Inspector Kenneth John Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Kenneth John Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255 PROSECUTOR: Inspector Kenneth John Barnard PARTIES : DEFENDANT: Rail Infrastructure Corporation FILE NUMBER: IRC 2671 and IRC 2672 of 2000 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 15(1) - work involving crossing of live railway lines - work at night - failure to supervise - failure to provide a safe system of work - system operating on basis of "looking out for yourself" - whether "looking out for yourself" is a system of work or a safe system of work - paper systems insufficient to ensure safety - system of supervision confusing and inadequate - breakdown of system warning of approach of train - whether mere fact of provision of training amounts to a safey system of work - relevance of changes made to work system after accident - particulars of charge - whether particulars are essential ingredients of charge - carelessness or inadvertence by employee does not abrogate duty of employer - s 53 defences - mere assertions insufficient - onus on defendant to establish defence - onus not discharged - offences proved

CATCHWORDS : Practice and Prodcedure - Occupational Health and Safety Act 1983 - Prosecution's right of reply - practice of Commission in Court Session

Evidence - Occupational Health and Safety Act 1983 - relevance of actions taken by the defendant after accident - admissibility of such evidence LEGISLATION CITED : Occupational Health and Safety Act 1983 Criminal Procedure Act 1986 Pt 4 Criminal Procedure Generally s 97 and s 98 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Concrete Constructions Group Ltd v WorkCover Authority of NSW (Inspector Dubois) (2000) 99 IR 16 Cullen v State Rail Authority (1989) 31 IR 205 Department of Mineral Resources (NSW (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim.R 481 at 484 Inspector Davies v Prospect Electricity (IC NSW No 747 of 991, unreported 9 November 1992) Inspector Page v Growth Equities Services Pty Ltd (CT 1047 of 1993, 9 September 1994 - Peterson J) McMartin v The Broken Hill Prop. Co Ltd (2000) 100 IR 241 CASES CITED : Nelson v John Lysaght (Aust) Ltd (1974-5) 132 CLR 201 R v Saffron (No.1) (1988) 17 NSWLR 395 at 446-447 Schultz v Tamworth City Council (1995) 58 IR 221 per Fisher CJ Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364 State Rail Authority of NSW v Dawson (1990) 37 IR 110 at 120 -121 Sydney County Council v Coulson [1987] 21 IR 477 at 480 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No1) [2000] 101 IR 239 WorkCover of NSW (Inspector Mayo-Ramsey) v Maitland City Council [1988] 83 IR 362 at 381 WorkCover Authority (Inspector Piggott) v Capral Aluminium (1989) 31 IR 207 HEARING DATES: 08/14/2001; 08/15/2001; 08/16/2001; 08/28/2001 DATE OF JUDGMENT: 10/19/2001

PROSECUTOR: Mr R Reitano of counsel SOLICITOR: Ms R Parmegiani Legal Services Branch WorkCover Authority LEGAL REPRESENTATIVES:

DEFENDANT: Mr J N Gleeson QC and Mr M Shume of counsel SOLICITOR: Ms W Thompson Freehills

JUDGMENT:

- 58 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: HAYLEN J 19 October 2001

MATTER NO IRC 2671 OF 2000 INSPECTOR KENNETH JOHN BARNARD v RAIL INFRASTRUCTURE CORPORATION MATTER NO IRC 2672 OF 2000 INSPECTOR KENNETH JOHN BARNARD v RAIL INFRASTRUCTURE CORPORATION Prosecutions under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm25

A PROSECUTION PARTICULARISED 1 Inspector Barnard, an inspector with the WorkCover Authority of New South Wales duly appointed under the Occupational Health and Safety Act and empowered to institute proceedings, brings two prosecutions under s 15(1) of the Act against the defendant.

2 Both prosecutions arise from an incident which took place early on 14 June 1998 at Waratah, near Newcastle. In the first matter, by amended summons, the following breach is alleged: On 14 June 1998 at Kilometre 165.420 from Sydney at Waratah in the State of New South Wales, the defendant, being an employer DID FAIL to ensure the health, safety and welfare at work of all its employees in particular Clarence Mason in failing to provide or maintain systems of work for persons carrying out railway track maintenance work that was safe and without risk to health. The particulars of the charge are: a. the defendant at all material times employed Clarence Mason. b. the defendant was undertaking railway track maintenance work at kilometre 165.420 from Sydney. c. the defendant failed to provide or maintain systems of work to ensure that employees could not come within 2.5 metres horizontally, of the nearest rail of running railway line. d. the defendant failed to provide or maintain a system of work to ensure that a system of protection of the worksite was in use with barriers or boundary tape. e. the defendant failed to provide or maintain systems of work to ensure that employees crossing the rail of a running railway line in darkness, were not placed at risk of injury. f. as a result of the said failures Clarence Mason suffered numerous injuries.

3 The second amended summons alleges a breach in the following terms: On 14 June 1998 at Kilometre 165.420 from Sydney at Waratah in the State of New South Wales, the defendant, being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular Clarence Mason in failing to provide or maintain systems of work for persons carrying out railway track maintenance work that was safe and without risk to health. The particulars of the charge are:

a. The defendant at all material times employed Clarence Mason. b. The defendant was undertaking railway track maintenance work at Kilometre 165.420 from Sydney. c. The defendant failed to provide or maintain systems of work to ensure that employees could not come within 2.5 metres horizontally of the nearest rail of any running railway line. d. The defendant failed to provide or maintain a system of work to ensure that a system of protection of the worksite was in use with barriers or boundary tapes. e. The defendant failed to provide or maintain systems of work to ensure that employees crossing the rail of a running railway line in darkness were not placed at risk of injury. f. As a result of the said failures Clarence Mason suffered numerous injuries.

4 In each case the defendant entered pleas of not guilty.

RAIL MAINTENANCE UNDERTAKEN 5 The circumstances which led to these prosecutions revolve around rail maintenance work being carried on at Waratah on the night of 13 and the early morning of 14 June 1998. On that night Mr Mason was employed as a Traffic Officer. That work required him to possess a certificate at the level of Engineering Safe Working Class 1 or 2 as well as a Working Site Protection Class 3 or 4. In fact, Mr Mason held the Engineering Safe Working Class 2 certificate at the time and the Work Site Protection Certificate Class 4.

6 The work involved a team using two large pieces of machinery described as a tamping machine and a regulator. The tamper creates considerable noise in performing the task of lifting the rail and packing the surface underneath so that it is consolidated into a hardened stable surface. The regulator is like a plough - it has "wings". The track is "broomed", that is, a broom at the back of the regulator spins, using something like a rubber hose which spreads the ballast on the track. It also creates considerable noise when in operation. Both the tamper and the regulator were fitted with and used lights on this job. A team of approximately nine men operate these machines and the railway line being worked upon is taken out of normal service while this task is being performed. In railway parlance this is referred to as "taking possession" of the line.

7 On the evening in question Mr Mason was performing the work of a Traffic Officer in relation to the group working on the two machines, referred to as team 3. Mr Mason held certain qualifications referred to earlier which permitted him to perform this task. The task involved taking the machines out of the Hamilton depot and taking possession of the down and up main lines, that is, the lines used for normal traffic as distinct from the two, down and up, coal lines which remained in use. Mr Mason was also required to pick up a key from the Islington signal box which was to be used later that night to unlock the Z frame, a piece of railway equipment which permitted the tamping machine and regulator to cross from the down to the up main line in the performance of maintenance tasks. This work involved Mr Mason moving from the main lines and crossing the two coal lines which were still "live" to rail traffic and operating the Z frame, an operation referred to as "keying the frame". Mr Mason was also required to maintain contact with signal boxes concerning the presence of trains and was to keep a look out for the men on team 3. He was also to place detonators and lights, referred to as "protection", on the line thus providing some early warning if possession of the main lines was unexpectedly breached during the maintenance task.

8 As part of the maintenance work being performed that night a briefing was held at the Hamilton depot by Mr Buttenshaw who was employed at the time by the defendant as a Planning Engineer. Mr Buttenshaw was not required to give such a briefing, although such safety briefings were coming into operation at about that time. Mr Mason asked him if he was included in the briefing in his role as Traffic Officer, a question apparently raised because Traffic Officers did not regard themselves as part of the maintenance resurfacing team. Mr Buttenshaw said he made sure that everybody was briefed, including Mr Mason. The briefing went on for five to ten minutes and was held at approximately 8 30 to 9 00 pm on 13 June 1998. At the briefing, team 3 and Mr Mason were informed that possession would be taken of the main lines but that the coal lines would remain "live" to train traffic. Mr Buttenshaw was the Possessions Officer and arranged for possession of the main lines to be taken from network control. On the night in question there were in fact a number of worksites performing maintenance tasks.

9 Prior to the briefing conducted by Mr Buttenshaw, Mr McCullough, who was employed by the defendant as an Operations Liaison Officer, was the person who, in an overall sense, organised track possession. He was in charge of a number of Traffic Officers and rostered them to the different jobs when they were needed. Earlier on 13 June he had organised for the issue of Special Train Notices to be faxed to signal boxes although it was the responsibility of State Rail to issue these notices to signal boxes, stations and train drivers. If a signal box does not receive the notice they can refuse to allow possession of the line and thus the work is interrupted. In order to avoid a breakdown in communication it was apparently Mr McCullough's practice to fax the notices to the relevant signal boxes to ensure that effective possession was taken of the relevant lines and the work was not interrupted.

A WORKER SUPERVISED? 10 Mr Mason said that he believed that his supervisor on the night was Mr Buttenshaw, but that he had recently been told by junior counsel for the defendant that in fact Mr Shand was his supervisor. No one told him before he started work on 13 June who was his supervisor that night. On 13 and 14 June 1998, Mr Shand was employed by the defendant as a Resurfacing Ganger, a position now referred to apparently as team leader. In evidence Mr Shand said that, while Mr Mason was working on "my worksite" he guessed that he was Mr Mason's supervisor. When Mr Mason, however, put the key in the Z frame, Mr Shand said he had no responsibility for Mr Mason's movements. Mr Shand believed his (Shand's) supervisor that night was Mr Buttenshaw.

11 Mr Shand said that when the team was being taken on the machines up to Islington Mr Mason was in control and spoke to the train controller who told him what path had been set for him and gave him directions to take the team and the machines to the worksite. Mr Mason's job was to get the machines to the area of possession where the work was to begin but once the team arrived at the area of possession, at the worksite, Mr Shand became "the boss" of that site.

12 Mr McCullough's evidence was that while Mr Mason was at work as a Traffic Officer he supervised himself. He confirmed that Mr Mason's responsibilities were to get the track machines to the work site, but that at the worksite he worked under the worksite supervisor. If the worksite supervisor on team 3 wanted something he could ask Mr Mason and if it was within his duties Mr Mason would do it. This was because Mr Mason was not actually involved in the track work. Mr Mason accepted that because of his qualifications he was, on the night, amongst other things, looking after his own safety. He was able to have supervision if he was not satisfied with the safety arrangements but had made no complaint on the night.

13 A record of interview with Prudence Ann Dally was tendered without objection. Ms Dally was the Occupational Health and Safety Rehabilitation Risk Manager of Rail Services Australia having been employed since 1 July 1998 by that entity and having performed similar roles since May 1996 with the State Rail Authority. She accepted that she was authorised "to speak legally on behalf of Rail Services Australia". Ms Dally said that on the day of the accident Mr Mason was working as a Traffic Officer and his supervisor that day was Mr Buttenshaw, the Possessions Officer, whom "he would have worked with". Mr Buttenshaw was of the opinion that Mr Shand was Mr Mason's supervisor that night because he was part of team 3.

14 The defendant's approach was that, on the night when this work was being performed by Mr Mason as Traffic Officer, he did not require a supervisor in accordance with the system of work applying at the time. In the alternative, it was submitted that on the night Mr Mason was supervised by Mr Shand, Mr Buttenshaw, Inspector Bernie Parkes and Mr McCullough. No explanation was proffered as to how, in a practical sense, this description of multiple supervision was applied to the work being performed at the worksite by Mr Mason.

THE SYSTEM OF WORK AND THE PLACE OF SAFE WORKING UNITS 15 The defendant accepted that the rail system in New South Wales was governed by a set of rules which applied to all parties who work or use the rail infrastructure. The rules are known as Safe Working Units (SWUs). It was also accepted that the relevant SWUs for the work engaged in by the defendant's employees on the night in question were contained in the SWU Series 900. It was said by the defendant that at the time of the accident the SWUs "were owned by the Rail Access Corporation, and were controlled by the State Rail Authority." 16 In her record of interview, Ms Dally, when asked what safe working systems did the Rail Services Authority have in place to advise each member of the track maintenance crew of a train passing through their worksite to ensure that each person was not in danger of being struck by the train, replied that it was the requirement of the other parts of the safe working manual, which belonged to the Rail Access Corporation, which could be the 100 series, parts of 600 series and parts of 900 series. There were also site safety meetings, tool box briefings, site inductions and an overall site safety plan. 17 It was unclear from this evidence and the submission of the defendant whether it was suggested that the safe working system applied to the work of track maintenance which was undertaken on the night in question was under the control of some other legal entity such that the defendant had no control or influence over the system of work and, if so, what flowed from that fact. It was put to Inspector McMartin in cross-examination by the defendant, and he agreed, that to carry out work on the rail network in New South Wales, one had to operate under the SWUs. Since 1996 different corporate entities had been created following the corporate break up of the SRA and Rail Access became the owner of the infrastructure. Ms Dally stated that the safe working manuals (including the 900 series) belonged to the Rail Access Corporation. Employees, such as Mr Mason, were trained in accordance with safe working requirements and that training was performed for the Railway Services Authority through Australian Rail Training, State Rail Authority.

18 Part of the SWUs 900 series was tendered in the prosecution's case. SWU 900, entitled "General Safety Precautions" contained an introduction in the following terms: [a] This manual sets out the procedures which must be adopted when any type of engineering work is to be carried out on or about railway infrastructure. This work may relate to the repair, maintenance or other grading of railway tracks, rolling stock or associated works or equipment. The introduction also stated that for the purposes of the manual, any procedure shown for an employee would mean a State Rail employee, a private company employee or a contractor. Employees were to perform only the duties shown in the procedures when they had obtained the level of State Rail's certification necessary to carry out the duties: each worksite supervisor and Traffic Officer was to have an up-to-date copy of the manual and the relevant supplement for their particular discipline readily available for the information of employees. In Paragraph [d], entitled "Safety Clearances for engineering work" the following was provided: For the purpose of the procedures in this manual 'work on or about the line' refers to any work situation where employees, contractors, plant, equipment or material are located within, or likely to be within, the following distances: non-electrified areas: 2.5 metres horizontally from the nearest rail or any running line or siding; six metres vertically above rail level; 0.3 metres vertically below rail level. electrified areas: 2.5 metres horizontally from the nearest rail of any running line or siding … where work does not come within, or is not likely to come within, these safety clearances, no protection is necessary and the procedures in this manual DO NOT apply. However, when any work is being performed close to the minimum safety distances, extreme care must be exercised. Sub-paragraph [f] entitled, "Using barriers within the safety clearances" provided: Barriers may be provided within the safety clearances as shown as [d] in this unit to protect work adjacent to or above the lines. The barriers must be of solid construction to prevent any possibility of employees or their equipment coming into contact with passing trains or the overhead wiring. When the barriers have been erected, no protection is necessary and the procedures in this manual DO NOT apply. When a barrier is used to prevent access to the electrical equipment, a "Permit to Work" is NOT required. … Under the heading, "Using fencing or boundary tape to define a work area" in sub-par [g] it was provided: High visibility demarcation fencing or boundary tape may be used to define a work area. Because this fencing or boundary tape cannot prevent persons or equipment coming into contact with trains or the overhead wiring, normal protection must be provided. The level of protection will depend on the type of work being carried out.

19 SWU 901 dealt with engineering safe working certifications. Under sub-paragraph [a] the types of engineering safe working certifications are set out. The introduction to the definitions for each certificate of competency stated as follows: All employees requiring to carry out work on or about railway infrastructure relating to the repair, maintenance or upgrading of railway tracks, rolling stock or associated works or equipment must be certified as competent to do so. The level of certification required depends on the type of duties to be carried out. Certificates of competency are issued to employees when they satisfy the requirements for qualifications and on-the-job training as shown in the safe working Policy Manual. These certificates are as follows: A Track Safety Awareness Certificate of Competency issued to certify that an employee is permitted to carry out work on or about railway infrastructure relating to the repair, maintenance or upgrading of railway tracks, rolling stock or associated work or equipment … A Worksite Protection Certificate of Competency is issued to certify that an employee can either carry out hand signalling duties or is able to supervise certain types of worksites … An Engineering Safeworking Certificate of Competency is issued to an engineering employee who is certified to the level of Worksite Protection Class 3 or 4 and is certified in the system(s) of safeworking to the level required for the area where the employee is working . Paragraph [b] dealt with issuing certificates of competency and stated: Only the persons authorised in the Safe Working Policy Manual to issue Safe Working Certificates of Competency are permitted to do so. When issuing a Certificate, the authorised issuing officer must delete the certifications which do not apply by ruling a line through them … Where necessary, previously issued Certificates of Competency must be sighted by the authorised issuing officer before this officer destroys them. Sub-paragraph [c] dealt with the Track Safety Awareness Certificate and provided as follows: A Track Safety Awareness Certificate must be issued to all employees who require to carry out work on or about railway infrastructure relating to the repair, maintenance or upgrading of railway tracks, rolling stock or associated works or equipment for a period of five or more consecutive days. (It should be noted that normal days of absence from work such as weekends and sick leave do not affect the count of consecutive working days)

· To be issued with a Track Safety Awareness Certificate, an employee must comply with the medical standards contained in the State Rail Medical Practices and Procedures Manual and must attend a training course and satisfactorily complete an assessment by a certified examiner. · Employees who are certified with a Safe Working Certificate of any type will be deemed to be certified in Track Safety Awareness as an awareness of track safety is a basic component of all levels of safe working certification. An employee who does not require to work on or about the line for a period of five or more consecutive days is not required to be issued with a Track Safety Awareness Certificate or to comply with the medical standards. Any employee requiring to work on or about the line who is not issued with a Track Safety Awareness Certificate must not go on or about the line until an employee certified at the level of at least Worksite Protection Class 1 has been contacted to determine the level of protection required. · In addition to any other protection, a handsignaller or more highly certified employee must be provided to continuously and exclusively supervise any employee who is not issued with a Track Safety Awareness Certificate when that employee is working on or about the line. No more than three employees may be supervised by one employee at any one time. · The employee supervising the uncertified employees will be responsible for ensuring their safety and must question them to determine whether they have any physical disability. If there is any physical disability, this must be taken into account when providing the supervision. Sub-paragraph [e] dealt with an Engineering Handsignaller Class 1 and the duties which can be carried out when certified and stated as follows:

· When certified to the level of Engineering Handsignaller Class 1, an employee is certified to: act as a lookout for employees working on or about the line who cannot look out for themselves; ac t as an inner or outer handsignaller protecting a worksite (but not at a fixed signal); assist with the controlling of work trains at a work site or in a possession area … Under sub-paragraph [j] the Worksite Protection Class 4 Certificate was described as follows: An employee must be certified to the level of Worksite Protection Class 4 to supervise a worksite(s) in either electrified or non-electrified areas where the work may involve fixed signals, the management of work trains or track vehicles during track possessions, or affect track circuits, or does not come within the safety clearances for electrical work as shown in SWUs 931 and 932. To obtain certification to the level of Worksite Protection Class 4, an employee must: be certified to the level of an Engineering Handsignaller Class 2 or Worksite Protection Class 3 and sit for an examination with a certified examiner and achieve at least the required pass mark.

20 SWU 910 dealt with general protection requirements. In sub-paragraph [a], Introduction the following was stated:

When employees are working on or about the line and can safety look out for themselves, no other protection is necessary.

· When employees cannot look out for themselves, protection will be required. The level of protection must be determined by a Worksite supervisor. · When employees working on or about the line become aware of the approach of a train, they must move with any equipment to a safe place. · A safe place is any location where employees and equipment will not be struck by passing trains. · If, for any reason, employees cannot move to a safe place before a train arrives, they must lie down in the six foot. In the Glossary, the term "six foot" is defined to mean the space between two adjacent parallel railway lines.

21 SWU 912 was entitled "Protecting employees working on or about the line when trains are not required to slow down or stop". Paragraph (a), Introduction, stated: There are two methods of protection where employees can work on or about the line when trains are not required to slow down or stop: the first method of protection is where employees are responsible for their own protection by looking out for trains themselves, and the second method is where a hand signaller(s) provides protection as determined by a Worksite Supervisor . · When either of these methods is used: All employees must ensure that they move to a safe place with their equipment and acknowledge that the driver's locomotive whistle in sufficient time so that the driver does not need to reduce the speed of the train and there will be no need to obtain train running information. To determine how employees will be protected depends on a number of factors, including: · the location; the reason for being on or about the line; the equipment being used. · employees may use line equipment or light machinery if required. However, the equipment or machinery must be light enough to be physically removed clear of the line by the employee(s). When employees are responsible for their own protection [b] · when employees working on or about the line can safely look out for themselves and move to a safe place with their equipment without trains being required to slow down or stop, no other protection is necessary. …Warning when employees consider that they cannot safely look out for themselves, they must request a Worksite Supervisor to determine the level of protection required .

To keep a safe lookout [c] Employees looking out for themselves: 1. Where possible, look or walk towards approaching trains so that you can see a train approaching. 2. Keep a frequent lookout for trains. 3. When you see a train approaching, move to a safe place. 4. If the driver sounds the locomotive whistle before you are in a safe place, DO NOT give the all clear hand signal until you are in a safe place. 5. When you are in a safe place, face the driver of the approaching train and display an all clear hand signal. 6. If the driver has not sounded the locomotive whistle, continue to display the all clear hand signal until the driver has sounded the locomotive whistle. 7. Remain in a safe place and maintain observation of the train, if possible until the train has passed. 8. If the safe place is within 2.5 metres of the nearest rail, cease all activity and discussion until the train has passed. 9. When the train has passed, check that no more trains are approaching before resuming work. When protection is provided by a handsignaller [b] · when employees working on or about the line cannot safely lookout for themselves, a handsignaller must be provided to act as a lookout; the handsignaller acting as a lookout must warn all employees in the working party when a train is approaching. The warning may be given verbally or by a hooter, a whistle or other approved warning device; · when one handsignaller acting as a lookout cannot safely provide protection owing to the location, weather conditions, difficulty in seeing trains approaching or other reasons the Worksite Supervisor may instruction the lookout to place one detonator on the line and obtain an additional handsignaller to provide an earlier warning; · handsignallers must not leave their position unless authorised by the Worksite Supervisor or unless they have been relieved; · after the Worksite Supervisor has determined the level of protection, it will not be necessary for the Worksite Supervisor to remain continuously at the worksite. 22 SWU 913 carried the heading "General Requirements for Protecting engineering work which requires trains to slow down or stop". Under sub-paragraph [a], headed "General Requirements", the following was provided: · When engineering work is being carried out, and: either all employees in a working party cannot be satisfactorily warned about approaching trains, or approaching trains will need to slow down or stop in order to ensure the safety of people or equipment on or about the line or to allow trains to travel safety over track which has been disturbed during repairs, the worksite must be protected: either by positioning handsignallers or erecting temporary track protection boards. Under sub-paragraph [h,] Employees' Duties at Worksites, the following was stated: · Whenever the worksite supervisor advises that a train is approaching, all employees at a worksite must: Move with any equipment to a safe place and remain in a safe place; · To prevent accidents and misunderstandings, if the safe place is within 2.5 metres of the nearest rail, employees must cease all activity and discussion until the train has passed. · All employees must obtain permission from the worksite supervisor before resuming work.

23 It was common ground that the SWUs were part of the system of work at the relevant time although the prosecution alleged that they were, in fact, largely not implemented, while the defendant claimed that not only was this the system but it was a safe system, and was fully implemented on the night in question.

AN ACCIDENT ON THE TRACK 24 Mr Mason's evidence was that on the night he would be informed from time to time by the Islington Signal Box that trains were coming from Port Waratah around to Broadmeadow. He would be called on the radio and when he became aware that the train was coming, he would tell the men on the machines "train coming" and make sure they were clear of the track. When a train came around on the coal track it would give a toot and a whistle and he would give them a signal that he had seen the train. The trains were coming around the turn towards Broadmeadow, which was just before the worksite that night. 25 At the worksite the noise of the tamping machine was "very, very noisy". He could not talk in a normal voice and hear anything when working around the tamping machine - "you had to yell a bit". Nearing the time when the machines were required to cross over to the down main line, Mr Mason spoke to Mr Shand and told him that he was going to take the key and unlock the frame in preparation for the cross over. He told this to Mr Shand because he was the ganger for the machines and was in charge of them and he would know when he was ready to bring those machines over to the up line and that would be when Mr Mason had to pull the frame to permit the cross over. At this time the men who were working on the tamper were working on the down main: both the down and up main were dead. Mr Mason agreed that when the team were working on the down main they were not within 2.5 metres of a live line.

26 Mr Mason had to walk at an angle away from the tamping machine to place the key in the Z frame. He had unlocked the frame and was going back to tell Mr Shand that the frame could be thrown for the cross over when they were ready. Mr Mason agreed that once he had the key in the frame there was nothing else for him to do until the team was ready for him to pull the frame unless there was something else they had wished him to do. Mr Mason was reluctant to accept that he could have stayed on a platform beside the frame and well away from the live line until he was required to pull the frame to complete the cross over. In his view, he would not stay there beside the frame for any period of time because he was looking after the machines and he would not want to stay 40 feet away from them. The reference to looking after the machine was not in the same sense as Mr Shand's duties, but was as a lookout and to pass information on about coming trains when he was informed of their approach by the Islington signalling box.

27 Mr Mason said that, having put the key in the frame and unlocked it, he then looked both ways before starting to walk across the live line, walking diagonally back towards the tamping machine. He said he had travelled about 10 or 11 feet, or something of that order, and then was hit from behind by a passing train. He denied that he had failed to look for a train while crossing the coal lines.

28 Mr Mason did not recall much of what happened after he was hit by the train but he was admitted to hospital with five broken ribs, a broken wrist, a cut to his head, bruises to his body and a broken tooth. Later he found that his "hearing had gone" in his left ear. He was off work for three months and resumed on light duties.

29 Mr Mason recalled that, as he was crossing the line to return to the tamping machine, he was starting to use the radio to speak to the Islington signal box but he cannot remember whether he actually started that call or completed it. He had some memory of starting to talk on the radio to inform Islington that the frame was unlocked and that everything was all right - that it was his habit to make a call of that nature.

30 On the night of the accident Mr Curry was driving an empty coal train with Mr White as his assistant. He left Port Waratah a short time after midnight turning on to the coal line, at which time he saw some fettlers working on the main line with track machinery. At the time he blew the train whistle and proceeded on the coal line, keeping an eye out on the work site which was to his left. Shortly after passing the fettlers and the machinery, the coal train was stopped and Mr Curry was informed that a fettler had been injured at Waratah and there was to be an investigation to see if it was his train which was involved. He and Mr White examined the engine but could not see any signs that anything had been hit. 31 The train did not have its headlights on during this journey but did have marker lights and the number light on. According to Mr Curry, it was a requirement that there be no headlight on to stop it blinding other trains and to "allow you to see the signals clearly".

32 Mr Curry did not see a flag man or safety person on the night but did notice floodlighting on the work area with "a lot of lighting illuminating the track machines". Mr Curry did not recall being told or given any notice at the beginning of his shift that there would be any track work on the main line. After the train had come around the corner from Port Waratah he could see the fettlers working about 200 metres down the line. He did not get any "all clear" hand signal from anybody when he sounded the whistle and for that reason he kept a good lookout to make sure there was nobody fouling the path of his train amongst those who were working around the track machine. He was watching the track machine intently and anybody around it but did not see anybody as the train passed the maintenance machinery. He could see reasonably clearly down the coal line, bearing in mind it was midnight. He was not necessarily assisted by the floodlighting of the machinery as some of it was shining towards him directed from the Waratah side of the work and towards the track machines, so that probably added to his "blindness" rather than assisting. Mr Curry said that the railway line was not illuminated at the level you would expect of a roadway like a public street - it was dark but, given the limitations, he had as clear a view as anyone does have in the middle of the night. He could see to the degree sufficient to drive a train. He did not have the assistance of daylight. 33 Mr White gave evidence that, as the assistant or observer on the coal train that night, he was sitting on the right hand side of the train and Mr Curry was sitting on the left hand side. The train was a diesel locomotive, roughly 38 trucks long. He remembered Mr Curry blowing the whistle as they proceeded through the worksite and that at the next signal box the train was stopped and they were informed about somebody being hit. He did not see any flagman or safety people giving signals where the fettlers were working but he did see portable floodlighting. It was his recollection that the lighting was to his left but he could not say whether the lighting shone on to the coal line. He was keeping a proper lookout, having seen the fettlers, and was looking for any obstructions on the line. He saw no obstructions on his side of the train. The diesel was not making all that much noise when it was progressing along the coal line.

34 Mr McCullough was the Operations Liaison Officer who organised the track possessions, including possession for this work at Waratah on 13 and 14 June. He said that Mr Mason was employed as a Traffic Officer who supervised himself. His duties involved getting the machines from wherever they were stabled to the work location and to work any ground frames to shift the machines around. While not doing that he was to look out for the men on the machine - he was a lookout for them. When performing this work the only protection was on the closed lines: there was no protection on the live lines. On the night Mr Mason worked in conjunction with team 3. If the work site supervisor wanted something he would ask Mr Mason who would do it if it was within his duties. He gave evidence that, after this incident, the safe working unit instructions were altered so that in multiple tracks, such as those in which Mr Mason was working, there would now have to be a lookout working with him. His task would be to look out for anyone crossing the track and he would direct the train traffic.

35 Mr McCullough gave evidence of the courses that Mr Mason had attended, of ten or twelve weeks' duration, to get his Worksite Protection Class 4 Certificate. He said Mr Mason was qualified to carry out the work required to be done on the night of 13 and 14 June 1998 and that he had in the past requested night work and had experience doing this work at night: he was competent to look after himself in the circumstances of that night. 36 Mr McCullough attended the worksite after the accident involving Mr Mason and was able to say that the lighting was adequate in the area. There were lights also on the regulator and on the tamping machine. Mr McCullough "keyed the frame" when he took over as Traffic Officer after the incident and did not have to use a torch to perform that work. He said he was not working in darkness while he was at the scene. Sometime after he arrived at the scene, and early on the morning of 14 June, he was at the frames when a train came around the corner towards the worksite. He was able to see the train about 200 metres away - it had two marker lights and the engine light and he noted both were moving. When he was performing this work he was the Traffic Officer and he was looking after himself. When he put the key in the frame but had not yet turned it and was waiting to do so, he would stay near the frame but would not come back to the worksite. It was safe to stay on the platform next to the frame because it was elevated off the ground and away from the line. He said it would have been obvious to him that there was a train coming as he looked to his left from the frame, assuming the train to be 25 or 30 metres away.

37 Mr McCullough said that when working with the regulator the machinery extends so that it is capable of fouling the adjoining lines. In those circumstances, the work should be performed under SWU 914 with the use of a lookout and then preventing any trains coming until the equipment had been folded in. No protection is required when the adjacent line is a dead line. Thus, it would be inappropriate to have fencing or boundary tape within the confines next to the other track because they would be knocking them over.

38 When Mr McCullough saw the train he observed in the early hours of the morning, he did not hear it because the track machines, the tamper and the regulator were too noisy. In his experience you would always look for a train because you could not rely on the sound of the train - it could be coming from anywhere. 39 Mr Buttenshaw was a Planning Engineer at the time of the incident involving Mr Mason. In that role he was looking after planning possessions and was regarded as the Possessions Officer. Mr Buttenshaw confirmed that since the accident new rules had been introduced so that, where a person was working next to a live line, there has to be some means of separation from the live line such as a flagman, possession, or separation fencing and lookouts. This new rule applies when there are multiple tracks, as in this case, that is, more than two tracks: then there needs to be a lookout. This change was introduced around 1999.

40 According to Mr Buttenshaw, Mr Bernie Parkes was an Inspector in charge of both resurfacing teams working that night and he had a list of the names of all those working at the site.

41 On the night of the incident Mr Buttenshaw said he was not the supervisor of Mr Shand and team 3, nor was Mr Shand his supervisor. As Possessions Officer he did not have anybody under his chain of command although he could change the work. Mr Parkes was the supervisor of the resurfacing machines.

42 Mr Buttenshaw agreed that the tamping machines were noisy and although there was no obligatory protection, the workers can use ear protection if they wished. Mr Buttenshaw also confirmed that the rules about having 2.5 metre clearance was measured from the edge of the rail on the left hand and on the right hand sides. This was how the SWU was applied.

43 Mr Buttenshaw arrived at the worksite shortly after Mr Mason had been injured. Mr Mason was lying in the six foot between the coal lines and the main lines. He was able to see Mr Mason in the light. The light that had been set up was to light the worksite which was the Z crossing on the up and down main line, and that is where it was concentrated: the crossover was about 75 - 100 metres in length overall. Whether it lit other areas was incidental. The light was very bright where it was focussed, that was at the Z crossover. The light was weakest on the edges of the work, but Mr Buttenshaw could not say precisely where that was. He could not recall if it lit up the Z frame. The elevated bank of lights could be blocked by coal trains passing the crossover on the night.

44 Mr Shand led team 3. He was on the tamping machine with Mr Mason when it stopped at the Islington signal box and Mr Mason obtained the keys that were to be used later at the crossover. At the Z crossover there were point clips to be taken off - Mr Mason took them off assisted by Mr Shand, who held the torch, because there was a shadow cast over the point and it could not be seen. Mr Mason said he was going to put the key in the frame instead of carrying it around because the key was quite large, about half a foot in the shape of T piece. He was not watching Mr Mason crossing the line because he was recording mileage on a piece of paper but he then saw a movement. He did not hear the train as he was about ten metres from the back of the tamping machine and the regulator at that time was picking up ballast and making "a helluva lot of noise". He was about 20 metres from the regulator. It was at this point that he saw a movement out of the corner of his eye and he saw Mr Mason hit by the train. Before seeing the movement out of the corner of his eye he did not hear any other noise apart from the regulator and the tamping machines. 45 There was a tower light shining on the Z crossover, that is, on the up and down lines but it also shone onto the coal lines. Mr Shand was not exactly sure but he thought it lit up 60 to 80 metres. The Z crossing was the main part that was lit up because that was where the work was. The light shone past the work for about 30 odd metres where it started to get darker. He could see anything up to about 100 metres, but in any event between 60 and 80 metres, which was about the length of the crossover. The light faded out after about 50 metres. After that the light got darker but it was "enough to see, sort of".

46 Mr Mason told him he was crossing the live lines to put the key in the Z frame. Mr Shand acknowledged that this was "pretty normal".

47 Mr Shand went along with the decision of Mr Mason to put the key in the frame and to come back to the worksite. It was up to Mr Mason when he put the key in and when he pulled the frame to bring about the change over.

48 Mr Shand thought that the tower light also lit up the area around the Z frame and that it would be wrong to say that, in crossing the up and down coal and the up and down main line that night, it was dark. There was also light being thrown from houses in Upfold Street near the site.

49 Mr Shand said that since the incident the rules had changed for this type of work so that on multiple tracks a worker is not allowed to walk across live lines unless there is someone looking out.

50 After Mr Mason was hit by the train, Mr Shand got out the lamps and sent two of the men out to stop any trains that might be coming because they were now going to have people on a live track and that was dangerous and they had to be protected. Mr Shand agreed that in the centre of the work the light was bright then it faded out but he could still see.

51 Inspector McMartin, an Inspector appointed under the Occupational Health and Safety Act conducted an investigation into the incident involving Mr Mason on 14 June 1998. He visited the site on 15 June and prepared a report in relation to it and also conducted a number of records of interview with persons associated with the defendant or connected with the incident.

52 Inspector McMartin observed the tamping machine and described it as being about the same size as a locomotive. The tamper had fingers coming from underneath which lifted up the track while the ballast underneath was tamped and then re-aligned the track. Especially with the fingers in use, the machine overlapped the rail. The Inspector had measured the rail track as being four feet wide. He described the regulator as having stabilisers or "wings" on each side extending beyond the machine. He also measured the distance between the up main and the down coal line as being six feet.

53 The Inspector noted that on a clear day from the point of the accident there was vision extending some 250 metres in a straight line with coal trains coming around a corner from Port Waratah. He had obtained technical data which indicated that the coal train involved in the incident had averaged 28 kilometres per hour during its journey until the time it was stopped.

54 He observed blood on the stones around the track approximately 10 feet from the Z frame. He accepted that walking 10 feet would take a few seconds and that at an average speed of 28 kilometres per hour the train would travel 20 or 25 metres in a few seconds. He also accepted that, if the train was within 20 to 25 metres of Mr Mason on that night, if Mr Mason had looked he would have seen the train.

55 The Inspector also agreed that it was impracticable to put boundary tape or fences in a position where they might be struck by passing trains and thus create additional hazards.

56 He was satisfied that Mr Mason had obtained the Worksite Protection Certificate Class 4 and the Engineering Safe Working Certificate Class 2 and those certificates were necessary for the work he was doing on the night of the accident. 57 His investigation indicated that Mr Mason was hit from behind and therefore he was not walking towards the train, while looking out for his own safety, as required by SWU 912 C. His investigation also indicated that Mr Mason had used a torch when unlocking the points prior to placing the key in the Z frame. 58 At the time of addresses the defendant accepted that there was no dispute about the following facts:

· in the area where Mr Mason was struck there were four rail lines (also known as roads). They consisted of the up main and down main for which possession had been taken: the up coal and down coal which were live running lines. At the time of the accident Team 3 was working on the down main. There was a corridor greater than 2.5 metres between the live coal lines and the down main line upon which Team 3 were working. This corridor was created by the up main line which the Defendant had possession of at the time; · Mr Mason as part of his duties had to operate the Z frame which was located on the opposite side of the up and down main line. This required him to cross the live up coal and down coal lines; · flood lights were located adjacent to the gantry depicted in Exhibit 2 and on the Upfold Street side of the gantry;. · a canal was located on the down main line ie on the southern side; · Mr Mason on the night had crossed the two live coal lines to place a key into the Z frame; · as he returned from the Z frame to the up and down main lines Mason was struck and injured by a freight train G201 on the down coal road.

59 In relation to the elements of the offence the defendant made the following admissions: (a) that the defendant was an employer; (b) that Clarence John Mason was an employee; (c) that at the relevant time Clarence John Mason and the other employees were at the defendant's place of work and were carrying out work on behalf of the defendant.

60 The elements of the offence which the defendant did not admit were as follows: (a) that at the relevant time Clarence John Mason and the other employees were exposed to a risk to their health, safety and welfare, as particularised by Summons 2671 and 2672 of 2000; (b) that the risk to which Clarence John Mason and the other employees were exposed was causally connected to the particularised failures of the defendant .

THE SUBMISSIONS 61 The prosecution submitted that the obligation under s 15 of the Act was a stringent one requiring an employer to guarantee, secure or make certain of the health, safety and welfare of employees whilst at work (Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467). Warning employees of dangers and training those employees on how to avoid those dangers may not be sufficient compliance with the obligations that the Act imposes ( WorkCover Authority (Inspector Piggott) v Capral Aluminium (1998) 82 IR 468 ; Cullen v State Rail Authority (1989) 31 IR 207). Section 15 imposes a duty not only on the observant, careful employee but also applies to the inadvertent and careless employee.

62 The system of work was as set out under SWU 910 (a), that when employees are working on or about the line and can safely look out for themselves no other protection is necessary. However, where employees could not look after themselves, protection would be required and the level of that protection must be determined by the worksite supervisor. There was no system that involved supervision of the task that Mr Mason was performing by way of lookouts or otherwise. It was established on the evidence that Mr Mason was required to look out for himself. 63 In relation to the Particular involving the crossing of a running railway line in darkness the prosecution made the following points: (a) the headlights of the train were not on and the marker lights were on in accordance with the regulation at the time; (b) Mr Curry, the train driver, did not see any flagman or safety person; (c) there was floodlighting in the work area on the main lines which illuminated the track machine according to Mr Curry. It was in the middle of the night and the train drivers could see sufficiently to drive the train but the driver did not have the assistance of daylight - the light was as clear as anyone has in the middle of the night; (d) Mr White, the assistant driver of the coal train, saw the work area illuminated but had no recollection of any lights on the right hand side of the train; (e) Mr Mason had to use a torch to put the key in and perform his task at the Z frame although he could not recall the state of the lighting near the Z frame; (f) Mr Mason looked to his left and right but did not see the train coming, the inference being that it was dark or that there was at least a partial deficiency of light; (g) Mr McCullough described the light as quite "adequate" but when asked whether he saw "the train, the light of the train or the train frame" in relation to another train moving through later that night, Mr McCullough was clear that he only saw the two marker lights and the engine lights because they were moving - the inference being that it was dark and there was a deficiency of light, partial or total; (h) Mr Buttenshaw confirmed that the lights were shining on the work site which was the up and down mains and that the purpose of the lighting was to light up the crossover. Thus it was not the purpose to light up the Z frame or the coal lines; (i) Mr Shand said that the light was mainly on the main lines, and the Z crossover. He could not remember how far the light went but said that the light where the incident involving Mr Mason occurred was "half the light at the middle" referring to where the work was being undertaken at the crossover .

64 In relation to supervision, Mr Mason had thought Mr Buttenshaw was his supervisor for the night and did not know that his supervisor was Mr Shand. Mr McCullough considered that Mr Mason supervised himself and Mr Shand considered himself certainly not responsible for Mr Mason when he was moving from the tamping machine to the Z frame because Mason was responsible for his own safety. Mr Mason's work on the night, especially when he was keying the Z frame was entirely unsupervised.

65 It is significant that the system of work changed following the accident. The new system involves a lookout when the Traffic Officer crosses the live lines. Mr McCullough had said that the defendant did not take possession of the up and down coal lines because "we were not affecting those tracks", apparently a reference to the work being performed on the line. The Prosecutor noted that, whether or not the possession of the coal line should be taken, on McCullough's evidence, was decided by where the work was being performed rather than how it would be safest to perform the work. 66 It was also significant that Mr Shand, who was at the Z crossover, did not know of the train until it hit Mr Mason. This was said to go to the danger of the possibility of a train passing through: it was not heard or seen because of the noise and the night time.

67 Lights and detonators were placed on the track for which possession was taken but not on the live coal line tracks. It was unclear why there was this limitation on protection.

68 The work being undertaken on the night in question was dangerous for a number of reasons: (a) it was night time; (b) trains were travelling without their lights on; (c) the tamping machine was a very noisy machine; (d) the work area (on the Z crossover ) was brightly lit; and (e) it was easy to keep people out of the way of trains than vice-versa given the difficulty in stopping the train. There was a difference in performing this work at night time rather than during day time; it required a system of work that had regard to the known and identified dangers that emerged.

69 The defendant submitted that the elements of the offence to be proven must be proven to the criminal standard (State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120 - 121).

70 The prosecution's case focussed on the three particulars which were said to constitute the actual omissions of the defendant that created the offences. They were: (a) a failure to ensure employees could not come within 2.5 metres, horizontally, of the nearest rail of any running railway line; (b) a failure to ensure that a system of protection of the worksite was in use with barriers or boundary tape; (c) a failure to ensure that employees crossing the line of a running railway line, in darkness, were not placed at risk of injury.

It was important to note that Particular (c) focussed on the fact that the risk to safety is present only when the running lines are crossed in darkness - the essential element in this Particular in each Summons is the reference to "darkness".

71 Part of the defendant's system was the pre-work briefing held by Mr Buttenshaw where the workers, including Mr Mason, were made aware that the coal lines were live.

72 Prior to this briefing Mr McCullough had arranged for the issue of special train notices by faxing them to signal boxes in order to prevent the work from being held up as planned on the night. 73 Possession was taken of the up and down main line between Islington and Waratah stations. At the time Mr Mason was hit by the train on the coal line team 3 were working on the down main line and no work had commenced at that point on the up main line.

74 The distance between the up and the down main line was measured and found to be two metres. The distance between the up main line and the coal line was a further two metres. It was submitted that when the regulator and the tamper were located on the down main line and the coal train was passing on the down coal line, there was a distance of at least four metres.

75 The distance from where the coal train travelling on the down coal line turned the corner leading to the Z frame where Mr Mason crossed the line was approximately 250 metres.

76 The rail system in New South Wales was governed by a set of rules known as the Safe Working Units. Contrary to the opening of the prosecution the defendant asserted that the relevant SWUs in operation on 14 June 1998 were applied and this was supported by the evidence. 77 A distinction had to be made between the work being performed by the rail gang and the role of Traffic Officer performed by Mr Mason. The role of Traffic Officer was very different work and different SWUs applied to that work. For instance, SWU 900[d] applied where work is being performed near running lines (for example where the tamping machine and the regulator would have been moved to the up main line): that would not apply to the crossing of a running line such as the work of changing the Z frame.

78 The tamping machine and the regulator operated in such a way that they extended over the rail such that if either machine had been used adjacent to a running line there was a potential risk of fouling the running lines, that is, of coming within 2.5 metres as specified in SWU 900[d]. The evidence, however, established that, at the time of the accident, both machines were located on the down main line which was separated from the nearest running line by a distance of more than 2.5 metres. Further, Mr Mason was working as a Traffic Officer and did not work on the machines other than to bring those machines to the Z crossover area.

79 The role of the Traffic Officer is a special role and involves the holding of certain certificates which Mr Mason had obtained. Mr Mason did not do any other work with the machines other than to supervise their movement into position from live lines to dead lines and vice-versa. The Traffic Officer must cross running lines to perform the relevant task. Given his qualifications and experience the defendant submitted that, if Mr Mason was not able to cross a running line safely, then there could be no circumstances where any employee could cross running lines.

80 In relation to the employees in team 3 they were supervised by Mr Shand who also acted as a lookout to make sure no employees crossed over on to live tracks. While these employees were working on the down main line they were never in a position where they could come within 2.5 metres of a running line. In addition, no member of team 3 had to cross the coal lines to undertake the work. There was no need to place barriers or boundary tape at the Z crossing while work was only being performed on the down main line. The use of barriers was not practicable in all the circumstances. When the machines were to travel to the up line Mr Shand's evidence was that he planned a system of protection of the up main line by using a hand signaller on the down coal line. It was submitted that this meant that no train could travel on the down coal line without the permission of the handsignaller in compliance with SWU 913. In such circumstances, there was sufficient supervision necessary to ensure the safety of the employees working on the tamping machine and the regulator. 81 In relation to Mr Mason's work as Traffic Officer Mr Shand gave evidence that he was of the view that Mr Mason was able to cross the live running lines safety. Mr McCullough's evidence was that the Traffic Officer did not require a supervisor to undertake the work being performed by Mr Mason on the night in question. Mr Mason himself was not concerned by any risk to safety arising from having to cross the running lines; as a qualified and experienced Traffic Officer he was able to cross the running lines in accordance with the relevant SWUs which were in operation at the time and if he was concerned about safety he could have asked Mr Shand to provide some form of protection such as a lookout. He made no such request. His training and experience allowed him to adequately assess the risk. If Mr Mason did require supervision on the night, then he was supervised by Mr Shand, Mr Buttenshaw, Inspector Bernie Parkes and Mr McCullough.

82 The defendant submitted that in all the circumstances, Mr Mason was provided with such supervision as to ensure his safety on the night in his role as Traffic Officer. The actions of Mr Mason that directly led to the accident were deliberate and not mere inadvertence. He had made the decision to place the key in the Z frame at a time earlier than required and he crossed the running lines without looking with his back to the direction of the train at the same time speaking on his traffic radio.

83 The evidence showed that the coal train was travelling at 28 kph and therefore could only have been some 30 metres away at the time Mr Mason commenced to cross the live coal lines. Mr Mason was found some 10 feet from the Z frame and agreed that it would have taken him about three or four seconds to walk from the frame where he had placed the key to the point where he was struck by the coal train. If Mr Mason had taken five seconds then the train would have travelled 35 metres. It was therefore clear from the evidence that, had Mr Mason looked in the direction from which the train was travelling, he would have seen the train. Mr McCullough later in the night saw the same type of train some 200 metres away after the incident. He said that a train some 30 metres away would have been clearly visible if a person was looking in that direction.

84 The train driver and his assistant confirm that they had a view of the work site of the Z crossover for approximately 200 metres and they saw no obstruction. This is consistent with Mr Mason starting to cross the live lines when the train was very close to the Z frame because, at the time of the accident, he was wearing a reflecting vest and carrying a lamp. The actions of Mason on the night could not on any reasonable view be said to be in the control of the defendant nor were they acts for which they could make provision. The direct and immediate cause of the accident was that Mr Mason failed to keep a proper lookout when he commenced to cross the railway tracks. All of this evidence supported an inference that at the time Mr Mason crossed the live lines he failed to look for the presence of any train on the tracks despite his knowledge that the tracks were live and despite the training he had been given.

85 At the time of the accident, Mr Mason said he was using his traffic radio to contact the Islington signal box. The radio appeared to be working and Mr Shand was able to use it after the accident to speak to the Islington signal box. The radio frequency used on the night meant that a number of parties could hear what was said and that included employees in the signal boxes and train drivers.

86 Particular (iii) of the Summons centred upon there being work performed by crossing live lines in darkness. All the evidence showed that it was not dark. The Z frame and Z crossover areas were lit by floodlights located some 20 metres from the eastern side of the gantry, and from Upfold Street and all of the street lights and house lights from the nearby homes, as well as the lights on the tamping machine and regulator.

87 The use of fencing or boundary tape under SWU 900[f] was not applicable to the work being performed by the team on the down line nor was it relevant to the work being carried out by Mr Mason on the night. It was also impracticable to use barriers or boundary tape between the down coal line and the up main line where the machines being used because the machines extended beyond the rail and could be fouled.

88 Mr Mason was well qualified under the SWUs and was very experienced in his work. He had in the past requested night work and he was qualified and able to cross a live line. He had not sought any additional safety measures to perform his task in relation to the Z frame on the night. He agreed that it was possible for him to remain at the Z frame until the cross-over was completed but he had decided not to do so. If he had remained on the platform beside the Z frame he would have been well clear of the coal line.

89 The up-dating of the SWUs to provide for a lookout since the accident is not relevant. The amendment applies only to multiple lines and the work performed on that night does not meet that description. The relevant issue was said to be whether the system of work used on the night was safe. Simply by updating the SWUs to encourage and improve occupational health and safety does not mean that the original system was unsafe. There was no evidence to demonstrate that the SWUs in force at the time were other than safe. In any event all that had happened was the system has had another layer of supervision added to that existing system. Ultimately, the only issue of relevance is whether Mr Mason was sufficiently qualified to cross the live lines and complied with the relevant SWUs, namely SWU 910 and 912.

90 The defendant also relied on the two defences provided under s 53 of the Act. The system being used on the night did not place employees working on the machines within 2.5 metres of the nearest running line. It was not practicable or reasonable to put in place barriers or tapes while operating the machines in these circumstances. The area in which the work was being performed at both the Z crossing and the Z frame were lit. The work required of Mr Mason as a traffic officer were within his experience, training and qualification. The SWUs applied on the night allowed for Mr Mason to cross running lines and he held the necessary qualifications. Finally, the defendant submitted that it was beyond its control on the night to have prevented Mr Mason from walking without looking across a running line with his back to the approaching train some 30 metres away whilst talking on a radio.

91 An issue arose during the course of the evidence as to whether or not it was proper to admit evidence on measures taken after the accident by the defendant to avoid a similar occurrence in the future. The objection was put forward on the basis that such evidence was irrelevant and that the charge was being defended on the basis of what system and procedure was in place at the time of the accident and that whatever improvements might have been made after the accident should not be allowed in evidence against the defendant and, further, would militate against any such improvements being made. For the prosecution it was put that this evidence was relevant to the extent that it may cast light on whether the system that was in place at the time was safe or not and secondly, and perhaps more importantly, in the light of an indication that there would a defence raised under s 53, this evidence went to the issue of practicability. In accepting the relevance of this evidence it was noted that a difficulty is created where the Act does not require prior notice of the nature of the defence to be pleaded under s 53 and where the prosecutor must then conduct its case on the basis of possible defences relating to issues of practicability. Undoubtedly for good reason, no prior notice of such a defence, as required by the Criminal Procedure Act 1986 in relation to alibi or the intention to adduce evidence of substantial mental impairment, is required in proceedings under this Act. Some flexibility needs to be given in dealing with objections raised on the relevance of evidence in circumstances where the material has a capacity to touch on the question of practicability of other steps and procedures and possible defences under s 53.

92 In McMartin v The Broken Hill Proprietary Company Ltd (2000) 100 IR 241 Grove J, with some reluctance, admitted evidence concerning the action of the employer since the accident. It was not suggested that the evidence would fall within the purview of the particularised charge but was said to be in anticipation of any defence raised under s 53. His Honour noted that the evidence demonstrated what the employer might have done prior to the accident. In his Honour's view that was of no more significance than a speculation that the employer might have, for example, taken some step, which on the facts in the case he was considering, would not have prevented a happening which was consequent upon a determined ignoring of all the available warning systems. BHP was a particular case where there were a number of layers of protection instituted by the employer and where the court had difficulty in understanding the apparently inexplicable actions of the employees in ignoring the layers of the system and its requirements for safe operation .

93 In Schultz v Tamworth City Council (1995) 58 IR 221 Fisher CJ, sitting as the Industrial Court of New South Wales, permitted evidence to be adduced where, following a workplace accident at the city abattoir, a simple stop button was later introduced so as to intercept any problem arising on the chain. His Honour noted that the installation of the stop button at least illustrated its practicability (at 227). Similarly, in Department of Mineral Resources (NSW) (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8, Vice-President Walton stated: Whilst the response by the defendant after the accident was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendant to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system; WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J CT 1280 of 1995, 2 April 1994 at pp 21 - 22) 94 The approach in these cases under the Act reflects the approach in Nelson v John Lysaght (Aust) Ltd (1974-5) 132 CLR 201. In that case the High Court relied on evidence of a new system of work installed shortly after an accident to show the previous system to be defective, where an employee sought damages in negligence because of the employer's failure to provide a safe system of work.

95 A further point of contention arose at the commencement of addresses which is appropriate to note at this point. Counsel for the prosecution accepted that he should be the first to address but that the prosecution should have a right of reply, especially in light of the undisclosed nature of the s 53 defence which the defendant indicated it would raise. This course was opposed by senior counsel for the defendant who submitted that in a criminal proceeding such as this prosecution under the Act there was no reason to depart from normal procedure in a criminal trial and the defendant should have the last word even though this was not a jury matter.

96 Counsel's attention was directed to the unreported judgment of Peterson J in Inspector Page v Woolworths Limited and Growth Equities Services Pty Ltd [CT 1044 of 1993 and 0147 of 1993, 9 September 1994). In that case, submissions had not been completed and counsel for the parties agreed that further submissions could be put in writing, including a reply by the prosecution in relation to new issues raised in the defendant's case. However, when the written submissions were received by his Honour the defendant objected to the further written submissions in reply by the prosecution and asked the court to disregard them. It was submitted for the defendant that the prosecution was not a civil case and there was therefore no opportunity for submissions in reply. Authority was cited in support of the proposition that there was either no right of reply available to a prosecutor who was not a representative of the Crown, or the right of reply rises only when counsel for the accused has asserted relevant facts which are not supported by the evidence. It was pressed that in either case submissions in reply should not have been filed and should not be received by the court. His Honour dealt with the submission in the following way:

In R v Shanahan in 1861 the Full Court of the Supreme Court of New South Wales, Stephen CJ., Milford and Wise JJ held that a right of reply in a criminal prosecution was to be afforded to the Crown. It was reported of the Chief Justice that the right or reply 'belonged to the person practically and in fact representing the Crown, not one who but theoretically represented it, as would be the case with counsel for a private prosecutor … there could be no doubt as to the existence of the right in the person actually and practically representing the Crown. However, in R v O'Donoghue Hunt J dealt with the current position; his Honour said at p 404: Where counsel for the accused abuses his anomalous right of last address, it becomes the duty of the trial judge to ensure that the balance is kept between the parties: cf Cleland at 10. The power given by s 405(3) to grant leave to the crown to make a supplementary address after that of counsel for the accused is limited to those cases where counsel for the accused has asserted relevant facts which are not supported by any evidence or by his client's unsworn statement. Such leave cannot be granted to the Crown simply because counsel for the accused has put arguments to the jury which are fallacious, illogical, extravagant, excessive, unwarranted or dishonest: cf Glusheski (1986) 33 A Crim.R 193. The task of pointing out such blemishes used to be left to the Crown Prosecutor who had the last address. Where such arguments have reasonably not been foreseen by the Crown in advance, it is now left to the trial judge to clean up the mess created by counsel for the accused, otherwise the jury may be quite wrongly influenced in its deliberations to the prejudice of the Crown. Each of the 19th Century authorities deal with the right of the Crown to address in reply in jury trials. The judgment in R v O'Donoghue updates the position in the earlier cases by reflecting what is a limitation imposed by s 405(3) of the Crimes Act 1900 on the right of the Crown to further address the jury in reply to excesses by counsel for the defendant. Neither the submissions of Woolworths nor the judgments suggest any reason why I should regard them as applicable in the present case. There is, so far as I am aware, no rule, practice or usage of this Court which either expressly authorises or restricts the Court in hearing a prosecutor in reply. Part 13, Rule 9, Supplementary Practice Before Court, of the Court's Rules, provides that where there are no relevant rules, established practice, procedure, usage or any order, direction or practice note in force: The practice, procedure or usage of the Supreme Court … is, as far as practicable, to regulate the practice, procedure or usage of the Court. Part 34, Rule 6 of the Supreme Court Rules concerns the order of addresses, but in the civil jurisdiction of that Court. Part 75, Criminal Proceedings of those Rules provides that many other parts and rules are applicable to criminal proceedings in the Court but not Part 34, Rule 6. Division 2 of Part 75 applies to proceedings in the Supreme Court under the Supreme Court (Summary Jurisdiction) Act 1967, which binds this Court by virtue of s 298(2) of the Industrial Relations Act 1991. No provision is made in these rules or the Supreme Court (Summary Jurisdiction) Act 1967 for the order of addresses or the matter of a reply. It seems to me to follow necessarily that the matter of a reply is for the Court to determine in the exercise of its discretion. Whilst commonly in my experience in these matters the prosecutor will address first and the defendant second, with no reply sought or given, this does not to my mind amount to a practice or usage. (pp 4 - 7) 97 It may be of some relevance that the Criminal Procedure Act 1986, Pt 4, Criminal Procedure Generally, in Division 2, deals with general trial procedure. Section 97 deals with an opening address to a jury by an accused and s 98 deals with the closing address to a jury by an accused person and in sub section (2) notes that, if in the accused person's closing address, relevant facts are asserted that are not supported by evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion. In its limited circumstances this provision at least contemplates a reply by the prosecution.

98 It will not be in every case that the prosecution requires or should be given a right of reply. In the present case, where a defence under s 53 was raised, it was not just appropriate but, in my view, a requirement of justice that the prosecutor be given a right of reply to deal with the issues raised in that defence. Although the industrial legislation has altered somewhat since Peterson J gave his judgment in Page, the thrust of his Honour's reasoning, it appears to me, remains sound under the present legislative scheme.

DELIBERATION 99 The essence of the defendant's case is that there was no risk to health, safety and welfare of the employees, including Mr Mason, and that there was no causal connection with the failures particularised in the charges. A point emphasised by the defendant, in each charge, is that the crossing of a running line "in darkness" elevated "darkness" to the level of an essential element in each charge. These matters are considered in the following paragraphs.

100 It is appropriate to commence with the defendant's submission that the Safe Working Units amounted to a safe system of work such that the charges could not be maintained against the defendant. SWU 900 required a clearance of 2.5 metres from the nearest rail of any running line where engineering work is involved. The defendant pointed out that, for so long as the work that night was being performed on the down main line, there was such a clearance and I accept that submission. The work on the night, however, involved employees crossing over to the up main line which would have been within 2.5 metres of a running line. As the evidence demonstrates, because of the injury to Mr Mason, that work was not undertaken on the night but was proposed to be undertaken. When that work was undertaken SWU 900[f] proposed that barriers may be provided within safe clearances to protect work adjacent to the line. SWU 900[g] stated that high visibility demarcation fencing or boundary tape may be used to define a work area, and, when using such means, normal protection must be provided. Having regard to that scheme it is somewhat curious that the defendant cross-examined to demonstrate that, when working beside a live line when the regulator was used with its overhanging wings, such fencing or use of identifying tape would be impracticable as it would be likely to foul the regulator.

101 Mr Shand's evidence was that when the machines were to be crossed over so as to be adjacent to a live running line he had proposed a system of lookouts and handsignallers in order to protect those working around the maintenance machinery. That was an approach available under SWU 910[a] where employees cannot look out for themselves thus requiring protection; it was also covered by SWU 913[a] where if all employees in a working party cannot be satisfactorily warned about approaching trains, the worksite must be protected either by positioning handsignallers or by erecting temporary track protection boards. SWU 912[a] also proposed a method of handsignallers (other than looking out for themselves) when employees were working on or about a line when trains were not required to slow down or stop. While there may be some force in the view expressed by Mr McCullough that the use of boards or barriers may have fouled the wings of the regulator there does not appear to be any reason why highly visible tape could not have been employed to define the work area at a safe distance from the adjacent running line when used in conjunction with a lookout or handsignaller. The use of a handsignaller and boundary tape are both contemplated by the SWU.

102 There are, however, broader considerations. The SWUs made a number of provisions allowing for a discretion to be exercised in the way safety was to be provided when working near a live line. For instance: barriers "may" be used to protect work or to define a work area; protection may be given by positioning handsignallers or by erecting temporary track protection boards or both. The defendant called no evidence as to how employees were trained to assess various circumstances and to decide upon the most appropriate form of protection - a barrier, tape, a handsignaller or any combination of these methods. SWU 910 simply said, where workers can look after themselves no other protection is necessary. Who was to make this decision and on what basis? What training was given as to how to make such a decision? Under SWU 910 if workers could not look after themselves, then protection was to be determined by the worksite supervisor. Who was this person? No one was clearly identified in the pre-works papers, instructions or briefing as the worksite supervisor for the purposes of SWU 910. In Mr Mason's case, as a Traffic Officer, he was to look after himself. There was no detailed evidence as to the training given as to how he was to look after himself in the various circumstances in which a Traffic Officer is involved. How was a Traffic Officer to decide whether or not he needed protection? What was the training given which equipped such employees to make that judgment? Again, who is the designated worksite supervisor who is to make the decision as to the type of protection to be accorded to a Traffic Officer? At best, there seems to be a skeletal system of safety at work. It did not ensure the safety of workers near a live line. Further, the defendant relies upon the 900 series of SWUs as providing the relevant safe system. Ms Dally's evidence was that where a train was passing through a worksite, the safe working system included "… parts of the safe working manuals … which could be the 100 series, parts of 600 series and parts of 900 series". This confusion as to which rules applied demonstrates in the clearest way how there was an absence of a safe working system and how inadequate were the SWUs. The SWUs however lay at the heart of the defendant's case that there was a safe system of work.

103 I am quite prepared, as requested by the defendant, to consider separately the work performed by the tamping team and the work performed by Mr Mason in his role as Traffic Officer. I have already accepted that while the maintenance machinery and its crew were performing work on the down main line they were sufficiently clear of a running rail so as not to require barriers or tapes; this is especially so in circumstances where the system of work had the ganger, Mr Shand, operating as a lookout together with Mr Mason acting in that role when he was not performing the keying function at the Z frame. Different considerations come into play when the proposed work shifted to the up main line. There seems to be no reason why a system of highly visible tape should not have been employed to define the work area at a safe distance from the adjacent live running line.

104 It is of interest, and it is relevant to both the work of the resurfacing team and the Traffic Officer, that Mr Mason's evidence was that he would be informed by the signalling box (at Islington) that a train was approaching which enabled him to warn the resurfacing team and also give the all-clear signal to the train driver. Mr Shand gave evidence to similar effect. It is significant that neither Mr Shand nor Mr Mason gave evidence that they had been given prior warning of the arrival of the train driven by Mr Curry. When performing the duties of Traffic Officer, Mr McCullogh made no mention of being warned about the approach of the train he saw that night.

105 SWU 919 dealt with driver's duties when approaching people on or near the line and worksites and par [b] provided that, in areas where visibility is reduced, the Worksite Supervisor may arrange for a handsignaller to act as a lookout and where necessary this employee may place one detonator on the line to warn the employees in the work party. Par [c] provided that where a driver notices people or equipment on or near the line they are to sound the locomotive whistle to warn of the train's approach. On the night of this incident, Mr Curry said that when he saw the work (of which he appears to have had no prior notice) he proceeded with caution and sounded the train's whistle. There is no evidence, especially from Mr Shand or Mr Mason (or Mr McCullogh), that they heard the whistle. This is not surprising in view of the evidence given by a number of employees well versed in the workplace operations of these maintenance machines that they create a very high level of noise, said by Ms Dally to be in excess of 85 decibels and where protective gear is to be worn by the employees. Mr Buttenshaw was of the view that such ear protection was not necessary but was optional. In any event, the use of ear protection would only reduce the ability of members of the team to hear the whistle required of the engine driver. On this night, no detonators were used or proposed to be used on the live line and the train whistle appears to have been ineffective, and it must have been well known to the defendant that in such maintenance work situations the whistle would be or would likely to be ineffective. SWU 913[b] recognised that the use of noisy machinery may make it difficult to hear audible warnings. That was an example of circumstances where the work requires trains to slow down or stop. This part of the SWU system was not proposed for the work on this night.

106 The position is then that, on this night the system of work which required an approaching train driver to engage the whistle to announce his approach, combined with the noise of the machinery, made this part of the system of work largely ineffective and therefore incapable of providing a safe work place. It is problematic that the use of a detonator, in view of the noise of the maintenance machines could have been heard, although depending where they stationed themselves, it is possible that either Mr Shand or Mr Mason could have their attention attracted by such a device. This may also apply to the train whistle. A system which works only occasionally does not ensure the safety of employees. But that system, using a detonator on the live lines, was not proposed for that night. In addition, the system of prior warning of an approaching train from the signal box using the radio does not appear to have always been effective that night: nor was it a system laid down in any of the SWUs tendered. SWU 910[a] contemplated that safety equipment may include two way radios, but did not lay down a system for their use.

107 In relation to Mr Mason the system of work under the SWUs was that he was to look after his own safety. The defendant relies upon the training provided to him including the system of safe working units, even though that system left him to look after himself unless he formed the view that he needed some protection which would then have to be decided upon by the worksite supervisor: even at this point Mr Mason was left to make up his own mind including whom to consult about arranging protection if it was thought necessary. It is difficult to accept that a system that leaves it to employees, even trained employees, to look after themselves can be described as a safe system of work. The work was being performed at night around machines that emitted so much noise that employees could not hear each other unless they yelled or raised their voice. The noise was such that a Traffic Officer may not hear the train, the train whistle or even a detonator.

108 Beside the function of bringing the machinery to the worksite and undertaking the keying of the frame, as Traffic Officer, Mr Mason was also a lookout for the resurfacing team. That was also a function performed by Mr Shand as the resurfacing ganger. It was accepted by senior counsel for the defendant that the part of Mr Mason's duties which required him to cross the live up and down coal lines to key the frame occupied a very short amount of time - the crossing of the lines may have only occupied seconds and certainly less than a minute. In such circumstances it is difficult to understand why the ganger should not have been designated the task of keeping a lookout for the Traffic Officer. This is especially so when the work is being performed at night time, even though there was light provided at the worksite. I will deal later with the adequacy of that light and whether or not Mr Mason was required to cross the live lines "in darkness" but for present purposes, it is enough to note that this work was being performed in the late night and early hours of the following morning and that an approaching train would be coming out of darkness. In addition, the system, not noted in the SWUs tendered in the proceedings of the signal box indicating on the radios held by Mr Shand and Mr Mason that a coal train was approaching, seems to have broken down. Indeed, Mr McCullough who performed the Traffic Officer function after the accident and injury to Mr Mason says nothing about being warned from a signal box of the approach of a train that he observed. If the use of the radio and a forewarning by the signal box was part of a safe system it was also one which was breaking down fundamentally on the night.

109 These facts lead to a consideration of the approach taken by Fisher CJ in Schultz v Tamworth City Council (1995) 58 IR 221. In dealing with whether or not a safe system of work had been laid down by the employer, his Honour stated: Where the employer employs a workman he accepts a duty not to expose the employee to an avoidable risk of injury. Further, it is not sufficient, nor is such duty of care discharged, by the establishment of a formal or idealised system, sometimes called a "paper" system. The system at issue is the actual system of work utilised in the course of employment whether prescribed or not. It is sometimes said that an employer, as part of his duty not to expose an employee to avoidable risk of injury, has a specific duty to establish and maintain a safe system of work … (at 226)

The appropriate approach to the institution and maintenance of a safe system of work is to be found in a decision of Hilbery J in Barcock v Brighton Corporation [1949] 1 All ER 251 at 255. Addressing the question, essentially the question that has to be addressed in this case, Hilbery J asked: What system of work had the employers provided for doing this work? The employers had seventy sub-stations, and the test was done almost daily. It was, therefore, a matter which called for some system of work devised and decided on by the employers. They had a duty to provide a reasonably safe system of work. The employers contended that they had provided a safe system of work by ordering the workman to read and follow the memorandum on the regulations, but I do not think one devises a system of work by saying to a workman: 'Read the regulations, and do not break them'. In my view, that is not devising a system of work. I think also that in this case no responsible person on behalf of the employers had devised any system for doing this work, and it is the particular work which is in hand for which a reasonably safe system has to be devised and used. If, however, it is contended that the employers had devised a system, then, in my opinion, by a long usage that system had in practice been utterly disregarded, it seems to me to be no use for a master to attempt to say in a court: 'I discharged my common law duty because I put down on paper a safe system and gave it into the workmans' hands, if for years they showed him, by the action of those who were his superiors, that the work was not done in the specified way, need not be done in that way, and could be done in another way which involved danger. Those are the circumstances here. I should have thought that, instead of providing a safe system of work, the employers had, in fact, provided throughout the years an unsafe system of work as a system it was expected should be employed, not withstanding that it involved risk, because, in the view that was expressed by Mr Bousefield, 'If you did not take risks, you would never get anything done. (at pp 227 - 228). I accept that, in that particular case, his Honour was dealing not only with the inadequacy of the paper system but a history, demonstrated on the evidence, of disregard for that system in any event. In my view a system which is skeletel and essentially says: "Look after yourself", is not the provision of a system of work at all and is certainly not the provision of a safe system of work. There was no evidence that gave substance to the training received when "looking out for yourself ".

110 As long ago as Watson J's judgment in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, it was held that s 15 of the Act imposed a stringent obligation on an employer. That judgment, which has stood the test of time, looked at the legislative intent to be inferred by the use of the words "shall ensure" in s 15(1) of the Act. In the course of this much quoted judgment his Honour stated: What intention is to be inferred from the use of the words "shall ensure" which (leaving aside s 53) are without qualification? In Sweet v Parsley [1970] AC 132 at 163 (a case in which the House of Lords was called upon to consider the question of the absolute nature or otherwise of a statutory offence) Lord Diplock stated as follows : Where penal provisions are of general application to the conduct of ordinary citizens in the course of their everyday life the presumption is that the standards of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject matter of a statute is a regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the Court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who chose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation (see Lim Chin Aik v The Queen [1963] AC 160, 175) … In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain' (at 469 - 470). Requiring Mr Mason to look out for himself did not ensure his safety at work. Further, the system of work appears to have the elements of a mere paper system so rightly condemned by Fisher CJ in Schultz.

111 In relation to the question of whether Mr Mason was supervised on the night, the defendant's primary position is that he did not need to be supervised because the system of work, which included the training given to Traffic Officers, meant that he could safely look after himself when crossing live lines. I have already found that this was not the provision of a safe system of work nor was it, indeed, a system at all. In the alternative, the defendant submits that Mr Mason was supervised by Mr Shand, Mr Buttenshaw, Inspector Bernie Parkes and Mr McCullough. As noted earlier, there is no evidence and no submission from the defendant how these various people played a role, in a practical sense, in supervising the work of Mr Mason as Traffic Officer on this night, and especially when he was keying the frame to permit the crossing by the maintenance machines. Indeed, the evidence on supervision is farcically contradictory. Mr Mason thought Mr Shand was his supervisor on the night. Ms Dally (the Occupational Health and Safety and Rehabilitation Risk Manager, Rail Services Australia) stated that Mr Buttenshaw was Mr Mason's supervisor because he would have worked with a Possession Officer and that was Mr Buttenshaw. Mr McCullough, in fact, was in charge, overall, of possession. Mr Buttenshaw did not regard himself as Mr Mason's supervisor and believed that the role he performed meant that nobody was under his chain of command. He thought that Mr Mason was supervised by Mr Shand since he was part of team 3. However, earlier in his evidence Mr Buttenshaw, who conducted the safety briefing for that work on the night of 13 June 1998, recalled how Mr Mason had asked whether he was involved or invited to the briefing because in Mr Buttenshaw's experience Traffic Officers did not consider themselves as part of the resurfacing team. Mr Buttenshaw also gave evidence that Inspector Bernie Parkes was in charge of the resurfacing teams. Mr Shand said that, while Mr Mason was working on his worksite he "guessed" that he was Mr Mason's supervisor but when Mr Mason was putting the key in the Z frame he had no responsibility for Mr Mason's movements. This may reflect Mr Shand's belief that crossing the live lines and working on the Z frames was not part of the work site over which he had control, namely, the cross over on the up and down main lines. Mr Shand thought that Mr Mason was in charge in bringing the team and the machines to the worksite. Mr McCullough stated that as Traffic Officer Mr Mason was to look after himself although other arrangements could be made if he was not satisfied about looking after himself. He also confirmed that part of Mr Mason's duty as Traffic Officer was to look out for the men on the machine. That answer is important for another submission made by the defendant, namely, that Mr Mason was not required to leave the Z frame, and once he put the key in it he could have and should have stood on the platform next to the Z frame which was a safe distance from the live coal lines, and thus avoid being hit by a train. When this proposition was put to Mr Mason he did point out that he could hardly act as lookout for the men on the maintenance machines as he was some 40 feet away from them standing on a platform with the Z frame.

112 It seems from the provisions of the SWUs and Mr McCullough's evidence that, if Mr Mason was not satisfied with looking after himself, then the worksite supervisor could make appropriate arrangements for his safety. The worksite supervisor could have been Mr Shand (although on the evidence it could be Bernie Parkes, who was not called as a witness, or the others nominated by the defendant). Undoubtedly, if Mr Shand had been asked he would have been able to perform the role of lookout for the very short period of time during which Mr Mason left the position of lookout for the team and crossed the live lines to the frame. Such a task would hardly have seriously impinged upon Mr Shand's duties that night and in one respect fitted in with his duties as being a lookout for the resurfacing team. Tradition, however, appears to have treated the Traffic Officer as not being part of that team. Again there are contradictions: Mr Shand gave evidence that he held a torch for Mr Mason while Mr Mason removed the point clips at the change over because when performing this task a shadow was cast and therefore the torch was needed. This was another task which showed that they could and didwork together but Mr Mason was not regarded as part of team 3. A further contradiction is demonstrated by the provisions of SWU 901[j] and the duties to be performed by a person with a Worksite Protection Class 4 Certificate. Such a person was certified to: "determine the level of protection needed before the work commences; arrange to take possession of a line(s); arrange protection of any worksite." It can be seen from the evidence that these tasks were in fact performed, in some way or another, by a variety of people including Mr McCullough, Mr Buttenshaw and Mr Shand. Mr Mason was to "look after himself" but no guidance is given as to how his authority under the Class 4 Certificate was to be exercised in light of the various provisions of the SWUs, the authority given to a "worksite supervisor" and the roles allocated to or assumed by officers such as Mr McCullough, Mr Buttenshaw and Mr Shand. Then there is the unexplained role of Inspector Parkes who was said to be in charge of all the resurfacing teams operating that night. 113 This evidence demonstrates the utter confusion reigning within the defendant's organisation as to lines of supervision. There appear to be overlapping lines of authority and supervision but certainly no clear understanding in the workforce as to who would exercise supervisory functions in relation to matters of safety and at what times. It speaks volumes of this chaotic method that very experienced railway men such as Mr Shand and Mr Mason, who are in many respects the main players when this maintenance task is being performed, had no real idea of who was to supervise on the night. This unsatisfactory position also raises the question of whom Mr Mason was to approach to authorise a lookout or other protection if he felt that looking out for himself was inappropriate. The defendant's submission in the alternative, that supervision was provided by Mr Shand, Mr Buttenshaw, Inspector Parkes and Mr McCullough, is simply untenable. There was but passing reference to Inspector Parkes as being a person who was "there" but no detailed evidence was called as to his role and duties. It is not surprising that, in light of the state of the evidence, the defendant simply put forward this proposition in the alternative but did not stay to tackle the challenging task of describing how this multi-layered system of supervision operated in practice and operated to provide a safe system of work.

114 As recorded earlier, the defendant submits that the charge that the failure to provide supervision to ensure that employees crossing the rail of a running line in darkness were not placed at risk of injury elevated the element of "darkness" to an essential element of the offence. There is no dispute that the work commenced after 9.00 pm on the night of 13 June 1998 and that the injury to Mr Mason occurred at approximately 12.15 am of the morning of 14 June. The evidence shows that a bank of floodlights was located on the Upfold Street side of a gantry which spanned the railway lines, being a bank of lights elevated to a height by a telescopic pole holding them which itself was part of a mobile unit. The evidence suggests that these mobile lighting banks were hired for such purposes. The work of team 3 was the maintenance of the down and up main line using the tamping machine and regulator. Shortly before the injury suffered by Mr Mason this work was located at an area known as the "Z" crossing. The defendant submits that the "area" was not dark: rather the evidence established that the Z frame and the areas were lit by the presence of floodlights located some 20 metres from the eastern side of the gantry in Upfold Street, the street lights and house lights in the area and the lights on the tamper and the regulator. Inspector McMartin relied upon employees for his understanding that the portable lighting illuminated the down and up main lines with a certain amount of light on the up and down coal lines as well. Mr McCullough arrived at the scene after the injury to Mr Mason and took over his role as Traffic Officer. He said that the lighting was "okay" and "adequate" and when crossing the line he repeated that the lighting was adequate. When Mr McCullough was performing this task he saw a train coming along the coal line about 200 metres out from where he was standing; he saw the two marker lights and the engine lights "because they're moving". Mr Buttenshaw said he probably turned on the bank of lights for the "worksite" which he identified as being the up and down main lines. He said this involved the cross over which was about 25, 50 probably up to 100 metres long. At the scene of the accident Mr Buttenshaw was able to see Mr Mason lying in the 6 foot. The bank of lights was concentrated at the worksite and whether it lit any other areas was incidental. The light was focussed at the Z crossing and was weakest at the edges but he could not explain where the edges were on that night.

115 Mr Shand's evidence as to the light that night was uncertain and equivocal. I formed the impression that he felt, for whatever reason, uneasy in giving evidence generally and about the lighting of the worksite in particular. His evidence is difficult to utilise in reaching a firm conclusion about the nature of the light that was provided that night for performing the maintenance work and especially difficult to use to determine the outer limits of that light and whether or not it also illuminated the Z frame where Mr Mason was required to perform his task of keying and pulling the frame. Mr Shand said that when working with the machines he sometimes had to walk out ahead and get out into the dark a bit, walking "on the live bit" looking at the rail, the sleepers etc. On the other side of the machines from the light it was dark and sometimes to look under the machines required a lamp or torch. On examination-in-chief, he could not remember how far the light went over the crossover but the light probably got dark about 50 metres in front of the machine - then faded away. He said there was light for 50 or 60 metres and then it got darker and then you got to the street lights but "it's enough to see, sort of". In cross-examination, he accepted that there was sufficient light for him out of the corner of his eye to see Mr Mason hit by the coal train. It was put to Mr Shand in cross-examination that the tower light not only threw light over the up and down main area but it also lit up the Z frame. Mr Shand agreed with that proposition and also agreed with the proposition put to him that, in crossing the up and down coal as well as the up and down main on that night, to say it was dark was just wrong. He also agreed to the proposition put to him that there was also light being thrown from the houses in Upfold Street. Mr Shand also agreed that, from where he was standing, he could not only see Mr Mason but he could see the Z frame. It was probably "half the light of what the middle was but it was seeable". The middle of the light was both the up and down main but it gradually faded "naturally as you are going away". Mr Shand acknowledged, after being shown photos of the site, that there were in fact three frames, an X Y and Z frame: he then said the light was over the Y and the Z frame but not the X frame. I am not prepared to give significant weight to Mr Shand's simple agreement with propositions put to him in cross-examination by counsel for the defendant relating to such significant matters as the lighting of the workplace or, more particularly, the lighting around the Z frame.

116 On the issue of the degree of lighting and spread of lighting in the work area on the night in question, I find the evidence of the coal train driver Mr Curry and his assistant Mr White to be the most persuasive. It will be remembered that Mr Curry said that, when the train was stopped after passing the fettlers performing maintenance work at the crossover he had not seen anybody on the coal rails. The headlight on his train was not illuminated (in accordance with regulations operating for that area) but the train did have its marker lights and number light illuminated. He noticed that there was "a lot of lighting illuminating the - track machine". Mr Curry saw the fettlers working about 200 metres away and although he blew the whistle he did not recall receiving any hand signal giving the all clear, and for that reason he kept a good lookout to make sure that there was nobody fouling the path of his train. Mr Curry said he was watching "pretty intently the track machine and anybody around it" and given that it was "the middle of the night and the limits of your vision at night time but by the time I was on the straight I could see reasonably clearly", that is, down the coal line. He said his sight was not necessarily greatly assisted by the floodlighting because some of it was shining towards him directed from the Waratah side of the work and towards the track machines. That did not mean he was driving blind but "… we don't have street lights as you would in a road". There was sufficient light to drive a train. The railway lines were not illuminated to the level you would expect of a roadway like a public street. He accepted that at the time it was "dark". He explained that when he was asked by counsel for the defendant about whether he had a clear view he explained that given the limitations, his view was as clear as anyone has in the middle of the night.

117 Mr White was the assistant driver and observer on the coal train that night. He was sitting on the right hand side of the train and Mr Curry was sitting on the left hand side. Mr White confirmed that the marker lights on the train were approximately 2 to 3 centimetres across and just a little bit bigger than the size of the base of a glass used at the bar table. Mr White saw portable flood lighting on his left hand side and that was the only flood lighting he saw on the night. He confirmed that the worksite and the lighting were on his left hand side. He accepted in cross-examination that being on the right hand side of the train he was the furthest away from the worksite. His recollection was clear that the floodlight was on his left hand side because, when the train came around the corner, he was observing straight ahead towards the signal and the worksite and that was when he saw the floodlights on the left. He was shown photographs in order to assist his recollection but he did not alter his evidence that the lights he saw on the night were to his left where the worksite was. He confirmed in cross-examination that, as the coal train progressed towards the gantry, he saw no obstructions on his side, that is, the right hand side of the locomotive - he saw no one and no obstruction.

118 In addition to this evidence, the prosecution noted that Mr Mason had to use a torch to put the key in the Z frame: a torch had to be used to take out the pins at the crossing. Mr Mason had looked to his left and right when coming back across the track after placing the key in the frame but did not see a train coming. The prosecution asks that an inference be drawn that it was dark or that there was at least a partial deficiency of light. In relation to Mr McCullough's evidence that the light was "adequate", it was noted that when he was asked whether he saw the light of the train or the train frame when he saw another train on that night, it was clear that he only saw the two marker lights and the engine lights because they were moving. Again, the prosecution asked for the inference to be drawn that it was dark and there was a deficiency of light, partial or total.

119 It is significant that Mr Buttenshaw confirmed that the purpose of the lighting was to light up the crossover and inferentially therefore not to light up the Z frame or the coal lines. Having regard to the nature of the work to be performed that night such an arrangement may be understandable. Mr Shand accepted that the light faded away, although he was not able to say where the light was strongest and where it was weakest. It is of interest that Mr White held so firmly to the view that the portable lighting was to his left rather than on his right. Photographs produced in evidence indicate that the bank of lights on the telescopic pole would have been to Mr White's right on the night. It is possible that the lights that attracted Mr White's attention were in fact the lights on top of and around the regulator and the tamping machine. The elevation of the bank of lights on the other side of the tracks may have created an illusion that the lighting was on the left hand side of the tracks rather than being sourced from the right hand side. This, of course, is conjecture but it flows from the firm views expressed by Mr White in his evidence. 120 From this evidence, I conclude that the lighting was focussed and directed at the crossover and that its purpose was, as stated by Mr Buttenshaw, to illuminate the maintenance work. Ordinary experience would suggest that the light illuminated other areas incidentally but I am unable to accept that the lighting used that night illuminated the coal lines and the Z frame to such an extent that Mr Mason was clearly visible and that approaching trains were clearly visible. This conclusion is supported by the fact that both the train driver and his assistant, although progressing with care having come across maintenance workers unexpectedly, saw no obstruction. If the Z frame had been illuminated sufficiently by the overhead lights or the street lights I would have expected either of these witnesses to have said so and they would also have been able to see Mr Mason. In addition, it is to be remembered that Mr Mason had been provided with a fluorescent vest.

121 In my view, the evidence establishes that Mr Mason left the Z frame and commenced to cross the live coal tracks and did so in relative darkness. I believe that I am entitled to treat the particulars in a common sense way, notwithstanding the criminal nature of the prosecution. This work was being performed in the middle of the night. The maintenance work itself required floodlighting in order that it could be performed. Mr Mason's task in relation to the Z frame was significantly separated from the worksite such that it can be said, on the evidence, that he performed that work in darkness. The defendant itself has asked that the work of Mr Mason be treated separately from the work of the maintenance team because their tasks were so different.

122 I have noted earlier in this judgment that the defendant submitted that the particularisation of crossing a live line in "darkness" made that factor an essential element of the offence. Although I have already found that in fact Mr Mason did cross the live coal lines in darkness, it would be erroneous to accept the defendant's categorisation of this factor as being an essential element of the offence. In this regard, attention is drawn to the judgment of the Full Court in Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16, and the adoption of the approach in R v Saffron (No 1) (1988) 17 NSWLR 395 at 446 - 447, where it was observed that particulars are not to be treated as if they were pleaded as part of an indictment; and the separate judgment of Gleeson CJ in Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim.R 481 at 484, where his Honour stated that, in a criminal proceedings, what the prosecution is required to establish is the essential elements of the offence charged and a failure to establish a particular is not fatal. In these two cases, the essential ingredients of the offences under s 15(1) are stated in the charge and particulars are given of the way in which the offence has been committed.

123 The defendant seeks to separate the work of the maintenance team from the work of the Traffic Officer as undertaken by Mr Mason, in relation to each charge.

Having regard to the evidence as to their separate responsibilities and duties there is force in the defendant's submission. In essence, the two charges are that the defendant failed to provide supervision and failed to provide or maintain systems of work as were necessary to ensure the health and safety at work of its employees carrying out railway track maintenance. In each case the failure to provide such supervision to ensure that maintenance employees did not come within 2.5 metres, horizontally, of the nearest rail of any running railway line would only apply during the night when the team crossed over to the line running next to the live coal lines. This was work planned to be performed but as a consequence of the injuries received by Mr Mason that work was not performed on the night. Mr Shand planned to perform this work with the use of a handsignaller so that under the SWUs a train could be slowed or stopped on its approach to this part of the worksite. In addition, it would seem to follow that if the regulator was in operation, its "wings" would make it hazardous, at least, for a train on the live coal line nearest the main line to attempt to proceed past the worksite until the "wings" on the regulator were retracted. Further, there would be difficulties with using fences or barriers to separate this maintenance work from the adjoining live lines, although I am not convinced that boundary tape could not have been used as a signal to both a train driver and to the workers engaged on the maintenance tasks that they were at risk. Again, however, the planned use of a handsignaller appears to me to have provided more effective protection. In relation to the crossing of a live running railway line in darkness, there is no evidence that the team members performing maintenance work were required to cross live lines. Even if a resurfacing team member accidentally or inadvertently crossed into a live line it seems to me that the provision of the handsignaller would be both the provision of adequate supervision and the provision of a safe system of work. In view of this evidence and on the above analysis I am not prepared to find that the members of the maintenance team were at risk as alleged in both of the charges under s 15(1) of the Act.

124 The position in relation to Mr Mason is, in my view, different. I have already indicated that I do not regard Mr Mason as being supervised on the night nor do I regard the system of qualifications to be such that it was safe for Mr Mason to cross the live lines, "looking after himself" under the system of work provided by the SWUs and applied by the defendant.

For that reason, I find that the defendant both failed to provide appropriate supervision and failed to provide or maintain a system of work which did not ensure that Mr Mason did not come within 2.5 metres, horizontally, of the nearest rail of any running railway line such as to ensure his health and safety at work. Proper supervision, such as is now available under the revised SWUs, would have a lookout in operation while Mr Mason was crossing the live lines before and after performing his duties in relation to keying the Z frame: in appropriate circumstances barriers and tapes could also be utilised to identify the work area to a train driver. It is to be remembered that part of Mr Mason's duties was also to act as a lookout for the members of the re-surfacing team and as such it was not appropriate, as suggested by the defendant, that Mr Mason should simply stand beside the Z frame until he was called upon to pull the frame. It is also to be remembered that Mr Shand was told by Mr Mason, and it was normal in Mr Shand's experience to be so told, that Mr Mason was going over to the frame and was to place the key in the frame prior to the crossing over of the machines being effected. In at least a de facto way, Mr Shand became part of the keying work system performed by Mr Mason. Mr Shand acted as a lookout for the team and as such was well placed to act as a lookout for Mr Mason for the very short time involved in him crossing the live coal lines in order to key the frame. These were very simple measures by way of the provision of supervision and the provision of a safe system of work which would have prevented the injury to Mr Mason which occurred on the night in question.

125 The SWUs did at the relevant time and now continue to contemplate the use of barriers and boundary tape in order to keep employees and others working on the track including contractors, separated from the dangers of a live running line. Because Mr Mason was required to cross the live running lines either supervision or the maintenance of a safe system of work would have involved the use of barriers and/or boundary tape on either side of the main running line such as to require a Traffic Officer like Mr Mason to move to the end of the barrier or the tape before crossing the line thus drawing attention to the risks. Such barriers or tape would put a train driver on alert. Such a system would not be as effective as a system where the supervision involved also acting as lookout with the use of a barrier or boundary tape: this system would also be effective to ensure the health and safety at work of employees in the position of Mr Mason.

126 In relation to the third particular, namely, the crossing of a running rail in darkness, I have already concluded that the system of work in use required a Traffic Officer in Mr Mason's position working at night to cross the live running rails in darkness. A safe system of work would have, at least, required a lookout to warn Mr Mason of the approach of any train. Such a lookout, in addition, appears to be necessary because the use of detonators and the sounding of a train whistle alone when this maintenance work is being performed appears to give no adequate advance warning of an approaching train because of the noise generated by the maintenance machines. Nor does the system of advice from the signal box of an approaching train appear to be effective, either because it is not always performed or because the noise is such that the warnings given over the hand held radio are capable of being drowned out by the workplace noise. 127 The defendant spent some little time in seeking to demonstrate that Mr Mason must have been within 25 to 35 metres of the train, given its known speed, when he crossed the line in front of it. Despite his sworn evidence that he looked to his left and to his right before attempting to cross back over to the dead main lines, the defendant submits that, if he had looked, Mr Mason must have seen the train and therefore it was clear that he simply failed to look both ways or in the direction of the train and, being intent on making his radio call to the Islington signal box, simply did not look out for himself contrary to the defendant's system. I am not convinced, even if the propositions put forward by the defendant as to the time required to cross the track and the speed of the train and the distance it would have travelled in that same time be all correct, that it means that Mr Mason did not look in the direction of the train. The evidence is that this work was being performed in the middle of the night, that the train in accordance with regulation did not have its headlight on but only its number light and small marker lights, that the worksite noise level was in excess of 85 decibels and that nobody appeared to hear the train coming, including Mr Shand. It may well be the fact that Mr Mason looked and did not pick up the fact that a train was approaching. It may be, as the defendant suggested, that Mr Mason failed to look in the direction of the train; or that he failed to look because he had received no warning from the signal box over his radio. However, proper supervision and safe systems of work do not presume that all workers are observant and careful. As the prosecution submits, s 15 of the Act imposes a duty not only in relation to the observant and careful employee but also in relation to the inadvertent and careless employee. In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 a Full Bench of the Commission in Court Session said: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical conncections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

128 I do not believe that this is a case such as the State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 as submitted by the defendant. In my view, this is not a case where what was done, even on the defendant's own version of inadvertence, was inexplicable or unforeseeable; nor is it a case where it can be said no amount of qualified supervision could have prevented this movement. Qualified supervision is precisely the system which now operates and which was available to be implemented that night through the use of Mr Shand as a lookout for Mr Mason.

129 In relation to its s 53 defences the defendant called no oral evidence dedicated to this subject but relied on the cross-examination of witnesses and some documentary evidence. The defendant bears the onus of establishing a defence under s 53 but does so only on the civil onus: nevertheless, that onus is substantial. The defendant's written submissions merely asserted that it was not practicable or reasonable to place barriers or tape while operating the machines and then asserted that the work required of Mr Mason as Traffic Officer was work within his experience, training and qualifications. With the application of the SWUs and Mr Mason's qualifications it was then asserted it was simply beyond the defendant's control to prevent Mr Mason from walking, without looking, across the running lines. I am not satisfied, on the evidence, that Mr Mason did not look in the direction of the train. While it is clear that the use of barriers and tapes may not have been effective in all the circumstances, there were methods whereby they could be employed as part of a safe system of work including supervision through a lookout which would have assisted in ensuring the safety of Mr Mason and Traffic Officers who work in similar situations.

130 The defendant then submitted that if the detriment to safety constituting the offence was not reasonably foreseeable then it has established that it was not practicable to take measures to guard against it, citing Workcover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No.1 ) [2000] 101 IR 239; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363 - 364; WorkCover Authority of New South Wales (Inspector Mayo - Ramsey) v Maitland City Council [1988] 83 IR 362 at 381. For the reasons that I have given in relation to the approach in Dawson's case, I remain of the view that the way in which this work was routinely performed made it clearly foreseeable that a person may cross live lines in front of a train not knowing that the train was approaching. Nor is this a case which may be put in the same category as Inspector Davies v Prospect Electricity (IC NSW No 747 of 1991, unreported, 9 November 1992) Fisher CJ, referred to in the prosecution's submission as being a version of the infinite regression of supervision argument which, if accepted, would mean that every well trained tradesman should be supervised or observed by a superior tradesman and he seemingly in turn be supervised by someone higher. This is simply not such a case. The means of supervision by lookout was already at hand, was simple to implement, was obvious and the danger was clearly foreseeable. That very system has now been applied.

131 The danger of crossing live lines was known to the defendant. The system of looking after yourself, or deciding yourself whether or not protection was needed, was not a system that addressed the risk or the requirements of s 15 to "ensure" the safety of Mr Mason and Traffic Officers working in similar circumstances. The defendant has failed to discharge the onus of showing that it was not reasonably practicable to have complied with the provisions of the Act. 132 There was no attempt made by the defendant to establish some gross disproportionality between the nature of the risk to Mr Mason and Traffic Officers in his situation and the measures necessary for averting the risk so as to render it not reasonably practicable for the defendant to comply with the provisions of the Act. In short, it was reasonably practicable for the defendant to comply with the provisions of the Act by ensuring supervision and a safe system of work by using a lookout during the short period of time when the keying of the frame was performed.

133 In relation to the defendant's submission that the offence was due to causes over which it had no control and against the happening of which it was impracticable to make provision, it is worth recalling the final paragraphs of the judgment of the Full Commission in Court Session in Sydney County Council v Coulson (1987) 21 IR 477 at 480: … Nor does mere insistence that it 'must have been' deliberate disobedience or inexplicable inadvertence when the opportunity to establish and explain the cause is not taken, an adequate exploration as to why in fact the employer had no control over the causes or the happening of events such that it was impracticable for him to make provision. Far from demonstrating by evidence that it had no control and the impracticability of taking measures, the defendant, by adopting the system of a lookout (with barriers where appropriate) showed how control could be obtained and how reasonable, simple and practicable was that control.

134 The defendant has failed to discharge the onus upon it in relation to the s 53 defences. 135 For the above reasons I find the defendant guilty on both charges.

136 The matter will be re-listed at a convenient time to the parties to hear submissions on penalty.

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