods to meet this obligation.
306 Abigroup knew on 10 November 1995 it was to have its employees construct the ramp over the charged gas supply line. There was no evidence on 10 November 1995 it even contemplated a system of work had to be designed for performing such construction work over a charged gas supply line. It was Abigroup's responsibility under the contract to ensure site safety through the work methods adopted on site. There was some evidence at a later date it accepted work methods by the demolisher which is evidence relevant for analysis in a consideration of a later charge.
307 It was the defendant company's obligation under the Act to have, from 10 November 1995, a safe system of work in place for its employees given the existence of the charged gas supply line left on this construction site. The defendant company on 10 November 1995, I find, failed to so do.
308 The prosecution further alleged the defendant:
failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
a) within one metre of a building to be demolished;
b) that was not adequately protected or identified;
c) in which earthmoving works were to be performed.
The court has already found leaving a charged gas supply line within one metre of a building to be demolished was a risk to safety as was the failure to adequately protect, identify and warn of its existence. The further failure alleged in this particular is the defendant company's failure on 10 November 1995 to consider the site of the KSU as one in which earth moving works were "to be" performed. I have considered however the failure of the defendant company to acknowledge the site as a construction site and that consideration included a consideration of the effect of earthmoving equipment on such a site. I have therefore considered each identified failure in this particular independently provided a risk to safety on the site and therefore together identify a failure to maintain a safe workplace. I consider therefore this particular to be repetitive. I have already found the cutting off of the gas supply line and its positioning one metre from the alignment of a building to be demolished was unsafe and that the line was not adequately protected and identified and that the defendant knew earth moving works, namely, construction work, was to be performed on the site. I do not believe by collating such individual acts of the defendant company into a collective particular stating a failure to maintain a safe site adds to the defendant company's acts or omissions which created this risk to safety.
309 A further alleged failure pleaded was the defendant:
failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
a) location of the charged gas supply line;
b) the risks associated with work adjacent to the charged gas supply line;
c) the type of work that might be carried out adjacent to the charged gas supply line;
d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
This failure must be considered in the context of the charge brought under s15(1) of the Act and therefore it relates to the acts or omissions of Abigroup on site on 10 November 1995. I have found the evidence only goes so far as to establish Mr Bustamante was an Abigroup employee on site on 10 November 1995. The defendant company has an obligation to provide a risk free work environment. While Mr Bustamante knew of the location of the charged gas supply line and he knew the type of work to be performed he did not identify the risk to safety in leaving a charged gas supply line on a construction site nor identify the risk associated with that failure. There were no steps taken by the defendant company as to the further or future disconnection of the charged gas supply line nor any consideration as to what work could safely be performed adjacent to the charged gas supply line. The risk was not identified. Therefore, there was a failure to adequately inform of the risks. However, I have already found the failure to warn contributed to the alleged failure to provide a safe system of work. I find the failure to properly warn and the failure to properly inform are a similar failure and therefore this particular does not in its collective form add to the defendant company's acts or omissions which created this risk to safety.
310 It is further alleged the defendant:
failed to have the demolition site examined by a competent specialist for the purpose of determining explosive materials or conditions which would be a risk to safety.
There was no evidence led by the prosecutor to support there should have been such an obligation on the defendant. The contract may mention this obligation. However, the prosecution led a significant number of witnesses to say what a competent person Mr Bustamante was and how he had the expertise and experience to assess the risk to safety on this site. I do not find the evidence as to this alleged failure satisfactory.
311 As to the charge in Matter No IRC5432 of 1999 under s15(1) of the Act, I find the defendant company's failure to cut off a charged gas supply line at the KSU on 10 November 1995 in a position which was safe; its failure to ensure the line was not situated in an area where construction work was "to be" performed; its failure to properly protect, identify and warn of the existence of a charged gas supply line on a construction site; its failure once it left a charged gas supply line on site to design a safe system of work given the existence of a charged gas supply line on site were all acts or omissions by the defendant company which led to a risk to the health and safety of its employee on the KSU site on 10 November 1995.
312 In Matter No IRC5432 of 1999 I find the charge proven.
Matter No. IRC5433 of 1999
This breach is pleaded under s16(1) of the Occupational Health and Safety Act 1983 against Abigroup Contracting on 10 November 1995. It is alleged the defendant:
failed to ensure persons not in its employ at its "place of work" in the performance of its "undertaking" were without risk to health and safety on 10 November 1995.
313 The defendant company submitted generally for the purpose of this s16(1) charge the area in which the gas pipe was cut off was not, as at 10 November 1995, Abigroup's "place of work" nor was the cutting off of the pipe Abigroup's "undertaking". As to the defendant's "undertaking" Lord Hoffman in R v Associated Octel & Co Ltd [1996] 1 WLR 1543 (at 1549) stated:
. . . the question of whether an employer may leave an independent contractor to do the work as he thinks fit depends on whether having the work done forms part of the employer's conduct of his undertaking. If it does, he owes a duty . . . to ensure that it is done without risk - subject, of course, to reasonable practicability, which may limit the extent to which the employer can supervise the activities of a specialist independent contractor.
314 The defendant company submitted AGL were "experts" of a specialist nature and it was an AGL "undertaking" to disconnect the gas. However, the evidence revealed AGL employees inquired of the defendant company, through Mr Bustamante, as to the required area for the cut back. The evidence revealed while the AGL code for the task identified the cut back to be at the building alignment, AGL officers, on site, stated they could cut back the pipe as far as the defendant company required. I accept this evidence. Mr Bustamante's evidence was he requested a further cut back. He accepted however the final gas marking as the acceptable cutting off point. The AGL officers further revealed to Mr Bustamante they could be called back at any time to cut the supply line back to where the supervisor viewed it was desirable. I do not accept in these circumstances AGL dictated the cut off point for the charged gas supply line. The "expert" employees from AGL showed they were willing to abide by the requests of the defendant company. In the performance of its "undertaking" which was to supervise and overview all activities on site including the activities of all contractors, even specialist contractors, the defendant company failed to ensure the cut back was completed at a spot which did not create a risk to the safety to the defendant company's employees. I find on 10 November 1995 the defendant company was conducting its undertaking in taking responsibility for supervising "overall activities" on the KSU site including the disconnection of a gas supply service.
315 As to whether the KSU site was the defendant company's "place of work", the defendant company submitted the gas pipe was cut off at a position determined by AGL. The method used for cutting off the gas pipe was determined by AGL. The persons involved in carrying out the work were AGL employees. Further, the defendant company submitted the area under which the pipe was buried was a public thoroughfare and not therefore an Abigroup "place of work". Reliance is placed by the defendant company on a decision of Fisher CJ of the Industrial Court of New South Wales in Inspector Clarke v W L Meinhardt & Partners Pty Limited (unreported, CT1212&1213 of 1990, 30 June 1992).
316 The question as to whether a risk to safety occurs at an employer's place of work is a question of fact (see WorkCover Authority of NSW (Inspector Keenan) v Technical and Further Eduction Commission (1999) 92 IR 251 at 261). Much authority has determined "place of work" related to a geographical limitation of a worksite, Fisher CJ in Meinhardt said (at 12) of a site which engineers visited to inspect and check works:
With respect to the duty under s 16(1) I consider the employer’s conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed.
In Inspector Page v Woolworths Ltd (unreported decision of Peterson J, CT1044 of 1993, 9 September 1994) his Honour adopted the above approach of Fisher CJ in Meinhardt in opting for a broad construction of "place of work" in s16(1) and referred to the "immediate environs which may be affected by the conduct of that business" as being included within the meaning of the term.
317 The meaning of the phrase "conduct of the employer's undertaking" was considered in Whittaker v Delmina Pty Ltd (1998) 87 IR 268, a decision of Hansen J in the Victorian Supreme Court dealing with s22, a similar provision to s15 of the Occupational Health and Safety Act 1985 (Vic). In that case, his Honour said (at 280-281):
The expression is broad in its meaning. In my view such a broad expression has been used deliberately to ensure that the section is effective to impose the duty it states. It may have been thought that the word "workplace" had a narrower meaning. For instance, would the word "workplace" as defined include a storage area where employees do not regularly work? Perhaps the word "undertaking" was used because it is used in s.3 of the United Kingdom legislation. There too it is not defined. The word must take its meaning from the context in which it is used. In my view it means the business or enterprise of the employer . . . and the word "conduct" refers to the activity or what is done in the course of carrying on and the business or enterprise. A business or enterprise, including for example that conducted by a municipal corporation, may be seen to be conducting its operation, performing work or providing services at one or more places, permanent or temporary and whether or not possessing a defined physical boundary. The circumstances must be as infinite as they may be variable.
Such reasoning, in my view is applicable to the meaning of the words contained in s16(1) of the Occupational Health and Safety Act 1983.
318 The issue before me is: was, on 10 November 1995, the KSU site, an Abigroup "place of work" where Abigroup was conducting its "undertaking"? On 10 November 1995 the site had already been handed over to Abigroup by the SRA. The work of Abigroup on 10 November 1995 involved the construction of Easy Access and Upgrade Work at Kogarah Railway Station. The defendant company was the head contractor on site responsible for overseeing all activities on site which included supervising the disconnection of a gas supply on site. In addition, on the day of 10 November 1995, Mr Bustamante of Abigroup was physically present performing work in his supervisory capacity. He was carrying out the supervisory functions for which Abigroup was responsible. He discussed with the AGL employees where the cap should be placed. He spent time with the AGL employees and required the pipe to be cut back further. He approved the cut off point. He knew the gas disconnection was being done for the performance of demolition on site. The defendant company knew through the contract this was to be a demolition and construction site.
319 I find in its activities of 10 November 1995, Abigroup was at its "place of work" conducting its "undertaking" which was to supervise the disconnection of a gas supply line for the purpose of easy access, demolition and construction work to be performed on a site known as the Kogarah Railway Station Upgrade.
320 I find, further, the evidence reveals on 10 November 1995 there were persons other than Abigroup employees on site on 10 November 1995 namely AGL employees.
321 The summons brought under s16(1) alleges against the defendant company the same six alleged failures which reflect in the alleged risk to safety of persons in the defendant's employ as were pleaded in Matter No IRC5432 of 1999 in the s15(1) charge brought in the same period of time. The charge again relates to the activities of the defendant on the KSU site on 10 November 1995. The defendant company relied upon similar submissions as considered in Matter No. IRC5432 of 1999 as the particulars relied on by the prosecution which particulars allegedly constituted the alleged offence. The prosecution relies upon similar acts or omissions of the defendant as it relied upon in the s15(1) charge brought on the same date, that is, 10 November 1995. The pleaded acts and omissions which have been found to contribute to the risk to safety had the same effect upon other persons in the KSU site as it did on the defendant company's own employees on the KSU site. I therefore adopt my reasoning from Matter No. IRC5432 of 1999 in relation to each of the alleged failures as particularised against the defendant company on 10 November 1995.
322 Having found persons, not in the employ of the defendant company, were on site on 10 November 1995, I find the defendant company's failure to cut off a charged gas supply line in a position which was safe; its failure to ensure the line was not situated in an area where construction work was "to be" performed; its failure to properly protect, identify and warn of the existence of a charged gas supply line on a construction site; its failure once it left a charged gas supply line on site to provide and maintain a safe system of work given the existence of a charged gas supply line, were all acts or omissions which led to a failure by the defendant company to ensure persons not in its employ in the performance of its undertaking at its place of work were without risk to their health and safety on 10 November 1995 at the KSU site. I find the failures led to a risk to safety on this site of non-employees.
323 In matter No IRC5433 of 1999 I find the charge proven.
Matter No. IRC5436 of 1999
324 This is a breach pleaded under s15(1) of the Occupational Health and Safety Act 1983 against Abigroup between 10 November and 4 December 1995 (inclusive). It is alleged the defendant:
failed to ensure the health, safety and welfare at work of all its employees and in particular Maurice Bolger, Paul Cejka, Paul Poidevin, Troy Morris, Paul Warren, Barry Jessop and Luis Bustamante: . . .
and in
Matter No. IRC5434 of 1999
This is a breach pleaded under s16(1) of the Occupational Health and Safety Act 1983 between 10 November and 4 December 1995. It is alleged the defendant:
failed to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking: . . .
325 Both charges cover the second period of time addressed by the prosecution, namely, the period of time when the four shops were demolished, a blue metal and earth ramp was constructed on the south side of the site and a platform extension to Kogarah Railway was constructed. The acts or omissions leading to alleged breaches of the Act in this period cover the days between 11 November and 3 December 1995 (inclusive). During this period the site was a very active demolition and construction site.
326 The alleged failures relied upon in this period are similar to those relied upon in the prior two charges covering the day of 10 November 1995. The alleged acts and omissions in both these charges are: the defendant failed to cut off the gas supply line in a position which was safe; failed to ensure the charged gas supply line was not situated in an area where construction work was to be performed; failed to properly protect identify and warn of the existence of the charged gas supply line on a construction site; failed to design a safe work method as required given the existence of a charged gas supply line. A number of further allegations were added in this period and they are related to the use of excavators and earth moving equipment on site which were active in the demolition and construction work performed in this period. Although the risks pleaded are similar to those relied upon in the first two charges, the circumstances on the site were different in this period of time once active demolition work began.
327 As the alleged failures are similar in both these charges covering the period 11 November to 3 December 1995 and they are given consideration together although it is noted the alleged risks pleaded against the defendant in matter No. IRC5436 of 1999 are to the defendant company's employees and the alleged risks in Matter No. IRC5434 of 1999 are to other persons at the defendant company's work site.
328 It is alleged the defendant:
failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health.
The defendant company submitted there was no risk to any employee or any other person on the site whilst the charged gas supply line remained in the ground and covered by the pavers. The defendant company submitted the charged gas supply line was buried in the ground up to and including 3 December 1995 and therefore rendered safe by reason of its position. In the alternative, the evidence, the defendant company submitted, must lead the court to the conclusion the pipe was covered by pavers at least until 24 November 1995 when the ramp was built. The pipe was, therefore, safely secured for a significant period of the time covered by this charge. The defendant company relies on the existence of pavers over the charged gas supply line to submit the pavers were a safety feature which "protected" the charged gas supply line. As the line remained protected by the pavers, the defendant submitted, there could be no risk to safety to any person at this worksite during this period of time.
329 The pavers were removed on this site in stages. Mr Bustamante's evidence was all pavers were removed by Thursday 30 November 1995 or Friday 1 December 1995 that is within the period of time pleaded in the charge. Prior to Thursday 30 November 1995, a photograph taken on 24 November 1995 of the site shows some pavers were still in place on site between the ramp construction and the roadway to the east of the site. The Work Method Statement confirmed Josef & Sons had responsibility for the removal of the pavers. I accept Mr Bustamante's evidence all pavers were taken up before work commenced on Saturday 2 December 1995. The photographic evidence of 24 November 1995 persuades me the charged capped gas line was probably not covered by the pavers when the ramp was built but if they were still in place they were buried under the fill used to construct the ramp.
330 I do not accept the submission the pavers provided protection to the charged gas supply line from the day after the cut off until 3 December 1995. Once the site was designated a construction site, I do not accept the defendant company could rely on the existence of the pavers to assert a charged gas supply line under the pavers was a properly protected gas line. During the relevant period this site was very actively a construction/demolition site and the area carried much heavy machinery including trucks and excavators. The defendant company failed to take adequate steps to ensure the charged gas supply line was in a position which was safe.
331 It is further alleged the defendant:
failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
and
failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line
In this period of time four shops were demolished. The demolished materials from the shops were trucked off the site. This was all done before 24 November 1995. On 24 November, a photograph of the site reveals some support walls/foundations were still running horizontally down the site. There was still rubble on the site. The charged gas supply line lay under the area over which a ramp was built. Evidence revealed the ramp was about five metres wide. The charged line lay about five metres across the ramp and buried under the ramp construction.
332 The building of the ramp involved the dropping over the charged gas supply line "fill" in the form of blue metal and earth. Evidence revealed two excavators, a bobcat and trucks travelled and/or worked over or near the charged gas supply line.
333 On 24 November 1995, the SRA used the ramp to perform heavy work and move heavy equipment for the platform extension. Mr Poidevin, an Abigroup employee, co-ordinated the platform extension work. Further, his description of the work was dramatic. It was heavy work involving the movement of weighty equipment. The photograph gives a clear indication of the type of work being performed on site under the supervision of the defendant company. During this busy construction period, the defendant company made no effort to move or disconnect the charged gas supply line which lay on the site. I find the defendant company failed to take adequate steps to ensure the safety of its employees and others on its worksite especially when an excavator was brought on site.
334 It was further alleged:
the defendant failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area
As to the protection for the charged gas supply line, the prosecution submitted the charged gas supply line in this period became "exposed". This is a separate issue from whether the line remained marked with the stakes and bunting until 4 December 1995. The defendant company submitted unless it can be said the yellow gas line pipe was exposed on or before 3 December 1995, these two charges must fail as they identify no relevant risk to safety under s15(1) or s16(1) of the Act between 11 November and 3 December 1995 (inclusive).
335 I reject this submission. The evidence persuades the court activities on site in this period which required the demolition of four shops; the removal of rubble; the construction of a ramp and a railway platform extension on this site and the movement of heavy vehicles near/over the charged gas supply line and the partial creation of a batter prior to the last day, 3 December 1995 had disturbed the gas supply line.
336 The fact the charged gas supply line, which I have accepted from the witnesses, was disturbed and which knowledge was held by an employee of the defendant company, Mr Bustamante, goes only to indicate the acts or omissions of the defendant company related to the use of excavators on the site in this active demolition and construction period added to the risk to safety.
337 As to the "marking" of the charged gas supply line in this period, Mr Josef, at the beginning of the relevant period, and after the disconnection but before demolition work began ordered an extra stake and bunting to be wrapped around the pipe to further mark the gas service. I have found, on the first day it had been marked with a single stake. Mr Bustamante was supported by Mr Stoeski in saying the original marking was a single stake/pipe. The defendants submitted the extra stake, the star pickets and bunting or mesh used on building sites, up to and including 1995, was the normal procedure adopted in order to mark services as a hazard on site. It was submitted this classic marking indicated to persons working on the site there was an area in respect of which there was a hazard. The defendant company submitted markers of the kind used on the KSU site were consistent with the industry standards of the time. Mr Campbell's evidence was, as an excavator driver, he often worked around services on sites. The words of Mr Campbell are relied upon by the defendants:
we are digging around cables all the time; we are digging up, under and over.
338 Further, the defendant company submitted, neither of the WorkCover Inspectors suggested the use of markers of the kind described in the evidence were unknown in the industry or unused in the industry or inappropriate for use in the industry. Mr Stewart of SUJV/CWM described star pickets and bunting as the most widely accepted method of identifying a hazard on a building site. Mr Bustamante described the markings as a usual practice. The defendant submitted it was, at the time, an industry practice to so mark a live gas line and to leave a gas line charged within a construction site and such a practice must therefore, by the standards of the time, be perceived as safe.
339 As to the markings, I reject the submission the charged gas supply line was safely marked given the industry standards of 1995. Evidence was, on large construction sites, there are a number of utility services. While it may be argued it is impossible to disconnect all services on a construction site, that is not the test to be applied to a determination as to whether there was a breach of an employers' obligation under the Act to provide safe working. The issue raised in the two charges before me is: did the existence of a charged gas supply line on the KSU construction site provide a risk to safety to both employees of the defendant and to other persons on the work site in the relevant period?
340 The protection of services on a site was a consideration addressed in this construction contract. Even if the court could accept it was safe industry practice to identify a hazard generally, rather than with particularity, by stakes and bunting, the defendant company would still have to defend the specific allegation the presence of the charged gas supply line on the KSU construction site provided a risk to safety in the relevant period.
341 The evidence as to the employees' understanding of the meaning of the marker on site becomes relevant. Mr Bustamante and Mr Stoeski knew behind the cap was a charged gas supply line. Mr Poidevin, the Abigroup Manager responsible for the platform extension told an Abigroup labourer the stake marked a charged gas supply line yet Mr Poidevin said in evidence:
I didn't know it was alive. I had no idea.
The labourer, Mr Barry Jessop who was shown the area with the ribbon identified a charged gas supply line was there. Mr Jessop's understanding was:
That's where the gas line was there, where it was turned off.
Mr Begg, a crane operator on site, said he was not directly instructed as to the live gas service. Mr Campbell said he noticed logs and a stake but did not know what they represented. Mr Milne, a truck driver on site, said he was told and saw an exposed gas line running along "the top of the path where the ramp was". I find Mr Milne's evidence is different from that of all other witnesses' evidence.
342 Mr Josef was asked:
Q. Did you know whether or not that was a live gas pipeline?
A. It was alive.
Q. How did you know that?
A. Because I knew that's where it was cut off and that's why we left the bunting and that's why we left the mark, so everybody knows it is live and if it sticks out a bit, then they are aware of it even more.
That the stake and bunting indicated a charged gas supply line lay behind it was certainly not clearly communicated to employees on this site. They were not properly warned or informed. They did not presume, as Mr Josef inferred they would, the marker identified a capped charged gas supply line behind which existed a charged gas supply line. Mr Poidevin of Abigroup said positively he did not know the gas line was charged. The evidence revealed it was Mr Bustamante who showed Mr Poidevin the site yet he did not make it clear to Mr Poidevin, one of Abigroup's own employees before the station extension was constructed, the gas line was charged behind the capped end marker. Mr Poidevin had a co-ordinating role in the heavy work involved in the platform extension which required the movement of equipment over the ramp under which there was the charged gas supply line. Mr Poidevin could have made a significant contribution to the design of a safe work method had he but realised the charged gas supply line behind the marker remained charged.
343 The defendant company failed to provide a system of work to protect, identify and warn of the existence of a charged gas supply line on the KSU site between 11 November and 3 December 1995 (inclusive). That failure related to its obligation to both its employees and others on its worksite.
344 It is further alleged the defendant:
failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated;
and
failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.
On the evidence before me, not one of the highly experienced persons from the SRA, CWM, Abigroup or Josef & Sons seems to have recognised the need to positively identify the marked hazard as a charged gas supply line. The defendant company through its employees on site did not recognise a charged gas supply line should either be immediately removed from a construction site or alternatively identified with particularity and all work methods be designed to ensure work conducted on site was safely conducted given an awareness of the existence of a charged gas supply line.
345 Abigroup had the responsibility for supervising all work on site. Abigroup employees were responsible in this period for the construction of the ramp and some planning as to the platform extension. The markings on the site stayed the same in this period at least until the last days. There was no evidence of any information or warnings given to Abigroup employees or other persons on site as to the existence of the hazard. There was no evidence the defendant designed for its employees working on the construction of the ramp or for the platform extension, a specific work method identifying the gas hazard to ensure safe working around such a hazard.
346 Further, Abigroup under the contract, was responsible for the work methods adopted particularly by Josef & Sons during the performance of their responsibilities for demolition of the building and stairs. Josef & Sons handed two work method statements to a site meeting on 21 November 1995. That is during the period relevant to these charges. The meeting occurred in the period covered by the charge. A second meeting was arranged for 5 December 1995 but did not eventuate. Neither of the work methods identified or recognised the existence of a charged gas supply line on this site. There was no follow up by the defendant company who was at the site meeting and who was responsible for the overall activity on site including the activity of the sub-contractor/demolisher.
347 The defendant company between 11 November and 3 December 1995 (inclusive) failed to recognise the hazard and failed to require its identification in the relevant work methods for its own employees and for other persons at its worksite.
348 As to the allegations the defendant company failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
a) within one metre of a building to be demolished;
b) that was not adequately protected or identified;
c) in which earthmoving works were to be performed
and failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
a) location of the charged gas supply line;
b) the risks associated with work adjacent to the charged gas supply line;
c) the type of work that might be carried out adjacent to the charged gas supply line;
d) the type of work, if any, which could be performed adjacent to any charged gas supply line.
As in the court's consideration of these two alleged failures on 10 November 1995 (see paras 308-309), I find the two allegations repetitive and are framed as a summation of other individual particulars. Such acts or omissions individually contributed to the risk to safety. They did so on 10 November 1995 and continued to create a risk through 11 November to 3 December 1995. I find a collation of these activities does not add to the defendant company's contribution to the risk to safety their acts created on site. The individual allegations have been given separate consideration in this period.
349 It is alleged the defendant company:
took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated;
and
failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line.
The use of the excavators and earth moving equipment on this site during the period 11 November to 3 December 1995 (inclusive) manifest the risk to safety. The four shops, their walls, roofs and foundations were demolished then a ramp was constructed with fill and earth over the charged gas supply line. The platform extension was constructed. Heavy equipment was moved over the ramp which was built over the charged gas supply line. There was a proposition from Josef & Sons' witnesses that after 24 November 1995 little demolition work was performed on the south side of the site where the ramp and charged gas supply line were located. I do not accept this proposition. While the activity may have slowed down between 24 November 1995 and 1 December 1995, evidence revealed on Saturday morning, 2 December 1995 it was a very active demolition site. Mr Bolger's facsimile ordering the completion of all works revealed the work left to be done was quite considerable. I accept this was an active construction site right through the period covered by the two charges. I accept the risk became even more inherently dangerous once excavations and earth moving equipment were required to operate on, over, near or close to the charged gas supply line. The risk was aggravated by the omission of the defendant company failing to remove the charged gas supply line or failing to require of itself or the demolishers the design the appropriate work methods acknowledging the existence of the charged gas supply line. The existence of the charged gas supply line on this work site was inherently dangerous to both the defendant company's employees and other persons.
350 It is alleged the defendant:
failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
I do not accept the prosecution led any or any sufficient evidence to satisfy this was a failure of the defendant company which failure contributed to the risk to safety. Rather, the prosecution led evidence as to the competence of Mr Bustamante and his experience qualifying him to determine the required safety features for this site.
351 During this period of time Mr Bolger, Mr Cejka, Mr Poidevin, Mr Morris, Mr Jessop and Mr Bustamante were all employees of the defendant company on the KSU site between 10 November and 4 December 1995. I find these employees were at work on the KSU site between 10 November and 4 December 1995.
352 The evidence further reveals other persons from Josef & Sons, independent contractors such as Mr Milne, Mr Begg and Mr Campbell were all persons not in the employ of the defendant company on the KSU site between 10 November and 4 December 1995.
353 The site was an Abigroup place of work and Abigroup continued to conduct its undertaking for Easy Access and Railway Station Upgrade on the KSU site between 10 November and 4 December 1995.
354 I find Abigroup employees and other persons on site were exposed to a risk to safety due to the failure, between 11 November to 3 December 1995 (inclusive), of the defendant to cut back safely a charged gas supply line on a construction site where an excavator was used and earth moving work was performed. There was a further failure by the defendant to provide adequate protection, identification and warning of the existence of a charged gas supply line to all employees on this construction site. There was also a failure, during this period, to ensure, given the charged gas supply line was not removed from the site, that all systems of work adopted on site took into account the existence of a charged gas supply line. Such work methods as were adopted failed to take into account the movements of earthmoving equipment and excavators. Such failures by the defendant company led to a risk to safety on the KSU site between 10 November and 4 December 1995.
355 Therefore between 10 November and 4 December 1995 the defendant company failed to ensure the health and safety of its employees on the KSU site under the provisions of s15(1) of the Act.
356 In matter No IRC5436 of 1999 I find the charge proven.
357 Therefore between 10 November and 4 December 1995 the defendant company failed to ensure persons not in its employ in the performance of its undertaking at its place of work were not exposed to risks to their health and safety.
358 In matter No IRC5434 of 1999 I find the charge proven.
Matter No. IRC5438 of 1999
359 This charge is a breach of s16(1) of the Occupational Health and Safety Act 1983 on 4 December 1995. It is alleged the defendant company:
failed to ensure persons not in its employ were not exposed to risks to their health and safety arising from the conduct of its undertaking at its place of work on 4 December 1995.
This charge relates to the obligations of the defendant, Abigroup, to provide a risk free work site for persons not in its employ on the KSU site on 4 December 1995, the day of the two explosions. This day was a union picnic day and not a work day on construction sites. On site that day were employees of Josef & Sons and independent contractors, Mr Adler and Mr Campbell. There were no employees of Abigroup on the KSU site before two explosions occurred on 4 December 1995.
360 The defendants submitted the site was not an Abigroup place of work on this day and the defendant could not be held to have been conducting its undertaking on 4 December 1995. The defendant submitted the evidence revealed it understood Josef & Sons would not be working on the site on 4 December 1995. Further, no one from Josef & Sons contacted the defendant company to inform them they had an intention to work on 4 December 1995. It had no employees on site that day and for legitimate reasons. Therefore it had no obligation on site on that day.
361 The defendant company relied upon Mr Stoeski's evidence work was finished in the area of the ramp more than a week before 4 December 1995. Mr Stoeski also revealed it had been his intention to finish off the work by Saturday, 2 December 1995 at normal finishing time which, on a Saturday, is lunch time on a construction site. It was also Mr Adler's expectation the work would be completed by the normal finishing time. It was Mr Adler who informed Mr Stoeski on the Saturday he would be required for work on the Monday. The defendant company submitted the instruction given to Mr Stoeski would not have been necessary if it had been the intention from the Friday to work on the Monday. The proper conclusion therefore, the defendant submitted is no decision was made nor was it needed, as to work on the Monday until some time on Saturday 2 December 1995. That being a fact the defendant could not have known of work to be performed on site on the Monday. The defendant company submitted they had, on the day of the explosions, given no permission to work. They therefore had no obligation to supervise work that day and therefore cannot be responsible for the actions of a contractor to Josef & Sons whose activity may have caused the explosions.
362 I reject this submission. What the Commission sitting in Court Session must consider is the causal connection between the conduct of the defendant in the performance of its undertaking at its place of work on 4 December 1995 and the risk to safety. Mr Josef asserted the only work to be done on 4 December 1995 was "just to clean up the leftover from the stairs" and Mr Adler's evidence was there was no need to do any battering on the southern end of the site as it had been cleaned up. Mr Adler then asserted he specifically told Mr Campbell not to go close to the access ramp. Mr Campbell's evidence was he was directed by Mr Stoeski to construct a batter on the complete site on 4 December 1995. I do not accept the evidence of Mr Josef, Mr Adler or Mr Stoeski as to the activity on the site on 4 December 1995. Mr Stoeski agreed he told Mr Campbell to clean up the stairs and pick up the rubble.
363 The defendant company further submitted evidence revealed permission was needed for any work to be carried out which permission had to be obtained from Mr Bolger or Mr Bustamante of the defendant company. The defendant company relied on the following facts: Mr Josef knew that in order to work on the site you needed to obtain permission. Mr Stoeski knew the site was closed (on 4 December 1995) and it was a Picnic Day for the building industry. Mr Josef also knew that Josef & Sons had to obtain permission to work on the site on a day it was closed. The defendant company conceded for Josef & Sons to be working on site on 4 December 1995 there would have had to have been someone from the SRA present. Further reliance was placed on the evidence of Mr Smithers' from the SRA who understood no work would be taking place on the site on either 4 or 5 December 1995. Although he conceded he knew there would be the removal of an excavator from the site by the contractors in the period. Mr Smithers rang Mr Ron Turnbull, his superior, to inform him that the contractors would probably take an excavator off the site on the Monday or Tuesday of the week beginning 4 December 1995. As Abigroup had a legitimate expectation no work would take place on site on 4 December 1995, the defendant company submitted, there was no need for Abigroup to provide any supervision on the site or take any steps in relation to work or work practices on the site on that day.
364 However, I have found Mr Bolger, the defendant company's employee, ordered all demolition and clearing to be completed before the return to work of the defendant company which was expected on 6 December 1995. In whatever period of time this work was conducted I find there was an obligation on Abigroup to ensure this site was free from risk. It appears from the evidence Mr Bustamante and Mr Bolger were not on site on the Saturday morning when work was scheduled or the Monday.
365 I find the KSU site continued to be, on 4 December 1995, a place of work of the defendant company. The work being performed related to work under their contract with Josef & Sons and their contract with the SRA. I find Mr Bolger, representing the defendant company, knew this would be an active place of work until all work on site was completed by the demolishers. He had ordered a speeding up of the outstanding work which was the work being performed and being completed on 4 December 1995. The defendant company continued to be Head Contractor. The demolition work on 4 December 1995 was being performed by its sub-contractor. The defendant company had a continuing obligation, as acknowledged by Mr Bustamante, to oversee all activities on this work site. The site continued to be its place of work in the conduct of its undertaking on 4 December 1995 and until work under its contract was completed.
366 There were a number of other persons with different responsibilities on the KSU site who worked for Abigroup. A number of those persons employed by Abigroup failed and continued to fail to identify the inherent danger of leaving a charged gas supply line on this construction site. It was revealed Mr Bolger played an active part on the Thursday and Friday before the explosions in ensuring the pace of work was increased. Mr Morris and Mr Cejka had conversations as to possible work still to be performed. All were employees of Abigroup. The responsibility for the unsafe conditions of this worksite does not sit alone on Mr Bustamante's shoulders.
367 The alleged failures of the defendant company are similar to those particularised and considered in the prior four charges. It is alleged the defendant company:
On 4 December 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to s16(1) of the Occupational Health and Safety Act, 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking.
368 At the start of work on Monday 4 December 1995, the charged gas supply line remained on the construction site. It was not however even marked with the stake and bunting which lay on the ground away from the capped end of the charged gas supply line. Much activity was performed on the site to complete the final stages of demolition, cleaning and clearing up. An excavator was active on site. There was a continued failure by the defendant company to move the charged gas supply line to a safe position given this area continued to be, on 4 December 1995, an active construction site. No work methods adopted at the site meeting of 21 November 1995 recognised all work had to be designed around the existence of a charged gas supply line. The activity on site that day to create the batter involved moving earth and soil under which sat, unmarked, the charged gas supply line.
369 The evidence reveals on 4 December 1995, Mr Campbell used his excavator on the eastern side of the KSU. The defendant company submitted the site had a "batter" in place prior to 4 December 1995 and therefore there was no need for any work with heavy machinery to be undertaken on or near or around the ramp to "batter" the site.
370 I accept Mr Campbell was instructed to clear up the site and make a batter on 4 December 1995. I reject the proposition the batter on the south of the site was completed and in doing so note Mr Campbell himself agreed some attempt had been made to clear up part of the site. I find the activity of creating a batter on site required Mr Campbell to manipulate the excavator bucket over, on or near the charged gas supply line. Further, it required him to move soil. There was no work method designed to acknowledge the existence of a charge gas supply line on site which was a hazard in the construction of this batter. On this day the risk to safety became a reality in the use of Mr Campbell's excavator on the construction site. I further reject Mr Josef's suggestion the southern end of the site had been "handed over" to Abigroup before they built the ramp.
371 As to the allegation the defendant:
failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area
The defendant company submitted, it was not informed the gas pipe had become "exposed" prior to 4 December 1995. The defendant company's own site foreman, Mr Bustamante, revealed he had noticed the exposed line. The fact he failed to inform supervisors does not allow a submission from the defendant company it did not know of the exposure of the capped gas supply line and therefore did not act. The defendant company's representative on site knew and failed to act on its behalf on that information. However, it is not clear the exposure of the line did more than give an indicator the excavation work could disturb the inherently dangerous character of a charged gas supply line on site. Such disturbance is indicative of the risk to safety the existence of a charged gas supply line offered on this construction site.
372 I have accepted Mr Campbell's evidence as to activities on site on 4 December 1995 and that he was instructed by Mr Stoeski to make the batter. I have accepted the markings of the said pipe had been moved from the area marking the capped end of the pipe. Mr Josef and Mr Adler confirmed the charged gas supply line was not marked on 4 December 1995. There was a failure of the defendant company to ensure the charged gas supply line was adequately marked. It had on this day no markings, even a general one, recognising the existence of an unidentified hazard.
373 I do not accept the Commission in Court Session must be satisfied as to whether the Goldline pipe was scratched by the bucket of the excavator in its consideration as to whether acts or omissions of the defendant company created a risk to safety for persons on site on 4 December 1995.
374 Mr Campbell asserted to the Commission in Court Session Mr Adler, Mr Stoeski and the two Mr Josefs, were all going to deny in evidence to the WorkCover Inspectors, who at the time were taking statements about the explosions, the excavator went near the charged gas supply line. Mr Campbell admitted to the court on 4 December 1995 his excavator worked in the area of the charged gas supply line. He admits he was re-distributing earth in making the batter.
375 The description of Mr Hatzikiriakos, the independent witness, that Mr Campbell, in performing the activity with his excavator of moving soil to create a batter lifted two pipes into the air with the excavator bucket endorses Mr Campbell's evidence. That evidence revealed one line was the charged gas supply line, the other for a water service. Mr Campbell agreed the excavator's reach meant he could not see all its activity. He changed his prior statements as to how close his excavator went to the pipes. I am satisfied the activities of the excavator in creating the batter including the "turning off" from the ground of two pipes, as seen by Mr Hatzikiriakos, disturbed and disconnected the charged gas supply line from the gas supply. It is noted Mr Hatzikiriakos described this activity after he first smelt gas but Mr Campbell revealed there was ongoing activity of the same nature by the excavator at the site of the pipes before he heard Mr Hatzikiriakos call there was a gas smell. He and Mr Stoeski had examined the pipes after they noted their disturbance and before Mr Hatzikiriakos gave the alarm. Mr Campbell revealed after the alarm was raised he continued and finished the job with the excavator.
376 I accept Mr Campbell as a credible witness who determined he was going to reveal to this hearing of the Commission sitting in Court Session his excavator bucket went on or near the charged gas supply line and exposed the side of the gas pipe. Some details of his evidence could be challenged as to its accuracy but the independent witness, Mr Hatzikiriakos, satisfies me the excavator operated by Mr Campbell, on 4 December 1995, pulled up the gas and water pipes to one metre above the ground.
377 I do not find persuasive the evidence that because the pipes, when looked at by Mr Campbell and Mr Stoeski, had some dirt on the top of them they had not been disturbed. After being pulled out of the ground by the excavator bucket the pipes were dropped back down into the earth and in doing so I accept the evidence of both Mr Stoeski and Mr Campbell as to how they found the pipe. The pipe dropped back into the ground in such circumstances could have been found with earth on top.
378 The defendant company submitted there was no evidence the marks, such as they were, on the pipe were caused by the excavator. Further, the defendant company submitted a number of witnesses who attended the site on 4 December 1995 did not see any significant damage to the pipe.
379 Mr Galasso of AGL after the gas fires were extinguished went over to the construction site and noted a “kink” on the Goldline pipe:
I think it was the long end.
He identified on the site a length of the Goldline pipe and revealed he had pulled it out of the galvanised pipe and thought it was approximately eight metres long. It was his view the kink was a bending mark or a mark made by bending. He agreed he did not know how the kink got there. When he first saw the pipe it was sticking up at a 45 degree angle from the ground. He acknowledged it was not in its normal position because it should have been buried in sand. He said to the construction around him, “Did youse hit this pipe?” They said “No”. Mr Galasso opined the score marks on the pipe happened when the Goldline was pushed through the galvanised pipe but conceded the marks could have been caused by a rock or brick underneath the pipe.
380 I do not make and have not made any conclusions related to any particular marks on the pipes or when such marks were made. It remains open to conclude either some or all of the marks were on the pipes before it was disconnected from the joint outside FAZ or the excavator bucket made all the marks or some new marks on the pipe.
381 I have already made findings the KSU site was the defendant company's place of work and the role to oversee all activity on site was the defendant's undertaking. The fact the work done on site on Monday 4 December 1995 was performed by sub-contractors to the defendant company and the defendant company's employees, including senior executives and foremen, took the union picnic day off, does not alter the defendant company's obligation to ensure its worksite was a safe place for all persons. Part of that obligation was to ensure any work performed on site near the existence of a charged gas supply line was carried out with care and provided no risk to safety to persons on site. It was the defendant company, through Mr Bolger, I have found, who initiated the order that the work must be finished before the holiday period was over.
382 The defendant company had a continuing obligation to ensure this construction area was safe for persons not in its employ at all times and especially when work was performed on their work site. Even if the Commission sitting in Court Session accepted the proposition the defendant company did not know Josef & Sons were working on site on 4 December 1995, the defendant had a continuing obligation to ensure its place of work, in the conduct of its undertaking to provide Easy Access and Platform Station Upgrade, was free from a risk to safety. Its contract was to ensure the demolition and construction work on this site was performed in compliance with safety standards. The defendant company's obligation under the Act was to ensure persons at its place of work in the conduct of its undertaking were not exposed to a risk to safety. It failed to realise it had approved the continued existence on the KSU construction site of a charged gas supply line, not properly protected or identified and about which it did not warn nor did it require any work method adopted on the site be designed to observe the inherent danger provided by the continued existence of a charged gas supply line on site. All such acts or omissions of the defendant company continued to create a risk to the safety of persons at this worksite. The risk continued on the site on 4 December 1995. The site remained "a place of work" in the sense of Meinhardt, namely:
every area which may be affected by the work being done in the undertaking of the defendant at the time of the explosion.
(see WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325).
383 The charge is brought under s16(1). I find there were, on 4 December 1995, on the KSU site persons not in the defendant company's employ at work, namely, Mr Campbell, Mr Stoeski as well as other Josef & Sons labourers. I find on 4 December 1995, at the defendant company's place of work, in the performance of its undertaking, the defendant had a continuing obligation to oversee activities on site and to ensure its place of work was free from a risk to safety. I find the defendant company put pressure on the sub-contractor, Josef & Sons, to complete the demolition works before the defendant company returned to work on the site.
384 A further alleged failure is pleaded related to this charge, namely: that the defendant:
did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU.
The evidence revealed Abigroup employees were not on site on this day. I have found it was open to infer, arising out of Mr Bolger's facsimile, work could be performed on this day. Therefore the obligation was for officers of Abigroup, with obligations to ensure safe working to be on site on this day. The defendant company admitted it knew at least equipment would be moved off site on the day. Given the existence of a charged gas supply line on site, even for the movement of an excavator off site, safe working would have required the presence of an Abigroup safety officer. Further, the evidence revealed the defendant company knew from its own inquiries the SRA safety officers would not be on site on 4 December 1995. The defendant company failed to ensure work would not be performed on site until safety officers returned to work on site.
385 I have found the allegations that the defendant:
failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
a) within one metre of a building to be demolished;
b) that was not adequately protected or identified;
c) in which earthmoving works were to be performed.
and
failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
a) location of the charged gas supply line;
b) the risks associated with work adjacent to the charged gas supply line;
c) the type of work that might be carried out adjacent to the charged gas supply line;
d) the type of work, if any, which could be performed adjacent to any charged gas supply line
are repetitive. To each of the individual acts or omissions particularised in these composite allegations covering the day of 4 December 1995 I have given particular consideration. I do not find these composite allegations, in their repetitive form, contributed as further acts or omissions of the defendant company to the risk to safety which existed on this KSU site on 4 December 1995.
386 I have found the allegation the defendant:
failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety
was not proven on the evidence (see para 310) during the two other periods in which breaches are pleaded. I find the prosecution has failed to establish this alleged failure by the defendant on 4 December 1995.
387 I find the defendant in failing to ensure the cut off of the gas pipe in a position which was safe given this was a construction site; its continual failure to properly mark or warn of the charged gas supply line; its failure to properly identify the charged gas supply line; its failure to design or to require the design of work methods acknowledging the existence of a charged gas supply line on site created a risk to safety of persons on the KSU site on 4 December 1995. I find the site was inherently unsafe and a risk to a person's safety while the charged gas supply line lay, unmarked and unidentified. That risk to health and safety was made manifest when an excavator moved earth, while constructing a batter over the area, under which the charged gas supply line was located and lifted the charged gas supply line causing the disconnection of the supply line which brought about gas leakage leading to two explosions on site. I find such acts or omissions by the defendant as pleaded and proven led to a risk to safety on the KSU site on 4 December 1995.
388 Therefore on 4 December 1995 Abigroup failed, under the provisions of s16(1) of the Act to ensure persons at it place of work in the conduct of its undertaking were not exposed to a risk to their safety.
389 In matter No. IRC5438 of 1999 I find the charge proven.
The Summonses against Luis Bustamante
390 Two charges have been brought against Luis Bustamante in his role as Supervising Foreman of the defendant company on the KSU site. Both charges are brought under s19(a) of the Act.
Legal Principles
391 Section 19(a) of the Occupational Health and Safety Act 1983 requires that an employee take reasonable care for the health and safety of persons at his/her worksite who may be affected by his/her acts or omissions. A lack of "reasonable" care therefore requires a finding an employee's action and/or lack of action was detrimental to the safety of persons who were at his place of work.
392 The introduction of the word "reasonable" into the employee's obligation places on that employee a lesser duty of care than that imposed on an employer under the act who has to "ensure" health and safety. So the employee cannot be treated as carrying the wider responsibility than that of an employer (see Stevenson v Hoggard [1992] SAIRC4).
393 In WorkCover Authority of NSW (Inspector Gordon) v Gregory Ronald Wallis (unreported, CT1011 of 1995, 14 August 1996) Cullen J held of the provision (at 4):
Section 19(a) is the statutory enunciation of a common law duty which has become known as the "neighbour principle" described in Donoghue v Stevenson [1932] AC 562 . . .
There is then the question of foreseeability of injury to other persons at the place of work arising from an employee's act or omission, and the question of the relationship of proximity (per Lord Wilberforce in Anns v Merton L.B.C. [1976] 2 WLR 512) between an employee and other persons. These concepts dictate the limits or extent of the employee's duty to other persons in the context of s19(a).
In his reasoning in Wallis, firstly, Cullen J inquired whether there was any positive act on the defendant's part, as an employee, which was reasonably expected of him to give effect to the provisions of the Act. Secondly, his Honour inquired whether, if a positive act was found to be required, there was any omission to do something by the employee. Cullen J said (at 7):
Section 19 of the Act refers to the acts or omissions at work of an employee. What, therefore, were the acts or omissions of the Defendant as an employee, which were so unreasonable as to affect the health and safety of Mr Saleh? Mr Saleh was never within the Defendant's supervisory control. He remained an employee of Grocon and worked on the premises of Grocon in accordance with the system of work established by Grocon which included the control of the lifts. . . The Defendant did no more than ask Mr Saleh to do a job with which he was familiar. There was no act of the Defendant as an employee which was shown to have adversely affected Mr Saleh.
The charge of an omission of duty of care appears to be directed rather to the failure of the system of work, . . .Mr Saleh was working in the place of work pursuant to the system of Grocon. He and Walco employees were subject to directions of Grocon management. It is difficult to see in what regard the Defendant failed in his duty as an employee to take reasonable care. . .
394 The Full Court of the Industrial Court on appeal in Wallis further commented as to the obligation under s19(a):
In our opinion, the test to be applied under the section in determining whether or not an employee has failed to take reasonable care in any act or omission which may affect another's health or safety is an objective and not a subjective one. In other words the actual intent of the employee is not a necessary ingredient of contravention of the section. Nor, in our view, need the act or omission be a deliberate one. The section is mandatory and imposes a positive duty - to take reasonable care. Nevertheless, while the test is objective and 'intent' is not necessary, all relevant circumstances must be taken into account in determining whether 'reasonable care' was taken. For example, matters such as the employee's state of knowledge, qualifications, expertise, experience and status as foreman, site supervisor or manager, are relevant to the issue.
395 There has been limited judicial consideration of s19(a) of the Occupational Health and Safety Act 1983 by this Court. In WorkCover Authority of NSW v Cruden (1996) 67 IR 469 Marks J in an application of the principles reasoned (at 475):
. . . the requisite standard to be applied is that which should reasonably in all the circumstances have been expected of an employee carrying out the duties and discharging the responsibilities in a manner appropriate to the skills and expertise expected of a person holding himself or herself out to be able to undertake that work. In the case of the defendant in these proceedings one is entitled to have regard to those skills and expertise which can commonly be expected of a qualified lift mechanic in undertaking the task of releasing passengers trapped in a lift.
396 The standard to be applied therefore is that of a reasonable person in the circumstances. It is noted there is no duty for the employee to warn of any impending danger (see Quin v Hill [1957] VR 429). By applying the requisite standard, the prosecution must prove the defendant failed to discharge his responsibilities in a manner appropriate to his skills and expertise in accordance with the applicable standard required of a foreman in the construction industry in 1995.
397 Both the employer and the defendant himself argued the defendant was qualified to perform work as foreman on a construction site. The employee, Mr Bustamante must therefore have taken reasonable care, given his qualifications, experience and training, with regard to the health and safety of people at his place of work - the KSU site.
Matter No. IRC5503 of 1999
398 This is a breach pleaded under s19(a) of the Act on 10 November 1995. It is alleged the defendant failed:
to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant contrary to s19(a) of the Occupational Health and Safety Act 1983 did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur.
399 Mr Bustamante gave statements as to activities on the day of 10 November 1995 which statements were admissible against the defendant Abigroup. Those statements however were not admissible in evidence in the trial for breaches of the Occupational Health and Safety Act 1983 brought by the WorkCover Authority against Mr Bustamante. The evidence therefore against Mr Bustamante on 10 November 1995 related to his acts or omissions at his place of work was very limited.
400 There was evidence at trial that on that day the act of disconnecting the gas service took place. None of the AGL employees called to give evidence identified Mr Bustamante as on site on that day. Mr Stoeski acknowledged he was helped by Mr Bustamante to mark the capped end of the gas pipe but he could not identify which day this occurred.
401 Mr Stoeski's evidence taken without any corroborating evidence from Mr Bustamante as to Mr Bustamante's activities on site on 10 November 1995, is not satisfactory or sufficient to persuade the Commission sitting in Court Session that Mr Bustamante, in its consideration of the admissible evidence before it for the purpose of this charge was on site on 10 November 1995.
402 I find the prosecution has not met the onus it carries to identify Mr Bustamante was on site at work on 10 November 1995 and taking part in any activities at the KSU.
403 As the basic element of a s19(a) charge the prosecution is required to prove the employee be "at work". It has failed to do so. I therefore dismiss the charge in Matter No. IRC5503 of 1999 brought against Mr Bustamante.
Matter No. IRC5502 of 1999
404 This charge is brought under s19(a) of the Occupational Health and Safety Act 1983. It is alleged the defendant, Mr Bustamante:
failed to take reasonable care for persons who were at his place of work and who were affected by his acts or omissions in that he failed to take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur.
This charge relates to the period 11 November 1995 to 3 December 1995 (inclusive).
405 As to Bustamante's presence on the site and "at work" between 10 November and 4 December 1995, Mr Deane said:
Q. On site the company had employees?
A. That's correct.
Q. They included as site foreman of where the demolition was done, at any rate, Mr Luis Bustamante?
A. Yes.
Mr Morris said:
Q. Could you just generally tell us what it was that you were advised?
A. That the services had been disconnected in that area.
Q. Who told you that?
A. Luis Bustamante.
Q. And that was in the course of him showing you the site?
A. That's correct.
Mr Jessop said:
Q. That's 12 days before the explosion?
A. Yes.
Q. A week and a bit.
A. Right.
Q. When you were working there in that week and a bit do you remember whether there were any other Abigroup employees also working on that site?
A. Yes.
Q. Can you remember their names?
A. Maurice Bolger, Luis Bustamante, Troy - he was in the office, I forget - I don't know his last name.
Mr Smithers said:
Q. Did you at the time know a man called Mr Luis Bustamante?
A. Yes.
Q. Who did you know him to be?
A. He was the Abi foreman on site.
. . .
Q Does it follow that you started 10 days, two weeks, that sort of time, before this explosion?
A. Yeah, I'd say so, yeah.
Q. You'd dealt with Mr Bustamante in that time?
A. Yes.
Q. You'd dealt with him on any issue that you wanted to raise?
A. Yes, I did, but usually first thing I done when I arrived on the works like was go and seek Luis out and we'd have a yarn on the day's activities, what he required of me or what was going on, whether he needed to cross the railway lines or whatever, yeah.
Mr Poidevin said:
Q. Mr Bustamante took over, to your recollection, when - that is, took over the project?
A. I can't really recall the actual day, but it was probably about two weeks after setting the sheds up, from what I gather, roughly.
. . .
Q. And you were aware that he was going to be the site foreman in relation to the demolition and later construction work?
A. His role was general foreman - that was the role.
I am satisfied Mr Bustamante's role was that of foreman on site and he was active in the performance of his duties as foreman, that is, "at work" in the relevant time period.
406 As to Mr Bustamante's knowledge in the relevant period of the existence of a charged gas supply line on the demolition site the evidence of Mr Stoeski, Mr Josef and other employees on site is considered. It was Mr Stoeski who identified it was he and Mr Bustamante who put the peg and markings on the gas pipe. Mr Stoeski was asked:
Q. Why did you do that?
A. So indicates that's gas was there.
Mr Robert Josef was asked:
Q. Then the shops were demolished?
A. No, when I said where gas - where was the gas cut off, they showed me and I said, "Put a stake in the ground and put something around it."
Q. Was that before the shops were demolished or after?
A. Yes.
. . .
Q. I think you said this morning that on one of your visits to the site the area where the gas had been cut off was shown to you and you said, "Put a stake in the ground and put something around it"?
A. That's correct.
Q. Who were you talking to when you said that?
A. Chris Stoeski.
Q. And he was your foreman?
A. Yes, he was.
Mr Robert Josef was also asked:
Q. Did you know whether or not that was a live gas pipeline?
A. It was alive.
Q. How did you know that?
A. Because I knew that’s where it was cut off and that's why we left the bunting and that's why we left the mark, so everybody knows it is live and if it sticks out a bit, they are aware of it even more. There's no standard for this, unfortunately.
. . .
Q. How far was the yellow gas pipe sticking out?
A. I don't know. About 6 inches I suppose, I can't - I can't remember. You can see a yellow thing sticking out of the ground and that's why that was always there, to warn people not to go near it.
Q. Did you yourself give any people such a warning?
A. Well, everybody on site knew that's where the gas line was. It was common knowledge.
Q. Did you yourself warn people not to go near it?
A. I warned my crew and everybody and they all knew, yes. They were experienced people that worked there, so they understood the site.
Mr Poidevin was asked:
Q. Did you know anything about a gas service to the fish shop being disconnected prior to its demolition?
A. Yes, I was shown that by Luis Bustamante prior to us starting on the platform.
Q. What were you shown?
A. A piece of metal pipe with a piece of timber and a piece of ribbon around it, as in my statement.
Q. You are referring to the statement you gave to the police?
A. Correct.
Q. What do you refer to as the piece of metal pipe? Was that a gas pipe or --
A. As explained by Luis, that's where it was disconnected.
Mr Poidevin was also asked:
Q. You had working on the ramp area a labourer, Mr Jessop?
A. That's right.
Q. He was a labourer employed by Abigroup?
A. He was a leading hand labourer.
Q. He was a person that you'd worked with on many occasions prior to this?
A. Yes.
Q. When he first came on to the site at Kogarah, did you take him around the site?
A. That's correct.
Q. Did you show him certain things?
A. I showed him, yes.
Q. Did you show him this area of the ribbon?
A. Yes.
Q. And what did you tell him about that area?
A. Exactly what I was told by Mr Bustamante.
Q. That is?
A. That there's a gas line there.
407 Mr Poidevin expressed the view he did not know the line behind the marking was live. The court has had no need to determine the truth of this assertion of Mr Poidevin. I do not accept it can be inferred Mr Bustamante did not know the line was charged and the defendant did not so submit. Mr Stoeski's recollection was he and Mr Bustamante marked "where the gas was" and Mr Josef said it was marked so everybody knew it was "live". Mr Poidevin said the marking as indicated to him by Mr Bustamante identified where the gas service was disconnected. I accept Mr Bustamante knew the gas line behind the capped end was charged.
408 The Commission sitting in Court Session accepts, on the totality of the evidence, that Mr Bustamante was a competent and capable supervisor on construction sites. Mr Cejka referred to Mr Bustamante as "one of the best" project supervisors he had worked with. As to safety Mr Cejka referred to Mr Bustamante's approach as "meticulous". Mr Dean referred to Mr Bustamante as being "absolutely experienced, and certainly not gung-ho". Mr Bolger from Abigroup referred to Mr Bustamante's work as a foreman as "always very good" and Mr Stewart who was employed by Group One Interiors Pty Limited to work with CWM on the station upgrade project said he had no reason to complain about Mr Bustamante or the way he was carrying out his work and commented Mr Bustamante appeared to be carrying it out safely. Mr Sibley, Superintendent of the KSU Contract between the SRA and Abigroup, referred to Mr Bustamante as carrying out the works appropriately and within the set standards and safety regimes required. Mr Warren an employee of Abigroup stated Mr Bustamante guided him around the site and pointed out activities and explained safety requirements. Mr Smithers, SRA's safety officer on the KSU site referred to Mr Bustamante and himself having a "yarn on the day's activities". He refers to Mr Bustamante as being forthcoming with information, happy to explain things, there was no trouble in dealing with him and he had no issues with the way Mr Bustamante handled safety at the worksite.
409 Mr Bustamante was, I believe, a hard working supervisor on construction works and a man of some professional and personal integrity. However, the obligations under s19(a) of the Occupational Health and Safety Act 1983 placed on Mr Bustamante as such an employee are onerous. I find he was at work on the KSU site between 11 November and 3 December 1995 (inclusive). He was the foreman/supervisor on site. He was accepted by his employer as skilled and qualified for the task. He was obliged under the Act to take reasonable care for the safety of persons on this worksite who may have been affected by his acts or omissions. This site during the period of this charge was in a demolition/construction phase. At least five metres of a charged gas supply line were left in the site after the shops had been demolished. Mr Bustamante allowed in this period a shop to be demolished where the charged gas supply line lay within one metre of the building alignment. Three other shops down the site were then demolished. After all the shops were demolished the charged gas supply line then remained a distance of over five metres within this construction site.
410 The particulars recite a number of facts not proven in this prosecution against Mr Bustamante. The evidence admissible against Mr Bustamante however, satisfies me that on about 10 November 1995, AGL cut and capped a charged gas supply line to Shop No. 7, Railway Parade, Kogarah. The charged gas supply line was cut and capped within one metre of the alignment of a shop which was to be demolished. It was one of four shops to be demolished. The evidence of the AGL employees establishes the charged gas supply line remained charged behind the capped end.
411 From the totality of the admissible evidence I accept in the period of time of the breach, between 11 November and 3 December (inclusive), after the demolition of the four shops occurred then the ramp across the site was constructed over the charged gas supply line by the defendant's employer, Abigroup, under the defendant's supervision. Across the ramp and over the charged gas supply line a number of heavy vehicles passed to construct a railway station extension. The photograph of 24 November 1995 shows the area and type of equipment used on this site some of which was travelling across, near on or close to the charged gas supply line. It shows the type of materials that were placed over the pipe and moved along the ramp. The gas supply line lay charged and under the ramp for a length of at least five metres. I have rejected any submission the pavers provided adequate protection for the gas line (see paras 328-330).
412 Such activity required adequate precautions be taken for the care of persons at this place of work. The Act required Mr Bustamante to take "reasonable care" of persons while they were at his work place.
413 In the relevant period I am satisfied the charged gas supply line was marked with a stake and bunting at its capped end. It has not been established against Mr Bustamante he was on site on 10 November 1995 when this occurred although I am satisfied from the description of the many persons on site the line was marked at the capped end with a stake and bunting as described.
414 Mr Bustamante relies upon the relevant submissions, made on behalf of the defendant Abigroup, in support of the dismissal of this charge brought against him. The defendant submitted a factual analysis of the submissions presented on behalf of the defendant Abigroup in so far as they are relevant to the charge in the period 11 November 1995 to 3 December 1995 (inclusive) should have the same or similar impact: that is, to persuade the court the defendant did not fail to take reasonable care for the health and safety of persons who were at his place of work and who were affected by his acts or omissions.
415 By applying the requisite standard, the defendant submitted Mr Bustamante discharged his responsibilities in a manner appropriate to his skills and expertise in accordance with the applicable standard required of a foreman in the construction industry in 1995.
416 It was submitted Mr Bustamante's actions complied with the industry standards of the time and with the expectations of persons senior to him on the site including supervisors from Abigroup, the CWM and SRA. As to the marking of the charged gas supply line, the evidence it is submitted supports a finding the end of the gas pipe was marked as a hazard in accordance with the industry standard by the type of marker that was in common use on other construction sites. Mr Bustamante did not deviate from the expected practice contemplated and utilised by his employer, Abigroup, or indeed from that adopted by the industry as a whole as at 1995 with regard to the marking of gas services on construction sites.
417 While Mr Bustamante was proactive in accepting the marking the capped line with star pickets and bunting during the period covered by this charge he failed to identify the charged gas supply line which remained on site was inherently dangerous. The failure to effect a disconnection of charged gas supply line to a position which was safe given this was a construction site, and the associated failure to mark, protect or identify the existence of a charged gas supply line on the KSU site were all acts or omissions which were required of a reasonably careful foreman on site.
418 It was not responsible and not reflective of a standard of "reasonable care" for a workman of the defendant's qualifications, experience, training and authority to leave a charged gas supply line on what he knew during the relevant period was a demolition/construction site. Further, I accept there was a failure by Mr Bustamante to identify and mark the hazard such as to allow it to be recognised on site as a hazard with the particularity of a charged gas supply line. "Reasonable care" by a supervisor at this work site required the recognition a charged gas supply line on a demolition/construction site provided a hazard to safe working and "reasonable care" required some action to be taken if such a gas line remained on site. Such action had to represent as "adequate precautions" taken for safety of persons on his worksite. It required either the removal of the hazard or the adequate marking and identification of the nature of the particularity of the hazard. The generality of the marking and the lack of specific identification that a charged gas supply line existed on this construction site were all acts and omissions establishing a breach of the defendant's obligation to take reasonable care for the safety of others on the KSU site.
419 It was particularised that contributing to the defendant's failure to take "reasonable care" was his knowledge the gas line became exposed in this period. Mr Bustamante's statements are not admissible and without them Mr Stoeksi's evidence has no clarity. I do not believe this particular should be part of any assessment as to whether the defendant took reasonable care.
420 The health and safety of any person on this site during this period I find was adversely affected given construction and demolition work was conducted on the site where there existed a charged gas supply line. In the application of his skills as a foreman it was Mr Bustamante's acts and omissions as an employee which were so unreasonable as to adversely affect the health and safety of persons on this work site. He failed in his duty to apply to the performance of his work a standard of reasonable care.
421 Notwithstanding the standards of the day I am not satisfied the obligations imposed upon the defendant under s19(a) of the Act are met with the proposition he complied was the safety standards of common practice in 1995. The test the defendant must meet under the Act is the application, to his acts or omissions, of the standard of "reasonable care". "Common practice" is no answer to the obligation to provide "reasonable care". While all the relevant circumstances must be taken into account as well as the employees' state of knowledge I do not accept that the lack of an official standard for the disconnection of a gas service nor the alleged common practice of leaving live gas supply lines on constructions sites provide a satisfactory defence sufficient to be recognised that in such circumstances the defendant took "reasonable care". Given the work which was to be performed on the site and given Mr Bustamante's knowledge as to that work, including the use of an excavator on site, I find the existence of the charged gas supply line not adequately marked or identified created a circumstance which may have affected the safety of persons at Mr Bustamante's worksite in the relevant period.
422 It was the acts and omissions of the defendant employee, as the foreman, which adversely affected the health and safety of persons on this work site. The duty of care was the defendant's and he failed to meet the standard of reasonable care required under s19(a) of the Occupational Health and Safety Act 1983. Reasonable care required of the foreman at this place of work with regard to the health and safety of persons who may be affected by those acts or omissions to take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. He failed to so do.
423 In matter No. IRC5502 of 1999 I find the charge proven.
424 I find in matter Nos IRC5432, 5433, 5434, 5436, 5438 of 1999 the charges proven against Abigroup Contractor Pty Ltd.
And:
425 I find in matter No IRC5502 of 1999 the charge proven against Luis Bustamante.
And:
426 I find in matter No IRC5503 of 1999 the charge unproven against Luis Bustamante.
427 I order matter Nos IRC5432, 5433, 5434, 5436, 5438 of 1999 and IRC5502 of 1999 be listed for hearing as to Penalty.
LAST UPDATED: 28/02/2003
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