Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169 (16 September 2008)

Last Updated: 24 October 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169



FILE NUMBER(S):
IRC 1304

HEARING DATE(S):
14 March 2008
Written submissions: 19 March 2008, 3 April 2008, 17 April 2008 and 15 May 2008.

DATE OF JUDGMENT:
16 September 2008

PARTIES:
APPELLANT:
Rail Infrastructure Corporation

RESPONDENT:
Inspector Victor Page

CORAM:
Boland J President Walton J Vice-President Backman J


CATCHWORDS: Statutory interpretation - Occupational Health and Safety - Appeal from finding of guilt by trial judge following a summary defended hearing for a breach of s 8(1) of the Occupational Health and Safety Act 2000 - Preliminary question as to whether the defendant was convicted after finding of guilt but before sentence passed - Meaning of conviction under Criminal Appeal Act 1912 considered - Meaning of conviction at common law considered - Held: finding of guilt following a summary defended hearing but before passing of sentence constituted a conviction under s 5AA of the Criminal Appeal Act 1912.

Appeal - Occupational Health and Safety - Appeal from finding of guilt by trial judge following a summary defended hearing for a breach of s 8(1) of the Occupational Health and Safety Act 2000 - Employee suffered an electric shock and fell some 7.5 metres while climbing a power pole to which was attached a non-isolated, live feeder line - Whether trial judge proceeded on a wrong assumption that relevant risk was that of electrocution - Whether cause of the fall was the employee's failure to secure his arrest harness - Whether there was a failure of supervision by appellant in failing to ensure that the employee properly used the full arrest harness when he climbed the power pole or whether the employee's failure to secure the harness was a casual and isolated act of carelessness over which the appellant had no control - Whether trial judge erred in findings concerning the confusion and lack of understanding on the part of the work team as to the appellant's system of work - Standard of proof and causation considered - Absolute duty to ensure safety considered - Principal cause of risk considered - Whether trial judge erred in concluding that there was a failure in the appellant's system to adequately enforce its instructions - Whether the trial judge erred in findings concerning the defence under s 28 (b) of the Occupational Health and Safety Act 2000 - Appeal in respect of s 8(1) offence dismissed.

Occupational Health and Safety - Appeal - Appeal from finding of guilt by trial judge following a summary defended hearing for a breach of s 8(1) of the Occupational Health and Safety Act 2000 - Employee suffered an electric shock and fell some 7.5 metres while climbing a power pole to which was attached a non-isolated, live feeder line - Whether trial judge proceeded on a wrong assumption that relevant risk was that of electrocution - Whether cause of the fall was the employee's failure to secure his arrest harness - Whether there was a failure of supervision by appellant in failing to ensure that the employee properly used the full arrest harness when he climbed the power pole or whether the employee's failure to secure the harness was a casual and isolated act of carelessness over which the appellant had no control - Whether trial judge erred in findings concerning the confusion and lack of understanding on the part of the work team as to the appellant's system of work - Standard of proof and causation considered - Absolute duty to ensure safety considered - Principal cause of risk considered - Whether trial judge erred in concluding that there was a failure in the appellant's system to adequately enforce its instructions - Whether the trial judge erred in findings concerning the defence under s 28 (b) of the Occupational Health and Safety Act 2000 - Appeal in respect of s 8(1) offence dismissed.

LEGAL REPRESENTATIVES
APPELLANT:
Mr I M Neil of senior counsel with Mr M J Heath of counsel
Moray & Agnew
(Mr S T Jones)

RESPONDENT:
Mr A C Casselden of counsel
WorkCover Authority of New South Wales
(Mr W Steenson)


CASES CITED:
Boujaoude, Elia Elrob v R [2008] NSWCCA 35
Burgess v Boetefeur and Brown [1844] EngR 567; (1844), 7 Man. & G. 481
Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173
Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257
Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432
Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313
Ferguson v Nelmac Pty Limited (1999) 92 IR 188
Frodsham v O'Gorman and Another [1979] 1 NSWLR 683
Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57
Griffiths v The Queen (1977) 137 CLR 293
Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149
Inspector Victor Page v Rail Infrastructure Corporation [2007] NSWIRComm 180
Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40
Maxwell v The Queen (1996) 184 CLR 501
Newcastle Wallsend Coal Company Pty Ltd v Stephen Finlay McMartin [2006] NSWIRComm 339; (2006) 159 IR 121
O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361
R v Jerome and McMahon [1964] Qd R 595
R v MAJW [2007] NSWCCA 145; (2007) 171 ACrim R 407
R v Stone (2005) 64 NSWLR 413
R v Tonks and Goss [1963] VR 121
Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143
S (An Infant) By Parsons (His Next Friend) v Recorder of Manchester and Others [1971] AC 481
Shannon v Comalco Aluminium Ltd (1986) 19 IR 358
South Sydney Junior Rugby League Club Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373
St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (2007) 162 IR 241
State Rail Authority of New South Wales v Dawson (1990) 37 IR 110
Sydney County Council v Coulson (1987) 21 IR 477
The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57
WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60
WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80
WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284
WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453; (1999) 101 IR 239
WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2002) 123 IR 121
WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166
WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325
WorkCover v TRW [2001] NSWIRComm 52

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 10
Crimes Act 1900 s 556A
Criminal Appeal Act 1912 ss 2, 5, 5(1), 5(1)(a), 5(1)(b), s 5(1)(c), 5(2), 5AA, 5AA(1), 5AA(2), 5AA(5), 5AG, 5A, 5B(3), 5D, 5DB(1), 5E, 6A, 7, 7(4) and 10
Industrial Relations Act 1996 s 196
Mental Health (Criminal Procedure) Act 1990 ss 22(1), 22(1)(c), 22(1)(d)
Occupational Health and Safety Act 1983 ss 15(1), 16(1), 17(1), 53, 53(b)
Occupational Health and Safety Act 2000 ss 8(1), 8(2), 10(1), 28(b)
Offenders Probation Act 1963 (SA) s 4(1)
Road Traffic Act 1967 (SA)


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: BOLAND J, President
WALTON J, Vice-President
BACKMAN J

Tuesday, 16 September 2008

Matter No IRC 1304 of 2007

Rail Infrastructure Corporation v Inspector Victor Page

Application by Rail Infrastructure Corporation pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912 to appeal against a decision of Justice Haylen on 24 July 2007 in Matter No IRC 2607 of 2006

JUDGMENT OF THE COURT
[2008] NSWIRComm 169

Introduction

1 The appellant appeals against conviction under s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912. The conviction is said to arise following a defended hearing before his Honour Justice Haylen and a finding of guilt in relation to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (the 2000 Act): Inspector Victor Page v Rail Infrastructure Corporation [2007] NSWIRComm 180.

2 At the conclusion of proceedings before us, the respondent raised, for the first time, an objection to the jurisdiction of the Full Bench to hear and determine the appeal. The ground, or grounds, of the objection were not made entirely clear. Further questioning from the Full Bench elicited a response from Mr Casselden, the respondent's counsel, that Haylen J had not convicted the appellant in accordance with the provisions of s 5AA. Mr Casselden sought some time in which to get further instructions. The appellant, represented by Mr Neil of senior counsel, contended that his Honour's judgment constituted a conviction and, therefore, the appeal was competent. The parties were given time to file submissions on the issue. Following the filing of submissions, further submissions were filed at the request of the Full Bench. The effect of the respondent's written submissions was that first, s 5AA of the Criminal Appeal Act required the imposition of a sentence in order to give rise to an appeal; secondly, Haylen J's "bare finding of guilt" did not finally dispose of the proceedings in order to give rise to an "appealable conviction" under the section; and thirdly, that the passing of sentence completed the conviction. The absence of a determination of sentence, according to the respondent, rendered the appellant's appeal under s 5AA premature and incompetent. The appellant's initial contention, that the finding of guilt by Haylen J constituted a conviction for the purposes of the section, remained unchanged in subsequent written submissions.

3 Haylen J, after considering the evidence and making findings, found (at [156]):

[156] As a result of these conclusions the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000. The parties are to confer and contact my Associate within seven days in order to set a date for hearing evidence and submissions on penalty.

4 Section 196 of the Industrial Relations Act provides, relevantly:

196 Appeals from and references by members of Commission in criminal proceedings

(1) this section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.

(2) the Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.

5 Section 5AA of the Criminal Appeal Act provides:

5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction

(1) A person:

(a) convicted of an offence, or

(b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or

(c) in whose favour an order for costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

(1A) An appeal against an order referred to in subsection (1)(c) may only be made with the leave of the Court of Criminal Appeal.

(2) For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence.

(3), (3A) (Repealed)

(4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.

(5) Section 7(4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5(1).

(6) Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody.

Conviction under Criminal Appeal Act

6 According to the respondent, the word conviction, in the context of s 5AA, must be given a broad construction which accords with the final disposal of proceedings, being a determination of guilt and the passing of sentence. The basis upon which this construction was advanced relied on the statutory scheme in which s 5AA appears. First, the respondent relied upon the use of the word conviction under s 2 of the Act, as aiding the construction that the word means the final disposal of proceedings. Secondly, the respondent contended that the use of the word conviction in sections 5, 5B(3), 5DB(1), 5E, 6A, 7 and 10 of the Act must also be given a broad construction, because until such time as the proceedings have been finally determined, the appellant has no rights under the provisions. Section 5AG is also capable of a similar construction, according to the respondent, because all it does is give an entitlement to an appeal following the final disposal of the proceedings.

7 The respondent contended that the use of the word "includes" in the definition of conviction in s 2 of the Act widens the "ordinary meaning" of the word conviction. That particular provision provides:

2 Definitions

(1) In this Act, unless the context or subject-matter otherwise requires or indicates:

Conviction includes a finding or verdict under or in accordance with section 14, 22(1)(c) or (d) or 30(2) of the Mental Health (Criminal Procedure) Act 1990 in respect of a person.

8 It may first be observed in relation to this contention, that according to the authorities which have sought to examine the meaning of the word "conviction," there is no, "ordinary meaning". Rather, its meaning has been described as uncertain, ambiguous and only properly assessed by reference to the context in which it is used. Therefore, while it may be true that the word "includes" may be used to enlarge the ordinary meaning of a word, it is the statutory context as a whole that must be considered in order to gauge the meaning. The word conviction is not otherwise defined in the Act. On our reading of s 2, any enlargement of the word appears to be confined to the terms of the section. Reference to other relevant statutory provisions in the Act provides support for this construction. Section 5(1), for example, provides for an appeal against a conviction on indictment in three discrete circumstances. Section 5(2) provides for a separate additional right of appeal where a person has been acquitted on the ground of illness. If the appellant at trial does not raise mental illness as a defence, then under s 5(2) the person is, "deemed to be a person convicted, and any order to keep the person in custody, shall be deemed to be a sentence."

9 It is difficult to see how the definition of conviction in s 2 provides support for the contention that conviction in s 5AA means a determination of guilt after sentence. The provisions of the Mental Health (Criminal Procedure) Act 1990, specified in the definition of conviction in s 2 of the Criminal Appeal Act, deal with a procedure available to a court in circumstances where accused persons have been found unfit to be tried. That procedure may result in the court holding a special hearing into an accused person's fitness to be tried, in which case under s 22(1) of that Act several verdicts are available, which include a finding that the accused person "committed the offence" (s 22(1)(c)), or "committed an offence available as an alternative to the offence charged" (s 22(1)(d)).

10 Section 2, it seems to us, does no more than include within the definition of conviction, a verdict that an accused person, otherwise found unfit to be tried, has committed an offence, or an offence available as an alternative to the offence charged. Neither of these verdicts, included in the definition of conviction could be said to elevate the word to a meaning consistent with a final disposal of the proceedings.

11 Nor do the other provisions within the statutory scheme of the Criminal Appeal Act, upon which the respondent has placed express reliance, provide support for the construction that is advanced as to the meaning of conviction. Under s 5, a person "convicted" on indictment may appeal to the Court of Criminal Appeal against conviction on a ground which involves a question of law (s 5(1)(a)); with the leave of the Court or upon the certificate of the trial judge that it is a fit case for appeal against conviction, on any ground which involves a question of fact alone, or mixed law and fact (s 5(1)(b)); and, with the leave of the Court, "against the sentence passed on the person's conviction", (s 5(1)(c)).

12 The last-mentioned sub-section clearly delineates between conviction and "sentence", suggesting that they are discrete concepts for the purposes of s 5(1) such that the person's conviction constitutes an act precedent in time to the sentence.

13 Section 5B(3) provides grounds for relief, namely the quashing of "any acquittal, conviction or sentence". The provision distinguishes between the quashing of a conviction and the quashing of a sentence, suggesting that the two terms do not share the same meaning, and, may apply in discrete circumstances. Section 5DB(1) provides for a prosecutor to appeal against a "sentence imposed... on the conviction...." This provision, on its face, is at odds with a construction that conviction means both a determination of guilt and sentence. Similarly, s 5E provides for an appeal by, "an habitual criminal", against sentence utilising the provision of the Criminal Appeal Act, "applicable to an appeal against a sentence passed or a conviction on indictment". Section 6A commences with the words, "[o]n an appeal under section 5(1) against a conviction or sentence." The use of the disjunctive again suggests that the words conviction and "sentence" bear separate meanings and provide for two discrete appeals. Both s 7 and s 10 provide separate powers to a court in relation to appeals against conviction and appeals against sentence, again suggestive of a construction which is not consistent with that advanced by the respondent.

14 Recent judicial authority on the construction of s 5A and the meaning of conviction, as it appears in that section, does not provide support for the respondent's contention. In R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407, counsel for the respondent submitted that the Court of Criminal Appeal lacked jurisdiction under s 5A on the ground that there was no evidence that the respondent had been "convicted". That section provides:

The judge before whom any person is tried and convicted on indictment may submit any question of law arising at or in reference to such trial or conviction to the Court of Criminal Appeal for determination, and such submission shall be dealt with as if it were an appeal under section 5.

15 In rejecting the submission, James J (with whom Rothman and Harrison JJ agreed) said:

[14] Whether a person has been “convicted” depends on the context in which the question is asked (Maxwell v The Queen (1996) 184 CLR 501 at 507 per Dawson J, McHugh J). In Griffiths v The Queen (1977) 137 CLR 293, a case in which there was a plea of guilty, Barwick CJ at 301-2 and Aickin J at 334 stated in obiter dicta that, at least generally, a return of a verdict of guilty by a jury itself amounts to a conviction of the offender. There is no need for the trial judge, after the jury has returned its verdict, to make any announcement that he is convicting the offender of the offence (see Griffiths per Jacobs J at 312 and per Aickin J at 335-336). In some special contexts, such as where a defence of autrefois acquit is raised in subsequent proceedings, a verdict of guilty will not of itself amount to a “conviction”. However, the present case is not within any of those special contexts.

[15] In my opinion, the dicta of Barwick CJ and Aickin J in Griffiths should be followed and the Court should hold that in the present proceedings the respondent was “convicted” when the jury returned their verdicts of guilty and hence this Court has jurisdiction to entertain the Crown’s appeal.

16 In Boujaoude, Elia Elrob v R [2008] NSWCCA 35 Giles JA, with whom Hislop and Price JJ agreed, made the following observations in relation to what may constitute a conviction under s 5A:

[6] The return of a verdict of guilty generally itself amounts to conviction of the offender, without formal pronouncement of conviction by the presiding judge, and this Court has jurisdiction to entertain the appeal notwithstanding that the appellant has not been sentenced: Griffiths v The Queen (1977) 137 CLR 293; R v MAJW [2007] NSWCCA 145 . . .

17 Section 5AA relevantly provides that a person, "convicted of an offence", by a court exercising summary jurisdiction, may appeal, "against the conviction (including any sentence imposed) or order". The first observation that may be made is that if conviction and "sentence" share the same meaning in the section then it should not be necessary to include the words, "including any sentence imposed". This conclusion would be no different if the word were construed as inclusive of a definition of conviction, as in an expansion of its meaning. Secondly, s 5AA(2) is expressed in identical terms to s 5(2). Section 5(2), as we have earlier observed, makes separate provision for the conviction and sentence of an appellant acquitted at trial on the ground of mental illness. Under the sub-section an applicant is deemed to be a person convicted and, any order to keep the person in custody is deemed to be a sentence. The separate treatment of the two words again suggests that they are discrete concepts for the purposes of the sub-section. Thirdly, s 5AA(5) applies the provisions of s 7(4) to an appellant on an appeal under s 5AA(1) in the same way as it applies to an appellant on an appeal under s 5(1). Section 7(4) relevantly provides that "on any appeal" if it appears to the Court that although the appellant committed the offence, the appellant was mentally ill, the Court, "may quash the conviction and sentence proved at the trial". The use of the word, "sentence", in conjunction with the word, conviction, is again inconsistent with the respondent's construction that under s 5AA, the passing of sentence completes the conviction. Fourthly, s 5AA falls within a statutory scheme which recognises that conviction and "sentence" have separate meanings, and that they may operate or apply in different circumstances. Fifthly, recent judicial authority favours a construction of conviction, for the purposes of an appeal under s 5A, which is consistent with the return of a verdict of guilty and before the passing of sentence.

18 These considerations compel the conclusion that the meaning of conviction under s 5AA is coincident with a determination of guilt. That is, a meaning of conviction in the narrow sense, as opposed to the broad sense, which encompasses both determination of guilt and the passing of sentence.

19 This conclusion is not inconsistent with the common law approach as to the meaning of conviction. In order to illustrate this point we propose to examine some relevant authorities that have addressed the meaning of the word.

Conviction at Common Law

20 Traditionally, the courts have ascribed two meanings to the word conviction. A determination of guilt, either by way of a verdict of guilty by the jury or by way of a plea of guilty, has been said to constitute a conviction. Other authorities have held that there can be no conviction until a judgment or final disposition of a matter, ordinarily by way of imposition of sentence. Whichever meaning may be attributed to the word, therefore, will depend entirely on the context in which it is used: Maxwell v The Queen (1996) 184 CLR 501 at 507 per Dawson and McHugh JJ.

21 In Burgess v Boetefeur and Brown [1844] EngR 567; (1844) 7 Man & G 481 at 504, Tindall CJ, in addressing when a conviction may occur, commented:

The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of the jury, and at other times, in its more strictly legal sense, "for the sentence of the Court".

22 In Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257, the respondent was charged in a court of summary jurisdiction with three offences under the Road Traffic Act 1967 (SA). The magistrate found the three charges proven and without proceeding to conviction, dismissed the first charge, under s 4(1) of the Offenders Probation Act 1963 (SA). On appeal to the Supreme Court it was contended that the magistrate had no power to dismiss the charge or, in the alternative, that the circumstances before the magistrate did not warrant the exercise of the power. The Supreme Court dismissed the appeal and the appellant appealed to the Full Court of the Supreme Court, which upheld the appeal, finding that the magistrate was bound to record a conviction. The respondent obtained special leave to appeal to the High Court.

23 In the High Court, Windeyer J considered some authorities that had examined the meaning of the word conviction. His Honour first looked at the historical context. He observed that according to "old learning" about the common law meaning of the word, there was a distinction between conviction and judgment such that, "... everyone who is found guilty is not necessarily sentenced". His Honour then observed at 273:

In more recent times it has been said that "the word 'conviction' is sometimes used as meaning the finding guilty; at other times it means that finding together with the judgment ... of the Court": per Darling J in Harris v Cooke (1918) 88 LJKB 253 at 255. This, it seems to me, is especially so when the question arises in relation to proceedings in a court of summary jurisdiction. In a trial on indictment the jury's return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a court of petty sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he announces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence: R v Sheridan [1937] 1 KB 223; Reg v Campbell; Ex parte Hoy [1953] 1 QB 585.

24 The necessity for there to be a determination of guilt in order to amount to a conviction is illustrated in cases where a plea of guilty has been entered but where no further steps have been taken in the proceedings, such as, for example, by adjourning the proceedings to enable material relevant to sentence to be placed before the Court. In R v Tonks and Goss [1963] VR 121, the Full Court of the Supreme Court of Victoria examined this issue in the context of whether a plea of autrefois convict was established. The two respondents in that case had pleaded guilty, respectively, to charges of larceny in a dwelling house and receiving stolen property. The guilty pleas were formally entered in the record book of the Court in accordance with the prevailing procedure. The respondents had pleaded not guilty to charges of robbery involving the same property that was the subject of the pleas of guilty, and were tried on indictment and convicted. The Full Court reviewed a number of authorities that had dealt with the issue as to whether a plea of guilty (without more) could amount to a conviction. Following a review of those authorities, the Full Court said (at 127, 128):

a plea of guilty does not of its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilty, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a "conviction", for the latter term may be used in a particular context as meaning nor merely conviction by verdict where no judgment is given, but conviction by judgment (vide, Burgess v Boetefeur [1844] EngR 567; (1844), 7 Mann & G 481, and Hale's Pleas of the Crown, vol 1, p 686); but there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt. And if there can be no conviction till then, neither can there be a successful plea of autrefois convict.

25 In Maxwell v The Queen, Dawson and McHugh JJ found that, in the modern context, a plea of guilty entered in the record of the Court, without more, would not ordinarily be accepted until the sentence is imposed (at 509):

In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court see Griffiths v The Queen at 313-314, a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [1971] AC 481 at 488:

"It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise."

It is the disposal of the case which results in the judgment of the court embodying a determination of guilt. For that reason, it seems to us that the hesitancy displayed by Gibbs J, when he said in the passage cited above from R v Jerome and McMahon that a determination of guilt may "even perhaps" be made "by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained", was justified."

A matter may be disposed of otherwise than by sentence, but an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter. It is difficult to envisage when either of those courses would constitute a final determination and so amount to a conviction, save in unusual circumstances such as occurred in Griffiths v The Queen where the accused, who pleaded guilty, was remanded for sentence in twelve months on condition that he entered into a good behaviour bond for that period."

26 A similar approach to the question of when a conviction may be said to have occurred, has been taken to pleas in bar. In R v Stone (2005) 64 NSWLR 413, the respondent was discharged in the Local Court following a committal hearing in relation to an indictable supply charge. The respondent had also been charged with one summary charge of possession, which was a "back up" charge to the supply charge. He entered a plea of guilty to the summary charge, the magistrate recorded a conviction, and, the matter was stood over for sentence. Before the sentence hearing, the Director of Public Prosecutions (DPP) filed an ex officio indictment in the District Court with regard to the supply charge. The respondent was arraigned and pleaded not guilty. At his next appearance in the District Court, the respondent entered a plea of autrefois convict to the indictment, based on his conviction in the Local Court of the summary "back up" charge. The District Court judge, Coolahan DCJ, held that the plea had been made out. His Honour found that it was sufficient for a plea in bar for the respondent to establish that his plea of guilty in the Local Court to the summary charges had been accepted by the magistrate as establishing his guilt, and, that it was not necessary to establish that the respondent had already been sentenced.

27 In the Court of Criminal Appeal, Hunt A-JA disagreed. His Honour's analysis explored, in part, the meaning of conviction. He observed that the word is regarded as equivocal and that its meaning must be gleaned from the context in which it is used. In commenting on earlier judicial consideration of the word, his Honour said (at 420):

There are two relevant meanings of "conviction" in the present context: (1) a finding of guilt by verdict or by acceptance of a plea of guilty, and (2) a final disposal of the case by a finding of guilt and the passing of sentence. In the second situation, it is said that the passing of the sentence perfects the conviction.

The first of those meanings of conviction was accepted by the High Court in Griffiths v The Queen (1977) 137 CLR 293. In that case, the appellant pleaded guilty to a number of break enter and steal offences. In order to determine whether the appellant could "keep out of crime" (albeit under the supervision of the Probation and Parole Service) for a period of twelve months, the judge remanded him for that period, and released him without imposing sentence. The Crown appealed against the remand as amounting to a "sentence" within the meaning of s 5D of the Criminal Appeal Act ("Appeals by Crown against sentence"). One step in determining that issue was whether there had been a conviction as a result of the course the judge took. It was held (1) that the accused had been convicted as a result of the course taken by the judge, but (2) that he had not been sentenced. No Crown appeal therefore lay against sentence. The High Court stated (at 301-304, 311, 317-319, 334-335) that an accused is convicted where he is found guilty by the jury or where he pleads guilty and the judge has taken some step which indicates an acceptance of that plea as establishing his guilt.

The second of those meanings was accepted by the Court of Appeal in Kopuz v District Court (NSW) (1992) 28 NSWLR 232. That case concerned the privative clause in s 146 of the Justices Act 1902 ("No conviction or order of a Justice ..., or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court"). The Court considered whether s 146 prevented the Supreme Court from entertaining an application for prerogative relief in the nature of certiorari based on procedural unfairness in the District Court during an appeal to that court at the stage where the applicant for prerogative relief had been convicted on the appeal but not sentenced. The Court of Appeal held (at 242-243) that, as the applicant had not been sentenced in that case, s 146 did not prevent the grant of prerogative relief.

28 Hunt A-JA then directed his attention to the relevance of the meaning of conviction in the context of pleas in bar. After summarising a number of authorities on the issue, his Honour concluded that the word conviction, as used in the context of autrefois convict, requires both a conviction, in the sense of a finding of guilt, and sentence, in the sense of the final disposition of the case. Therefore, in the absence of sentence, a plea in bar must fail. The underlying rationale for this approach, according to his Honour, was the prevention of duplication of punishment (at 429). Smart A-J in the same judgment came to a similar conclusion as Hunt A-JA, (at 439):

Particularly in the case of a plea in bar of autrefois convict, where there is considerable emphasis upon the avoidance of double punishment, the word "conviction" bears the meaning of a determination of guilt followed by sentence. There was no sentence in the present case. The plea in bar of autrefois convict should have been rejected.

29 This approach taken to the meaning of conviction in the context of a plea of autrefois convict is readily explicable. A plea of guilty to a charge, in the nature of a "back up" charge to a more serious charge, leaves open an application for the withdrawal of the plea at any stage before the sentence. Until, therefore, the charge has been finally disposed of, the possibility of duplication of punishment does not arise.

30 The rule that a plea of guilty may be withdrawn at any time before final disposition of the charge was considered by the House of Lords in S (An Infant) By Parsons (His Next Friend) v Recorder of Manchester and Others [1971] AC 481. In the judgment, the appellant had pleaded guilty to a charge of attempted rape in the Manchester City Juvenile Court, a court of summary jurisdiction. His plea was accepted following a hearing and a conviction was recorded. Later, the appellant made an application to change his plea of guilty to not guilty. The magistrates refused on the basis that they were functi officio. An appeal to the Crown Court by the appellant was dismissed. The appellant then applied to the Divisional Court for an order of certiorari to quash the conviction on the charge of attempted rape. The Divisional Court dismissed the application but granted leave to appeal to the House of Lords. In upholding the appeal, their Lordships considered the meaning and significance of the term conviction in the context of an application to withdraw a plea of guilty at any stage before final disposition of the case. The critical issue before their Lordships was whether a court, exercising summary jurisdiction, has the power to grant an application to change a plea of guilty at some point between the time when the plea of guilty is accepted and final disposal of the case. In finding in the affirmative, Lord Reid commented (at 489):

Much of the difficulty has arisen from the fact that "conviction" is commonly used with two different meanings. It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt. It is proper to say that a plea cannot be changed after "conviction" in the former sense. But it does not at all follow that a plea cannot be changed after "conviction" in the latter sense. It is perfectly true that "conviction" is used in this latter sense in the Magistrates' Courts Act, 1952, and a number of other statutes. But I cannot infer from that any intention of the legislature to alter as regards summary jurisdiction the old rule that a plea can be changed at any time before final disposal of the case.

31 A different approach would appear to be available, however, where there has been a plea of not guilty followed by a finding of guilt. In such circumstances, the problems attendant upon a plea in bar, where a plea of guilty has been entered, but where there is no final disposal of the charge by the passing of sentence, are not present. Once a finding of guilt has been made, following a plea of not guilty, the question of withdrawing the plea on the part of a defendant, or accused person, does not arise. There has already been a determination of guilt.

32 In Griffiths v The Queen (1977) 137 CLR 293 the High Court considered s 5D of the Criminal Appeal Act which provides for an appeal against sentence. The appellant had pleaded guilty to offences in the District Court. The District Court judge accepted his plea and the appellant was remanded for sentence for 12 months on the condition that he enter into a good behaviour recognisance for that period. The High Court held that the appellant had not been sentenced within the meaning of s 5D and, therefore, the Court had no jurisdiction to hear the appeal.

33 Barwick CJ, in considering the issue, made a number of observations about the meaning of conviction and the relevance of s 556A of the Crimes Act 1900 (the predecessor to s 10 of the Crimes (Sentencing Procedure) Act 1999) within the context of conviction by courts exercising either summary or indictable jurisdiction (at 301 to 303):

It is apparent that, in the mechanical amendment of s. 556A so as to extend the powers formerly exercisable only by a magistrate to be exercisable by "any court", insufficient attention has been paid to the very different situation which obtains in the course of a hearing before a magistrate and the course of a trial, whether before a District Court or before the Central Criminal Court. The magistrate, having found guilt, may choose to resort to s. 556A, in which case he does not proceed to convict. But if he decides to convict, as a rule he does so expressly by appropriate words.

But the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That accords with long-standing practice in the courts of New South Wales where accused are tried with a jury, where no specific step is taken to convict, or direct the entry of a conviction after verdict. There is the possibility, though extremely rare, of a trial judge refusing to accept the jury's verdict at least on its first return. But, usually, that verdict is acted upon and no question of its non-acceptance arises. Thus, having received the verdict of the jury, the trial judge is in a position without taking any further step to sentence the accused.

However, the position where an accused has pleaded guilty is not so easily resolved. In this instance, quite clearly the trial judge has the ability to refuse to accept the plea. Consequently, it can scarcely be said that the making of such a plea is itself a conviction. As a rule, the trial judge's acceptance of such a plea is implicit in so far as he indicates, having heard the plea of guilty, that he will act upon it as, for example, by calling for the record from the gaol recorder or by some other act. Such acts indicate that he is proceeding on the footing that the accused is convicted.

Although it has not been the practice hitherto to do so, it seems to me that it would be prudent in the case where a plea of guilty is accepted, and no question of utilizing s. 556A is in contemplation, that the trial judge should expressly indicate that the accused is convicted: and to do so before proceeding to make any order in relation to that conviction.

This recital of the usual procedure at a trial by the Central Criminal Court or by the District Court in its criminal jurisdiction immediately highlights the difficulty of such courts using the powers given by s. 556A. But I am of opinion that the provisions of that section may be accommodated to that procedure by the following practice. It seems to me that a trial judge, who wishes to consider the exercise of the powers given by s. 556A where there is a verdict of the jury, should first direct that the verdict be recorded but that no conviction thereon be recorded until further order. The prisoner may then be remanded so that on the day to which he is remanded, the question of recording or not recording a conviction can be decided and a further order or a formal sentence pronounced, as the case may be. If, at that time, the judge decides to use the power given by s. 556A he should direct that no conviction upon the jury's verdict be recorded and then proceed to make his order under the section. This, of course, may seem anomalous in that it may well be said that, immediately on the return of the verdict, the conviction had occurred. Also the trial judge will not have decided at the time the verdict is returned what course he will take. But it seems to me that such a practice as I have outlined would satisfy the language of s. 556A as now amended for it can be said that the court has not proceeded to conviction. After all, it is for the court, and not for the jury, to convict the accused. Further the suggested practice really does no substantial violence to traditional concepts notwithstanding the current view of the consequences of the verdict.

34 The foregoing passage suggests that an accused person is convicted when he or she has been found guilty by the jury, or when he or she pleads guilty and the judge has taken some steps which indicate an acceptance of that plea as establishing guilt: see also R v Stone per Hunt A-JA at [27]. We would add that we respectfully endorse Barwick CJ's suggested approach to s 556A of the Crimes Act 1900 (now substantially re-enacted by s 10 of the Crimes (Sentencing Procedure) Act) outlined by his Honour in the passage above. Given that approach it may be prudent for the trial judge in a prosecution under the Occupational Health and Safety Act, who finds a defendant guilty, and who may wish to consider the exercise of powers under s 10, to record a guilty finding but that no conviction be recorded until further order. Upon sentencing, the trial judge may then consider whether a conviction should be recorded or whether a power under s 10 should be exercised.

35 The question which now arises is what more is needed for a conviction following a plea of not guilty in a court exercising summary jurisdiction. Windeyer J in Cobiac v Liddy, in the passage earlier extracted in this judgment, suggested that if a magistrate finds a person guilty following a defended hearing and pronounces in open court that he or she convicts the defendant, then there is a conviction, even though no sentence may be imposed.

36 There is little other authority on the issue in relation to a court exercising summary jurisdiction. There is abundant authority on what may amount to a conviction in a court's indictable jurisdiction. Barwick CJ in Griffiths v R, suggested that following a plea of guilty, a trial judge may act upon the plea by, "calling for the record from the gaol recorder" and that such an act will indicate that he, "is proceeding on the footing that the accused is convicted". Aickin J, in the same judgment was of the view that the appellant was convicted by the trial judge after hearing evidence and then remanding him for sentence (at 336). In Maxwell v The Queen, Gaudron and Gummow JJ were of the view (at 531) that in the context of a court's power to reject a plea or grant an application to withdraw a plea, a conviction only occurs:

when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question. As was pointed out in Jerome and McMahon, that may appear, for example, by the court's "imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained (120).

37 It should be noted that Dawson and McHugh JJ in the passage earlier extracted from Maxwell v The Queen took a contrary view (at 509) on the issue, observing that an adjournment of the proceedings or the remand of a person for sentence would not ordinarily amount to a conviction on the basis that neither act would constitute a final determination. Toohey J in a dissenting judgment recited a number of examples where there "may" be a conviction. These included (at 521), when a judge enters into a consideration of what should be done in relation to sentencing, for example by hearing evidence relevant to sentencing (Frodsham v O'Gorman and Another [1979] 1 NSWLR 683 at 688); or perhaps by adjourning the proceedings to enable information relevant only to the question of sentencing to be obtained (R v Jerome and McMahon [1964] Qd R 595 at 604).

38 A common theme in the examples cited above appears to be that, for there to be a conviction in the narrow sense of the word, there must be a determination of guilt. This determination, however, may fall short of a final disposal of the matter. In Maxwell v The Queen for example, Gaudron and Gummow JJ found that the facts did not disclose a final determination of guilt in the District Court. Following the plea of guilty the appellant was remanded for sentence but there was no acceptance by the judge that the appellant was criminally responsible for the offence. Rather the judge simply indicated that he would, "consider the matter".

39 Although most of the foregoing authorities have dealt with the issue of when a conviction occurs, in the context of a plea of guilty, we are inclined to the view that a finding of guilt following a plea of not guilty by a court exercising summary jurisdiction constitutes a conviction. This conclusion accords with the observations of Gaudron and Gummow JJ in Maxwell v The Queen, made in the context of a plea of guilty, that where there has been an acceptance by the judge that an offender is criminally responsible for the offence then a conviction has occurred. Gaudron and Gummow JJ thought that it was sufficient for a conviction to have occurred where the plea of guilty was followed by some act indicative of a determination of guilt. Their Honours cited possible examples of such acts, including the adjournment of proceedings to enable information relevant to the sentence to be obtained. This approach would also accord with the reasons of Windeyer J in Cobiac v Liddy where his Honour said, in the context of a finding of guilt following a defended hearing in a court of summary jurisdiction, that an announcement in open court that an offender is convicted will constitute a conviction. More recent authorities (including Maxwell v The Queen at 531) suggests that it is no longer necessary that there be some formal announcement in open court or some formal entry upon the record, of a conviction: see Griffiths v The Queen at 335 per Aicken J; Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257 at 265; Dellapatrona (No 2) 83 ACR 208 at 215 per Kirby P (as he then was). Adopting this approach, it may be concluded that the finding made by Haylen J necessarily entailed a determination of guilt. It followed a hearing on the merits, the giving of reasons and the making of findings. In that sense, therefore, the finding of guilt amounted to a conviction. In the present circumstances, Haylen J pronounced the defendant guilty after a detailed analysis of the evidence. His Honour also took the additional step of making arrangements to set a date for hearing of evidence and submissions on penalty.

Merits of the Appeal

40 Having concluded that Haylen J's finding of guilt constituted a conviction for the purposes of s 5AA, we turn now to consider the merits of the appeal.

41 On 29 June 2004, a maintenance team consisting of employees of the appellant were sent to Beecroft railway station to perform pole top maintenance work. The work involved the overhaul of overhead transmission lines, known as feeders, and was to be undertaken in accordance with written instructions prepared for the task. Prior to the work commencing, various isolation procedures were carried out in order to ensure that the feeders, which were attached to the power poles on which the maintenance team would be working, were safely de-energised. Shortly after arriving at the site, a linesman, Peder Pedersen climbed Pole 49 using ladders and suffered an electric shock, which caused him to fall from a height of about 7.5 metres. An investigation into the accident revealed that an underground cable, identified as 2kV feeder NS21, which was attached to Pole 49, had not been isolated.

Proceedings at First Instance

42 The charge under s 8(1) of the Occupational Health and Safety Act 2000, alleged that the appellant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Mr Pedersen, John Rogers, Peter Ponos and Daniel Mortlock.

43 The charge provided further particulars of the appellant's alleged failure to ensure the safety of its employees. These particulars are extracted below:

m) RIC failed to ensure that is employees were not exposed to risks to their health, safety and welfare in relation to the undertaking at the site, and in particular as to the work actively known as Pole Top Maintenance and/or overhaul of the feeders.

n) RIC failed to provide and maintain a system of work that was safe and without risks to health in relation to the undertaking at the site, and in particular as to the work actively known as Pole Top Maintenance and/or overhaul of the feeders, in that:

(i) RIC failed to ensure adequate information and instruction was provided to its employees in relation to the documents used in the isolation procedure so that employees knew how to perform the undertaking safely on the day of the incident;

(ii) RIC failed to provide adequate supervision of its employees at the site, in that supervisors were unable to and/or failed to identify the presence of an energised feeder present on Pole 49;

(iii) RIC failed to provide adequate supervision of its employees at the site in that it directed and/or allowed an employee, Mr Pedersen to ascend Pole 49 and engage in the undertaking or ascend Pole 49 at all, whilst there was present an energised feeder;

(iv) RIC failed to provide a safe method to perform the undertaking at heights, in that it failed to provide and/or use a suitable Elevated Work Platform to access the feeders isolated for Pole Top Maintenance upon Pole 49;

(v) RIC failed to ensure its employees properly used or used at all a harness and related fall arrest mechanisms when the undertaking was carried out at heights;

(vi) RIC failed to ensure its employees received any adequate pre-work safety briefing prior to the undertaking and in particular in relation to Pole 49;

(vii) RIC failed to ensure that the presence of the electrical feeder known as "NS21" was clearly marked on Pole 49 so as to identify it's [sic] existence and to ensure employees at the site were aware that Pole 49 supported an additional feeder that may have been energised;

(viii) RIC failed to de-energise the feeder "NS21" on Pole 49 prior to the commence of the undertaking on Pole 49.

44 The trial judge found that particulars (m) and (n) (i) (ii) (iii) (vi) (vii) and (viii) had been established on the evidence. His Honour was not satisfied that particulars (n) (iv) and (v) had been made out by the respondent to the requisite criminal standard.

45 In the judgment his Honour focused on what was described as a, "somewhat complex process", by which the maintenance team undertook the work on 29 June 2004. This process included following a documented system by which the maintenance work at Beecroft railway station was to be performed. His Honour found that there was a degree of confusion and lack of full understanding on the part of the work team as to the precise meaning and operation of the appellant's documents in the context of the work to be undertaken at the site.

46 Before giving further attention to the evidence and his Honour's analysis of that evidence, it is necessary for us to address the appellant's system in operation on 29 June 2004, at Beecroft station, and the documents which were said to form part of that system, to which the work team had regard, on the day.

47 Ioane Buatava was the maintenance team's acting team manager on 29 June 2004. Below him were two team leaders, one of whom was Colin Naividi (also described as the foreman) and two group leaders, one of whom was John Rogers. Mr Rogers was responsible for eight linesmen and a trainee linesman. On 29 June, at Beecroft station, Mr Rogers was supervising Mr Pedersen, Mr Ponos, an acting linesman, and Mr Mortlock, an apprentice linesman.

48 Mr Rogers said he was provided with a document called a "work commit" by the foreman, Mr Naividi. The document was computer-generated, and, according to Mr Rogers, set out the scope of work to be undertaken at Beecroft station. It nominated the actual poles to be overhauled and contained information which could be printed out on a monthly basis. Haylen J noted in relation to that document that it was produced, for the first time, by Mr Rogers, after he gave his evidence during the proceedings at first instance, and, until that time, the appellant's legal advisors were unaware of its existence. Mr Rogers said that he would have directed the work team to go to Pole 49 because of the content of the work commit document. At the work site he had checked that document, which was in his truck, and seen that Pole 49 was one of the nominated poles on which pole top maintenance was to be performed.

49 The produced document consisted of one page. According to other evidence led during the proceedings, it did not contain a full description of the work, the information on the page having been cut short on the print-out. This page, which was received into evidence, contained the following entry:

WO Task SPN Priori Date+

03022570-001726 4930/6/04Pole to

Evidence was given, in relation to this entry, that it referred to a pole top examination of feeder 726 on Pole 49.

50 On 21 June 2004, Mr Buatava entered an isolation request into the computer system and sent it to the State Rail Authority's (SRA) Electrical Systems Operations. The request sought the isolation of electrical equipment with regard to work to be performed by the maintenance team within a particular period, namely, between 29 June 2004 to 1 July 2004. The request was for the isolation of feeders 726, NL16 and NL21, from Epping to Hornsby sub-stations. It included a description of the work which, in turn, included pole top maintenance of the feeder lines and stipulated the use of cherry pickers and ladders for the task.

51 The hard-copy document produced from the computer also contained a section headed, "Special Instructions", which included the words: "all work to be carried out clear of RIC HV JOINT USE POLE 49." The Special Instructions had not been formulated by Mr Buatava as part of his request, but apparently were instructions earlier drawn by another authorised mains officer, and existed in the computer system prior to Mr Buatava entering the details of his request.

52 The SRA, in response to the request, sent a document dated 23 June 2004 entitled, "Working High Voltage Instruction No T401/04" (WHVI). The document was in four parts. The first part, headed "Equipment to be Isolated", contained instructions for the isolation of the 726 33kV feeder line between Epping and Hornsby sub-stations, feeder line NL16 between Epping sub-station, the 2kV section links between Pole 50 at Beecroft and the 2kV section air brake switch at Pole 49 Beecroft. The second part of the document reproduced the Special Instructions which had first appeared on the hard copy version of the isolation request. The third part contained the heading, "The electrical systems operator shall arrange for the following switching and safety earthing operations". It set out the particular activity to be undertaken with regard to each feeder line mentioned in the first part of the document at each designated location. Particular activities included, "isolate and DT," (danger tag), and, "prove dead and earth." With regard to the 2kV section air brake switch at Pole 49 Beecroft, the action to be taken was, "check open & lock open with special lock & D.T." A final entry under the third part contained the instruction: " [p]rove dead and apply safety earths to 2kV transmission lines Pole 48 and 51". The fourth part, designated the area in which work permits were to be issued, namely, "Between Epping ss to Hornsby ss on 726 33 kV Feeder and Epping ss to Pole 48 on NL16 Fdr and Pole 51 to 134 on NL21 2 kV Fdr."

53 The prevailing system required that the WHVI be given to the foreman of the work group. The evidence disclosed that Mr Buatava took receipt of the document on 29 June 2004. Once the foreman in charge of a particular work group took receipt of the document the next step in the system was that an authorised permit holder within that work group would complete a document called an, "Electrical Permit to Work". On 29 June 2004, that person was Mr Pedersen. He completed the Permit, he said, by reference to the WHVI. He wrote on the Permit: "[i]t is safe to carry out work between poles 18 to 134 on 726 Feeder, NL16 Feeder and NL21 Feeder". A copy of the Special Instructions which originally appeared in the print out of the isolation request, was also stapled to the Permit. In evidence Mr Pedersen said that he must have stapled the document to the Permit, although he had no recollection of doing so. The Permit was signed by Messrs Pedersen, Mortlock, Ponos and Rogers.

54 Prior to the work commencing at Beecroft station on 29 July, Mr Ponos conducted the pre-work briefing at Hornsby depot. Messrs Rogers, Pedersen and Mortlock attended the briefing. During the briefing, Mr Ponos addressed various hazards associated with the work and the mechanisms by which the hazards would be controlled. He filled out a pre-work briefing form. Prior to doing so he did not look at any other document. On the form, Mr Ponos identified electrocution as a hazard and the Permit as the suggested control. All attendees at the pre-work briefing signed the form.

55 Haylen J embarked on an analysis of the work documents, and the evidence given by each member of the work team in relation to those documents. In doing so, his Honour focused, in particular, on the actual system of work which was undertaken by the work team under the appellant's overall scheme.

56 The evidence given by Mr Rogers, his Honour found, disclosed that he regarded the work commit document as having played a significant role in the approach he took, as group leader, to the work to be performed. Mr Rogers' understanding was that the pole top maintenance work was as outlined in the work commit document. That document nominated the poles to be overhauled. On the evidence, Mr Rogers directed the work team to meet at Pole 49 because that pole was specifically mentioned in the work commit document. Haylen J also found a degree of contradiction between Mr Rogers' evidence-in-chief and his evidence given under cross-examination. According to his Honour, Mr Rogers, because of non-leading questions in-chief had been able to frame his answers, but in cross-examination he had acknowledged the correctness of various propositions, which had been, "forcefully put", to him. Because his Honour proceeded upon the basis (about which there must be some doubt) that Mr Rogers remained an employee of the appellant, his Honour was of the view that the contradictions exposed in connection with his evidence needed to be treated with some caution.

57 Despite, therefore, Mr Rogers' evidence in-chief, that he had placed great emphasis on the work commit document in forming a view as to how the work was to be performed, Haylen J found that Mr Rogers "readily agreed" with a number of propositions put to him in cross-examination, for example, that the WHVI and the work Permit, in fact, defined the work to be performed at Beecroft station on the day of the accident. Haylen J referred to other evidence given by Mr Rogers concerning his understanding of the Special Instructions. Whereas in cross-examination he had said that he understood that the Special Instructions meant that he was to work clear of Pole 49, in evidence-in-chief he had characterised Pole 49 as a joint use pole. A joint use pole, according to Mr Rogers, was a power pole jointly used by both the appellant and Energy Australia. He also said in-chief that he had not attached any importance to the Special Instructions. On the other hand, he had accepted, in cross-examination that the work Permit presented a control against the hazard of electrocution and he understood that, in conformity with the obligations under the work Permit, he was to treat all other electrical equipment as alive and outside the electrically safe working area, which included treating Pole 49 as alive. He also said that the Special Instructions and the work Permit, in combination, operated so that the electrically safe area was between Poles 18 to 134, but that within that area, work had to be carried out clear of the equipment specified in the Special Instructions. In re-examination, he said that he did not think he had disregarded the Special Instructions on the day of the accident because of the content of the work commit document and his assumption that all lines were isolated on Pole 49. He conceded, nevertheless, that the work commit document only referred to line 726 and that he would have understood from that entry that only line 726 was isolated.

58 According to Haylen J, this evidence demonstrated the confusion in the mind of Mr Rogers as to the interaction of the documents which dealt with the maintenance work to be performed at Beecroft station.

59 Haylen J also addressed other evidence which his Honour said demonstrated a lack of clarity and a resultant confusion arising from the appellant's system of work. Mr Rogers, for example, understood that joint use poles, such as Pole 49, meant use was shared by both the appellant and other users, such as Energy Australia. In addition Mr Rogers thought the WHVI indicated that Pole 49 had feeder lines, namely 726, NL16 and NL21. There was nothing, in the work documents, however, which indicated that Pole 49 had feeder line NS21 attached to it. The work commit document only referred to feeder line 726 on Pole 49. With regard to this evidence, Haylen J remarked:

In the complexity of the defendant's system, this inconsistency in information available to the workforce carried with it potentially serious risk.

60 According to Haylen J, Mr Rogers in his evidence regarded the NS21 feeder on Pole 49 as, "merely a cable", and he was not told by the appellant what kind of cable it was. He had, however, been informed of the presence of NL16 and NL21, which he thought were both attached to Pole 49. He expected to be informed of the presence of any other cable on Pole 49 by the attachment of some identification plate, but there was no such plate for NS21 (although one was subsequently attached by the appellant after the accident). Mr Rogers also gave evidence that the air brake equipment (which was open and tagged) on Pole 49 meant that NL16 had been isolated and de-energised and that the black cable running up Pole 49 was part of NL16. He thought that it was, therefore ,safe to work on Pole 49.

61 In relation to this evidence, Haylen J concluded:

[136] These misunderstandings from an experienced leading hand undermine the defendant's submission that the Special Instructions clearly identified the presence of NS21 and clearly gave instructions to work clear of the pole and that no work was to be performed on Pole 49 being an instruction which any of the experienced work team would understand from their training and instruction. The possibility that one experienced member of the work team, operating on an unwarranted assumption or acting with over-familiarity with the work or in a careless way may thereby have operated outside the clear working instructions of the defendant is a proposition that has greater difficulty when it is clear that Mr Pedersen was also clearly of the view that Pole 49 was to be worked on and that it was fully isolated in circumstances where he was the author of the Work Permit and had attached the Special Instructions to that document. It is also apparent that Mr Buatava expected work to be performed on Pole 49 even though he had requested the isolation for the work and had included the Special Instructions in that request. Mr Mortlock had signed the Permit but was preparing to work on Pole 49 when told by Mr Rogers that Mr Pedersen would be doing the work.

62 His Honour then considered the extent of the instruction, information and supervision received by the members of the work team. Evidence was given by those members, in cross-examination, that they were all thoroughly trained and re-certified on an annual basis in the appellant's electrical instructions. There was also evidence that Mr Pedersen had been trained in the use of a safety harness and ladders. Haylen J found, however, that no detail was provided of the appellant's training, re-training and re-certification in relation to the use of the work commit, the WHVI, the work Permit, or the role of the Special Instructions. There was, therefore, no evidence of any instructions forthcoming on the appellant's part concerning the relationship between the documents and how they might interact. The evidence suggested, according to his Honour, that the appellant was not aware that the work commit would be regarded as another direction that maintenance work be performed on a particular pole, regardless of the Special Instructions. In addition, his Honour found that the evidence directly gave rise to a question as to how the work team knew to disregard any inconsistency between the work commit, the WHVI, and the work permit, and how the details of, "such instructions", were passed to the workplace and how they were enforced. Although his Honour expressly found that the appellant's system was not merely a paper system, there was, nevertheless, no evidence of the use of that system by the appellant, "to enforce that training and re-certification in the field and to obtain compliance with its safety instructions in the field by use of spot checks, periodic safety audits or similar inspections." The use of the work commit, by workers in the field, his Honour found, was not addressed by the appellant. Nevertheless, it was a document generated by the appellant's engineers, which laid down a maintenance schedule and, therefore, could not be ignored.

63 As regards the Special Instructions, his Honour observed that they were the work of an earlier supervisor, and although used as a precedent document by Mr Buatava, he appeared to have no recognition, in his evidence, of the purport of the Special Instructions, which was that no work be performed on Pole 49. His Honour also referred to the differing understandings, on the part of members of the work team, of the term, "joint use" in the Special Instructions in relation to power lines, including Pole 49. Mr Rogers' understanding of the term has earlier been referred to. Mr Ponos apparently thought it meant that parts of Pole 49 could be worked on, and only the "joint use" line was to be avoided while performing the work. In cross-examination he agreed that a joint use pole carried feeders other than those that had been isolated and which might be used by another authority besides RIC. He also said that if there were any other feeders on the line he expected to be notified about them. There was, however, no reference to NS21 on Pole 49. In relation to this last-mentioned aspect of the evidence, Haylen J commented that it again illustrated "the confusion that can result from an understanding of the Special Instructions that a live feed was available on a pole but nothing on the pole identifying that live feed". His Honour also noted that given the state of Mr Ponos' evidence, he could not, during the pre-work briefing, have mentioned the presence of cable NS21 on Pole 49, because he was not aware of it; and, he had no other document to assist him in identifying hazards. His Honour also referred to Mr Ponos' acceptance of a proposition, in cross-examination, that the entry in the Special Instructions identifying Pole 49 as a joint use pole, informed him that the pole carried a feeder other than 726, NL16 and NL21; and, that it was a high voltage feeder, which had not been isolated.

64 Haylen J also referred to the evidence of Mr Buatava concerning the Special Instructions. Mr Buatava said that the reference to Pole 49 in that document meant that there was an RIC high voltage feeder within that pole, and, that it was a joint use pole. (By joint use Mr Buatava thought it signified the existence of two feeders). On 29 June 2004, Mr Buatava was aware of feeders 726 and NL16 on pole 49, but not of any additional feeder. (We interpolate here that Mr Buatava in his evidence-in-chief said that the scope of work for 29 June 2004 also included work on NL 21.) He said that there was no tag on the pole identifying another feeder and he would expect to have been notified of the presence of another feeder on the pole. In relation to this evidence, his Honour said, it demonstrated "that Mr Buatava, despite the terms of the Special Instructions regarding joint use Pole 49, did not regard that entry as identifying the presence of a live high voltage cable on Pole 49 that was not isolated". This evidence, his Honour observed, demonstrated that Mr Buatava, the person who filled out the isolation request and who issued instructions, when sought, to Mr Rogers, had incomplete knowledge of the appellant's system and what was meant by the entry in the Special Instructions. It also demonstrated how misunderstandings of the system could be passed to the work team.

65 Haylen J also referred to Mr Pedersen's evidence as illustrating a lack of clear understanding of the work documents by the members of the work team. Mr Pedersen said he understood the Special Instructions to mean that he was to keep clear of the nominated poles. According to his evidence, however, the work Permit, which he had filled out, stated that it was safe to carry out work between Poles 18 to 134 on feeders 726, NL16 and NL21. He did not identify, in the body of that document, Pole 49 as a pole not to be worked on. He thought that if there were any other feeders attached to Pole 49 that a plate affixed to the pole would identify them.

66 The effect of the evidence given by the various members of the work team with regard to the meaning and operation of the work documents was summarised by Haylen J in the following passages:

[141] Having regard to this evidence, it is clear that there was a good deal of confusion and a lack of full understanding amongst some very experienced and trained linesmen and supervisors concerning the meaning and operation of what the defendant described as the critical work documents. On the evidence, I am unable to accept the proposition that what occurred on the day of Mr Pedersen's accident were merely isolated acts of negligence or carelessness over which the defendant had no control. Although it is to be accepted that the defendant had a system of instruction and training (even though the full scope of that material was not placed before the Court), the fact that these experienced men were so ill-informed about the full effect of the Special Instructions and what to do in relation to the work, leads to the conclusion that there was a breakdown in the defendant's system of safety in its workplace. There was a failure in the defendant's system to adequately enforce its instructions and training so as to ensure the safety of its employees working on overhead transmission lines while performing overhaul maintenance. That failure was causally connected to the presence of a risk of electrocution while performing the overhaul work.

[142] While the team members in various ways acknowledged that the Special Instructions meant that they should work clear of Pole 49, they were also prepared to work on Pole 49 because it was part of the maintenance task and they assumed that the pole was isolated. The confusion and misunderstanding about the documents, critical to the overhaul maintenance task, results in the conclusion that the defendant did not ensure the safety of its employees in the sense of making secure or certain their safety in the workplace. It has often been said that a provision such as s 8(1) imposes both a preventive and remedial duty upon employers and that their obligations extend to searching for risk rather than being merely reactive to an incident. While an employer must take into account the fact that employees may be careless on occasions or lacking in attention, especially where work is routinely and repeatedly performed, the Act, nevertheless, protects against inadvertence and inattention and even a foolish disregard for personal safety. The employer's obligation is to make reasonable contingencies within its system although an employer is not liable for merely speculative risks or unduly remote risks. The present case is not necessarily one involving employee inattention, carelessness or negligence: rather, the variety of misconceptions and misunderstandings reflects on the defendant's system of safety in the workplace. There were steps available to the defendant to address these risks and the evidence shows that, indeed, some steps had already been taken by the addition of identification tags and warning plates placed on Pole 49. The breach alleged in para (m) of the particulars of the charge has been made out.

[143] In relation to the various aspects of the breach alleged in para (n) of the [p]articulars, the evidence establishes the breach alleged in sub-paras (i), (ii), (iii), (vi), (vii) and (viii). The thrust of the prosecution case relating to these matters is accepted.

67 Having found that the appellant was in breach of s 8(1) of the 2000 Act, his Honour turned to consider whether the defence under s 28(b) raised by the appellant, had been made out.

68 Haylen J referred to the appellant's submissions made at first instance on the issue. His Honour described those submissions as essentially a repetition of its arguments on liability. Those submissions, summarised by his Honour, dealt with the annual training and re-training of the appellant's workforce; and, that the appellant's instructions were clear, in writing, and understood by the work team, in particular as to the effect of the Special Instructions. The appellant also submitted that it was not foreseeable that two experienced and trained employees would undertake work contrary to its written instructions; and that given the scope of its safety system, there was nothing more that could have been done to ensure the safety of the workers while they performed the work. His Honour said that the submissions in support of the defence under s 28(b) had not been separately developed, and no attempt had been made to adduce evidence as to the impracticability of taking further steps, or of examining the circumstances of the work to demonstrate the appellant's inability to control the actions taken and the resultant exposure to risk. Nor, according to his Honour, had there been evidence of the scope and content of training relevant to the maintenance work, although witnesses were cross examined as to the fact and some aspects of their training. Although the appellant referred to the working documents in the context of the defence provision, his Honour found that there was no evidence of direct instructions or training as to how the work commit was to be used and its relationship to the other documents. In relation to the work commit, his Honour commented that the appellant's case suggested that its use by the foreman, team leaders and group leaders was not known to it, although other evidence disclosed that the expression was known within the workplace, for example, by Tony Constantinou, a witness called by the appellant, and an acting manager within the appellant's employ. His Honour referred again, in the context of the defence provision, to "an almost total lack of evidence" of the system by which the appellant's work rules were enforced in the workforce, such as spot checks, audits or inspections.

69 His Honour also remarked that the appellant's case lacked precision as to what it was unable to control. The appellant, according to his Honour, suggested that it could not control the random acts of carelessness or negligence if its employees. His Honour found, however, that there had been no evidence of such random acts. What the evidence revealed according to his Honour, was that the members of the work team thought that they were applying the rules of safety, they believed that they were required to work on Pole 49, and that the system operated to ensure that the pole was isolated. In any event, his Honour found, there were measures available if work was to be performed on Pole 49, such as isolation, or the introduction of a system of work which would have allowed the work to be safely undertaken, for example, using a cherry picker. Finally, his Honour concluded that if work was not to be performed on Pole 49, the appellant's system had to address the use made of the work commit by supervisors and team leaders.

Grounds of Appeal

70 The appeal document lists 13 grounds of appeal. The parties' respective submissions have grouped together a number of the grounds. We propose to adopt a similar approach.

Grounds 1 and 2

71 The first two grounds raise an issue that his Honour proceeded on a wrong assumption that the relevant risk was that of electrocution as a result of the presence of feeder NS21 on Pole 49, which had not been isolated at the time of the accident. This risk was irrelevant, according to the appellant, because Mr Pedersen received his injuries solely as the result of falling. There was no evidence that Mr Pedersen received any injury as a result of the electric shock.

72 It is apparent from these submissions that the error sought to be identified by the appellant focused on Mr Pedersen's accident and not on the risk of injury. It is to that latter issue that the trial judge must direct attention in determining whether there has been a breach of s 8(1) of the 2000 Act. Offences under s 8(1), and other similarly worded provisions such as s 8(2), require proof of a causal nexus between the alleged failure to ensure safety and the resultant or consequent risk of injury, not actual injury: WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at [43]; O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 at [140]; South Sydney Junior Rugby League Club Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 at [42]; Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 at [37].

73 In the circumstances of this case the risk of electrocution was clearly present. The evidence suggested that Mr Pedersen, in the mistaken belief, shared by other members of the work team, that it was safe to work on Pole 49, proceeded to ascend it by the use of ladders in order to conduct pole top maintenance. Feeder NS21, however, which was a 2000-volt feeder on Pole 49, had not been isolated. Mr Pedersen was, therefore, at risk of being electrocuted at all times while he was on the pole. Moreover, medical records that formed part of the appeal books, and were before his Honour at first instance, confirmed that Mr Pedersen had suffered an electric shock as well as a spinal injury. Haylen J, in our view, properly identified the relevant risk to Mr Pedersen's safety as the risk of electrocution to which Mr Pedersen was exposed while he performed electrical work on Pole 49.

74 The respondent, in written submissions, contended that the risk of electrocution was foreseeable. This may or may not be so. We would however, reiterate, if further comment were needed in this regard, that the authorities to which we have earlier referred, emphasise that proof of the existence of a failure on the part of the employer is dependant upon the existence of a causal connection to the risk to safety. There is no requirement in this jurisdiction on a prosecutor to prove, as part of the causative facts, that the risk to safety was foreseeable: see for example, Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452.

Ground 3

75 The appellant also contended that the effective cause of the fall was Mr Pedersen's failure to secure his arrest harness, not the risk of electrocution. It was further contended that Mr Rogers' failure to supervise Mr Pedersen, by failing to ensure that Mr Pedersen properly used the full arrest harness when he ascended the pole, as well as Mr Pedersen's failure to secure the harness, were casual and isolated acts of carelessness over which the appellant had no control.

76 In our view, the appellant's submissions, again, focused incorrectly on the accident, and not on the relevant risk to safety. An enquiry into liability under s 8(1) of the 2000 Act is not concerned with whether, for example, a failure to properly secure the harness, which may or may not be attributed to the appellant, caused an accident or an actual injury. The issue of causation when considering an allegation under s 8(1) requires a prosecutor to establish beyond reasonable doubt that there was a relevant failure on the part of the employer which gave rise to a risk to the safety of a person at work.

77 Whether, therefore, the risk of injury was occasioned by a casual and isolated act of negligence by an employee, or a failure on the part of the employer, falls for assessment by reference to the relevant risk to safety, which in the present circumstances was the risk of electrocution. Haylen J found that there was a breakdown in the appellant's system of safety, as well as a failure to adequately enforce its instructions and training, both of which, his Honour found, were causally connected to the risk of electrocution while the overhaul work was being performed. His Honour rejected a proposition, advanced at first instance, that the risk to safety was caused by, or was the result of, isolated acts of negligence over which the appellant had no control. His Honour's reasons for rejecting the proposition were based on the findings made concerning the confusing and contradictory content of the work documents, in particular, and the fact that otherwise highly experienced workers had so fundamentally misunderstood the Special Instructions with regard to Pole 49. Subject to what we later say about Mr Rogers' role, we agree with the trial judge, although for somewhat different reasons, that the risk was not caused by "casual acts of negligence" of the members of the work team.

78 Haylen J also referred to a well-established proposition in the area of occupational health and safety prosecutions, which illustrates the extent and application of the statutory duty imposed on an employer under s 8(1) of the 2000 Act. According to that proposition, the statutory duty extends an employer's obligation to ensure the safety of the hasty, careless, inattentive, unreasonable, and even disobedient employee: see for example Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320; WorkCover v TRW [2001] NSWIRComm 52 at [13] - [14]; WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166 at [161].

79 His Honour found it unnecessary to apply this proposition to the facts before him, for the reasons to which we have earlier made reference. We perceive no error in his Honour's approach. The findings which were made in relation to the matters raised in ground 3 of the appeal were, in our view, open to his Honour to make based on the evidence at first instance and the legal principles which his Honour applied, all of which were relevant to the inquiry as to liability under s 8(1) of the 2000 Act.

Ground 4

80 In written submissions, the appellant asserted, without more, that his Honour failed to properly apply the principles in Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209; State Rail Authority (NSW) v Dawson (1990) 37 IR 110; and, WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2002) 123 IR 121. This ground was said to relate to the first three grounds of appeal. Further submissions on the issue were not forthcoming in oral hearing.

81 The authorities, however, do not assist the appellant insofar as they purport to relate to the first three grounds of appeal.

82 Collins was a decision that considered s 17(1) of the Occupational Health and Safety Act 1983. The provision has been substantially re-enacted in s 10(1) of the 2000 Act. At the time the decision in Collins was delivered, however, the statutory duty under the provision was qualified, that is, it was not then an absolute duty, subject only to the defence provisions under s 53 of the 1983 Act. Like s 10(1) of the 2000 Act, s 17(1) was directed to the class of persons exercising control of certain premises, plant or substance. Section 17(1)(a) in its earlier form required a prosecutor to prove that a defendant (who had control to any extent of premises) had failed to take such measures, "as it is reasonable for a person in its position to take", to ensure safety. The brief facts in Collins were that the defendant operated a rail repair plant which included a foundry. The foundry required some roofing work to be done and the defendant retained a company to carry out the work. While repairing the roof of the foundry building, one of the employees of the company was electrocuted after coming into contact with live electrical cables.

83 The defendant was charged with two offences. The particulars were directed to an alleged failure by the defendant to isolate the power to the foundry building; and, to the bare, non-insulated conditions of two clamps with which the accident victim had come into contact, and which had caused his death. There was evidence at first instance of a practice of binding the clamps with insulating tape. There was no evidence of a defective practice in this regard. The charges did not particularise a failure on the part of the defendant to institute and enforce regular inspection of the electrical mains. According to Street CJ (with whom Slattery CJ at CL and Yeldham J agreed), there was, however, "every indication", that the failure to isolate the power to the foundry building and the failure to tape over the clamps were due to, "casual failures" by employees of the defendant. It had, therefore, not been established that the defendant was guilty "of having failed to take such measures at it is reasonable for a person in the position of the Authority to take to ensure that the premises were safe" (at 217).

84 The findings in Collins included the absence of evidence of a defective practice on the part of the defendant in the context of the qualified duty under s 17(1). In contrast, the present circumstances concern evidence and findings made at first instance of an unsafe system in the context of an absolute and non-delegable duty to ensure safety.

85 SRA v Dawson dealt with an offence under s 15(1) of the 1983 Act which alleged a failure to provide a safe workplace to workers performing work on overhead powerlines. A worker had been electrocuted while adjusting a catenary wire which was live. On appeal, the Full Bench dealt exclusively with an allegation of a failure on the part of the appellant to supervise its workers. There was no issue in the decision that the appellant had otherwise laid down a safe system of work. The Full Bench concluded that there was ample supervision available through the foreman and at least two other qualified linesmen, but that the foreman had failed to adhere to the otherwise safe system laid down in clear terms by the appellant. Accordingly, the Full Bench found that the appellant had not done or omitted to do anything causally connected, "with the tragic accident." In this respect, we adopt the view of the majority judgment in Fletcher Constructions at [71].

86 The case presently under consideration in this appeal is distinguishable. As Haylen J found, and we substantially agree, there was a breakdown in the appellant's system, based on confusion and lack of understanding of the meaning and operation of the work documents, in particular the Special Instructions, on the part of otherwise very experienced and trained linesmen.

87 In Fletcher Constructions, the defendant had engaged a site manager as a qualified person to ensure safety at the work site. Having installed the site manager, it took no further steps to ensure that the site manager properly and competently discharged the duties with which he had been entrusted. The case is an authority for the now well-known proposition that an employer cannot discharge its duty under s 8(1) or s 8(2) (or the predecessor sections of the 1983 Act, namely s 15(1) and s 16(1)) by wholesale delegation of safety matters to a supervisor or manager (at [40] to [42]). In the judgment, Walton J Vice-President, with whom Wright J, President agreed, referred to some observations of the Full Bench in Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57. In Genner Constructions one of the issues for consideration was whether the risk to safety had occurred as the result of a casual act of negligence on the part of an employee in disregarding training. The relevant passage, from Genner Constructions, is extracted below:

[60] We also consider that it is properly open to conclude the inadequacy of the training received by Mr Ingram from the evidence of his actions on the day of the accident. It was contended by the appellant that the actions constituted an inadvertent or casual failure to observe the appellant's safe system of work and that Mr Ingram disregarded his many years of training. We do not consider that this view of the evidence is sustainable. Mr Genner gave evidence that Mr Ingram was a competent and diligent employee and that view was supported by another witness, Mr Currall, who had worked with Mr Ingram on a number of worksites. We consider it is not possible to infer that Mr Ingram simply disregarded the dangers created when he acquiesced in the alteration to the working arrangements. The rational conclusion from the evidence was that Mr Ingram did not fully envisage the risks created by altering the vehicle movements by reason of a failure to adequately train him in relation to the safe operation of the worksite.

88 By analogy to the present circumstances, there was no issue that Mr Rogers, as well as other members of the work team, were experienced linesmen. Nor did the evidence suggest that they deliberately disregarded the very serious danger confronting any member of the work team working on Pole 49. Rather, they did not know that Pole 49 had not been isolated. As we shall shortly discuss in more detail, the employees misconstrued the effect of the work documents, essentially because the appellant's information and instruction to employees was inadequate. Insofar as his Honour found to similar effect, those findings do not disclose error.

Grounds 5, 6 and 7

89 The appellant also raised further grounds of appeal in relation to Haylen J's findings concerning the confusion and lack of understanding on the part of the work team, as to the appellant's system of work. The appellant described as "overwhelming" the evidence that all the employees, in fact, knew and understood the purport of the Special Instructions, namely that they were not to work on Pole 49. The, "clear evidence", according to the appellant was that the WHVI and the work Permit, not the work commit, defined the work and the electrically safe working area, on the day of the accident. Further, contrary to his Honour's findings, there was no contradiction in Mr Rogers' evidence as to the two sets of documents. His Honour, according to the appellant, wrongly adopted a theory, which was never put to the witnesses, namely, that Mr Rogers was confused as to the priority of the Special Instructions in the WHVI, on the one hand, and the work commit, on the other, which caused Mr Rogers to overlook the Special Instructions, in favour of the work commit. The evidence, however, belied the theory. Mr Rogers, it was said, affirmed in his evidence that he knew the Special Instructions had priority over the work commit, but he had failed to "pick up" from the WHVI that work was to be carried out clear of Pole 49. In reliance on this latter contention, the appellant reproduced an extract of the cross-examination of Mr Rogers:

Q: And as part of your responsibilities as the group leader on 29 June 2004, was it incumbent upon you to have identified those special instructions?

A: Yes it would have been.

Q: Can you give a reason today why you disregarded special instructions and commenced to do pole top overhaul on pole 49?

A. I didn't disregard it as such, I thought that pole was totally isolated and I didn't pick up that the - to stay clear of the directions in the special notice, I didn't pick that up. And according to the WHVI that I read, I had total control of that pole.

90 The appellant also contended that there was no confusion about the existence of NS21, contrary to his Honour's finding. The identification of NS21 was not required, given that the employees were specifically instructed not to work on Pole 49. In any event, the employees were expressly instructed in the WHVI and the work Permit of the existence of another feeder in addition to 726, NL16 and NL21, on Pole 49. According to the appellant, Mr Ponos, for example, understood that another feeder existed, being NS21.

91 There was also, "a high probability" on the evidence, according to the appellant, that the work order in relation to Pole 49, which Mr Rogers had seen at some time between 16 and 29 June 2004, included an express identification of feeder NS21.

92 The appellant sought to emphasise that it had a clear, established and entirely understood system of work. This was exemplified, it was said, by its established means of communicating its instructions to employees as to when they should go near a joint use pole, which was recognised and understood by those employees.

93 We propose to address each of these issues in turn. Before doing so, we would note that many of the issues raised under these present grounds of appeal involve an element of repetition, having been raised to some extent in earlier grounds of appeal.

Standard of Proof and Causation

94 Because of the criminal nature of the offence, it is necessary that guilt be proven beyond reasonable doubt. In doing so, it is necessary to prove that the alleged failures on the part of the appellant caused the risk to the health and safety of employees to arise, the risk being that of electrocution while performing the overhaul work. That is, it is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the appellant and the consequent risk to the health, safety and welfare of its employees. It is not necessary to demonstrate a causal connection between the conduct of the appellant and the precise circumstances of the accident that gave rise to the prosecution: WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453; (1999) 101 IR 239 at 253. Further, it is not necessary to find that the act or omission of the appellant was the cause of the risk arising but rather the question is whether the appellant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way": The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 at [49]- [50]. See also Newcastle Wallsend Coal Company Pty Ltd v Stephen Finlay McMartin [2006] NSWIRComm 339; (2006) 159 IR 121 at [301].

95 There is no doubt on the evidence that each of the relevant employees understood that the Special Instructions meant that work was not to be performed on Pole 49. For example, there was the evidence of Mr Pedersen:

Q. And what are the other actions which are to be carried out?

A. "All work to be carried out clear of" and then it's got a variety of do you want me to read them out?

Q. No, it's okay, but when you say "all work to be carried out clear of", what's your understanding of that? To be carried out clear of what?

A. What is stated here, "1500 volt crossings between 39 to 39A". I can't read all of the rest, but what it says there.

Q. All right. If we go to the bottom, you see "RIC H/V joined to use pole 49".

A. Yeah.

Q. What does "RIC" mean to you?

A. Rail Infrastructure Corporation.

Q. What does "H/V" mean?

A. High voltage.

Q. What do the words "joined to pole 49" mean to you?

A. Somebody else is using that pole as well.

Q. When read under the heading "Special Instructions", what does that convey to you, Mr Pedersen, in terms of any instructions?

A. Should have kept clear of pole 49.

96 Examined further as to this evidence, Mr Pedersen’s evidence in chief was as follows:

Q. When you say “should have kept clear of pole 49”, can you be more specific in relation to what you meant by that?

A. Not to work on it.

Q. Not to work on it. And by “it” do you mean pole 49?

A. Yes.

97 The evidence of Mr Rogers, Mr Ponos, Mr Mortlock and Mr Crawford was to similar effect, except that Mr Ponos thought the Instruction meant that work was to be performed only on the top of the pole. We should note at this point, however, that Mr Buatava had quite a different understanding of what a joint use pole was, as we will later explain.

98 It was the Special Instructions and the Permit (which had stapled to it the Special Instructions) that defined the electrically safe working area on the day of the incident and not the work commit document. That is to say, the Special Instructions and Permit made it clear that work was not to be performed on Pole 49 and that the employees understood that is what these two documents said.

99 For instance, as Haylen J found at [133], Mr Rogers, who was the senior person on the four-person maintenance team and the leading hand directing the work on the day of the incident, readily accepted that the Permit was a control against the hazard of electrocution and that he understood the obligations under the Permit for those who signed that document and that he was to treat all other electrical equipment as alive and outside the electrically safe working area which included treating Pole 49 as alive. Mr Rogers also agreed that the Special Instructions attached to the Permit operated so that the electrically safe work area was between Poles 18 and 134 and within that area and that work within that area was, nevertheless, to be carried out clear of the equipment specified in the Special Instructions attached to the Permit. He accepted that the Special Instructions told him that the electrically safe area did not include Pole 49 and that he and the work team were to stay clear of Pole 49.

100 So was it open to the trial judge to conclude beyond reasonable doubt that the appellant created the risk to health and safety and that it was not caused by some isolated act of negligence on the part of any employee?

Absolute Duty to Ensure Safety

101 In answering this question it must be kept firmly in mind that under s 8(1) of the Occupational Health and Safety Act the employer has an absolute duty to ensure that employees are not exposed to risks to their health and safety: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359; SRA v Dawson at 120-121; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 156-157; Drake Personnel at 449-456; Newcastle Wallsend Coal Company v McMartin at [214]; Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123.

102 The statutory duty under the 2000 Act requires an employer to ensure the safety of even a careless or inattentive employee. The employer does that by being proactive and not merely reactive in ensuring safety in the workplace: WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257; WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85; Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15]; Fletcher Constructions at [43]; Workcover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [57]; WorkCover of Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 at [58]-[60]. The duty to be proactive is not confined to taking precautions only where there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen": Ferguson v Nelmac. As Hill J observed in Atco Controls at 85, "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace" (emphasis added).

103 It must also be recognised that the nature of the work performed by the employees of the appellant involved the potential for deadly risks to arise in the form of electrocution if the employees were to come into contact with high voltage electricity cables or wires. In such dangerous circumstances, it was of the utmost importance for the appellant to be constantly diligent in searching out and eliminating the possible areas of risk. This includes finding the slightest potential in a system of work whereby employees might become lax through routine and over-familiarity with the work and ensuring that information and instruction, even though it may be clear on its face, is not reasonably capable of being disobeyed or misunderstood when it comes to implementing the information or instruction.

104 Having those considerations in mind, our assessment of the evidence is that the risk was created by failures on the part of the appellant and to a lesser degree, carelessness or inattention on the part of Mr Rogers. The critical failure by the appellant was that the inadequacy of its system of work left scope for its employees on 29 June 2004 to have a proper basis to believe it was safe to work on Pole 49, despite an apparent instruction to the contrary.

Mr Buatava

105 Mr Buatava was the acting team manager on 29 June 2004. He entered an isolation request on 21 June 2004 into the computer system seeking the isolation of feeders 726, NL16 and NL21 from Epping substation to Hornsby substation. This was done by filling in an isolation request form. Mr Buatava did not seek isolation of NS21 because he was not aware of its existence. Mr Buatava also did not enter the Special Instructions on the form generated by the computer because another person had entered these instructions at an earlier time. The Special Instructions stated, inter alia, that all work was to be carried out clear of "RIC HV JOINT USE POLE 49". The form made no mention of NS21. Mr Buatava said he would have expected to be told about any other feeder on Pole 49 that may have been present in addition to 726 and NL16. Mr Buatava understood "joint use" to mean, wrongly, that Pole 49 had two feeders on it, the 33kv feeder (726) and the 2kv feeder (NL16).

106 At [145]-[146] Haylen J considered the evidence about whether any one had indicated to Mr Pedersen that work could commence on Pole 49:

[145] Mr Mortlock's evidence was that, when he arrived, he saw the ladder against Pole 49 and noticed Mr Pedersen putting on his harness. Mr Mortlock had proposed to put on his harness to commence work on Pole 49 but, because Mr Rogers told him Mr Pedersen would be climbing the pole and performing the work, Mr Mortlock removed his harness and put it back on the truck. As he was doing so, he heard Mr Pedersen scream and hit the ground. He was at that point some 20 to 30 metres from the pole and not footing the ladder as Mr Rogers said. When he heard Mr Pedersen scream, he saw Mr Rogers close to the pole observing Mr Pedersen, although Mr Rogers's evidence was that he was at his truck speaking to Mr Buatava. Mr Buatava's evidence was that at the time he was in his car leaving the site when Mr Pedersen fell but just prior to that he had a discussion with Mr Rogers. Mr Pedersen thought that Mr Rogers had directed him to climb Pole 49, although he did not completely recall what had occurred but he remembered being told that the line had proved isolated and that it was "alright" to go up Pole 49. He had asked Mr Rogers if he was to work on Pole 49 which Mr Rogers confirmed - work was to be undertaken on Pole 49 although Mr Pedersen could not recall anything else being said by Mr Rogers about Pole 49.Mr Pedersen had been told by either Mr Buatava or Mr Rogers that the isolation was effective, then Mr Buatava told him that work could commence up the pole. He had been told this before he began to put on his harness and before he had spoken to Mr Rogers. In the conversation with Mr Buatava, he thought Mr Buatava was referring to all the poles being isolated. Mr Buatava, having informed him that the lines were isolated, then said it was "all right" to begin work. Mr Pederson thought that Mr Buatava, Mr Rogers and Mr Mortlock were present as he climbed the pole and that he spoke to Mr Rogers.

[146] Importantly, Mr Mortlock's evidence was not challenged and, given the imperfection of Mr Pederson's memory of the entire incident, nevertheless, his account has some elements of consistency with Mr Mortlock's version of what occurred. On the evidence, I am satisfied that, whatever the precise terms used, Mr Rogers and Mr Buatava gave an indication to Mr Pedersen that work could commence on Pole 49, a pole that was designated in the Commit document as one requiring overhaul work (our emphasis).

107 As the trial judge noted at [89], Mr Buatava was the holder of the WHVI. On the morning of the incident he was required to make sure that the earthing and the switching was carried out. He carried out earthing at a particular pole with Mr Mortlock after having been informed by the electrical systems operator to go ahead and test the line and apply the safety earths on Pole 48 and Pole 51. After receiving the call that the line was isolated, it was tested and the safety was applied on two poles, 48 and 51. Mr Buatava relayed the message to Mr Rogers that he could go ahead to test and supply the safety at those poles. After passing that information to Mr Rogers, he called back and advised that he tested the line and Mr Buatava would relay that message to the electrical systems operators. Mr Buatava then drove Mr Mortlock to Pole 49.

108 Given Mr Buatava's mistaken understanding of what a "joint use" pole was and the absence of any knowledge on his part about the existence of the NS21 feeder on Pole 49, Mr Buatava obviously believed Pole 49 was safe to work on and he indicated that to Mr Rogers and Mr Pedersen. In our opinion, that advice from Mr Buatava to Mr Pedersen and Mr Rogers had a critical influence on their state of mind regarding the condition of Pole 49.

109 Whilst the Special Instruction advised that work was not to be carried out on Pole 49, it gave no reason that Mr Buatava understood as to why this was to be so. Mr Buatava obviously believed that if the two feeders - 726 and NL16 - had been rendered safe there was no reason why work could not be undertaken on Pole 49. If the Special Instruction had indicated the presence of NS21 on Pole 49 Mr Buatava would undoubtedly either have sought its isolation or understood why Pole 49 was not to be worked on. To that extent the appellant's information and instruction to employees was inadequate.

Mr Rogers

110 Mr Rogers was directly responsible for the work to be carried out by his team on 29 June 2004. He had seen, and was familiar with, the Special Instruction and the Permit. He understood completely that the Special Instruction and the Permit (with the stapled attachment) meant that any work was to be carried out clear of Pole 49 because it was not within the prescribed electrically safe work area on the day and any electrical equipment not within that area was to be treated as live.

111 Mr Rogers' evidence was unsatisfactory in that it was difficult to ascertain just what his state of mind was at critical times on 29 June 2004. As the trial judge noted at [133], Mr Rogers was asked to state what the Special Instruction meant to him. He said it was a joint use pole like ones that were in joint use between the appellant and Energy Australia. When asked what importance he attached to those words, he said that he did not attach any importance to them. But as his Honour noted, despite that answer, in cross-examination Mr Rogers readily accepted that the Permit was a control against the hazard of electrocution and that he understood the obligations under the Permit for those who signed that document and that he was to treat all other electrical equipment as alive and outside the electrically safe working area which included treating Pole 49 as alive.

112 Why did Mr Rogers not observe the Special Instruction and the Permit? There were a number of reasons. First, he was either careless, but not deliberately so, or inattentive. The import of these two critical documents did not register with Mr Rogers on 29 June 2004. In his words, he "didn't pick it up", he "didn't sort of absorb", that the Special Instructions required him to stay clear of Pole 49. Secondly, the work commit document, in Mr Rogers' mind, contained nothing to indicate that he should not allow work to be carried out on Pole 49. Indeed, according to Mr Rogers the work commit required that maintenance be undertaken on Pole 49, although it did not necessarily have to be done on 29 June 2004. Thirdly, Mr Rogers gave evidence that one of the two reasons why he considered it safe to work on Pole 49 was Mr Buatava's instruction that "they had clearance from Electrical Trouble that the isolation has been carried out and for us to go ahead and prove dead and if proved dead, apply our earth." The second of his reasons was his understanding of the WHVI (whatever that may have meant). Fourthly, Mr Rogers was not aware of the existence of NS21 on Pole 49. He thought the cable that was, in fact, the NS21 feeder running up Pole 49, was part of NL16. Fifthly, Mr Rogers expected to be specifically advised of any additional feeder on Pole 49 by the attachment of a plate to that effect on the Pole (in the same way as it had been done in respect of 726 and NL16), but was not so advised. As to this last matter, however, there was no evidence that Mr Rogers or any other member of the maintenance team checked the Pole to ascertain whether there were any plates identifying the feeders on it.

113 Whilst we consider Mr Rogers' carelessness or inattention contributed to the risk to health and safety, it is beyond reasonable doubt that the appellant's failures were a substantial cause. That is to say, Mr Rogers' failure to assimilate the Special Instruction about staying clear of Pole 49 may not be regarded as a novus actus interveniens breaking the chain of causation connecting the appellant's failures to the risk. In our opinion, the risk would have been avoided if the appellant had taken the step of making it known that Pole 49 had on it feeder NS21. That is, given the risk to safety there should have been no room whatsoever for any misapprehension to arise or error to occur due to inattention to, or misunderstanding of, instructions. This is more the case given there was a risk of death from electrocution or serious injury. The avoidance of risk could have been achieved by the appellant specifying in direct and unambiguous terms on the WHVI that Pole 49 was a joint use pole that carried feeder NS21 in addition to the other feeders. Mr Buatava could not then have mistaken the import of the term "joint use" pole and undoubtedly he would not have advised Mr Rogers and his team that it was safe to work on Pole 49. It follows that Mr Rogers' lapse in not picking up the Special Instruction would not have occurred.

114 The Special Instruction that Pole 49 was a joint use pole and, therefore, work was to be carried out clear of the Pole, without any specific reference to the feeder that made it a joint use pole, did not convey to the maintenance team the necessary sense of prohibition. Notwithstanding the Special Instruction, each of them (with the possible exception of Mr Ponos) considered it was safe to work on the Pole; in the minds of the maintenance team, the Special Instruction and Permit were not sufficiently informative about the existence of a live feeder - NS21 - to overcome, amongst other factors likely to have influenced them, their acceptance of the advice emanating from Mr Buatava that Pole 49 was safe to work on.

Mr Pedersen

115 Mr Pedersen was a linesman, and an experienced one at that. Mr Pedersen filled out the Permit based on the WHVI and in doing so stated that "It is safe to carry out work between poles 18 and 134 on 726 feeder, NL16 feeder and NL21 feeder." The Permit, itself, did not indicate that Pole 49 was to be treated as an exception. However, it is safe to assume that Mr Pedersen stapled Special Instructions to the Permit in the same terms as those appearing on the WHVI. We note that Mr Pedersen "didn't do permits very often", which may have been a contributing factor to why it was that Mr Pedersen came to work on Pole 49 in contravention of the Special Instruction.

116 Mr Pedersen's memory had been affected by what happened to him on 29 June 2004 and he could not recall aspects of what occurred. But in any event, Mr Pedersen was not asked to explain in his evidence why it was that he did not act on the Special Instruction that work was to be carried out clear of Pole 49. This was notwithstanding that Mr Pedersen understood what the Special Instruction meant, including what was meant by "joint use" pole. It is, therefore, impossible to say why Mr Pedersen disregarded the Special Instruction. But obviously, by his preparedness to climb Pole 49 on 29 June 2004, Mr Pedersen believed that it was safe to do so.

117 For example, it is not known with a proper degree of certainty, whether the failure to follow the Special Instruction resulted from the influence of other factors, perhaps one of them being an unquestioning reliance on Mr Buatava's instruction to the effect that Pole 49 was safe to work on; that instruction not having been contradicted by Mr Rogers as the team was gathered at the base of Pole 49 on 29 June 2004.

118 Whatever led Mr Pedersen to believe that it was safe to work on Pole 49, and thereby become exposed to a serious risk to his health and safety, there is no doubt the appellant's failure to provide adequate information and instruction on the WHVI, or by some other means, about the existence of NS21 and what was required to make it safe, meant that the appellant did not ensure the safety of its employees. If specific information about the existence of NS21 had been provided, it is unimaginable that proper steps would not have been taken to de-energise it in relation to Pole 49 in the same way as action was taken to de-energise feeders 726 and NL16.

Mr Ponos

119 Mr Ponos was an acting linesman general as at 29 June 2004. Mr Ponos conducted the pre-work briefing, a briefing he had not previously undertaken in his nine years with the appellant. The purpose of the briefing was to identify any hazards with the job the maintenance team was to perform and how to control such hazards. Mr Ponos carried out the briefing knowing that the team was to work on high voltage equipment, but what seems to us to be an extraordinary omission, he had no other documents available to him in undertaking the briefing. After carrying out the pre-work briefing on 29 June 2004, Mr Ponos read the WHVI, signed the Permit at Pole 49 then proceeded to earth and test dead at Pole 51. He then undertook pole top maintenance on that Pole using a cherry picker and headed back to Pole 49. As he approached Pole 49 he was advised that Mr Pedersen had fallen.

120 Mr Ponos understood, mistakenly, that the Special Instruction relating to joint use Pole 49 meant that a person was to carry out work only on the "top part of the pole". Mr Ponos understood that "joint use" meant that there could be a different feeder on Pole 49, different to 726 and NL16. He said, however, that if there was a different feeder he expected there to be "labelling".

121 We do not know whether Mr Ponos, because of his understanding of the WHVI, would have, nevertheless, been prepared to work on Pole 49, as was Mr Pedersen. Whilst we note what the trial judge said at [138] that Mr Ponos would have worked on Pole 49 if directed to do so by Mr Rogers, we think that is putting what Mr Ponos said too highly. Mr Ponos said it was his practice to work on poles identified by Mr Rogers and it was not his practice to decide for himself which poles to work on.

122 If Mr Ponos had been present when Mr Buatava indicated it was safe to work on Pole 49, we also do not know whether Mr Ponos would have expressed opposition to any person working on the Pole because of his understanding of the WHVI. This was for the reason that Mr Ponos was not present in the vicinity of Pole 49 at the relevant time. We do know, however, that Mr Ponos had a mistaken view about what the Special Instruction meant and that he would have expected Pole 49 to be labelled so as to identify any joint use feeder.

123 We do not consider that the evidence of Mr Ponos assists the appellant. In particular, Mr Ponos' evidence shows a degree of misunderstanding about what the Special Instruction meant, which only reinforces the correctness of the trial judge's finding that the particular alleging inadequate information and instruction was made out. Further, it does not assist the appellant's case that the risk arose because of an isolated act of negligence on the part of the employees because it is not known whether Mr Ponos would have complied with the Special Instruction or not.

124 Whilst Mr Ponos' evidence does not assist the appellant, it also is of no assistance in determining whether Mr Ponos misapprehended the significance of the Special Instruction. Given Mr Ponos' understanding of the WHVI was never tested it could not be concluded with any certainty whether he would have acted upon that understanding or whether his state of mind regarding the instruction was the same as that of Mr Pedersen. In other words, when one considers the evidence of Mr Pedersen, he agreed in his evidence that he understood the WHVI as meaning work was to be carried out clear of Pole 49. But for some reason that was never explored, he climbed Pole 49. What is to say the same factors influencing Mr Pedersen to take the course he did might not have also influenced Mr Ponos to act in contravention of the Special Instruction? We simply do not know. With the exception of his incorrect understanding of a joint use pole, Mr Ponos' evidence is of no further assistance in determining whether the appellant failed to provide adequate information and instruction in the documents used in the isolation procedure.

Mr Mortlock

125 Mr Mortlock was an apprentice linesman. He signed the Permit. On 29 June 2004, Mr Mortlock applied the earths in company with Mr Buatava and then proceeded with Mr Buatava to Pole 49. Mr Mortlock said it was his intention to undertake the pole top maintenance on Pole 49 but was told by Mr Rogers that Mr Pedersen would be doing that work. Mr Mortlock understood the Special Instruction relating to Pole 49 on the WHVI to mean, "you shouldn't do that pole".

126 Notwithstanding that Mr Mortlock understood the Special Instruction to mean that he should not work on Pole 49, he was preparing to do so and the only reason he did not was because Mr Rogers told him that Mr Pedersen would be doing the work. Mr Mortlock said that when he got out of the vehicle upon arriving at Pole 49 with Mr Buatava it was his intention to put on his harness and commence work. He would not have intended to put on his harness unless he was going to ascend a ladder on Pole 49.

127 Mr Mortlock's evidence is of no assistance to the appellant. Indeed, it demonstrates that yet another member of the maintenance team, despite having cited the WHVI, was prepared to work on Pole 49. Most likely, Mr Mortlock's state of mind about Pole 49 being safe to work on was brought about by the wording of the Permit that he signed, which stated that "It is safe to carry out work between poles 18 to 134 on 726 feeder, NL16 feeder and NL21 feeder" and the fact that in company with Mr Buatava he applied the earths to poles 48 and 51 thereby believing Pole 49 was safe. However, it is apparent that the Special Instruction regarding Pole 49 did not register in Mr Mortlock's mind as constituting a prohibition against carrying out work on that Pole.

Cause of Risk

128 The root cause of the risk to the health and safety of Messrs Pedersen, Rogers, Ponos and Mortlock on 29 June 2004 was that under its system of work the appellant failed to ensure adequate information and instruction was provided to its employees in relation to the documents used in the isolation procedure so that employees knew how to perform the undertaking safely. The appellant issued an instruction that relevant work was to be carried out clear of "RIC H/V JOINT USE POLE 49". The instruction did not make any specific reference to the existence of NS21 on Pole 49. Mr Buatava, who was the holder of the WHVI on 29 June 2004, understood a joint use pole to be one carrying two feeders, which he thought were 726 and NL16. He did not know, or did not understand, that a joint use pole was a pole that had on it another feeder or feeders that had not been isolated. Mr Buatava undertook the necessary steps to ensure that 726 feeder and NL16 feeder were isolated. The evidence strongly supports the conclusion that Mr Buatava, unaware of the existence of NS21, assumed Pole 49 was safe to work on and gave that indication to Mr Rogers and Mr Pedersen.

129 To the extent that the appellant's system of work allowed scope for persons in a supervisory position to misunderstand a Special Instruction relating to inherently dangerous high voltage work and to allow Mr Pedersen to ascend Pole 49, the system was inadequate. If Mr Buatava had been specifically informed or instructed about the existence of NS21 on Pole 49 he would have understood the need to isolate that feeder or, alternatively, would have understood that work was to be carried out clear of Pole 49. He would not then have indicated to Mr Rogers and Mr Pedersen that Pole 49 was safe to work on.

130 Mr Rogers was either careless or gave insufficient attention to the Special Instruction. He should have picked up the instruction that work was to be carried out clear of Pole 49, but his carelessness or inadvertence, coupled with the other factors we identified earlier, including the advice he received from Mr Buatava that it was safe to work on Pole 49, caused him to miss the significance of the Special Instruction.

131 That carelessness or inadvertence, however, was not the principal cause of the risk; it was secondary to the appellant's system of work and its failure to provide adequate information and instruction about the existence of NS21 on Pole 49, its failure to provide adequate supervision, its failure to ensure its employees received an adequate pre-work safety briefing and its failure to de-energise feeder "NS21" on Pole 49 prior to the commencement of the undertaking on Pole 49. We have found it unnecessary in this matter to decide whether the appellant may be liable notwithstanding the carelessness or inadvertence of an employee.

132 Central to the trial judge's findings regarding the appellant's guilt was that there was a vital contradiction between the WHVI and the work commit document that led, in part, Mr Rogers to believe that work could safely be carried out on Pole 49 and, further, that a lack of clarity and the resultant confusion arising within the defendant's system of work was also evident in other areas.

133 We have obviously placed much less importance on the work commit document and its role in giving rise to confusion and misunderstanding than his Honour did and we have been led to our conclusions by a number of different considerations to those which exercised the trial judge's mind. Nevertheless, there is a considerable overlap between the factors that influenced our consideration and those that influenced his Honour and we agree with his Honour's ultimate findings regarding the appellant's failures to ensure the health and safety of its employees.

134 One further matter which we should briefly address, in relation to these present grounds of appeal, concerns the appellant's contention that Haylen J erred in his approach to the evidence given by witnesses, in-chief, and in cross-examination, which, according to his Honour, exposed a number of contradictions in their answers. According to the appellant any suggestion that the witnesses were, "less likely to give reliable evidence", under cross-examination, because they were employees of the appellant, is not available because there was no evidence that the witnesses were employed by the appellant at the time they gave their evidence. Secondly, much of their evidence, upon which the appellant has placed reliance, was consistent with, and confirmed by, their evidence-in-chief or in-reply.

135 This contention may be shortly dealt with. First, his Honour's observation as to the perceived contradictions, in evidence given in-chief and under cross-examination, was confined to the evidence of Mr Rogers. Secondly, although we agree that there was no direct evidence as to the status of Mr Rogers' employment at the time he gave his evidence, his Honour's assumption that Mr Rogers remained an employee of the appellant was, at its highest, an error of fact. It did not form the basis of a suggestion by his Honour that the evidence of Mr Rogers was unreliable. His Honour did not regard the evidence of Mr Rogers given in cross-examination, as unreliable. Rather, his Honour formed the view that Mr Rogers' evidence under cross-examination should be treated with "some caution". This was because of the perceived contradictions in his evidence in-chief and in cross-examination, and the fact that his Honour was of the belief that Mr Rogers remained in the appellant's employ. Thirdly, the evidence which the appellant contended was consistent, and confirmed by the same witnesses in-chief and in reply, has not been specified by it. The appellant's contention, therefore, does not further advance the matter.

Grounds 8, 9 and 10

136 The appellant also contended that Haylen J erred in concluding that there was a failure in its system to adequately enforce its instructions, and in finding that there was a causal connection between that failure and Mr Pedersen's fall.

137 With regard to the latter issue, we would observe that it does not accord with any finding made by his Honour. We have earlier stated that in order to prove an allegation of failure on the part of an employer under s 8(1) of the 2000 Act, a causal link must be established between that failure, and the relevant risk to safety. His Honour expressly found that the failure of the appellant to adequately enforce its instructions (and training), in order to enforce the safety of the members of the work team performing overhead maintenance at Beecroft station, was causally connected to the presence of a risk of electrocution.

138 The primary basis upon which his Honour made this finding was that the members of the work team were so ill-informed about the full effect of the Special Instructions, and what to do in relation to the work, that this led to a breakdown in the appellant's system of safety in the workplace. His Honour did not go so far as to find that the appellant's system was a mere "paper system" which had not been enforced. His Honour did find, however, that the evidence revealed that very experienced and trained linesmen lacked a full understanding of, and were confused by, the meaning and operation of the work documents. Although his Honour accepted that the workers had received training and re-certification, principally in the area of electrical instruction, his Honour found that there was, on the evidence, no detail of the training provided by the appellant in relation to the use of the work documents and the particular role of the Special Instructions. His Honour's consideration of the various allegations of failure set out in the charge focused, correctly in our view, on the actual system of work undertaken by the work team on 29 June 2004. That system involved the use of the work documents by the members of the team.

139 The evidence demonstrated that members of the work team had misunderstood the meaning and operation of the work documents. Some of the information contained in the work documents gave rise to ambiguities. The work commit, for example, authorised work to be undertaken on Pole 49. The reference to feeder 726, according to Mr Constantinou, did not suggest that there was only one feeder on the pole. The convention was that only the top pole was nominated in that document, and feeder 726 was the top feeder on Pole 49. The nominated date of 30 June 2004 in the work commit was not necessarily an indication as to when the work on Pole 49 could be undertaken. Other evidence confirmed that the workers had a discretion to work on Pole 49 at any time between 29 June 2004 until 1 July 2004. The Special Instructions, on the other hand, required work to be carried out, "clear of RIC H/V joint use pole 49." The term, "joint use", however, meant different things to different members of the work team. Mr Pedersen, by reason of his entry in the work permit, was of the view that it was safe to work on nominated feeders on all poles between numbers 18 to 134. Since none of the members of the work team were aware of another feeder on Pole 49, (because they were not told), it may be assumed for the reasons we have explained that Mr Pedersen believed that it was safe to work on Pole 49. The fact that he did commence work on Pole 49 confirmed this belief. The only rational inference that may be drawn from this evidence, was that the appellant had failed to provide adequate instructions in relation to both the meaning and operation of the work documents, and that this failure exposed Mr Pedersen, in particular, to a risk of electrocution.

140 His Honour's reasons in relation to the issue of the adequacy of the appellant's instructions regarding the system of work under which the members of the team operated on 29 June 2004, included the following observation (at [137]):

[137] . . . Although I am unable to accept the prosecutor's submission that the defendant's system was no more than a paper system (having regard to the yearly re-training and re-certification in particular), nevertheless, there was no evidence of the system used by the defendant to enforce that training and re-certification in the field and to obtain compliance with its safety instructions in the field by use of spot checks, periodic safety audits or similar inspections.

141 It may be observed, in relation to the passage, that his Honour's remarks specifically referred to the absence of training. Although in other parts of the judgment his Honour appears to have used the term interchangeably with, "instructions", the charge contained no allegation of a failure in relation to training. In our view, nothing turns on this. His Honour's remarks were, at best, incidental to the primary finding that there was a failure to provide adequate instructions which in turn caused a breakdown in the appellant's system as regards the work documents used by the members of the work team at Beecroft station on 29 June 2004.

Grounds 12, 13

142 The appellant also submitted that the trial judge erred in his findings concerning the defence under s 28(b) of the 2000 Act. The submission is essentially put on two bases. First, the appellant contended that his Honour adopted an erroneous approach when remarking that an appellant cannot discharge its onus under s 28(b) by relying on evidence adduced by the prosecutor in the proceedings. Instead, the appellant was entitled to rely on evidence led by the prosecutor to make out its defence under the provision.

143 In advancing this particular contention the appellant relied on his Honour's conclusions on the point set out in the following extract from paragraph 152 of the judgment:

[152] . . . No attempt was made to bring forward evidence as to the impracticability of taking any further steps or to examine the circumstances of the work to demonstrate the defendant's inability to control the actions taken and the risks exposed by the accident involving Mr Pedersen.

144 While it is true that a defendant may rely on evidence adduced during the prosecution case, including the responses of prosecution witnesses during cross-examination, it should be emphasised that the onus under s 28(b) is nonetheless, a "substantial" one: Sydney County Council v Coulson (1987) 21 IR 477 at 480. In that judgment, the Full Bench considered a submission, put on behalf of the appellant, that its supervising employees had been negligent in following council rules regarding safety procedures. It was said to be not practicable for an employer to protect itself from acts of this nature by employees; and, that the appellant had no control over the deliberate wilful acts of disobedience of employees, or their casual negligence. In rejecting the submission, the Full Bench observed that it was far from clear, on the evidence, whether "the accident" was caused by a departure from an otherwise properly instituted system, or by an unexplained act for which the appellant may have been, "vicariously liable". There was, in short, no direct evidence as to what was done or not done (at 479, 480).

145 In our view, Haylen J's conclusions in the passage extracted above simply reflected the orthodox approach to a consideration of whether a defendant had discharged the onus under s 28(b). His Honour found that the evidence relied upon by the appellant was not sufficient to discharge its onus, under the section. That this was his Honour's approach is more clearly revealed in his remaining conclusions on the issue, where his Honour also said:

[152] Although witnesses were cross-examined as to the fact and some aspects of their training, the scope and content of that training as relevant to this maintenance work was not in evidence. The defendant's submissions spoke of the "critical working documents" but there was no evidence of direct instruction and/or training as to how the work commit document was to be used and its relationship with the Instruction and the Permit. The conduct of the defendant's case suggested that the use of the commit document by foremen, team leaders and group leaders was unknown to it although the term was known within the workforce, even at the level of Mr Costantinou. The evidence showed confusion in the terms used to describe some of the critical documents: Mr Crawford referred to the isolation request as a works order although Mr Costantinou produced a very different document as largely reflecting what was in a works order.

[153] Some steps were taken by the defendant in response to the improvement notices issued by WorkCover inspectors. Importantly, additional identifying and warning plates were attached to the pole drawing attention to the presence of cable NS21 and the isolation steps necessary before ascending the pole. There was, however, an almost total lack of evidence (apart from yearly re-training and re-certification, even then without detail) of the system by which the defendant's work rules were enforced in the workplace - spot checks, audits, inspections or similar steps - to ensure that the safety system was, in fact, implemented.

[154] There was no precision in the defendant's case as to what it was unable to control. Is it suggested that it could not control random acts of carelessness or negligence and, if so, there has to be evidence of carelessness or negligence. In the present case, members of the work team thought they were applying the rules of safety, and believed that work was required on Pole 49. If work was to be performed on Pole 49, the system operated to isolate that pole. It was not suggested in evidence that maintenance work was never to be carried out on Pole 49: if maintenance was required, either Pole 49 was to be isolated, or a system of work introduced to allow that work to be carried out clear of the live cable, perhaps from a cherry picker as suggested by Mr Lawson. Either way, there were measures available to the defendant to safely perform the work. Contrary to the theme of the defendant's submissions, where an employee contributes to the presence of a risk to safety, that circumstance alone does not mean that there were no failures by the defendant.

[155] In relation to both aspects of the defence under s 28(b), there was nothing odd or unusual about the way the work was performed: the task of pole maintenance involved climbing or being placed by cherry picker near the pole in order to conduct the task. This is what occurred at Pole 49. The pole could have been isolated (there is no evidence to the contrary) and it was not isolated. If Pole 49 was not to be work upon, the system had to address the use made of the work commit document by supervisors and team members. There were steps available to the defendant to address these issues. On any analysis, the defendant has failed to discharge its onus to make out a defence under s 28(b) of the Act.

146 Secondly, the appellant contended that it was clear from the evidence led during the prosecution case, that it was, "impractical" for it to take any further steps of the types identified by his Honour in the passages extracted immediately above. According to the appellant the steps taken by it, in relation to training and re-certification, were sufficient to successfully establish a defence under s 28(b). Its system in place on 29 June 2004 was in place to ensure that its employees did not, on that day, perform work on Pole 49. The fact that work was performed was, therefore, due to the unforeseeable, careless and inadvertent acts of the employees, who were experienced and possessed of the requisite knowledge and information that would have enabled them to know that they were not permitted to work on Pole 49.

147 Genner Constructions was another authority where a similar submission was advanced in support of proving the elements of a defence under s 53(b) of the 1983 Act (the pre-cursor section to s 28(b) of the 2000 Act). In that case the appellant contended that the relevant risk to safety resulted from the casual acts of negligence on the part of the employees. The submission was rejected by the Full Bench on the basis that having regard to the inadequacy of training provided to the employees it was not possible to conclude that the risks to safety were caused solely by the failure of the subject employees to observe the appellant's ordinary procedures. The Full Bench also said, in relation to the issue:

[68] . . . The Act obliges employers not merely to establish safety procedures but also to ensure those procedures are sufficiently promulgated to its workers who are themselves adequately trained in their implementation. In light of the findings made in relation to the inadequacy of the training and instruction afforded by the appellant, we are not satisfied the appellant demonstrated on the probabilities, that it was not reasonably practicable to make provision for more detailed and thorough training and instruction for those working on its worksites. The s 53 defence must fail.

148 The Full Bench in St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (2007) 162 IR 241 (at [50]) identified the elements of a defence under s 28(b) which the appellant was required to prove on the balance of probabilities. They are:

(a) the commission of the offence;

(b) was due to causes over which the person [against whom proceedings have been brought] had no control; and

(c) against the happening of which it was impracticable to make provision.

149 For convenience s 28(b) is set out below:

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

. . .

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

150 In St Hilliers Contracting, various terms were considered and defined. The expression, "the commission of the offence", was said to mean nothing more than an occurrence of a breach of the relevant provision. In other words, that an offence has been committed. The second element, according to the Full Bench, required a consideration of the causes said to be outside the control of the person who committed the offence. An assessment was also required as to whether the person against whom the charge had been brought had control over those causes. If the causes were found to be outside that person's control then the remaining question was whether it was impracticable for the person to have made provision for those causes not to have occurred. The "happening of which" as used in s 28(b) related to the causes of the commission of the offence, not just to the expression "commission of the offence". The word "impracticable" required consideration of the surrounding circumstances of a particular case, and assessing whether it was, "feasible" or "practical" in those circumstances, to have taken further action to avert the occurrence of the causes of the commission of the offence. Finally, "impracticable", according to the Full Bench, imposed a higher standard than "reasonably practicable". It was not to be judged by reference to an objective reasonableness notion, but rather whether in the circumstances of the particular case it was feasible or practical to have done more (at [58] to [67]).

151 By applying this analysis of s 28(b) to the present circumstances, it is reasonably clear to us that his Honour's approach to the defence provision does not disclose error. The gravamen of the offence under s 8(1) was the appellant's failure to ensure that its system of work, to be adhered to by the members of the work team on 29 June 2004 at Beecroft station, was safe. The system entailed the use of the work documents. His Honour found that that system broke down because of the appellant's failure to adequately enforce its instructions, in particular, with regard to the meaning and operation of the work documents. The cause of the commission of the offence was, therefore, the appellant's failure as identified. His Honour rejected the appellant's submission that the cause was the casual act, or acts, of negligence on the part of members of the work team. For the reasons we have earlier outlined, his Honour was essentially correct in so doing. For those same reasons, in the context of the defence provision, the resultant risk to safety did not arise because of any casual act of negligence by either Mr Rogers or Mr Pedersen, or anyone else. Instead, the members of the work team were under the mistaken belief that Pole 49 had been isolated and was safe to work on. This belief had its origins in the ambiguous and internally inconsistent information contained in the work documents and the misunderstanding that caused, particularly by Mr Buatava.

152 As his Honour observed, there was evidence that measures were available to the appellant to ensure that work could be safely performed. Pole 49, for example, could have been isolated. There was no evidence to the contrary. Given these findings it was unnecessary for his Honour to consider whether it was impracticable for the appellant to have taken further action to avert the cause or causes of the commission of the offence. His Honour noted, in this regard, that no attempt had been made by the appellant to adduce evidence as to the impracticability of taking further steps in order to demonstrate its inability to have taken further action to avert the occurrence of the causes of the commission of the offence.

153 For the reasons expressed above the appeal must fail. We order accordingly:

1. The appeal is dismissed.

2. The respondent shall file any written submissions on costs within 14 days of the date of this judgment. The appellant has a further 14 days to file submissions on costs and unless either party applies to be heard on costs, the Full Bench will determine any issues on the papers.

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LAST UPDATED:
16 September 2008