SafeWork NSW v Civil 1 Pty Ltd

[2025] NSWDC 82

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Civil 1 Pty Ltd [2025] NSWDC 82

Hearing dates:

24, 25, 26 and 27 June 2024; 21, 22 and 23 October 2024; 21 November 2024

Date of orders:

24 March 2025

Decision date:

24 March 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   The prosecutor has not proved beyond reasonable doubt the elements of the s 32 offences.

2   I find the defendant guilty of the s 197 offence.

3   I will list the matter on 31 March 2025 to fix a date for sentence and to make final orders in the s 32 offences.

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury

WORK HEALTH AND SAFETY

Legislation Cited:

Occupational Health and Safety Act 2000

Work Health and Safety Act 2011

Cases Cited:

Baiada Poultry Pty Ltd v R (2012) 246 CLR 92

Bulga Underground Operations v Nash [2016] NSWCCA 37

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467

Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209

Davis v Langdon [1911] 11 SR (NSW) 149

Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50

Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313

Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267

Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171

R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321

R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332

Royall v The Queen (1991) 172 CLR 378

SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295

Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316

Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304

Smith v Broken Hill Pty Ltd (1957) 97 CLR 337

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94

WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166

WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Civil 1 Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
M Shume / E Aitken (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Colin Biggers & Paisley (Defendant)

File Number(s):

2022/245054
2022/245072
2022/245081

Publication restriction:

None

JUDGMENT

Introduction

1. Civil 1 Pty Ltd (the defendant) has pleaded not guilty to the following charges:

1. That as a person with a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Jawad Al-Hesany, Noman Gunaseelan, Sahil Sahil, Vinit Kumar, Balvinder Singh, Sachin Chauhan and David Pymble (the workers) to a risk of death or serious injury contrary to s 32 of the Act.

2. That as a person with a health and safety duty under s 19(2) of the Act, it failed to comply with that duty and thereby exposed to a risk of death or serious injury to Ping Yang contrary to s 32 of the Act; and

3. That it failed to comply with a prohibition notice contrary to s 197 of the Act.

2. In about June 2020, the defendant was engaged as the principal contractor for the demolition of nine commercial buildings located at 108-118A Mann Street, Gosford (the site). In about July 2020 the defendant engaged 21^st Century Building Services Pty Ltd (21 CBS) to supply, install and dismantle scaffolding at the site. It was a requirement of the development approval for the site that Type A hoarding be affixed to the scaffolding facing Donnison and Mann Streets, to protect individuals using the footpath on those streets from flying debris and dust generated by the demolition work. On 18 August 2020, 21 CBS workers attended the site to remove the scaffolding and hoarding in its entirety. At about 10.30am on that day an excavator, being operated by one of the defendant’s workers, struck an underground power line at the site. The scaffolders were required to cease work until the energy provider could attend and make the site safe. After a couple of hours, the scaffolders left for the day because it was expected to take some time to effect the repair. On 19 August 2020 the scaffolders did not return to the site because they were booked for other jobs. At about 3.00pm on 19 August 2020, 21 bays of the scaffolding measuring about 60m in length was blown over by the high winds that had been predicted for that day, injuring Ms Yang and damaging a large number of vehicles parked on Mann Street and assorted infrastructure. The workers were working on the site at the time of the collapse.

Issues

3. The defendant admitted that it owed a duty to the workers pursuant to s 19(1) of the Act and Ms Yang pursuant to s 19(2) of the Act. The issues in relation to the s 32 offences are:

1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [13] or [15] of the relevant Summonses? (Element 2)

2. Did the defendant’s breach of duty expose the workers or another person to a risk of death or serious injury? (Element 3)

4. In relation to the s 197 offence the issues are:

1. What was the area of the site to which the prohibition notice applied?

2. What work was prohibited by the prohibition notice?

Summary of conclusions

5. I am not satisfied beyond reasonable doubt for the reasons that follow that the pleaded measures were reasonably practical in light of the agreed facts and it follows that the defendant will be acquitted of the s 32 offences.

6. I am satisfied beyond reasonable doubt for the reasons that follow that the defendant conducted demolition work in the area that was the subject of the prohibition notice. It follows that I find the defendant guilty of the s 197 offence.

The Evidence

7. The evidence consisted of the tender of a large volume of documents and oral evidence from the following witnesses:

1. Inspector Robert Moore, a SafeWork Inspector who responded to the incident on the day it occurred;

2. Luigi Marco (Mark) Giovenali, the defendant’s construction manager;

3. Inspector Christopher Kearney, a SafeWork Inspector who responded to the incident on the day it occurred and issued the prohibition notice, the subject of the s 197 offence;

4. Professor Kim Rasmussen, a structural engineer qualified by the prosecutor.

Credit

8. Before turning to finding facts based on the evidence, it is necessary to make some findings about the credit of the witnesses called to give evidence.

9. No issue was taken with Inspector Moore’s credit and I accept his evidence.

10. Mr Giovenali’s evidence was relatively brief. There was nothing really about his demeanour that caused me any concern about the veracity of his evidence, however I do not accept it as reliable. For reasons that I will come to, Mr Giovenali’s evidence was inconsistent with what he told the Inspectors in his recorded interview about his understanding of the prohibition notice and what steps the workers had taken to comply with it. I have concluded that even on Mr Giovenali’s understanding of the prohibition notice, which I do not accept, that it was breached and he accepted in his recorded interview that was the case.

11. Inspector Kearney was challenged in cross-examination relating to his recall of events relevant to the issue of the prohibition notice. In my view, he came through that challenge unscathed. His evidence was clear, precise and supported by the contemporaneous documents being his notes, the prohibition notice and the photographs that he took on 20 August 2020. Whilst it was not obvious from the photographs that he took on 26 August 2020 as to exactly where the demolition work had occurred while the prohibition notice was in force, his evidence explained where the work had taken place and I accept that evidence. Overall, I am satisfied that Inspector Kearney was a witness who was trying to do his best to tell the truth and I accept his evidence.

12. There was no issue taken with Professor Rasmussen’s credit. He is a highly qualified and eminent expert in his field. The challenge to his evidence was based on the difference between the assumptions that he was asked to make and the agreed facts. When the agreed facts were put to him, Professor Rasmussen agreed that he would need to reconsider some of his opinions. Overall, I have accepted Professor Rasmussen’s opinions to the extent that they are consistent with the agreed facts.

Facts

13. The parties tendered an Agreed Statement of Facts which I have incorporated into my findings of fact. I will not repeat matters I have already referred to and will use the terms I have already defined. The following matters represent my findings of fact unless stated otherwise.

14. I pause to note that the prosecutor opened the case on many fronts that were not sustainable in the light of the agreed facts. A bleated amendment application was unsuccessful and I gave an interlocutory ruling on the extent of the particulars of breach of duty. The agreed facts stated that it was intended that the scaffold would be removed in its entirety on 18 August 2020 and that was only prevented by the site being rendered unsafe for the scaffolders as a result of the electrical incident, rendered many of the earlier events otiose. The agreed facts also focussed the case on what was reasonably practical for the defendant to do between the time the scaffolders left the site on 18 August 2020 and about 3.00pm on 19 August 2020 when the scaffold blew over. I have limited my outline of the facts accordingly.

15. On 21 July 2020 21 CBS installed the scaffold along Mann and Donnison Streets. The scaffold was originally secured to the existing buildings and other structures at the site with scaffolding ties to provide stability. The scaffold consisted of 52 x 2400mm bays, one x 800mm bay and one access bay. The scaffold was 1150mm wide.

16. On 23 and 24 July 2020 21 CBS installed external hoarding to the scaffold to a height of 2400mm made from plywood sheeting, which was known as “Type A Hoarding”. Above the hoarding, the scaffold was covered with a mesh used in demolition known as “Unimesh”.

17. On 25 July 2020, 21 CBS provided a scaffold handover certificate to the defendant.

18. On or about 25 July 2020 the defendant commenced demolishing the buildings at 112 and 114 Mann Street using excavators.

19. 21 CBS thereafter attended at various times to make alterations to the scaffold when requested to do so by the defendant. This was necessary because as the buildings were demolished, scaffolding ties needed to be removed to permit some structures to be demolished and the scaffold needed to be altered to ensure that it was safe. Whenever the scaffolders attended, they inspected the scaffold and took appropriate steps to make it safe to use, including when there had been unauthorised alterations made to it by the defendant’s workers such as the removal of scaffolding ties. The arrangements between the defendant and 21 CBS were ad hoc and there were occasions when 21 CBS could not or did not send workers to the site at the request of the defendant.

20. On 10 August 2020 Ahmad El-Kurdie the defendant’s site supervisor exchanged text messages with Najeeb Hussain about 21 CBS sending workers on the following day.

21. On 11 August 2020 21 CBS workers attended the site and continued dismantling the internal scaffolding and perimeter scaffolding on Donnison Street.

22. On 13 August 2020 Mark Giovenali, the Construction Manager of the defendant with responsibility for supervising the work at the site, exchanged text messages with Fadi Ayache, the manager of 21 CBS as follows.

Mark Giovenali:    How far away are your boys

Mark Giovenali:    Fadi your boys were are they

Fadi Ayache:        Good morning first There is no boys coming to Gosford today tomorrow for sure

Mark Giovenali:   Why

Mark Giovenali:   So tomorrow

Fadi Ayache:       Yes at least we have big section not 4 bays

Mark Giovenali:   And a truck also to take gear I understand but with demo you need to take section down as we goo

Mark Giovenali:   Go

Fadi Ayache:       I’m not making money like this mark

23. On 14 August 2020, 21 CBS workers attended the site to continue dismantling the perimeter scaffolding on Mann Street and continue the dismantling of the perimeter scaffolding on Donnison Street.

24. On 15 August 2020, 21 CBS workers did not attend the site and the defendant continued to progress the demolition of the main walls on Mann Street. At 11.51am, Mr Giovenali sent text messages to Mr Ayache. Those text messages read:

Mark Giovenali:    I need 4 boys Monday as the main walls are down It’s dangerous to leave it up now little lone Monday I know its not your fault but Ahmad should have had your boys there today

Mark Giovenali:   Also I need that monthly hire to let the builder now, and I will get you to deal with him directly

25. On 17 August 2020, 21 CBS workers did not attend the site as they were already booked for another job and the defendant continued to carry out demolition work at the site.

Events of 18 August 2020

26. On 18 August 2020 21 CBS engaged MGF Scaffolding Pty Ltd to attend the site to dismantle and remove the scaffolding. Gian Fungalei was a director of MGF and he attended the site with his employees, Dennis Ye and Rohan Kumar, to assist him with the work. Mohammad Ali, a scaffolder employed by 21 CBS also attended the site to assist with the work.

27. The intention was that the 21 CBS workers would remove the scaffolding in its entirety on that day. For that purpose, the 21 CBS workers removed the remaining scaffolding ties, so that the scaffold could be dismantled. Noman Gunaseelan told the Inspectors in his recorded interview that on the morning of 18 August 2020 Marcel Stelio, the defendant’s site supervisor, instructed the 21 CBS workers to remove the remaining scaffolding ties to the wall in the north-western corner of the site so that it could be demolished. The defendant’s workers were aware of the need to remove scaffolding ties to the structures that they were demolishing, because if they did not do so there was a risk that the scaffold would be pulled down with the wall being demolished.

28. Mr Fungalei told the Inspectors in his recorded interview that when he attended the site on 18 August 2020 that the supervisor asked him to remove all of the scaffolding ties so that they could demolish the wall and he instructed the 21 CBS workers to do so. Mr Fungalei described the scaffold as a “mess”. He observed a lot of scaffold components on the ground and it was missing ledgers that should have been installed as handrails. He thought that the scaffold was “very unsafe”. The scaffold was about 6m high and not properly anchored to a wall or the ground. Mr Fungalei said that he proceeded by reducing the height of the scaffold to make it safe and by removing the few remaining scaffolding ties to enable the remaining wall to be demolished.

29. At about 10.00am the scaffolders took a break. During the break Mr Fungalei was asked to remove some scaffolding components so that an excavator could reach part of the wall to be demolished. Mr Fungalei stated that once the defendant’s workers had finished demolishing the wall, the plan was for the scaffolders to dismantle the rest of the scaffold. Mr Fungalei stated that it was normal practice for the scaffolders to remove ties so that demolition work could be undertaken and for the scaffolders to then “work behind” the demolition workers to remove the scaffold.

30. At about 10.30am an excavator operating on the site came in contact with an underground powerline near the base of the perimeter scaffold on Mann Street. While the scaffolders were still on their break, Mr Fungalei stated that he was told that an excavator “just blew up a powerline” and it was unsafe for the scaffolders to touch the scaffold because the powerline was live. The energy provider, Ausgrid, was called to repair the powerline and make the site safe.

31. The scaffolders waited for about two hours before being told by the defendant’s supervisor to go home. Ausgrid workers attended the site at about 4.00pm and did not complete the necessary repairs until after dark.

32. Mr Fungalei told the Inspectors that if he had known that he was not going to be able to finish dismantling the entire scaffold that he would have placed the dismantled scaffold components on the bottom of the scaffold to act as a counterweight, and that at the time he was told to go home he was not asked to make the scaffold safe. Mr Fungalei stated that another option to make the scaffold more stable was to build the scaffold inward, but this was not a practical option because of the presence of debris and rubbish from the demolition in the area where it would have been necessary to extend the scaffold.

33. Mr Fungalei told the Inspectors that he was not concerned about the safety of the scaffold when he left the site, because he was expecting to return the next morning to dismantle the rest of the scaffold. He was also not concerned about removing the remaining scaffold ties because he expected to completely remove the scaffold on that day and he did not contemplate the need to provide for the future stability of the scaffold. Mr Fungalei told the Inspectors that he was unaware that high winds were forecast for the following day.

34. Mr Ayache told the Inspectors that he asked both Mr Ali and Mr Fungalei if the scaffold was safe, before authorising them to leave. He asked for a video to be taken showing all of the remaining scaffold at the site to be sent to him. At 12.30pm, the video was sent to Mr Ayache by Mr Ali. After receiving the video, Mr Ayache told the 21 CBS workers that they could go home.

35. Professor Rasmussen’s evidence was that immediately before it collapsed the scaffold was capable of supporting its own weight. It was at risk of blowing over if the wind speed exceeded 45km/hr.

Events of 19 August 2020

36. At about 7.30am on 19 August 2020 Mr Ali received a telephone call from one of the defendant’s workers, prompting him to call Mr Ayache and Najeeb Hussain, a supervisor employed by 21 CBS. At 8.18am Mr Giovenali called Mr Hussain and asked for Mr Ayache’s telephone number which Mr Hussain sent to Mr Giovenali.

37. Mr Ayache told the Inspectors that when he spoke to Mr Giovenali he was already supervising 21 CBS workers on another site. He told Mr Giovenali that it would be very difficult for him to attend on that day, but if it was an emergency he would do so. He did not understand from speaking to Mr Giovenali the urgency of the situation.

38. Later in the morning Mr Ayache directed Mr Hussain to attend the site the following day (20 August 2020) to dismantle the rest of the scaffold.

39. The 21 CBS workers did not return to the site on 19 August 2020.

40. On 19 August 2020 high winds were predicted for the afternoon.

41. At about 10.30am Marcel Stelio, a supervisor employed by the defendant, instructed Sachin Chauhan to remove the Unimesh from the scaffold because he was concerned about the wind. Mr Chauhan accessed the scaffold to remove the Unimesh. When he did so he felt the scaffold moving with the wind. He later asked Mr Stelio when the 21 CBS workers would be arriving and Mr Stelio told him that 21 CBS was not answering his calls.

42. At approximately 3.00pm on Wednesday 19 August 2020, a 60m section of scaffolding along Mann Street was blown over by a high gust of wind.

36. The perimeter scaffold fell into Mann Street and struck Ping Yang, a member of the public, in the back of the head while she was waiting to cross the road.

37. Ms Yang sustained minor head injuries as a result of the incident. Ms Yang was taken to Gosford Hospital and discharged about four hours later.

38. The scaffold which fell into Mann Street was approximately 2.4m in height and approximately 60 metres (21 bays) in length. The scaffold largely retained its form when it fell over.

39. The scaffolding collapse also resulted in damage to several cars which were parked adjacent to the scaffold and knocked down a light post. The light post struck a utility vehicle, which was stopped in traffic, and another parked car on the opposite side of the road. The driver of the utility was not injured.

40. The scaffold along Donnison Street remained upright following the collapse on Mann Street; but it was distorted.

41. Workers of the defendant took immediate action to secure the Donnison Street scaffolding by attaching load restraint straps from the scaffold to excavators on site. Mr Stelio told the Inspectors that he attached the load restraint straps on instructions from police officers who attended the scene.

42. On the day of the incident the defendant’s workers, including Messrs Al-Hesany, Gunaseelan, Sahil, Kumar, Singh and Chauhan were at work on the site sorting and separating materials. Mr Pymble was also at work as the traffic controller. Each of the defendant’s workers had been working on the site and in the vicinity of the unrestrained scaffold.

43. At approximately 3.55 pm on 19 August 2020, Inspector Kearney and Inspector Moore of SafeWork NSW attended the site and conducted an inspection.

The prohibition notice

51. On 20 August 2020, Inspector Kearney attended the site and had a conversation with Mr Giovenali about the demolition work that was left to perform and how it could be undertaken safely without the hoarding place. In particular, Inspector Kearney was concerned about how the defendant would demolish the concrete slab close to Mann Street using excavators without creating a risk of flying debris that could injure pedestrians using the footpath. At the time the scaffold had been replaced with temporary cyclone wire fencing along Mann Street, that was not covered with Unimesh or similar.

52. Inspector Kearney issued a prohibition notice (7-380943) to Mr Giovenali using a mobile device. The prohibition notice:

1. directed that “all demolition work within 9 metres of the boundary adjacent to Mann Street” stop until an Inspector was satisfied that the risk had been remedied;

2. identified the risk of injury to workers and other persons being hit by falling or flying objects as a result of an excavator being used to demolish concrete and bricks adjacent to the footpath of Mann Street; and

3. required:

1. the elimination of the risk to workers and other persons by providing adequate hoarding;

2. the development of a demolition plan for the remaining work identifying the risks and control measures for the area adjacent to Mann Street; and

3. Inspector Kearney to be satisfied that the prohibition notice had been complied with.

53. Inspector Kearney took a number of photographs on 20 August 2020 for the purpose of identifying the area that the prohibition related to. In his discussion with Mr Giovenali, Inspector Kearney identified a series of concrete footings running parallel to Mann Street in the north-eastern corner of the site. He identified in his discussion with Mr Giovenali that the 3^rd footing in from Mann Street was about 9m from the edge of the footpath and marked the area where the work was to be prohibited. In his notes made on the day, Inspector Kearney wrote that the prohibition area was 9m from Mann Street and he included the entry “(3^rd footing)”.

54. Inspector Kearney then took a number of photographs standing on a line that was about 9m from the footpath on Mann Street. The first photograph was taken facing north and depicted the 3^rd footing that ran perpendicular to a building that was not being demolished on the northern boundary of the site. The second photograph was taken facing east from the 9m line towards Mann Street. The third photograph was taken from the 9m line facing southeast towards the south-eastern corner of the site.

55. In his recorded interview with the Inspectors, Mr Giovenali stated that he understood that the prohibition notice provided for a prohibited area but he believed that the prohibition only applied to using a hammer to break up concrete that created a risk of flying debris that could be mitigated by putting up mesh on the temporary fencing, and that otherwise the site was open.

56. Mr Giovenali was not asked any questions in evidence-in-chief about his discussions with Inspector Kearney about the issue of the prohibition notice.

57. Mr Giovenali gave evidence in cross-examination that Inspector Kearney came to the site on 20 or 21 August 2020 and saw an excavator with a ripper attached trying to break up a concrete slab close to the northern boundary wall of the site and between 5-9m of the footpath on Mann Street. Mr Giovenali said that the operation of the excavator was causing 20mm concrete flakes to be expelled onto the Mann Street footpath. Mr Giovenali gave evidence that he understood the prohibited area to be just the area close to the northern boundary wall of the site that was within 5-9m of the footpath. He identified the red square on Exhibit 20 as his understanding of the prohibited area. He said that he told Inspector Kearney that he would get the workers to put some mesh on the temporary fencing and put some workers on the footpath to clean up any debris.

58. At about 3.24pm on 26 August 2020, Inspector Kearney observed from the SafeWork office on Donnison Street two excavators that he believed were operating on the site closer than 9m to the footpath on Mann Street. Inspector Kearney gave evidence that at the time he saw pedestrians using the footpath on Mann Street and that he saw and heard an excavator using a hammer attachment to break up concrete. Inspector Kearney then took two videos of what was occurring on the site and a number of photographs before going down to the site.

59. When Inspector Kearney arrived on site he saw that one of the excavators had moved out of the prohibited area and the other was still in the prohibited area and sifting through debris using a sifter attachment. The other excavator was fitted with a ripper attachment and was moving pieces of concrete out of the prohibited area.

60. Inspector Kearney asked the workers to stop work and had a discussion with Mr Stelio.

61. Inspector Kearney observed in the prohibited area that the concrete slab along the boundary had been broken up and some of the footings had been removed near the northern boundary wall of the site. Inspector Kearney laid out his measuring tape and took a photograph of it, depicting that some of the demolition had occurred within 4.6m of the footpath on Mann Street. Inspector Kearney did not observe any control measures in place to eliminate or minimise the risk to pedestrians or motorists on Mann Street and no contact had been made with him to seek confirmation that the prohibition notice had been complied with.

62. In cross-examination, Inspector Kearney did not accept that the work on 26 August 2020 was being performed outside of the prohibited area. He disagreed that by reference to the description of the photographs that he prepared later, that the photographs that he took were looking from the edge of the prohibited area and away from that area. He also disagreed that the work that was being done on 26 August 2020 was not demolition work. He could not recall seeing an excavator breaking up the slab in the prohibited area on 20 August 2020 and that was supported by the photographs that did not depict an excavator in that area.

The Relevant Law

63. Section 12A of the Act provides:

Strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence.

64. A duty provided for by the Act is not transferable and a person can have more than one duty: ss 14 and 15 of the Act.

65. Section 16 of the Act provides:

(1)   More than one person can concurrently have the same duty.

(2)   Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)   If more than one person has a duty for the same matter, each person--

(a)   retains responsibility for the person’s duty in relation to the matter, and

(b)   must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

66. Section 17 of the Act provides:

A duty imposed on a person to ensure health and safety requires the person--

(a)   to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

The s 19(1) duty – duty of a PCBU to ensure the health and safety of workers

67. The content of the duty is set out in s 19 of the Act, which relevantly provides:

(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

…

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

(b)   the provision of safe plant and structures, and

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling and storage of plant, structures and substances, and

…

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

68. The requirement to “ensure” means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.

69. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.

70. The word “risk” is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].

71. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].

72. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: s 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.

73. “Reasonably practicable” is defined in s 18 of the Act. The court must take into account and weigh up all relevant matters including;

1. the likelihood of the risk concerned occurring, and

2. the degree of harm that might result from the risk, and

3. what the defendant knows or ought reasonably to know about;

4. the risk, and

5. ways of eliminating or minimising the risk, and

6. the availability and suitability of ways to eliminate or minimise the risk, and

7. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

74. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

75. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] (Gleeson CJ, Gummow and Hayne JJ).

76. The phrase “exposed to risks” contained in s 8(2) Occupational Health and Safety Act 2000 has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.

77. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

78. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] (Gaudron J).

79. The words “reasonably practicable” indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] (French CJ, Gummow, Hayne and Crennan JJ).

80. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

81. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 (Hill J) and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].

82. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 (Dixon CJ). If there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

83. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practicable to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].

84. One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].

85. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice was observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.

86. The question of what is reasonably practicable is also a question of fact, determined by the circumstances of each case. The fact that a worker has carried out work carelessly or omitted to take a precaution does not preclude the duty holder from establishing that everything that was reasonably practicable in their undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.

87. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control the risk and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. Clause 3 of Schedule 4 of the Act provides that an industry code of practice approved and enforced under Part 4 of the Occupational Health and Safety Act 2000 immediately before the repeal of that Act is taken to be an approved code of practice under Part 14 of the Act.

88. Part 3.1 of the Regulations (clauses 32-38) applies to a PCBU who has a duty under the Regulations to manage risks to health and safety. Clause 34 requires a duty holder to identify foreseeable hazards that could give rise to risks to health and safety. Clause 35 of the Regulations requires a duty holder to eliminate risks to health and safety so far as is reasonably practicable and if it is not reasonably practicable to eliminate risks to minimise those risks so far as is reasonably practicable. Clause 36 of the Regulations sets out the hierarchy of control measures to be implemented to minimise risk as: substitution, isolation, engineering controls, administrative controls and provision of personal protective equipment (PPE). Clause 37 of the Regulations requires a duty holder who implements control measures to ensure they are maintained, fit for purpose, suitable for the nature and duration of the work and installed, set up and used correctly. Clause 38 of the Regulations requires a duty holder to revise its control measures to maintain, so far as is reasonably practicable, a work environment that it without risk to health or safety.

89. Post incident conduct is some evidence that the steps taken were reasonably practicable. However, when it comes to the application of s 18 of the Act, that evidence may not be determinative of the issue. The court must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve the provision of a safe working environment prior to the incident and not with the benefit of hindsight: Davis v Langdon [1911] 11 SR (NSW) 149; Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201 at 215 (Gibbs J, Steven and Mason JJ agreeing), Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 at [268] and SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295 at [76].

Causation

90. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

91. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

92. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

93. A finding of causation requires a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [226] (Cavanagh J).

Consideration

Issue 1    Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [10] of the Summons? (Element 2)

94. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].

95. In order to find Element 2 established, I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [13] or [15] of the relevant Summonses and that the steps were reasonably practicable.

96. The pleaded measures in [15](a)-(i) of the Summons alleging a breach of s 19(1) and the pleaded measures in [13](a)-(i) of the Summons alleging a breach of s 19(2) are identical and can be dealt with together.

97. I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures were reasonably practicable.

The pleaded risk

98. The pleaded risk was the risk of workers or other persons suffering serious injury or death as a result of being struck by a collapsing scaffold.

The likelihood of the risk occurring

99. The likelihood of the risk occurring was moderate, if adequate precautions were not taken to ensure the stability of the scaffold.

The degree of harm

100. The degree of harm that might eventuate included a risk of death to one or more individuals.

The defendant’s knowledge of the risk

101. The risk posed by the collapse of a scaffold was obvious and well known within the demolition industry. Further, the defendant knew that by reason of the state of the scaffold from the partial dismantling of it on 18 August 2020 that it was at risk of blowing over in high winds.

The defendant’s knowledge of the ways of eliminating or minimising the risk

102. The defendant had engaged licensed scaffolders to install, alter and dismantle the scaffold. The defendant was told by the scaffolders that the scaffold was safe. I accept that the scaffolders believed those statements to be true when they left the site on 18 August 2020.

103. Mr Stelio had seen counterweights used on scaffolding at other sites.

104. The defendant ought to have known from the available guidance material that there were ways to secure the scaffold, particularly through the use of counterweights.

Reasonably practical steps

105. I will now turn to consider the pleaded particulars of breach of duty.

106. It should be noted at the beginning of my analysis that the prosecutor opened the case beyond the facts, in particular, inconsistently with the agreed facts that it was intended that the scaffold would be removed in its entirety on 18 August 2020 and that was only prevented by the site being rendered unsafe for the scaffolders as a result of the electrical incident. The agreed position severely limited the ability of the defendant to take reasonably practical steps to stabilise the scaffold.

Failing to develop and implement a demolition management plan [1]

1. [13](a) and [15](a) of the relevant Summonses.

107. The prosecutor contended that the defendant ought to have developed and implemented a demolition management plan to ensure that the alteration and dismantling of the scaffold kept pace with the demolition work at the site so that the activities could be scheduled in advance through consultation between 21 CBS and the defendant.

108. The prosecutor relied on the defendant’s proposed sequence of works submitted to Gosford City Council (the Council) as part of its application to erect hoarding in a road reserve. The prosecutor contended that sequence of works was approved by the Council. In that document which is undated, the defendant proposed the following sequence of works:

8)   As the building is completely demolished, the remaining scaffold will be dismantled in iterations of 2400mm long bays with the temporary fencing replacing it. This temporary fencing will be extended from the existing site boundary temporary fence and immediately brought back inwards towards the existing site boundary reopening the full width of the footpath. As this process occurs in iterations, the scaffold dismemberment with the putting up of temporary fencing to replace the scaffold will start from 118A Mann Street moving towards Donnison Street closest to the side of Baker Street. It will be a consecutive process and will occur as the buildings are completely demolished. Please note that at no point in this process will the scaffold removal and temporary fence replacement process surpass the process of the demolition of the internal buildings to ensure the safety of the public at ALL times. All scaffold will be dismembered and located directly within the site boundary where they will be loaded into trucks from within the boundary. The trucks will exit the site as per the CTMP roots with all necessary traffic control provided as per the “demolition phase” TCP.

109. The prosecutor submitted that the demolition should have been carried out in accordance with the sequence of works proposed by the defendant, [2] and it was clear from the evidence that the defendant did not do so.

     2. As described in [108] above.

110. The defendant contended that the Council did not approve that sequence of works, but to the contrary specified in its “Hoarding Application Determination” (HAD) dated 2 July 2020 that:

2.   Hoardings shall remain in place until all construction or maintenance work for which the hoarding has been erected for is completed, or in the case of demolition until the building or structure is completely demolished.

111. In my view, the defendant’s construction of the HAD is to be preferred. While the Council annexed the defendant’s application to the HAD, the HAD was expressed to be made on the conditions specified in Schedule A of that document which made no reference to and did not thereby incorporate the terms of the defendant’s application. I am satisfied that condition 2 of the schedule set out at [110] above was inconsistent with and replaced the proposed schedule of works.

112. The Demolition Management Plan (DMP) for the site prepared by the defendant, which is also undated, did not contain a reference to the proposed sequence of works referred to in [108] above. I infer that the DMP did not refer to the proposed sequence of works because it was the defendant’s understanding that the HAD required the hoardings to stay in place until the buildings were completely demolished, and this was inconsistent with the proposed sequence of works.

113. For this reason, I am not satisfied that the proposed sequence of works was reasonably practical, because it was inconsistent with the HAD which imposed legal obligations on the defendant to carry out the demolition work in accordance with Schedule A of that document.

114. No other demolition management plan was proposed by the prosecutor that needs to be considered.

115. I am not satisfied beyond reasonable doubt that the defendant breached its s 19 duties by failing to take this step.

Failure to consult and co-ordinate with 21 CBS on secondary measures to provide for the stability of the scaffold at all times [3]

3. [13](b) and [15](b) of the relevant Summonses.

116. The prosecutor contended that the defendant should have consulted with 21 CBS on secondary measures to provide for the stability of the scaffold such as the use of counterweights or back propping, so that the work could be properly co-ordinated.

117. Section 46 of the Act imposes an obligation on a duty holder to consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.

118. The evidence demonstrated that there was no consultation on secondary stability measures to be implemented at the site. For example, Mr Fungalei told the Inspectors that he did not have any such discussions on 18 August 2020, but he only attended the site on one occasion.

119. The difficulty with the prosecutor’s argument on this point was that there was no need for secondary stability measures until the remaining ties were removed and the scaffold was partially dismantled on 18 August 2020. Prior to that there had been incidents of unauthorised removal of ties and other scaffold components, but no real risk of collapse. Even in its partially dismantled state, there was no real risk of collapse, but there was a risk of the scaffold blowing over due to the presence of the hoarding in strong winds. In other words, had the hoarding been removed on 18 August 2020, it was unlikely that the scaffold would have blown over even in the high winds of the following day.

120. Even if there had been consultation between 21 CBS and the defendant on 18 August 2020 it is unlikely that the defendant would have been told by 21 CBS that there was a risk of the scaffold blowing over. The evidence was that both Mr Fungalei and Mr Ali told Mr Ayache that they considered the scaffold to be safe. After looking at a video of the entirety of the scaffold, Mr Ayache also believed that the scaffold was safe. I infer that no one from the defendant or from 21 CBS anticipated on 18 August 2020 what the strength of the wind would be on the following day. If consultation was required on that day, the defendant was entitled to rely on the specialist advice of the licenced scaffolder that it had engaged to conduct work that it was not qualified to do.

121. On the morning of 19 August 2020, 21 CBS resisted attempts of the defendant to contact it.

122. I am not satisfied that if the defendant had consulted with the defendant on 18 or 19 August 2020 that it would have had a demonstrable impact on safety.

123. I am not satisfied beyond reasonable doubt that the defendant breached its s 19 duties by failing to take this step.

Failing to require the use of secondary measures to stabilise the scaffold, such as counterweights, buttress bays or raker ties [4]

4. [13](d) and [15](d) of the relevant Summonses.

124. It can be accepted that the scaffold was freestanding from about midday on 18 August 2020 and susceptible to blowing over in high wind. For the reasons given, I am not satisfied that there was any need for secondary stabilisation measures prior to 18 August 2020.

125. Counterweights and buttress bays were the only secondary measures relied on by the prosecutor in final submissions.

Buttress bays

126. The installation of buttress bays involved expanding the base on the scaffold. The only available space to install buttress bays was inside the site or on the footpath. The installation of buttress bays on the footpath would have required the consent of the Council. The installation of buttress bays within the site would have encountered two problems. First, there was debris from the demolition on the ground inside the scaffold. Mr Fungalei told the Inspectors that building buttress bays in that area was impractical due to the ground conditions. Second, the installation of buttress bays on the inside of the scaffold would not have prevented the incident, because the scaffold blew over in a direction where a buttress bay installed on the inside of the scaffold would not have provided extra stability.

127. The installation of buttress bays had to be completed by a licenced scaffolder. As was demonstrated in the evidence, the defendant was unable to secure the attendance of 21 CBS workers at the site on 19 August 2020. If it had done so, the complete dismantling of the scaffold was a more practical option.

128. I am not satisfied beyond reasonable doubt that the installation of buttress bays was a reasonably practical step that the defendant should have taken.

Counterweights

129. I accept Professor Rasmussen’s evidence that placing counterweights on the base of the scaffold would have been the most effective means ensuring the stability of the scaffold.

130. The evidence was not sufficient to allow me to determine now much weight was required to prevent the scaffold blowing over. Professor Rasmussen’s evidence was that the amount of weight to be applied was a matter that needed to be calculated by a competent person, such as an engineer. Professor Rasmussen did not purport to undertake that calculation in his reports. I infer that a licenced scaffolder would have also had specialist knowledge as to the correct amount of weight to be applied.

131. I am satisfied that placing counterweights on the base of the scaffold was a step that could minimise the risk of the scaffold blowing over.

132. Whilst I gathered from the evidence that there are purpose-built counterweights used in scaffolding, there was very little evidence about what they looked like or how much they weighed. There was one diagram in a document referred to by Professor Rasmussen depicting counterweights but there was no evidence of the dimensions or weight of them. There was no evidence of where counterweights could be acquired from, how available they were or how they could have been installed on the scaffold. There was no evidence if there was sufficient access on the site to install counterweights with the use of material handling equipment if that was required. There was no evidence about how much the purchase or rental of counterweights would have cost or if they could have been supplied to the site in time and installed prior to the incident occurring. Mr Fungalei told the Inspectors that in his 21 year experience of working for 21 CBS they did not carry any form of counterweights.

133. The counterweights described by Inspector Kearney were concrete blocks with pipes inside them that standards were placed on during construction of the scaffold. That type of counterweight would have involved the reconstruction of the scaffold in order to be effective. I am not satisfied that type of counterweight was practical in this case.

134. Mr Fungalei suggested that he had used removed scaffolding components such as ledgers to counterweight scaffolds on other sites. I am not satisfied that the defendant knew or ought to have known about that method of counterweighting the scaffold, because it arose from Mr Fungalei’s specialist knowledge.

135. There was a suggestion that the defendant could have hired pre-cast concrete blocks to use as counterweights. However, there was no evidence to prove the availability, cost or practicality of that suggestion, or if concrete blocks could have been supplied to the site and installed prior to the incident.

136. Further, if the defendant had placed items on the base of the scaffold to weigh it down but they were of insufficient weight, there was a residual risk that the scaffold could blow over and when it did so it would take the extra material with it creating a more potent risk.

137. I am not satisfied beyond reasonable doubt that the installation of counterweights was a reasonably practical step that the defendant should have taken.

Failing to provide alternate anchor points to secure the scaffold [5]

5. [13](e) and [15](e) of the relevant Summonses.

138. This pleaded step is the remainder of a failed late attempt to amend the Summonses. The prosecutor had sought to argue that the defendant should have secured the scaffold to alternative anchor points on the site like concrete blocks or excavator buckets using load restraint straps, such as what occurred in the immediate aftermath of the scaffold blowing over. The difficulty with the intended argument was that it was not particularised by the prosecutor before the commencement of the trial. In the amendment argument, I disallowed the reference to load restraint straps.

139. The end result is that the provision of alternate anchor points without a method to attach the scaffold to those anchor points would not have provided any stability to the scaffold.

140. Further, alternative anchor points were not required before 18 August 2020. I am not satisfied that it was reasonably practical to provide them in the short period prior to the scaffold blowing over.

141. I am not satisfied beyond reasonable doubt that the defendant breached its s 19 duties by failing to take this step.

Failure to engage a competent person to review the design of the scaffold or to assess the stability of the scaffold [6]

6. [13](f)-(g) and [15] ](f)-(g) of the relevant Summonses.

142. It was common ground that if the defendant accepted that it knew that there was a risk of the scaffold blowing over on 19 August 2020, that it was unnecessary for the Court to deal with these particulars. In final submissions the defendant made that concession.

Failure to provide adequate training and supervision [7]

7. [13](i) and [15](i) of the relevant Summonses.

143. The prosecutor contended that the defendant should have instructed its workers of the need to consult and coordinate with 21 CBS, which would have led to discussions about secondary stabilisation measures for the scaffold during course of the demolition works.

144. The defendant complained that this was a new way of expressing this particular of breach that arose first in final submissions. I am satisfied there is some merit in the defendant’s submission and it would not be fair to the defendant to allow this particular to be argued after the hearing has completed.

145. Further, the prosecutor’s case on this particular is tenuous and speculative. I am not satisfied that even if there had been more consultation throughout the course of the demolition works that it would have led to discussions about secondary measures or the need for them to be used. The facts demonstrate that secondary measures only became necessary on 18 August 2020, when consultation with 21 CBS would have achieved very little in making the scaffold safe.

146. I am not satisfied beyond reasonable doubt that the defendant breached its s 19 duties by failing to take this step.

Conclusion on Element 2 of the s 32 offences

147. I am not satisfied beyond reasonable doubt that the prosecutor has established Element 2 of the s 32 offences.

Issue 2   Did the defendant’s breach of duty expose the workers or another person to a risk of death or serious injury? (Element 3)

148. The principles to be applied are set out at [90] – [93] above and I will not repeat them.

149. If contrary to my finding at [129] – [137] above, it was reasonably practical for the defendant to apply counterweights to the base of the scaffold between the time when the scaffolders left the site on 18 August 2020 and when the scaffold blew over on 19 August 2020, I would have found that the failure to do so caused at least one of the workers and Ms Yang to be exposed to a risk of serious injury, because the failure to weigh down the base of the scaffold was a significant or substantial cause of it blowing over in the prevailing wind.

150. For the reasons set out when dealing with the defendant’s breach of duty, I am not satisfied beyond reasonable doubt that the other breaches, if proven, would have caused the workers or Ms Yang to be exposed to a risk of death or serious injury.

148. The s 32 offence alleging a breach of s 19(1) of the Act, particularised that all of the workers were exposed to a risk of death or serious injury. I am not satisfied beyond reasonable doubt that all of the workers were so exposed. On 19 August 2020, in the workday leading up to the incident, the workers were undertaking tasks in different areas of the site. At the time that the scaffold blew over, none of the workers was in any real danger because the scaffold blew over into Mann Street and away from the site where they were working, in the same direction as the prevailing wind. There was a paucity of evidence as to when and how workers were exposed to the risk, except in relation to Mr Chauhan. I am satisfied beyond reasonable doubt that Mr Chauhan was exposed to a risk of death or serious injury when he was asked to remove the Unimesh from the scaffold on the day of the incident because at the time he did so, strong, gusty winds were forecast that created a risk of the scaffold blowing over.

149. I am not satisfied beyond reasonable doubt that the prosecutor has established Element 3 of the s 32 offences.

Issue 3   What was the area of the site to which the prohibition notice applied?

Issue 4   What work was prohibited by the prohibition notice?

153. These issues can be conveniently dealt with together.

154. The s 197 offence is a strict liability offence.

155. The defendant relied on the defence of honest and reasonable mistake of fact, alleging that Mr Giovenali held an honest and reasonable belief that the work undertaken on 26 August 2020 was not demolition work and not prohibited in the area identified by Inspector Kearney.

156. The terms of the prohibition notice were clear, that it prohibited “all demolition work within 9m of the boundary adjacent to Mann Street”.

157. In his recorded interview, Mr Giovenali did not seem to take issue with the identification of the prohibited area but only that it prohibited specific work, namely the use of a hammer attachment on the excavator to break up concrete within the prohibited area. He admitted that demolition work of breaking up concrete in front of the northern boundary wall of the site had taken place within 9m of the Mann Street footpath and stated that he had put up mesh on the temporary fence when the work was undertaken.

158. At trial, the defendant’s case was that the prohibited area was more confined and was defined by Inspector Kearney’s description of what was depicted in the photographs taken on 20 August 2020. There was no evidence as to when Inspector Kearney prepared the photo log document or when the defendant first saw it, but I infer that it was at a time well after 26 August 2020 and it was not a document that Mr Giovenali had regard to in coming to his understanding of the prohibited area.

159. I accept the evidence of Inspector Kearney that he had a conversation with Mr Giovenali in which he identified the prohibited area, being 9m from the boundary of the site from Mann Street that was about the line of the 3^rd footing. I am satisfied that Inspector Kearney’s contemporaneous note relating to the “3^rd footing” and the photographs that he took of the site on 20 August 2020 corroborated his evidence on this point.

160. I also accept the evidence of Inspector Kearney that on 26 August 2020 that he saw an excavator using a hammer attachment in the prohibited area and that when he attended the site, he saw evidence of recent demolition work in the prohibited area which he photographed. I am satisfied that his contemporaneous notes and the photographs he took on 26 August 2020 corroborated his evidence.

161. I reject the evidence of Mr Giovenali on this issue because it was different to what he told the Inspectors in his recorded interview and he did not have any notes of his conversation with Inspector Kearney that corroborated his version of events. He made an admission in his recorded interview, which he did not resile from in his evidence.

162. For the reasons expressed earlier, I found Inspector Kearney to have a convincing demeanour as a witness and I formed the impression that he was doing his best to tell the truth. In contrast, I do not accept Mr Giovenali’s evidence because it was inherently inconsistent.

163. The defendant contended that the evidence did not establish that the concrete slabs referred to in the evidence were broken up on 26 August 2020. I reject that argument. I am satisfied beyond reasonable doubt that Inspector Kearney observed that there had been significant demolition work within the prohibited area that was undertaken between 20 August 2020, when the prohibition notice was issued, and 26 August 2020 when he attended the site because of what he saw from the office window. Some of the demolition work done in breach of the prohibition notice was probably done prior to 26 August 2020, but this is not a defence to the charge. The precise date on which the work was done is not an element of the offence. I am satisfied beyond reasonable doubt that demolition work in the prohibited area was done after the prohibition notice was issued.

164. I am not satisfied on the balance of probabilities that Mr Giovenali held an honest belief that the prohibited work was restricted to using a hammer attachment or that it was confined to a small area on the northern boundary wall of the site, because he gave conflicting versions and I have rejected his evidence on this point.

165. I am not satisfied on the balance of probabilities that Mr Giovenali held a reasonable belief that the prohibited work was restricted to using a hammer attachment or that it was confined to a small area on the northern boundary wall of the site, because that belief was inconsistent with the clear language of the prohibition notice.

166. Taking into account all of the evidence, I am satisfied beyond reasonable doubt that the work observed by Inspector Kearney on 26 August 2020 was performed in breach of the prohibition notice because it was demolition work and it was undertaken within 9m of the boundary of the site on Mann Street.

167. I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the s 197 offence.

Orders

168. The prosecutor has not proved beyond reasonable doubt the elements of the s 32 offences.

169. I find the defendant guilty of the s 197 offence.

170. I will list the matter on 31 March 2025 at 9.30am to fix a date for sentence and to make final orders in the s 32 offences.

Endnotes

Amendments

26 June 2025 - The word "doubt" included in [167].

Decision last updated: 26 June 2025