Workplace Health and Safety v Z Group Pty Ltd and Menso
[2017] QMC 12
•11 July 2017
MAGISTRATES COURT OF QUEENSLAND
CITATION:
Workplace Health & Safety v Z Group Pty Ltd & Menso [2017] QMC 12
PARTIES:
Workplace Health & Safety Officer Ian Williamson
(Complainant)v
Z Group Pty Ltd (Defendant 1)
And
Susan Menso (Defendant 2)
FILE NO/S:
MAG-0021 6732/15(4) and MAG-0021 6872/15(1)
DIVISION:
Magistrates Court
PROCEEDING:
Criminal prosecution
ORIGINATING COURT:
Brisbane Magistrates Court
DELIVERED ON:
11 July 2017
DELIVERED AT:
Brisbane Magistrates Court
HEARING DATE:
5, 6, and 7 June 2017
MAGISTRATE:
A C Thacker
ORDER:
Complaints are dismissed
CATCHWORDS:
WH&S Act – due diligence – reasonably practicable – no case to answer – self-represented
COUNSEL:
Mr MJ Drysdale instructed by WH&S
SOLICITORS:
(The defendants were not represented by lawyers)
Introduction
These proceedings arise from complaints made for the period 1 March - 8 March 2015 while the defendant company, Z Group Pty Ltd, (Z Group) was undertaking the construction of a ten storey building situated at 68 Cordelia Street, South Brisbane (the workplace). The defendant Susan Menso was the sole director of Z Group and was responsible for the construction as the nominee for the company and for the workplace.
The complainant and other Work Health & Safety officers (WH&S officers) involved themselves at the workplace during early March 2015 with concerns about aspects of the workplace related to the perimeter fencing containing the workplace from unauthorised access. It was not in contest that there was fencing around the entirety of the workplace including hoarding at the front, brick fence and block fence and temporary retention fencing. Rather, the complaint alleges the fencing was not adequate. The complaint also alleges there was no fencing around the crane pit within the workplace. The complaint also relates to the excavation work conducted within the workplace. The complaint does not rest on any accident or near accident having occurred. Rather the complaint focusses on an alleged omission by the defendants to obtain a geotechnical report to ensure the excavation work and the excavated workplace was safe. The defendants plead not guilty to the complaints made against them and there has been a trial conducted.
The Complaints
On 18 September 2015 Ian Williamson, an authorised WH&S officer (the complainant), made his complaint that Z Group had breached section 32 of the Work Health & Safety Act 2011 (WH&S Act) between 1 March and 8 March 2015 and that the breach “exposed persons to the risk of serious injury.”
On 22 September 2015 the complainant added another complaint that Susan Menso had breached section 32 of the WH&S Act between 1 March and 8 March 2015 and the breach “exposed persons to the risk of death or serious injury”.
In each complaint essentially (though badly drafted with typographical inaccuracies and / or inconsistencies) the defendants are charged with placing workers and members of the public at risk of death or serious injury due to the risk of -
(a) Falling into the excavation as a result of inadequate perimeter edge protection or guard rail;
(b) Falling into and / or being trapped by the collapse of an excavation wall face and / or adjacent infrastructure;
(c) Workers in the excavation being struck by a falling thing dislodging from the excavation wall face or adjacent infrastructure.
In each complaint the charges add particulars alleging the defendants did not ensure, so far as was reasonably practicable, the health and safety of people because they failed to (and I quote from paragraphs 8 and 9 of the complaints) –
(a) Erect adequate perimeter guard rail, fence or other form of edge protection to ensure persons in proximity to the excavation were excluded from its edge and the risk from the hazard of fall from height was controlled; and / or
(b) Install temporary retaining wall, for example an Anchored Pier and Panel System or a Contiguous Piled Wall to control the hazard of an excavated wall face or adjacent infrastructure collapsing; and /or
(c) Install temporary retaining wall, for example an Anchored Pier and Panel System or a Contiguous Piled Wall to control the hazard of a falling thing, for example a part of the excavation wall or adjacent infrastructure, from dislodging and falling on to a person working in the excavation; and / or
(d) Install edge protection for a smaller excavation within the main excavation at the workplace to control the risk of a fall from height to workers in its vicinity by excluding them from its edge.
The complainant’s case is that each of these control measures could have been implemented because the defendants knew or ought to have known of the risks and available controls as detailed in the Soil Surveys Geotechnical Investigation Report dated October 2014 commissioned by or on behalf of the defendants.
The complainant further particularises the failure of Susan Menso to exercise due diligence to ensure Z Group, as far as reasonably practicable, complied with its duty because she failed (and I quote from paragraph 15 of the complaint against her) –
(a) By authorising or directing or permitting bulk excavation works to be commenced and undertaken at the workplace without adequate installation of temporary retaining walls to control the hazard of an excavated wall face, adjacent infrastructure or a part thereof collapsing; and / or
(b) To take reasonable steps to develop and implement work procedures for the consideration of geotechnical investigative report in respect to the workplace, particularly to ensure Z Group Pty Ltd complied with its duty under the Act when undertaking bulk soil excavation works, by ensuring the company implemented the geotechnical report recommendations or adopted other recommendations equal to or higher than the stated controls to prevent an excavated wall face or adjacent infrastructure collapsing; and / or
(c) To gain an understanding of the nature of Z Group Pty Ltd’s undertaking and ensure it had developed and implemented adequate systems of work for the protection of persons in proximity to the bulk soil excavation at the workplace to ensure such persons were excluded from its edge and the risks of fall from height were controlled; and / or
(d) To develop adequate systems of work to ensure controls were decided on and implemented when excavation works were undertaken within the large excavation at the workplace.
The Law
The prosecution bears the onus of proving beyond reasonable doubt the elements of the complaints. It is important to first consider the legislative provisions creating the section 32 Act offence under the WH&S Act. It is a 2011 Act relatively new and, according to its opening paragraph intended to provide comprehensively for work health and safety.
The WH&S Act contains objectives which the court must take into consideration: see Simpson Design & Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316 at paragraphs [79] – [102]. Section 3 WH&S Act provides the objectives of the Act as follows –
(1) “The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—
(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and
(b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and
(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons
(d) conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and
(e) promoting the provision of advice, information, education and training in relation to work health and safety; and
(f) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
(g) ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and
(h) providing a framework for continuous improvement and progressively higher standards of work health and safety; and
(i) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland.
(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.” (My emphasis added given this case involves consideration of the phrase “reasonably practicable”.)
In section 13 the Act introduces the concept that principles will apply to all duties that persons have under the WH&S Act. Section 17 then sets out what is expected to manage risks, as follows –
“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.”
Sections 17 and 18 provide for what is “reasonably practicable”. In particular, section 18 provides an objective description of the phrase, as follows -
“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Section 19 goes further to stipulate what is the primary duty of care of persons in the position of the defendants. They must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by them; and also workers whose activities in carrying out work are influenced or directed by them: section 19(1)
Pursuant to subsection (2) they must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
Section 19 continues on to provide that -
(1) 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 and maintenance 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
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; 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.
Sections 20 – 26 ensure that persons in the position of the defendants also “ensure, so far as is reasonably practicable” that the management and control of the workplace, the fixtures, fittings and plant, as well as the design, manufacture or installation, construction or commission of plant or structures are without risks to the health and safety of any person.
High Court of Australia case law also assists with considering the meaning of the term “reasonably practicable”. In particular my attention is drawn to Slivak v Lurgi (Australia) Pty Ltd [2001] 205 CLR 304 at paragraph 53 - 54 where Gaudron J considered the meaning of the phrase “so far as is reasonably practicable” in South Australian worker related legislation, as follows -
“…..The words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
·the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible"[1];
·what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time[2];
·to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.
For present purposes, what is reasonably practicable has to be considered at the time the tower was designed. Moreover, when considering what is reasonably practicable for the purposes … of the Act, it is relevant to consider that, in the ordinary course, the designer of a structure will have little or no control with respect to the work practices or the workmanship of those who undertake its construction. And it is also relevant to consider what may reasonably be expected of those persons. However, as will later appear, these are not the sole considerations.”
[1] See, for example, Edwards v National Coal Board [1949] 1 KB 704 at 712 per Asquith LJ; Marshall v Gotham Co Ltd [1954] AC 360 at 377 per Lord Keith of Avonholm; Auckland City Council v NZ Fire Service [1996] 1 NZLR 330 at 337-338 per Gallen J.
[2] See, for example, Edwards v National Coal Board [1949] 1 KB 704 at 712 per Asquith LJ; Marshall v Gotham Co Ltd [1954] AC 360 at 370 per Lord Oaksey, 377 per Lord Keith of Avonholm; Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 at 118 per Hansen J.
I accept Gaudron J’s observations are particularly relevant because the complainant relies heavily on the Soil Surveys Geotechnical Investigation Report dated October 2014 (exhibit 6) commissioned by or on behalf of the defendants before any work at the workplace had commenced. Also because the complainant and WH&S officers chose not to place any reliance on the expertise of Susan Menso as the construction supervisor and experienced constructionist with no history of mishap at any of her workplaces in her 13 year construction history.
The risk for the commission of a section 32 WH&S Act offence is a risk of death or serious injury. The word “risk” is not defined in the WH&S Act. The occurrence of actual death or serious injury is not an element of the offence.
Susan Menso drew my attention to Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 at the dissenting judgement of Heydon J where he reminded parties that “it was for the prosecution to establish beyond reasonable doubt that there were reasonably practicable measures open to the appellant” (as defendant) to comply with its obligations as a fluid obligation. Her emphasis, as I understood her, was on consideration of events and her control and management of the workplace after the excavation works actually commenced. In this regard, I notice that Section 27 imposes on persons in the position of Susan Menso a duty to exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.
Section 27(5) provides that in this section -
due diligence includes taking reasonable steps—
(a) to acquire and keep up-to-date knowledge of work health and safety matters; and
(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and
(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act;
Example—
For paragraph (e), the duties or obligations under this Act of a
person conducting a business or undertaking may include—
• reporting notifiable incidents
• consulting with workers
• ensuring compliance with notices issued under this Act
• ensuring the provision of training and instruction to workers about work health and safety
• ensuring that health and safety representatives receive their entitlements to training.
and;
(f) to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).
In the circumstances of this case it is also relevant to be mindful of section 29 which imposes duties on other persons at the workplace, as follows -
A person at a workplace, whether or not the person has another duty under this part, must—
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.
Within the comprehension of these above sections then, the defendants are charged with failure to comply with a health and safety duty in breach of section 32 which provides as follows –
A person commits a category 2 offence if—
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
The Work Health & Safety Regulation 2011 also impose relevant duties for consideration:
Section 35 provides for management of risk, as follows -
A duty holder, in managing risks to health and safety, must—
(a) 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—minimise those risks so far as is reasonably practicable.
Section 305 provides for management of risks to health and safety associated with excavation work, as follows –
(1) A person conducting a business or undertaking must manage risks to health and safety associated with excavation work under part 3.1 (which is inclusive of section 35 quoted above)
(2) The risks this section applies to include the following –
(a) a person falling into an excavation;
(b) person being trapped by the collapse of an excavation;
(c) a person working in an excavation being struck by a falling thing;
(d) -
(3) In complying with subsection (1), the person must have regard to all relevant matters including the following—
(a) the nature of the excavation;
(b) the nature of the excavation work, including the range of possible methods of carrying out the work;
(c) –
The excavation at the workplace comes within the definition of “trench” in the legislation. Section 306 provides for additional controls related to trenches, as follows -
(1) A person conducting a business or undertaking, who proposes to excavate a trench at least 1·5m deep must ensure, so far as is reasonably practicable, that the work area is secured from unauthorised access (including inadvertent entry).
(2) In complying with subsection (1), the person must have regard to all relevant matters including—
(a) risks to health and safety arising from unauthorised access to the work area; and
(b) the likelihood of unauthorised access occurring.
(3) In addition, the person must minimise the risk to any person arising from the collapse of the trench by ensuring that all sides of the trench are adequately supported by doing one or more of the following—
(a) shoring by shielding or other comparable means;
(b) benching;
(c) battering.
(4) Subsection (3) does not apply if the person receives written advice from a geotechnical engineer that all sides of the trench are safe from collapse.
(5) An advice under subsection (4)—
(a) may be subject to a condition that stated natural occurrences may create a risk of collapse; and
(b) must state the period of time to which the advice applies.
The Prosecution case and discussion of prosecution witnesses’ evidence
The chronology of events relevant to this case as best I gleaned them from rather slim evidence about timing, are as follows:
2014
4 September Soil Surveys Engineering Pty Ltd letter to Susan Menso about their geotechnical investigation at the proposed workplace for an expected “bulk excavation of approximately 6.0m”: Exhibit 4.
The Authority to Proceed addressed to Soil Surveys Engineering Pty Ltd was signed by Susan Menso: exhibit 5
OctoberSoil Surveys Engineering Pty Ltd Geotechnical Investigation Report on 68 Cordelia Street, South Brisbane is provided to Susan Menso: Exhibit 6. It is a relatively limited report based upon investigations at two boreholes at the workplace. The report has qualifications contained in assumptions made and also a section headed “Limitations”.
2015
22 or 23 February
John Riga Structural engineer attended the workplace, made observations, had a conversation with Susan Menso. Gave evidence he mentioned a risk hazard in one part of the excavation to Susan Menso and she said she’d get onto it. He had no other concerns.
1 March Sunday and the date the complainant alleges the defendants’ breaches commence. At this time the workplace was substantially excavated to a depth in parts of about six metres.
2 March1:30pm WH&S Officer Andrew McKenna attended the workplace with WH&S Officer Darren Hayden. Darren Hayden says he took some photographs at the workplace: exhibit 1
3 March Darren Hayden serves a Prohibition Notice on Susan Menso by email. This effectively stops the workplace from operating.
WH&S office engages John Daly of Morrison Geotechnical Pty Ltd to inspect the workplace.
5 MarchJohn Daly attends the workplace. He observes and reports that previous failure of a part of the excavation wall had been meshed and shotcrete installed.
WH&S Officer Ian Williamson attends the workplace. He says he was present when Darren Hayden took photographs of the workplace: exhibit 3
1:47 pm Darren Hayden phones Susan Menso leaving a message to effect “Can you return my call…we have some concerns.”
Per Ian Williamson evidence: “Before 3.00pm” John Daly attends the workplace.
4.40pm Darren Hayden phones Susan Menso again and leaves a more urgent message to return his call.
Fencing contractors engaged by WH&S officers arrive and construct a temporary perimeter fence on the outside of the boundary fences at the workplace. They work in the dark to complete the work.
6 MarchDefendant upon the recommendation of Rhys French scaled down excavation walls to prevent any debris(if any) from falling down and also to show the walls were safe: T 1-76
23 MarchReport authored by WH&S officer Darren Hayden.
Cameron Johnson gave evidence that he was employed by Soil Surveys Engineering Pty Ltd. He gave evidence about the Soil Survey Report he authored in October 2014 (exhibit 6) and agreed that aspects of his report would be generic as recommendations have to be made “to cover all eventualities.” His opinions where they were based upon looking at photographs contained in exhibits 1 and 3 are necessarily of limited utility and I disregard that evidence. However, the major concern I have with the evidence of this witness, including his report is that neither his evidence nor the report identifies assessment made for “no risk” as compared to assessment for “best practice” and assessment required to cover “basic requirement” options or the like considerations. These are matters relevant to the decision as to whether or not the defendants have breached the legislative qualification on their duties and the allegation that they failed to undertake activity that was “reasonably practicable”.
Andrew McKenna, an investigator with WH&S gave evidence he attended the workplace on Monday 2 March 2015. He is an investigator with some 20 years’ experience with WH&S. He clearly had some trouble transitioning from the previous regime to the WH&S Act regime introduced in 2011 as he continually referred to “Workplace Health and Safety”.
His first impression approaching the site was a “hoarding along the street, front boundary. It was a solid hoarding. There was an opening on the southern side. We entered through the opening”: T1-9. He saw workers in the excavation including “a number of workers towing steel in preparation for moving a steel cage into the lift pit – the tower crane pit”: T1-9.
He visited the site this once. He made observations and had conversation with Susan
Menso. He saw the excavation at “about four and a half metres deep at the front” of the workplace: T1-20 He spoke to Susan Menso about the pit for the tower crane base and she “arranged for some pink high-vis tape to be put around that excavation” as a temporary control measure: T1-20 to 1-21. He spoke with Susan Menso about a number of risk factors: people falling into the trench, excavation collapse, access into the workplace and there was dispute between them about battering, shoring or benching or having an engineer’s certificate showing that the excavation was safe to enter: T 1-21 Susan Menso provided him with the contact details of her engineer John Riga. He gave all of this evidence looking at the exhibit 1 photographs and did not refer to having made any notes or written report contemporaneous with his visit.
Importantly, under cross-examination Andrew McKenna agreed -
· That it was possible the complaints about the workplace had come from the CMFE Union;
· That he did not look at the footings under the brick wall and how that wall was built;
· He did not contest the adequacy of the brick wall and concreted-in fencing between the rear neighbouring garage and the workplace: T1-25;
· He agreed there was temporary fencing around the boundary and then along the edge of the excavation a dog wire-type fence with power webbing on it: T1-29;
· He agreed that he had known Susan Menso for nearly 14 years and that she had never to his knowledge had a death, injury or accident on any of her jobs: T1-29;
· He agreed that some of the complaints would have come from the CMFE Union and that he had never been to any other job 59 times in a 12 month period;
· He stated that he did not believe she deviated from the plans in terms of depth: T1-34
His evidence to the Court relied heavily and almost exclusively on the photographic evidence in exhibits 1 and 3. This evidence became problematic when Susan Menso objected that at least some of the photographs were taken on perhaps the 8 March and not as alleged on the first visit to the workplace on the 2 March.
In particular, the photographs of the excavated wall containing double mesh and shotcrete were relied upon without certainty as to dates. In any event the photographs show the pins securing the mesh and the mesh did hold all but some small amounts of shotcrete that fractured. This evidence cannot be relied upon as there is so little evidence of actually when the fracturing of this small area occurred.
2 March 2015 was Andrew McKenna’s only visit to the workplace and I find that so far as this visit was concerned while they had their different opinions, Susan Menso, on his evidence responded to his concerns and immediately fixed some and referred him to John Riga regarding collapse of the excavation concerns.
I find that because of the extent to which Andrew McKenna’s evidence was reliant on looking at and describing photographs I am not satisfied that he was giving evidence related to the workplace on 2 March 2015.
The complainant Ian Williamson gave evidence he attended the workplace on Thursday 5 March 2015. It was his first visit there. He relied on the photographs in exhibits 1 and 3 to give his evidence. These photographs were again contested as to relevance by date by Susan Menso who was able to support her contention with reasons related to the work conducted at the time: T 1-45
Ian Williamson did not conduct a methodical inspection of the workplace.eg. when asked did he make an inspection of the brick wall he could only say that he looked at it. He did not go to it or behind it. His reasons for involvement at all were limited and cursory.
It was on the 5 March visit to the workplace that Ian Williamson immediately formed the view he “needed a geotechnical engineer to come and have a look at the excavation” so he called the investigation manager and then “Morrison geotech” a company used previously to provide information in relation to this sort of work: T1-47. From that company a Mr Daly came to the workplace and gave advice. Immediately then Ian Williamson “engaged a fencing contractor to come in and place a fence approximately two metres from the top of the cut, on the front, right and rear…and on the left-hand side as well”: T1-48
There are some troubling omissions in the evidence of Ian Williamson including –
· He gives no evidence of complaints to him or his office about people at or near the work place being at risk of hazard from the excavation or seeing falling debris;
· He gives no observations or reasoning to support the alarm he developed about the risk of hazard at the workplace on 5 March;
· He gives no reasoning why he formed the view it was imperative to engage a geo-technical engineer at such short notice;
· He gives no reasoning why he suddenly engaged a contract fencer;
· He cannot account for why John Daly’s report does not actually address some of the concerns he acted on by engaging the fencer to fence the whole boundary. Mr Williamson simply says he acted on the conversation he had with Mr Daly on 5 March and he doesn’t know why Mr Daly didn’t put those things in his report. When pressed under cross-examination he could say what information he was provided by Mr Daly in conversation;
· He made no answer to the assertion that he must have had the contract fencer pre-organised in order for the fencer to be at the work place so quickly on the afternoon of 5 March;
· He gives no reasoning why it was necessary to engage the contract fencer without reference to Susan Menso or why he did not give her any reasonable opportunity to apprise him of her views or plans or even an opportunity to pull some (small) parts of the temporary fencing she already had in place a little further away from the excavated edge;
· He gives no evidence he observed any crumbling of the excavation or other indication there was an imminent problem of hazard that required urgent attention;
· He gives no account for why it was imperative to act so quickly that the fencing contractor worked in the dark to erect another fence also close to the excavated edge in blatant breach of WH&S Act duties given the work was done in the dark with very little time for preliminary safety precautions to be taken for those fencing contractors;
· He gives no evidence of any safety precautions taken to risk manage these fencing contractors.
These omissions are troubling firstly, because they fly in the face of the objectives of the WH&S Act and the intention of the legislation for there to be a co-operative approach to any problems that may need resolution at a workplace. Secondly, there is no foundation for Ian Williamson to have acted as he did without reference to Susan Menso eg. There was no evidence of a complaint that the excavation was falling in or threatening to fall in; there was no evidence that Susan Menso was refusing to work with WH&S officers. To the contrary, she was responding to WH&S officer requests.
On the whole, I am satisfied that Ian Williamson has not been truthful to this Court about what he was about on 5 March 2015. He acted in a peremptory and if not unlawfully, at least contrary to the intention of the WHS Act on 5 March 2015 and his evidence cannot be used to prove the complaints.
James Daly, a chartered professional engineer employed by Morrison Geotechnical Limited gave evidence. The report of Mr Daly supports the view I have taken of Ian Williamson. Mr Daly gave evidence he visited the workplace on 3 March at approximately 3.00pm. He had a conversation with Ian Williamson whilst there. The workplace was closed and no workers were working there whilst he was there. He did not see falling rock and could not say if the rock he saw on the ground was fallen rock from the excavated wall. He gave no evidence about any immediate or imminent danger from the excavated walls.
He relied on a report he made about his visit. It is dated 6 March 2015 and tendered as exhibit 7. A photograph he took and incorporated into his written report is of an excavation pit within the workplace and shows a safety line surrounding at least two sides of the excavated pit. It is difficult to determine from the photograph if the line extends the entirety of the pit boundary. However, it is evidence there was a fence being used in contradiction to the photograph in exhibit one showing no fence. It really evidences the fluidity of a construction site from time to time and the underlying intention of the legislation to maintain a rather more fluid attendance to resolution of issues that may arise from time to time by co-operative work rather than resort to complaint and criminal penalty except as a last resort.
His brief statements in his evidence-in-chief eg. “they looked unsafe and high risk of instability”: T 1-109 must be viewed with caution as he was very short on detail in his evidence. Furthermore, he conceded he only looked at the workplace from the front of the site and did not go closer. He did not make an inspection of the footings for the brick wall and his report states “no details regarding the foundation types or depths for these (neighbouring) structures has been provided.” See page1-2 report. Due to these restrictions his opinion about the excavation being associated with “a high level of risk instability” and the need for a structural retention system assessment for that north-west wall must be viewed as a preliminary finding only.
Rhys French gave evidence that essentially supports the fact that Susan Menso responded to the concerns voiced to her via the (invalid) Prohibition Notice and late on 3 March. Susan Menso sought his assistance promptly and Rhys French came to the workplace on 4, 5, 10, 13 and 27 March. He gave evidence that on 4 March he did not see any fallen rock at the foot of the excavation beneath the brick wall on the southern face. He gave the opinion in his report no. 790 (exhibit ) “because of the high cohesion and sheer strength of the rock; a significant failure is not expected but a heavy wedge of rock could fall.” However, this brief report was made without any extensive or detailed investigation by him emphasis on either part of his comment could be made. It is not sufficient to prove that any risk existed beyond a reasonable doubt in the circumstances.
He also gave evidence that he was involved with checking other walls, including using an iron bar to test scaled walls for the risk of hazard by falling debris. Together Rhys French and Susan Menso worked out a response to the allegation there was a risk of hazard from falling rock debris. She followed his advice on each occasion he gave it. He confirmed that he saw one of the labourers – Josh – doing spotting as recommended against any risk of hazard from falling rock / debris. As issues were raised and allegations made to Susan Menso she diligently obtained the advices of Rhys French in response. By doing so I find she did promptly investigate the likelihood of the risk of debris falling from the excavation walls. She engaged ways of minimising the risk. If anything his evidence proves that Susan Menso did embrace her duty to ensure health and safety.
I find his evidence was forthright, credible and I accept truthful. I accept he recommended matters to Susan Menso to address issues in compliance with the various requests of the WH&S officers during March 2015. His evidence shows that Susan Menso was seeking and accepting and following up on issues raised by WH&S officers in a timely fashion complying with her obligation to be diligent and in a reasonably practicable way.
Darren Hayden was called to give evidence as a last minute witness on behalf of the prosecution. He had been employed as a construction inspector but no longer works with the WH&S office and needed to refresh his memory from a statement he had made in order to give his evidence: T2-15 He is the author of the invalid Prohibition Notice (exhibit 12B). He issued the Prohibition Notice to Z Group about the workplace by email on 3 March 2015. He agreed that he made a report relevant to the complaints and wrote “or commenced writing it” on 23 March 2015:T2-15 In other words he appeared to have very little independent recollection of what occurred in March 2015.
He gave evidence he accompanied Andrew McKenna to the workplace on 2 March 2015 assuming he took the photographs and / or that he “would have” taken photographs on that day. He was looking at the exhibit 1 photographs to give this evidence.
He was called late in the prosecution case to explain the date the photographs were taken. However, he was not able to clarify this with any certainty. The best he could say was that he uploaded the photos onto the office system. There remains uncertainty about when the photographs were taken as he attended the workplace a number of times within the period of the complaints and at other times as well. Certainly in relation to some of the photographs he merely titled the folder 3 March 2015 because they did not co-relate with activities at the workplace that did have dates and those dates were outside of the period 1 – 8 March. Defence counsel submit that the computer printout from the WH&S computer system identifies the date the computer generated time and date of each photograph was taken. However, that is not how I understood his evidence at all because he could not explain any understanding of how the computer system operates. Consequently I find the photographs in exhibits 1 and 3 are not potent evidence supporting the complaints.
From his evidence I find the sticking point between Darren Hayden and Susan Menso appears to have been his requirement for a “competent person” to confirm the structural integrity of the excavation and his refusal to accept Susan Menso was a “competent person.” In any event the Prohibition Notice is poorly worded and was ultimately held invalid. Coupled with this view is his failure or refusal to accept anything less than a geo-technical report about the issues he was raising. He relied on the wording of the WH&S Regulation 306 (30) and (4) without more, it would appear, for this position. The dispute also encompassed the differences of opinion over the calibre of the boundary fences. He conceded that he did not know the brick wall was a double brick wall filled with concrete. He did not take a close look at it.
Darren Hayden, I find was only concerned with one thing and that was obtaining a geo-technical report because, as he said in his evidence “it’s a standard requirement. We needed some report”. This stand he took may have been based on his relative inexperience at the time. I find this by inference because under cross-examination Susan Menso put to him “That rock was not going anywhere?” He responded “I don’t doubt that but we needed a report that the whole of the excavation site was safe….” Also, despite he appears to have been the WH&S officer investigating he did not order the fencing contractor. Also, he did not account for the input by Rhys French within his demand for a geo-technical report. He did not give evidence disputing that Susan Menso was a competent person. Furthermore, he did not follow up on Susan Menso either. It was Susan Menso who arranged to meet with WH&S officers by phoning Darren Hayden after 5 March. He made no response though he conceded receiving her messages. She ultimately attended the WH&S office personally with Mr Hoffman by leaving a message that she was coming.
The important aspects of Darren Hayden’s evidence though must be firstly, his omission to account for any immediate or imminent risk of hazard and his omission to provide Susan Menso with fair and effective consultation and issue resolution during the period related to the complaints. In particular, he did not provide her with appropriate information about his concerns, especially via the (invalid) Prohibition Notice; and he did not allow Susan Menso a part of the resolution of his concerns. It is in direct breach of section 18 WH&S Act that he continued with his activities on 3 March without the benefit of consultation with Susan Menso to take into account and weigh up, with her input, the matters referred to in section 18, namely -
… all relevant matters including—
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Darren Hayden gave no evidence to account for him utilising the full force of the WH&S Act and react with alarm in the way he did. In the absence of evidence of an immediate or imminent risk of hazard or a recalcitrant person the WH&S Act encourages a co-operative attention to problem-solving. There is no evidence Susan Menso was recalcitrant or refusing to act in a reasonably practicable way to solve problems raised to her. It was simply not reasonably practicable for the defendants to respond to concerns raised on 2 March by 3 March. Additionally, it was not a reasonable expectation when on 3 March the Prohibition Notice was served effectively closing the workplace.
Victor Voytinof, a neighbour living next door to the workplace gave evidence. Under cross-examination it became evident he had been spoken to by WH&S officers telling him things, including that a Prohibition Notice had been served on Susan Menso but without telling him it had later been held invalid. Consequently, I cannot be sure how reliable his evidence is from his own memory of events. He could put no dates on his recollection regarding the evidence he gave about when he heard a loud bang one night “like rocks” and realised something had happened, he went with someone to the carpark and saw dust in the air and he conceded there was a fence there. However, he did not provide any indication he felt unsafe or that he could or would go beyond the fence any closer to inspect what was going on. Neither did he act in any other way eg. phoning for emergency help or the like, to indicate that there was an immediate or imminent risk hazard close by that needed attention. He saw “a lot of people” attend the workplace after the incident. His evidence does not further the matter either way except perhaps to show that the perimeter fence was adequate because when he went to investigate the loud bang he heard, he did not go beyond the perimeter fence.
John Riga gave evidence he is a structural engineer. He visited the workplace on 22 or 23 February 2015. He gave structural engineer advice to Susan Menso. He made some observations about the excavated walls and because he was a long time worker with Susan Menso and she responded to his advice saying “I’ll get on to it”: T Day 2 at 2-5 However, his evidence does not advance the prosecution case as his comments were nothing more than that and he readily admitted he did not know if he was correct about what he had observed or what Susan Menso had arranged about securing the excavated walls.
The Defence case
Susan Menso conducted the defence case and on the company’s behalf and for herself without legal representation. She is not a lawyer.
She cross-examined each of the prosecution witnesses. She gave evidence under oath and commenced (with prompting from me) by describing her qualifications and experience in the construction industry. At 2015 she had some 13 years’ experience in multi – story constructions around Brisbane and had some loyal workers who had worked for her over many years. Her experience was not in contest.
She gave evidence about how she made preparations for the building construction and in this regard pointed out that the initial Soil Surveys letter and report were inclusive of generic statements rather than specifically statements focussing attention on the workplace at 68 Cordelia Street and gave some (accurate) examples of this from the report (eg. use of a photograph at page 3 of Exhibit 6 that is not of 68 Cordelia Street) and also explained that the making of such generic statements was common practice in the industry. She treated the report with that qualification on it in mind.
She gave evidence about her response to the failure of the excavation wall in one small part of the excavation which was meshed with double meshing pinned across the face of the excavation. She made explanation about the shotcreting over the meshing. She made explanation about her disappointment with the work of the shotcreter and her decision not to use him again. In any event she showed that the double meshing did in fact hold the excavated wall and shotcrete substantially.
A number of WH&S officers appear to have attended her workplace many many times during 2015 although it appeared to me that most of those were post March after the parties had established a hostile relationship because of the perception (at least) by her that the WH&S officers were acting on the persistence of the CMFE Union who were trying to run her out of business on the south side of Brisbane. She did not always agree with their demands, challenged them and was frustrated by the way she was required to respond to what she saw and were largely piecemeal requirements made by them especially during the period 1 – 8 March 2015. She was not challenged by prosecution. Under cross-examination no opposing explanation was put to her by the prosecution as to why so many WH&S officers were involved with this workplace and dealt with her.
She was particularly frustrated by the (invalid) Prohibition Notice but her response was to engage Rhys French. She did this a number of times to respond to the requirements made by the WH&S officers. Importantly, the Prohibition Notice was later held to be invalid. Intertwined in all of the interactions between WH&S officers I did not see co-operation by the WH&S officers endeavouring to work with Susan Menso. Rather the WH&S officers made a decision – as early as 2 March on their first visit to the workplace and then worked towards closing down the workplace with only cursory reference to Susan Menso. I find this because I accept that the fencing contractors must have been arranged by WH&S officers in advance of 5 March in order to undertake the work in such haste on the afternoon and evening of 5 March.
Susan Menso’s evidence was quite clear that she engaged closely with the WH&S officers and did respond to their concerns with due diligence. I find that her evidence truthful and credible.
Susan Menso also called witnesses in support of her case that she engaged experienced workers to attend work and work health and safety security at the workplace. All of her witnesses were workers with 10 years or more experience in construction. Andrew Greweth had 21 years’ experience as a supervisor in the construction industry and in the period he worked at 68 Cordelia Street he saw no debris or rock fall at the workplace. Joshus Fragale gave evidence he was involved in digging the earthworks at the workplace and that checks were made by him to ensure that “nothing would ever fall out,so – that it (meaning the excavated wall) was hard”: T 2-91. He also observed co-worker Josh Buback as “a spotter at all times” while they were earthmoving: T 2-94.
No case to answer
A magistrate may prompt a “no case to answer” application when an element of the charge is not proven: Cox v Howlett [2012] QDC judgement of Longman delivered 17 August 2012 CM Note 7 / 2013. Given Susan Menso was self-represented this option was not something she readily grasped and she elected to put her case.
Nevertheless, in a criminal trial the prosecution is required to make out its case against the defendant. This means the prosecution must make out a case for the defendant to answer. There are rules about what level of evidence a prosecution case must reach before the defendant is required to answer the complaint. The case of May v O’Sullivan (1955) 92 CLR 654 at 658 is authority for determining what the quality of that evidence must be. The High Court held in May v O’Sullivan the evidence that stands at the end of the prosecution case, must be evidence upon which the defendant could be lawfully convicted.” The case of Wilson v Kuhl; Ryan v Kuhl [1979] VR 315 applied May v O’Sullivan and went further on the point. In that case it was held by McGarvie J –
“Firstly, a test is to be applied ie the court asks itself whether there is evidence which, if accepted, would provide evidence of each element of the charge; and secondly, if there is such evidence, is it so lacking in weight or reliability that it is open to Court, as a matter of discretion, to dismiss the information.”
The time period of the alleged complaints being 1 – 8 March 2015 was a narrow band of time as compared to the complete time of the relationship between the parties. The parties were in contest over an extended period of time during 2015. The evidence of the WH&S officers to establish what occurred during the complaint period itself relied heavily on photographic evidence (exhibits 1 and 3) produced from the files of the WH&S office. The prosecution witnesses, especially Darren Hayden who took photographs on a number of occasions at the workplace, could not establish when each of the photographs were actually taken.
None of the prosecution witnesses made notes contemporaneous to the 1 – 8 March 2015 time period. By contrast the trial included evidence of reports to support that the defendant Susan Menso was managing risks to health and safety associated with the excavation work.
There was a length of time by months that passed before the complaints were made. During that time other events involving contest between the parties occurred that clearly established an attitude between the parties and perhaps that there was an irrelevant agenda occurring on the part of the WH&S officers or some of them that has spilled over into the prosecutions before the court. Further time has passed before the matter has come on for trial. In these circumstances the opportunity for clarity about what occurred or failed to occur during 1 – 8 March 2015 has not been established by the prosecution witnesses.
I find that the WH&S officers as prosecution witnesses –
(a) Relied very heavily on photographs that cannot be attributed to dates within 1 – 8 March 2015 with any certainty; and
(b) Have given evidence based upon their explanation of these photographs and little else including no contemporaneous notes they may have made; and
(c) Have not given credible observation evidence; and
(d) Did not allow Susan Menso any proper hearing with respect to her available controls that were different from the preliminary and generic recommendations of the Soil Survey Geotechnical Report of October 2014; and
(e) Did not allow Susan Menso any proper hearing with respect to her available controls to understand exactly what was reasonably practicable, including whether or not a “spotter” engaged by the defendants and her attention to testing of the excavation wall with machinery to assess the risk of falling debris; and
(f) Did not provide assistance, or adequate time, for Susan Menso to understand and address issues raised to her on the 2 March to enable a proper understanding of the applicability of what reasonably practicable responses were required and instead acting peremptorily and arbitrarily with the Prohibition Notice and to engage a contract fencer to place another temporary fence around the workplace; and
(g) Did not properly investigate the workplace by properly investigating the brick fence and its footings; and
(h) Requested or allowed the contract fencers to work in the dark in flagrant disregard of the view they had taken that there was a risk of fall from and / or collapse of the edge of the excavation.
On the whole, I find the prosecution WH&S officers witnesses gave evidence so lacking in weight or reliability principally due to their inability to have much independent recollection and relying so heavily on the photographic evidence, that as a matter of discretion, their evidence should be rejected. For all of these reasons my conclusion is that the prosecution case is not made out and consequently there is no case for the defendants to answer.
If I were to be wrong about my view of the prosecution evidence, I find -
(a) I accept the evidence of Susan Menso. She was credible and supported her position with reasonable explanations and documentary evidence. In particular, I accept her explanations about the adequate calibre of the perimeter fences erected at the workplace. I find the perimeter fences were substantial and adequate to ensure persons were excluded from the workplace and from the risk of hazard of fall. I find the reasonably practicable response to queries by the WH&S officers was to allow involvement of Susan Menso with respect to each of the walls given she had a close knowledge of the walls.
(b) I accept the evidence of the defendant and her explanations about the calibre of the excavated walls. I find the WH&S officers did not engage with Susan Menso in accordance with the objectives of the WH&S Act. In particular, there was no adequate investigation of the brick wall by the WH&S officers or at their direction to understand the true nature of the wall and its footings.
(c) I find there is not sufficient evidence to determine that the position of the temporary fences erected at the workplace were as alleged by the complaint to be the sole responsibility of the defendants. The uncertainty of the time and date the photographs were taken is one problem. Given the evidence of Susan Menso which was not disputed by any of the WH&S officers that she had operated completely safe construction sites for some 13 years and had never had any issues with safety nor any accidents of injuries at any of her workplaces and given the complaints she made about interference with the workplace by CMFE Union associated complaints together with no evidence from the WH&S officers in response to these allegations, I have doubts about who may have been responsible from time to time for the position of the temporary fencing at the workplace, including how it came to be that parts of the fence hung over the edge of the excavation face.
(d) I accept there was edge protection installed for a smaller excavation within the main excavation at the workplace. Particularly in light of Mr Daly’s 6 March report inclusive of a photograph showing edge protection and there was insufficient evidence to show that the edge protection was illegally removed or illegally not there from time to time such as to take it out of the reasonable fluid movement of construction requirements at the workplace.
(e) I find there is insufficient evidence to prove that it was imperative and the exclusive response to risk for there to be installed a temporary retaining wall of the type described as an Anchored Pier and Panel System or a Contiguous Piled Wall to control the hazard of an excavated wall face or adjacent infrastructure collapsing. The only indication this might be necessary came from preliminary indications in the Soil Surveys geotechnical investigation of October 2014 report (exhibit 6) before construction commenced and nothing further.
(f) I find the Defendants through Susan Menso did operate the workplace with due diligence and managed risks associated with the excavation in a reasonably practicable way well within the meaning of that phrase as it is provided in section 18 of the WH&S Act and section 35 of the associated Regulation. In particular, she took reasonably practicable measures to develop and implement work procedures by adopting recommendations sufficient to prevent the risk of falling rock from the excavation and continuing to do so by accepting and implementing the advises of Rhys French, including by scaling the excavated wall with heavy machinery to ensure there continued to be no loose rocks and also appointing a spotter to watch whilst workers were in the vicinity of the excavated wall. She did these things despite she had already assured herself there was no risk further to the meshing that she had applied to one portion of the excavation. This meshing held when some smaller fragments of shotcrete over the top of the mesh became loose. She attended to this failure of the shotcrete and when she did that she did not use the same shotcreter as she was unhappy with his work.
In the circumstances I find too many doubts about the prosecution evidence as detailed above and I find therefore that the defendants are not guilty of the complaints.
I ORDER the complaint against Z Group and the complaint against Susan Menso are dismissed.
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