SafeWork NSW v Stitt

[2024] NSWDC 255

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Stitt [2024] NSWDC 255

Hearing dates:

11-13, 15, 18-20 March 2024; 30 May 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   I find the defendant guilty of the s 32 offence.

(2)   The matter will be listed for sentence on a date convenient to the parties.

Catchwords:

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

Legislation Cited:

Occupational Health and Safety Act 2000

Work Health and Safety Act 2011

Work Health and Safety Regulation 2017

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

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

Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197

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

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

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

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

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

Texts Cited:

2011 WorkCover NSW Guide to Erecting, Altering and Dismantling Scaffolds Part 2

Scaffolding Part 3: Prefabricated and tube-and-coupler scaffolding AS 1576.3:2015

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Jason Stitt (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
M Baroni (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Barry Nilsson Lawyers (Defendant)

File Number(s):

2021/256592

Publication restriction:

None

Judgment

Introduction

1. Jason Reid Stitt (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Todd Connell to a risk of death or serious injury contrary to s 32 of the Act.

2. On 9 September 2019, Mr Connell, Cristobal Rivera and another worker (Adam), workers engaged by Mr Stitt, erected a mobile scaffold tower (the scaffold) at 16 Longworth Avenue, Point Piper (the property) for the purpose of carrying out work relating to the installation of a flue on a gas hot water heater. The scaffold had been hired from Kennards Hire at Waverley. The scaffold could be erected, altered and/or dismantled by a person or persons who did not hold a high risk work licence (HRWL) for scaffolding work, so long as it was erected such that there was no risk of a person or object falling more than 4m from a work platform or the structure: cls 5, 81 and Table 3.1 of Schedule 3 Work Health and Safety Regulation 2017 (the Regulations). It was common ground that none of the relevant workers held a HRWL for scaffolding. The scaffold was erected next to a wall on the western side of the house, close to the boundary, that was about 3 storeys high. As erected, the scaffold stood 8.65m high, with 2 work platforms positioned more than 4m above the ground of the property and the neighbouring property.

3. On 11 September 2019 Mr Connell and Mr Rivera attended the property to dismantle the scaffold. During the course of dismantling the scaffold, Mr Connell attempted to pass a work platform weighing about 25 kilograms to Mr Rivera who was standing outside of the scaffold on top of a 2.7m high wall on the boundary (the boundary wall). When Mr Rivera said that he was off-balance and could not hold the work platform, Mr Connell tried to hold the weight of the work platform and in so doing leaned on the horizontal brace of the scaffold (ledger) that had been installed as a handrail on the second highest work platform. The ledger gave way and Mr Connell fell about 5.75m to the ground in number 14 Longworth Avenue. Mr Connell suffered serious head injuries in the fall and died a few days later.

4. The defendant did not put in issue Elements 1 and 2 of the charge which are set out at [210] below. The issues in the case are:

1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [16] of the Summons? (Element 3)

2. Did the defendant’s breach of duty expose Ms Connell to a risk of death or serious injury? (Element 4)

5. For the reasons that follow, I am satisfied beyond reasonable doubt that the defendant failed to take some of the reasonably practicable steps to ensure the health and safety of Mr Connell particularised in [16] of the Summons, and that those failures exposed Mr Connell to a risk of death or serious injury. It follows that I find the defendant guilty of the s 32 offence.

Facts

Background

6. The defendant is a licensed builder operating as a sole trader, under the business name ReidStitt Constructions (RSC). The defendant’s business consisted mainly of renovating private residences in the eastern suburbs of Sydney.

7. Mr Connell was employed by Tasman Labour Hire Pty Ltd (TLH) as a casual labourer. He held a construction white card. Mr Connell had been regularly placed to work with the defendant by TLH at the property since 2015. TLH placed Mr Connell with the defendant on 9 September 2019 and 11 September 2019. TLH was informed that on 9 September 2019 Mr Connell would be making a 100mm penetration through a concrete roof eave to enable a flue to be installed by others. The works included the erection of a mobile scaffold platform, making the penetration and then dismantling the scaffold. TLH considered Mr Connell to be a good worker and to have experience in the construction of mobile scaffold towers.

8. The defendant gave evidence that he usually used Mr Connell on finishing projects because that work suited his skillset.

9. Mr Rivera came to Australia on a student visa in March 2017. In about July 2018, he was employed by TLH as a casual labourer and placed with the defendant shortly afterwards. He held a white card but had no experience in, or qualifications for, construction work. In about December 2018, Mr Rivera told the defendant that he wanted to be paid more and he was advised to get an Australian Business Number (ABN) so that he could be engaged by the defendant as a contractor. From about February 2019, Mr Rivera entered into a contract with the defendant to provide his services at an hourly rate. Mr Rivera sent an invoice to the defendant by email each Friday and was paid on the same day.

10. Between about July 2018 and 9 September 2019, Mr Rivera worked regularly with Mr Connell on RSC sites, including at the property. In that period, Mr Rivera assisted Mr Connell to erect and dismantle scaffolding from time to time. Mr Rivera described the scaffolding erected on these prior occasions as “classic scaffolding”, being “scaffolding without wheels”, which I understood to mean not mobile scaffolds.

11. Mr Rivera gave evidence that prior to 9 September 2019, he was not provided with a Safe Work Method Statement (SWMS) for the work he was undertaking for RSC and he did not understand what a SWMS was. In particular, he was not provided with a SWMS for scaffolding work. He was never asked to sign a document relating to the erection of scaffolding. Mr Rivera gave evidence that he was not provided with fall prevention equipment such as a harness and lanyard.

12. From about 2015, RSC was engaged to undertake building work at the property. In 2018, the property was purchased by Neville Crichton, with the renovation works still in progress. Mr Crichton contracted with RSC to continue the renovation works and to undertake other work from time to time.

13. When the defendant first started work at the property, he put together an “OH&S Folder” for the property. The defendant gave evidence that the OH&S Folder contained the safety documents relevant to that site, including the relevant SWMSs and contact details for workers including their white card numbers and a record of their qualifications. He conducted toolbox talks (TBTs) each day with workers on an RSC site. If he was not on site, TBTs were delivered by the site foreman. TBTs were not documented.

14. In about March 2018, Mr Crichton engaged Devex Systems Pty Ltd trading as Floor Heat Australia (Devex) to install an underfloor heating system at the property. The quote for the installation of the system was accepted by the defendant on behalf of Mr Crichton. The system pumped heated water through a series of underfloor pipes. The gas-powered water heater for the system was housed in an enclosed shelter on a wall on the western side of the property, about 2-3 metres above the ground. It was initially fitted with a flue that extended about 100mm above the water heater.

15. Following the installation of the system, Mr Crichton received complaints from his neighbour that the flue of the water heater was noisy when the underfloor heating system was being used. Mr Crichton contacted Devex and asked them to resolve the problem.

16. Blake Sutton, an installation manager at Devex, attended the property to conduct a site inspection and to conduct maintenance on the system on or about 11 August 2019. He measured up to provide a quote to extend the flue about 6-8m up the wall of the house and through the concrete soffit of the roof. When he returned to the office he spoke to Jean-Baptiste Bailleux, Devex’s technical manager, about the quote to be provided to Mr Crichton. Mr Sutton informed Mr Bailleux that scaffolding was required at the property to enable the Devex workers to attach the flue to the wall of the house up to the soffit.

17. On 30 August 2019 Mr Bailleux provided a quote by email to Mr Crichton to extend the flue to the roof of the property. Devex’s email provided as follows:

Please find attached your quotation to bring the flue terminal to the roof…Please note that this quote doesn’t include roof penetration, core holes, or scaffolding (this is to be provided by the builder).

18. It was Devex’s usual practice to require the client to arrange for scaffolding if it was required to undertake their work.

19. After receiving the Devex quote, Mr Crichton spoke to the defendant and asked him to undertake the necessary work to install the flue in co-operation with Devex. Mr Crichton did not recall discussing with the defendant the specifics of what was required from him. Rather, he put the defendant in touch with Devex with the intention that they would arrange the work between them.

20. The defendant’s evidence was that Mr Crichton called him on 3 September 2019 and told him that he needed a core hole drilled to put the flue through, and “banged on about a couple of other defects” that the defendant had not rectified. The defendant’s evidence was he knew precisely where the core hole had to go and he devised a plan to put up a single width scaffold to catch the concrete core to prevent it from hitting the equipment below.

21. There was no evidence of any contact between the defendant and Devex prior to 9 September 2019.

The scaffold available for hire from Kennards Hire

22. On 3 September 2019, the defendant telephoned Kennards Hire at Woollahra (Kennards) to hire a 5m single width mobile scaffold. Kennards at Woollahra did not have the scaffold in stock but made arrangements to supply the scaffold from its Waverley branch.

23. The defendant gave evidence that he chose the aluminium scaffold for the task because it was lightweight and unlikely to cause damage to the tiled pathway underneath where it was to be installed.

24. In 2019, Kennards hired mobile scaffolds out to customers as a package and did not permit customers to hire individual scaffold components. The 5m single width mobile scaffold available from Kennards, and supplied in this case, was an Oldfields 2600 series which consisted of the following components:

1. 8 single width (700mm wide) extensions, being the end piece of the scaffold. Each extension was 1500mm high and consisted of 3 transoms (or rungs) that were 500mm apart;

2. 12 diagonal braces with blue C-hook couplers on each end that were secured onto the transoms by a spring loaded latch;

3. 12 horizontal braces with yellow C-hook couplers on each end that were secured to the extensions by a spring-loaded latch (ledgers);

4. 3 (570mm x 2400mm) aluminium framed plywood working platforms with a trap-door at one end;

5. 4 castor and leg assemblies;

6. 1 plan brace with green C-hook couplers on each end that were secured to the extensions by a spring-loaded latch;

7. 4 toeboards;

8. 4 outriggers with red markings;

9. 2 (2400mm) internal ladders; and

10. 1 (3000mm) internal ladder.

25. The diagrams of mobile scaffolds displayed on the Kennards website were all the same and they did not actually or necessarily depict the mobile scaffold being hired. For example, on 18 November 2019 the Kennards webpage referring to the 5m single width mobile scaffold, actually depicted a 5m double width mobile scaffold.

26. When erected as designed, the Oldfields 5m single width platform could be constructed to a height of 6m plus the height of the castors. The manufacturer’s instructions required the highest work platform to be installed at a height of 5m with two handrails at 5.5m and 6.0m (plus the height of the castors). In order to comply with the Regulations, the highest work platform could only be installed to a height where there was a risk of a person or object falling no more than 4m, when erected by a person or persons who did not hold a HRWL.

27. In 2019, Kennards had a practice of advising customers who hired scaffolds that if it was to be erected to a height of more than 4m that the customer would need a licensed scaffolder to erect and dismantle it. If the customer asked for the details of a licensed scaffolder, they would be referred to Oldfields who could supply, erect and dismantle the scaffold. At the relevant time, the Kennards website page for the 5m single width scaffold contained the following wording:

A licensed scaffolder is required for the erection, alteration or dismantling of a mobile scaffold where there is a risk that a person or object could fall more than 4 metres from the platform of the structure.

28. For a customer who had supplied their email address to Kennards, the Kennards computer system would send out the Hire Contract Conditions and the Kennards General Safety Brochure once the customer had placed an order. For hire of scaffolds, the system would also send out the Advanced Scaffold Guide. Michael Egan, the branch manager of Kennards at Waverley in 2019, gave evidence that these documents were sent by the Kennards computer system but that the system did not permit retrieval of those emails for the purpose of the proceedings.

29. The order for the hire of a 5m single width mobile scaffold in the Kennards computer system generated a delivery docket for the components referred to in [24] above. A driver would then load the components listed on the delivery docket onto a truck for delivery to the customer.

30. In 2019 it was not common practice for Kennards to supply components that were not listed on the delivery docket.

31. The drivers carried an electronic device referred to as a “PDA”. On delivery, the PDA would display a Customer Alert screen that provided:

All components supplied must be used & erected according to operators instructions*****scaffold over 4m or with a potential fall height of 4m, must be erected/dismantled by a certified person.

32. The customer or the driver was required to select “yes” on this screen to be allowed to proceed. If the driver selected yes, he or she could only do so after explaining the Customer Alert screen to the customer. If the customer selected yes, it was presumed that they had read the Customer Alert screen before doing so.

33. The customer was then asked to sign on the screen of the PDA with their finger below the following words:

By signing below you acknowledge that the hire is provided under and governed by the Hire Contract Conditions and this Hire Schedule certify that the equipment is received in good order and condition and that you have read and understood the Hire Contract Conditions immediately before signing. The Hire Contract Conditions have been agreed with you. If you are an account customer and in any event visit your local Kennards Hire store and online at kennards.com.au.

34. The diagonal braces and ledgers were stored at Kennards in packs of 4, with the C-hook couplers attached to short pieces of aluminium tubing of the same diameter as the extensions. The 1500mm extensions were stored in twos, stacked at double height. There were also 1100mm extensions that were stored the same way as the 1500mm extensions. The 1100mm extensions were referred to as “safety ends” because they provided a handrail for completed scaffolds.

35. In 2019 Kennards had in place a Ready for Hire Procedure (RFHP) with respect to each hired item. In respect of mobile scaffolds, the RFHP required the components to be checked and washed down when they were received back from hire. Relevantly, the C-hooks couplers were to be inspected for damage, corrosion, deformation and to see that they worked correctly. The spring-loaded latch mechanism was required to be opened and attached to a piece of frame tube and checked that it did not become detached from the frame tube using “moderate to heavy force”.

36. There was a RFHP Checklist for scaffold components provided for use at Kennards branches and the RFHP was also depicted in a series of photographs on a placard that was displayed in the yard of the Kennards branch at Waverley where the mobile scaffold components were stored.

37. Mr Egan agreed in cross-examination that the RFHP inspections of mobile scaffold tower components could only pick up obvious defects, but that would include if the spring-loaded latch on the C-hook coupler was not working correctly.

38. In 2019 Kennards did not keep a record of RFHP inspections of equipment, but it did conduct detailed triannual audits of each branch that examined compliance with the RFHPs. The RFHP audit was conducted by randomly selecting 50 pieces of equipment and having the auditors check if they were in fact ready for hire in accordance with the relevant RFHP. Stuart Dean, the Chief Operating Officer of Kennards, gave evidence that the average compliance rate across all branches in Australia with the RFHPs was 92%, meaning that on average, 8% of equipment checked was not ready for hire in accordance with the relevant RFHP. Mr Dean was unaware of the compliance rate for the Waverley branch in 2019.

39. The instructions for the erection of the scaffold were set out on a sticker attached to the underside of the work platforms. The Tower Erection Procedure (TEP) provided as follows:

This procedure is for assembly of towers with platforms typically at 2m intervals, up to 4m high. Only certified scaffolders are allowed to assemble towers over 4m high and must comply with local statutory regulations, which may differ from State to State.

1.   For mobile Scaffolds, insert castors into two base frames and lock (castors may be adjustable). For non-mobile scaffold, insert adjustable bases into two base end frames.

2.   Attach at least one horizonal brace (yellow) to the frame upright just above the first rung with the snap hook facing outwards. The frame is now self-supporting – See Fig. 1.

3.   Add another horizontal brace (yellow) stand up the opposite base end frame and attach the other end of the two horizonal braces (yellow).

4.   Install a plan brace (red) to diagonally opposite uprights below the first rung.

5.   Check that the scaffold base is square – See Fig. 2.

6.   Level the base in both the horizonal and vertical directions by adjusting the castors or base plates with a spirit level.

7.   Install two diagonal braces to stabilise the base frames (typically 2m high).

8.   Install the next end frames on top of each of the two base frames and install the diagonal brace (blue) above and below the joining point of the base end frames.

9.   Install one platform as a temporary platform approximately 1m from the ground between both end frames.

10.   Erect the ladder access platform nominally 1m above the temporary platform which should be staggered. This is part of the first working platform and will act as fall prevention. Install an access ladder through the opening section of platform – See Fig. 4.

11.   Erect horizontal braces (yellow) as guardrails and mid rails for the working platform whilst standing on the temporary platform. See Fig. 4.

12.   Remove the temporary platform and place it above to complete the working platform. The working platform should now include the ladder access platform and the access ladder – See Fig. 5.

13.   If working height is expected to exceed 3 times the least base dimension, outriggers must be fitted. For a 0.7m wide towers outrigger must be fitted where height exceed 2 times the least base dimension. If outriggers are not used then tower is to be stabilised by installing ties to a suitable structure.

14.   Access the first working platform via the internal ladder.

15.   Repeat the above process installing working platforms with ladders at nominally 2m intervals – See Fig. 5.

16.   Install Toeboards at working platform levels.

17.   Tower is now complete with top working platform at 4m height , as shown in Fig. 6.

18.   Before using the scaffold, the scaffold must be checked to make sure that it is built correctly and stands vertical.

If in doubt, ask your supplier.

Events of 9-11 September 2019 – lay evidence

40. As a result of there being a factual dispute as to what occurred in the period 9-11 September 2019, I have set out the evidence of the lay witnesses relevant to this period and will make findings on the evidence later.

Evidence of Cristobal Rivera

41. At 7.00am on Monday 9 September 2019 Mr Rivera arrived at another RSC site at 3 Attunga Street, Woollahra (the Attunga Street site). The defendant told Mr Rivera that he was needed to assist Mr Connell to erect a scaffold at the property. A short time later the defendant drove Mr Rivera and Adam to the property.

42. Mr Rivera gave evidence that the defendant told him that Mr Connell was going to drill a hole in the roof and that they would need to catch the piece of concrete that came out to avoid damaging the air conditioning system underneath. The defendant told Mr Rivera that they were going to install a chimney through the hole in the roof.

43. Mr Rivera gave evidence that he arrived at the property at about 7.40am and that Mr Connell arrived a few minutes later. Mr Rivera gave evidence that the defendant and Mr Connell had a discussion as to where the scaffold was to be erected. When they arrived, the scaffold had not been delivered to site, but it arrived on a Kennards truck a short time later.

44. Mr Rivera gave evidence that the scaffold was unloaded by the truck driver onto the street at the front of the property. By that time there had been discussions as to where the scaffold was to be erected, which was next to the neighbour’s house where the air conditioning system faced the beach. Mr Rivera gave evidence that the defendant, Mr Connell, Adam and himself then carried the components of the scaffold to where the scaffold was to be erected.

45. Mr Rivera gave evidence that there was no SWMS discussed or given to him about erecting the scaffold. He was not given any instructions on how to erect the scaffold from Kennards. There was no specific discussion about the hazards and dangers of erecting the scaffold, but there was a usual instruction given every morning, that if he felt unsafe in doing a task to say something and another way would be found to do the task.

46. Mr Rivera gave evidence that there was discussion to the effect that the scaffold would be built up to get close to where the core hole was to be drilled in the soffit. Mr Rivera gave evidence that he saw the instructions on the work platform of the scaffold but did not read them because he thought he knew how to erect the scaffold. When the scaffold components had been carried down, Mr Rivera gave evidence that they were not checked to see if they were safe to use and he did not notice anything unusual about them.

47. Mr Rivera accepted in cross-examination that he was told by the defendant that the scaffold was being erected to protect the air conditioning unit. He also agreed that the workers did not need to use the scaffold to reach the roof to drill the core hole. Mr Rivera did not accept in cross-examination that the defendant instructed the workers that the scaffold was to be built to a height of no more than 4m or that they were not to use the scaffold for any purpose after it had been erected. To the contrary, Mr Rivera understood that a purpose of erecting the scaffold was to stand on it and catch the concrete core hole and Mr Connell told him to do that.

48. Mr Rivera gave evidence that the defendant stayed for a few minutes while they began to erect the scaffold, before leaving the property.

49. Adam and Mr Rivera passed components of the scaffold to Mr Connell who was putting them together and this included the installation of the handrails. The components were installed by hand and there was a “click” sound when the handrails were put into place.

50. The workers got up to the higher parts of the scaffold by climbing up the outside of the scaffold and installing an internal ladder supplied with the scaffold, on the outside of the extensions. No internal ladders were installed on the scaffold. For the higher levels, the braces and ledgers were passed up through the middle of the scaffold, but the work platforms were passed up on the outside of the scaffold between the wall on the boundary and the scaffold. On occasions this required Mr Rivera to stand on top of the boundary wall to pass up components. Mr Connell instructed Mr Rivera to stand on the wall to pass up components and to pass the work platforms on the outside of the scaffolding, because those actions would make the job easier. When standing on top of the boundary wall, Mr Rivera was 2.7m above the ground of the property and 3.3m above the ground of the neighbouring property. At times he had both feet on top of the wall and at other times he had one foot on the wall and one foot on the scaffold. Mr Rivera gave evidence that he had trouble keeping his balance and that where he was standing was unsafe.

51. Mr Rivera gave evidence that they continued to build the scaffold to the height of about 7m and that it took all morning to erect.

52. Mr Rivera gave evidence that the defendant returned to the property on 9 September 2019 after the scaffold was erected but before they drilled the core hole. In cross-examination, Mr Rivera accepted that he may have been mistaken about the defendant returning to the property on 9 September 2019.

53. After the scaffold was erected, Mr Connell, Adam and Mr Rivera tried to catch the concrete from the core hole. Mr Connell instructed Mr Rivera to stand on the middle work platform and to try to catch the concrete core hole in a bucket. Mr Rivera climbed up the outside of the scaffold using the ladder and held the bucket out with his arms. He tried to position the bucket close to the corner where the hole was being drilled, but there was a gap and he could not get close enough to catch the concrete. The concrete fell into a bin that Mr Connell had put on top of the water heater as a fail-safe.

54. The workers then cleaned up the area and left the property at about 2.30pm. Mr Rivera did not attend the property on 10 September 2019.

55. On 11 September 2019 Mr Rivera was at work at the Attunga Street site when he received a text message from Mr Connell asking for his help to dismantle the scaffold at the property. Mr Rivera agreed, and Mr Connell came and picked Mr Rivera up.

56. When they arrived at the property they went immediately to where the scaffold was. Mr Rivera did not notice any changes to the scaffold, from how it had been left on 9 September 2019.

57. Mr Connell proceeded to the highest level of the scaffold to remove components and hand them down to Mr Rivera. There was no discussion about how to undertake the task safely and Mr Rivera was not given a SWMS for the task of dismantling the scaffold.

58. Mr Rivera stood on top of the boundary wall to receive the dismantled components from Mr Connell. Mr Connell instructed Mr Rivera that he would hand the components of the scaffold down on the outside of the scaffold because that was the best way to undertake the task. Mr Connell instructed Mr Rivera to receive the components and put them on the work platform underneath where Mr Connell was standing.

59. Mr Connell first took off the handrails. At this time Mr Rivera was standing on top of the boundary wall below Mr Connell. Mr Rivera gave evidence that he had trouble maintaining his balance while he was standing on top of the boundary wall but could manage to handle the ledgers and braces in that position.

60. Mr Rivera was balancing on the boundary wall with one foot on the scaffold and the other foot on top of the boundary wall. At this time, Mr Connell tried to pass down the work platform that had been previously installed as the highest work platform of the scaffold. Mr Connell passed the work platform on the outside of the scaffold to Mr Rivera. When Mr Connell tried to pass the work platform down, Mr Rivera said to him that he was off balance. At this time Mr Connell was holding the work platform on the outside of the scaffold trying to transfer the weight of it to Mr Rivera. When Mr Rivera said that he could not take it, Mr Connell tried to hold the weight of the work platform. When he did so he leant on the handrail that was installed on the level he was standing. The handrail gave way and Mr Connell, the work platform and the handrail fell into the neighbouring property. After the fall, Mr Rivera climbed down the scaffold and tried to get to Mr Connell to render assistance.

61. Mr Connell fell over the top of the boundary wall and onto a paved pathway in the neighbouring property suffering serious head injuries which subsequently proved fatal.

62. A partial view of the incident was recorded by a surveillance camera on the side of the house. The footage depicts the lower half of Mr Rivera standing on the boundary wall and receiving the work platform from above him. At times, the work platform is rested on a lower handrail and at others it is not. It appears to be falling away from the scaffold at times. The incident happens quickly and only the work platform and the ledger can be seen to fall towards 14 Longworth Avenue. The footage supports the finding that Mr Connell was standing towards the western end of the work platform above Mr Rivera when he is handing the other work platform down to him. The precarious position of Mr Rivera standing on the boundary wall is clearly depicted and the footage supports his evidence that he was having trouble with maintaining his balance where he was directed to stand by Mr Connell.

63. At the time when Mr Connell fell, Mr Rivera indicated in a record of interview conducted on 10 October 2019 that Mr Connell was standing close to the western end of the work platform in a position that would have been directly above where Mr Rivera was seen to be standing on the video footage.

Credit

64. Mr Rivera gave evidence by audio-visual link from Spain. English was not his first language and at times he used expressions consistent with a slightly different meaning to what I think he was intending to convey. On critical issues he was confident in his evidence in chief. He was prepared to make concessions in cross-examination out of an abundance of caution, but there was some hesitation in those concessions. Overall, I formed the opinion that for the most part, his evidence in chief was more reliable than those concessions. I am satisfied that Mr Rivera was doing his best to tell the truth and I accept his evidence.

Evidence of Blake Sutton

65. Mr Sutton gave evidence that he attended the property on 9 September 2019 at the request of his manager, Mr Broughton, to undertake the work of installing the flue. He arrived at about 7.30am and saw the defendant, Mr Connell and another man were already present. Mr Sutton had met the defendant and Mr Connell when installing the system at the property in 2018.

66. Mr Sutton’s evidence was that he had a discussion with the defendant to the effect that the scaffolding had not arrived on site yet and where the scaffolding needed to be erected. Mr Sutton gave evidence that he told the defendant that the scaffold needed to be as close to the wall as possible to allow for the installation of brackets to secure the flue. Mr Sutton gave evidence that the defendant told him that the defendant would contact him when the scaffold arrived. Mr Sutton gave evidence that he told the defendant that he would come back to the property once the scaffold had been erected and that the defendant told him that he would let him know. Mr Sutton then left the property.

67. Later that day Mr Sutton received a phone call from Mr Connell informing him that the scaffold was completed and ready for him to start the work. When challenged on this point in cross-examination, Mr Sutton denied that he received a call from Mr Broughton to this effect. He recalled it was Mr Connell that called him and that he had recorded that in the statements taken from him in the course of the investigation.

68. At about 7.30am on 10 September 2019, Mr Sutton returned to the property with Baxter King, an installer employed by Devex. Neither the defendant, nor Mr Connell, were on site. Mr Sutton went to where the scaffold was erected and saw that it was on a 45-degree angle to the building with three work platforms in place. He did not see a scaffolding tag on the scaffold.

69. He climbed up the side of the scaffold to the second work platform to see if he could reach the wall where the brackets needed to be installed to hold the flue in place. There were no internal ladders installed on the scaffold. Mr Sutton reached out with the drill but could not reach the wall.

70. Mr Sutton contacted his manager, Mr Broughton to tell him about the problem. He decided to install the lower part of the flue and to feed the pipe sections through the core hole in the soffit and to leave the installation of the brackets to hold the flue in place until another time when he could get access to the wall.

71. Mr Sutton and Mr King accessed the lower platform of the scaffold which was 3.2m above the ground to get access to the top of the water heater to install the lower part of the flue. Mr Sutton and Mr King completed their work at the property at about 11.00am. Before leaving the site, Mr Sutton took some photographs of the work he had done and the scaffold.

Credit

72. Mr Sutton gave evidence in a straight-forward and honest manner. There was no reason to doubt his evidence. I accept that it was possible that his evidence was based on his understanding and assumptions of how the work was to be completed and that this may have differed from the defendant’s knowledge. However, for reasons that I will come to, I am satisfied that his evidence was largely consistent with the objective evidence.

Evidence of Inspector Kevin Murphy

73. At about 9.40am on 11 September 2019, Inspector Kevin Murphy from SafeWork NSW arrived at the property after being told that there had been a fall from height at 14 Longworth Avenue. Inspector Murphy took photographs and measurements and spoke to the defendant.

74. Inspector Murphy located a small piece of the C-hook coupler that had broken off from the end of the ledger on the ground closest to the eastern side of the scaffold. Inspector Murphy photographed the broken piece of the C-hook coupler in situ before moving it to take close-up photographs.

75. Inspector Murphy gave evidence that the rungs on the extensions of the scaffold were 500mm apart. He measured the scaffold from the ground to the top as being 8.65m in height. The scaffold had two work platforms in place, the lowest being 3.2m from the ground and the higher one being 5.15m from the ground.

76. Inspector Murphy identified that a number of the ledgers were installed with the C-hook couplers facing into the scaffold. His understanding was that the C-hook couplers should have been installed facing outwards.

77. He measured the top of the boundary wall as 2.7m above the ground at the property and 3.3m above the ground of 14 Longworth Avenue.

78. Inspector Murphy was told that the working platform and the ledger that fell at the time of the incident, were moved to allow emergency services to get access to Mr Connell to treat his injuries. Those items had been stored on the grass on the harbour side of 14 Longworth Avenue.

79. Inspector Murphy made notes in his official notebook of the information provided to him and measurements he took at the time of his attendance.

80. Inspector Murphy spoke to the defendant. The defendant told Inspector Murphy that he was a builder operating as a sole trader and that the scaffold was erected to install a flue for a heated floor system. The defendant told Inspector Murphy that the SWMS for the site, the induction for the workers and workers compensation records were stored at his office. He told Inspector Murphy that workers were inducted into the site by him on the day before, and he had observed the scaffold being erected, but was not present that morning when the scaffold was being dismantled.

81. Inspector Murphy then made notes about the components used in the scaffold. Inspector Murphy observed that the ledger that detached in the incident had a faulty spring-loaded latch at one end and the C-hook coupler at the other end was broken.

82. Later, Inspector Murphy issued a Prohibition Notice to the defendant and an Improvement Notice. The defendant made arrangements to have the scaffold dismantled by a licensed scaffolding contractor.

Credit

83. There was very little challenge to Inspector Murphy’s evidence. He presented as a truthful witness and I accept his evidence.

Evidence of Jason Stitt

84. A few days before 9 September 2019, the defendant decided to use Mr Connell to install the scaffold at the property because he had experience with that kind of work for RSC. The defendant spoke to Mr Connell on 6 September 2019 and told him that he had to drill a core hole in the concrete roof and stop the concrete core from smashing into the equipment below. He also spoke to Scott Parker from TLH about the work required to be undertaken by Mr Connell.

85. The defendant’s evidence was that he did not know what would happen after the core hole was drilled, because no-one had spoken to him about that, including Mr Crichton. The defendant gave evidence that he arranged to do the work on 9 September 2019 because that is when he told Mr Crichton that he would undertake the work.

86. At about 6.50am on 9 September 2019 the defendant arrived at the Attunga Street site. He told Mr Rivera, who was present, that he would be required to assist Mr Connell to erect a platform at another site. Mr Connell arrived and then drove himself to the property.

84. The defendant drove Mr Rivera to the property. On the way, the defendant told Mr Rivera that he would be assisting Mr Connell to erect “a restricted-height scaffold” and then to drill a core hole in the roof and to protect the equipment below where the hole was to be drilled.

85. The defendant and Mr Rivera arrived at the property at about 7.30am. Mr Connell and Adam arrived shortly afterwards. The defendant unlocked the security gate and walked to where the scaffold was to be erected with the three workers.

86. The defendant then gave the following evidence in chief:

Q.   What did you do then?

A.   I gave them a full risk assessment over what we like to call a SWMS (said as “swims”) on working at heights over 2 metres. So I basically – I did not have a copy of the SWMS, but I – because I write it, I know exactly word for word what it says.

…

Q.   What did you say to them?

A:   I said to all three of them, once we got to the area, we had to erect a restricted-height scaffold, so we’re work – this is known as working at heights over 2 metres. So I’ve taken them through the risk, the SWMS, which is involved at working at heights over 2 metres. So if you look at our recommendations in our SWMS, it shows exactly what I had to show to them. I had to show what were the risk: the biggest risk was falling.

Q.   What instructions did you give them in relation to erecting the scaffold?

A.   The clearest of clear instructions was they were to assist Todd Connell.

Q.   To do what?

A.   To build a restricted-height scaffold.

Q.   How?

A.   How? Mr Rivera was to pass in the components, and he was not to enter the scaffold.

90. The defendant gave evidence that he instructed the workers to erect the scaffold on an angle to protect the equipment underneath where the hole was to be drilled and to put the platform just above the water heater which was about 2.8m above the ground. It had to be installed on an angle because of the position of the aluminium louvre housing for the equipment. He gave evidence that it was “obvious” that the platform could not be above 4m, because that was what was being delivered.

91. The defendant gave evidence that he instructed the workers to install two platforms, one just above the equipment and one at 4m to be used to catch the debris from the core hole being drilled. The defendant had also taken a garbage bin with insulation inside it to be used to catch the debris. It was intended that it would be wedged into the corner using some cross-braces.

92. The defendant gave evidence that he instructed the workers to erect the scaffolding in accordance with the SWMS “Use Mobile Scaffold” which included instructions that the scaffold could only be erected to a height of 4m and in accordance with the manufacturer’s instructions. The defendant gave evidence that he also took the workers through the SWMS “Working at heights over 2 metres”. The defendant gave evidence that the TBT at the site where the scaffold was to be erected took “a good 15-20 minutes”.

93. The defendant gave evidence that he then took Mr Connell up onto the roof to show him where the core hole was to be drilled. When he was finished, he went back down to where the scaffold was to be erected and found Mr Rivera and Adam staring at the harbour. He gave evidence that he went through the systems with them again.

94. At about 8.30am the Kennards truck arrived to deliver the scaffold. The defendant described that the braces were usually delivered in packs of four with the C-hook couplers attached to a piece of tubing.

95. The defendant gave evidence that at some time Mr Sutton arrived and they had a brief conversation. He told Mr Sutton that he was there to put the core hole in the roof. He said Mr Sutton looked perplexed and that he said to Mr Sutton, “look, I don’t know anything about why you’re here”, because he did not contact him. Mr Sutton asked him about where the core hole was going and the defendant told him. The defendant gave evidence that there was no further discussion. He thought that the discussion with Mr Sutton occurred just before he and Mr Connell got onto the roof.

96. The defendant gave evidence that he left the site at about 9.00am and from that time on, Mr Connell was in charge. He went back to the Attunga Street site. Mr Connell called the defendant in the mid-afternoon (about 2.00pm or 2.30pm) to say that he had drilled the core hole successfully and that they were cleaning up. He told Mr Connell to go to the Blake Street site the next day to continue the work he had been doing the week before. The defendant did not expect the scaffold to be dismantled on 9 September 2019 because it was close to the end of the day when the core drilling was completed. Kennards had advised that they could not pick up the scaffold the following day, so the defendant was content to leave it in place until 11 September 2019.

97. The defendant gave evidence that he did not return to the property or see the scaffold until after the incident on 11 September 2019. He could not understand the height of the scaffold when he saw it because it was taller than the mobile scaffold tower that he had ordered and must have contained additional components.

98. On 11 September 2019, the defendant instructed Mr Connell to return to the property to dismantle the scaffold. He instructed Mr Connell over the telephone to follow the SWMS in reverse, that Mr Rivera would give him a hand and that Mr Connell was the only one to be on the scaffold. The defendant gave evidence that he instructed Mr Rivera to assist Mr Connell in dismantling the scaffold and to take it to the front of the property to be collected by Kennards.

99. The defendant gave evidence that he did not have any discussions with anyone from Devex. He gave evidence that if he had understood that he was installing a scaffold for the purpose of installing the flue that he would have contacted a licensed scaffolder to install modular scaffolding because it would have been much higher than 4m. He expected that it would have cost about $7,000 to supply, install and dismantle that kind of scaffold.

100. The defendant gave evidence that he understood Mr Connell to be highly experienced at erecting restricted-height scaffolds, estimating that he would have erected between 50-100 scaffolds on sites controlled by the defendant over the years.

101. In cross-examination, the defendant denied that Mr Crichton told him what was required by Devex to install the flue, stating that they only spoke about drilling the core hole in the roof. He denied that he was not telling the truth when he gave evidence that he only hired the scaffold for the purpose of protecting the equipment underneath the core hole. He denied that before 9 September 2019 that he knew that Devex required the erection of scaffolding for the installation of the flue components to the wall of the house.

102. The defendant accepted that it was possible to erect the 5m single width mobile scaffold that he hired from Kennards to a height of more than 4m, and that would have required the involvement of a licensed scaffolder. The defendant accepted that Mr Crichton would not have had an issue with the cost of using a licensed scaffolder, if the defendant thought that it was necessary to do so.

103. The defendant accepted that he would have been required to use a licensed scaffolder if he had been asked to provide scaffolding for the purpose of installing the flue but maintained that those were not his instructions.

104. The defendant agreed that after the incident he was called to the property, met with Inspector Murphy and answered some questions. He agreed that he provided his contact details to Inspector Murphy and told him that he was a builder, operating as a sole trader. He denied telling Inspector Murphy that the scaffold was erected to install the flue for a heated floor system, stating that he did not recall saying that. He agreed that he told Inspector Murphy that Mr Connell was a labour hire worker and that he had been using TLH to supply workers for 7 years. He agreed that he told Inspector Murphy that the SWMS, induction material and workers compensation details were kept in his office. He agreed that he told Inspector Murphy that Mr Connell was not a licensed scaffolder.

105. The defendant agreed in cross-examination that he told Inspector Murphy that the scaffold had been erected to install the flue because:

That was a simple explanation of why the scaffold was there, there was (sic) several tasks had to be performed to put a flue in. Our task was to put a core hole in, but there was no mention of the scaffold for anybody else to use.

106. The defendant accepted that he did not explain his position to Inspector Murphy, partly because the conversation happened shortly after the incident. He reiterated, in his evidence, that the scaffold was not set up for Devex to use, because he did not speak to anyone from Devex.

107. The defendant accepted that he told Inspector Murphy that he was present when the scaffold was erected on 9 September 2019, but he only stayed for a few minutes and saw Mr Connell and Mr Rivera setting out the base of the scaffold.

108. The defendant gave evidence in cross-examination that the SWMSs prepared by him were “site-specific”. He agreed that they were generic SWMSs that bore the address of the property and his evidence was that made them site-specific. He accepted that the documents were not amended to include risks specific to the location of the work on the boundary between the two properties. He agreed that he did not prepare a SWMS to deal with the erection of the scaffold on 9 September 2019, incorporating the unique features of where it was to be erected.

109. In cross-examination, the defendant gave evidence that after the workers had finished their assessment of the site being over 2m, he gave site specific instructions as to where he wanted the outriggers and the braces of the scaffold put. He denied that there was very little instruction as to how the scaffold was to be erected, stating that his earlier evidence was that they spoke for about 30 minutes about how the scaffold was “to be erected site specific”.

110. The defendant denied that Mr Sutton told him that the scaffold was required for the Devex workers to attach the flue to the wall, accepting that Mr Sutton may have told Mr Connell that. He denied telling Mr Sutton that the scaffold had not arrived on site yet, or that he would let Mr Sutton know when it was erected. He disagreed that Mr Sutton said he would be back when the scaffold was erected.

111. The defendant gave evidence that his conversation with Mr Sutton was brief and he said:

We’ve got to put a core in. I don’t know what you are doing here.

112. The defendant gave evidence that he was annoyed by Mr Sutton’s presence and he did not seek any explanation from him.

113. The defendant denied the proposition that he did not go through the SWMS with the workers on 9 September 2019. He accepted that he and the workers knew that the TEP was on a sticker on the underside of the work platform and that he provided no express instructions on how to erect the scaffold because the SWMS directed the workers to follow the manufacturer’s instructions.

114. The defendant denied coming back to see the scaffold on 9 September 2019 after it was erected. He denied that the scaffold was left in place for the Devex workers to use, stating that Mr Connell was required at the Blake Street site the following day and that’s why the scaffold was left erected and not dismantled on 10 September 2019.

115. The defendant stated that he regularly reviewed the SWMS and signed them after each review. The documents did not disclose what, if anything, was amended at those times. The defendant gave evidence that the content of the SWMSs was not changed. He explained that where the SWMS relating to the erection of a mobile scaffold indicated a signature had been applied to it on 9 February 2015, 15 February 2016 and 13 February 2017 bore a reference to the 2017 Regulations which came into force on 29 September 2017, that the document “might have been updated in the office”.

Credit

116. In assessing the defendant’s evidence, I am required to warn myself that there is no obligation on the defendant to prove any fact or issue that is in dispute. The burden of proving the offence always rests with the prosecutor. The defendant is presumed to be innocent until the prosecutor persuades the Court that the defendant is guilty beyond a reasonable doubt. The fact that the defendant gave evidence does not alter the burden of proof. The defendant does not have to prove that his version of events is true.

117. The defendant’s evidence came across as being largely reconstructed from established events and contemporaneous documents. As a witness, he appeared to be very reactive to evidence from other witnesses or sources that he believed supported his case.

118. His evidence contained a number of internal inconsistencies. For example, as set out at [90] above, the defendant gave evidence that it was “obvious” that the scaffold could not be erected to a height of more than 4m, because that was the package that was being delivered. However, he knew by reference to the Kennards documents that evidence was not true. It was not until cross-examination that he conceded that he knew that the 5m single width mobile scaffold package that he ordered from Kennards could be erected, in accordance with the manufacturer’s instructions, with the highest work platform installed at a height of 5m.

119. He presented as an advocate for his own cause and gave the impression that he had an interest in giving the evidence that he did. An example of this was his multiple uses of the term “restricted-height scaffold” when giving evidence. This is not a term defined by the legislation and there was no evidence from any other witness that it was a term ordinarily used by the defendant. For example, it was not put to Mr Rivera that it was a term ordinarily used by the defendant. It was not a term used by the defendant in his conversation with Inspector Murphy. My firm impression was that the defendant employed the term in a manner to persuade me that it was a term that he regularly used and was understood by the workers to mean a scaffold that could be erected without the engagement of a licensed scaffolder.

120. The defendant’s evidence lacked meaningful content on a number of critical topics. For example, when the defendant was asked to tell the Court what he told the workers about erecting the scaffold on 9 September 2019 his evidence was imprecise and was comprised of a number of high-level assertions including the following. The defendant gave evidence that he was able to take the workers through the content of the SWMSs in detail, notwithstanding that he did not have the documents with him, because he was the author of both of the documents and knew them intimately. Despite this assertion, he did not give any answer in evidence that relayed the content of either document. In other words, his evidence did not rise above the assertion that he conveyed the content of the SWMSs to the workers. When pressed for what instructions he gave the workers, he responded, “the clearest of clear instructions”.

121. The defendant gave evidence that demonstrated a lack of understanding of relevant legislative requirements, including the following. First, the defendant gave evidence that he instructed the workers to erect the scaffold with the lowest work platform just above the equipment (about 2.85m above the ground) and the second and highest work platform at a height of 4m. This involved a risk of a person or object falling more than 4m into 14 Longworth Avenue, because the ground level of the neighbouring property was 600mm lower than the property. Accordingly, the instructions given by the defendant related to “scaffolding work” as defined by the Regulations and that work could only be done by a licensed scaffolder. Second, the defendant gave evidence quoted at [87] above, that conflated the tasks of conducting a risk assessment and instructing workers on the content of SWMSs. Third, the defendant gave evidence that demonstrated that he did not understand the obligations in clause 300 of the Regulations for the SWMS for high risk construction work to be prepared taking into account the circumstances of the particular workplace. The defendant’s evidence was that the SWMSs used by him were “site-specific” because he recorded the address of the property on them, but he accepted that they were generic documents and were not amended to take into account the risks presented by the location of the work at the property.

122. I am satisfied that the defendant made two prior inconsistent statements to Inspector Murphy. First, that the scaffold was erected for the purpose of installing the flue. And second, that he observed the scaffold being erected. I do not accept his evidence that tried to explain these statements in a manner that was consistent with his evidence.

123. I do not accept that the SWMS “Use Mobile Scaffold” presented and relied on by the defendant was an authentic document. On its face, the document sought to convey that it had it had been compiled and reviewed by reference to the 2017 Regulations on a number of occasions before those Regulations came into existence and or force. I do not accept the defendant’s explanation for this anomaly, that it was a result of an update in the office.

124. In my view, the defendant’s evidence was untruthful in a number of respects. Bearing in mind the onus of proof, that is not sufficient to establish his guilt. I am required to put those aspects of his evidence to one side and to decide on the basis of the evidence in the prosecution case if the offence is proven beyond reasonable doubt.

Expert evidence

The cause of the incident – opinion of Dr Helliar and Professor Cortie

125. The defendant retained Dr Allan Helliar, a metallurgist and mechanical engineer to provide an expert opinion on the cause of the failure of the ledger.

126. The prosecution retained Emeritus Professor Michael Cortie, a metallurgical, materials physics and nanotechnology consultant to respond to the evidence of Dr Helliar.

127. Both Dr Helliar and Professor Cortie were highly qualified. They gave concurrent evidence and were exemplars of highly professional expert witnesses. In the end, they agreed on all but one factual issue which I am in a position to determine taking into account all of the evidence. As a result of the extent of their agreement, it is not necessary to set out their evidence in detail, but it is sufficient to summarise their evidence by setting out a series of propositions.

128. The main question the experts were asked to address was whether the initiating cause of the incident was the fracture of the C-hook coupler due to a previously undetectable metallurgical fault in it.

129. By the end of their evidence, the experts agreed that the C-hook coupler broke by reason of the bending force applied to it following the detachment of the C-hook coupler at the other end of the ledger by reason of the faulty spring-loaded latch. In other words, the fracture of the C-hook coupler was a consequence of the incident, rather than the initiating cause of it.

130. The experts agreed that the C-hook coupler with the faulty spring-loaded latch detached from the extension first, as a result of the force applied to it by Mr Connell. The experts agreed that this initiating event would not have been possible if the C-hook coupler had been installed facing outwards, in accordance with instruction 2 in the TEP.

131. Clause D6.1 of the Australian Standard Scaffolding Part 3: Prefabricated and tube-and-coupler scaffolding AS 1576.3:2015 (the Australian Standard) required that the ledger was to be capable of withstanding a horizontal force of 1100 Newtons or 110kg when installed. In the event that the C-hook coupler was installed facing inwards, the spring-loaded latch was required to resist that amount of force and both experts assumed that, as manufactured, the spring-loaded latch would have been capable of doing so. Professor Cortie described that amount of horizontal force as significant and unlikely to have been exerted on the facts as known to him. He gave evidence that assuming Mr Connell weighed 85kg and the work platform weighed 25kg, for a total of 110kg, Mr Connell would not have been exerting 110kg of horizontal force on the ledger because when he was standing, most of the force of his weight was exerted as downwards force rather than horizontal force. Dr Helliar agreed with this analysis. On this basis, the experts agreed that either the spring-loaded latch was faulty prior to being installed or that it was not properly attached when the scaffolding was erected. Both experts agreed that the simplest and thereby the most probable explanation was that the spring-loaded latch was in the same faulty condition at the time it was installed as it was when it was located after the incident, because the fault explains what actually occurred in the incident, that is, that the spring-loaded latch detached. Taking into account all of the evidence, I am satisfied that the spring-loaded latch was faulty at the time that it was installed and was not capable of functioning as intended by reason of the fault in it. I find that the fault in the spring-loaded latch was readily observable at the time that it was installed. I find that it became detached from the extension as a result of the weight applied to the ledger by Mr Connell leaning against it while trying to control the passing of the work platform to Mr Rivera. I am satisfied that this occurred notwithstanding the requirements of Kennards’ RFHP relating to the scaffold. It is clear from the evidence of Mr Dean that the RFHPs were not 100% effective and not every piece of equipment available for hire was subjected to an audit. Further, for the reasons at [194]-[197] relating to the mistaken supply of additional components for the scaffold, I am also satisfied that Kennards’ systems could and did breakdown from time to time.

Conclusion on Issue 2

326. I am satisfied beyond reasonable doubt that the defendant’s failure to take the steps in [16](a), (b), (c) and (e) of the Summons were each a significant or substantial cause of Mr Connell being exposed to a risk of death or serious injury.

Orders

327. The orders I make are as follows:

1. I find the defendant guilty of the s 32 offence.

2. The matter will be listed for sentence on a date convenient to the parties.

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Decision last updated: 01 July 2024