Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Christensen v Abigroup Contractors Pty Limited and Anor [2013] NSWIRComm 111
• Hearing dates: 15 to 18, 22, 23, 29 and 30 April 2013
• Decision date: 20 December 2013
• Before: Walton J, Vice-President

Decision

(1) In Matter No IRC 278 of 2011, the Court finds the defendant, Abigroup Contractors Pty Ltd, not guilty of the offence as charged. The charge is dismissed;

(2) In Matter No IRC 279 of 2011, the charge against the defendant, Abigroup Contractors Pty Ltd, has been proven with respect to particular (b). A defendant will be found guilty if only one of the particulars of a charge is made out: Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 316; (1997) 98 A Crim R 481 at 485 per Gleeson CJ (Ireland and Bruce JJ agreeing) applied in O'Sullivan at [93]. Accordingly, the Court finds Abigroup Contractors Pty Ltd guilty of an offence under s 8(2) of the Act;

(3) In Matter No IRC 285 of 2011, the Court finds the defendant, GTE Workplace Management Pty Ltd, not guilty of the offence as charged. The charge is dismissed;

(4) Matter No IRC 279 of 2011 will be listed for sentencing at 10am on 4 March 2014;

(5) The question of costs is reserved until judgment is delivered on sentence in Matter No IRC 279 of 2011;

(6) There is liberty to apply upon the giving of reasonable notice with respect to orders (4) and (5).

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - trial - two defendants - Abigroup Contractors Pty Ltd prosecuted under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - charges in relation to failures to conduct risk assessment in respect of a particular (changed) work process and maintain safe system of work - GTE Workplace Management Pty Ltd prosecuted under s 8(1) of the Occupational Health and Safety Act 2000 - charge in relation to failures to assess risks, review risk assessments and instruct employees - both defendants entered pleas of not guilty - prosecutions arose from fatal incident in course of work involving the installation of rail panels - various subcontractors engaged at site - rail panels lifted into place via crane - switch panel misaligned - rectification work undertaken by workers on panel whilst panel still under weight of crane - head dogman/rigger and crane operator aware panel under weight - no person at the site other than crane operator and head rigger/dogman aware - tension from panel being under weight caused rails to come loose when clips attaching rails to panel removed by labourers - one worker killed - four workers injured; Prosecution of Abigroup Contractors Pty Ltd - s 8 (1) - defendant had four employees at work at the site on the charge date - risk as particularised arose when rectification work involving the removal of Pandrol clips was conducted on a panel which remained under weight - no Abigroup employees present when work conducted in that manner - no Abigroup employee exposed to the risk as charged - Abigroup not guilty as charged - charge dismissed - s 8(2) -Abigroup principal contractor with respect to work being conducted at the site - non-employees of Abigroup (who were employees of subcontractors) exposed to risk as charged - failure to conduct further risk assessment proven - Abigroup failed to conduct a further risk assessment or require its subcontractors to conduct a further risk assessment when work processes changed contrary to its own safety systems - if fresh risk assessment conducted fact of panel remaining under weight would have been discovered via an inquiry of the head dogman/rigger or crane operator - fresh risk assessment would have obviated risk as charged - defence raised under s 28(a) of the Act - defence failed - failure to maintain safe system of work not proven - adequate communication systems at site between subcontractors - risk only arose when work of removing Pandrol clips performed on panel which was under weight - Abigroup guilty of charge under s 8(2) - date set for sentencing; Prosecution of GTE Workplace Management Pty Ltd - s 8(1) - defendant a labour hire company - defendant failed to review risk assessments applicable to work its employees to undertake at site - failed to visit site or inquire as to type of work to be performed - told employees would be undertaking fish plating and general labouring - employees competent for work - failure to review risk assessments not causally related to risk - GTE did not know and could not have foreseen that its employees would be exposed to particularised risk because work which gave rise to the risk (the removing of Pandrol clips from a panel under weight) was not contemplated by Abigroup and Taylor Railtrack until a short time before the incident - no failure to instruct workers - GTE not guilty as charged - charge dismissed
• Legislation Cited: Evidence Act 1995; Occupational Health and Safety act 1983; Occupational Health and Safety Act 2000
• Cases Cited: Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432; Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 316; (1997) 98 A Crim R 481; Griffiths v R (1994) 125 ALR 545; Haynes v CID Manufacturing Pty Ltd (1994) 60 IR 149; Inspector Christensen v Boom Logistics Ltd [2012] NSWIRComm 95; Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31; Inspector Piggott v CSR Emoleum Services Pty Ltd [2003] NSWIRComm 282; Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings v WorkCover Authority of NSW (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; (2010) 113 ALD 1; (2010) 262 ALR 569; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363; McMartin v The Broken Hill Proprietary Company Ltd (1988) 100 IR 241; Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84; Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253; R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450; R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474; R v Lozano [1997] NSWSC 237; R v Maximo Pantoja (Unreported, Court of Criminal Appeal, Matter Number CCA 060174/97, 14 August 1988); R v Mullen (1938) 59 CLR 124; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; (1999) 166 ALR 330; (1999) 73 ALJR 1550; Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) [2002] NSWIRComm 108; (2002) 115 IR 78; Ryan v R (1967) 121 CLR 205; State Rail Authority (NSW) v Dawson (1990) 37 IR 110; State Transit Authority (NSW) v Guillarte [2003] NSWIRComm 128; (2003) 123 IR 237; The Crown in the Right of the State of New South Wales (Department of Education and Trading) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57; Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94; (2010) 205 IR 263; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60; Woolmington v DPP [1935] A.C. 462 at 481; WorkCover v Kellogg (Aust) Pty Ltd (N0 1) (1999) 101 IR 239; WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453; (1999) 101 IR 239; WorkCover Authority (NSW) v Police Service (NSW) (No 2) [2001] NSWIRComm 90; (2001) 104 IR 268; WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 219; (2001) 110 IR 447; WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81; 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 Penfold) v Fernz Construction Materials Limited (No 2) [2000] NSWIRComm 99; WorkCover Authority of New South Wales (Inspector Reed) v CSR Limited t/as CSR Wood Panels 2001 109 IR 275; X7 v Australian Crime Commission and Anor [2013] HCA 29; (2013) 298 ALR 570
• Category: Principal judgment
• Parties: Inspector Madeline Christensen (Prosecutor); Abigroup Contractors Pty Limited (Defendant); GTE Workplace Management Pty Limited (Defendant)
• Representation: S Crawshaw SC with A M Mitchelmore of counsel (Prosecutor); B D Hodgkinson SC with R J Ranken of counsel (Abigroup Contractors Pty Limited - Defendant); J V Agius SC (GTE Workplace Management Pty Limited - Defendant); WorkCover Authority of New South Wales (Prosecutor); Norton Rose Australia (Abigroup Contractors Pty Limited - Defendant); Sparke Helmore Lawyers (GTE Workplace Management Pty Limited - Defendant)
• File Number(s): IRC 278 of 2011; IRC 279 of 2011; IRC 285 of 2011

Judgment

1 These proceedings involve prosecutions instituted by Inspector Madeline Christensen against Abigroup Contractors Pty Ltd ("Abigroup") and GTE Workplace Management Pty Ltd ("GTE"). As stated in the amended applications for order, in respect of the charges against Abigroup, and the application for order, in respect of the charge against GTE, Inspector Christensen is an inspector of the WorkCover Authority of New South Wales and was empowered under s 106(1)(c) of the Occupational Health and Safety Act 2000 ("the Act") to institute the proceedings.

2 The prosecutions arose following a fatal incident which occurred on 24 March 2009 ("the incident") during the course of the construction of a section of the northern rail corridor known as the "Bi Directional Re-Signalling Maitland to Branxton Farley Track Slews 194.00km to 194.500km and Installation of New Crossovers" ("the project") (it may be noted that various names were used, throughout the documentary evidence tendered during these proceedings, to refer to the project; the name adopted in this paragraph is that which featured on the head contract between Australian Rail Track Corporation ("ARTC") and Abigroup).

3 Under the contract between ARTC and Abigroup, the work to be performed by Abigroup on the project involved construction and upgrade works on the "Main Line North" of the rail corridor and, in particular, the installation of two new crossovers (a crossover being a pair of switch tracks or turnouts that connect two parallel rail tracks allowing a train on one track to cross over to the other) between the "Up and Down Main" at Farley on the Main Line North (between 194.100 km and 194.800 km north of No. 1 platform at Sydney Central Station), and the removal and replacement of existing formation materials under the new crossover positions. The construction activities for the project described in the contract between ARTC and Abigroup commenced in March 2009. (Work had earlier commenced as part of a related project at Allandale (approximately 204 km north of No. 1 platform at Sydney Central Station) in October/November 2008.)

4 The incident occurred at a point on the northern New South Wales rail corridor near Trevor Street, Telarah ("the site"). The incident took place on the same date construction activities had commenced at the site, being 24 March 2009 (the date specified in the charges brought against the defendants).

Background and Preliminary Findings of Fact

5 The following summary of the background to these proceedings shall describe the relevant entities and the circumstances of, and leading up to, the incident. The factual matters which form the basis of this summary were substantially uncontentious. Where the description of the incident refers to the evidence of witnesses, the summary of the evidence should be understood as the Court accepting the evidence given, although, in the case of the crane crew, that acceptance is conditioned by the evidence being uncontentious or corroborated by other evidence (given later findings with respect to those witnesses). Any relevant factual matters which were disputed shall, with one exception concerning the evidence of Mr Dixon, be noted for the purpose of later adjudication (it may be observed that the factual disputes were largely confined to things which occurred in the period between the third lift of a rail panel described in this judgment as "panel five").

The Entities

6 In addition to the two defendants the subject of these proceedings, there were a number of other companies involved in the work at the site. By way of background, the role of and interaction between all of the relevant corporations, including Abigroup and GTE, shall be discussed, including the relevant terms of contracts governing such relationships.

7 The "Main Line North" of the rail corridor had been leased to ARTC by the New South Wales Government for the purpose of ARTC managing the railway track infrastructure.

Abigroup

8 Abigroup was a national contractor and infrastructure provider which supplied services to the building, road, rail work, mining, tunnel, bridge, telecommunications and energy industries. Originally established in 1961 as Abignano Pty Limited, Abigroup was acquired by Bilginger Berger SE in 2004 before becoming part of the Lend Lease Group in 2011. It is now a business unit of Lend Lease's Australian construction business which focusses on engineering, infrastructure construction, building and infrastructure services.

9 On or about 23 October 2008, ARTC entered into a "Construction Contract No NSW-TC-1735" with Abigroup in relation to the project ("the Abigroup contract"). The Abigroup contract particulars noted that Mr Paul Harris was Abigroup's nominated representative under the contract.

10 Pursuant to that contract, Abigroup was appointed as the "principal contractor". Clause 7.9 of the contract provided the following:

7.9 Principal contractor

The contractor acknowledges that:

(a) ARTC has (depending on the circumstances) a range of different potential obligations to ensure the safety of persons at the Site;

(b) ARTC may be subject to civil claims or criminal prosecution if the Contractor does not adequately ensure the health and safety of persons during the execution of the Contractor's Activities;

(c) ARTC has provided the Contractor with sufficient information on risks associated with the Site and the execution of the Contractor's Activities to enable the Contractor to properly assess and control those and other risks; and

(d) the Contractor has control over all aspects of the execution of the Contractor's Activities and safety issues at the Site including the Rail Safety Zone at all times when the Contractor has a Track Access.

In this clause the terms "principal contractor", "place of work" and "construction work" have the same meanings assigned to those terms under the Occupational Health and Safety Act 2000 (in this clause the "Act") and the Occupational Health and Safety Regulation 2001 (in this clause the "Regulation").

Without limiting the Contractor's obligations under any other provision of the Contract:

(e) to the extent that ARTC owns or leases any place of work at which construction work is to be undertaken by the Contractor (including the Rail Safety Zone at times when the Contractor has a Track Access), ARTC:

(i) appoints the Contractor as the principal contractor under clause 210 of the Regulation; and

(ii) gives all necessary authority to the Contractor to enable the Contractor to fulfil and exercise the obligations and functions of the principal contractor under the Regulation; and

(f) the Contractor must:

(i) where clause 7.9(e) applies, exercise and fulfil the functions and obligations of the principal contractor under the Act and the Regulation;

(ii) where clause 7.9(e) does not apply, or ARTC is not otherwise able to validly appoint the Contractor as the principal contractor under clause 210 of the Regulation, exercise and fulfil the functions and obligations of the principal contractor under the Act and the Regulation as if the Contractor had been validly appointed as the principal contractor under clause 210 of the Regulation;

(iii) comply with its obligations under the Act and the Regulations;

(iv) ensure that all Subcontractors engaged by the Contractor in connection with the execution of the Contractor's Activities comply with their respective obligations under the Act and the Regulation;

(v) at all reasonable times provide ARTC and the ARTC Project Manager with access to such records as may be necessary to establish the Contractor's compliance with its obligations under this clause 7.9;

(vi) ensure that it executes the Contractor's Activities in a manner which ensures that ARTC satisfies its obligations under the Act and the Regulations; and

(vii) immediately inform ARTC in writing of all incidents involving injury to any employee or agent of:

A. the Contractor;

B. any Subcontractor engaged by the Contractor; or

C. any Other Contractor,

arising during the execution of the Contractor's Activities.

To the extent not prohibited by law, the Contractor Indemnifies ARTC against any damage, expense, loss or liability suffered or incurred by ARTC arising out of or in connection with the failure of any party to exercise or fulfil the functions and obligations of the principal contractor under the Regulation.

11 It was accepted by Mr B D Hodgkinson SC, with whom Mr R J Rankin of counsel appeared, for Abigroup, that Abigroup was the principal contractor at the site under the Abigroup contract at the relevant date.

12 The Abigroup contract regulated Abigroup's engagement of subcontractors. Clause 8.5 of the Abigroup contract provided, relevantly, in that respect, the following:

8.5 Subcontracting

The Contractor:

(a) must not without the prior written approval of the ARTC Project Manager, which will not be unreasonably withheld, subcontract any work described in the Contract Particulars except to a Subcontractor named in the Contract Particulars;

(b) will be fully responsible for the Contractor's Activities despite subcontracting the carrying out of any part of the Contractor's Activities;

...

13 The Abigroup contract particulars listed Taylor Railtrack Pty Ltd ("Taylor Railtrack"), Boom Logistics Ltd ("Boom Logistics") and Track Australia as nominated subcontractors. At the time of the incident, Abigroup had contracted two companies to assist in the work being conducted at the site under the Abigroup contract, namely, Boom Logistics and Taylor Railtrack.

14 The Abigroup contract also included clauses going to work safety issues. Clauses 8.16 - 8.17 of the Abigroup contract provided, relevantly, in that respect, the following:

8.16 Safety

The Contractor must carry out the Contractor's Activities Safely and so as to protect persons and property.

...

8.17 Occupational health, safety and rehabilitation management

The Contractor must:

(a) ensure that in carrying out the Contractor's Activities:

(i) it immediately complies with the Directions on safety issued by any relevant authority, body or other organisation having any jurisdiction in connection with the Works or the carrying out of the Contractor's Activities;

(ii) it complies with, and keeps at the Site and readily available to all relevant persons a copy of, the following:

A. The Rail Safety Act 2002 (NSW);

B. the Occupational Health and Safety Act 2000 (NSW);

C. the Occupational Health and Safety Regulation 2001 (NSW)

D. the NSW Government "OHS&R Management Systems Guidelines";

E. ARTC's Rail Safety Management Procedures;

F. AS 4292 - Railway Safety Management; and

G. all other Statutory Requirements; and

H. all other requirements of the Contract for occupational health, safety and rehabilitation management (including, without limiting any other provision of the Contract or any Statutory Requirement, Schedule 5); and

(iii) its Subcontractors and all employees, agents and persons brought or invited on to the Site, comply with the requirements referred to in this clause 8.17 and that all subcontracts include provisions which ensure that the Subcontractors comply with the requirements of this clause; and

(b) prepare an OHS&R Policy and take all reasonable steps to ensure its Subcontractors and all of its employees engaged to carry out the Contractor's Activities are informed of the contents of the OHS&R Policy; and

(c) keep the ARTC Project Manager fully informed of all occupational health, safety and rehabilitation matters arising out of, or in any way in connection with, the Contractor's Activities as soon as they occur.

15 Following the signing of the Abigroup contract, a document entitled 'Integrated Quality, Safety and Training Plan', dated 17 March 2009, was developed by Abigroup. That document set out details of the scope of the project and planning and operational information, and was distributed by Abigroup internally, to its head office and the site office, and also to ARTC. The document provided, again as to safety, the following:

3.4 Legislative Requirements

...

As a general guideline the following statutory requirements apply.

...

(ii) Occupational Health & Safety;

Occupational Health & Safety Act 2000 & OH&S Regulation 2001

...

For compliance with the above Rail Safety, OHS&R & Industrial Relations Acts, the overall responsibility is allocated to the PD/PM [being the project director/project manager]. The PD/PM will ensure that statutory requirements such as Workers Compensation Insurance etc are in place prior to the commencement of work and that System Procedures relating to Safety Management are followed so that aspects of Risk Management, Safe Work Method Procedures, Emergency Procedures, Emergency Contacts and Emergency Incident Reporting Procedures etc. are all in place.

...

16 The Integrated Quality, Safety and Training Plan provided, as to occupational health, safety and rehabilitation, the following:

5.5.2 OHS&R

Subcontractors will be selected to tender for work on the Project only if they meet stringent pre qualification criteria related to their health and safety capability. The subcontractor must have health and safety systems in place and is capable of developing and implementing (as a condition of contract) site specific health and safety management plans and WEMS's compatible with Abigroup's health and safety policies and AS 4801. A similar pre selection process will apply for suppliers.

17 Abigroup developed an overarching Safe Work Method Statement ("SWMS") for the work being conducted at the site entitled "Working within the Rail Corridor". It also developed various Safe Work Method Statements ("SWMSs") relating to particular aspects of the work to be performed.

Boom Logistics

18 Boom Logistics is a national company which was incorporated in December 2000. Originally named 'The Australian Crane Company', Boom Logistics supplied cranes and lifting equipment, travel towers and access equipment, heavy haulage and engineering services to Australian industry.

19 By an 'External Plant Hire Agreement' dated 12 November 2008, Abigroup contracted Boom Logistics for the provision of mobile crane hire at the site.

20 A 'Lift Study/Plan' ("the Lift Study/Plan") was created by Boom Logistics in relation to the work for which the crane was to be used at the site. In that respect, the Plan noted (under the heading "Craneage Requirements") that a "200 tonne truck mounted hydraulic slew crane" was required for (under the heading "Job Specifics") the "[i]nstallation of 9 rail sections @ FARLEY rail crossover for ABIGROUP". The Plan also noted that "[d]uring the installation process the 200 tonne crane will have to relocate 5 times to ensure the correct lifting capacities @ radius are achieved". The Plan also noted the following in terms of lift procedure:

... On completion of the required rigging the 200 tonne crane, under guidance of the nominated rigger in charge will gradually take the weight of the rail section (load) whilst monitoring the cranes [sic] respective load cell for correct weights @ radius, on confirmation of correct weights @ radius the load will be lifted clear of the ground surface (approx 1m) and held their [sic] until all rigging is secondarily checked. Once the rigger in charge has confirmed that the lift points and slinging arrangement comply with the required task, the load, at the discression [sic] of the rigger in charge can be relocated to the set-down point.

21 The Plan also set out a list of safety notes which included, relevantly:

...

c) Area around Crane Barricaded off, authorised persons only in lift area. No person under suspended loads. Road Barricaded off.

...

h) All Crane Operations and Rigging conducted by Competent Operators

i) 2 x Rigger/Dogman required with 0ne [sic] nominated in charge of the lifts

j) Two way Radios and/or hand signals used for communications depending on visibility and site conditions

...

Risk Assessment completed by work team prior to Lifts, Risk Assessment and lift method and/or slinging arrangement modified (and noted in changes) if required by the team.

(The following five pages of the Plan set out, diagrammatically, the lifting methods or plans for various stages of the works.)

Taylor Railtrack

22 Taylor Railtrack (now operating under the name 'Taylor Rail Australia Pty Ltd') operated a business undertaking railway construction and maintenance work.

23 Abigroup entered into a 'Minor Works Agreement' with Taylor Railtrack dated 17 November 2008. That Agreement provided a description of the subcontract works as follows:

Remove existing plain line track from Down lines and set aside for re-use.

Earthworks & formation works (by others)

Install existing plain line

Weld new panels together

Place top ballast and regulate

Lift & Line tracks to design alignment

Certify installation

24 Annexure A to the Minor Works Agreement set out the scope of work to be undertaken by Taylor Railtrack (under the heading "Scope of Works - Farley Crossovers; Farley Track Formation and Crossover Installation Works") as follows (relevantly):

...

Farley Track Formation and Crossover Installation Works.

Installation of turn outs 1, 2, 3 and 4 to form crossovers from Up to Down and Down to Up Mains of the Main North Line.

Track slews to suit the crossovers and as shown on the plans.

Lifting and tamping of tracks to design RL.

25 Annexure A of the Minor Works Agreement also required the preparation, prior to commencement, of SWMSs to describe the "safe completion of the works".

26 By cl 3 of the Minor Works Agreement, it was directed that "[t]he Subcontractor shall not assign the Subcontract or subcontract the whole or any part of the Subcontract Works without the prior written consent of the Contractor's Project Manager".

27 Clause 24 of the Minor Works Agreement went to occupational health and safety issues and was in the following terms:

24. Occupational Health & Safety

Before commencing the Subcontract Works, the Subcontractor must prepare and submit details of its occupational health, safety and rehabilitation management system and a site specific safety plan incorporating safe work method statements.

Without limiting the generality of this clause and clause 7 the Subcontractor shall:

(a) comply with any legislation relating to occupational health & safety;

(b) ensure its subcontractors comply with the requirements of this clause;

(c) comply with all safety requirements applicable to the Site; and

(d) Immediately comply with any directions on safety issued by any relevant authority or the Contractor's Project Manager.

28 Taylor Railtrack had several SWMSs for the project. Those SWMSs identified the "possible hazards" associated with various "procedures". In relation to the "lifting out of track panels", the possible hazards were identified as "struck by plant or panels" and "sprains and strains". The "safety controls" in relation to those hazards were, respectively, as follows:

a) Plant movements to be coordinated by Supervisor. Operators to be aware of staff movements around worksite. Non essential staff to stay clear of panels during any movement. Tethers to be used to control panels.

b) Correct manual handling techniques and team lifting to be used.

29 In relation to the procedure of "panel installation", the possible hazards were identified as "strains", "struck by plant" and "safe working load". The safety controls in relation to those hazards were, respectively, as follows:

a) Only plant to handle turnout panels. Team lifting using sleeper tongs to be used to handle timber ties if unable to use plant.

b) Plant movements to be coordinated by Supervisor. Operators to be aware of staff movements around worksite.

c) All lifts to be assessed and signed-off by Supervisor and operator(s) prior to lift. Dogman to check all lifting points. Approved chained to be used.

30 In relation to the procedure "move rails/components into position", the possible hazards were identified as "struck by plant", "struck by rail" and "exceed safe working load". The safety controls in relation to those hazards were, respectively, as follows:

a) Plant movements to be coordinated by Supervisor. Operators to be aware of staff movements around worksite. Reversing beepers to be operational on plant.

b) Workgroup to stay clear of rail during movement. Approved rail tongs to be used to lift rail.

c) Rail or turnout component load to be assessed prior to lift by plant.

31 In relation to "Pandrol clip removal using sledgehammer/Gauge bar removal", the possible hazards were identified as "slips and trips", "strains", "struck by flying objects" and "struck by plant". The safety controls in relation to those hazards were, respectively, as follows:

a) Wearing of high-sided safety boots. Care taken when ascending/descending ballast shoulder. Staff to adhere to good housekeeping practices. Extra care to be taken during inclement weather.

b) Workgroup to be instructed in correct use of sledgehammer.

c) Workgroup to be instructed in correct footing of Pandrol E-clip during removal.

d) Plant movements to be coordinated by Supervisor. Operators to be aware of staff movements around worksite.

MVM Rail

32 MVM Rail Pty Limited ("MVM Rail") was founded in 1992 and was a provider of railway track construction, maintenance, associated building and civil infrastructure.

33 Taylor Railtrack engaged MVM Rail to provide labour for the installation works occurring at the site as part of the project. In particular, Taylor Railtrack, in a purchase order dated 16 March 2009 and signed by Mr Tim Horan, Construction Manager with Taylor Railtrack, requested MVM Rail provide one site supervisor for night shifts, five track workers for day shifts (and another five track workers for night shifts), and one welding crew for day shifts (and a further crew for night shifts). That purchase order was marked to the attention of Mr Jade Begley and Mr Adam O'Sullivan of MVM Rail. Mr Begley was employed as a Superintendent for MVM Rail.

GTE

34 GTE was established in 1995 as a recruitment management consultancy and labour hire company which provided workers to a range of sectors including rail, construction, traffic management and control, retail, hospitality and medical.

35 Mr Brian Lucas, New South Wales Rail Manager of GTE at the time of the incident, was contacted by Mr Begley, on behalf of MVM Rail, to provide additional installation labour hire workers at the site (it can be noted that, whilst the evidence did not disclose the precise date upon which that contact was by Mr Begley, it may be inferred that it occurred at a date prior to the incident). Mr Lucas gave evidence that there was an arrangement between MVM Rail and GTE whereby Mr Begley of MVM Rail would contact GTE "for a top-up of labour resources".

36 At the time of the incident, Mr Lucas reported to Mr Robert Tombolato, the National Manager of GTE, who was based in Victoria. Aside from Mr Lucas, an Officer Administrator, Ms Christie Fuller, worked in the New South Wales office of GTE.

Relevant Personnel

37 The incident occurred at the site during the course of the night shift on 24 March 2009. As previously noted, construction activities at the site had commenced earlier that day.

38 It was conceded by senior counsel for Abigroup that, on the date of the incident, there were present at the site four of its employees who were involved as part of Abigroup's undertaking (although, as shall be discussed below, it was contended by Abigroup that, notwithstanding that concession, none of its employees were, at the time of the incident, in the area of the site in which the risk arose). Those employees were Mr Paul Harris, Mr Geoff Drewe, Mr Tony Green and Mr Patrick Cini. (It may be noted that only Mr Harris and Mr Drewe were particularised as having been exposed to the risk in the s 8(1) charge brought against Abigroup.)

39 Mr Harris was employed by Abigroup as the New South Wales Rail Manager and was, at the time of the incident, working as the construction manager/overall site supervisor of the project and an acting shift manager (he was also, as mentioned, Abigroup's nominated representative under its contract with ARTC and the "Contractor's Project Manager" under the Taylor Railtrack Minor Works Agreement). Mr Drewe was a project engineer who was part of the "management process". He reported to Mr Harris (and assisted him in "planning and executing the job"). (Mr Drewe also reported to another Abigroup employee, Mr Scott Carlin, who was not present at the site as part of Abigroup's undertaking on the date of the incident.) Mr Cini was a safety coordinator, and also reported to Mr Harris and Mr Carlin. Mr Cini's work included conducting site inspections, observations and inductions. Mr Green worked at the site as a safety officer/adviser/coordinator.

40 The Boom Logistics employees (collectively referred to as the "crane crew") working at the site at the time of the incident were Mr Edward Jones, the crane operator, Mr Kim Ford, a rigger/dogman, and Mr Michael Fetherston, also a rigger/dogman.

41 A number of Taylor Railtrack employees were working at the site at the time of the incident. These included, relevantly: Mr Tim Horan, construction manager; Mr Gordon Yates, a team leader who was acting, at the time of the incident, in the capacity of a labourer; and Mr Kyle Ward, a railway labourer. Whilst working at the site, Mr Horan reported to Mr Harris of Abigroup.

42 Mr Adam O'Sullivan was working at the site as an employee of MVM Rail in the position of a supervisor. His role was to supervise, or be a "leading hand" to, the group of labourers made up of MVM Rail and GTE employees. Mr O'Sullivan reported to Mr Horan of Taylor Railtrack.

43 It was conceded by senior counsel for GTE that GTE had two employees working at the site as part of its undertaking at the time of the incident. Those employees were Mr Agamalu Iosefa and Mr Mark McDonnell. It was alleged in the charge against GTE (which shall be set out in full below) that Mr Robert Dixon, who was working as a labourer at the site at the time of the incident, was also an employee of GTE. It may be presently noted that the issue of whether Mr Dixon was, in fact, employed by GTE at the time of the incident was a matter of contention between the prosecutor and GTE. That issue shall be further discussed and resolved below in the section of this judgment headed "Resolution of Factual Issues".

44 Mr Jason Stewart, a surveyor employed by Rail and Road Professional Services Pty Ltd, was also working at the site as part of the project on the night of the incident.

Site Inductions

45 Prior to the incident, on 23 March 2009, a "Pre-Possession Brief" was held by Abigroup at a bowling club in close proximity to the site. The purpose of that Brief was to discuss safety, programming and environmental aspects involved with the upcoming possession of the site. A "Pre-Possession Brief Attendance Record" was signed by, relevantly, Mr Carlin, Mr Green, Mr Harris, Mr Cini, Mr Drewe, Mr Horan, Mr O'Sullivan and Mr Stewart.

46 Site inductions were conducted by Mr Cini of Abigroup on 6 and 23 March 2009. Those inductions occurred at the site in one of the site sheds. Workers were inducted to the site and taken through the overarching Abigroup SWMS entitled "Working within the Rail Corridor". That SWMS required, inter alia, the following:

JHA and Protection Officers risk assessment to be used to identify and control hazards that arise as a result of change to the process or hazards that are identified during the course of the work and not covered in this SWMS.

47 Mr Cini delivered, at each site induction, a PowerPoint presentation which indicated the emergency and assembly points, emergency procedures, first aiders and site hazards. "Toolbox Meeting Training Records" were filled out by the workers present on each occasion. The Toolbox Meeting Training Record of 6 March 2009 was signed by, relevantly, Mr O'Sullivan, Mr Dixon, Mr McDonnell, Mr Fetherston, Mr Stewart and Mr Green. The Toolbox Meeting Training Record of 23 March 2009 was signed by, relevantly, Mr Ward, Mr Dixon, Mr McDonnell and Mr O'Sullivan. Mr Jones and Mr Ford gave evidence that they were not required to attend the site induction on 23 March 2009 because they had already worked at the Allandale site and had previously been inducted.

48 Individual Abigroup "Workplace Induction Records" were completed in respect of the following workers: Mr Drewe (dated 27 October 2008); Mr Green (dated 24 March 2009); Mr Harris (dated 27 October 2008); Mr Cini (no specified date); Mr Dixon (date illegible); Mr O'Sullivan (dated 23 March 2009); Mr Ward (dated 23 March 2009); Mr McDonnell (dated 23 March 2009); and Mr Iosefa (dated 23 March 2009). Those Records contained, amongst other things, personal and next of kin information, details as to qualifications and checklists indicating that the workers had received general induction training, were aware of their employers' SWMSs and had been advised of relevant site safety rules and occupational health and safety policies. (It may be noted that, whilst Mr Iosefa signed a Workplace Induction Record on 23 March 2009, his signature was absent from the Toolbox Meeting Training Record of the same date. During cross-examination, Mr Cini said that he was not in a position to remember everyone who was at the 23 March 2009 meeting, but the fact that Mr Iosefa's name was not on the record did not mean he did not attend.)

49 Various workers signed onto a "Pre-work Briefing", which was an ARTC document. The issue date for that document was 25 March 2009, however it was a record of briefings which had occurred on "Tues night", being 24 March 2009 (the evening of the incident). The document indicated that the following workers (relevantly) had been present for a briefing at 7pm that evening: Mr McDonnell, Mr O'Sullivan, Mr Dixon and Mr Iosefa. Mr Jones, Mr Ford and Mr Fetherston also signed that document, however the time of their briefings was not specified. By signing onto that document, workers indicated that, amongst other things, they had been inducted onto the site and briefed on the SWMSs for the job.

50 A toolbox talk was also conducted by Mr Horan on behalf of Taylor Railtrack on 24 March 2009. That talk addressed Taylor Railtrack's SWMSs. Mr Horan gave evidence that, during that talk, he explained that the workers on the night shift would be loading panels onto the ground using overhead cranes and that safe distances from panels being lifted into place should be maintained by the workers. Those workers who were present signed off on their attendance. They included, relevantly, Mr Yates, Mr Dixon, Mr O'Sullivan, Mr McDonnell, Mr Ward and Mr Iosefa. Each of the crane crew gave evidence they also attended the talk, although their names do not appear on the sign off sheet.

51 Each of the crane crew also gave evidence that, prior to commencing the night shift on 24 March 2009, they had a handover with the day shift and conducted their own toolbox talk, where they went through the Boom Logistics job safety analysis ("the Boom Logistics JSA") which was the crane crew SWMS for the work they were to carry out that evening.

Events leading up to the Incident

52 For the purposes of the following description of the circumstances of, and leading up to, the incident, the employees of MVM Rail and GTE, detailed above (noting the issue concerning the employment of Mr Dixon), and the employees of Taylor Railtrack who were working as labourers (that is, Mr Yates and Mr Ward), shall be collectively referred to, where appropriate, as "the labourers".

53 At approximately 7pm on the evening of 24 March 2009, the crane crew took possession of the crane and, together with another Boom Logistics employee known to them as "Ricky", the crew undertook a physical inspection of the rail panels, the track and the areas designated for the crane operation. The crane crew were experienced in the type of work being undertaken by them at the site (the men had previously worked on the aspect of the project being undertaken at Allandale). Mr Jones was a qualified crane and forklift operator and a dogman. The crane crew was responsible for the lifting, slewing and lowering into position of the pre-fabricated rail panels.

54 One of the dogmen, Mr Ford, controlled movement of the load by giving instructions to the crane operator by means of radio communication. The same means of communication was available to the crane operator, that is, the crane operator could contact Mr Ford and, through him, those outside the crane cabin. During the evening of the incident, the crane operator, Mr Jones, received instructions in relation to the lifts exclusively from Mr Ford. Mr Fetherston, the other Boom Logistics dogman/rigger at the site, gave evidence to the effect that he did not give directions to the crane operator that night and that Mr Ford was undertaking that role. Mr Fetherston gave further evidence that he only received instructions, on the night of the incident, in relation to the lifting operation, from Mr Ford and no other person.

55 Communications between the crane crew and other workers engaged in labouring and the like were effected by the Mr Ford.

56 During the lifting of panel five, there were no impediments to communication by these means.

57 The Lift Study/Plan required that only authorised persons could be in the "lift area". The Boom Logistics JSA identified, as a hazard associated with lifting and lowering loads, that a load may "[c]rush hand or part of body". The risk in relation to that hazard was specified in that JSA as "high". The control measure to eliminate that hazard when a load was being lifted was specified as follows:

Body & Limbs clear of load & lifting gear prior to lift.

Authorised people only in lift areas.

Dogman / Rigger directs lift & informs Operator.

58 The control measures in relation to the same hazard when a load was being lowered were identical to those specified in relation to the lifting of a load, but additionally included: "Load stable before unhooking." The Boom Logistics JSA did not expressly address a situation in which the load was lowered to the ground but left "under weight" (that is, the crane was bearing some portion of the weight of the load).

59 The effect of the Boom Logistics JSA, therefore, was that the crane crew was responsible for ensuring the area of operation of the crane was clear and free of any workers (other than the crane crew), who had not been otherwise authorised to be in that area, at all times during the lifting, slewing and lowering operations of the crane.

60 The workforce involved in the labouring work associated with the rails at the site knew to keep clear of the lifting, slewing and lowering operations of the crane and not to access the panel when it was under weight. There was, however, no evidence called in the proceedings as to the precise nature of the danger posed by a panel whilst under weight but laying on or touching the ground.

61 During the entirety of the crane operation with respect to panel five, Mr Jones remained in the cabin of the crane seated in a fixed chair which faced in the direction of the boom. This permitted the crane operator to see the load at all times. His cabin was fitted with a gauge which indicated whether, and how much, weight was being supported by the crane.

62 On the night shift on 24 March, after a short delay whilst earthworks were performed in the area, the crane crew moved the crane into position and began to set up for lifting in accordance with the Lift Study/Plan.

63 Between 8.30pm and 9.30pm, the crane crew proceeded to carry out two lifts of rail sections referred to in the Lift Study/Plan as sections "1-3" and "1-4". Those lifts were conducted without issue. In other words, the lifts were carried out in accordance with the Lift Study/Plan which provided for the panels to be lifted, slewed and lowered in a single motion (albeit with scope for some slight adjustments to be made to the panel by hand in order for it to be manoeuvred into the correct position).

64 At approximately 9.30pm, the crane crew relocated to the next designated area and set the crane up to lift the rail section referred to in the Lift Study/Plan as section "1-5". (That panel was commonly referred to throughout proceedings as "panel five" or, occasionally, during the oral evidence, as "panel three" or "the third panel". That panel has been and will hereafter be referred to in this judgment as "panel five".)

65 Panel five was a "switch track" which had been assembled on the site. It consisted of six standard railway lines, each measuring approximately 12.4 metres in length. The railway lines were mounted in the form of a rail crossover across 21 concrete railway sleepers, which measured approximately 7.1 metres in length, 300 millimetres in height and 250 millimetres in width. In total, panel five weighed approximately 33 tonnes. Mr Jones gave evidence that, with the crane hook and lifting gear in addition to the panel, the load weighed approximately 34.7 tonnes.

66 The railway lines were connected to the sleepers by the use of 'Pandrol' clips. The Pandrol clips consisted of a flat plate (195 millimetres long, 165 millimetres wide and 5 millimetres thick), two side plates (110 millimetres long, 55 millimetres wide and 15 millimetres thick) and two round rod metal "pig tail" shaped securing pins (20 millimetres in diameter and 100 millimetres long).

67 In order to lift the panel, Mr Fetherston and Mr Ford attached two sets of lifting chains, which amounted to four chains in total, to the rails. Both sets of chains cradled the load between the sixth and seventh sleepers in from each end, and ran underneath the rails between two and five.

68 At approximately 10.30pm, the crane crew commenced lifting panel five from the lay down area into its designated position on the track. After completing a test lift of the panel, the panel was lifted, slewed and lowered into a position abutting the previously installed panel (panel "1-4" in the Lift Study/Plan). This was the first lift of panel five. The panel was rested on the ground at this point, with no weight remaining on the crane.

69 When panel five was in position and butted up against previously installed panel "1-4" during the first lift, it was discovered that it did not line up with panel "1-4" in that one rail on panel five was longer than the others and, while that rail butted up with the corresponding rail on panel "1-4", there was a gap between the remaining rails on each panel of about 50 to 60 millimetres.

70 Mr Horan then approached the panel. Having noted the misalignment, Mr Horan telephoned Mr Harris to inform him that there was a problem with the "crossover" (panel five being a switch track which was to make up part of the crossover) and ask him to come to the area where panel five was located (Mr Harris had been in the course of a shift hand over with Mr Drewe at the time). Mr Horan made radio contact with Mr Brett Schliebs, from Track Australia (which company was responsible for the crossover replacement at the other end of the site). Mr Horan also received assistance from Mr Stewart.

71 According to the evidence of Mr Harris, Mr Drewe and Mr Horan, a group discussion as to how to rectify the misalignment then occurred. That conversation lasted for approximately 10 to 15 minutes. Whilst none of the participants in that discussion could recall its exact terms, it was common ground that a decision was taken to move panel five away, unclip the protruding rail and use an excavator to move it forward.

72 Panel five was lifted, slewed and lowered to a location a couple of metres to the side of its intended position (its intended position being the place where it abutted against panel "1-4") where the adjustments could be made. This was the second lift of panel five which, at its cessation, resulted in the panel being placed on the ground without weight.

73 After the labourers undertook the various adjustments to panel five, the panel was lifted, slewed and lowered for the third time. This was the final lift of panel five before the incident. The exact instruction given by Mr Ford to Mr Jones in relation to the third lift was a highly contentious matter, and shall be discussed below under the heading "Resolution of Factual Issues".

74 As a result of the third lift, panel five was placed into a position butting up against panel "1-4". However, the panel once again did not align. (It is unclear in what sense the panel did not align following the third lift, including whether the issue of the single protruding rail which had become apparent following the first lift had simply not been rectified or whether additional problems had arisen. The evidence of Mr Ford was that the panel was, at this stage, "out of whack".)

75 The load was winched down to approximately 30 tonnes. This meant that the load was still "under weight". It may be noted that, despite evidence given by Mr Dixon to the contrary, it was agreed between the prosecutor and senior counsel for Abigroup and GTE that panel five remained on the ground, but under weight, after the third lift (and remained so up to and including the time of the incident). Mr Dixon's evidence was that, following the third lift and lowering of panel five, he observed that the "platform was in the air, you know, and off the ground" and that he " had to step up on to it ... probably half a metre or something." Mr Dixon's evidence was inconsistent with that of Mr Horan, Mr Fetherston, Mr Yates, Mr Stewart and Mr Harris, each of whom observed the panel to be in contact with or touching the ground (leaving aside the question of weight) at this stage. Mr Dixon's evidence also conflicted with the general notion, as earlier mentioned, appearing in the evidence of Mr Yates, Mr McDonnell, Mr Horan and Mr O'Sullivan, that a load was not to be accessed whilst ever it was suspended above the ground (or under weight) and that they would not do so whilst a load was in that state.

76 Mr Jones said he "touched the panel on the ground" (Mr Jones also said that whilst in this state the panel appeared to be on the ground).

77 Having regard to the evidence bearing upon the question of whether panel five was touching the surface of the ground from the time immediately following the third lift up to and including the time of the incident, I accept the submissions by each of the parties that the evidence of Mr Dixon to the effect that the panel was suspended off the ground should be rejected. In other words, the evidence requires a conclusion that, after the third lift, panel five was in contact with the ground and was not in any way lifted above ground level, even though the crane supported about 30 tonnes of the panel's weight.

78 Following the lowering of panel five after the third lift, another discussion took place regarding the making of further adjustments to the panel to correct the misalignment ("the second discussion"). That discussion occurred during the 15 to 20 minute period between the third lift of panel five and the incident (although the precise timing and duration of the discussion is unclear). The discussion involved Mr Harris, Mr Horan, Mr Stewart and, briefly, Mr O'Sullivan (for convenience, these men shall, where appropriate, be referred to collectively hereafter in this judgment as "the supervisors"). None of the supervisors could recall the exact terms of the discussion. However, it was common ground that a decision was taken to again unclip rails (Mr Stewart gave evidence that "one or two" rails would be unclipped and moved into position and Mr Horan gave evidence that a decision was made to unclip further rails and "shunt the rails forward to correct the misalignment"). There was an issue regarding particular suggestions made by Mr Harris in the course of the second discussion, and agreements reached, in respect of the way in which the work was to be carried out, namely, whether the work would occur before or after the crane was detached from the panel and moved on. I shall return to this matter below under the heading "Resolution of Factual Issues". There was, however, no issue taken by any party with the evidence of Mr Horan, Mr Harris and Mr Stewart that there was no discussion amongst the supervisors during the second discussion of the risks associated with the work (the same may be said of the first discussion).

79 The supervisors each gave evidence that, during the course of the second discussion, they stepped on the panel to inspect the problem.

80 It may be noted presently that the question as to whether and to what extent the crane crew made observations of panel five during the period between the third lift and the incident, and the related question as to whether the crew were aware or conscious of the fact that panel five remained under weight during that period, were matters of dispute between the parties. A further related factual issue was whether Mr Horan had given an instruction to "drop" the load. These issues shall be discussed in detail and resolved below in the section of this judgment headed "Resolution of Factual Issues".

81 A number of the labourers then began to assist with the task of removing Pandrol clips from the rails, including Mr Iosefa, Mr Ward, Mr O'Sullivan, Mr Dixon and Mr McDonnell. The instruction to do so was, on the evidence (other than Mr Dixon's evidence, which I do not accept) given by Mr O'Sullivan (perhaps in conjunction with Mr Horan).

82 The evidence as to how much time had passed between the commencement of work and the incident varied from seconds to minutes. It was, however, at least a sufficient amount of time for the labourers to have removed the clips from one full rail (being 42 Pandrol clips in total). Mr McDonnell gave evidence that he thought the labourers had made their way up one rail and had almost finished unclipping the second rail before the incident occurred. Mr Stewart gave evidence that, quite soon after the work began (around the time the second or third clip had been unclipped), a Pandrol clip "flew off quite a distance and very fast" and someone yelled "put your foot on the clips" (he was alone in this recollection). He recalled that the labourers were making their way along the two rails at the same time. The noise of the labourers engaging in unclipping the rail was loud, or as described by Mr O'Sullivan, "massive".

83 As the labourers were in the process of removing Pandrol clips, whilst the load remained under weight, some clips which were directly under the load of the chain were removed. The incident occurred when a number of rail lines suddenly sprang free from the panel and struck Mr Iosefa, Mr Ward, Mr Dixon, Mr McDonnell and Mr O'Sullivan.

84 Mr Isoefa sustained fatal injuries as a result.

85 Mr Ward suffered multiple fractures to his right foot and cuts and bruising. Mr Dixon sustained a broken right leg. Mr McDonnell received a laceration to the head, a broken shoulder, a broken ankle and injuries to his calf muscle. Mr O'Sullivan sustained a severe crush injury to his forearm which ultimately required amputation above the elbow. (It may be noted the fact of Mr Iosefa's death and the injuries to Mr Ward, Mr Dixon, Mr McDonnell and Mr O'Sullivan were accepted by both senior counsel for Abigroup and GTE.)

Charges

Prosecution of Abigroup

86 Abigroup was charged with one breach of s 8(1) and one breach of s 8(2) of the Act. The charge under s 8(1) (Matter No IRC 278 of 2011) was set out in an amended application for order filed 30 May 2012 in the following terms:

I, INSPECTOR MADELINE CHRISTENSEN of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter allege that ABIGROUP CONTRACTORS PTY LTD [ACN 000 201 516] a corporation with its registered address at 'Level 20 The Zenith Tower' Basement 821 Pacific Highway Chatswood in the State of New South Wales ("the defendant"), being an employer, on 24 March 2009, at a construction site located upon the northern New South Wales rail corridor near Trevor Street, Telarah in the State of New South Wales (identified as 194.385 km north of No.1 platform at Sydney Central Station) ("the site"),

FAILED TO

Ensure, by its acts or omissions as particularised below, the health, safety and welfare at work of all its employees, and in particular Mr Paul Harris and Mr Geoffrey Drewe, contrary to s 8(1) of the Occupational Health and Safety Act 2000.

87 The particulars of that charge were:

The particulars of the risk are that:

(a) The defendant's employees, and in particular, Mr Paul Harris and Mr Geoffrey Drewe were put at risk of injury from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site.

The particulars of the acts or omissions of the defendant in failing to eliminate the risk are:

(b) The defendant failed to conduct a risk assessment, or ensure that a risk assessment was conducted, with respect to the task of rectifying a panel misalignment at the site before work commenced to rectify the misalignment, which:

(i) identified the risk of injury arising from the task of removing Pandrol clips from rails forming part of a panel that was attached to a crane, and, accordingly, was potentially under weight; and

(ii) determined how that risk could be eliminated or controlled.

(c) The defendant failed to provide and maintain a safe system of work in relation to the tasks of lifting and installing rail panels, in that it failed to:

(i) ensure that there was an adequate system of communication in place between the subcontractors it had engaged at the site, in particular between Boom Logistics and Taylor Railtrack with respect to the movement of loads by mobile crane at the site and the identification of risks arising from that work;

(ii) ensure that a method of work, which required that all persons working in the vicinity of a crane be clear of the range in which they could be struck by a load (exclusion zone) whilst the crane was in operation and/or the load was still under weight, was maintained and enforced;

(iii) ensure that its employees did not access or walk on a load that was still under weight;

(iv) ensure that its employees confirmed that a rail panel was not under weight before allowing and/or instructing workers employed by or otherwise subcontracted to its subcontractors to perform work on the panel and, in particular, work that involved removing Pandrol clips from rails forming part of a panel.

As a result of the defendant's failures and omissions, its employees, and in particular, Mr Paul Harris and Mr Geoffrey Drewe were placed at risk of injury.

88 The charge under s 8(2) (Matter No IRC 279 of 2011) was set out in an amended application for order filed 30 May 2012 in the following terms:

I, INSPECTOR MADELINE CHRISTENSEN of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter allege that ABIGROUP CONTRACTORS PTY LTD [ACN 000 201 516] a corporation with its registered address at 'Level 20 The Zenith Tower' Basement 821 Pacific Highway Chatswood in the State of New South Wales ("the defendant"), being an employer, on 24 March 2009, at a construction site located upon the northern New South Wales rail corridor near Trevor Street, Telarah in the State of New South Wales (identified as 194.385 km north of No.1 platform at Sydney Central Station) ("the site"),

FAILED TO

Ensure, by its acts or omissions as particularised below, that persons not in its employment, and in particular, Mr Agamalu Iosefa, Mr Robert Dixon, Mr Mark McDonnell, Mr Kyle Ward and Mr Adam O'Sullivan, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to s 8(2) of the Occupational Health and Safety Act 2000.

89 The particulars of that charge were:

The particulars of the risk are that:

(a) Persons other than the defendant's employees, and in particular, Messrs Iosefa, Dixon, McDonnell, Ward and O'Sullivan, were put at risk of injury from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site.

The particulars of the acts or omissions of the defendant in failing to eliminate the risk are:

(b) The defendant failed to conduct a risk assessment, or ensure that a risk assessment was conducted with respect to the task of rectifying a panel misalignment at the site before work commenced to rectify the misalignment, which:

(i) identified the risk of injury arising from the task of removing Pandrol clips from rail forming part of a panel that was attached to a crane and, accordingly, was potentially under weight, and

(ii) determined how that risk could be eliminated or controlled.

(c) The defendant failed to provide and maintain a safe system of work in relation to the tasks of lifting and installing rail panels, in that it failed to:

(i) ensure that there was an adequate system of communication in place between the subcontractors it had engaged at the site, in particular between Boom Logistics and Taylor Railtrack with respect to the movement of loads by mobile crane at the site and the identification of risks arising from that work;

(ii) ensure that its subcontractors maintained and enforced a method of work which required that all persons working in the vicinity of a crane be clear of the range in which they could be struck by a load (exclusion zone) whilst the crane was in operation and/or the load was still under weight;

(iii) ensure that the workers employed by, or otherwise subcontracted to its subcontractors, did not access or walk on a load that was still under weight; and

(iv) ensure that its subcontractors confirmed that a rail panel was not under weight before allowing and/or instructing workers to perform work on a panel and, in particular, work that involved removing Pandrol clips from rails forming part of a panel.

As a result of the defendant's failures, persons other than its employees, were placed at risk of injury. Further, and as a consequence of the failures set out above, Mr Agamalu Iosefa suffered fatal injuries and Messrs Dixon, McDonnell, Ward and O'Sullivan suffered injuries.

90 As earlier mentioned, Abigroup entered pleas of not guilty to both charges.

Prosecution of GTE

91 GTE was charged with one breach of s 8(1) of the Act. That charge (Matter No IRC 285 of 2011) was set out in an application for order filed 23 March 2011 in the following terms:

I, INSPECTOR MADELINE CHRISTENSEN of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter allege that GTE WORKPLACE MANAGEMENT PTY LTD [ACN 093 842 221] a corporation with its registered address at 'A5' 1-13 The Gateway, Broadmeadows, in the State of Victoria ("the defendant"), being an employer, on 24 March 2009, at a construction site located upon the northern New South Wales rail corridor near Trevor Street, Telarah in the State of New South Wales (identified as 194.385 km north of No.1 platform at Sydney Central Station) ("the site"),

FAILED TO

Ensure, by its acts or omissions as particularised below, the health, safety and welfare at work of all its employees, and in particular, Mr Agamalu Iosefa, Mr Robert Dixon and Mr Mark McDonnell, contrary to s 8(1) of the Occupational Health and Safety Act 2000.

92 The particulars of that charge were:

The particulars of the risk are that:

(a) The defendant's employees, and in particular, Messrs Iosefa, Dixon and McDonnell, were put at risk of injury from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site.

The particulars of the acts or omissions of the defendant in failing to eliminate the risk are:

(b) The defendant failed to have in place a system whereby it was aware of which of its employees had been contracted to carry out particular work.

(c) The defendant failed to assess the risks that might arise to the health and safety of its employees on the site, in the context of assessing the competency of those selected to undertake the work, when one of the employees contracted to work on the site, Mr Iosefa, had only recently qualified to carry out rail work.

(d) The defendant failed to make inquiries as to how the risks that might arise to the health and safety of its employees on the site, were to be controlled. In particular, it failed to:

(i) obtain or review the safe work method statements (SWMS) prepared in relation to the work to be undertaken by its employees before its employees were sent to the site;

(ii) satisfy itself that the procedures in place as reflected in the SWMS would control the risks to its employees;

(i) satisfy itself that its employees would receive an appropriate level of induction training on the site before the work commenced, given their level of skill; and

(ii) ascertain who would be supervising its employees on the site and to satisfy itself that the supervisor would provide its employees with an appropriate level of supervision in their conduct of the work.

(e) The defendant failed to provide its employees with any instruction in relation to the work to be carried out on the site, and in particular the defendant failed to:

(i) ensure that its employees were informed and instructed to maintain safe working distances from the exclusion zone whilst any crane was in operation on the site and/or a load being moved by a crane was under weight; and

(ii) ensure that its employees were informed of the risks associated with accessing a load that was still under weight.

As a result of the defendant's failures and omissions its employees, and in particular, Messrs Iosefa, Robert Dixon and Mark McDonnell, were placed at risk of injury. Further, and as a consequence of the failures set out above, Mr Iosefa suffered fatal injuries and Messrs Dixon and McDonnell suffered injuries.

93 As earlier mentioned, GTE entered a plea of not guilty to that charge.

94 It may be noted that, ultimately, during the course of proceedings, the second particulars (i) and (ii) falling under particular (d) were not pressed by the prosecutor.

Course of Proceedings

95 The proceedings in Matter Numbers IRC 278 and 279 of 2011 commenced with the matters being originally listed before Staff J on 12 June 2012 and continued until the entering of pleas of not guilty by Abigroup on 2 July 2012. The matters were then allocated to the Court as presently constituted to proceed concurrently with Matter No IRC 285 of 2011. Matter Numbers IRC 278, 279 and 285 of 2011 were heard over eight days on 15 to 18, 22, 23, 29 and 30 April 2013.

96 It might be noted, for the purpose of providing the background to the current proceedings, that MVM Rail, Boom Logistics and Taylor Railtrack were also charged with breaches of the Act in relation to the incident.

97 MVM Rail was charged with two breaches of the Act (Matter Numbers IRC 282 and 283 of 2011). Those matters were originally listed before me on 21 May 2012 and were to be heard concurrently with Matter Numbers 278, 279 and 285 of 2011. On 5 March 2013, leave was granted in Matter Numbers 282 and 283 of 2011 for MVM Rail to withdraw its pleas of not guilty and to enter pleas of guilty to the charges against it. Those matters were then reallocated to the President to proceed by way of a separate hearing re sentence.

98 Boom Logistics was charged with one breach of the Act (Matter Number IRC 284 of 2011). A plea of guilty was entered to that charge and Boom Logistics was sentenced in the judgment of Staff J delivered on 30 August 2012 in Inspector Christensen v Boom Logistics Ltd [2012] NSWIRComm 95.

99 Taylor Railtrack was charged with two breaches of the Act (Matter Numbers IRC 280 and 281 of 2011). Pleas of guilty were entered to those charges and Taylor Railtrack was sentenced in the judgment of Boland J, President, on 18 April 2012 in Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31.

Resolution of Factual Issues

The Legal Principles bearing upon the Resolution of Factual Issues

100 Whilst not a matter discussed by the parties in submissions, it is pertinent to note that the approach to be adopted in seeking to resolve factual disputes in criminal trials is dictated by the principle that, in relation to essential facts which go to make up the charge, the prosecutor must prove those facts beyond reasonable doubt. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; (1999) 166 ALR 330; (1999) 73 ALJR 1550, although a case focussing upon the principles of fact finding for the purposes of sentencing an offender, Kirby J noted (at 292), in respect of fact finding principles at the trial stage, the following:

... Relevant to a trial before a judge alone, the nature and circumstances of the offence, will only become "known to the court" to the extent that the accused admits, and the court receives, evidence and other materials or to the extent that the prosecution or the accused prove the facts relevant to "the nature and circumstances of the offence". To the extent that facts so relevant are disputed, they must be proved by the party bearing the applicable burden of proof and to the standard of proof applicable to that party. ...

101 The principle in Olbrich mirrors that espoused in the House of Lords decision in Woolmington v DPP [1935] A.C. 462 at 481. In that case, Viscount Sankey LC said that the basic rule in the law of evidence that the prosecution bears the burden of proving all the facts grounding the defendant's criminal liability beyond reasonable doubt was the "one golden thread [running through] the English Criminal Law". The approach in Woolmington has been approved by the High Court on numerous occasions including in the authorities of Griffiths v R (1994) 125 ALR 545 per Brennan, Deane, Dawson, Toohey and Gaudron JJ, R v Mullen (1938) 59 CLR 124 and Ryan v R (1967) 121 CLR 205. In Griffiths, in a joint judgment of Brennan, Deane and Gaudron JJ, the Court described the principle in the following manner, at 548:

With respect, the ultimate onus of proving all elements of the offence, including either the voluntary or criminally negligent firing of the fatal bullet, rested upon the Crown and, if the evidence available to the Crown did not discharge the onus, the appellant was entitled to be acquitted. That is the principle clearly laid down in Woolmington v. The Director of Public Prosecutions (9 [1935] UKHL 1; (1935) AC 462, applied to the element of accident under The Criminal Code (Q.) in R. v. Mullen) . In Woolmington, a case of homicide by shooting, the appellant had given a version of the confrontation between himself and his wife, the deceased. He said the firing of the gun was an accident in that whilst he was getting the gun from under his shoulder and was drawing it across his breast it accidentally went off (10 (1935) AC at 472) . It was in reference to this evidence that the well-known statement was made about the golden thread of English criminal law and Viscount Sankey L.C. said (11 ibid. at 482) :

"When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused."

His Lordship went on to explain:

"If the jury are either satisfied with (the accused person's) explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted." (Emphasis added.)

102 Woolmington has been more recently endorsed by the High Court in the cases of Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363 per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ and X7 v Australian Crime Commission and Anor [2013] HCA 29; (2013) 298 ALR 570 per French CJ, Hayne, Crennan, Kiefel and Bell JJ. In Lee, a case about the recovery of proceeds of crime, Kiefel J noted, in that respect, at [174], the following (footnote omitted):

The golden thread of the system of English criminal law is that it is the duty of the prosecution to prove the prisoner's guilt. This is consistent with the presumption of an accused's innocence. It finds expression as a fundamental principle of the common law of Australia.

103 In X7, a case considering the rights of criminal suspects including the privilege against self-incrimination and the right to silence, French CJ and Crennan J, in a joint judgment, noted, at [46], the following (footnotes omitted):

The abovementioned developments, adopted in Australia, show the interweaving of interrelated rights and immunities into the criminal law, which shaped the accusatorial process of the criminal trial both by way of procedure and in substance. In EPA, consideration was given to the accusatorial nature of a criminal trial and the interrelationship between an accused's right not to give evidence or answer incriminating questions on the one hand, and on the other, the fundamental principle stated in Woolmington v Director of Public Prosecutions: "that the prosecution must prove the guilt of the prisoner is part of the common law ... and no attempt to whittle it down can be entertained".

104 Hayne and Bell JJ jointly noted, in X7 at [100], the following (footnotes omitted):

It is also necessary, in this respect, to exercise some care in identifying what lessons can be drawn from the history of the development of criminal law and procedure. Questions about criminal trial process may be illuminated by reference to historical considerations. But there are some features of criminal trial process which, although now considered to be fundamental, are of relatively recent origin. So, for example, what now are axiomatic principles about the burden and standard of proof in criminal trials were not fully established until, in 1935, Woolmington v Director of Public Prosecutions decided that "[t]hroughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt". Any reference to the history of the privilege against self-incrimination, or its place in English criminal trial process, must also recognise that it was not until the last years of the nineteenth century that an accused person became a competent witness at his or her trial.

The Factual Issues Requiring Resolution

105 By and large, the factual controversies focussed upon the period of time between the lowering of panel five on the third lift and the incident.

106 The remainder of the factual issues requiring resolution are as follows:

(1) Whether the evidence of Mr Dixon that he observed a "bow" in a rail on panel five following the third lift should be accepted;

(2) Whether the evidence of Mr Horan that he instructed a dogman to "drop" the load after the third lift of panel five (approximately 20 minutes before the incident) should be accepted;

(3) Whether the following aspects of Mr Ford's evidence may be accepted:

(a) That he observed the work crew and a "young supervisor" to be in the vicinity of panel five whilst the crane crew undertook the second lift of the panel;

(b) That he told the "young supervisor", after it became apparent that panel five did not align after the third lift, words to the effect of "I won't lose the entire weight [of the load] and don't do anything until you come see me" or "don't do anything until you come to me because it's still under weight";

(c) That, for the period between the third lift of panel five and the incident, he had his back turned towards the panel and did not see any person mount, walk or conduct work upon the panel at any time during that period (before or after the unclipping work commenced) until the time of the incident;

(d) That he was aware, from the third lift until the time of the incident, that panel five remained under weight;

(4) Whether the following aspects of Mr Jones' evidence may be accepted:

(a) That, during the period between the third lift of panel five and the incident occurring, he "thought" he saw, from his position in his seat in the operator's cabin, "people" walk onto the panel whilst it was under load but he did not recall seeing work occurring on the panel;

(b) That he was aware or conscious of the fact that, from the third lift until the time of the incident, panel five remained under weight;

(5) Whether the evidence of Mr Fetherston that, upon his return from the site shed to deliver coffee to Mr Jones in the crane cabin (which took him away from the vicinity of the crane for approximately 15 minutes during the period between the third lift and the incident), he saw "people standing around" panel five but did not see any person mount the panel or any work occur on the panel prior to the incident occurring should be accepted;

(6) Whether there were Abigroup employees present in the vicinity of panel five when work commenced on the panel after the third lift and the ensuing discussion between the supervisors;

(7) Whether the following aspects of Mr Harris' evidence may be accepted:

(a) His recollection that "when the panel came in [after the third lift] someone asked would it be right to get on";

(b) That he made a suggestion (which was "agreed" to) during the discussion which took place after the third lift of panel five that the work of unclipping the rail should commence after the panel had been disconnected from the crane and the crane moved on.

107 As was earlier noted, there was also an issue regarding the employment of Mr Dixon (specifically, whether Mr Dixon was an employee of GTE). Whilst not strictly a factual issue per se, it is convenient to resolve that question in this section of the judgment. That shall occur below at the conclusion of the resolution of the factual issues listed above.

108 Most of the contentious factual issues identified above shall be resolved after the setting out of some elements of the evidence bearing upon the issues and a summary of the submissions of the parties on those questions. What appears immediately below is a description of the evidence bearing upon each of the issues (during the course of that description some of these issues shall be resolved). In order to give context, some further slight traversing of uncontentious areas will be necessary.

Discussion of Evidence relating to Contentious Factual Issues

The lifts before the third and final lift

109 As a precursor to the discussion of these issues, I propose to extract a section of the written submissions of Mr S Crawshaw SC who, together with Ms A M Mitchelmore of counsel, appeared on behalf of the prosecutor, which deals with the first and second lifts of panel five (and relating to the factual issue referred to above at [106(3)(a)], which I accept (footnotes omitted):

39. According to Mr Ford, when Panel 5 was close to the ground an unidentified "young supervisor", told him that he wanted the panel butted up against the previously installed panel. Mr Ford said that the crane crew did this and that the work crew and young supervisor were in the vicinity at that time. His evidence in the latter respect is not supported by other witnesses, who said that they were standing well clear of Panel 5 when it was lifted in.

40. According to Mr Ford, when Panel 5 was butted against the previous panel, it did not line up with the previous panel, with a gap of about 50-60 mm. When Mr Horan walked up and had a look at the Panel, the misalignment was obvious. He rang Mr Harris, and made radio contact with Mr Brett Schliebs, from Track Australia, which company was responsible for the crossover replacement at the other end of the site. Mr Harris recalled receiving a call from Mr Horan at approximately 10.20 pm, telling him that there was a problem with the crossover and an issue with the rails, and asking Mr Harris to come and see him. At that time, he was in the course of a shift handover with Mr Drewe and was at the eastern end of the site.

41. Mr Horan also sought assistance from Mr Jason Stewart, who was a surveyor on the site. According to Mr Horan, Mr Stewart was already in the area, as part of the survey team allocated to that part of the job. Mr Stewart's recollection was that he was contacted by Mr Horan when he was carrying out survey works relating to earthworks at the western end of the job. His evidence was that the panel was not lifted or moved whilst he was there.

42. Mr Ford recalled the young supervisor telling him that he would have to get his supervisor to come up to check what had to be done. He then gave Mr Jones an instruction to "come off on the weight [and] we'll rest it completely on the ground".

43. Mr Harris recalled that when he and Mr Drewe arrived at Mr Horan's work area, Mr Horan showed him the intersection of the fourth panel and Panel 5, and said to him "There's an issue with this rail, it appears to be over long". He agreed with Mr Horan, noting that in looking at the intersection of Panel 5 and the previous panel it was "obvious" that "one rail was longer than the others and it was touching its corresponding rail on the in situ fourth panel, but the other rails weren't touching, were some distance apart from their corresponding rails".

44. According to Mr Harris, Mr Horan and Mr Drewe, there was then a group discussion as to how to rectify the misalignment. Neither Mr Harris nor Mr Horan could remember what was actually said in the discussion, but said that the outcome of it was an agreement "that we would unclip a particular rail and use the excavator to nudge it forward and see if that repaired the misalignment". Mr Drewe's recollection was that he made a suggestion of that nature, but that he left the area before a decision was made.

45. According to Mr Ford, after waiting some 10 or 15 minutes whilst the supervisors were having a discussion, one of the supervisors told him that they needed to move Panel 5 away, hit the clips out of one of the rails that was protruding too far and hit it back with an excavator. After clearing the area, he told Mr Jones to "keep his eye on the radius, come up on the hook and we'll slew back to our right, put it back on the ground so they can adjust the railway". When the load was put back on the ground, he told Mr Jones to lose all of the weight.

46. A number of workers then hit clips out of one of the rails on Panel 5, and an excavator was used to move that rail backwards.

110 I will return to Mr Ford's evidence. However, I find that Mr Ford's evidence that the work crew were in the vicinity of the panel five whilst the second lift of that panel was occurring cannot be accepted. The preponderance of the evidence was that workers, other than the crane crew, moved away and kept clear when the crane was lifting and slewing loads. Further, they understood their obligation to do so.

Mr Dixon's evidence regarding a "bow" in the rail

111 This matter concerns the factual issue identified earlier in this judgment at [106(1)].

112 As has been earlier discussed (above at [75] to [77]), there was an issue as to the evidence of Mr Dixon that he observed panel five, following the third lift, to be suspended off the ground. I rejected the evidence of Mr Dixon in this respect, and concluded, at [77], that the panel was rested on the ground after the third lift and remained in that state until the time of the incident.

113 There was a further issue as to a related aspect of Mr Dixon's evidence, namely, as to his observation of a "bow" in a rail on panel five. When asked whether he observed any changes in the panel whilst participating in the work of unclipping rails from panel five following the third lift, Mr Dixon said "there was a bow in the - in the rail itself, you know, it's bowed."

114 It was submitted by counsel for the prosecutor that, despite his concession that the evidence of Mr Dixon to the effect that he observed the panel to be off the ground should be rejected, there was no reason why his evidence as to his observation of a "bow" in the rail should not be accepted.

115 Mr Hodgkinson submitted that there could not be a "bow" in the rail without the panel being suspended and, therefore, given Mr Dixon's evidence about the panel being suspended could not be accepted (as I have already found), nor could his evidence about the "bow".

116 Mr Dixon's evidence as to the "bow" in the rail was given in the context of an observation that was plainly wrong (that is, as discussed above, that the panel was off the ground) and was not corroborated by any other witness. In that light, I reject Mr Dixon's evidence in this respect.

Alleged exchange between Mr Ford and a "young supervisor"

117 This matter concerns the factual issue identified earlier in this judgment at [106(3)(b)]. The following discussion also relates to the later consideration of whether the crane crew were aware that panel five remained under weight after the third lift.

118 When the panel was winched down to the ground, Mr Ford attested he had an exchange with a "young supervisor". Mr Crawshaw submitted, in this respect:

Mr Ford did not identify the "young supervisor" to whom he says he gave that information. If there was in fact a "young supervisor" to whom Mr Ford spoke, that person cannot have been Mr Harris or any other Abigroup supervisor. This is because, the person described by Mr Ford as the "young supervisor" had been present during the positioning of the first two panels that night (Ford T120.42 - T121.17, T130.35, T134.38). Neither Mr Harris nor any other Abigroup supervisor was present during the positioning of all three panels.

119 Mr Ford's evidence in chief as to this matter was as follows:

Q: After that what happened to the panel, in terms of the crane?

A: When it was out of alignment again the young supervisor said, "I'll have to recall the supervisor to come back up, to have another look at it". I said, "Okay". I said, "I'll just rest it on the ground but I won't lose the entire weight and don't do anything until you come and see me"; that way it wasn't suspended and it couldn't move around. There was still weight on the chains but it couldn't go anywhere.

120 One passage of Mr Ford's cross-examination had him combining his instruction to Mr Jones on the third lift with his evidence regarding the "young supervisor":

Q: So it was put down. Did you give an instruction to Joe to put it down?

A: Yeah I said to Joe I said just come down and put it on the ground we'll rest it because it's out of whack, we won't drop all the weight and I said to the young guys don't do anything until you come to me cause it's still under weight.

121 Mr Ford maintained this evidence vehemently throughout cross-examination (for example, see the transcript extracts set out at [130] and [138] below).

Mr Horan's evidence that he instructed a dogman to "drop" the load after the third lift of panel five

122 This matter concerns the factual issue identified earlier in this judgment at [106(2)]. For present purposes, I will describe the contentious evidence for later consideration.

123 There was an issue regarding the statement made by Mr Horan in a WorkCover interview to the effect that he had asked a dogman to "drop" panel five approximately 20 minutes before the incident whilst discussions were held as to how to rectify the alignment problem after the third lift. The WorkCover interview was not tendered in the proceedings, however, Mr Horan was cross-examined on the matter by Mr J V Agius SC, who appeared on behalf of GTE. The following exchange occurred:

Q: Can you just confirm then that in part answer to that question you said to the inspector, "absolutely not. We had asked the dogman to drop it there whilst we worked out how to fix it"?

A: Yes that was my answer.

Q: Were you also asked by the inspector the next question, "Did you ask anyone whether the panel was under weight?" And did you give this answer, "We had asked for it to be dropped there for now approximately 20 minutes prior to the accident whilst we were sorting out the misalignment"?

A: That's right.

Q: What words were used, what words were directed to the dogman?

A: Drop it there.

Q: And did you at that point see the panel drop there on the ground?

A: It was on the ground.

Q: And did the dogman ever tell you that contrary to what he had been asked it had not been dropped to the ground?

A: No.

Observations of panel five by the crane crew following it being lowered to the ground after the third lift and prior to the labourers mounting the panel and commencing the removal of Pandrol clips

124 This matter relates to the factual issues identified earlier in this judgment at [106(3)(c)], [106(4)(a)] and [106(5)]. This discussion overlaps with the consideration which directly follows of the observations by the crane crew at or about the time of the incident as work commenced to remove Pandrol clips from the rail. Both issues will be resolved under the heading "Consideration of the remainder of the evidentiary issues".

Mr Ford

125 There were two categories of evidence relevant to the question of whether it should be accepted that Mr Ford did not see any persons, in particular, the supervisors, mount or walk upon panel five after the third lift and prior to work commencing on the panel. Those categories related, first, to the matter of where Mr Ford was positioned during the 15 to 20 minute period between the third lift and the incident and, secondly, to the matter of his observations and behaviour during that period. In each case, the evidence of both Mr Ford and others, in particular, Mr Fetherston, bore upon the question and shall, accordingly, be included below.

126 The evidence relating to the matter of Mr Ford's positioning during the period between the third lift and the incident was relevant to both the question presently under consideration and the related question, which is discussed separately below, of whether it should be accepted that he did not see the labourers approach, mount and commence work upon the panel shortly prior to the incident. For convenience, that evidence shall be set out presently, although it should be noted that it shall be drawn upon in the later resolution of both questions.

127 In cross-examination by Mr Hodgkinson, Mr Ford explained, by reference to photographs tendered in the proceedings, that he stood in a position, during the 15 to 20 minute between the third lift and the incident, at the edge of the left hand side of the panel. He was on the same side as the crane on the corner closest to the previously installed panel "1-4". He stated he had his back to the panel and was looking in the direction he expected to see the supervisor approach from. He was standing at this location for about 15 to 20 minutes before the incident. That evidence was as follows:

Q. What did you do then, you went to some corner I think you told us you were looking at the direction where the supervisor was to come?

A. Yes.

Q. Whereabouts was that position?

A. On the left hand side of the panel.

Q. Panel number 3 or was it the previous panel?

A. Panel number 3 because it was a wider panel than the previous panel.

Q. Were you actually on the panel or next to it?

A. I was next to it.

...

Q. You positioned yourself in the corner. Were you on the same side of the panel as the crane or the opposite side?

A. The same side as the crane.

Q. And were you in the corner that was closest to the panel that had previously been put in, the second panel?

A. Yes.

Q. So you were looking in the direction of the supervisor?

A. Yes.

...

Q. Well there's no doubt about where you were standing, is there?

A. No

128 Mr Ford was not asked to explain, and did not give evidence about (except to say he had his back to the panel), in which direction he was looking (that is, from which direction he expected to see the supervisor approach). However, it may be inferred from the evidence of Mr Harris, to the effect that he had approached the panel on the first occasion (following the first lift) from an easterly direction, that, if Mr Ford was expecting the supervisor to come from the same direction, he would have been directing his gaze roughly to the right, that is, away from the crane. Mr Fetherston also gave evidence to the effect that the site sheds were located away from the panel to the right of the crane, in the direction of the previously installed panels.

129 Mr Fetherston gave evidence, in cross-examination by Mr Hodgkinson, that he was standing at the opposite end and opposite corner of the panel to Mr Ford. In other words, he was standing at the end of the panel at which the crane was located, on the opposite side of the panel to the crane.

130 In relation to his observations of panel five during the period between the third lift and the commencement of work on the panel, Mr Ford gave evidence that he did not recall a number of supervisors coming to the end of panel five and having a discussion during this period. Nor did he recall the supervisors stepping on to the panel (the cross-examination referred to panel three, but examination of the witness was clearly in relation to panel five). This was the same location in which he stated he was standing with his back to the panel. Mr Ford maintained that, during that time, he had his back to the panel and was looking away from the panel waiting for a supervisor to approach. He was cross-examined in that respect as follows:

Q. But Mr Ford, you've told us that the position that you were in after the third lift, was to the side of the third panel, at the corner on the crane side, the area next to the second panel, the end next to the second panel, haven't you?

A. Yes.

Q. So if there were a group of supervisors, three or four supervisors standing around, moving backwards and forwards from the third panel at that end that butted up against the second panel, you must have seen them, mustn't you?

A. I was waiting, as I said before, I said to that young supervisor, "Don't do anything until you come and see me because there's still weight on the chains", and I can't recall seeing anybody else come up to that side.

Q. So apart from the one other person that you spoke to?

A. Yes.

Q. Are you saying that you don't recall any other person coming up to that area at the end of the third panel butting up against the second panel?

A. No supervisors, no. There was other workmen around the area, but no.

Q. I'm putting to you that there were, in fact, supervisors, three to four supervisors who were there for a period of about 10 minutes, approximately 10 minutes in that very area having a discussion about the problem?

A. I can't recall that.

Q. If they were there you must have seen them?

A. If they were there, they were there, but I can't recall.

131 Mr Ford gave evidence as to what he was doing during the 15 to 20 minute period, which included a communication to Mr Fetherston in relation to Mr Jones wanting a cup of coffee at a point of time following the third lift. The evidence as to Mr Fetherston's actions shall be set out in full below. It is, however, necessary, in order to place in time the communication referred to by Mr Ford, to refer to a particular aspect of Mr Fetherston's evidence at this juncture. Mr Fetherston gave evidence that he left the vicinity of panel five after the third lift for a period of approximately 15 minutes, and returned to the area approximately 5 minutes prior to the incident, in order to obtain coffee for himself and Mr Jones. That evidence was confirmed by Mr Jones. It may be inferred from that evidence, and the approximate timings contained therein, that Mr Fetherston left the vicinity of the panel within a few minutes of the third lift occurring and, therefore, most likely prior to or around the time the supervisors commenced the second discussion on and around the panel.

132 Mr Ford's evidence was that he had communicated with Mr Fetherston directly at some time following the third lift and prior to Mr Fetherston leaving the vicinity of the panel to fetch coffee. In other words, he had conversed with Mr Fetherston before or around the time the supervisors approached and stepped onto the panel. That evidence was as follows:

Q. Were you communicating with him during this period after the third lift?

A. In what respect?

Q Were you communicating with him at all?

A. I'd spoken to him, yes, from my recollection.

Q. By radio or directly?

A. Directly, that I can remember.

Q. What did you say to him?

A. I can't recall.

...

Q. So Joe wanted a cup of coffee at that time, to your recollection?

A. Yes.

Q. How did you find that out?

A. I think Mick might have asked me did I want a cup of tea, and I said no.

Q. Mr Fetherston asked you something like that and you said no, and what did he do then or don't you know?

A. I can't recall, I don't know.

133 As to that communication, Mr Fetherston deposed that, whilst, from his original position at the opposite end and opposite corner of the panel to Mr Ford he could not hear Mr Ford directly (that is, without the use of a radio), when he moved to a position at the end of the panel where it abutted the previous panel, remaining on the side of the panel opposite the crane (in other words, a position directly across the panel from where Mr Ford was situated), he "could have" had a conversation with Mr Ford across the panel. Mr Fetherston also gave evidence that he could hear, from that position, a conversation occurring on the other side of the panel (that is, the side on which Mr Ford was positioned). That evidence was in the following terms:

Q. Now, how long - I am sorry, what did you do after it was put on the ground?

A. Waited, we waited.

Q. Where did you wait?

A. I walked back up to the other end of the panel.

Q. Yes?

A. And found out what was going on and they wanted to get some engineers or a supervisor or somebody like that to come down and have a look at it.

Q. Who did you find that out from?

A. I heard these men talking.

...

Q. You got a cup of coffee for the crane driver?

A. That's right.

Q. Did you ask him first whether he wanted a cup of coffee?

A. I can't remember. I think he asked me for a cup of coffee.

Q. How did he do that?

A. Well, he - I think he asked Kim, I think. I think he asked Kim over the radio.

...

Q. Did you make a cup of anything for Kim?

A. No, no. No, I didn't.

Q. Why not?

A. He did not want one, actually. I remember he said he did not want a cup as I walked up there.

...

Q. And you had moved to that - did he have a conversation with you on that side of the panel about his - him not wanting a cup of coffee?

A. I am not sure. I am not sure.

Q. You could have been talking to him across the panel?

A. Could have been.

Mr Jones

134 Mr Jones' evidence was that he was seated inside the cabin of the crane. He watched what was "going on down there" and going on "up there" (observing some welding and some work on the ballast either side of the panel), but he did not observe work occurring on the panel. He had interaction with Mr Ford and Mr Fetherston (Mr Fetherston went to get himself and Mr Jones a cup of coffee, which Mr Jones was still drinking at the time of the incident).

135 However, under cross-examination, Mr Jones, after agreeing that he could observe the panel which was under weight (and, therefore, still the responsibility of the crane crew), he gave the following evidence:

Q: Did you observe people to come on to that, to stand on the panel at the end of the panel that was where the trouble was where it wasn't butting up to the rails that had already been installed?

A: I think people walked onto the panel, but it was still under load, yes.

Q: If it was under load they weren't supposed to be on the panel?

A: That's correct.

Q: You do now recall that they did walk on to-

A: I'm pretty sure that when the bloke come back up they were sort of pointing and looking, and I think someone walked onto the panel, I don't know.

...

Q: And I want to suggest to you one or two or three even got on and move the panel that was still attached to your crane?

A: They could have done, yes.

Q: But you didn't advise them not to?

A: I'm pretty sure me dogman or rigger--

Q: You didn't advise them?

A: I didn't, no.

Q. You didn't see Mr Ford come in to move them away from the panel?

A. If they went in there they would have been with.

Mr Ford.

...

Q: You say that you were looking from time to time at other things that were happening up and down the rail?

A: Yes.

Q: And that means that you were turning your head because your chair didn't turn?

A: That's right.

Q: You then say that you saw people on the panel?

A: After I heard banging noises.

Mr Fetherston

136 Mr Fetherston deposed that he walked to the site shed to make cups of coffee for himself and Mr Jones (taking him away from the vicinity of the panel for a period of approximately 15 minutes). He delivered the coffee to Mr Jones in the crane cabin, requiring him to walk along the panel in between the crane and the panel. He recalled seeing, upon his return from the site shed, "people standing around" near the panel.

Observations of the crane crew at or about the time of the incident as labourers mounted panel five and work commenced to remove Pandrol clips from the rail

137 This matter relates to the factual issues identified earlier in this judgment at [106(3)(c)], [106(4)(a)] and [106(5)]. This discussion overlaps with the preceding consideration as to the observations by the crane crew of panel five after it was lowered to the ground after the third lift and prior to the commencement of work.

Mr Ford

138 Mr Ford's evidence was that, whilst he turned around to face the panel at one stage approximately five minutes prior to the incident, he did not see any workers in the vicinity of or on the panel. Mr Ford stated that, after he "heard some banging", he turned around to face the panel. His evidence was:

Q: What's the next thing that you remember happening?

A: I heard some banging and I've turned around and tried to get hold of the radio to tell Joe to drop some weight, the chain sprung up.

Q: How long was it between when you first heard the banging and when you turned around?

A: I don't know, there was a lot of noise going around there was a lot of banging and you just hear different noises and it grabs your attention.

Q: This was happening behind you wasn't it?

A: Yes.

Q: There was no other noise happening behind you, was there, on this night?

A: Well you've got loaders and dump trucks running around everywhere.

Q: Was the banging clear, was it a clear, different noise?

A: It just sounded something different.

Q: How long between when you first heard something different, the banging, and when you turned around?

A: Could have been a minute, couple of minutes.

Q: Did you react quickly or slowly?

A: When I turned around, I looked and there was guys there, and that's when I grabbed the radio and told Joe to lose weight.

Q. At all times, whilst there was weight on the crane, you were responsible for that load as the dog man, weren't you?

A. Yes.

Q. And you were responsible to make sure that nobody got on to that load, weren't you?

A. Yes.

Q. So why were you looking away from the load for 15 minutes?

A. I was waiting for the other supervisor to come up who was supposed to talk to the young supervisor who was in charge of the load.

...

Q. Approximately 15 minutes whilst you're responsible for the load, you didn't look at it once; is that right?

A. No, I may have turned around and looked at it, but I was looking away at the time.

Q. At what time?

A. Of the actual when it happened.

Q. You mean at the moment that the rails started to come off the sleepers as a result of being unpinned, is that when you say you were looking away?

A. Yes.

Q. When, immediately before that, how long had it been before you looked away?

A. I can't recall.

Q. Was it minutes, was it seconds, how long was it, Mr Ford?

A. Maybe a couple of minutes, 5 minutes.

Q. So in a period of about 5 minutes, you say when you looked at the load, was there anybody on it?

A. No.

Q. You say from that time, people had got on the load in that proximate 5 minutes period?

A. It's a possibility, yes.

Q. It's not likely without you seeing them, is it?

A. I had me back towards them.

Q. It's not likely though, without you seeing them, is it?

A. I had me back towards them.

Q. If anybody was in the vicinity of that load, getting on to it, you would have seen them, wouldn't you?

A. If I was looking at the load, yes.

Q. It was your job to do that?

A. If I was looking at the load, yes.

Q. It was your job to do that, Mr Ford?

A. If I was looking at the load, yes.

Q. It was your job to make sure nobody got on that panel whilst it was still under weight?

A. I told that supervisor not to do anything to that panel unless they come and seen me because it was still under weight.

Q. I put it to you that you're mistaken?

A. I am not mistaken. I know what come out of my mouth on that night and they were my exact words.

139 Mr Ford further deposed that, at the time just prior to the incident, he was aware that Mr Fetherston, having returned from the site sheds with coffee for himself and Mr Jones, was situated in a position somewhere between himself and the crane. That evidence was as follows:

Q. At the time that you were standing after the third lift, in this corner that you've described, do you recall where Mr Fetherston was?

A. To my knowledge, he was over to my right.

Q. So to your right, looking in the direction that you say you were looking in, is that away from the crane?

A. No, he was to the right of me, to my recollection?

Q. To work out which orientation that is, I have to know which way you were facing, you see. Are you saying at the time you were standing in the corner looking out for the supervisor, that he was to your right or at some other time?

A. He was towards the crane.

Q. So he was between you and the crane.

A. Yes.

140 Mr Fetherston's evidence was that, having returned to the vicinity of the panel with coffee for himself and Mr Jones, he saw Mr Ford having a discussion with some labourers holding sledgehammers. That evidence was as follows:

Q. He was standing there. What was he doing?

A. He was just standing there, I would say looking after the job.

Q. So by "looking after the job" what do you mean?

A. Seeing what was going on, seeing that people are doing the right thing and whatever else.

Q. Does that mean he was looking at the panel in that area?

A. Yeah, he would have to be yeah.

...

Q. You remember when you left he was there?

A. Yes.

Q. But you don't remember whether he was there when you came back?

A. I remember he was there when I was standing next to the crane ready to hand the coffee up to Mr Jones - one of two, I really - but he was there. I know he was there.

...

Q. And at that time was he standing in the same sort of area?

A. Yeah.

Q. What was he doing?

A. He was talking to some labourers by the look of it.

...

Q. And where were the labourers?

A. They were close to him, some was close to him, and - I am just trying to think. I think there was some standing out wide towards the crane but back down this end also so, so, yeah.

...

Q. In the vicinity of Mr Ford?

A. Yes.

Q. He was at that stage looking in their direction?

A. That's right.

Q. Did those labourers have with them sledge hammers?

A. Yes. I remember some had sledge hammers because they were leaning on something like council workers or whatever, hanging onto a handle, yeah that is what I --

Q. Just some of--

A. Some of them. I vaguely remember some of them leaning on hammers.

Mr Jones

141 As to his knowledge of the labourers getting on to the panel and conducting the work of removing Pandrol clips from the panel, Mr Jones stated:

Q: And you, of course, had been able to hear the banging on the first operation?

A: Yeah.

Q: When they had undone clips?

A: Yeah.

Q: Was it the same sort of sound that you were hearing on this second time?

A: I could hear people hitting with hammers and when I turned around there was three or four blokes standing on the panel hitting in the direction of where the clips were-

Q: I understand that, Mr Jones?

A: --and then it let go.

...

Q: As I understand your evidence, you didn't see the people with the hammers actually get on to the panel?

A: No, I didn't. I didn't know they were on there until I heard the banging.

142 Mr Jones said he heard a number of loud bangs:

Q. Did you notice anything after that?

A. When I heard the bangs, I immediately looked back towards where the panel was and I seen there was blokes on the panel, and they were swinging hammers in the direction of the pins. I couldn't actually see them hitting the pins, but that's the area they were swinging the hammers. I've got the mike to the radio in me cab, sitting there right beside me ear. I went to grab the mike to speak to Kim. As I pushed me right hand forward to hit the luff lever to boom the weight off the load. And as soon as I grabbed that, it just all let go. And that's all I know, and the rest is a nightmare.

143 His evidence was that it was a matter of seconds, rather than minutes, between his hearing the "bangs" and the rails coming free.

Mr Fetherston

144 After returning from the site shed with coffee for Mr Jones and himself, Mr Fetherston deposed that he stood between the crane cabin and panel five drinking his coffee. He gave evidence that it "[m]ight have been five minutes" whilst he was standing drinking coffee prior to the incident occurring. He said that, as he was drinking coffee on the ground beside the crane, he recalled "just seeing people standing around" in the vicinity of the panel. Mr Fetherston said he saw some men get up on panel five "very quickly" and "heard a bang" just before the rails came free. In examination in chief Mr Fetherston deposed:

Q. And how long had you been present back in the vicinity of the panel when the incident took place?

A. Well, I was hanging around - I was standing around near the crane, having a cup of coffee.

Q. Sorry, in the crane?

A. No, beside the crane on the ground. On the ground. Might have been five minutes. I'm not sure - not sure how long.

Q. And did you make any observation as to what was occurring during that time?

A. I remember just seeing people standing around.

Q. You say you were there when the incident took place. What did you actually see when the incident took place?

A. I seen some men get on to the panel very quickly and I heard a bang, and all of a sudden the railway - all the railway lines just come together and that was it.

145 In cross-examination by Mr Hodgkinson, Mr Fetherston deposed:

Q. You went and made the coffee. You brought one back for the crane driver?

A. That's right.

Q. What did you do?

A. I gave him a cup of coffee and I am not sure if I walked around the back of the crane and had a look at the next lift and then come back, back around the crane again.

Q. When you gave him the cup of coffee he was in the cabin of the crane?

A. That's right.

...

Q. Do you remember seeing the panel as you were walking up to the crane with the coffee towards Mr Jones?

A. I - I would say I would have had to have seen the panel.

...

Q. Did you see anybody on the panel?

A. No, I didn't see anybody on it.

State of knowledge of the crane crew as to the panel being under weight

146 This matter relates to the factual issues identified earlier in this judgment at [106(3)(d)] and [106(4)(b)]. This discussion overlaps, as has been noted, with several of the issues considered above.

Mr Jones

147 Mr Jones gave evidence that, on the third lift of panel five, on the instruction of Mr Ford, he lowered the panel to touch the ground. In so doing, he dropped some (but not all) weight off the crane (the crane still had approximately 30 tonnes of weight on it). Again, as earlier noted, that information was available to Mr Jones on a gauge situated in front of his chair in the crane cabin. His evidence was that nobody spoke with him about the panel still being under weight, except Mr Ford in the course of giving instructions.

148 The effect of that evidence was maintained by Mr Jones in cross-examination. When it was put to Mr Jones by Mr Agius that he may have forgotten the panel was under weight, Mr Jones replied as follows: "No, I knew the panel was under weight. The dogmen knew the panel was under weight." It may be recalled that this evidence was given in the context of further evidence given by Mr Jones (set out earlier) to the effect that he saw between one and three people walk on to the panel during the 15 to 20 minute period between the third lift of panel five and the incident.

Mr Ford

149 Mr Ford gave evidence that he instructed Mr Jones to rest panel five on the ground after the third lift but not to lose the entire weight.

150 In cross-examination by Mr Hodgkinson, Mr Ford deposed, in the same respect, as to the following:

Q: So it was put down. Did you give an instruction to Joe to put it down?

A: Yeah I said to Joe I said just come down and put it on the ground we'll rest it because it's out of whack, we won't drop all the weight and I said to the young guys don't do anything until you come to be cause it's still under weight.

...

Q. You knew that this panel was under weight?

A. Yes.

Q. So you wouldn't allow anybody to get on this panel, would you?

A. Correct.

Q. If you saw a supervisor standing on the panel, you'd have told him to get off the panel because it was still under weight?

A. Of course.

Q. The rule about who you can tell to move out of the way whilst the lifting operation is going is, everybody on the site has to obey what you say, don't they?

A. Correct.

Q. So if there was a supervisor standing on the panel, then you would have told them to get off because you knew it was under load?

A. Yes, shouldn't have been anywhere near it.

Q. What I want to put to you is this, that your recollection is mistaken and that in fact, after the third lift, so when the panel has been put down, and there's still weight on the crane, there was more than one supervisor looking at the problem at that time. Do you agree or disagree with that?

A. I can't recall.

151 As earlier set out, at [138] of this judgment, Mr Ford gave evidence to the effect that, approximately five minutes prior to the incident occurring, he did not see any person standing on the panel although it was "a possibility" that persons had mounted the panel during that period.

Mr Fetherston

152 As noted, Mr Fetherston gave evidence to the effect that he could not recall and did not know whether panel five remained under weight and was not informed of that fact by either Mr Jones or Mr Ford. When asked by Mr Agius in cross-examination, Mr Fetherston deposed that, if the panel was to be rested on the ground but left under weight, he would have expected to be informed of that matter by Mr Ford. I accept the evidence of Mr Fetherston in this respect (which evidence was not disputed between the parties).

Presence of Abigroup employees at the commencement of the work giving rise to the incident

153 This matter concerns the factual issue identified earlier in this judgment at [106(6)].

154 As previously noted, an instruction was given to commence work upon panel five to unclip the rails.

155 As part of its contentions that Abigroup employees were not exposed to "the risk", it was contended that Mr Harris had left the area of the lift and headed towards the site shed prior to any instruction being given to the labourers to get on to the panel and remove the Pandrol clips.

156 The prosecutor accepted the evidence of Mr Harris that he left the panel when the discussion concluded and before work commenced. Mr Crawshaw submitted, in that respect, that Mr Harris' evidence that he left the panel when the discussion concluded was corroborated by Mr Horan (although Mr Horan could not recall whether work had commenced before Mr Harris left). Mr Stewart could not recall Mr Harris leaving before the labourers went on to the panel to conduct work, but accepted that it was possible. Mr O'Sullivan could not recall whether Mr Harris left the conversation prior to work commencing, but said that "he certainly may have". I have already found (at [81] above) that Mr O'Sullivan (perhaps in conjunction with MrHoran) gave the instruction to the labourers to begin work on panel five (thereby rejecting the evidence of Mr Dixon that it was Mr Harris who issued that instruction).

157 Mr Drewe gave evidence that he left the work area of panel five prior to the conclusion of the first conversation regarding the adjustment of panel five following the first lift. Mr Horan specifically recalled saying goodbye to Mr Drewe at this stage, noting that "he was out after the first discussion if you like".

158 Mr Green gave evidence in a WorkCover interview dated 26 November 2010, that he was about 75 metres away from the panel, towards the western end of the site, at the time the incident occurred.

159 Mr Cini gave evidence that he worked at the site on the day shift on the day of the incident and had done a shift handover to another safety officer, Mr Gavin Wright, at about 3pm that afternoon.

160 I agree with the submission of the prosecutor that the evidence of Mr Harris that he left the area of the panel after the conclusion of the discussion and prior to work commencing should be accepted. I also accept the evidence of Mr Drewe, Mr Green and Mr Cini (which evidence was not disputed) to the effect that none of those men were in the vicinity of the panel at the time work commenced to remove rails after the third lift.

Mr Harris' recollection of an inquiry as to whether panel safe to stand on

161 This matter concerns the factual issue identified earlier in this judgment at [106(7)(a)].

162 After panel five was lowered to the ground on the third occasion, Mr Harris and Mr Stewart stood on the panel to inspect the misalignment.

163 Mr Harris, in examination in chief, gave the following evidence:

Q: When you stood on the panel did you know whether the panel was under weight or not?

A: No.

...

Q: During the time you were there having these discussions did anyone ask the crane crew where [sic] the panel was under weight?

A: No. We wouldn't have stepped on the panel if we knew it was.

Q: Please just answer the question Mr Harris--

A: No.

Q: Did anyone ask?

A: It's my recollection that when the panel came in someone asked would it be right to get on.

Q: Who was that?

A: I can't recall, it probably would have been someone from Taylor Rail group.

164 It was the submission of the prosecutor that Mr Harris' evidence that he recalled someone asking whether the panel was "right to get on" was not corroborated by any other witness and should not be accepted. His evidence in cross-examination by Mr Hodgkinson was that none of the crane crew had warned the supervisors against walking on the panel or, once they had mounted the panel, to remove themselves from the panel.

165 Each of the crane crew gave evidence that they did not speak to any person about the state of the panel after the third lift. Mr Horan could not recall anyone asking the crane crew whether it was safe to get on the panel.

Whether Mr Harris made a suggestion which was agreed to in the course of the second discussion that the crane would move on before any work commenced on panel five and whether, as a result, any Abigroup employees were aware that the work of removing Pandrol clips from rails on panel five would be undertaken whilst the panel was still attached to the crane

166 This matter concerns the factual issue identified earlier in this judgment at [106(7)(b)].

167 As earlier mentioned, there was a discussion between Mr Harris, Mr Drewe and Mr Horan following the first lift of panel five concerning the misalignment and its correction. This resulted in the second lift and the work conducted on the panel thereafter. There was another discussion (earlier referred to in this judgment as "the second discussion") between Mr Harris, Mr Horan, Mr Stewart and, briefly, Mr O'Sullivan regarding further adjustments to panel five following the third lift when it again became evident that the panel was still misaligned.

168 Each of the crane crew gave evidence that there was a delay of some 15 to 20 minutes after the third lift of panel five and before work was undertaken to realign the rails. This was confirmed by the evidence of Mr O'Sullivan. Mr Stewart gave evidence that the second discussion occurred over a 15 to 20 minute period. Mr Horan could not recall how much time passed between the third lift of panel five and the commencement of work. As already noted, Mr Harris had left the vicinity of the panel prior to work commencing.

169 Mr Harris gave disputed evidence that he had suggested the misaligned bearers on panel five should be adjusted by means of an excavator after the crane had moved on. In other words, it was Mr Harris' understanding that the work of removing Pandrol clips would commence once the panel had been disconnected from the crane. He also gave evidence it was his understanding that his suggestion to that effect had been agreed to by the other persons involved in the discussion.

170 In examination in chief, Mr Harris gave the following evidence, in this respect:

Q: So what happened after that?

A: The panel was placed down and there was a discussion about what to do next.

Q: Who was involved in that discussion?

A: Myself, Tim Horan, one of his supervisors was also there, I think Adam was still around at that time. The issue was the bearers weren't square to the rail.

Q: What did you say during that discussion?

A: As I said, the bearers not being square meant that now the panel couldn't be installed correctly; it had been constructed incorrectly previously, but that wasn't apparent until we tried to install it. So we would - the crane could move on and we could reposition the bearers while the crane had moved on.

Q: That's what you said?

A: That was my suggestion, yes.

Q: Was that suggestion agreed to by the others?

A: My understanding it was.

...

Q. Did you make a suggestion as to how to remedy that?

A. Yes.

Q: What was your suggestion?

A: That we could realign the bearers and the rail using an excavator at a later time.

Q: What was said about that?

A: That was agreed, as far as I understood, because the rail and the bearers were out of square.

Q. What happened next?

A. It's my understanding that was agreed. I left the site - I left that area and made my way to the client's crib hut.

171 I will pause here to deal with a ruling given in relation to Mr Harris' evidence.

172 During the course of the proceedings, the prosecutor made an application under s 38(1)(c) and (a) and, in the alternative, s 38(1)(b) of the Evidence Act 1995 (although, it may be noted, no submissions were ultimately advanced by the prosecutor in relation to s 38(1)(b)), seeking leave to question Mr Harris by cross-examination with respect to an answer given by him in a WorkCover Statement of Interview dated 4 June 2009 and a series of answers given by him in respect of the same issue in examination in chief. The WorkCover Statement of Interview was admitted, over objection by Mr Hodgkinson, as evidence in the proceedings in a redacted form with the parts of the Statement not relied upon by the prosecutor and those excluded by the Court under s 87(1)(b) of the Evidence Act deleted (see exhibit 18 in the proceedings). The relevant answer given by Mr Harris in his WorkCover Statement of Interview was as follows (emphasis added):

Q42 Were you aware of the men being on the panel removing the mid rail?

A42. Yes. I was there when the midrail was moved and then the panel was then re-manouvred [sic] and it still wasn't correct when it was placed down again. And then there was another discussion and my understanding was at the end of the discussion that the panel would be re-moved again so that the bearers would line up and then the crane could then move on and set up for the next lift. And then I left the area after the discussion.

173 The relevant answers given by Mr Harris in examination in chief, which appear in the section of transcript extracted above (at [170]), are as follows (emphasis added):

Q: What did you say during that discussion?

A: As I said, the bearers not being square meant that now the panel couldn't be installed correctly; it had been constructed incorrectly previously, but that wasn't apparent until we tried to install it. So we would - the crane could move on and we could reposition the bearers while the crane had moved on.

...

Q. Did you make a suggestion as to how to remedy that?

A. Yes.

Q: What was your suggestion?

A: That we could realign the bearers and the rail using an excavator at a later time.

Q: What was said about that?

A: That was agreed, as far as I understood, because the rail and the bearers were out of square.

174 The prosecutor's application for leave in this respect was separated into two limbs. The first limb went to the part of Mr Harris' oral evidence related to the answer "at a later time". The second limb went to the method of work, in particular, the part of Mr Harris' evidence relating to the use of an excavator. Leave was granted for the prosecutor to question Mr Harris, as though the prosecutor were cross-examining the witness, in respect of the first limb but denied with respect of the second limb. The Court reserved its reasons for its rulings in this respect, but indicated that the rulings had been made under s 38(1)(a) and (c), having regard to the provisions of ss 135, 137 and 192 of the Evidence Act.

175 Those reasons may be shortly stated.

176 It was the submission of the prosecutor that the evidence given by Mr Harris in examination in chief was inconsistent with the answer, which appears above, given by him in his WorkCover Statement of Interview, in particular, the second part of the answer in which Mr Harris stated that: "there was another discussion and my understanding was at the end of the discussion that the panel would be re-moved again so that the bearers would line up and then the crane could then move on and set up for the next lift. And then I left the area after the discussion." That inconsistency arose, it was submitted, because there was no mention by Mr Harris in his Statement of Interview of an excavator being used nor that he had made a suggestion (which was agreed) that the next attempt to remedy the problem would occur at a "later time".

177 It was further submitted by the prosecutor that ss 135 and 137 of the Evidence Act were not applicable in the circumstances, in the sense that it could not be suggested, particularly given it related to a fairly confined area of questioning, that there was a danger that the evidence would be unfairly prejudicial to Abigroup or misleading or confusing for the Court such as to result in an undue waste of time. It was submitted that the evidence was important, going to the actual involvement of Abigroup personnel and the failures of Abigroup as particularised in the charge and that the Court would take this into account, under s 192(2)(c), in determining whether leave should be granted under s 38.

178 Section 38(1) of the Evidence Act is in the following terms:

38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party, or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement.

179 The prosecutor relied, in support of its submissions, upon the authorities of R v Lozano [1997] NSWSC 237 at 6 per Hunt CJ (Sperling and Barr JJ agreeing) and R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 at [5], [55], [57], [65] to [67] and [90] per Heydon JA (Dunford and Buddin JJ agreeing).

180 In Lozano, at 6, Hunt CJ wrote that the word "unfavourable", appearing in s 38 of the Evidence Act, did not necessarily require the witness or evidence itself to be adverse to the case of the party calling the witness, in the sense that the evidence denies that case or attacks other evidence upon which that party relies, but may be interpreted as meaning, simply, "not favourable".

181 In Le, Heydon JA found, at [55], that s 38 permits the party who obtains leave to question "as though the party were cross-examining a witness", but only "about" the three subjects described in paragraphs (a) to (c) of that section. As far as a s 38 examination elicits evidence of prior inconsistent statements containing hearsay, though they may be admitted merely on credit, they can also be admitted to prove facts asserted by reason of s 60 (regarding the hearsay rule not applying to evidence of previous representations) (Le at [57]). Heydon JA went on to say, at [65] to [67], that the purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s 38 order is false. Another must be to demonstrate that any prior statement inconsistent with it is true. His Honour concluded, at [67], that leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness' evidence on those subjects.

182 In relation to the first limb of the prosecutor's application for leave to cross-examine Mr Harris under s 38(1)(c) of the Evidence Act, I reject the submission put by Mr Hodgkinson that there was no inconsistency between the oral evidence given by Mr Harris in respect of his answer "at a later time" and the evidence given in his WorkCover Statement of Interview. It was the submission of Mr Hodgkinson that, by the words "my understanding was at the end of the discussion that the panel would be re-moved again so that the bearers would line up and then the crane could then move on" followed by the words "[a]nd then I left the area after the discussion", Mr Harris had indicated in his WorkCover Statement of Interview, in a manner consistent with his later oral evidence, that the work would be conducted at some later time, namely after the conclusion of the conversation and his departure from the area.

183 However, I consider that, when the answers given by Mr Harris in his WorkCover Statement of Interview and during his oral evidence are properly understood, an inconsistency is apparent. Mr Harris makes reference to his understanding that panel five would be "re-moved again so that the bearers would line up" after "another discussion" (being the discussion referred to in this judgment as the "second discussion") had taken place. He then stated that, after that had occurred, the crane could move on. That evidence was inconsistent with Mr Harris' oral evidence in examination in chief, in that Mr Harris there stated that the crane would first be moved on and the bearers would be realigned "at a later time", "while the crane moved on". There was also a further inconsistency in Mr Harris' evidence. That is, in his WorkCover Statement of Interview, Mr Harris stated that the panel would be "re-moved again so that the bearers would line up" whereas, in his oral evidence, he made no mention of the panel needing to be moved from its position abutting the previously installed panel in order for the work of realigning the bearers to be undertaken.

184 I also reject the submission of Mr Hodgkinson that the evidence given by Mr Harris in respect of the first limb of the prosecutor's application for leave was not unfavourable to the prosecutor such that leave should be granted under s 38(1)(a). It was submitted by Mr Hodgkinson, in this respect, in reliance upon the authorities of R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at [54] and [55] per Greg James J (Spigelman CJ and Smart AJ agreeing) and R v Maximo Pantoja (Unreported, Court of Criminal Appeal, Matter Number CCA 060174/97, 14 August 1988) at 53 per Adams J, that, in deciding whether or not the evidence of a witness is, in fact, unfavourable, as required by s 38(a) of the Act, the Court is not merely answering a question at large. The power to cross-examine a witness, it was submitted, was a very important and invasive power conferred upon the prosecution for the purpose of arriving at the truth, not for pursuing a particular case theory or the development of an approach the Crown favours over other legitimately available approaches. In respect of the first limb of the application, there was no need, it was submitted, for the questions sought to be asked by the prosecutor in cross-examination to be asked in that way; those questions could be quite properly asked in examination in chief.

185 I am of the view that the prosecutor's submission in this respect must be accepted, that is, if Mr Harris' oral evidence as to the work occurring "at a later time" after the crane had moved on were accepted, it would have the effect of diminishing the involvement of Mr Harris, the senior employee of Abigroup on the site, in the events the subject of the charges against it in these proceedings. The evidence may also be regarded as unfavourable given that it is contrary to other properly received evidence, in particular the evidence of Mr Stewart, Mr Horan and Mr O'Sullivan (which shall be set out below). Furthermore, leave may be granted under s 38 not only if it is specifically directed to one of the three categories falling under that section, but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the prosecutor: Le at [67] per Heydon JA. The prosecutor was entitled to question Mr Harris on his evidence in respect of the first limb of the application for leave in order to establish whether that evidence was unfavourable, in the sense described in Kneebone and Maximo Pantoja.

186 It is for these reasons the prosecutor was granted leave to question Mr Harris, as if he were cross-examining the witness, in relation to the first limb of the application for leave.

187 In relation to the second limb of the prosecutor's application for leave, I agree with the submission made by Mr Hodgkinson, in this respect, that, in order to fulfil the requirements of s 38(1)(c), a prior inconsistent statement has to have been made. There was no reference to the use of an excavator by Mr Harris in his WorkCover Statement of Interview, however the later mention of it in his oral evidence does not create the conditions which would activate the grant of leave under s 38(1)(c). I also agree with the submission of Mr Hodgkinson that the evidence given by Mr Harris in this respect was not unfavourable to the prosecutor such that leave should be granted for the prosecutor to cross-examine the witness under s 38(1)(a). An unfavourable circumstance is not created (nor, for that matter, is there an inconsistent statement) by Mr Harris' oral evidence, which includes elements of methodology of work, because he was not asked about the methodology in the earlier statement. It is for that reason the prosecutor was denied leave to cross-examine Mr Harris with respect to the second limb of the application for leave.

188 Mr Harris was cross-examined by the prosecutor in accordance with the rulings made by the Court as follows:

Q. I want you to tell me what you actually remember?

A. Yeah.

Q. If you don't remember the exact words, could you tell us the effect of the words that were said?

A. That the panel could be positioned so that the bearers were parallel and then the panel would then have to be rectified afterwards, put into its final position using an excavator.

Q. You said that?

A. It was a discussion amongst a number of people.

Q. Do you know who said that though?

A. It would have probably been a suggestion to use the excavator, I can't recall exactly who said that but that was the general agreement about how to rectify the panel being out of square.

Q. Was there any discussion of the time at which the excavator will be used?

A. It would be used after the crane had moved on.

Q. Did someone say that?

A. Yep. I can't recall exactly I mean the excavator can't work while the crane was there anyhow.

Q. So it was expected the excavator will be used that night?

A. Yes later.

Q. To do that task?

A. Yes.

Q. Did anyone actually use the word "later"?

A. Yes.

Q. Who?

A. I can't recall exactly but I mean the excavator couldn't do its work with the crane being there.

Q. Maybe so but did anyone actually use the word "later"?

A. I can't recall exactly who said it.

Q. In that discussion before you left the panel, was there any discussion of unclipping rails?

A. Which time?

Q. In this discussion that you told us about that took place just before you left the panel?

A. Yes to rebuild the panel with the excavator.

Q. I'm sorry?

A. To reposition the panel in its correct position the rails would have to be unclipped.

Q. Can you remember the discussion that took place in relation to that?

A. Once the crane has moved we can reposition the panel using the excavator and unclipping the rails.

Q. Who said that?

A. It would have been a general discussion between myself, Tim Horan and I think there was another supervisor there.

189 Mr Harris was not asked directly by Mr Hodgkinson in cross-examination about having made a suggestion, during the course of the second discussion, that the crane would move on before work began and his understanding that that course of action had been agreed upon. However, in respect of that discussion, Mr Harris gave the following evidence in cross-examination:

Q. Do you recall whether the method that was going to be used to make the bearers right was discussed?

A. Yes.

Q. What was said?

A. To use an excavator to push the bearers back into the correct position.

Q. Is that all? Do you recall anything else that was said?

A. To get the final position of the panel, the crane wasn't required to get the final position of the panel correct, the crane couldn't help anymore.

190 Mr Horan gave evidence, in examination in chief, as to the terms of the second discussion. His evidence was that he did not recall there being any discussion about the crane moving on before work commenced on the panel. That evidence was as follows:

Q. Do you remember any terms of any resolution as to how the problem should be attempted to be rectified?

A. We collectively from memory agreed that we would just unclip those rails and shunt the panel, shunt the rails forward to correct the misalignment.

Q. When you say shunt the rails forward?

A. Again unclip the rails, similar method to what we tried on the other rails, push the rails up.

...

Q. Was there any discussion in relation to that task of realignment being carried out earlier in the first or second discussion only after the crane had moved?

A. Sorry?

Q. Was there any discussion of that task of realignment that you have discussed? You had two discussions, the first and the second?

A. The second, yeah.

Q. Should only be carried out only after the crane had been moved?

A. For the crane to be moved?

Q. Sorry?

A. No, there was no discussion to move the crane, I don't remember.

191 No cross-examination was undertaken of Mr Horan in this respect.

192 Similarly, it was not put to Mr Stewart and he gave no indication in his evidence of a suggestion that the crane should be moved before further rails were unclipped. His evidence, in examination in chief, as to the terms of the second discussion was as follows:

Q. So you can only remember?

A. The general idea of the conversation, yes.

Q. Can you remember topics?

A. The topic was that the rail was not - if they were trying - if they were making it marry at one end, it was not in the right position at the other end basically. That was the topic. And they were trying to find a solution as to why that was and it seemed, I remember someone saying it seemed as if the panel had been built skew. I think Tim said that actually.

Q. Yes. Do you remember anything else being raised by way of a topic?

A. I remember them saying that they - I can't remember specifically who said this - but again saying that a different idea was to, if - because it was skew, they could unclip a rail or two rails and move those rails into position and that would allow all four rails to be in the right position and butted up against one another and that would more than likely fix the problem.

...

Q. Were you present when they made any decision?

A. Yes. I can't remember specifically who made the decision to say yes, that's what we're going to do, but I remember Adam telling his guys that that was the decision that had been made, it was to unclip the rail.

193 No cross-examination of Mr Stewart was undertaken in this respect.

194 Mr O'Sullivan gave evidence that he was only present at the second discussion for "a matter of minutes". However, in terms of what decision was taken, he gave the following evidence in examination in chief:

Q. When you were gathered, what happened?

A. That's when we said that we were going to unclip the two rails and just place them in position and then place a panel in position and clip it all up again.

Q. When you say "we said that", who said that?

A. That was conferred to me by Tim or Paul or whoever it was and then that was then conferred, transferred on to the guys.

Q. Was there - when it was transferred to you or you transferred it to the men, was there any discussion about moving the crane before that happened?

A. No, no.

195 No cross-examination of Mr O'Sullivan was undertaken in this respect.

196 As noted above, Mr Cini and Mr Green were not in the vicinity of the panel at the relevant time, and did not participate in either of the two discussions regarding the misalignment of the rails on panel five. Mr Drewe was present for part of the first discussion following the first lift of panel five. He said he expressed his general opinion which was "to leave it [the panel] where it was, and adjust the rail" and then left the conversation before a decision was reached. Mr Drewe was not in the vicinity of the panel from that time onwards, nor was he party to any further discussions regarding the misalignment of the rails.

197 It is convenient to make reference, at this juncture, to related evidence given by Mr Cini and Mr Green to the effect that it was a requirement of Abigroup that a further risk assessment be carried out when work changed or problems were encountered on a job. This evidence is not strictly relevant to the question as to whether any Abigroup employee was aware that work would be undertaken on the panel whilst it was still attached to the crane, but will bear upon the later consideration of the question as to whether a further risk assessment ought to have been undertaken in relation to the work (during the course of which Abigroup may or may not have become aware that the panel was under weight).

198 Mr Green gave evidence in a WorkCover Statement, tendered as an exhibit in these proceedings, dated 26 November 2010. That evidence was, relevantly, as follows:

Q28 Was a risk assessment system in place on site at the time of the incident?

A28. Yes

Q29 What did that risk assessment system involve?

A29. It involves assessing the risks of any given task and implementing control measures to eliminate or control that risk.

Q30 When did Abigroup Contractors require risk assessments to be undertaken?

A30. For any activity where there is a risk of injury or harm.

Q31 Who was required to carryout [sic] a risk assessment and when?

A31. Generally the Engineers in charge of that work activity, they consult with the work group and they identify the risks and controls.

Q32 Was there a requirement to undertake a further risk assessment when the work changed or when problems were encountered during the job?

A32. Yes there would have been

199 In that respect, Mr Cini gave evidence, in examination in chief, as follows:

Q. Was a risk assessment system in place at the site?

A. Yes

Q. When did Abigroup Contractors require risk assessments to be carried out?

A. A risk assessment was carried out at the start of the project, to cover the whole project, and we also required risk assessments for each task.

Q. Was there any requirement if the task changed?

A. Yes.

Q. What was that requirement?

A. A risk assessment had to be completed if a task changed.

Q. Had to be?

A. Completed.

Q. Why is that?

A. To highlight the risks if there's new risks.

Q. If the task changed and there was a further risk assessment, was there a requirement for that to be documented?

A. Yes.

Q. Where do we find that requirement?

A. That was documented in what's called the JHA card - Job Hazard Analysis card - and that was conducted on site if the job changed.

...

Q. Who had access to that document?

A. Supervisors on site.

(Mr Cini was not cross-examined on this issue.)

Issue concerning the Employment of Mr Dixon

200 A further matter of contention between the parties concerned the employment of Mr Dixon and, in particular, whether Mr Dixon was, at the relevant time, an employee of GTE. Whilst not strictly a question of fact, it is convenient to deal with this matter at this juncture.

201 Mr Lucas gave evidence that Mr McDonnell and Mr Dixon had previously been "under GTE books" on occasions prior to the incident:

Q. How was Mr Begley able to employ people from GTE?

A: Normally he would come through somebody like myself and explain to me how many labourers he would perhaps require. In this case them two people had previously worked for MVM direct and in which case he asked me to obviously put them on our books prior to the March incident and that's how they become under GTE books.

202 In relation to the use of Mr Dixon at the project, Mr Lucas gave the following evidence:

Q. Did you contact Mr Begley about Mr Dixon or was it the other way around?

A. He contacted me first and said that he would like to utilise Robert's services in which I then questioned him as to why he would want to use Robert's services because he's let us down in the past, to which he replied he was trying to win a contract in western Australia and by using an indigenous person it would help him.

Q. Was that then end of the conversation about Mr Dixon?

A. Yes at that time it was.

Q. Was there any other conversation prior to the incident?

A. Only the fact that when I'd spoken to him about why he was utilizing Robert's services because he had let us down in the past and had not shown up for previous shifts.

...

Q. Did you have a view as to whether GTE should be employing Mr Dixon on this job?

A. Yes I do and no we shouldn't have employed him.

...

Q. My question was, you at any time did you agree with Mr Begley that Mr Dixon should be employed as an employee of GTE on this job?

A. No.

203 Mr Dixon gave evidence to the effect that his understanding was that he was employed by GTE:

Q. What is right? Do you remember the question?

A. Yeah. You said who was I employed by.

Q. Yes.

A. Yeah, GTE.

...

Q. How did you come to be employed by GTE?

A. By a bloke by the name of Jake [sic] Begely for MBM [sic]. He got me the job.

Q. How did you get the understanding that it was GTE rather than MBM [sic] that you were employed by?

A. Jake [sic] told me, the boss as MBM [sic].

204 A 'WorkCover NSW Notice Under Section 62 of the Occupational Health and Safety Act 2000 to Obtain Information, Documents and Evidence Form' dated 27 March 2009 addressed to GTE was tendered in these proceedings. That document requested GTE produce documents including, inter alia, the ABN of the employer of Mr Dixon and his residential address and telephone number. An email response to that form was included as an annexure to the form which included contact details of Mr Dixon. That email was sent by a Ms Irene Winkler, National Occupational Health and Safety and WorkCover Manager for GTE.

205 Whilst I accept that the evidence of Mr Lucas indicates he held the view, which he had shared with Mr Begley, that Mr Dixon should not be used in relation to the project, there was no evidence that Mr Lucas actually instructed Mr Begley not to engage Mr Dixon on behalf of GTE. It was also the evidence of Mr Lucas that he was unaware that Mr Iosefa had been employed by GTE, as Mr Begley had arranged his engagement through another GTE employee, Ms Christie Fuller; that evidence indicates Mr Lucas was not the sole person at GTE who was contacted, from time to time, by MVM Rail to provide labour. Further, Mr Lucas indicated in his evidence that GTE had an arrangement with MVM Rail whereby Mr Begley had authority to engage workers on GTE's books.

206 It is the case that, in reality, the issue as to the employment of Mr Dixon does not impact the charge against GTE. The offence contained therein could still be made out, given it was accepted by GTE that the other two persons specified within the charge, being Mr Iosefa and Mr McDonnell, were employees of GTE (the only effect of any finding that Mr Dixon was not employed by GTE would be that there was one less employee alleged to have been exposed to the risk). It was submitted by the prosecutor that the email sent by Ms Winkler amounted to an admission that Mr Dixon was an employee of GTE under s 87 of the Evidence Act. Section 87 is in the following terms:

87 Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

207 It is clear, from the employment of Mr McDonnell and Mr Iosefa, that there was an arrangement between MVM Rail (in particular, Mr Begley) and GTE (in particular, but not limited to, Mr Lucas), whereby Mr Begley, on behalf of MVM Rail, was authorised to engage employees on GTE's books. Clearly, as indicated by the employment of Mr Iosefa, Mr Lucas did not necessarily need to be consulted in that process. Furthermore, I am satisfied that the email sent by Ms Winkler containing the contact details of Mr Dixon (in response to a WorkCover request for employee information) amounted to an admission that Mr Dixon was an employee of GTE. On the basis of those facts, a conclusion must be reached that Mr Dixon was, in law, at the time of the incident, contracted to work for GTE under Mr Begley's authority to so employ people on behalf of GTE.

Submissions of the parties as to contentious aspects of the evidence

Contentious evidence of the crane crew

Submissions for the prosecutor

208 Mr Crawshaw made submissions for the prosecutor, in relation to the contentious evidence of the crane crew, which are summarised as follows:

(1) Mr Ford's evidence that he said to a "young supervisor" not to "do anything" to the panel until he was consulted because there was still weight on the chains was not corroborated by any other witness, including Mr Harris and Mr Horan (who are the two most likely candidates as the "young supervisor"). The Court should not accept the evidence of Mr Ford in that respect;

(2) However, it was submitted, particularly in relation to Mr Ford, that the rejection of one part of a witness' evidence did not constitute grounds for the rejection of the whole of that witness' evidence;

(3) The fact that the panel remained under weight would have become evident to Abigroup (and, indeed, GTE employees) had a proper and/or comprehensive risk assessment been undertaken, not least because any such risk assessment would have involved consultation with Mr Ford who knew that panel five was under weight;

(4) Mr Horan's evidence that he instructed a dogman to "drop" the load was not corroborated by any other evidence and should not be accepted.

Submissions for GTE

209 The submissions put by Mr Agius regarding the contentious issues in respect of the crane crew are summarised as follows:

(1) It was submitted by Mr Agius orally that, ultimately:

[T]he circumstantial evidence, that is the evidence of the conduct of the whole of the crane crew, would suggest that the two dog men were not aware that the panel was under load and that the crane driver either forgot that it was under load or simply made an error that it was under load and was not conscious of it until after the event

And:

[O]n the whole of the objective evidence, the objective evidence is inconsistent with a finding that the crane crew were aware through the whole of the period that this panel was under load or under weight.

(2) In relation to Mr Ford, it was submitted he either "fabricated evidence or he has conveniently convinced himself that he did know" that panel five remained under weight following the third lift. The objective evidence points to the probability that, in fact, he did not know;

(3) The prosecutor "walked away" from the evidence of Mr Ford to the effect that he had communicated to a "young supervisor" not to do anything to the panel until he was informed because the panel was still under weight. That Mr Ford gave that evidence under oath with vehemence when it was accepted that the evidence was clearly inaccurate must raise serious concerns as to his reliability and, indeed, his credibility;

(4) Mr Ford was given an instruction by Mr Horan to "drop" the load. (The Court should reject the prosecutor's submission that Mr Horan's evidence, in this respect, should not be accepted because it was not corroborated. The only person who could corroborate Mr Horan's evidence was Mr Ford; one would expect Mr Ford to deny he was given any such instruction as to do otherwise would be against his interests.);

(5) Mr Ford either told Mr Jones to "drop the load" or he did not. All that is certain, on the evidence, is that the load was, ultimately, lowered to the ground under weight;

(6) Mr Agius was "content" with Mr Jones' evidence that it was not his independent decision to leave the panel partly under weight or otherwise. He acted on instruction from Mr Ford. It was unclear why, if Mr Ford did pass on Mr Horan's instruction and told Mr Jones to drop the load, Mr Jones left the panel under weight;

(7) However, it was equally unclear why, in the alternative, Mr Ford would have instructed Mr Jones to rest the panel on the ground under weight when he had been instructed by Mr Horan to drop the load. Further, there was no logical reason for the panel to be left under weight after the third lift. The first two lifts of panel five led to the panel being placed on the ground without weight. Common sense would dictate that if the risk to safety to workers could be reduced and energy could be conserved by dropping the load off the crane completely, that is what would have been done;

(8) Furthermore, if it is accepted that Mr Ford instructed Mr Jones to rest the panel on the ground under weight, it must be accepted that Mr Ford knew the panel remained under weight. That conclusion is entirely inconsistent with Mr Ford's behaviour in the period following the third lift until the incident. The Court should not accept the evidence of Mr Ford that he did not see the supervisors or the labourers on panel five; the visit to the panel by these groups would have been clearly in the sight of Mr Ford. However, it is irrelevant whether the Court accepts Mr Ford's evidence that he was not watching the panel or, alternatively, concludes that he must have known the supervisors and the labourers were on the panel but did not take action to prevent or remove them. On either account, Mr Ford's behaviour was at odds with his responsibility to supervise the load whilst under weight and, therefore, is inconsistent with a conclusion that Mr Ford knew or was conscious that panel five remained under weight;

(9) As to Mr Jones, it was submitted the evidence suggested Mr Jones was not conscious that the panel remained under weight, either through inattentiveness or error. It was a matter of objective evidence that the crane was fitted with a gauge in its cabin which could have indicated to Mr Jones how much weight was on the crane. (In other words, Mr Jones had the capacity to know the panel was under weight.) However, a conclusion that Mr Jones was aware panel five remained under weight would be inconsistent with his actions in failing to prevent the supervisors or the labourers from mounting the panel. His seat in the crane cabin faced directly toward the panel and all activity on the panel was within his view;

(10) Mr Fetherston did not know panel five remained under weight following the third lift. That evidence is consistent with his actions in departing the vicinity of the panel for an extended period of time;

(11) In any event, regardless whether the crane crew were aware or conscious of the panel remaining under weight, it is beyond any doubt that they did not follow their own JSA and it is beyond doubt that they ought not to have permitted people to be on the panel.

Submissions for Abigroup

210 The submissions put by Mr Hodgkinson on behalf of Abigroup, regarding the contentious issues in relation to the crane crew, are summarised as follows:

(1) The evidence of the crane crew, in particular Mr Ford, was often self-serving, tending to exculpate them from blame. The Court would treat with caution the evidence of the crane crew where that evidence was not corroborated;

(2) Mr Ford's evidence that he knew panel five remained under weight following the third lift should be rejected. The objective evidence points to a conclusion that Mr Ford was not so aware;

(3) It was submitted by Mr Hodgkinson that Mr Ford's evidence as to his observations of the panel should be rejected. It was very unlikely that Mr Ford stood, in close proximity to the panel, with his back to the panel for approximately 15 minutes and did not see any persons come onto the panel. However, whether or not Mr Ford's evidence as to his observations of the panel (or lack thereof) is accepted, his actions indicated that he did not know the panel was under weight: if he knew the panel was under weight, he had a responsibility to be observing and supervising it as opposed to looking away from it; if he knew the panel was under weight and saw persons on it, he had a responsibility to prevent them from being there. Mr Ford's actions, in either disregarding the panel or failing to warn the supervisors or the labourers off the panel, indicated to all others that he had relinquished control and the lift was complete;

(4) Mr Ford nominated himself in his evidence as the rigger or dog man in charge. He was directing the crane driver. He understood that he had responsibility for the load. Mr Hodgkinson submitted, in respect of Mr Ford's communications with Mr Jones, as follows:

So objectively he does not know that load is under weight. But if that is the case, then he has failed to communicate with his driver. The difficulty with that objective scenario is that there is no sign, or no indication, that he was failing to communicate with Mr Jones over the period of the night. So objectively when we look at the issue of communication between the two of them, we see that they are communicating, he is directing the loads, he is directing the panels to be moved the three times and he is doing it in a way consistent with the JSA right up until the last position.

(5) For whatever reason, the panel remained under weight. There was no reason for panel five to be kept under weight following the third lift. Because of this, when the panel was placed on the ground, it appeared to all who observed, also given the way Mr Ford and Mr Fetherston behaved, that the lift had been completed (that is, there was no reason to think otherwise);

(6) Even if it is accepted that Mr Ford did not know that panel five was under weight following the third lift, it remained, nonetheless, his responsibility (along with the crane driver's) to keep control over the load whilst ever a lift was in progress (including whenever the load was under weight);

(7) Mr Jones' evidence that he knew panel five remained under weight following the third lift should be accepted. The objective evidence points to this conclusion. He was directly involved in all of the lifts on the night shift on the evening of the incident. That included the first two lifts of panel five, during which he rested the panel completely on the ground, and the third lift, during which he lowered the panel to the ground under weight. He had a gauge in front of him in the cabin which indicated whether there was any weight on the crane. He indicated, in his evidence, he had referred to the gauge in the earlier lifts that evening;

(8) Further, Mr Jones' evidence that, for the approximately 15 minute period between the third lift and the incident, he looked side to side but not in front of him at the panel and did not see a whole range of activities occur on the panel (including people standing on the panel and measuring etc.) should not be accepted. He was sitting in a chair in the crane cabin which was fixed in the direction of the panel; to look from side to side he had to turn his head through an arc in which the panel was in the centre. Whether he disregarded the panel as he claimed or saw and failed to prevent persons being on the panel, Mr Jones, knowing the panel was under weight, failed to act according to his obligations and responsibilities;

(9) Mr Fetherston did not know that panel five remained under weight following the third lift. His evidence, in this respect, should be accepted. That conclusion is consistent with Mr Fetherston's actions in departing the area of the panel for an extended period of time to make coffee for himself and Mr Jones.

Evidence of Mr Harris re second discussion regarding adjustments to panel five

211 There was a dispute between the parties as to the evidence of Mr Harris that he had suggested, during the course of the discussion (between, as already noted, the supervisors), that the misaligned bearers on panel five should be adjusted after the crane had moved on by means of an excavator. It was Mr Harris' understanding that his suggestion had been agreed to in that respect.

212 The prosecutor submitted, in this respect, in written submissions, the following (footnotes omitted):

52. This description suggests that the crane would be moved after the work on the panel was carried out. However, Mr Harris' oral evidence was that he suggested that "the crane could move on and we could reposition the bearers while the crane had moved on"; and that "we could realign the bearers and the rail using an excavator at a later time". When asked to explain what was said about this latter suggestion Mr Harris merely said "that was agreed". When cross-examined by the prosecutor, pursuant to the leave of the Court, about the use of the word "later", Mr Harris could not recall exactly who said it. Mr Harris then gave evidence that there was discussion about unclipping rails and then using the excavator, but claimed that the discussion that took place in relation to that method of work was that it would take place "once the crane had moved on".

53. The description given of this discussion by Mr Harris in his WorkCover record of interview four years ago is more reliable than the more recent oral evidence of Mr Harris which is not corroborated by the other participants in the discussion.

...

56. The prosecutor submits that the Court should not accept Mr Harris' uncorroborated evidence that he made a suggestion in the course of this discussion that the crane would need to be moved before work on Panel 5 continued and that this was agreed. The Court should prefer the evidence of Mr Horan and Mr Stewart in this respect.

213 Mr Hodgkinson submitted the Court would prefer the oral evidence of Mr Harris in this respect. Mr Harris was asked direct questions during the proceedings about his understanding of what was to happen. The Court would prefer that evidence over the single question and answer on the point contained in the written evidence. The Court would accept, therefore, that Mr Harris did not expect the crane to be attached to the panel whilst the bearers were released.

214 It was submitted that, in any event, neither version of Mr Harris' evidence (written or oral), on a proper analysis, would lead to the conclusion suggested by the prosecutor that Mr Harris understood the first action to be undertaken following the discussion was that work would commence on unclipping the rail. It was the position of the prosecutor that the words "the crane could then move on" in Mr Harris' WorkCover Statement of Interview indicated that the work of unclipping rails on panel five would be undertaken prior to the crane moving on. The submission of the prosecutor in that respect, however, ignores the full context in which those words appear (that is, the rest of the sentence). In particular, Mr Harris notes that "I was there when the mid-rail was moved and then the panel was then re-manoeuvred and it still wasn't correct when it was placed down again." In that context, "placed down again" is referring to the panel being placed in position. Mr Harris then says, "[a]nd then there was another discussion and my understanding was at the end of the discussion that the panel would be removed again so that the bearers could line up and then the crane could move on...". A correct understanding of that sentence, in context, must lead to the conclusion that "removed again" is referring to the third lift.

215 It was submitted by the prosecutor, in reply, that its submission was not totally dependent on a finding that Mr Harris gave a prior inconsistent statement in his WorkCover Statement of Interview. The submission of the prosecutor in respect of Mr Harris' evidence on this issue was also dependent on the fact that Mr Horan and Mr Stewart provided different versions of that conversation. Whilst Mr Stewart was called to give evidence before Mr Harris, his evidence was that there was no mention during the conversation about the crane moving first. Mr Horan gave evidence after Mr Harris and was specifically asked about whether that was the agreed method of operation and his answer was that it was not. In any event, the prosecutor's case was not dependent upon a finding in its favour on this evidentiary matter. It was merely an exacerbating feature of the case against Abigroup.

Mr Harris' recollection of an inquiry as to whether the panel was safe to stand on

216 The prosecutor submitted that the evidence of Mr Harris, in this respect, was not corroborated and should not be accepted. There were no other submissions by any party as to this matter.

Consideration of the Remainder of the Evidentiary Issues

Reliability of Mr Ford's Evidence

217 I do not consider Mr Ford's evidence to be reliable. Nor do I consider him to be a credible witness. Any acceptance of his accounts should be confined, as submitted by Mr Hodgkinson, to those matters amply supported by corroboration. I have reached this conclusion for a number of reasons:

(1) The account given by Mr Ford about a discussion with a "young supervisor" after panel five had been lowered to the ground after the third lift about which Mr Ford stated that, after the third lift, he told the "young supervisor" not to do "anything to that panel" until they had "seen him" because "it was still under weight" cannot, on the evidence, and as discussed below, be accepted. The conclusion which, on the evidence, should properly be reached is that, whilst it is probable that a conversation did occur between Mr Ford and the "young supervisor", it did not contain the communication described by Mr Ford. Yet, Mr Ford maintained this evidence with vehemence and in an argumentative fashion (see the extracts of his evidence at [120] - [121], [130] and [138] of this judgment);

(2) Whilst a less serious matter, his account of workers standing nearby to panel five upon it being lowered and manoeuvred during the second lift strains credibility, given his strong maintenance of a position that workers should not be allowed in the vicinity of a panel whilst under load;

(3) The evidence given by Mr Ford that, after the panel was lowered to the ground, he, for the most part, had and maintained his back to panel five, and that he neither observed the supervisors standing on the panel nor the labourers approaching and mounting the panel with sledgehammers and commencing work before the incident, notwithstanding his evidence that he heard the banging of sledgehammers generated by the labourers on the panel for "a minute, couple of minutes" before he turned to face the panel immediately prior to the incident, is, as I will discuss below, not credible. Again, he maintained this contention with vehemence, and, when pressed as to the inherent contradictions within his evidence, with elements of evasion (see, for example, the extract of his evidence in paragraph [138] of this judgment above);

218 Those reasons shall be elaborated upon below in conjunction with the resolution of the remainder of the contentious aspects of the evidence.

Mr Ford's communication to a "young supervisor"

219 Both Mr Horan and Mr Harris (the two persons most likely to be the "young supervisor" to whom Mr Ford refers) gave evidence to the effect that they did not recall any member of the crane crew speaking to them about panel five being under weight (nor did Mr Stewart, who was also in the vicinity of panel five at that time), and Mr Ford deposed that he could not recall speaking to anyone else about the panel being under weight. No other person associated with the third lift gave evidence that Mr Ford or anyone else said the panel was under weight. Mr Jones also admitted that he did not speak to anybody (even Mr Ford, with the exception of his evidence as to the initial instruction to lower the panel to the ground under weight) about the panel being under weight.

220 If the prosecutor's submission is understood as being confined to supervisors and workers other than Mr Ford and Mr Jones, I accept the prosecutor's submission, which is as follows, as to any knowledge held by them that panel five was under weight:

All but one of the workers involved in the incident, along with Mr Horan and Mr Harris, were unaware that Panel 5 was still under weight (Horan TS 23.4.12 p 426; Harris TS 23.4.13 p 415). Mr Stewart knew the panel was on the ground and that the chains were still around the panel, but he did not know whether the crane was supporting the panel or not (Stewart TS 17.4.13 p 241.25-28). Mr McDonnell did not know that the panel was under weight (Mc Donnell, TS 16.4.13 p 260.25). Mr Ward did not know that the panel was under weight (Ex 10 Q/A 35). Mr Dixon's evidence was that when he started to unclip the line he saw a bow in the rail (Dixon, TS 15.4.13, p 18.48-50). He did not raise any concerns about accessing the panel, nor did he ask any questions about whether it was still under weight, on the basis that if the boss asks him to do something, he does it (Dixon TS 15.4.13 p 30).

221 I agree with the submissions put by the parties that the evidence of Mr Ford as to his communication with a young supervisor regarding panel five being under weight should be rejected. I am of the view that, whilst it is probable Mr Ford had a conversation with a supervisor, it did not contain the communication he described. To the extent he deposed that communication occurred, his evidence was inaccurate.

222 The evidence forms part of an account which, as I have described above, was unsatisfactory and unreliable, and which ultimately undermined Mr Ford's credibility. The significance of this particular piece of evidence is that it represents one of the components of Mr Ford's evidence designed to extricate himself from blame, under his thesis that, notwithstanding he was aware that panel five remained under weight following the third lift, he did not breach his obligations either because he did not make any observation requiring him to act or, as in the present instance, he had put in place precautions.

223 I will return to the question of whether Mr Ford's evidence should be accepted where he states that he knew panel five was under weight after the third lift.

Mr Horan's Evidence that he Instructed the Panel be "dropped"

224 As to Mr Horan's evidence that he had instructed the panel be "dropped", I accept the contentions of the defendants that the evidence should be accepted. It is quite clear that, in giving this evidence, Mr Horan was referring to this instruction being given to Mr Ford, because Mr Ford was the head dogman on site and handled communications between the crane crew and other supervisors. Whilst it was not corroborated (I note that no cross-examination was undertaken of Mr Ford in this respect), I consider Mr Horan to be a witness of credit who should be believed in his account that he instructed a dogman that to "drop" the panel. I formed a favourable opinion of his evidence. He presented as a frank and confident witness. There was, in submissions, no challenge to any other part of Mr Horan's evidence by any party. Further, his evidence, in this respect, confirmed a statement he had made in his WorkCover Statement of Interview conducted in close proximity to the date of the incident.

225 Further, Mr Horan's evidence, in this respect, conforms with some objective factors. Whilst there is no evidence Mr Horan ordered panel five be dropped without weight during the first and second lifts, the evidence reveals they were, in fact, dropped. No explanation has been proffered as to why a different approach was adopted for the third lift and, as I will later discuss in relation to Mr Ford's evidence, common sense would dictate that, if further work was to be performed on panel five, it would have been lowered to the ground without weight on the crane.

The Crane Crew's Observations of the Panel

226 In order to resolve the remainder of the contentious issues involving the evidence of the crane crew, it will be useful to first place on a timeline the events which occurred in the 15 to 20 minute period between the third lift of panel five and the incident. That timeline may be best illustrated by the reference to the sequence of events below:

(1) Immediately following the third lift there was an exchange between Mr Ford and a "young supervisor" in which it was established that panel five was still misaligned and that the supervisors would be recalled to discuss how to address the issue. This exchange was overheard by Mr Fetherston from the opposite side of the panel. (It may be noted that it was at this time Mr Ford claimed to have communicated to the "young supervisor" that the panel remained under weight, evidence which I have already rejected.);

(2) Mr Fetherston then had a conversation with Mr Ford and Mr Jones (via Mr Ford on radio) about fetching coffee from the site shed;

(3) Mr Fetherston departed the area following that discussion to obtain coffee for himself and Mr Jones. Given that Mr Fetherston's evidence was he was absent from the vicinity of the panel for approximately 15 minutes (and did not return to the area until about 5 minutes prior to the incident), it may be inferred that he departed the panel relatively soon after the third lift, probably within a few minutes;

(4) Around the time of Mr Fetherston's departure from the panel, or soon after, the second discussion commenced near the panel. Mr Harris' evidence was that he, Mr Horan and one of Mr Horan's supervisors "went over to check" the panel once it had been lowered after the third lift. Mr Stewart and Mr O'Sullivan were already in the vicinity of the panel at the time of the third lift. It may be inferred, from these factors, that the second discussion commenced within a few minutes of (and no more than five minutes after) the third lift;

(5) Given the discussion was "lengthy" (so described by Mr Horan), commenced a few minutes after the third lift and concluded approximately 5 minutes prior to the incident (my reasons for concluding as such shall appear below), it may be estimated that the discussion continued for a period of about 10 minutes;

(6) Mr O'Sullivan's evidence was that he participated in the conversation for a short time toward the beginning of the discussion. His evidence was that he mounted the panel during that time. Mr Harris, Mr Stewart and Mr Horan also gave evidence that they mounted the panel at some time during the 10 minute discussion;

(7) There was a lapse of time between the conclusion of the second discussion and the incident. During that time, the following occurred: the supervisors moved away from the panel where they had conducted their discussion; Mr Harris departed the vicinity of the panel towards the site sheds; Mr O'Sullivan was informed of the course of action which had been determined as a result of the second discussion; the labourers were assembled and approached the panel with sledgehammers; work commenced; and 42 Pandrol clips were unclipped from at least one rail on panel five. It may be concluded, having regard to the activities which occurred on and around the panel following the discussion, that the second discussion concluded approximately 5 minutes prior to the incident. This conclusion conforms with the evidence of Mr Ford that when he turned to face the panel approximately 5 minutes before the incident he did not see any persons on or near the panel (even though this evidence needs to be treated carefully as it was given as part of an assertion by Mr Ford that he otherwise denied looking at the panel). It is also consistent with the evidence of Mr Fetherston that he returned from the site shed with coffees approximately 5 minutes prior to the incident and, although he saw people standing around, he did not see any person on the panel.

Mr Ford

227 As to the supervisors stepping onto panel five following the third lift and prior to the commencement of work, Mr Ford accepted that he had responsibility for the 'load' whilst the panel was rested on the ground under weight for approximately 15 minutes but stated that he did not observe the supervisors entering into the vicinity of or standing on the load. This strains credibility. Mr Ford gave evidence, which was confirmed by Mr Fetherston, that he stood, during the period between the third lift and the time of the incident, next to a corner of panel five, being the corner located at the end of the panel closest to the previously installed panel and on the side of the panel on which the crane was located. The second discussion of the supervisors occurred next to and on the panel at the end closest to the previously installed panel. By his own admission, which was confirmed by Mr Fetherston, Mr Ford's location was, therefore, immediately proximate to where the supervisors were standing. It is not plausible that he did not notice them approach and then stand on the panel as a group at close range.

228 In any event, the supervisors held a discussion for a substantial portion of the time Mr Ford stood at that location. Mr Fetherston gave evidence that, from a position directly across the panel from Mr Ford, that is, a position next to the panel at the end of the panel abutting the previously installed panel and on the opposite side of the panel to the crane, he could hear a conversation taking place on the crane side of the panel. He also said that he "could have" had a discussion with Mr Ford, about going to make "coffees", across the panel. That Mr Ford could not hear, or was not alerted to, the voices of the supervisors having a conversation directly behind him, either on the panel or on the ground next to the panel, on the same side of the panel he was situated is, in the light of Mr Fetherston's evidence, not credible.

229 The only explanation Mr Ford could offer for not seeing the supervisors was that he was faced away from the panel for most of the time looking for the very supervisor or supervisors who, it would appear, entered into the vicinity of and walked onto the panel only a few minutes after the third lift. He maintained this position, with his back to the panel, notwithstanding he had a responsibility to watch and control the load, particularly, as he maintained, when it was under weight. Further, Mr Ford gave evidence that he observed Mr Fetherston, having returned from fetching coffee for himself and Mr Jones, to be standing in a position to his right, on the crane side of the panel, in between himself and the crane. Mr Fetherston confirmed that he stayed in this position after having delivered the coffee to Mr Jones in the crane cabin. However, if Mr Ford had his back to the panel standing in the position he maintained he was standing in, the crane, and, therefore, Mr Fetherston, must have been located to his left. The only way Mr Fetherston could have been on Mr Ford's right at that stage was if Mr Ford was facing towards the panel. That conclusion conforms with the evidence of Mr Fetherston that he observed Mr Ford standing in his position "looking after the job", in other words, "seeing what was going on, seeing that people are doing the right thing and whatever else". When asked whether, in so doing, Mr Ford was looking at the panel, Mr Fetherston deposed that "he would have to [have been] yeah".

230 I note, in that respect, that, after stating that he may have "turned around and looked" at the panel approximately five minutes prior to the incident (and, therefore, having regard to the timeline set out above, at the time around which the second discussion had concluded and the labourers were preparing to begin work on the panel), when pressed in cross-examination that he must have noticed persons in the vicinity of or on the panel Mr Ford retreated to a repeated incantation that he would only have realised "if I was looking at the load" and that he had warned the young supervisor the panel was under weight.

231 There was also evidence given by Mr Jones that he observed up to three people mount the panel after the third lift and prior to work commencing on panel five. When questioned by Mr Hodgkinson in cross-examination whether he saw Mr Ford come in to move the supervisors off the panel, Mr Jones stated that "[i]f they went in there they would have been with Mr Ford."

232 Mr Ford's evidence that the labourers entered the vicinity of and commenced upon the panel work without him noticing, notwithstanding his evidence that he had turned to look at the panel at one stage approximately five minutes prior to the incident, also lacks credibility. The same factors that I have discussed in relation to the supervisors are relevant here but there are additional elements. The length of the panel was, as noted, 12.4 metres. Even if work was occurring on the opposite end of the panel to the end next to which Mr Ford was situated, it is not plausible that he did not see, hear or in any way notice the labourers approach and mount the panel and begin work. Further, Mr Ford's evidence, in this respect, does not sit comfortably with the evidence of Mr Fetherston that, upon returning from fetching coffee, he saw Mr Ford speaking to some labourers who were holding sledgehammers. Further, Mr Ford deposed that he heard the banging sound caused by the sledgehammers hitting the Pandrol clips on the panel behind him commence "a minute, couple of minutes" before the incident, yet did not observe the labourers on the panel until he turned to face the panel at a point so close to the incident he did not have time to contact Mr Jones by radio to instruct him to drop the load before it occurred. The evidence makes clear that the noise from the removal of the clips was very loud and, Mr Ford admitted, different to other noise at the work site. Mr Jones actually claimed to have heard the noise from the cabin of the crane. It beggars belief that this noise was issuing from the direction of the panel without alerting Mr Ford's attention for a minute or two. It is much more probable that, upon his attention being turned to the work, he eventually had a realisation of the dangers present.

233 The implausibility of Mr Ford's evidence that he did not see or hear the supervisors approach the panel and conduct a discussion on and around the panel, nor notice the labourers approaching and commencing work on the panel prior to the incident, is well demonstrated by the above analysis. That analysis considered Mr Ford's evidence in light of other relevant objective matters and evidence bearing upon the issue.

234 However, it is also clear, when considered in light of his evidence as a whole, that Mr Ford's evidence in respect of his observations (or lack thereof) was buttressed by his account of a communication, which I have already found did not occur, to a young supervisor. Mr Ford steadfastly maintained, during the course of his evidence, that he did not observe the panel despite his knowledge that the panel remained under weight (a matter to which I shall come shortly), and despite his responsibilities as a dogman when a load was in such a state. Mr Ford sought to explain his actions in that respect by repeatedly claiming he had told a young supervisor that the panel was under weight and not to do anything. In other words, Mr Ford was basing or justifying his account of his actions and observations following the third lift on a piece of evidence that cannot be accepted.

235 It follows from this discussion that I do not accept Mr Ford's evidence that he did not observe the supervisors standing on panel five between the lowering of the panel to the ground after the third lift and the incident. Nor do I accept his evidence that he did not observe the labourers standing and conducting work on the panel until the actual point of the incident.

Mr Jones

236 A submission was not advanced that Mr Jones' evidence was unreliable or not credible, but it was submitted by Mr Hodgkinson that his evidence was self-serving and tended to exculpate him from blame.

237 No party made a submission that Mr Jones' evidence that he observed up to three "people" walk on the panel should not be accepted. Whilst he did not identify the "people" he observed, it is clear that those persons were the supervisors. His evidence, in this respect, was given in the context of cross-examination by Mr Hodgkinson of Mr Jones as to his communications with Mr Ford regarding the continuing misalignment issue with panel five following the third lift (having regard to the timeline above, the supervisors first mounted the panel within a few minutes of the third lift). Further, the conclusion must be reached as a matter of logic. Having regard to the timeline set out above, there were only two groups of people who mounted the panel during the 15 to 20 minute period between the third lift and the incident, that is, the supervisors and, later, the labourers. Mr Jones emphatically denied observing the labourers carrying sledgehammers on the panel at any point during that period until immediately before the incident (which evidence I shall, below, reject), however, he conceded to having seen other people on the panel during that time.

238 It follows, logically, that the "people" to whom Mr Jones referred, in his evidence in this respect, were the supervisors who mounted the panel during the course of the second discussion.

239 There were objective factors which corroborated Mr Jones' evidence that he observed the supervisors on the panel. The crane was adjoining the panel. Mr Jones was seated, at all times during the period between the third lift of panel five and the incident, in the driver's seat in the cabin of the crane. That seat was fixed and facing in the direction of the crane's boom, such that Mr Jones was seated in a manner which tended to direct his attention to the panel.

240 Further, this aspect of his evidence was not self-serving. His evidence was that he was conscious of the panel being under weight at the time he made his observations (a matter which I shall come to shortly) of the supervisors standing on the panel but took no steps to remove them. This represented a contravention of an obligation to prevent persons from mounting the panel whilst under weight.

241 Having regard to these factors, I accept the evidence of Mr Jones that he observed supervisors walking on panel five following the third lift.

242 As earlier observed, Mr Jones also gave the challenged evidence that he did not see the labourers mount the panel and conduct work until he heard banging noises at a point so close to the incident the noises must have been either the result of the incident or the banging of the final Pandrol clip by a sledgehammer immediately prior to the incident (even then he stated he did not see the labourers swinging their hammers).

243 Whilst the evidence does not permit a conclusion to be precisely drawn as to whether Mr Jones first witnessed the labourers mounting the panel or commencing work with sledgehammers, I consider his evidence that he did not see, at any point, the labourers working on the panel over the period of a few minutes prior to the incident should not be accepted for the following reasons:

(1) As earlier mentioned, the panel was situated immediately in front of the driver's cabin and the crane cabin had a fixed seat in the direction of the panel (meaning his gaze would naturally have fallen onto the panel);

(2) Mr Jones said he was looking up and down the track. However, looking up and down the track required his gaze to pass over the panel;

(3) The labourers mounted the panel and worked immediately in front of Mr Jones who remained in his seat in the crane's cabin facing in the direction of the work. They carried sledgehammers and were in greater numbers than the supervisors Mr Jones had earlier observed. In short, the labourers were more rather than less likely to attract attention, particularly given Mr Jones had been alerted to the prospect of persons standing on the panel by his earlier observations of the supervisors (whilst, as I will find, he knew the panel was under weight), and any work actually performed on the panel would be a matter of acute interest and concern;

(4) The preponderance of the evidence is that the banging from the hammers lasted more than a few seconds before the incident occurred and, on balance, it is improbable that Mr Jones would not have been alerted to the work occurring on the panel at a much earlier time than when he claimed to have seen the work and reacted (late). Not only was there an extremely loud noise over a relatively extended period of time (a few minutes), but there occurred, immediately in front of Mr Jones, the obvious motion of swinging sledgehammers by at least five labourers (I do not accept he could not have observed the swinging sledgehammers);

(5) Overall, I agree that this part of his evidence was self-serving and directed to his exculpation.

Mr Fetherston

244 Mr Fetherston was not present in the vicinity of panel five for a substantial part of the time during which the panel was under weight after the third lift. I do not consider the evidence permits a conclusion that he observed the supervisors step onto the panel and, therefore, I accept his evidence in this respect.

245 However, he did return to the vicinity of the panel before the incident as he had delivered a coffee to Mr Jones who was, as noted, situated in the cabin of the crane. Mr Jones' coffee was in hand at the time of the incident. Mr Fetherston also accepted that he walked alongside the track, and, therefore, the length of panel five, on his way to the crane from the site sheds. He accepted, given that fact, he would "had to have" looked at panel five. He stated he might have "walked around the back of the crane and had a look at the next lift and then come back", but accepted that he stood at the side of the crane drinking coffee for five minutes before the incident occurred. He said when he returned with the coffee he recalled "just seeing people standing around" in the vicinity of panel five. He stated that he would not have been worried if he had seen people on the panel, because "Kim [was] looking after the load". His evidence was that he did not see anybody walk onto the panel until just before the incident. Mr Fetherston said, in that respect, he had "seen some men get onto the panel very quickly" before he "heard a bang" and the incident occurred. His evidence is inconsistent with the evidence regarding the amount of time which had passed between work commencing and the incident occurring. Whilst that evidence varied, at least enough time had passed for the labourers to unclip one whole rail (being 42 clips in total).

246 The view will be reached below that Mr Fetherston did not know that panel five remained under weight following the third lift. That conclusion would provide an explanation for why Mr Fetherston would not react to seeing the labourers going onto the panel to perform work by taking some preventative action. Given the conclusion I shall, as noted, reach as to Mr Fetherston's state of knowledge of the panel being under weight, it is strictly unnecessary to determine whether he did or did not see the labourers move onto the panel (although, it may be noted, it is more probable, given the analysis above, that he did).

Did Messrs Ford, Jones and Fetherston know that panel five was under weight during the period from the lowering of the panel on the third lift until the incident?

247 A critical factual issue was whether Mr Ford knew panel five was under weight after the third lift. Just what the expression 'knew' meant, in that context, was not the subject of close examination by the parties either in a definitional sense or by reference to relevant legal principle or theory which may have assisted in the discernment of Mr Ford's state of mind during the charge period.

248 A consideration of the cases for the parties overall, however, leads comfortably to the conclusion that the issue ventilated was whether Mr Ford was fully cognisant or aware that the panel was under weight. In short, the debate concerned whether Mr Ford was seized of information, retained in his mind and memory, that the panel was under weight on and from the third lift.

249 Mr Agius contended, for GTE, that the Court could have "no confidence" that Mr Ford was "conscious that the panel was under weight during the 15 to 20 minutes that the panel was in place before the workers came onto it to remove the two rails just before the incident". He also submitted the more likely explanation was that Mr Ford (and Mr Jones) were not conscious the panel was under weight (and, in oral submissions, that the Court "could" conclude Mr Ford did not know).

250 Senior counsel approached this question on two somewhat mutually exclusive bases concerning observations made (or failed to have been made) by Mr Ford (and a discrete issue concerning Mr Fetherston).

251 In the first, he contended that Mr Ford's admission that he did not observe the panel after the third lift must result in a finding that he did not know the panel was under weight.

252 In contradistinction, the second contention proceeded upon the basis that Mr Ford's evidence that he did not observe the panel (save for a momentary glance shortly before the labourers mounted the panel) was a fabrication or concoction. Under this thesis, the fact that Mr Ford observed the panel without preventing the supervisors or the labourers from being on the panel was, again, conducive to the conclusion that he did not know the panel was under weight. (A similar submission was addressed with respect to Mr Fetherston to the effect that, if Mr Ford knew the panel was under weight then Mr Fetherston (who admitted to not being told the panel was under weight) "should have known or been told" of that fact.)

253 In written submissions, Mr Hodgkinson contended that Mr Ford "was aware the crane was still supporting weight from the panel as on his own version he says he instructed the crane operator not to lose all the weight". In oral submissions, senior counsel reverted to the position adopted by GTE with respect to Mr Ford, namely, that his "actions" indicated he did not know the panel was under weight.

254 The premises underlying these contentions were that, if Mr Ford knew the panel was under weight, he would have invariably acted, due to the obligations reposing in him as a dogman/rigger, to prevent entry and, in respect of Mr Fetherston, he would have communicated the status of the panel to his fellow dogman.

255 To the extent these premises are expressed in absolute terms, they must be found to be incorrect. Whilst it may be accepted that, in the ordinary course of conduct, Mr Ford would act consistently with his duties, it does not follow that he necessarily would do so. Hence, conduct by Mr Ford contrary to his obligations as a dogman/rigger (even if substantially in breach) cannot necessarily result in the conclusion that he did not know the panel was under weight. The premise omits the possibility of Mr Ford acting contrary to his obligations because of neglect, forgetfulness, absentmindedness or through some distraction from, or negligence in, the performance of his duties. If the submissions are to be understood in terms of the likelihood of the occurrence of Mr Ford knowing the panel was under weight, then the factors relied upon need to be weighed in the light of a range of factors (including those not addressed in the factors relied upon by the defendants in this respect).

256 The ultimate determination of the question of whether Mr Ford knew the panel was under weight requires not only a closer consideration of the circumstances in which he did not act (and the observations, or lack thereof, made by him) but also Mr Ford's own evidence on the question and evidence bearing directly upon the state of his knowledge (such as the exchanges occurring between himself and Mr Jones in respect of the third lift).

257 Mr Ford stated that he knew the panel was under weight. That evidence was not challenged in cross-examination. However, as earlier noted, Mr Ford's evidence was attended by issues of reliability and credit which would warrant significant caution being exercised before its acceptance, particularly in the absence of objective factors or corroboration which supports acceptance of the evidence.

258 The Court's finding that Mr Ford did observe the supervisors standing on the panel is one factor relevant to, and standing against, the acceptance of Mr Ford's evidence. The evidence as to Mr Ford's failure to act, having seen the supervisors on the panel, is consistent with the hypothesis that he did not, in fact, know the panel was under weight (except to the extent, as I will later discuss, some alternate explanation for these actions may be found such as may affect the predicative value of this consideration).

259 That factor is strengthened by the fact that Mr Ford, as it has been found, actually observed the labourers conducting the work of Pandrol clip removal on the panel. The failure to prevent this occurrence would represent a substantial aberration of his obligations. As the head dogman/rigger he should have been acutely aware of the dangers of removing Pandrol clips from a panel which was under weight. The period of time which elapsed between Mr Ford first noticing work on the panel and his ultimate reaction (which he described as a "couple of minutes") is less consistent with him being merely distracted.

260 A further factor is Mr Fetherston's state of knowledge. There was no challenge to Mr Fetherston's evidence that he did not know the panel was under weight and such a conclusion is abundantly available on the evidence. The fact that he was not told and, thereby, did not know the panel was under weight is another factor pointing against Mr Ford's evidence that he knew the panel was under weight because it might be expected that, in the ordinary course, if Mr Ford did know he would have informed Mr Fetherston of that fact.

261 A significant counterpoint to these considerations has its genesis in the uncontested fact that the panel was lowered to the ground under weight.

262 If that eventuality arose from an instruction given by Mr Ford to that effect, then, as Mr Agius conceded, significant doubt must be cast upon the contention that Mr Ford did not know the panel was under weight, even given the factors discussed at [258] to [260] above. If Mr Ford had, in fact, given such an instruction, he would, in every sense, be the 'architect' of the panel being left under weight, making somewhat implausible the notion that, in a period of time ranging from 5 to 20 minutes, he would lose consciousness of both the action he had taken and the state of affairs arising in consequence of it.

263 Did Mr Ford give an instruction in those terms?

264 As previously mentioned, Mr Ford stated that he did so and conveyed the actual content of the instruction he gave to Mr Jones. His evidence was that he instructed Mr Jones to "just come down and put it on the ground we'll rest it because it's out of whack, we won't drop all the weight". It is apparent from that evidence that Mr Ford was there referring to an instruction given after the panel had been lowered sufficiently close to the ground so as to allow an assessment of the misalignment to have occurred.

265 Mr Jones corroborated Mr Ford's evidence that he gave an instruction that the panel be lowered under weight. Mr Jones gave evidence that he received that instruction and knew the panel was under weight from the third lift until the incident. His evidence, in that respect, was as follows:

[Mr Ford] just said 'it's not going to fit, so they've got to go and get the supervisor.' So they went to get the supervisor, and we were sitting there waiting for him to come back. And it was sitting in the air, so he's lowering me down to the ground, just to touch it down so it wouldn't spin. And, yeah, we were just sitting there in a holding position, waiting for someone to come up and make a decision what was going to happen. ...

266 It was Mr Jones' evidence that, in terms of the crane operations, "[I] don't do nothing until I get a signal from my dogman or my rigger"

267 Whilst a deal of attention was paid to whether Mr Ford's account of his exchange with Mr Jones in respect of the third lift should be accepted, little attention was paid to Mr Jones' account.

268 I have not found Mr Jones to be an unreliable witness, although I have, above, rejected part of his evidence, namely, that he did not observe the labourers mount the panel and commence work near the time of the incident.

269 Mr Jones was not cross-examined on the evidence extracted above.

270 Furthermore, there is no evidence directly contradicting Mr Jones' account, in this respect, and considerable objective evidence which supports it.

271 Mr Jones conducted the lifts of panels "1-3" and "1-4" and the first two lifts of panel five without incident. Each of those lifts resulted in the panels being lowered onto the ground without weight.

272 Mr Ford gave evidence that he issued instructions for panel five to be lowered without weight on the first and second occasions. Even allowing for the unreliability of his evidence, there is no apparent reason to reject his evidence in this respect. The uncontested evidence was that Mr Ford was the leading hand in the crane crew and controlled the lifts of the panels via radio communication with Mr Jones. He was the only person to give instructions as to how the loads would be lifted, slewed and lowered. Mr Jones confirmed that evidence with his own evidence, extracted above, that he followed Mr Ford's instructions. That one dogman/rigger would be in charge of the lifts was the direction given by the Boom Logistics JSA and Lift Study/Plan. There is no other evidence which would contradict that fact, particularly as the lifts in question conformed to the instructions Mr Ford said he issued. Even though it was contended that care should be taken in accepting the crane crew's evidence without corroboration, it was not suggested that Mr Jones did other than follow Mr Ford's instructions with respect to the first and second lifts of panel five.

273 I would interpose at this juncture to note that GTE submitted that Mr Ford's evidence as to the movements of the panel prior to the incident differed from that of Mr Jones in one important respect. It was contended that Mr Ford said the panel was still suspended after the first lift but that "[n]o one else says this. In fact the panel was on the ground and people had come onto the panel at this time without objection from any of the crane crew."

274 The submission is, however, misconceived. Mr Ford gave evidence, with respect to both the first and third lifts, that when panel five was lowered to the ground it was initially suspended 100 millimetres off the ground whilst minor repositioning and assessments were undertaken and, in the case of the first lift, the panel was then placed on the ground and, as Mr Ford stated, "we'd dropped all the weight off it". Mr Jones confirmed Mr Ford's evidence that the panel was dropped to the ground under the instruction of Mr Ford. He did not directly confirm Mr Ford's evidence that the panel was suspended whilst some small adjustments were undertaken before the panel was dropped. He could not recall seeing Mr Ford or Mr Fetherston "try and push the panel over the last foot or so into position". However, Mr Jones' evidence was to the effect that after he first lowered the panel he was told by Mr Ford an adjustment was required and that he should drop the panel to the ground. That evidence is entirely consistent with Mr Ford's account.

275 This discussion of the first and second lifts of panel five provides guidance in approaching the question of instructions given by Mr Ford to Mr Jones on the third lift of the panel. Mr Jones may be expected, in the third lift, to act in conformity with his previous practice of following instructions from Mr Ford having regard to the earlier sequence of events and the practices and conventions of the lifts. There is no contrary evidence in that respect. Mr Jones' actions from the third lift to the incident were entirely consistent with such an instruction having been given by Mr Ford.

276 As mentioned above, Mr Jones said that he would have followed the instructions of his dogman/rigger. Mr Ford remained in control of the crane operations. No suggestion was made to Mr Jones in cross-examination that he disobeyed an instruction given (by Mr Ford) to lower the panel in the third lift under weight. Nor was there any evidence there was something unusual or aberrant in an instruction of that character being issued as may have resulted in the likelihood of a different course being taken by Mr Jones to that instructed by Mr Ford. (The submissions, as I will discuss below, were confined to what common sense would dictate Mr Ford would have done.) In observing Mr Jones in the witness box, his demeanour would confirm it unlikely he would disobey or dispute an instruction from Mr Ford (particularly when also considered in the light of my observations of Mr Ford's demeanour). As far as it may, the transcript bears out the contrast in personalities between Mr Jones and Mr Ford by the way in which the two witnesses gave their evidence.

277 It would be appropriate to further pause here to consider two additional submissions challenging Mr Ford's account.

278 First, it was contended that, if Mr Ford gave the instruction to Mr Jones in the manner he stated, it was a step taken contrary to the instruction issued by Mr Horan. Secondly, as Mr Agius contended, a practical and common sense approach would have been to drop the panel without weight, when there was to be a potential delay until a decision was made in respect of fixing the misalignment and possible rectification work undertaken (as had occurred after the first lift). This was the easiest and, therefore, the most likely outcome.

279 There is, however, countervailing evidence bearing upon these issues which has the capacity to explain Mr Ford's actions in this respect.

280 The evidence of Mr Jones revealed that, by the third lift, Mr Ford was agitated over the fact that the panel still did not align. It is unclear whether this reaction was because the job was delayed, made more difficult or for some other reason (such as an expectation that the processes adopted after the first lift would be repeated), however, the evidence was clear that Mr Ford was annoyed. He expressed his anger in his communication with Mr Jones in which he explained that the panel still did not align (Mr Jones agreed that Mr Ford had spoken "colourfully" to him). It would appear that communication was a precursor to the instruction given by Mr Ford to Mr Jones to lower the panel to the ground under weight (which instruction, as I will find below, was, in fact, given by Mr Ford).

281 That evidence explains why Mr Ford may have chosen a course other than a common sense or practical one as suggested by Mr Agius. Keeping the panel under weight may have been viewed as a method of achieving a quicker or less difficult finalisation of the installation of panel five, particularly if he anticipated the panel being relocated as had occurred after the first lift. This does raise the likelihood of a less than rational or more opportunistic response to the problem encountered after the third lift. This may also offer some explanation for Mr Ford's defiance of Mr Horan's instruction.

282 On balance, I consider that the evidence of Mr Ford, as corroborated by the evidence of Mr Jones, that an instruction was given by Mr Ford, in the third lift, to lower panel five under weight should be accepted. Whilst there are some countervailing considerations which I have discussed, I do not consider that they warrant rejection of Mr Ford's or Mr Jones' evidence or outweigh the various factors I have discussed in favour of finding an instruction was given by Mr Ford to lower the panel under weight.

283 That consideration returns the discussion to the central question of whether, on the evidence, it should be concluded that Mr Ford knew the panel was under weight. This may be best achieved by consideration of the timeline of events after the third lift.

284 It follows, from the conclusion that Mr Ford instructed Mr Jones to lower panel five under weight after the third lift, that Mr Ford must have known the panel was under weight at that time.

285 A further conclusion may be readily reached. Mr Ford must have known the panel was under weight at the time the supervisors mounted and stood on the panel. That event occurred within a few minutes (no more than five) of the panel being lowered to the ground after the third lift. Mr Ford experienced no significant distractions or interruptions to his work between the third lift and the supervisors mounting the panel other than a discussion with Mr Fetherston and Mr Jones about coffee (which, itself, indicates a lax attitude on the part of Mr Ford). It is not plausible that he was distracted within the short time between the lowering of the panel and the supervisors mounting the panel such that he may have temporarily forgotten or lost immediate consciousness of the instruction he had given and that the panel was under weight.

286 Just why Mr Ford acquiesced in or failed to prevent the supervisors standing on the panel is unclear and, as I have noted, this is a counter indicator to Mr Ford knowing the panel was under weight. However, that contraindication is diminished when closer attention is paid to the evidence regarding the supervisors.

287 First, there was evidence given that Mr Ford not only had the capacity to prevent supervisors from entering the lift area or mounting the panel, but also the authority to enable persons to be in the lift area during crane operations. By indicating that there may be "Authorised people only in lift areas" during work involved with "Lower[ing] Load to rest position", the Boom Logistics JSA demonstrated that there were circumstances in which persons, other than the crane crew, could be in the vicinity of the panel during the lifting operations.

288 Secondly, the fact that supervisors had mounted panel five after the first lift, albeit whilst it was not under weight, may have been a factor in Mr Ford's mind.

289 Thirdly, Mr Ford also gave evidence that he had directed Mr Jones to rest the panel on the ground under weight after the third lift because "that way [the panel] wasn't suspended and it couldn't move around. There was still weight on the chains but it couldn't go anywhere." That evidence (which is also relevant to the s 8(1) charge brought against Abigroup) may indicate that Mr Ford did not, even if erroneously, consider it unsafe for supervisors to mount the panel in that state.

290 There remains, of course, the period between the supervisors leaving the panel and the occurrence of the incident. This period consisted of approximately 10 to 15 minutes and encompassed Mr Ford witnessing the labourers commencing the work of removing the Pandrol clips, a factor consistent with a finding that Mr Ford did not know the panel was under weight. Mr Ford's admitted actions may, however, also illustrate that he was distracted or neglectful. There was evidence of that conduct: he had a conversation with Mr Jones and Mr Fetherston about coffee, was startled upon having his attention drawn to the panel when he "heard some banging" (at either the time the incident occurred or at a moment so soon before it that he did not have time to radio Mr Jones to instruct him to drop the weight off the crane) and failed to observe labourers mount the panel (although I have found that, at some point, he did see them on the panel working). There was also evidence given by Mr Fetherston that, when he returned to the vicinity of the crane having made coffee, he observed that Mr Ford "was talking to some labourers by the look of it".

291 As earlier mentioned, Mr Agius contended that, if Mr Ford knew the panel was under weight, Mr Fetherston should also have known that fact (but did not).

292 Mr Fetherston was not told by Mr Ford the panel was under weight. He would have expected Mr Ford to convey that information. He was allowed to depart the work area for a substantial period of time without advice as to the state of the panel. These are factors consistent with a view that Mr Ford did not know the panel was under weight. However, there are countervailing considerations. Mr Fetherston did not ask what state the panel was in after the third lift. If that absence of inquiry (which does not seem consistent with a diligent approach to his work) resulted from Mr Fetherston making an assumption that the panel was on the ground, then there will be no disturbance to the contention of the defendants as to the significance of this factor to the question here under consideration (vis á vis Mr Ford's knowledge). However, that is not the case. When asked if he could have left the vicinity of the panel if he knew the panel was under weight, Mr Fetherston stated: "Most probably not unless - unless [Mr Ford] is in control there. If he is in control of the lift and everything is fine I wouldn't see too much of a problem."

293 Mr Ford's observations of the supervisors and the labourers and his approach to Mr Fetherston are factors, as earlier mentioned, which point to a conclusion that Mr Ford may not have known panel five was under weight after the third lift. However, as I have noted, his actions are also consistent with a different scenario, namely, that Mr Ford failed to act to prevent work occurring on the panel and to inform Mr Fetherston of the panel being under weight based on a variety of alternative factors ranging from negligence through to a temporary loss of awareness deriving from carelessness, neglect or forgetfulness. His behaviour, in this respect, may simply be consistent with a conclusion that the conduct was negligent.

294 Ultimately, in order to conclude that Mr Ford did not know panel five was under weight for the period following the inspection of the panel by the supervisors until immediately prior to (or at the time of) the incident, it is necessary to find that, having been, as I have found, initially mindful, when he first observed the supervisors standing near and upon the panel approximately five minutes after it was lowered on the third occasion, of the load being under weight, he then lost, in the next 10 to 15 minutes, that state of awareness, without any significant or urgent external intervening event which may explain how this knowledge could so quickly leave his mind, and notwithstanding he actually gave the instruction that the panel be lowered under weight.

295 The potency of the factors demonstrating that Mr Ford knew the panel was under weight, when combined with the conclusion, which I have earlier reached, that there were alternative explanations as to why Mr Ford did not prevent the supervisors from standing on the panel whilst under weight (and, in any event, the conclusion that, having given the instruction to Mr Jones no more than five minutes earlier, he must have known, at that time, that the panel was under weight) and why Mr Fetherston may have left the vicinity of panel five, even if it was under weight, significantly outweigh the alternative factors pointing to Mr Ford not knowing, namely, the fact of Mr Ford sighting and failing to prevent the labourers undertaking the work of removing Pandrol clips on the panel and the failure to tell Mr Fetherston that the panel was under weight. Much of Mr Ford's behaviour constituted, in my view, a grievous error and his inaction may be ultimately and properly explained in terms of a neglect of duty for whatever reason. That conclusion may be contrasted with the sheer implausibility that Mr Ford may have lost full consciousness of the effect of his instruction to Mr Jones within a short period after the third lift.

296 There is one further matter requiring attention. Mr Agius asked the question "why did [Mr Ford] say he warned a supervisor to keep off the panel when clearly he did not?" This gives rise to a question as to why Mr Ford may have invented the "young supervisor" account and his evidence that he did not observe the panel, save for a momentary glance, after the third lift. That speculation is largely unproductive of a conclusion to the present question except to note that both accounts given by Mr Ford are only consistent with an attempt by Mr Ford to exculpate himself in circumstances where the panel had obviously been found to be under weight after the incident. The version of events Mr Ford propagated after the incident (namely the young supervisor and his lack of observation of the panel) only serve an exculpatory function if Mr Ford knew or may be found to have known the panel had been under weight; the alternative (that he did not know) renders his justifications superfluous.

297 I find that Mr Ford knew the panel was under weight from the giving of his instruction to Mr Jones to effect that condition until the incident and that, in failing to prevent the supervisors and the labourers entering and working upon the panel, he acted in contravention of his duties as a dogman/rigger.

298 Counsel for the defendants sought different conclusions as to whether Mr Jones was conscious the panel was under weight from the time of the third lift until the incident. Mr Agius contended Mr Jones was not conscious that the panel was under weight primarily because he had made an error or had forgotten (he did not actually submit that Mr Jones never had knowledge of the panel being under weight) and Mr Hodgkinson contended that Mr Jones knew the panel was under weight throughout the period.

299 There are three factors which, overwhelmingly, in my view, warrant the conclusion that Mr Jones knew panel five was under weight throughout the period from when panel five was lowered until the incident. Those factors are as follows:

(1) Based upon the analysis and findings with respect to Mr Ford, Mr Jones was in receipt of an instruction to lower the panel under weight, which instruction he complied with. He was, therefore, seized of the knowledge that the panel remained under weight from the outset;

(2) I do not consider there is any proper basis to doubt the reliability of Mr Jones' account as to his knowledge of the panel's weight whilst he observed the supervisors on the panel. Part of his account of those events is not disputed, namely, his observations of the supervisors. His evidence that he knew the panel was under weight at that time was given frankly and against his interests (in the sense that he was obliged to prevent the supervisors standing on the load). The evidence was also corroborated by the objective factors and temporal consideration which I will discuss below. Further, it may be inferred from the fact of Mr Jones' observations of the supervisors, and the proximity in time of those observations to his work in lowering the load, that he was attentive to his work at that time. Certainly, he had not yet begun to exhibit the distracted and neglectful behaviour he later displayed in the 10 to 15 minute period following his observations of the supervisors (which behaviour I shall also come to below);

(3) Objective factors point to the conclusion that Mr Jones knew: the load was actually lowered to the ground under weight by Mr Jones, the cabin had a gauge showing the weight of the load which he used to regulate the load and Mr Jones' seat was fixed in a direction which would have drawn his attention to the gauge. Sitting in conformity with these factors was the very nature of Mr Jones' role at the site. He was a crane driver whose primary function was the lifting, slewing and lowering of loads via the use of levers and gauges under which the crane was operated. The lowering of the panel did not occur by accident or error; the execution of that task required skills exercised with precision. Further, Mr Jones recalled, without challenge, the approximate weight under which the load was kept;

300 It was contended by Mr Agius that the failure of Mr Jones to redress the situation of the supervisors standing on the load was a testament to him not being "conscious" of the load being under weight.

301 I have earlier found that Mr Jones observed the supervisors. Those observations, however, occurred within minutes of the load being lowered to the ground under weight by Mr Jones. It is simply not plausible that Mr Jones forgot or became unaware that the load was under weight within that timeframe.

302 It might be noted that it was never put to Mr Jones that the fact he took no action to stop the supervisors standing on the panel was inconsistent with his evidence that he knew the panel was under weight. He gave no explanation, and no explanation was sought, as to why he failed to act in those circumstances. The only comment made by Mr Jones, in that respect (that is, that he saw Mr Ford in the vicinity of the panel), does not detract from a conclusion that he knew the panel was under weight. Rather, that partial explanation (his evidence was, in fact, interrupted) is more consistent with a conclusion that he knew the panel was under weight, because it was given by Mr Jones in an attempt to demonstrate why he did not remove the supervisors from the panel despite his knowledge.

303 The next question arising is Mr Jones' knowledge in the period of time after he first observed the supervisors on the panel until the incident. As mentioned, with respect to Mr Ford, this period consisted of approximately 10 to 15 minutes and encompassed Mr Jones admitting to actions which illustrated he was distracted or neglectful (he was looking up and down the rail and was drinking coffee) and, despite his denials, observing labourers at some point working upon the panel. These factors are suggestive of a failure to appreciate the panel was under weight.

304 However, by way of similar analysis to that conducted with respect to Mr Ford, in order to conclude that Mr Jones did not know panel five was under weight in the period following the inspection of the panel by the supervisors, it is necessary to find that Mr Jones lost full consciousness of the panel being under weight in the 15 to 20 minutes after he had received an instruction from Mr Ford (which he acted upon), and that he did so without any significant or urgent external intervening event which may explain how this knowledge or awareness could so quickly leave his mind. Having regard to that consideration, and those appearing below, I do not consider such a finding to be available, as it is simply not plausible.

305 I do not consider Mr Jones' evidence as to the distractions he encountered in the period between the third lift and the incident may be ultimately accepted as a basis to find he did not know that panel was under weight. That evidence does not permit a finding, in my view, higher than that he was being neglectful of his duties to properly observe the panel under weight. There is no evidence that Mr Jones ignored the panel to such an extent as to compel a conclusion that he no longer knew or considered the panel to be under weight.

306 As in the case of Mr Ford, the fact that, as I have earlier found, Mr Jones observed the supervisors standing on the panel and working must give some indication that he may not have known the panel was under weight. However, this consideration is outweighed essentially by the factors I have discussed above, particularly those appearing at [299].

307 Ultimately, the evidence only properly permits a conclusion that Mr Jones maintained a distracted, casual or neglectful approach to his duties from the time of the third lift or his observations of the supervisors until the incident. So much is amply demonstrated by the fact that he actually spilled the cup of coffee he was holding whilst reaching for the luff lever in an attempt to avert the incident.

308 I accept Mr Jones' evidence that he knew panel five was under weight from the lowering of the panel until the incident.

Mr Harris' recollection of being asked whether the panel was right to get on and his suggestion in the course of the second discussion that the crane be moved prior to work commencing on panel five

309 There remain for consideration two aspects of the evidence of Mr Harris.

310 First, I do not accept Mr Harris' evidence that a question was raised as to whether it was safe to mount the panel. There are a number of reasons for this conclusion:

(1) The evidence was unsatisfactory. Mr Harris initially stated in examination in chief that no one had asked the crane crew if the panel was under weight, adding that "we wouldn't have stepped on the panel if we knew it was", but nonetheless went on to state, later in examination in chief, that an unnamed person asked if it was right to get on. Hence, the evidence, in this respect, was inconsistent, and attended by considerable uncertainty, particularly as to the author of the statement;

(2) Neither Mr Horan nor the crane crew (or, for that matter, any other witness) could recall anyone asking about the state of the panel or whether it was safe to get on.

311 Secondly, I do not accept the evidence of Mr Harris to the effect that, upon his departure from the second discussion, it was agreed, upon his suggestion, that the misalignment of panel five following the third lift would be resolved by work occurring on the panel after the crane had been moved on. The following factors result in that conclusion:

(1) Mr Harris' evidence in this respect was inconsistent, and, ultimately, vague and uncertain. Mr Harris initially stated, in examination in chief, that he had made a suggestion, which he understood had been agreed to by the other supervisors present, "that we could realign the bearers and the rail using an excavator at a later time", being a time "after the crane moved on". However, when cross-examined by the prosecutor on this issue, Mr Harris could not recall who had suggested that an excavator would be used, nor could he recall who had used the word "later". When asked who suggested that the work could be undertaken using an excavator after the crane had moved on, Mr Harris answered that "it would have been a general discussion between myself, Tim Horan and I think there was another supervisor there";

(2) Mr Harris' evidence was not corroborated by any other witness, either as to the notion of work being undertaken after the crane had moved on or as to the existence of an agreement to that effect. Mr Horan gave evidence that "there was no discussion to move the crane, I don't remember". Mr Stewart, whilst not asked directly, gave no indication in his evidence of a suggestion that the work would be undertaken at a time after the crane had moved. When asked whether there had been any discussion about the crane being moved prior to work commencing on the panel, Mr O'Sullivan answered "[n]o, no". It is one thing for recollections to differ over a proposal for rectification and another again for there to be no acceptance or recollection or an agreement to that effect;

(3) The evidence was self-serving and would, if accepted, tend to exculpate Mr Harris from blame in relation to his role, as supervisor representing the head contractor at the site, in allowing the work to be performed on the panel whilst it was still under the weight of the crane;

(4) Notwithstanding Mr Harris' role as the representative of the head contractor, and contrary to his suggestion of an agreement between himself and supervisors of relevant subcontractors, the work went ahead, immediately after he had left, entirely out of conformity with the agreement he said was reached. Such an outcome is unlikely given that, accepting he did not exercise direct control over any of the workers employed by Abigroup's subcontractors, Mr Harris was able to direct the work which occurred at the site by instructing the relevant supervisor of a particular workgroup to undertake a particular task.

Submissions of the Parties as to Questions of Liability

Submissions for the Prosecution

312 Mr Crawshaw made oral and written submissions which, taken together, are summarised as follows:

Re Prosecution of Abigroup

The risk

(1) The risk relied upon by the prosecution in each charge (save for formal differences as to who was exposed to the risk) was the risk of injury to persons from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site;

Section 8(1) charge

(2) The defendant was an employer on 24 March 2009. It was conceded by senior counsel for Abigroup that, as at that date, it was an employer of Mr Drewe, Mr Green, Mr Harris and Mr Cini and that those employees were working at the site on the date of the incident as part of Abigroup's undertaking. Abigroup's undertaking was being the principal contractor at the site and controlling works undertaken at the site, including the overall conduct of and responsibility for the safety issues pertaining to persons working at the site;

(3) It was also conceded by senior counsel for Abigroup that Abigroup's relevant place of work was the site, and that its employees were performing work at the site;

(4) There were two particular sets of failures by Abigroup, which failures were causally connected to the risk earlier identified. Those failures were the failure to conduct a risk assessment or ensure a risk assessment was conducted and the failure to provide a safe system of work;

Failure to conduct a risk assessment

(5) Following the third lift of panel five, the method of work changed to involve the removal of Pandrol clips forming part of panel five which was under weight. Whilst Abigroup had a general SWMS for "Working within the Rail Corridor", the evidence of Mr Horan, Mr Harris and Mr Stewart was that, before the particular work carried out on panel five after the third lift, there was no discussion of the risks involved. This was notwithstanding the fact that, as evidenced by Mr Cini and Mr Drewe, Abigroup's risk assessment system required risk assessments to be undertaken at the start of the project, before each task, and when a task changed - see also Abigroup SWMS at tab 14 of volume 2 of exhibit 14. In his record of interview, Mr Green stated it was an Abigroup requirement that a further risk assessment be undertaken when the work changed or when problems were encountered during a job (exhibit 12 Q&A 28-32). A new risk assessment should have been undertaken of the nature set out in particulars b(i) and (ii);

(6) Whilst it is accepted that no Abigroup employees and, in particular, Mr Harris, were aware that panel five was under weight when the labourers began to remove Pandrol clips from the rails, it was submitted that fact would have become evident had any proper and/or comprehensive risk assessment been undertaken, not least because such an assessment would have involved a consultation with Mr Ford who knew that the panel was under weight (Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at [66] and [72] to [74]);

(7) Abigroup did not ensure that there was any requirement in either the Taylor Railtrack SWMSs or or the Boom Logistics JSA for a risk assessment to be conducted in the event of a change to the work of rail panel placements;

(8) It was not sufficient for Abigroup to rely on its general overarching SWMS. A paper system alone cannot constitute a safe system of work or otherwise meet the duties required under both s 8(1) and s 8(2): WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited (No 2) [2000] NSWIRComm 99 at [35];

Failure to provide a safe system of work

(9) The prosecutor accepted that there were failures by the specialist contractors Boom Logistics and Taylor Railtrack. However, it was submitted that, as principal contractor, Abigroup was in a position to control the behaviour of persons on site, including securing an adequate system of communication between the specialist contractors and ensuring that all persons on site, including its employees, did not work on loads attached to a crane without first checking whether they remained under weight. Abigroup's duty under the Act, in this respect, was non-delegable (WorkCover Authority of New South Wales (Inspector Reed) v CSR Limited t/as CSR Wood Panels 2001 109 IR 275 at (289));

(10) Had Abigroup ensured that there was an adequate system of communication between the crane crew and other persons working on panel five, there is no doubt that the risk of injury alleged in the charge would not have arisen. This is clear given the evidence of Mr Jones and Mr Ford that they were aware, at all relevant times, that the load remained under weight;

(11) The failure of Abigroup in implementing a safe system of work occurred in circumstances where, through Mr Harris, Abigroup participated in the decision to remove Pandrol clips from the rails on panel five in order to correct the misalignment between the panels. Though the involvement of Mr Harris in the decision making process was not necessary to make out the offence against Abigroup, it was further evidence of the culpability of the defendant;

(12) Whilst it was accepted by the prosecutor that Mr Harris was unaware that panel five remained under weight after the third lift, it was submitted that he took no steps to confirm that was the case or to ensure the crane crew were notified of the proposed course of work before it commenced. Had the proposed course of work been communicated to Mr Ford prior to it commencing, it was inconceivable that Mr Ford would not have informed Mr Harris that the panel remained under weight;

(13) The involvement of Mr Harris in the decision-making process demonstrated that Abigroup was not simply relying upon its subcontractors: Inspector Piggott v CSR Emoleum Services Pty Ltd [2003] NSWIRComm 282 at [249]-[250];

Re Prosecution of GTE

(14) The risk relied upon by the prosecution was the risk of injury to the GTE employees working on the site from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site;

(15) It was submitted by the prosecutor that GTE was an employer of Mr Iosefa, Mr McDonnell and Mr Dixon. It was conceded by GTE that it was an employer of Mr Iosefa and Mr McDonnell, but GTE disputed whether Mr Dixon was its employee;

(16) The relevant place of work was the site, given that GTE's employees were performing work there;

(17) The Court should have regard to the treatment of labour hire companies under the Act: WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 219; (2001) 110 IR 447 at [35];

Failures of GTE

(18) The failures identified in particulars (d)(iii) and (iv) of the charge were not pursued by the prosecutor;

(19) The prosecutor may succeed in the charge if it is only able to make out one failure that was causally connected to the risk;

(20) It was not suggested by the prosecutor that the first failure alleged against GTE, in particular (b) of the charge, had itself a causal connection to the risk. However, it is a relevant factual particular upon which the other failures which are particularised in the charge are associated. In respect of particular (b), GTE failed to take any positive steps to ascertain what particular work was being conducted at the site (so much was conceded by senior counsel for GTE) and it was not aware which of its employees were contracted to perform work at the site;

(21) The other failures particularised in the charge fell into two categories: 1) failures regarding assessments of risks to employees; 2) failures regarding an absence of information and instruction in relation to risks;

(22) In relation to the failure to assess risks, Mr Lucas accepted that neither he nor anyone else from GTE conducted a site visit at the site prior to GTE employees commencing work there (despite site visists being a normal practice), conducted a risk assessment or job safety analysis in relation to the work being carried out by its employees at the site nor reviewed any SWMSs or risk assessments or job safety analyses in relation to the work being conducted at the site. Whatever risks may have arisen on the site, GTE did not assess them in any way nor did it put itself in a position where it was able to do so;

(23) Mr Lucas gave evidence that he would have approved the Taylor Railtrack SWMSs and the Boom Logistics JSA had he seen and reviewed them. However, mere approval does not constitute a proper review nor satisfaction "that the procedures in place as reflected in the SWMS would control the risks to its employees";

(24) Moreover, the failures identified by the prosecution in reviewing the SWMSs are directed at reviewing all the SWMSs "prepared in relation to the work to be undertaken by its employees". If GTE had properly and comprehensively reviewed all the SWMSs applicable to the work to be undertaken by its employees, it would also have reviewed the general overarching Abigroup SWMS and seen that it contained a requirement for a risk assessment to be conducted in the event of a change to the work process. If GTE had addressed with its employees the requirement for a new risk assessment to be undertaken when the work changed or when problems were encountered during the job, either through its own proper and comprehensive risk assessment or a proper and comprehensive review of the work site's SWMSs, in the context of the particular work being undertaken, its employees would have specifically had drawn to their attention the need for a new and separate risk assessment before undertaking the work of rectifying the misalignment of panel five after the third lift. Had a fresh risk assessment been conducted prior to work commencing on panel five after the third lift, the fact that the panel was still under weight would have become evident (again not least because such an assessment would have involved consultation with Mr Ford, as dogman, who knew the panel was under weight);

(25) In relation to information and instruction failure, it was submitted that the failure to supply employees with adequate information and instruction was inevitable when it was accepted that the first failure in particular (b) was made out. Taking into account the fact that Mr Lucas had not visited the site, no adequate instruction could be given as to the risks associated with working near a crane;

(26) The fact that GTE was not in a position to control the occurrence of the actual incident is not to the point. It is trite law that it is not necessary to demonstrate a causal connection between the conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution: WorkCover v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at (253).

Submissions for the Defendants

Submissions for GTE

313 Mr Agius made oral and written submissions which, taken together, are summarised as follows:

(1) GTE did not dispute that, at the time of the incident, GTE was an employer of Mr McDonnell and Mr Iosefa and that those men were at work. It was, however, disputed that Mr Dixon was an employee of GTE at that time;

(2) The risk of being struck by a rail panel or components of a rail panel whilst installing rail panels at the site, as alleged in the charge against GTE, did not arise as a result of the acts and omissions particularised against it. The risk arose because of the failure of others or because of circumstances over which GTE had no control and which were beyond its control. The prosecutor was not permitted to allege a general risk to health and safety and was confined by the measures/omissions as alleged in the charge: Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings v WorkCover Authority of NSW (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; (2010) 113 ALD 1; (2010) 262 ALR 569;

(3) The risk as particularised only arose when work was directed to be performed on a panel which was under weight. None of the particulars as pleaded in the charge related to that risk;

(4) Central to GTE's case, in this respect, was the fact that GTE was not informed by MVM Rail, either at the time MVM Rail arranged to hire workers on GTE's books or, later, when there was a change in the work process requiring rails to be unclipped from a panel attached to a crane, that its employees would be required to do work relating to the installation of the panels themselves (in particular, the removal of Pandrol clips), which work ultimately exposed those employees to the risk specified in the charge. Rather, GTE was only aware that its employees would be required to perform fish plating and general labouring duties. The panels were installed by the crane crew (that is, they were lifted into place using a crane); the only function of the fish plates was to connect the rails of two already installed panels (that is, connect panel to panel). Fish plating work, therefore, did not relate to the placing of the panels, but commenced after the panels were placed. GTE's responsibility under the Act was met by doing no more than taking the position that fish plates would be fixed after the panels had been placed, and, also, that the "general labouring duties" required of GTE staff in addition to the fish plating work did not include anything associated with work on the panels themselves;

(5) Furthermore, it was not foreseeable that a crane would be used to place rail panels in position, nor was it foreseeable that GTE's employees would be required to unclip rails on a panel which was being supported by a crane; this was outside the task for which GTE employees had been hired;

(6) So much was evidenced by the following:

(a) The evidence of Mr Lucas, in examination in chief, that: "He [Mr Begley] had advised me that he was going to put in a couple of labourers through GTE purely to install the cross over, all they would be required to do was fish plate the railing";

(b) To which he added: "Yes that's all and for general labour duties";

(c) In cross-examination, when asked by senior counsel for GTE to confirm whether Mr Begley had told him that the work to be performed by GTE was to fish plate the rail and perform general labour duties, Mr Lucas replied that was correct. Mr Lucas described the task of fish plating as "a simple procedure or boring the web of the rail, putting two metal plates in either sides of the webbing, putting them in with the nut and the bolt...and bolting it up". He agreed that the purpose of the task was to join two rails together, and that the task occurred prior to the rails being welded together (if welding was required);

(d) Mr Lucas gave evidence that Mr Begley had given him no indication that cranes would be used on the site for the installation of rail panels nor that GTE employees would be required to work in association with "anything being done by a crane" at the site;

(e) The evidence of Mr Lucas was that, whilst MVM Rail had previously hired labourers from GTE, MVM Rail had never previously hired GTE employees to do work involving cranes. Had he known that cranes were being used at the site, he would "most definitely" have wanted to see the relevant SWMSs;

(7) As noted, GTE's primary submission was that the work required of GTE employees was the fixing of fish plates and general labouring duties. General labouring duties did not include the skilled work of installing railway panels (which work could involve the construction and deconstruction of panels and the use of cranes). No mention was made by Mr Begley, in the course of recruiting GTE employees, that cranes would be used at the site. Historically, in its dealings with MVM Rail, GTE's employees had not been involved in working with cranes. It was accepted that GTE made no assessment or inquiries of its own as to the work to be performed by its employees and the risks to safety associated with such work. It was submitted that GTE had, nonetheless, met its obligations as an employer under the Act. The risk to GTE employees only arose because, once the employees were committed to the site, they were, during the night shift on 24 March 2009, deployed to perform a task of which GTE had no notice;

(8) The secondary submission for GTE was that the particulars of the charge against it were not causally related to the risk because the risk did not arise until the panel was left in a suspended state, that is, when the crane crew, being Boom Logistics' employees, failed to follow its own job safety analysis in permitting the supervisors and the labourers to be on the rail panel whilst the crane was partially under load in circumstances where the crane crew ought to have been aware or conscious (but were not) that the panel was still under weight. Any failure by GTE to review any of the SWMSs or job safety analyses or to ask any questions about the work does not relate to the risk. There could be no obligation on GTE to assess the risks associated with the work of removing rails from the panel when it was not informed that such work was to be undertaken. It was not incumbent upon GTE as a labour hire company to monitor everything that occurred at the site, nor was there any allegation against GTE that the supervision of its employees at the site by MVM Rail was inadequate. This submission was advanced, on behalf of the GTE, both in terms of liability and defence;

(9) Further, or in the alternative, the existing SWMSs and the Boom Logistics JSA governing the work to be undertaken at the site by GTE's employees were not alleged nor proven to be deficient in anyway. Furthermore, there were significant measures in place dealing with the general risk as pleaded. GTE's employees were required to adhere to the SWMSs and job safety analyses of the specialist contractors who controlled the work on the site, which documents were adequate to eliminate or control the risk pleaded against GTE. The failures alleged against GTE, therefore, were not causally linked to the risk pleaded against it;

GTE's failures as particularised in the charge

(10) The prosecutor failed to make out the particulars alleged in the charge against GTE and, in any event, the failures particularised against GTE were not causally connected to the risk and were not manifested in the death of Mr Iosefa nor the injury to Mr McDonnell (or, for that matter, the injury to Mr Dixon);

(11) The prosecutor's submission that particular (b), whilst a measure or omission, was not causally related to the risk was accepted by GTE. In any event, as discussed above, Mr Lucas was aware of the work GTE employees were required to undertake, namely, fish plating and general labouring;

(12) In respect of particular (c), it appears, from the prosecutor's submissions, that the prosecutor reduced particular (c) to an allegation that GTE "failed to assess the risks that might arise". However, that failure was qualified by the balance of the words of that particular. When considered as a whole, the gravamen of particular (c) concerned the competence of Mr Iosefa, Mr McDonnell and Mr Dixon, however, the competency of those workers was not challenged by any evidence. Indeed, the evidence showed those workers were, in fact, competent. In particular, Mr Lucas gave evidence that the employees and, indeed, Mr Dixon, were all competent and skilled in the work they were required to perform. Further, Mr Dixon and Mr McDonnell had previously worked for MVM Rail, a company specialising in rail construction, and, therefore, it may be inferred that they were capable fish platers and labourers. Mr O'Sullivan also gave favourable evidence about the apparent skill and competence of Mr Iosefa, Mr McDonnell and Mr Dixon. It must be accepted that the evidence as to skills, in this respect, is against the prosecutor. This particular cannot be made out. Further, or in the alternative, there is no evidence that the length of Mr Iosefa's experience is causally linked to the risk pleaded;

(13) In respect of particular (d)(i) and (ii), it was submitted that, given GTE was not aware that its employees would be required to participate in work relating to the installation of panels (in particular, the work of removing Pandrol clips from a panel attached to a crane), it must be concluded that, in the result, GTE was deprived of an opportunity to assess the risks of such work. (It was conceded by senior counsel for GTE that, had GTE been so advised, there may then have been an obligation to reassess the risk and make enquiries.) GTE was not liable for the risks that arose from the work, and none of the pleaded failings, even if accepted, could causally be related to a risk which was unforeseeable by GTE. Furthermore, the SMWSs and job safety analyses developed for the work occurring at the site were adequate to control the risk. Mr Lucas reviewed both the Taylor Railtrack SWMSs and the Boom Logistics JSA prior to giving evidence in these proceedings and gave unchallenged evidence that he would have approved each of them had he seen them prior to the incident. Examination of those documents by GTE would not have addressed the risk in circumstances where the employees were qualified to do the work they were employed to do, had been inducted into the site and the SWMSs and were supervised on the site. Furthermore, Mr Lucas' evidence, in this respect, should not be rejected, as submitted by the prosecutor, as self serving; Taylor Railtrack and Boom Logistics were experts in their fields;

(14) In any event, it would not have mattered whether GTE had inspected the Taylor Railtrack SWMSs or the Boom Logistics JSA, inspected the site or had its own supervisor on site. The risk as particularised arose not because of the absence of those things. The risk arose because the crane crew failed to follow its own job safety analysis by allowing the supervisors and the labourers to come on to the panel or failing to warn those workers to stay off the panel whilst it was under weight. There was no way for any other person, aside from those members of the crane crew, to have knowledge or awareness that the panel remained under weight. That was particularly so given the submission, set out earlier, that the two dog men were not aware through the whole of the period that the panel was under load and that the crane driver, having either forgotten that it was under load or simply made an error as to whether it was under load, was not conscious of that fact until after the incident. The actions of Mr Ford (in either disregarding the panel or seeing the supervisors and the labourers on the panel and not preventing those workers from being there) and Mr Fetherston (in departing the panel for an extended period of time) indicated to all in the vicinity that the lift had been completed and the panel was safe to mount. Mr Horan had instructed Mr Ford to "drop" the load and was, therefore, entitled to assume that had occurred. Further, Mr Harris recalled hearing someone ask whether the panel was "right to get on" and was under the impression it was safe to do so.

(15) Particular (e) cannot be made out given that GTE had not been informed that a crane would be used in connection with the work at the site. It was not incumbent upon GTE to ask MVM Rail whether a crane would be used. Rather, it was incumbent upon MVM Rail to inform GTE if the work to be undertaken by GTE employees changed after the hire of the workers had been arranged;

(16) It was submitted, even if it one or all of the failure alleged against GTE were proven, the death of Mr Iosefa and injuries suffered by Mr Dixon and Mr McDonnell could not be said to be a manifestation of those failures.

Submissions for Abigroup

314 Mr Hodgkinson made oral and written submissions which, taken together, are summarised as follows:

(17) The risk as pleaded in the charges against Abigroup was that persons (being Mr Harris and Mr Drewe for the s 8(1) charge and Mr Iosefa, Mr Dixon, Mr McDonnell, Mr Ward and Mr O'Sullivan for the s 8(2) charge), were put at risk of injury from being struck by a rail panel or components of a rail panel whilst installing the rail panels at the site;

(18) The particulars alleged in each charge were the same, save for the differences in the workers to which they related;

(19) There are difficulties with the prosecutor's case with respect to each charge individually;

Section 8(1) charge

(20) Senior counsel for Abigroup conceded that Mr Harris, Mr Drewe, Mr Green and Mr Cini were employees of Abigroup. It was also conceded that those workers were involved as part of Abigroup's undertaking at the site on 24 March 2009;

(21) The words in particular (a) of the s 8(1) charge, "the defendant's employees, and in particular", have no work to do;

(22) Whilst the risk was pleaded as having arisen on 24 March 2009, there was no evidence that any Abigroup employee or, for that matter, any person at the site, was at risk prior to the situation which arose in relation to panel five. The risk as charged arose after the third lift of panel five when the work to be performed changed in order to rectify the misalignment which had occurred;

(23) It was submitted that only three Abigroup employees were in the vicinity of panel five at any time during the charge period (that is, Mr Harris, Mr Drewe and Mr Green). However, it was submitted, none of those persons were in the vicinity of panel five when the risk, in fact, arose;

(24) The risk of being struck arose only as a consequence of two things happening together: 1) the panel being under weight and 2) the unclipping of Pandrol clips taking place at the same time. There was no suggestion that there was any risk of someone being struck when the panel was on the ground but under weight. It was accepted that may not be a safe situation for other reasons, however, the specific risk as pleaded (and the risk which the Court must have regard to) did not arise as a result of the panel being under weightper se;

(25) It was submitted, therefore, that no Abigroup employees were, in fact, exposed to the risk as pleaded. Mr Cini had worked on the day shift and had left hours before the incident. Mr Drewe had left and was on his way out of the site by the time the incident occurred. Mr Harris was outside the gate and down towards the site sheds. No Abigroup employee was present when the unclipping work commenced on panel five after the third lift (although it was accepted that a least one Abigroup employee, namely, Mr Harris did, at one stage or another, stand on the panel when it was under weight. However, Mr Harris could not have been exposed to the risk of being struck until the unclipping began and, by that time, he had left the vicinity of the panel);

Section 8(2) charge

(26) It was accepted that the persons named in the charge were involved in conducting the work of Pandrol clips from panel five after the third lift. However, there was no evidence that any other persons were involved in that work. Therefore the general words "that persons not in its employment and in particular" have no work to do;

(27) It was accepted by Abigroup that it was the principal contractor at the site. However, Abigroup did not exercise direct control over any of the workers employed by its subcontractors and was required to go through the relevant supervisor of the particular work group for a particular task to be undertaken or to consider something;

Abigroup's failures as particularised in the charges

(28) The prosecutor has failed to make out the particulars in the charges against Abigroup - that is, having identified a particular risk, the prosecutor has failed to make out that any of the alleged measures as contained in each of the particulars would have controlled that risk;

(29) As to the failure to conduct a risk assessment or ensure a risk assessment was conducted, it was submitted, the risk, as earlier mentioned, only arose if the panel was under weight. There has been conducted a risk assessment in respect of the lifting operations, namely, the Boom Logistics JSA. To suggest that something more or additional should have been done by Abigroup, in circumstances where a risk assessment existed for the very task (which risk assessment was not criticised), is not accepted;

(30) It would not have mattered, in any event, if a risk assessment had been conducted because there was no way for Abigroup, in particular Mr Harris, to know that panel five remained under weight following the third lift. That was particularly so given the submission for Abigroup, set out earlier, that Mr Ford did not know panel five remained under weight. Mr Ford had been instructed by Mr Horan to "drop" the load. The behaviour of the crane crew indicated to every other person in the vicinity that the panel was safe to mount. Mr Harris' understanding was that the rails would be unclipped and bearers repositioned on panel five after the crane had moved on. The Court would, therefore, accept that Mr Harris did not expect the crane to be attached to the panel whilst that work was undertaken;

(31) Furthermore, the lifting operation per se did not change following the third lift of panel five. The Lift Study/Plan contemplated the movement of a panel of a particular size. Whilst it was accepted that it did not contemplate the panel being lifted to somewhere other than its designated position, at all times the lifts that had taken place fell within the contemplated parameters of the Lift Study/Plan and the Boom Logistics JSA. The Boom Logistics JSA related to the lifting and lowering of loads. It was submitted that, if Abigroup had conducted a lift assessment, it would have been the same as that which was contained in the Boom Logistics JSA. This was so because the dynamics of the panel did not change - that is, the size, weight and configuration of the panel did not change. Hence, the way in which the crane was to be set up in order to conduct the lift safely did not change;

(32) There was no causal relationship between this allegation (which, in reality, was made in hindsight) and the risk, given that the very task had already been risk assessed and the proper measures put in place;

(33) Abigroup discharged its responsibilities as principal contractor by the formulation and implementation of an Integrated Quality, Safety and Training Plan and the development of an overarching SWMS (into which workers were inducted prior to commencing work at the site). Abigroup, as principal contractor, was required to, and did, require Boom Logistics and Taylor Railtrack to perform their own risk assessments of the tasks they were to undertake and to document those in the form of a SWMS or job safety analysis. Boom Logistics provided a Lift Study/Plan and a job safety analysis and Taylor Railtrack developed several SWMSs for the site;

(34) The Lift Study/Plan developed by Boom Logistics identified that the head rigger had a very significant role, namely, that each lift will be at the head rigger's discretion. That document also set out the relevant safety procedures to be enforced by the crane crew. Both that document and the Boom Logistics JSA were reviewed by the crane crew on the night of the incident (indeed, the initials of each of the members of the crane crew appeared on those documents). The Boom Logistics JSA noted that to control the risks associated with the lifting and lowering of a load, authorised people only were to be in the lift areas and that the dogman was responsible for ensuring that occurred. Mr Ford was the dogman in charge of the lifts on the night of the incident;

(35) When one looked at the Lift Study/Plan and the Boom Logistics JSA, as well as the SWMSs of Taylor Railtrack, it was submitted, it was clear that the lifting of panels had been considered, potential hazards had been identified and certain control measures put in place. That system had operated effectively for the earlier two lifts of panel five. Had the same measure of safety operated immediately prior to the third lift in relation to panel five, the relevant risk to safety would not have arisen. That it did not was the fault of the crane crew only;

(36) Taylor Railtrack provided a number of SWMSs including one for turnout installation which identified the possible hazards of being struck by plant and panels, and one for track construction, which identified possible hazards associated with the work;

(37) Mr Drewe and Mr Cini separately reviewed the safety documents including the Boom Logistics JSA and Taylor Railtrack's SWMSs;

(38) The particular going to communication, it was submitted, actually did not make any real complaint about the system of communication. What it alleged, in reality, was that something was not communicated. On the evidence, there was an adequate system of communication. There was no impediment to communication between the Abigroup supervisor and Mr O'Sullivan or with other people including the crane crew. Once again the words "in particular" have no work to do. The particular is talking about communication between the subcontractors and the only relevant subcontractors, on the evidence, were Boom Logistics and Taylor Railtrack;

(39) In relation to particular (c)(iii), in addition to that particular having no causal connection to the risk specified in the charge, a defence was also invoked in respect of that particular in that it was not practicable for Abigroup to, in the circumstances, ensure that its employees did not access or walk on a load whilst still under weight, given that the crane crew were the only people with the capacity to know the panel was under weight and the communication systems in place were adequate and appropriate;

(40) The prosecutor did not make out beyond reasonable doubt that the alleged failure to ensure an adequate system of communication in any way contributed to the incident or to the manifestation of risk;

Prosecutor's Submissions in Reply

315 In reply, the prosecutor put submissions orally which are summarised as follows:

(1) The evidence of various witnesses, in some respects (universally when not corroborated), should not be accepted. However, it does not follow that, simply because some part of a witness' evidence may not accepted, the whole of their evidence should be rejected. That suggestion was raised in relation to the evidence of Mr Dixon about observing a "bow" in the rail; there is no reason not to accept that evidence simply because it was conceded by the prosecutor that Mr Dixon's evidence that he observed panel five to be suspended following the third lift should be rejected. Further, the submission of Mr Agius that the prosecutor had "walked away" from the evidence of Mr Ford (by accepting that his evidence involving reference to a "young supervisor" should not be accepted) should be rejected. The prosecutor has a duty to call witnesses who can give relevant evidence; that does not mean the prosecutor accepts that evidence either in whole or part;

Prosecution of GTE

(2) Mr Agius submitted that the essential basis for the invoking of defences by GTE (that is, about the risk as pleaded not being foreseeable) was that GTE was ignorant of the actual work being performed by its employees at the site. The difficulty with that submission was that, had Mr Lucas visited the site and, in particular, if he had reviewed the Taylor Railtrack SWMSs, he would have become aware that a crane was involved in the work being performed at the site. Further, the Taylor Railtrack SWMSs indicated that the risk of being struck by a panel was not confined to being struck by a panel whilst unclipping was occurring. It showed that the risk of being struck was present during the lifting out of panels, that is, when the panel was under weight, irrespective of whether or not unclipping or other work had commenced or was occurring on the panel;

(3) The duties of GTE under the Act are non-delegable: Coffey Engineering at [37]. The authorities in this respect apply equally to labour hire companies as to principal contractors. GTE could not delegate its duties under the Act to MVM Rail;

(4) Another theme identified in the submissions for GTE was a concentration on the incident itself. Mr Agius sought to restrict the prosecution case to the actual incident because the final paragraph of the particulars noted that because of GTE's failures and omissions, death and injury occurred. However, it is commonplace that such a statement is placed in applications for order in occupational health and safety prosecutions. Further, as a matter of law, that the acts or omissions of the defendant were causally related to actual injury or death can only be an aggravating factor as to the level of culpability of the defendant; it is not a matter essential to criminal liability;

Prosecution of Abigroup

(5) In relation to the s 8(1) charge, it was conceded by the prosecutor that, on the evidence, Mr Drewe did not stand on the panel when it was under weight (although Mr Harris did);

(6) The essential theme of the submissions put for Abigroup was that the charges against it should be dismissed because the risk as pleaded could only arise from a combination of the panel being under weight and the rail being unclipped from the panel whilst in that state. However, as demonstrated by the Taylor Railtrack SWMSs, there was always a risk, or "potential danger", of being struck by panels. Dangers were present when the panel was under weight, before or irrespective of whether the unclipping had commenced. Mr Harris was, therefore, exposed to the risk given there was a risk of being struck when the panel was under weight (not just when the panel was under weight and rails were being unclipped);

(7) Senior counsel for Abigroup attempted to overcome the prosecutor's submission that there should have been a new risk assessment conducted to address the change in work by taking the Court in some detail to the Boom Logistics JSA. The difficulty with that analysis is that it did not address the Taylor Railtrack SWMSs under which workers other than the crane crew were working (which workers, also, were not shown the Boom Logistics JSA);

Consideration

316 A brief recounting of the principles applicable to prosecutions brought under ss 8(1) and 8(2) of the Act should serve as a useful framework in which the contentions of the parties as to each of the charges may be evaluated:

(1) Sections 8(1) and 8(2) of the Act are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating: Kirk at [12] and [20] (in this respect I note there are no material differences between these provisions and ss 15 and 16 of the Occupational Health and Safety Act 1983 ("OHS Act 1983")). A breach or contravention of ss 8(1) and 8(2) is the measure not taken: Kirk at [17]. It is the act or omission of the employer which constitutes the offence: Kirk at [34];

(2) This generally stated duty is personal to the employer and is a non-delegable duty. It is not expressed in terms of the standard recognised by the common law to take reasonable care. It is higher: see Kirk at [10] and [12]. The concept of reasonable foreseeability is not apt to be applied to the duties owed under the Act (except with respect to defences): Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 at 452;

(3) The identification of a risk to the health, safety and welfare of employees and other persons at the workplace is a necessary step by an employer in discharging the employer's obligations: Kirk at [14]. However, it is also necessary for a prosecutor to identify the measure which should be taken such that, "if a risk was or is present", the question then becomes "what action on the part of the employer was or is required to address it?": Kirk at [34];

(4) The risks to safety to which ss 8(1) and 8(2) of the Act are directed have been variously described as "the potential danger to the health and safety of persons at [the] workplace" (Haynes v CID Manufacturing Pty Ltd (1994) 60 IR 149 at 157), and the relevant "detriment to safety" (McMartin v The Broken Hill Proprietary Company Ltd (1988) 100 IR 241 at 244 and State Rail Authority (NSW) v Dawson (1990) 37 IR 110 at 121). In Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 (at [143] - [144]), Spigelman CJ (with whom Hulme and Howie JJ agreed) approved the notion of "potential for harm" with respect to ss 15(1) and (2) of the OHS Act 1983. In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94; (2010) 205 IR 263 (at [63] and [67]), Spigelman CJ (with whom Beazley and Basten JJA agreed) found that, on its proper construction (taking into account its ordinary meaning and the context in which it appears), the word 'risk' in s 8(2) of the Act referred to the "possibility of danger". Whatever may have been the risks existing generally at the workplace, it is only that risk which is identified in the charges that is relevant in a prosecution brought under the Act;

(5) The employer's obligation to ensure the health and safety of employees under the Act may be satisfied by eliminating or preventing or minimising exposure to an identifiable risk, however it may come about (that, is whether created by or under the control of a defendant): The Crown in the Right of the State of New South Wales (Department of Education and Trading) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 at [42];

(6) It follows that it is not necessary that harm befall an employee or worker for an offence to have been committed: Kirk at [13]. The duty created is directed to obviating risks to safety at the workplace, even absent an actual incident causing injury. The duty is both preventative and remedial in nature: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 at [97(3)] and [97(4)] and Coffey Engineering at [16] approving WorkCover Authority (NSW) v Police Service (NSW) (No 2) [2001] NSWIRComm 90; (2001) 104 IR 268 at [20]. Thus, it is not the accident itself which constitutes the offence, but rather the failure of an employer to ensure that its employees are not exposed to risk whilst at work;

(7) It is wrong, in considering whether a breach has occurred, to reason from the actual incident causing injury, as the necessary detriment to safety, "as such an approach may lead to a misunderstanding of the real facts on which a charge is based": Morrison at [97(5)];

(8) It is necessary to establish the failure by the employer and that the failure (by act or omission) caused the identifiable risk to the health, safety and welfare of employees (and non-employees present at the workplace in case of charges brought under s 8(2) of the Act): Morrison at [97(7)] and State Transit Authority (NSW) v Guillarte [2003] NSWIRComm 128; (2003) 123 IR 237 at 238 approving WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453; (1999) 101 IR 239 at 253-254. Findings of causation are necessarily dependent upon the risk to safety as identified in the charge brought against a defendant;

(9) In O'Sullivan, the Full Bench observed as to causation (at [45]):

Causation has to be viewed in a common sense and practical way. What has to be considered in this case, given the way the charges are framed, is whether the appellant's acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when the employee or employees were exposed to the risk. A risk might be quiescent and the measures in place to prevent exposure to the risk may be adequate but that may change because the acts or omissions of the defendant caused this to be so; the risk to health and safety may increase or become more serious as a consequence of the appellant's acts or omissions.

Abigroup - s 8(1) charge

317 The primary submissions in relation to this charge were not principally directed to questions of causation, but to the question, framed by Abigroup, as to whether the risk as charged was present during the charge period. More particularly, Abigroup contended that the risk, as charged, was not present with respect to its employees at the site on 24 March 2009.

318 Having regard to the earlier discussion of the principles governing s 8(1) of the Act, Abigroup must be found not guilty of this charge if its contentions are made good. If its employees were not exposed to the risk, as charged, during the charge period, then Abigroup may not be found guilty of failing to discharge its obligations under the provisions of s 8(1) of the Act, irrespective of whether the failures alleged under the charge are sustained.

The scope and nature of the risk as pleaded

319 A consideration of this question must, then, commence with an assessment as to the precise risk or risks specified in particular (a) of the charge.

320 Much discussion occurred in these proceedings about risks to the health and safety of workers at the site occasioned by panel five being left under weight after the third lift. However, Abigroup was not charged with having exposed it employees to that generally stated risk but, rather, to the particular elements of the risk as charged, namely, that Abigroup's employees were put at risk of injury from being "struck" whilst installing rail panels at the site. The risk of being struck was confined to the risk of being struck by either "a rail panel" or "components of a rail panel".

321 The rail panel known as panel five was described in detail at [65] of this judgment. Whilst panel five was a crossover panel, the essential elements of it were the same as the other rail panels which had earlier been installed. That is, the rail panels each consisted of a singular structure formed out of the connection of metal rails to concrete sleepers by means of Pandrol clips. The "components" of the rail panels consisted, therefore, of the rails, sleepers and Pandrol clips (although the focus of attention in the proceedings was on the rails).

322 There was little discussion about the meaning of the phrase "struck by". The ordinary meaning of the expression "struck", when considered as part of the phrase "struck by" is 'being hit by' or 'having an object forcibly collide with'. When so understood, the risk, as charged, is the risk of panels, or components thereof, forcibly colliding with or hitting employees. When considered in light of its ordinary meaning, the risk, as particularised, must be associated with some movement by the panel or the rails themselves such as would result in the panel or the rails hitting or colliding with an employee, in contrast to the person hitting or colliding with the panel as the result of, say, a trip or fall (on a panel when it is stationary).

323 The particularised failures in paragraphs (b) and (c) of the charge do not, when read in conjunction with the particulars of the risk, negate or modify the attribution of that general meaning to the phrase "struck by" appearing in particular (a) of the charge. Those particularised failures, either explicitly (paragraph (c)(i)) or implicitly (in the sense that paragraph (b)(i) implies some movement or dislocation of the rails after the removal of Pandrol clips) concern the movement of the panel or its component parts. Particularised failures (c)(ii), (iii) and (iv) are neutral in this sense, because they are equally consistent with the particulars of the risk being read as involving the notion of the movement of the panel or components as they are not. The reference to the panel being under weight (or potentially under weight) in the particularised failures does not, of itself, add anything to the meaning of the particularised risk, except to the extent that it may be read as the risk encompassing workers being struck by the panel or its component parts due to the tension or pressure applied to the panel from the crane bringing the panel or its components into contact with an employee (again by the movement of the panel or its components).

The employees of Abigroup at the site on 24 March 2009

324 The evidence disclosed that the following employees of Abigroup were engaged at the site during the charge period: Paul Harris, Geoff Drewe, Tony Green and Patrick Cini.

Mr Harris

Was Mr Harris exposed to the risk as particularised?

The risk of being struck by a panel

325 The evidence disclosed that the installation operations, including the work of the crane, during the first and second lifts of panel five (and, it would appear, the earlier lifts of panels "1-3" and "1-4"), did not put the workforce at risk because persons located in the general vicinity of the panels were sufficiently removed from the lifting operations (in accordance with the relevant SWMSs and the Boom Logistics JSA) or, when the labourers entered into the vicinity of and worked upon panel five for the purpose of dealing with the misalignment issues (after the second lift), the panel was on the ground and not under weight. Further, the evidence was that the work of unclipping the rails undertaken after the second lift of panel five did not expose the workers to the risk, as particularised, because the rails attached to that panel were not, at that time, under any tension or pressure resulting from the panel being under weight.

326 Prior to the lowering of panel five after the first lift, Mr Harris had not been situated at the area of the site in which the crane operations were being undertaken (he was elsewhere on the site). He was not in the vicinity of panel five until he was called to the site after the panel had been lowered to the ground following the first lift. He stood on the panel after the first lift but, as discussed above, that did not expose him to risk.

327 As it was not suggested that Mr Harris holding discussions near panel five after the third lift could have exposed him to the particularised risk, and given that he was situated a sufficient distance from the panel during the second and third lifts (for his safety) and left the site after the second discussion and prior to work commencing on the panel (and had, in fact, moved some distance from the panel by that time), it follows the only occasion Mr Harris may have been exposed to the particularised risk, vis-à-vis being struck by the panel, was when he stood on the panel during the course of the second discussion.

328 There was no evidence by any witness that the panel, when placed on the ground under weight after the third lift, had any prospect of movement in any direction. In fact, the objective evidence pointed to the contrary conclusion. The panel was situated on the ground (not merely touching it or suspended slightly above it) under a considerable weight. (The balance of the weight not held by the crane was approximately four tonnes.) There was no evidence that some eventuality may have arisen that might have caused the load to move from its location. There was no evidence that Mr Jones had any prospect or propensity to move the panel using the luff lever without further instruction (there was also no evidence as to the prospect for accidental operation of the crane). As earlier mentioned, Mr Ford gave evidence that when the panel was on the ground under weight it could not "move around" or "go anywhere". It follows, then, that the panel was incapable, whilst rested on the ground under weight, of movement such that a person immediately in the vicinity of or standing upon the panel could have been struck by it, as specified in particular (a) of the charge.

329 As mentioned earlier, there was evidence given by supervising and labouring staff that standing upon the panel whilst under weight was contrary to proper practice. Whilst those witnesses, with the exception of Mr Yates, did not specify that the practice was unsafe, an inference may be drawn from the evidence to that effect. There is no available inference, however, that the danger associated with standing upon the panel whilst under weight was the risk of being struck by the panel.

330 There was no evidence which identified the precise nature of the risk to safety arising from mounting the panel when it was under weight and secured on the ground. There was certainly no evidence to indicate that the particularised risk, that is, the risk of being struck by the panel or its components, may have materialised in consequence of a person standing upon the panel whilst it was under weight and situated on the ground.

331 The prosecutor placed reliance upon the Taylor Railtrack SWMSs and the Boom Logistics JSA to demonstrate that there was a risk of being struck by the panel (although in a quite general way). However, those documents do not support that contention.

332 The Boom Logistics JSA (described at [57] to [59] of this judgment) and the three relevant Taylor Railtrack SWMSs (identified and described at [28] to [31] of this judgment) each attest to the risks associated with the crane operations and, in particular, the risks associated with the lifting and lowering of loads.

333 However, all of the hazards identified in the Taylor Railtrack SWMSs and, for that matter, the Boom Logistics JSA, were hazards associated the movement of the panel whilst in the process of lifting, slewing and lowering, the alignment of the panel whilst suspended and work associated with the installation of the panel unrelated to whether it was under weight (such as the removal of Pandrol clips). The prosecutor relied particularly on the Taylor Railtrack SWMS dealing with "Turnout Installation" to demonstrate the connection to the risk as pleaded because it referred to a risk of being "struck by plant or panels", however, that hazard was identified in the SWMS as relating to the "lifting out of track panels".

334 The hazard identified in that SWMS would appear to be directed to the raising of track panels. Even if the hazard is more broadly understood to include the lowering of panels, it does not describe a circumstance in which a panel is lowered to the ground and held in a stationary position, whether under weight or not. The SWMS simply does not expressly contemplate dangers that may arise in that respect.

The risk of being struck by components of a panel

335 No witness suggested that, when the rails were under pressure from the panel being kept under weight, in the manner that they were after the third lift (or, in fact, when they were suspended in the air) there existed a danger that the rails and/or Pandrol clips may come loose and dislocate or dislodge from the panel such that they may hit a person standing on or nearby the panel in the absence of some intervening event (whether that event was rectification work occurring on the rails or otherwise).

336 This reasoning does not require attention to be focussed on the accident. The accident did disclose that the rails released under pressure at a certain point after the clips were removed. (The evidence of Mr Stewart that a Pandrol clip "flew off quite a distance and very fast" (if accepted, given that no other witness observed this event) does not assist in the resolution of this question as that occurrence coincided with the work on panel five which occurred after the third lift.) There was, however, no affirmative evidence that the rails or other components of the panel may dislodge because the panel was held under weight via (as in this case) the rails, without some intervening action or force causing the rails to dislodge from the panel.

337 The objective evidence pointed strongly to the conclusion that there was not a risk of the rails breaking loose under pressure. Panels "1-3", "1-4" and five (for the first and second lifts) were lifted by the crane via chains hooked under the rails of the panels without incident. Indeed, the whole design under the Lift Study/Plan (which was not argued to be unsafe) was that the panel would be lifted via chains placed under the rails.

338 As earlier found in this judgment, Mr Harris left the vicinity of panel five at the conclusion of the second discussion and prior to the work of unclipping Pandrol clips from rails on panel five had commenced. The limit of his exposure was standing on panel five whilst it was under weight following the third lift prior to work commencing. It must follow, from this fact and as a result of the conclusions reached above, that Mr Harris was not exposed either to the risk of being struck by that panel or its component parts at any time during the charge period. There is no evidence that panels "1-3" or "1-4" posed the risk as particularised or that any other panel installation during the charge period posed such a risk.

Other employees of Abigroup

339 The charge against Abigroup referred to "[t]he defendant's employees, and in particular, Mr Paul Harris and Mr Geoffrey Drewe". Aside from Mr Harris and Mr Drewe, there were only two other Abigroup employees present at the site on the date specified in the charge, namely, Mr Cini and Mr Green. Further to my conclusion in respect of Mr Harris, the risk as particularised did not arise in relation to Mr Drewe, Mr Cini and Mr Green for the following reasons:

(1) Mr Drewe, having been interrupted during the course of a shift handover with Mr Harris, attended panel five with Mr Harris when he was called by Mr Horan to inspect the panel following the first lift. His evidence was that he did not stand on the panel at all during that time, but stood adjacent to it (indeed, it was conceded by the prosecutor that Mr Drewe did not stand on panel five at any stage). Mr Drewe left the vicinity of the panel after the first discussion concluded, and prior to the second lift. Given my finding that panel five was not capable of movement when rested on the ground but kept under weight such that a worker may be struck by the panel when adjacent to or upon it, it must follow that the same conclusion (albeit with greater force) applies in respect of the panel when it was rested completely on the ground after the first lift. It must be concluded, therefore, that Mr Drewe was not exposed to the risk, as particularised;

(2) Mr Cini worked at the site during the day shift on 24 March 2009 and had left the site at about 3pm. There was no evidence that the installation of any rail panels, including any crane operations, during the day shift at the site put any person at risk of being struck by a rail panel, by being in close proximity to panels during the lifting process, or struck by components of panels, by involvement in the work of unclipping rails from panels whilst under weight. There was also no evidence that Mr Cini was in the vicinity of the crane at the time panels were being installed during the day shift. It must be concluded that Mr Cini was, therefore, not exposed to the risk as particularised;

(3) Mr Green was not in the vicinity of panel five on any of the three occasions that the panel was lifted, slewed and lowered nor when work commenced on the panel following the third lift. He was not in the vicinity of the panel at the time of the incident. He was, therefore, not exposed to the risk of being struck by panel five during any of those movements involving the crane, or by the rails once released from the concrete sleepers. As noted above, there is no evidence that the risk as particularised emerged with respect to any other panel installation during the charge period. It must be concluded, therefore, that Mr Green was not exposed to the risk as particularised.

Conclusion as to the s 8(1) charge against Abigroup

340 The charge against Abigroup under s 8(1) is not proven as the employees of Abigroup, engaged at the site on 24 March 2009, were not exposed to the risk as charged.

Abigroup - s 8(2) charge

341 There are two failures particularised in the s 8(2) charge brought against Abigroup, namely, the failure to conduct a risk assessment or ensure a risk assessment was conducted, with respect to the task of rectifying a panel misalignment at the site before rectification work commenced, and the failure to provide and maintain a safe system of work in relation to the tasks of lifting and installing rail panels.

342 It was conceded by senior counsel for Abigroup that, at the date specified in the charge, Abigroup was an employer whose place of work was the site. It was also conceded that the persons specified in the charge (who were, variously, employees of GTE and Taylor Railtrack) were working at the site as part of Abigroup's undertaking and that, in the course of removing Pandrol clips from panel five after the third lift whilst the panel remained under weight, those persons were exposed to the risk as particularised in the charge.

Risk Assessment

343 The charge is particularised, in this respect, as concerning the rectification of a panel misalignment and, by further particularisation, the task of removing Pandrol clips from the rail forming part of the panel that was attached to a crane (and, therefore, potentially under weight). So described, the charge concerned the performance of work after the second and third lifts of panel five. The method of work adopted after both lifts concerned the removal of Pandrol clips. In both cases, the work was undertaken for the purpose of moving rails (although the nature of the rectification appears to have varied between the two lifts).

344 The removal of Pandrol clips after the third lift was undertaken by persons identified in the charge, namely, Mr Iosefa, Mr Dixon and Mr McDonnell, who were employed by GTE as labourers, Mr Ward, who was employed as a labourer by Taylor Railtrack, and Mr O'Sullivan, who was employed by MVM Rail in the capacity of a leading hand at the site. It may be noted that Mr Yates, a labourer employed by Taylor Railtrack, also participated in that work but was not named in the s 8(2) charge against Abigroup. The persons named in the charge, together with Mr Yates, have been referred to, collectively, throughout this judgment as "the labourers". There was no evidence of any other workers engaging in the process of removing the Pandrol clips (notwithstanding the charge generally referred to "[p]ersons other than the defendant's employees").

345 Each of the labourers were put at risk of injury from being struck by components of a rail panel (namely, the rails) upon the commencement of the removal of the Pandrol clips from panel five after the third lift. (Senior counsel for Abigroup accepted that the labourers who commenced the removal of the Pandrol clips after the third lift whilst the rails were under tension or pressure as a result of the panel being under weight were thereby exposed to the particularised risk.) In this case, the risk arising upon the commencement of work after the third lift of panel five was manifested by the incident.

346 When refined by the submissions of the prosecutor, this charge essentially concerned an alleged failure by Abigroup to undertake a fresh or further risk assessment or require any subcontractor to perform a fresh or further risk assessment following the change in the method of work in the panel installation which, subject to further elaboration below, consisted of the rectification of a panel misalignment via the removal of Pandrol clips after the second and third lifts of panel five. Particular (b) of the charge shall be examined in that light.

347 Abigroup conceded that, under the Abigroup contract, it was, on the charge date, the principal contractor with respect to the project being conducted at the site, which included the works that were being undertaken at the time of the incident. Abigroup was permitted, with approval, to subcontract any construction work but remained fully responsible for carrying out the construction activities specified in the Abigroup contract. As earlier noted, the Abigroup contract particulars listed, inter alia, Taylor Railtrack and Boom Logistics as nominated subcontractors (meaning that approval was not required from ARTC in order for Abigroup to subcontract to those companies).

348 Abigroup had control over all aspects of the execution of the subcontractor's activities (defined in the contract as "all things or tasks which the Contractors is, or may be, required to do to comply with its Contract obligations") and safety issues at the site. Abigroup was obliged to ensure all subcontractors complied with the obligations under the Act. It was also obliged to prepare an "Occupational Health, Safety and Rehabilitation Policy" and to inform the contractor and subcontractors of that policy.

349 Abigroup produced an "Integrated Quality, Safety and Training Plan" (the contents of which have been earlier discussed). That plan required Abigroup "to prepare...a safe work method statement[s]" and subcontractors on site to prepare "SWMS's compatible with Abigroup's health and safety policies".

350 Abigroup developed and implemented, prior to the date specified in the charge, one overarching SWMS (entitled "Working within the Rail Corridor") and two additional SWMSs (entitled "General earthworks for Ground crews" and "Re-Timbering Sleepers"). At the date of the incident, Abigroup did not have a SWMS for the work of installing rail panels. It was the evidence of Mr Drewe that the only Abigroup SWMS relevant to the work being performed in relation to panel five was the SWMS entitled "Working within the Rail Corridor". That SWMS provided that fresh risk assessments be undertaken when there was a change in process or when hazards were identified during the course of the work including those not covered by the SWMS. Whilst not expressly addressed by the prosecutor, the SWMSs which had been developed by Abigroup prior to the incident, in my view, constituted a risk assessment or risk assessments by Abigroup directed to the management of risk at the site as contemplated in particular (b) of the charge.

351 Abigroup required subcontractors to produce risk assessments for the tasks they were to undertake and reviewed the risk assessments so produced.

352 Boom Logistics and Taylor Railtrack produced risk assessments for the site, and, in particular, the work performed with respect to panel five. Boom Logistics produced a Lift Study/Plan and JSA. Taylor Railtrack produced, relevantly, three SWMSs which were referred to earlier in this judgment. None of those risk assessments or work procedures dealt specifically with circumstances in which a work method changed during the course of a task or function undertaken by the subcontractor (which had, in fact, been otherwise assessed for risk, save for the changed circumstances).

353 There were two tranches to Mr Hodgkinson's submissions regarding this charge. The second tranche concerned contentions directed to the principal focus of the prosecutor's case that there was a need to conduct a further risk assessment because of the change in work method which occurred after the second or third lifts of panel five. Without unnecessarily repeating the earlier summary of Mr Hodgkinson's submissions in this respect, it is useful to identify the main elements of each tranche of his submissions. These were as follows:

(1) The lifting operation had not changed. What essentially occurred in the third lift was the lifting of a panel into a pre-designated position. The Boom Logistics plan specifically contemplated lifting the panel into position and identified the weight, size and radius for the arm of the crane. Panel five had been specifically assessed in that way and was part of that lifting operation. It is too narrow an approach to suggest there were multiple lifts. Even though the panel was lifted into a position other than the designated position on the second lift, the third lift was within the contemplated parameters of the Boom Logistics JSA and the Lift Study/Plan. That lift did not go outside the slewing arrangements. The contents of the Boom Logistics JSA were broad and contemplated the actual lifting which occurred in relation to the third lift. The crane crew were in control and that control was only relinquished when the panel was handed back to construction operations. In that sense, it completely encompassed the third lift;

(2) A risk assessment had been undertaken with respect to the crane operations. The written control measures arising in consequence were not the subject of criticism per se. Compliance with those requirements for panel five, when under weight, would have avoided the risk by excluding the supervisors and the labourers from the area of risk. This was because the lift had not been completed and, therefore, the various control measures would have avoided those workers mounting the panel.

354 It is implicit in Abigroup's contentions, in this respect, that there was no change in the method of work such as would have warranted the undertaking of a fresh risk assessment and that there was no new or additional potential danger requiring assessment before work commenced after the second (or first) discussion.

355 On reviewing the evidence to the requisite standard, these contentions cannot be accepted.

356 As to the first tranche, it is true that fundamental elements of the lifting operations identified in the Boom Logistics JSA and the Lift Study/Plan did not change after the first lift of panel five. In particular, the location of the crane, the radius of the arm, the dimension and total weight of the panel and the ultimate position planned for its placement remained the same. However, the Lift Study/Plan specifically contemplated a single lift of panel five to a fixed location (with scope for some slewing adjustments in order to correctly align panel five with the previously installed panel "1-4"). In the circumstances which unfolded at the site on the evening of 24 March 2009, after the first lift of panel five, two addition lifts eventuated with respect to that panel. The first additional lift (being the second lift of panel five) moved the panel to a location outside its designated location. The second additional lift (being the third lift of panel five) moved the panel from the location outside the designated location to its originally intended position. Further, putting aside for present purposes whether the panel remained under weight (which consideration may attract the criticism of a hindsight analysis), neither the Boom Logistics JSA nor the Lift Study/Plan contemplated that work would be performed on the panel in association or conjunction with the lifting process (or crane operations) which was designed as a discrete function or process.

357 The Lift/Study Plan did not contemplate a multiple lift sequence which facilitated or acted as an adjunct to rectification work on panel five (the lifts, as I will discuss below, were essentially being treated as completed so as to facilitate the successive steps in the rectification process). Nor did those safety measures contemplate that the chains of the crane would be attached to the panel whilst rectification work was undertaken.

358 Essentially the same difficulty confronts the second tranche of Mr Hodgkinson's argument. It is true that the safety measures and controls operating with respect to the crane operations explicitly prohibited persons, other than the crane crew, from being in the immediate vicinity of the panel (and, it must follow, from stepping on the panel) whilst the crane was lifting, slewing or lowering the panel. In other words, they prohibited access to the panel until the lift was completed and control of the panel handed over to the construction operations. However, the very nature of the rectification procedure established for panel five on 24 March 2009 was that, in the course of the execution of the lifting arrangements designated for panel five, there were intermediate steps during which the panel was released, under the supervision of Abigroup and Taylor Railtrack, from the control of the crane crew to construction, or construction related, operations after two successive lifts not contemplated by the Lift Study/Plan.

359 Whatever may be the proper description of rectification works undertaken after the second and third lifts, they were, as noted, not part of the crane operations as defined by the Lift Study/Plan and represented an interruption to the lifting operations in order to carry out, as I have identified, construction or construction related work falling within the province of Taylor Railtrack and MVM Rail. The safety measures for the crane operations depended, for their effectiveness, upon the maintenance of a continuous control over the panel during the lifting operations which, in this case, was disrupted by what I have described as intermediate steps.

360 In this sense, the submission by Mr Hodgkinson that the lift of panel five, as contemplated in the Lift Study/Plan and the Boom Logistics JSA, was never completed (such that the safety measures contained in those documents continued to govern the arrangements for the lifting of panel five after the first lift) is somewhat superficial. The circumstances operating at the site after the first lift so fundamentally altered the construct upon which those safety measures were based as to render them substantially inoperative, ineffective or incomplete.

361 A change in work method emerged after the second lift and continued through the third lift and the ensuing work on the panel until the incident. It consisted of the rectification of the misalignment of panel five by use of the crane in conjunction with construction operations. The resultant process consisted of the employment of the crane to facilitate the rectification work by means of undertaking lifts of a different frequency and to a different location than contemplated in the Lift/Study Plan and the holding over of the attachment of the crane to panel five for the purpose of positioning panel five after construction crews had undertaken rectification work; a procedure actually adopted after the second lift.

362 It follows from this analysis that there was a changed method of work during the course of the installation of panel five which was not the subject of the original risk assessments prepared by Boom Logistics and Taylor Railtrack. Neither of those original risk assessments contemplated, specifically, the arrangements which were, in fact, entered into for the rectification of the misalignment of panel five and, further, as already noted, none included a provision that such changed circumstances would require a further risk assessment. The new method presented the possibility of new or further risks or the actuation of a risk which had been quiescent.

363 Contrary to the requirement in its own Integrated Quality, Safety and Training Plan that subcontractors develop SWMSs compatible with Abigroup's health and safety policies, Abigroup did not require the risk assessments for Boom Logistics and Taylor Railtrack to stipulate, as a condition of their SWMSs, that "a change to the process" would require a further risk assessment. Abigroup's supervisor, Mr Harris, did not incorporate, in the discussion which occurred after the third lift (the second discussion) nor, it may be inferred, in the discussion which occurred after the first lift, a consideration of the risks associated with rectifying the misalignment whilst the panel was attached to the crane or the subject of multiple lifts. (Mr Harris was the overall site supervisor and was also acting as the shift manager during those discussions.) Whilst Abigroup did have an overarching SWMS, this did not relieve it of the obligation to superintend the risk assessments for the subcontractors or to ensure that the subcontractors performed the work safely by having new and further risk assessments undertaken, where necessary, to remove or obviate dangers at the workplace including those arising from changed circumstances.

364 Abigroup's obligations in this respect arose, at the most basic level, under its contract with ARTC but, more fundamentally, under the Act. The obligations under the Act required Abigroup to be proactive in securing the health, safety and welfare not only of its own employees but other workers engaged at the site. That obligation involved the need to exercise abundant caution, maintain constant vigilance and take all practical precautions to ensure safety at the workplace: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2002) 123 IR 121 at [43], Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) [2002] NSWIRComm 108; (2002) 115 IR 78 at [32]-[33] and WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85. The requirement to be proactive involved, most fundamentally, the conducting of appropriate risk assessments. As the passage from O'Sullivan (extracted at [316(9)] above) makes clear, a risk may be quiescent but may change as a result of acts or omissions by an employer. That is precisely what occurred in this case, at least after the rectification work was ordered following the third lift.

365 The failure by Abigroup to undertake a new or further risk assessment, or require a new or further risk assessment be conducted by its subcontractors, is an omission of the kind which falls squarely within what is contemplated by these authorities because the change in work method altered the nature of the activities in such a way that the obligations under the Act would have required Abigroup to adopt the measure of a new and further risk assessment in order to examine risks associated with those new activities or methods. In the present case, that requirement broadly coincided with Abigroup's contractual obligations.

366 Abigroup was not charged, of course, with a failure to conduct a risk assessment per se, but, rather, that the failure to carry out a further risk assessment or require a further risk assessment to be conducted caused the risk to safety particularised in the charge. That gives rise to the question of causation.

367 I have no hesitation in finding that the failure by Abigroup to conduct a further risk assessment or to require one be undertaken by its subcontractors after the third lift of panel five and the decision to undertake rectification works thereon, was causally related to the particularised risk. To borrow from the approach in Mainbrace, at [72], a proper and comprehensive assessment of the task of rectifying the misalignment of the panel at the site (including crane operations associated therewith) before the commencement of the removal of Pandrol clips after the third lift would have resulted in the risk being discovered and remedial action taken. That is because the risk avoidance measures operating at the site drew attention, in a general way, to the risks associated with crane operations and the evidence disclosed, as earlier noted, that workers would not mount the panel if it was known (or found) to be under weight.

368 Before returning to the question of causation (which is affected by the knowledge held by Mr Ford), it should be observed that the Court has rejected the evidence of Mr Harris to the extent that he indicated that the crane should be moved on before the rectification work was undertaken on panel five after the third lift. If the step that Mr Harris alleged he suggested had, in fact, occurred, then, plainly, the risk would have been avoided because the work conducted on the panel would have occurred in circumstances in which the panel was not attached to the crane. (Mr Harris also suggested, in his evidence, that work should not have been performed whilst the chains of the crane were attached to the panel, but this evidence does not sit comfortably with his involvement in the first discussion from which a decision was taken to conduct rectification work following the second lift with the crane attached to the panel.)

369 Abigroup contended that a further risk assessment would not have averted the risk, or that there was no causal connection between the failure to conduct a risk assessment and the risk, because Mr Ford did not have knowledge that the panel was under weight after the third lift. That submission is, however, predicated upon a factual contention which has been rejected by the Court and must, therefore, fail.

370 Before turning to the defence raised by Abigroup, in this respect, two further matters should be addressed in relation to causation.

371 First, no submission was advanced as to whether, if Mr Ford knew the panel was under weight but was neglectful or distracted, an issue as to causation may, nonetheless, arise. For completeness, I propose to deal briefly with that matter. I do not consider that my findings, to the effect that Mr Ford's breach of his obligations through neglect, distraction or the like, can result in a conclusion that the undertaking by Abigroup of a fresh risk assessment would not have averted the risk (or that there is no causal connection between the failure to conduct a risk assessment and the particularised risk). That conclusion may be reached in one of two ways.

372 First, and broadly, the very nature of a risk assessment is to examine and review the risks associated with proposed work. There is nothing about the nature of Mr Ford's conduct, even if it was grossly negligent, as would suggest that an inquiry of Mr Ford, deriving from a risk assessment, would not have discovered the panel was under weight. It was not contended by the defendants that Mr Ford had a wilful or deliberate disregard for his obligations or that he was reckless in their discharge (or failure to discharge). Secondly, Mr Ford remained in charge of the load and was in the vicinity of it throughout the period between the third lift and the incident and exhibited shock and attempted a last minute revision of his error when he was finally reminded of the immediate danger. It is one thing to disobey Mr Horan's instruction to drop the load, as an isolated instruction occurring during the course of the multiple lifts of a panel which the crane crew were undertaking (which process seemed to aggravate Mr Ford), but another altogether to fail to respond to direct prompting about the state of the panel which he knew was under weight. That prompting or questioning would have occurred during a properly conducted risk assessment process which would have directed specific attention to the performance of work on a load (upon the basis that the load was still attached to the chains of the crane). Given Mr Ford's reaction upon the incident, a stark reminder of the kind produced by a risk assessment should have engaged him to provide information as to the actual state of the panel.

373 It is unnecessary, in this matter, to bring to bear the principles of this Court that an employer is responsible to be proactive and, thereby, to take safety measures with respect to an employee's neglect and "acts of inadvertence" to the fullest extent possible: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 at [48]. This is because the charge concerns a risk assessment, the very purpose of which is to discover potential dangers, and which, in this case, would have discovered risks associated with the new work of removing Pandrol clips including those deriving from a neglectful employee.

374 The second additional matter as to causation concerns Mr Jones. Neither the prosecutor nor the defendants made any submissions as to causation involving Mr Jones. This appears to me to be an omission, as an absence of knowledge on the part of Mr Ford, if found, would not necessarily, in this case, have resulted in the conclusion that there was no causal connection between the failure to conduct a risk assessment and the particularised risk because an inquiry of Mr Jones could well have resulted in a discovery of the risk. There is no evidence that Mr Ford, who would no doubt have been first consulted, would not have had recourse to Mr Jones if a full risk assessment was undertaken.

375 Abigroup also advanced a defence under s 28 of the Act. Mr Hodgkinson relied upon the first limb of s 28 (sub-section (a)), to submit that it was not reasonably practicable for Abigroup to conduct a further risk assessment because it was not possible to know panel five was under weight, due to the fact that Mr Ford did not have knowledge of that fact himself. Given the earlier finding made with respect to Mr Ford's knowledge, this contention must fail. No other defence could properly be available under s 28(a) of the Act in relation to particular (b) of the s 8(2) charge. This is because the very measure required by the charge, namely the undertaking of, or the requirement for subcontractors to undertake, a risk assessment or further risk assessment before the rectification work involving the removal of Pandrol clips commenced on the panel after the third lift (the focus of the prosecutor's case as to this particular) was consistent with Abigroup's own safety policy for the site. It could not be argued that it was not reasonably practicable for Abigroup to take steps it had, itself, determined to be appropriate and, presumably, practicable. As to s 28(b), and as I have earlier discussed, Abigroup was the principal controller of the work and safety of subcontractors at the site and able to direct a further risk assessment be undertaken or an existing risk assessment be amended so as to conform to its own overarching SWMS concerning changes in work processes.

Conclusion: particular (b)

376 In the result, particular (b) of the charge is proven beyond reasonable doubt.

Safe System of Work

Particular (c)(i)

377 This particular was not sustained on the evidence.

378 Mr Hodgkinson correctly contended that, to the extent there was any issue regarding communication, that issue concerned whether there was a lack of communication between the members of the crane crew and between the crane crew and Taylor Railtrack regarding the third lift and not whether the system of communication which existed between Boom Logistics and Taylor Railtrack was inadequate.

379 In any event, the particulars of the charge concerned movement of loads by mobile crane at the site. There was no evidence of any communication impediment in that respect, particularly in terms of systems of communication. There was no evidence as to whether Mr Ford's failure to follow Mr Horan's instruction was the result of a breakdown in communication. It is irrelevant to the charge whether there were any communication issues between Mr Jones and Mr Ford. In any event, I have found there was no lapse in communication between Mr Ford and Mr Jones vis-à-vis the giving of instructions.

380 If the charge is directed to a failure to communicate the panel was under weight, then the charge fails, for, as I have found, the particularised risk did not arise from the panel being under weight per se.

381 This sub-particular is not proven beyond reasonable doubt.

Particular (c)(ii)

382 This particular of the charge was confined to being struck by "a load". The expression, "a load", was accompanied by the words "exclusion zone" and, therefore, the particular, where it refers to the operation of the crane, plainly concerned the movement of the panels by lifting, slewing and lowering. Contrary to Mr Ford's evidence, as earlier found, the preponderance of the evidence was that all persons working for the subcontractors were kept clear of, and were not in, the vicinity of the range of the panel when it was being moved by the crane above the ground. I have found that the risks as particularised did not arise as a result of persons standing on the panel.

383 The charge also referred to persons working in the vicinity of a crane being kept clear of the "range" of the crane so as to avoid being struck by a load, whilst, inter alia, the load was under weight. The reference to being struck by a load correlates to the particularised risk so far as the risk concerns a worker being struck by a panel. The particular does not refer to workers performing work on the panel such as the removal of Pandrol clips. So expressed, this particular attracts the same difficulties as were encountered with respect to the s 8(1) charge brought against Abigroup. The workers in the vicinity of a load situated upon the ground, even if under weight, were not, on the evidence, exposed to the risk of being struck by a panel, even if the panel was under weight.

384 For completeness, I would observe that a similar issue of causation would have arisen with respect to that part of the particular alleging a failure to "monitor" and "enforce" work methods. Implementing those measures would have required Abigroup to know the panel was under weight, which revelation, in the circumstances operating at the site, would have only materialised through a risk assessment.

385 This sub-particular is not proven beyond reasonable doubt.

Particular (c)(iii)

386 Little by way of submissions were developed regarding this particular. That may have occurred because the particular substantially overlapped with other aspects of the charges.

387 In conformity with my finding with respect to the s 8(1) charge, there is no evidence that accessing or walking onto the load per se whilst the panel was under weight created a risk to safety as particularised in particular (a) of the s 8(2) charge.

388 Furthermore, Abigroup did not exercise control over the workers engaged by its subcontractors, even though it exercised a supervisory role as to safety in respect of the subcontractors.

389 This sub-particular is not proven beyond reasonable doubt.

Particular (c)(iv)

390 It was submitted by the prosecutor, in respect of this particular, that the evidence clearly demonstrated that, on the date of the alleged offence, Abigroup did not ensure that its subcontractors confirmed that panel five was not under weight before allowing the work of removing Pandrol clips to commence on the panel following the third lift. That submission is factually correct and must be accepted.

391 However, it was submitted by Abigroup that, whilst ever the panel was under weight, the lifting operation remained in progress. The lifting operation, as earlier noted, had been addressed by the Boom Logistics JSA and Taylor Railtrack SWMSs and the associated risks identified. There were, therefore, systems in place whereby a load was not to be accessed whilst the lifting operation continued. There was no way for Abigroup or any person on site other than the crane crew to have knowledge that the panel was under weight after the third lift. The crane crew did not inform any person of that fact and the panel appeared to be on the ground. This particular, therefore, was not causally related to the particularised risk and was, essentially, based on hindsight.

392 Abigroup also raised a defence under s 28(a) of the Act with respect to this particular. It was submitted that it was not practicable for Abigroup to ensure its subcontractors confirmed panel five was not under weight prior to work commencing because it was a fact about which Abigroup had no knowledge and could have no knowledge. It was beyond their control.

393 Drafted in the way it is, this particular has its foundations in hindsight. When construed literally, as it must be, the particular required Abigroup to ensure that its subcontractors "confirmed" that "a rail panel" was not under weight before "allowing and/or instructing" the labourers to perform the work of removing Pandrol clips from the panel (the reference to Pandrol clips indicates that this particular is concerned with the state of panel five after the second and third lifts when work involving the removal of Pandrol clips was performed).

394 However, there is no basis, on the evidence, to conclude that Abigroup could have anticipated that workers would be involved in the specific process of removing Pandrol clips from panel five. It follows, then, that Abigroup could not have satisfied, as per the terms of particular (c)(iv), an obligation to ensure its subcontractors confirmed the panel was not under weight prior to work commencing on the panel. If Abigroup could not anticipate the labourers would conduct work on the panel involving the removal of Pandrol clips, there could be no feasible basis for it to ensure confirmation was provided that work of that character would be conducted or conducted in a particular way (that is, on a panel that was not under weight). The particular, as it is drafted, therefore, is not causally related to the risk as charged.

395 This sub-particular is not proven beyond reasonable doubt.

Conclusion: particular (c)

396 Overall, in the result, particular (c) of the charge is not proven beyond reasonable doubt.

Conclusion as to the s 8(2) charge against Abigroup

397 The s 8(2) charge against Abigroup has been proven with respect to particular (b) but not otherwise.

GTE - s 8(1) charge

398 The prosecutor and GTE both advanced contentions of a global character in relation to this charge, the content of which have been summarised earlier in this judgment. However, those general contentions, which, in substantial measure related to GTE's knowledge of the work to be undertaken by its employees engaged under labour hire arrangements and whether the particulars of the charges were causally related to the risk (together with defences mounted in this context), must ultimately be confined to a consideration of the particulars of the charge (in particular, particulars (d) and (e)).

399 Before proceeding down that path, consideration may be briefly given to particulars (b) and (c) of the charge.

Particular (b)

400 The prosecutor conceded that particular (b) was in the nature of a pleaded fact and did not constitute, in and of itself, a particular of the charge. Nor was it suggested that this particular could, of itself, have any causal connection to the particularised risk in particular (a). It should also be noted that the particular is attended by ambiguity, particularly where it speaks of the defendant being aware of the things specified therein. The evidence disclosed that Mr Lucas was aware that Mr McDonnell had been engaged by MVM Rail via Mr Begley. It is true that it is unclear which officer of GTE confirmed the engagement of Mr Iosefa, but it was common ground in the proceedings that Mr Iosefa had been engaged as an employee in accordance with the arrangements normally operating between GTE and MVM Rail whereby Mr Begley had authority to engage workers on GTE's books. The earlier findings in this judgment concerning the employment of Mr Dixon, by their very nature, are dependent on the existence of such a system of engagement in order to establish the necessary legal ingredient for Mr Dixon's employment (see [207] of this judgment). No part of the pleading concerned whether the system was adequate.

Particular (c)

401 I accept the submission of Mr Agius that, when properly construed, particular (c) is confined to risks associated with an inadequate assessment of the competency of persons "selected to undertake the work" (which expression was not defined, except to the extent that it was characterised as "rail work"). In particular, this aspect of the charge concerned a failure to assess risks associated with contracting Mr Iosefa to work on the site when he "had only recently qualified to carry out rail work". When so understood, this particular cannot be sustained.

402 Mr Iosefa only qualified as a rail worker in February 2009 (by the completion of certificate courses). However, this fact does not disclose, in and of itself, that Mr Iosefa was not competent to carry out rail work at the site. There was no other evidence that Mr Iosefa was not competent to carry out work on the site. There was no evidence that the other GTE labourers were not competent (and, indeed, there was evidence showing they were suitably qualified and competent). In the result, it must be concluded that GTE's employees were, in fact, competent to undertake rail work at the site.

403 This particular was not proven beyond reasonable doubt.

Particular (d)

404 It was conceded by Mr Agius that no inquiries were made by GTE as to the risks to safety that might be associated with the work being performed by its employees at the site.

405 The failure particularised in paragraph (d) of the charge was expressed in general terms as a failure to make inquiries as to how the "risks that might arise to the health and safety of its employees on the site" were to be controlled. However, the charge is narrowed by the two subsidiary particulars expressed, respectively, in paragraphs (d)(i) and (ii) (the charge originally had two further sub-particulars (i) and (ii) which were withdrawn by the prosecutor).

406 It follows from the concession made by Mr Agius that GTE did not, to employ the words of particular (d)(i), obtain or review any of the SWMSs prepared in relation to the work to be undertaken by its employees at the site. Nor did it satisfy itself that the procedures established by those SWMSs would control, to use the words of particular (d)(ii), "risks to its employees" (which risks must be understood as the risks particularised in paragraph (a) of the charge).

407 Mr Agius did not expressly draw attention to the limitation contained in particular (d)(i) whereby the failure was confined to SWMSs "prepared in relation to the work to be undertaken by [GTE's] employees". However, he did make general submissions concerning limitations on the scope of the work required of GTE employees under the labour hire arrangements constructed between it and MVM Rail.

408 GTE's contentions consisted of a series of interlocking submissions, at the centre of which was a contention that the risk as pleaded did not arise because of failures by GTE but because of the failure of "others" or because of circumstances over which GTE had no control or which were beyond its control. Those submissions went to the issue of causation and defences under s 28 of the Act. The true cause of the risk, it was submitted, was twofold:

(1) The GTE labourers were working outside the arrangement made between GTE and MVM Rail;

(2) The failure of the crane crew to follow their JSA.

409 When these general submissions are brought to bear upon the charge in particular (d), the essential contentions advanced by GTE may be summarised as follows:

(1) There were measures in place to avert the risk, namely, the Abigroup and Taylor Railtrack SWMSs and the Boom Logistics JSA. The SWMSs and the Boom Logistics JSA governing work at the site, so far as they applied to the work undertaken by GTE employees, were not alleged, nor proven, as against GTE, to be deficient in any way. Further, the SWMSs and the Boom Logistics JSA were developed by specialist contractors who were experts in their fields of work. GTE was required to adhere to those SWMSs and the Boom Logistics JSA and, in any event, Mr Lucas had indicated that, had he seen those documents prior to GTE employees commencing work at the site, he would have considered them adequate. An examination of the documents by GTE would not have addressed the risk which arose because of the unforeseen actions of the crane crew;

(2) The GTE labourers were never hired to perform panel placement or to deconstruct rail panels. It was the assignment of the new task that created the risks pleaded against GTE in relation to its employees and not the failures or omissions pleaded against it. The work for which GTE's employees were hired was to fish plate rails and perform general labouring. GTE's contract with MVM Rail was restricted to the supply of labour in that respect. MVM Rail were experienced rail constructors, a field requiring a great deal of technical skill. GTE had previously undertaken the straightforward, and relatively low skilled, work of fish plating rails and general labouring for MVM Rail. Fish plating involved the connection of rails. GTE was not hired to place or install rail panels or to deconstruct rails which were fixed to a panel which itself was connected to a crane. The general labouring duties did not consist of the skilled work of installing rail panels or anything else associated with work on a panel. The work on the site was to be coordinated by Abigroup, Taylor Railtrack and Boom Logistics, each of whom held the necessary expertise in their fields. It was not foreseeable that GTE's employees would be tasked to unclip rails on a panel which was being supported by a crane, a task which was outside the work for which they were hired and contrary to GTE's contract with MVM Rail;

(3) Contrary to the submission of the prosecutor that GTE had an obligation to reassess risks (or to ensure that the SMWSs and the Boom Logistics JSA, after a proper and comprehensive review by GTE, contained a requirement for a risk assessment to be conducted in the event of a change to work), it was submitted that no such obligation arose because GTE had no notice that the work was being performed. By reference to the Abigroup case, the prosecutor could not "approbate and reprobate" on this issue. It was submitted that the contention that Abigroup was required to undertake a fresh risk assessment because a new task was being undertaken must deny the prosecutor the opportunity to argue that GTE should have assessed those very risks without notice that they were to occur;

(4) The crane crew left the panel partly under weight in circumstances where not one person at the site "with their combined experience" were able to detect that it was not as it appeared, that is, resting on the ground. No one would have mounted the panel had they known it was under weight;

(5) The measures in particular (d) were not causally related to the risk of installing the panel;

(6) Further, the risk cannot be foreseeable if there is no knowledge as to how the crane came to be left under weight;

(7) The presence of supervisors on the panel with the apparent acquiescence of the crane crew would have sent a false signal to labourers;

(8) The risk emerged not because GTE did not inspect the SWMSs or the Boom Logistics JSA but because the crane crew permitted the supervisors and the labourers to come onto the panel and failed to warn those workers off, particularly when the panel appeared to be resting on the ground.

410 As previously mentioned, the evidence disclosed there was an arrangement between GTE and MVM Rail whereby Mr Begley was authorised to engage GTE employees to top-up labour resources. GTE was, therefore, a labour hire business supplying its employees to do work for other employers. Those employees were to be supervised on a day-to-day basis by supervisors of the host employer.

411 As to work on the site, Mr Lucas' discussions with MVM Rail, via Mr Begley, were confined to the engagement of Mr McDonnell and Mr Dixon (although the discussion concerning Mr Dixon was of a different character which has been described previously in this judgment). By that discussion, GTE contracted with MVM Rail, in particular, to supply Mr McDonnell's services as a labourer to "install the cross over". The duties were identified as those of fish plating and general labour duties. Fish plating involved the joining of rails. General labouring duties were not defined. Mr Agius submitted that those duties did not consist of the work of installing or deconstructing rail panels. No contrary submission was advanced by the prosecutor, in that respect, and, even though Mr Lucas had previously, as a labourer for GTE, performed the work of "construction of the rail", he was not questioned about the meaning of that expression. The communication between Mr Begley and Mr Lucas did not identify that cranes would be used on the site. Work of the character described by Mr Lucas had been undertaken by GTE employees. Even though it is conceivable that general labouring duties may encompass the removal of Pandrol clips, on the evidence and submissions before the Court, GTE's submission that its employees were not engaged to perform panel placement or the realignment of rail panels by their deconstruction must be accepted.

412 Mr Crawshaw contended that a review of Taylor Railtrack's SWMSs would have alerted Mr Lucas to the fact that work might be performed in association with the crane. However, that submission does not undermine the fundamental contention by GTE that it was not aware that work of a different character than that for which it had been contracted might be undertaken.

413 The prosecutor's recourse to Coffey Engineering, in this respect, does not assist its submission. The Full Bench in Coffey Engineering rejected findings by an Industrial Magistrate, in acquitting the labour hire defendant employer in that matter, that the corporation could have had little or no expectation that the affected employee would be required to operate a circular saw. The Full Bench found, at [33], that the defendant employer was, in fact, not aware of the duties that the affected employee would perform. Even though Coffey Engineering laid down general principles regarding the operation of the OHS Act 1983 with respect to labour hire companies (to which I shall return), the factual underpinnings of that decision are different from the present case, given that GTE contracted for the performance of particular known duties by its employees.

414 There is a further difference between Coffey Engineering and the present matter. Contentions were advanced in Coffey Engineering to the effect that the defendant employer had engaged its employee to perform the specific work of grouting, which did not encompass the use of a circular saw. The Full Bench rejected that submission, commenting that the work of grouting incorporated the performance of work using a circular saw. On this analysis, the labour hire company would have been found, in contrast to this matter, to have been aware that the employee would have performed the work the subject of the charge in that case (or should have been aware). The Full Bench rejected that the defendant employer could not have foreseen the use of a circular saw because the very work the defendant had asserted it was contracted to have its employees perform incorporated that duty or function.

415 In this case, the prosecutor has not proved beyond reasonable doubt that the removal of Pandrol clips from panel five to rectify the misalignment issue fell within the description of "general labour duties". Plainly, fish plating did not fit that description. Nor was there any aspect of the history of dealings between GTE and MVM Rail which, on the evidence, would have created such an expectation.

416 However, the general principles in Coffey Engineering require revisiting before a consideration of the further contentions of the parties in relation to this particular is embarked upon.

417 In relation to the nature and extent of the obligations of labour hire companies under the OHS Act 1983, the Full Bench, at [35], drew upon the decision of the Full Bench in Drake, relevantly, as follows (emphasis added):

The nature and extent of the obligations of labour hire companies, as is the respondent here, to ensure the health, safety and welfare of their employees sent to work at a client's premises is now well settled ... The arguments presented in this case and the approach adopted by her Worship in the decision make it timely, we think, to restate the views expressed by Wright J, President and Walton J, Vice-President, with whom Peterson J agreed, in Drake Industrial (90 IR at pp 455-456), as follows :

In any event, we are not persuaded that the appellant would be relieved from liability under the OH&S Act, even if the existence of an implied term in the form alleged had been established. This question raises the particular circumstances of an employer who conducts a labour hire business by engaging employees for the purpose of supplying those employees to do work for other employers. The relationship created between a labour hire company and its employees is distinguishable on a number of grounds from that existing between traditional employers and their employees. A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s15(1) of the OH&S Act to "ensure the health, safety and welfare at work of all the employer's employees." Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s15(1).

... A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

418 As to defences under s 53 of the OHS Act 1983, the Full Bench in Coffey Engineering found, relevantly, at [37], the following (emphasis added):

The essential contention put by Mr Agius was that the concluded view of her Worship that "there could have been little or no expectation on the part of the Defendant company that Mr Jones would have been required to use a circular saw in doing a grouting job" was sufficient to found the statutory defence; as senior counsel said, her Worship was correct in concluding "that it would be unrealistic to expect Coffey Engineering to provide or ensure supervision of Mr Jones in his operation of the circular saw" so that it could not be said in any way the respondent should have envisaged the danger which arose when Mr Jones used the circular saw. We disagree. We have earlier found against such a submission on the evidence and it is clear also that the respondent took no steps to further enquire of Crane Enfield Metals what work Mr Jones would be doing and neither did it have any system in place other than to make Mr Jones' services available to Crane Enfield Metals and to permit that company itself to allocate and supervise the work concerned. The nature of the obligation of a labour hire company as stated in Drake Industrial is clear. Although such a company, like the respondent, may abdicate supervision of its employee in the performance of the work it cannot abdicate its responsibility under s 15(1) of the Occupational Health and Safety Act to ensure that employee's health, safety and welfare at the premises of the client. We are satisfied that the alleged risks in the operation of the circular saw were reasonably foreseeable and of such a nature as to make it practicable for the respondent to take precautions against; that it did not do so means, in our view, that the respondent has not made out a s 53 defence.

419 The SWMSs which were applicable to the work to be undertaken by GTE's employees were those produced by Taylor Railtrack, given that those SWMSs also governed the employees of MVM Rail. Contrary to the submissions of GTE, the prosecutor did contend that there was a deficiency in the SWMSs provided by Taylor Railtrack in that those SWMSs failed to provide for a new and further risk assessment to be undertaken in the event that there was a change in the method or content of the work.

420 The omission of a provision of the kind found in the Abigroup SWMS vis-à-vis changes in the method of work (and associated risks) constituted a defect in the Taylor Railtrack SWMSs as to the health and safety protections they afforded employees. GTE did not obtain and review the SWMSs of Abigroup or Taylor Railtrack in relation to the work undertaken by its employees before its employees went to the site. That review would have shown there was a discrepancy between the SWMSs of Abigroup and Taylor Railtrack in that Abigroup required a risk assessment if there was to be a change in work processes but Taylor Railtrack did not. It is no answer to say that Taylor Railtrack had a special knowledge when GTE bore a responsibility to investigate the risk assessments for its own employees and where the Taylor Railtrack SWMSs were defective in any event.

421 The principles in Coffey Engineering at [35], which have earlier been extracted, make it clear that GTE was not relieved of its obligations because supervision was being undertaken by the client to whom its employees were hired. GTE, albeit a labour hire company, had a duty to ensure the safety of its employees.

422 However, that is not the end of the consideration of particular (d). GTE contended that the measures in particular (d) were not causally related to the risks arising from the work of installing rail panels and that the risk could not be foreseeable. In part, this contention was predicated upon the fact that the prosecutor's case against Abigroup under s 8(2) vis-à-vis particular (b) (the need for a further risk assessment) was premised upon the emergence of a new work method or work tasks after the first lift.

423 In my view, the submission of GTE, in this respect, has substance.

424 In Drake (at 453-454), the Full Bench found that, having regard to the provisions of the OHS Act 1983, an obligation fell upon a labour hire company to take positive steps to ensure the premises to which its employees were sent to do work did not represent risks to their health and safety. The matter concerned an appeal from a decision of the Chief Industrial Magistrate in respect of a charge brought against a labour hire company under s 15(1) of the OHS Act 1983. The charge concerned a failure to give an instruction requiring the client of the labour hire company to notify that company before transferring an employee on to a new task (in that case the use of a different machine). The Full Bench dismissed the appeal by finding, inter alia, that the labour hire company was obliged by its duties under the OHS Act 1983 "at the very least [to] give an express instruction to the client and its employee that it be notified before the employee is instructed to work on a different machine" (Drake at 456). Further, the labour hire company had a positive obligation to directly supervise and monitor the work of its employee.

425 It would appear that the charge against the labour hire company in Drake may have been available in this matter, given the circumstances under which GTE's employees were sent to work at the site. However, GTE was not charged with failing to require Taylor Railtrack or its own employees to inform it of a change in the method of work per se but only with failing to obtain and review the SWMSs and satisfy itself that the procedures which were in place in the SWMSs would control the risks to its employees.

426 Not knowing, or being able to foresee, that its employees may be exposed to a risk of being struck by a rail panel or components of a rail panel because the work of removing Pandrol clips was not contemplated until the supervisors of Abigroup and Taylor Railtrack made a decision to that effect a short time before the incident meant that, even if, at GTE's insistence, Taylor Railtrack inserted a requirement into its SWMSs that a fresh risk assessment be undertaken in such circumstances, it would have been impossible for GTE, as it was charged in particular (d)(ii), to "satisfy" itself that the procedures in place as reflected in the SWMSs would control the risks to its employees.

427 This particular is not proven beyond reasonable doubt.

Particular (e)

428 This particular is pleaded in terms of a failure to provide instruction in relation to the work carried out at the site by GTE employees. There are further particulars which constrain this aspect of the charge to a failure to inform and instruct employees to maintain safe working distances whilst the crane "was in operation" or a "load being moved by a crane was under weight" and to provide information to employees of the risks associated with "accessing a load that was still under weight".

429 Sub-particular (i) cannot be sustained. The workforce knew and understood that they were to maintain safe working distances whilst the crane was in operation or a load was under weight. The evidence shows that Mr Dixon, Mr McDonnell and Mr Iosefa were present at a toolbox talk conducted by Mr Horan on the date of the incident in which the Taylor Railtrack SWMSs, which identified the risks associated with being in the vicinity of a load whilst the crane was in operation, were addressed. The sense in which the word "operation" is used in this particular seems to convey the notion of the lifting, slewing and lowering of loads by the crane.

430 In any event, sub-particular (ii) hinges upon the obligation to provide information to employees of the risks associated with accessing a load which was "still under weight", presumably referring, in that respect, to the load being on the ground under weight. However, that information, if so provided, would not have expanded the knowledge already held by the workforce. The particularised risk to safety arose not from a lack of information but from the fact that none of the workers on site, other than the crane crew, were aware of the danger of accessing panel five after the third lift because, as previously mentioned, they had every reason to believe that the panel was on the ground and not under weight. Mr Horan, in particular, thought that the panel had been dropped because of the instruction he gave to Mr Ford. The particular does not actually refer to the crane crew providing the requisite information.

431 This particular is not proven beyond reasonable doubt.

Conclusion as to the s 8(1) charge against GTE

432 The charge against GTE under s 8(1) is not proven.

Conclusions and Orders

433 The Court makes the following findings, orders and directions:

(1) In Matter No IRC 278 of 2011, the Court finds the defendant, Abigroup Contractors Pty Ltd, not guilty of the offence as charged. The charge is dismissed;

(2) In Matter No IRC 279 of 2011, the charge against the defendant, Abigroup Contractors Pty Ltd, has been proven with respect to particular (b). A defendant will be found guilty if only one of the particulars of a charge is made out: Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 316; (1997) 98 A Crim R 481 at 485 per Gleeson CJ (Ireland and Bruce JJ agreeing) applied in O'Sullivan at [93]. Accordingly, the Court finds Abigroup Contractors Pty Ltd guilty of an offence under s 8(2) of the Act;

(3) In Matter No IRC 285 of 2011, the Court finds the defendant, GTE Workplace Management Pty Ltd, not guilty of the offence as charged. The charge is dismissed;

(4) Matter No IRC 279 of 2011 will be listed for sentencing at 10am on 4 March 2014;

(5) The question of costs is reserved until judgment is delivered on sentence in Matter No IRC 279 of 2011;

(6) There is liberty to apply upon the giving of reasonable notice with respect to orders (4) and (5).

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Decision last updated: 07 January 2014