Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213

Industrial Court of New South Wales

CITATION: Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213

PARTIES: Inspector Barnabas Ching (Prosecutor) Simpson Design Associates Pty Ltd (Defendant)

FILE NUMBER(S): IRC 404 of 2008

CORAM: Haylen J

Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 Inspector Carmody v Tsougranis (No 2) (2003) 123 IR 419 CATCHWORDS: Inspector Ching v Bros Bins System Pty Ltd (2003) IR 62 at [40] Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 1044 and 1047 of 1993, 9 September 1994 - Peterson J) National Hire Pty Ltd v Howard (2003) 126 IR 240 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd (2001) 105 IR 81

Evidence Act 1995, s 79 Occupational Health and Safety Act 1983, s 81(2) LEGISLATION CITED: Occupational Health and Safety Act 2000, s 11(1) Occupational Health and Safety and Welfare Act 1986 (SA), 24(1) and (2)(a) Occupational Health and Safety Regulation 2001, Pt 5.2

CASES CITED: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 11(1) - structural engineer engaged to design bi-sliding metal gates for concrete batching plant - design drawings deal with core structural elements of metal gate - running gear to be supplied and installed by others - when gates installed manual operation becomes necessary because of failure of gate motor - non-employee assists in manual closure of heavy gates - gate leaf passes end of supporting portal and becomes unsupported - gate falls on non-employee inflicting fatal injuries - after accident defendant designs stops to prevent gate leaves travelling beyond supporting portal when manually operated - stops not included in original design - defendant relies on limited professional role of structural engineer - operation and use of gate said not to be part of role of structural engineer - expert evidence as to duty of professional engineers in design and risk assessment - duty required consideration of manual operation by designing engineer - obligation of person who designs plant for use by people at work - Occupational Health and Safety Regulation 2001 - Pt 5.2 - obligation on designer to identify hazards in use of plant and to assess risks arising from use of plant - duty to eliminate or control risks in operation of plant - defendant found guilty of breach - s 28 defences not established

HEARING DATES: 21 July 2009, 22 July, 2009, 23 July 2009, 24 July 2009, 27 July 2009, 28 July 2009, 29 July 2009, 30 July 2009, 22 September 2009, 19 November 2009, 20 November 2009 Written submissions 27 November 2009

DATE OF JUDGMENT: 15 December 2009

Mr S Crawshaw SC with Ms McDonald of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

Mr I Neil SC with Mr P Moorhouse of counsel (Defendant) Kennedys Law Firm

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J Tuesday, 15 December 2009

Matter No IRC 404 of 2008

INSPECTOR BARNABAS CHING v SIMPSON DESIGN PTY LTD

Prosecution under s 11(1)(a) of the Occupational Health and Safety Act 2000

JUDGMENT [2009] NSWIRComm 213

BACKGROUND

1 Inspector Barnabas Ching, an Inspector employed by the WorkCover Authority and appointed pursuant to the provisions of the Occupational Health and Safety Act 2000 has commenced proceedings alleging a breach of s 11(1)(a) of the Act by Simpson Design Associates Pty Ltd ("Simpson Design"). The commencement of these proceedings followed an investigation of an accident at the premises of Hy-Tec Industries Pty Ltd ("Hy-Tec") at Coward Street Mascot where, on 14 October 2003, a large and heavy gate fell during the course of it being manually operated resulting in the death of a non-employee, Ms Melissa Maybury. A concrete batching plant had been constructed at the Mascot premises and operated by Hy-Tec from approximately late November 2002. A number of companies were involved in the construction of the plant and in particular some of those companies were involved in relation to aspects of the design, fabrication, installation and/or maintenance of three sets of bi-sliding metal gates. 2 Following his investigation, Inspector Ching commenced a number of proceedings against other companies alleging breaches of various provisions of the Occupational Health and Safety Act because of their alleged involvement in the design, fabrication, installation and/or maintenance of the gates involved in the accident occurring in October 2003. Hy-Tec was charged with a breach of s 8(1) of the Act and Lejah Pty Ltd ("Lejah") was charged with a breach of s 8(2) of the Act. A s 11 CHARGE PARTICULARISED 3 In charging Simpson Design with a breach of s 11(1)(a) of the Act, Inspector Ching alleged that, between 3 September 2001 and 24 June 2002, the company designed plant in the course of a trade, business or other undertaking, namely plant related to gates (referred to as "gate plant") for use by persons at work which it failed to ensure was safe and without risk to health when properly used. The particulars of the charge were: (1) The defendant designed the gate plant by making and/or issuing drawings of the gate plant. (2) The issued drawings were contained in Drawing No 1047-S4.00 Revisions D and E. (3) The defendant designed the gate plant for the concrete batching plant being constructed by Bonfoal Pty Ltd at 294-296 Coward Street Mascot in the State of New South Wales ( premises). (4) During 2003 the concrete batching plant was operated by Hy-Tec Industries Pty Ltd ( Hy-Tec) at the premises. (5) The gate plant was installed on the western side of the premises (west gate). (6) The gate plant was used by employees of Hy-Tec at work. (7) At all material times Mr Jason Sheath was an employee of Hy-Tec. (8) At close of business, if Mr Sheath was the last employee at the premises, part of his duties included closing the gates to the premises. (9) At the close of business on 14 October 2003, Mr Sheath attempted to close the western leaf of the west gate. The electronic system to close the west gate failed to operate and Mr Sheath began to close the western leaf of the west gate manually. (10) Mr Sheath was assisted in closing the western leaf of the west gate manually by Ms Melissa Maybury. (11) Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of the west gate manually, the western leaf passed through the midpoint of the gate opening and out of its portal, falling on Ms Maybury and causing her fatal injuries. (12) There was a risk of the western leaf of the west gate falling on either Mr Sheath or Ms Maybury. (13) The gate plant was not safe and without risks to health when properly used. (14) The defendant failed to include in the design any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. (15) By reason of the defendant's omissions persons were at risk of being injured (including fatally injured) whilst they were operating the west gate manually. (16) On 14 October 2003 Melissa Maybury was fatally injured and Jason Sheath was placed at risk of injury as a result of the defendant's omissions. THE REGULATORY PROVISIONS 4 Section 11 of the Act provides as follows: SECTION 11 Duties of designers, manufacturers and suppliers of plant and substances for use at work 11(1) [Duties] A person who designs, manufactures or supplies any plant or substance for use by people at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use. 11 (2) [Where the duties apply] The duties under this section: (a) apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and (b) apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by people at work, and (c) extend to the design, manufacture or supply of components for, or accessories to, any plant for use by people at work, and (d) extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and (e) extend to the supply of the plant or substance to a person for the purpose of supply to others, and (f) do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person. (3) [Terminology] In this section, manufacture plant includes assemble, install or erect plant. 5 In addition, the Occupational Health and Safety Regulation 2001 in Pt 5.2 deals with Design, Manufacture and Registration of Plant. For present purposes, the relevant clauses are: 84 Application (1) This Division applies to the design of: (a) plant for use at work, and (b) plant affecting public safety. (2) This Division applies to: (a) plant designs, and (b) unless the context otherwise requires alterations to plant designs, that are commenced after the prescribed date.

86 Designer to identify hazards A designer of plant must identify any foreseeable hazard that may arise from the design of the plant and that has the potential to harm the health or safety of any person during the manufacture, installation, erection, commissioning, use, repair, dismantling, storage or disposal of the plant at a place of work or, in the case of plant affecting public safety, at any other place at which the plant is located. 87 Designer to assess risks (1) A designer of plant must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division and, in particular, must: (a) evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and (b) identify the design requirements and any other actions necessary to eliminate or control the risk. (2) In carrying out a risk assessment for the purposes of this clause, a designer of plant must take into account the following: (a) the impact of the plant on the work environment in which it is designed to operate, (b) the range of environmental and operational conditions in which the plant is intended to be manufactured, transported, installed and used; (c) the ergonomic needs of persons who may install, erect, use or dismantle the plant; (d) the need for safe access and egress for persons who install, erect, use or dismantle the plant; (e) any specific risk control measures required by this Regulation (including as to manual handling, hazardous substances, dangerous goods, and the working environment).

89 Designer to control risks (1) A designer must design plant so that risks associated with the manufacture, installation, erection, commissioning, use, repair, dismantling, storage and disposal of the plant are eliminated or, if this is not reasonably practicable, are controlled.

95 Specifying work systems and operator competencies-particular risk control measures A designer of plant must specify systems of work or operator competencies if they are necessary for the safe manufacture, installation, erection, commissioning, use, repair, maintenance, dismantling or disposal of plant. 96 Designer to provide information (1) A designer of plant must provide other persons who have responsibilities under this Regulation with all available information about the plant that is necessary to enable the other persons to fulfil their responsibilities with respect to the following: (a) identifying hazards, (b) assessing risks arising from these hazards, (c) eliminating or controlling those risks, (d) providing information. (2) Without limiting subclause (1), a designer of plant must ensure that a person who manufactures the plant is provided with sufficient information to enable the plant to be manufactured in accordance with the design specifications and, as far as practicable, with information relating to the following: (a) the purpose for which the plant is designed, (b) testing or inspections to be carried out on the plant, (c) installation, commissioning, operation, maintenance, inspection, cleaning, transport, storage and, if the plant is capable of being dismantled, dismantling of the plant, (d) systems of work necessary for the safe use of the plant, (e) knowledge, training or skill necessary for persons undertaking inspection and testing of the plant, (f) emergency procedures (3) A designer of plant who manufactures the plant must ensure that the information specified in subclause (2) (a) to (f) inclusive is provided to any person who obtains the plant for the person's own use or who supplies the plant to others.

97 Designer to obtain information (1) A designer of plant must obtain such available information as is necessary to enable the designer to fulfil the designer's responsibilities under this Regulation with respect to the following: (a) identifying hazards, (b) assessing risks arising from those hazards, (c) eliminating or controlling those risks, (d) providing information. (2) If a designer has a contract with an employer to design a specific item of plant, the designer must obtain from the employer any relevant information about matters with respect to the plant that may affect health and safety at the place of work. THE FACTS 6 The parties substantially agreed on the following facts with the additions and/or reservations of the defendant noted. (a) The site of the alleged offence at 294-296 Coward Street Mascot ( the site) was owned by Tenix Properties Pty Limited ( Tenix) . Tenix leased the property to Bonfoal Pty Limited ( Bonfoal ). During 2002 Bonfoal constructed a concrete batching plant at the site. After the construction of the concrete batching plant, Hy-Tec Industries Pty Ltd ( Hy-Tec ) operated the concrete batching plant at the site during 2003. (b) Hannas Civil Engineering Pty Ltd ( Hannas ) was appointed by Bonfoal as the project manager for the construction of Hy-Tec's concrete batching plant at Mascot. (c) During the construction of the plant, Hannas was represented by its project manager, Peter Twomey, and its foreman, Darren Stratti. Twomey was based off site. LSM Projects Pty Ltd was contracted by Hannas to provide project management services which in practice were carried out by civil engineer Twomey who was employed by LSM. Stratti was based on site and coordinated the installation of the gates. Stratti is now deceased. (d) The construction of the plant included three sets of bi-sliding metal gates on Coward Street: one on the eastern side, one on the western side and a centre gate in the middle between the eastern gate and the western gate ( the gates) . Part of Hannas' duties included acting as the project manager for the design, construction and installation of the steel gates located on Coward Street. (e) Each set of gates consisted of two gate leaves that opened in opposite directions along a track through the tunnel of the support portals. The gates were fitted with motorised driving units with switches to open and close the gates. The gates could also be operated manually. The western gate was the largest of the three gates and each gate leaf of the western gate weighed approximately 1340 kilograms. The defendant notes that the gates were not constructed to be operated manually and were locked in position once the motor was installed, although the motor could be disengaged for manual operation. (f) The broad parameters for the design of the gates were established by the development approval which specified that there would be a three metre high fence and gates along the full frontage of Coward Street and the gates would be of colourbond or similar material. Development Consent was granted by the Land and Environment Court on 20 February 2001. (g) The brief from Hy-Tec in accordance with condition 102 of the Development Consent was: "Provide a steel bi-fold gate system that can be opened and closed via digital key pads adjacent to the gate or overridden from the control room together with electronic eyes for closure". Initial drawings of the gates were provided by the architects Wolski, Lychenko and Breknock (the Architect). (h) By letter dated 23 March 2001 the defendant originally tendered to Hannas to provide structural design engineering services for the concrete batching plant. The gates were not part of the initial work for which the defendant was contracted as set out in the letter dated 23 March 2001. (i) Damian Hadley, an associate director of the defendant, was employed by the defendant as a structural engineer to perform structural design and to co-ordinate the day-to-day activities of the defendant. Hadley was a chartered professional engineer. Hadley was answerable to Andrew Simpson a director of the defendant. Hadley was the structural engineer who did most of the initial work. (j) The structural design for the steel gates and steel frames that supported the gate was carried out later pursuant to an oral brief together with some drawings and written instructions from Twomey . Twomey says the design brief was for the design to be in accordance with the DA conditions and to do the structural design for an electrically operated gate system. Hadley said that the design brief was to provide structural engineering services for the design and documentation of the gates. There was no specific brief to the Defendant for manual operation, a backup system or stops. Hadley said that the brief did not include the mode of operation of the gate. However there was no express prohibition on operating the gates manually . (k) The briefing received by Hadley on the work to be performed on the gates included information he received at a briefing meeting held on 29 August 2001 and the initial written design brief . (l) The design brief also included subsequent meeting notes and communications between Hannas and SDA. (m) On 29 August 2001 there was a meeting attended by Twomey, Hadley and Ron Sturgess and Bob Proctor from Hy-Tec which included a briefing as to Hy-Tec's requirements for the entrance gates to the property and how they wanted them to operate. Hadley described it as a design meeting. Sturgess and Proctor discussed that there were to be three gates, the size of the openings and that the gates were to be electromagnetically operated. It was decided at the meeting that Twomey and Hadley would visit other concrete plants and have a look at the type of gates they had. (n) On 3 September 2001 the defendant agreed to provide additional works which included within the Scope of Work ""Structural Steel Gate Design" for four framed steel gates. The defendant notes that there was only ever an intention to construct three gates, not four. (o) During the period from the meeting on the 29 August 2001 to 9 November 2001 Twomey and Hadley visited the CSR Lidcombe premises and examined the entrance gate. Twomey and Hadley examined the gate which consisted of a lattice about 1.8-2 metre high sliding gate with a large opening. They examined the motor system for the gate and it was an electronically driven rack and pinion motor system. (p) On 9 November 2001 a meeting was held which was attended by Twomey and Hadley. During the meeting Twomey and Hadley reviewed the CSR Lidcombe sliding entrance gates and Hadley undertook to review the manufacturer's proprietary systems and confirm the approach with Twomey before carrying out any design. Hadley was to confirm the defendant's approach to Twomey before carrying out the design. The notes of the 9 November 2001 meeting refer to the fact that Mr Twomey and Mr Hadley had previously reviewed the CSR Lidcombe factory sliding gates. (q) On about 12 November 2001 by facsimile Hadley proposed to Twomey that the defendant would proceed with the structural design of the gates and specify the track and rollers as proprietary items. This proposal was accepted by Twomey. (r) On about 13 November 2001 Hadley provided to Twomey a preliminary sketch of the gate being a schematic of the gate. Revised preliminary sketches were supplied by the defendant on 15 November 2001 and tender documents supplied on 19 December 2001. Mr Hadley described them in his covering facsimile as "gate and masonry wall details". In relation to the gate, they included only the structural elements that subsequently appeared on SDA's Miscellaneous Steelwork drawings. (s) Twomey checked the coordination of the drawing and reviewed the gate structural design with respect to the design brief. On 7 December 2001 Twomey sent to Hadley comments on the drawings that he had received. (t) On 8 March 2002 Hadley sent to Hannas updated drawings to suit the architect's drawings. The sketch shows some angles "50x50x5" which were indicated as needed to be welded to elements of the gate in order to hold up the colourbond sheeting. The angles were added to this drawing at Mr Twomey's instruction, or as a result of coordination between Mr Twomey, Mr Hadley and the architect. (u) On 7 May 2002 the defendant issued drawing M1047-S4.00 Revision D. (v) On 24 June 2002 the defendant issued drawing M1047-S4.00 Revision E. (w) There was no more drafting of the drawings by the defendant after 24 June 2002 being the final date on drawings. The defendant provided the structural drawings of the gates to Hannas. These structural drawings contain the design which it is alleged was unsafe. (x) Hadley carried out the structural design for the steel gates and the steel frames which support the gates and Blatchford a computer assisted design draftsperson with the defendant did the drawings. Hadley supervised, approved and checked the drawings. (y) Gate stops were not incorporated in those drawings. No provision was made in the design for the gates to be operated manually or in the case of mechanical failure. The design shown on SDA's Miscellaneous Steelwork drawings does not address the issue of mode of operation of the gates. The only reference to the mode of operation of the gates is the note on the drawings which refers to the need for coordination with the manufacturer of the gate motor. (z) On 8 April 2002 Bonfoal contracted with Lejah Pty Limited trading as Sunstate Consulting and Engineering ( Sunstate ) for the fabrication, supply, installation and commission of equipment, particularly the actual concrete batching equipment. (aa) Twomey contacted Sunstate to ask for a quote to construct 6 sliding gate frames, portals and bottom tracks to suit 2 sets of 10 metre opening and 1 set of 18 metre opening gates and allow for delivery to site. Keith Rowe, the Estimator for Sunstate in Brisbane, prepared estimates. (bb) On 28 May 2002 Hannas on behalf of Bonfoal directed Sunstate to undertake this additional work. Paragraph 1.1.1 of the Scope of Works for the additional work provided that "the 'Contractor' shall prepare workshop drawings, supply, fabricate, deliver and install the 'Works' as defined in this Scope of Works for the new Concrete Batching plant". The defendant states that this is an incomplete account of the evidence of the process by which Mr Twomey engaged Sunstate. (cc) Paragraph 1.2.of the Scope of Works WO/012 provided for "Detailed Scope of Works". Paragraph 1.2.5 the Scope of Works Entrance Gates Steelwork provided: The Contractor shall provide 2 sets of 10 metre opening and 1 set of 18 metre opening gates, bottom angles for tracks, portal frames and U-bolts, supply and fit carry/running wheels and vertical support wheels/guides on portal frames, unload and erect on bottom racks, and H.D. bolts provided by the Contractor (built in by others). All to be detailed in the Architectural and Structural drawings and specifications in clause 1.4.1. Clause 1.4.1 included the drawings M0147-S4.00 issued by the defendant. (dd) During June 2002 Sunstate produced Manufacturing or Shop Drawings for the Sliding Gates – Drawings D542 -963, 965, 966 and 964. These were prepared for Sunstate by Procad Drafting Service. (ee) Sunstate's fabrication drawings did not provided for gate stops. Sunstate followed the defendant's design in this respect. The defendant noted that Mr Rowe stated that SDA's Miscellaneous Steelwork drawings did not refer to stops, and Mr Rowe never discussed that matter with Mr Twomey. Mr Rowe refers to those drawings as only 'structural' outline drawings. There was no evidence that Mr Rowe was required to follow SDA's Miscellaneous Steelwork drawings in this respect. (ff) Twomey was shown drafts of the manufacturing or shop drawings by Sunstate and made comments on them. On 8 August 2002, Twomey responded by facsimile noting his review of the drawings and his comments. Mr Twomey's facsimile of 8 August 2002 constituted his approval of Sunstate's fabrication drawings. (gg) Sunstate arranged for Jimmy Evans in Ipswich to manufacture the gates and related equipment. (hh) Therefore prior to the gates being erected and installed no drawings produced by the defendant or Sunstate specified devices such as stops to prevent the gate leaves moving out of the portals of the gates. (ii) Hadley from the defendant carried out an inspection of the site on 2 October 2002 but the gates had not been installed at that point in time. The defendant in the Interim Occupation Certificate documentation dated 2 October 2002 certified that it had "carried out structural inspections in accordance with accepted engineering practice and principle." The defendant pointed out that Mr Hadley inspected the Raw Material Bin walls on 2 October 2002. (jj) After Sunstate arranged for the manufacture of the gates, portals anchors and tracks in Brisbane they were shipped to the site. (kk) Jason King was employed by Sunstate on the site. It was the responsibility of King to delegate particular tasks to members of the Sunstate workforce. Sunstate engaged subcontractors including Neil Jorgenson (Fitter/Welder) and Wayne Norris (Boilermaker) to assist with the structural works on site. (ll) Gary Manns was the plant maintenance supervisor for all Hy-Tec's concrete plants in Sydney but was based at the Botany plant during its construction and was there most days from about May 2002. During November 2002 Manns was at the site most days and carried out a number of small tasks . (mm) The tracks and anchors for the gates had to be installed before the concrete for the driveways and crossings could be laid. Stratti arranged for the tracks and anchors to be installed. The defendant notes that it appears that this work was carried out by Hannas or other workers on site available to Mr Stratti. (nn) In late October or early November 2002 the gate frames were delivered to the site and Sunstate personnel helped unload them and lay them on the ground. Stratti arranged for the bolting of the portals of the gates. (oo) The gate leaves for the western gate, were lifted onto the tracks by Sunstate personnel with the assistance of a crane. In relation to the western gate Jorgenson only put the wheels on, stood the gates up, chocked them with timber wedges then left them. It is not clear who carried out these tasks on the other gates but it was not Jorgenson. (pp) Magic Door Industries Pty Ltd (MDI) was appointed to supply and install the automated operating system on the gates and to service the gates after they were installed. By letter dated 23 May 2002, MDI confirmed the scope of works to motorise the gates. On 30 May 2002 Twomey on behalf of Hannas sent to MDI a Bonfoal Purchase order confirming the order for the automatic gate controls work. (qq) The Detailed Scope of Works for MDI was to provide for the 10m Opening Sliding Gates "Operating Equipment for two twin sliding gates as illustrated on drawing M1047-S4.00" and for the 18m Opening Sliding Gate "Operating Equipment for one twin sliding gates as illustrated on drawing M1047-S4.00". The drawings M0147-S4.00 were those issued by the defendant. The defendant notes that this is an incomplete account of the evidence of the process by which Mr Twomey engaged MDI. (rr) MDI began their installation on 12 or 13 November 2002 when Wolfgang Hahn, a subcontractor, his offsider Tony and Geoff Dark, installation manager for MDI were carrying out this task for MDI. On that day they installed the operating equipment for the eastern gate. (ss) After the other MDI personnel had left the site that day, Hahn then went over to the Centre Gate by himself and a leaf of the Centre Gate fell towards Hahn ("the November 2002 incident"). Hahn was not injured. Hahn then alerted Dark, (who had left the site by that time), by telephone to the problem that there were no stops. MDI did not carry out any more installation that day. (tt) Twomey was notified in a facsimile on 14 November 2002 by Khoury from MDI of the danger of a fatality in manual operation of the gates if physical stops were not installed on the gates. Manns and Robert Proctor, who had responsibility for the site for Hy-Tec at the time of the incident, deny ever seeing this facsimile at the time. (uu) In the days after the November 2002 incident some metal stops were installed on the gates. Three stops altogether were installed including two stops attached to the western gate on both gate leaves. While the stop on the eastern gate leaf of the western gate was welded, the stop on the western gate leaf of the western gate was only bolted. Proctor also made reference to one of the stops being bolted. The gate stops were made of steel. (vv) There is no cogent evidence as to who installed the stops. Jorgenson concedes that he may have welded but not bolted stops. No witness has admitted to bolting the stop on the western leaf of the western gate. (ww) Hahn and Dark both returned to the site on 15 November 2002 and completed the job. Hahn and Dark said that when they went back they were installed, with Dark not remembering any details and Hahn thinking that there was some sort of angle iron on the western gate which was similar to those found after the fatal incident in October 2003. (xx) Someone from MDI gave Gary Manns, the plant maintenance supervisor from Hy-Tec, a demonstration and verbal instructions on how to operate the gates both using a key and also using the gates manually. Manns in turn provided verbal instruction to Michael Allen, the yardman, Brad King, the first batcher at the plant and Paul Reagan from Hy-Tec on how to operate the gates both automatically and manually. (yy) On 25 November 2002 Hadley on behalf of the defendant certified that the defendant had carried out structural inspections in accordance with accepted engineering practice and principles and that that at the time of site inspections the work inspected complied with the intent of the design. (zz) Early after the plant was commissioned Manns was contacted by Proctor complaining that the gates had to be manually operated which led to Manns contacting MDI. This appears to be connected with a service call by MDI on 13 December 2002. After receiving information from Frith, Khoury of MDI sent another facsimile to Hannas on 14 December 2002 and a letter on 16 December 2002 warning of the danger of inadequate stops after an MDI service manager discovered there were still no stops installed on the eastern gate. (aaa) Twomey received the facsimile and letter and replied by facsimile on 17 December 2002. This reply said that physical stops had been fitted in November for the closed position and were in the process of being fitted for the opened position of the gates. (bbb) By December 2002 the construction of the concrete batching plant was substantially finished and Hy-Tec had entered into possession of the premises. After this time the gates had to be operated manually at times. Manns was contacted 2 or 3 times by Brad King, the first batcher at the plant, complaining that the gates leading on to Coward Street would not work automatically and had to be opened or closed manually, after which Manns contacted MDI who made a service call. (ccc) Throughout 2003, failures in the automatic electronic functioning of all the gates, but most frequently, the western gate, were a regular occurrence. Hy-Tec employees closed the gates manually frequently and this required more than one employee as the western gate in particular was heavy. The usual practice with the western gate was to close the eastern leaf first. (ddd) MDI had the service contract for the operation of the gates and from time to time during 2003 would attend the site to service the gate. MDI did not provide any documentation or written service reports to Hy-Tec in relation to these visits. The defendant challenged the relevance of the matters raised in paras (bbb), (ccc) and (ddd). (eee) On 14 October 2003 a tragic incident occurred in which one of the gates fell on Melissa Maybury resulting in her death (fatal incident). Jason Sheath was the last employee of Hy-Tec present at the site and was responsible for closing the gates to the site. His friend Ms Maybury arrived at the concrete batching plant by car to transport him home. She had done this on previous occasions. (fff) Sheath was attempting to close the bi-sliding metal gate on the western side of the premises. Sheath was initially attempting to close the western gate electronically. The electronic system used to close the gates failed. Sheath rang his supervisor Hanna to ask him for the pin code for the drivers' room because the drivers had forgotten to close the room gate and told Hanna he was having problems closing the gate and that he would get back to Hanna with how he went with closing the gate. (ggg) Sheath disengaged the motor and commenced to close it manually. Sheath initially tried to close the western leaf of the western gate. He experienced difficulty in moving the western leaf by himself. Sheath had previously had assistance in closing the gate manually. Ms Maybury came to the assistance of Sheath in manually closing the gates. (hhh) At the time that Sheath was attempting to close the western leaf of the western gate, the eastern leaf was still in the open position. While Sheath and Ms Maybury were attempting to close the western leaf manually, as they manoeuvred the western leaf, the front edge of the gate leaf passed the midpoint of the driveway. It moved out of the supporting portals and fell onto Ms Maybury and caused her fatal injuries. (iii) There were 3 sets of gates (eastern, western and middle) at the Hy-Tec Botany Plant each consisting of two gate leaves that ordinarily met at a midpoint in the closed position. The fatal incident involved the western gate which is the largest of the three gates . (jjj) On 15 October 2003 Inspector Sibilant attended the site of the fatal incident at about 7:05am. He made the following observations in his factual inspection. He observed a large metal gate lying on the ground, the top of which was facing a southerly direction and which was approximately 10.71m long by 2.53 m wide. The gate had a metal frame of approximately 100mm by approximately 150mm consisting of galvanised metal. Attached to the rear of the outside of each of the guide frame structures were a FAAC electric motor which had a pinion or cog wheel arrangement attached to it. This arrangement opened and closed the gates by driving the rack attached to the gate. The wheels of the gates ran on a metal rail which was cemented into the ground. The rail was approximately 4mm thick and protruded approximately 5mm above the concrete grounds. (kkk) Inspector Garg attended the site on 15 October 2003. He made the following observations in his report. Inspector Garg observed on the top of the western gate there was a steel angle 110mm by 75mm by 50mm bolted to the steel frame of the gate on the western end approximately 30mm from the top edge of the frame. On the eastern leaf of the western gate there was a steel angle welded to the steel frame on the outer eastern side of approximate dimensions 110mm by 75mm by 50mm. The vertical gap between the top of the gate and assembly was approximately 20mm. The total weight of the gate, consisting of the two gates leaves was approximately 2,680kg with each gate leaf weighing approximately 1340kg. (lll) The photographic evidence consists of: (i) the Photographs taken by Inspector John Sibilant on 15 October 2003; (ii) Photographs taken by Raj Garg on 15 October 2003; (iii) Photographs taken by Inspector Barney Ching on 24 October 2003; (iv) Photographs taken by Brad Buffoni on 15-16 October 2003. (mmm) The evidence demonstrates that there was one welded stop affixed to the eastern leaf of the western gate and one bolted stop affixed to the western leaf of the western gate. The stops are part of the evidence. (nnn) The only available inference from the evidence is that were only ever three stops attached to the six leaves of the gates at the concrete batching plant. The factual inspections made after the fatal incident show that no further stops were installed after November 2002 and that the western leaf of the western gate still had the bolted stop installed in November 2002. The bolted stop was grossly inadequate and incapable of providing the mechanical strength required to limit the travel of the gate, whether that travel was driven by the normal power system, electric motor and gear box that drove the gate, or through the manual operation of the gate leaf. (ooo) Subsequent to the fatal incident, Hadley on behalf of SDA designed gate stops which were approved by Andrew Simpson. The design drawings were forwarded to Proctor of Hy-Tec by Hadley from the defendant on 15 October 2003. The entire work of designing, fabricating and installing stops in both the opening and closing positions took just one day. These stops were photographed by Inspector Ching on 24 October 2003. The defendant noted that there was no evidence of how long was required for those stops to be fabricated and installed. (ppp) In designing the stops after the fatal incident, Hadley was able to undertake relevant calculations to undertake the task such as the calculation of the load. As the gates could be operated manually as well as electronically, Hadley determined the load that someone could push on the door manually and from that he allocated the velocity and calculated an impact load. CONSTRUCTION OF s 11 7 The prosecutor submitted that s 11 of the Act provided for an absolute duty to ensure safety and that duty also applied to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that was reasonably foreseeable. The judgment of the majority in the Commission in Court Session in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 was cited in support of that proposition. That judgment dealt with s 18 (2) of the Occupational Health and Safety Act 1983, a provision in similar terms to the present provision.

8 In Arbor Products, the majority of the Full Bench (Walton J, V-P and Boland J) stated: [35] In his judgment, Marks J took what he described as 'a holistic approach to the question of safety in terms of the operation of this machine'. His Honour took the view that he should have regard to the totality of the machine, the environment and circumstances in which it was used, the persons who might be expected to operate the machine, the training of operators, the conduct of the supplier and the obligations imposed on the employer of operators of the machine. [36] We think, with respect, that the holistic approach adopted by Marks J was wrong. Such an approach has the potential to, and in this matter did, obscure or overshadow the central issue which, in our view, is whether the plant supplied for use at work was safe and without risks to health. If the answer to that is "no" then, prima facie , the supplier has committed an offence under s18 (2)(a) of the Act. If the answer is in the affirmative but a person uses the plant improperly or in a manner for which it was not designed, then the supplier, if charged with an offence, may rely on the defence of "when properly used". This is consistent with the view expressed by Fisher P in Callaghan v Theiss Contractors Pty Limited (unreported, Matter No. 1377 of 1989, 20 December 1990) where his Honour held that: Section 18(2)(a) which speaks of plant being safe and without risks to health when properly used still requires that the plant is to be "safe and without risks to health" which this compactor never was. It is only when the safe and risk free plant is not properly use (sic) that the proviso operates to assist the manufacturer.

[37] The supplier of plant for use at work has a duty to "ensure" that it is "safe and without risks to health". ... [38] We see no reason in construing the statute that the word "ensure" as it is used in s18(2)(a) should be given any different meaning to the same word in s15(1). ... ... [40] On its proper construction s18(2)(a) is not intended to provide protection to a supplier of plant which is unsafe or poses a risk to health by allowing, for example, a defence that unsafe plant was not used according to the supplier's operating manual or a defence that the unsafe plant was not "diligently" maintained (in circumstances where the supplier knew the machine was to be used for an inappropriate purpose). Such a construction would, in our view, be contrary to the purposes of the section and inconsistent with the objects of the Act. That construction is contrary to the evident purpose of s18 when considered as a whole and as conveyed by the context in which the provision appears: for example, the terms of s18(2)(b). It is inconsistent with the object of the Act, namely, "to secure the health, safety and welfare of persons at work". ....

[43] As to the qualification in s18(2)(a) arising from the phrase "when properly used", we conclude that the qualification is intended to limit liability of a supplier where the plant which is supplied is safe (in the sense that the safety is ensured) but such plant becomes unsafe because of misuse (for example, the wilful misuse of a machine by removal of a guard). It was plainly not the intention of the legislature to allow, by the use of that phrase, a limitation in the obligations arising under the sub-section where the defendant had, for example, provided an instruction manual or advice on how to use the plant supplied or had provided training for employees in the proper use of the plant at work where the plant was unsafe. If this were the case, it would be open to manufacture and supply plant for use at work that was not safe and posed risks to health. A supplier could simply argue on a prosecution under s18(2)(a) that, notwithstanding the plant supplied was inherently unsafe, an instruction manual was issued on how to properly use the plant and, consequently, no liability arose. In reaching this conclusion we have accepted the appellant's submission that the duty that arises under s18(2)(a) cannot be intended to have been circumscribed in the way contended for by the respondent and accepted by his Honour at first instance. 9 A Full Bench of the Commission in National Hire Pty Ltd v Howard (2003) 126 IR 240 rejected an application for leave to reconsider the decision in Arbor Products. In rejecting that application, the Full Bench again noted the judgment of Fisher P in relation to Thiess Contractors Pty Ltd and concluded that the decision in Arbor Products rested on a 'carefully considered and well established principle, the subject of a longstanding decision of the chief Judge of this Court and the subject of a long standing decision of the Chief Industrial Magistrate' (see para [8]). Further, at para [10] the Full Bench stated: The decision in Arbor , in our view, is correct and is not one of manifest or demonstrable error that requires reconsideration. 10 In Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304, the High Court had cause to consider the operation of a provision similar to s 11 as contained in s 24(1) and (2)(a) of the Occupational Health and Safety and Welfare Act 1986 (SA). Section 24 provided: 24 Duties of manufacturers etc (1) A person who designs, manufactures, imports or supplies any plant to which this subsection applies must - (a) ensure so far as is reasonably practicable that the plant is designed and constructed so as to be safe - (i) when properly used and maintained; and (ii) when subjected to reasonably foreseeable forms of misuse; and (b) ensure so far as is reasonably practicable that the plant is designed and plant constructed so that people who might use, clean or maintain the plant are, in doing so, safe from injury and risks to health; and (c) take such steps to test or examine, or arrange for the testing or examination of, the plant as are reasonably necessary to ensure compliance with paragraphs (a) and (b); and (d) ensure that the plant complies in all respects with prescribed requirements (if any) applicable to it; and (e) ensure so far as is reasonably practicable that adequate information about any conditions necessary to ensure the safe installation, use and maintenance of the plant is supplied with the plant. (2a) Without derogating from the operation of subsections (1) and (2), where any structure is to be erected in the course of any work - (a) the person who designs the structure must ensure so far as is reasonably practicable that the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health; (b) ensure so far as is reasonably practicable that the plant is designed and constructed so that people who might use, clean or maintain the plant are, in doing so, safe from injury and risks to health; (c) take such steps to test or examine, or arrange for the testing or examination of, the plant as are reasonably necessary to ensure compliance with para (a) and para (b); (d) ensure that the plant complies in all respects with prescribed requirements (if any) applicable to it. 11 Mr Slivak had been injured when he fell from a fume extraction system, a system he was working on during the course of its construction. In civil proceedings for damages, he had pleaded negligence and the breach of the statutory duty, namely, s 24 of the South Australian Occupational Health Safety and Welfare Act. 12 Having determined that s 24 gave rise to a cause of action, the joint judgment then turned to the scope of the statutory duty imposed by s 24, stating as follows: [30] What now has to be determined is the scope of that statutory duty and its application in this litigation. Section 24(2a) applies where "any structure is to be erected in the course of any work". The duty imposed upon designers of the structure by s 24(2a)(a) is only one of four duties imposed by subs (2a). Duties are imposed upon those who design the structure, who manufacture or import or supply materials and who erect the structure. Breach of any provision of s 24(1), to which s 24(2a) attaches, is punishable by a "Division 2 fine", which is defined by s 4(5) to mean a fine not exceeding $50,000. This is the second most severe fine which may be imposed under the Act.

[31] The Act thus demarcates the activities of designing a structure, manufacturing materials to be used for its erection, importing or supplying any materials used "for the purposes of the structure" and undertaking the erection of the structure ... [32] Moreover, there is a difference in the scope of these statutory duties. The duty of a designer extends to "the persons who are required to erect" the structure so that they may do it "safe from injury and risks to health". The duty of a manufacturer extends to "the persons who are required to erect the structure" so that they are "in using, handling or otherwise dealing with the materials, safe from injury and risks to health". The duty of an importer or supplier of materials extends to "any person who must use, handle or otherwise deal with the materials", while the duty of the person undertaking the erection is to ensure so far as is reasonably practicable "that the structure is safe during the course of its erection and subsequent use " (emphasis added). [33] The range of duties laid out in s 24(2a) ... on the basis of tasks undertaken is in contrast to the allocation of duties in the adjacent subsections. These remain in a form substantially unchanged from the original text of the Act. Section 24(1) imposes duties upon a person "who designs, manufactures, imports or supplies any plant" to which that sub-section applies, while s 24(2) imposes duties upon a person who "erects, installs or modifies any plant" to which that sub-section refers. Section 24(3) imposes duties upon a person "who manufactures, imports or supplies any substance for use at a workplace". The subsections serve to highlight the more precise division of duties in s 24(2a) and hence to elucidate the reach of that subsection. [34] Subsection (2a) divides and allocates in paras (a)-(d) duties between those who design a structure, those who manufacture any materials to be used for its "purposes", those who import or supply any materials to be used for its "purposes" and those who undertake its erection. The difference in the content of the duties and their different scope of operation suggests that the duty imposed upon designers is intended to be limited to matters of design. To deal with examples raised during argument, it would not be incumbent on a designer to guard against a supplier of material or an erector incorporating substandard or inferior materials when constructing the design. The supplier or erector or both would be in breach of their own duty under the relevant paragraphs of s 24(2a). The express imposition of liability upon those parties for such acts suggests there is not to be implied in para (a) of s 24(2a) an imposition upon the designer in respect of the same matters. [35] The same would follow in respect of the erection of a structure outside or otherwise not in accordance with its design. The imposition by para (d) of liability upon the person undertaking the erection of the structure suggests that the designer is not required by para (a) to anticipate errors or departures from design by the person undertaking the erection and to take steps to guard against it by modifying the design. The result of accepting submissions for the appellants would be to enlarge the scope of para (a) to cover the matters already dealt with in paras (b), (c) or (d). This would tend to distort the scheme of the Act and undermine its careful allocation of liabilities among the parties jointly responsible for the erection of a structure. It would also expose designers to criminal liability for a penalty of up to $50,000 in respect of matters not expressly mentioned in the statute. The court should be slow to interpret a law in a fashion which would impose criminal liability by a process of implication. [36] This conclusion is fortified by the text of para (a) itself. This requires "the person who designs the structure" to "ensure so far as is reasonably practicable that the structure is designed" so that those erecting it are "safe from injury and risks to health". It is not a duty to ensure that those erecting the structure are safe from injury and risks to health. This would approximate some form of non-delegable duty of care in respect of all aspects of the erection of a structure. More particularly, any feature or structure included in a design might not be, or be only incompletely, complied with during the course of a structure being built according to it. A builder might depart from a designed overlap of 1 mm by building the structure 2 mm wider than designed, or depart from a designed overlap of 2 mm by an error of 4 mm, or from a designed overlap of 3 mm by an error of 6 mm, and so on. In the statutory text, no means is provided to differentiate between those departures required to be anticipated by a designer and those which are not. Nor are cases construing the words of other statutes helpful. To attempt to build a superstructure sufficiently finely-tuned to be capable of distinguishing between such examples would build too much upon the words of the paragraph. The text of para (a) cannot bear the added weight that would be necessary to allow the distinctions contended for by counsel for the appellants. [37] The ordinary and natural meaning of the terms in para (a) of s 24(2a) is that they apply to a structure being built in accordance with the design. Thus, if, as designed, parts of a structure are incapable of bearing weight that the structure is intended to bear, or if, as designed, it is possible for parts of the structure to fall or break, or if the design is incapable of being built safely having regard to features of the location in which it is being built, then the design will be inadequate and the designer will have breached s 24(2a). The appellants stressed the presence of the term "must ensure". However, the requirement is one of ensuring safety "so far as is reasonably practicable". The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction. 13 The prosecutor relied on para [37] of the joint judgment to submit that, as a designer, the duty of the defendant in the present matter applied to matters which were within its power to check, such as whether the gates would be capable of manual use, the type of motor to be used and the speeds at which the gates could travel under these modes of operation. The defendant submitted that the legislature could not have intended that, by s 11(1)(a) of the Act, the duty imposed on a designer of plant would be 'limitless'. The purpose of that section was limited to imposing a duty on a designer's design of the plant rather than suggesting that a designer had an unlimited responsibility for the safety of the plant, independently of the design. The application of s 11(1)(a) was limited by that purpose so that the duty that was imposed should be understood to be limited to the matters of the designer's design. For this submission, the defendants also relied upon para [34] of the joint judgment in Slivak. It was further submitted that the section would only be contravened if there was a connection between the designer's design of the plant on the one hand and a failure to ensure the safety of the plant on the other. The failure must lay in the designer's design if the designer is to be liable for contravening the section. That construction was said to be consistent with the language of clauses 86, 87 and 88 of the Regulation. The charge drawn by the prosecutor alleged a failure to include in the design any or any adequate devices to prevent the western leaf of the western gate falling during manual operation and it was therefore critical to identify with precision, what the defendant was required to design because that design defined the limits of the duty imposed on the defendant by s 11(1)(a). 14 While there are many observations that assist in a proper construction of the provisions of s 11 of the New South Wales Act, the structure of the South Australian Act is sufficiently different to distinguish aspects of the approach in Slivak. The South Australian provision is structured so that a number of the duties that are found in the Regulation in New South Wales are specified as part of the statute. More significantly, the structure of the New South Wales Act is such that it suggests an inter-connection between the designers, the manufacturers and the suppliers of plant. Under s 11(1) the designers, the manufacturers and suppliers of plant are to ensure that the plant is safe and without risk to health when properly used and they are to provide, or arrange for the provision of adequate information about the plant or substance, to a person to whom it is supplied to ensure its safe use. Even under the carefully drawn South Australian provisions, a designer was to undertake, for example, enquiries to ascertain the purpose of the structure and was to ensure that part of the designed structure would not "fall or break". Under s 11 it would be within the power (rather than outside the power of the designer) to make enquiries as to the type of motor to be used to operate the gates after being informed that they are to be motorised and whether there is a manual override function in relation to the motorised mechanism. It is not to be assumed, for example, that merely because a gate is intended to be motorised in its operation rather than being manually operated that the a motorised gate will never have to be manually operated. A motor without a manual override might satisfy the designer that the use of the gate is such that, if for some reason the motor failed, manual operation would not be possible. Proper enquires would need to be made regarding the operation of such a motor. After making the simple enquiry about how the gates were to be moved and finding that a manual override motor would or could be used, the designer, to comply with s 11(1), would either need to advise the client that a stop would be required to prevent the gate from drawing beyond the portal and falling with risk to safety, or, alternatively, specify a stop in the design either as part of the design or to be supplied as a proprietary line. 15 There is an important difference in the structure of the South Australian provision and the terms of s 11. Putting aside the difference in the absolute obligation imposed by s 11, s 24 of the South Australian Act is in similar terms to s 11(1)(a) where s 11 talks about "when properly used". The South Australian Act also adds "when subjected to reasonably foreseeable forms of misuse". The nature of the obligations for those who design, manufacture and import or supply are then set out in sub-section 2(a) of s 24 of the South Australian Act but in the New South Wales legislative scheme more expansive detailed provisions are set out, not in s 11 but in the Occupational Health and Safety Regulation 2001. As the High Court pointed out, under the South Australian Act, the duty of a designer extended to persons who were required to erect the structure so that they could do it safe from injury and risk to health. The duty of manufacturers extended to persons who were required to erect a structure so that they were, in using, handling and otherwise dealing with the materials, safe from injury and risk to health. The duty of an importer or supplier extended to any person who must use, handle or otherwise deal with the materials. It was in this context that the High Court said that the Act demarcated the activities of designing a structure, manufacturing materials to be used for its erection, importing or supplying any materials used for the purpose of the structure and undertaking erection of the structure. 16 The Occupational Health and Safety Regulation 2001 imposes particular obligations on the designer in relation to, amongst other things, the "use" of the plant at a place of work. Thus, under cl 86, the designer is to identify any foreseeable hazard that may arise from the design of the plant that has the potential to harm the health and safety of a person during the use of the plant at a place of work. Under cl 87, a designer of plant must assess the risk of harm to the health or safety of a person arising from any hazard identified in accordance with the Division and is then to identify the design requirements and any other actions necessary to eliminate and control the risk. Under cl 89, the designer must design plant so that risks associated with the use of the plant are eliminated or are controlled. The same may be said in relation to cl 96 which requires the designer to provide information and cl 97 that requires the designer to obtain information. 17 It can be seen, therefore, that the obligations imposed on a designer by a combination of s 11 and Pt 5.2 of the Occupational Health and Safety Regulation appear to go beyond the duties and obligations imposed by the South Australian provision. Nevertheless, in Slivak, the High Court stated that it was within the power of the designer to perform certain tasks in ensuring safety such as ascertaining the use of the structure, what loads it would experience when being built and the nature of the location in which it was to be erected - the designer would not be required to take into account factors outside the power of the designer to control, supervise or manage such procedures to be adopted during construction. It is unnecessary for the purposes of the present case to establish the outer limits of the operation of s 11 but it may be said that the limited duties of the designer under the South Australian Act would also apply under s 11. DELIBERATION 18 In relation to the formalities of the charge, firstly, the Court is satisfied that in designing the structural elements of the gate, the defendant was designing "plant" for use by people at work. The defendant had structural engineering contractual obligations in relation to the concrete batching plant generally and was aware of the nature of the work to be performed at the site and how the proposed gates were to be part of the overall operation of the concrete batching plant, a place where people would work. The gate, or the structural elements of the gate with which the defendant was concerned, falls within the definition of "plant" found in s 4 of the Act. The Court accepts the prosecutor's submission that the term "plant" is not to be narrowly construed (see Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 1044 and 1047 of 1993, 9 September 1994 - Peterson J) and the Full Bench in Inspector Ching v Bros Bins System Pty Ltd (2003) IR 62 at [40]. 19 The evidence supports a finding that the defendant was involved in the engineering design of plant, namely, the gates. The essence of its work at and in relation to the site and in relation to the gate plant was structural engineering design - a description accepted by the defendant. The Court also accepts the submissions of the prosecutor in relation to this element of the offence. In addition, it is accepted that, by operation of s 11(2)(b) and (c) by their extended nature, those sections cover the design work performed by the defendant. The evidence further supports a finding that the gate plant was designed in the course of trade, business or other undertakings by the defendant. It should be noted that, in relation to these formal requirements, the defendant raised no issue - the focus of its case was upon the nature of the work performed by a structural engineer and the work actually required of the defendantby the project manager, Hannas. Nevertheless, the Court is required to be satisfied that these formal elements of the offence have been established. For the reasons already outlined, the Court is satisfied that these elements of the offence have been established. 20 The focus of the case was the allegation found in particular (14), namely, that the defendant failed to include in the design any, or any adequate device to prevent the western leaf of the west gate falling during manual operations. In summary, firstly, the prosecutor's case was that there was an admitted failure to include any device such as stops to prevent the gates from being manually pulled beyond the supporting portals. Mr Hadley, who had been primarily responsible for the design work of the gate on behalf of the defendant, accepted that they did not make any provision for any backup system in the case of electrical or mechanical failure. The reason for this approach was that he did not believe that the gates would be manually operated - his understanding was that the operation of the gates would be controlled by motor. Further, the design of adequate devices to prevent the gates from falling was not part of the brief expressly given to the defendant. Against these propositions the prosecutor submitted, by reference to at least two sources, that the defendant was required to go further and was to consider the use to be made of the gates and the way in which they would operate and any hazard likely to arise from such operation and to conduct a risk assessment of the proposed operation of the gate. These obligations were said to flow from the operation of the Occupational Health and Safety Regulation demonstrating that the designer was obliged to identify hazards, assess risks and control risks, irrespective of any express instructions: particular reference was made to cl 86, 87 and 89 of the Regulation. In addition, reliance was placed on the expert evidence of Mr Colin Simpson (a professional engineer with qualifications as a mechanical engineer) and Mr Garg (a qualified professional engineer). 21 Mr Simpson's evidence was to the effect that the defendant should have undertaken a risk analysis, including what he described as a "what if?" analysis as part of the overall design process. Speaking as a professional engineer, Mr Simpson's evidence was that such an analysis should be undertaken by any professional engineer regardless of any sub-speciality in which they practised, including structural engineers. Mr Simpson's evidence was to the effect that reliance could not be solely placed upon electronic or electrically operated systems for the gates and that an alternative system also had to be available. If the defendant had followed the most basic of design principles by importing a basic risk analysis for the design, then that analysis would readily have identified that the electrical operation of the gates would, from time-to-time, fail and thus necessitate manual operation of the gates. The defendant should have been aware of the risk associated with manual operation of the gates and included travel limiting devices in the design. 22 Mr Garg was a WorkCover Inspector when he prepared an engineering report in relation to this incident. Mr Garg held a tertiary qualification in mechanical engineering, holding a degree of Bachelor of Engineering (Mechanical) and later attaining a Masters Degree in Engineering from Sydney University. Part of his studies involved structural engineering but he did not specialise in that field. After graduating Mr Garg said he practiced as a professional engineer. He was ultimately admitted as a member of the Institute of Engineers qualifying for membership by way of being a professional engineer. Somewhat curiously, although not called as an expert witness by the prosecutor, the defendant qualified Mr Garg as an expert witness in the field of mechanical engineering and was permitted to ask a number of questions based upon Mr Garg's expertise. Mr Garg was asked by the prosecutor what would be his expectations of a structural design engineer in putting forward designs for this form of gate, whether it was motorised or manually operated. Mr Garg referred to comments he had made in his report and stated that he would expect "something on the ground also to stop the wheels and another one on top of the gates also, where they are hitting the stationary portals in this case". The Court accepts the evidence of these two witnesses: that evidence highlights the omissions of the defendant in ensuring the safety of its gate plant design. 23 The prosecutor pointed out that, while the design took place before it was known the exact motor to be used to power the gates, this in no way prevented the design of stops to cater for manual operation. Mr Hadley did have a document in his brief showing that MDI motors allowed manual operation and in May 2002, before the defendant had completed the design, MDI was given the contract to provide the motor. The prosecutor submitted that it would have been a simple matter for the defendant to make enquiries about the motor or even motor options from MDI. Evidence from MDI's installation manager, Mr Dark, was that those motors always allowed manual release. It was significant that Mr Hadley stated in his evidence that the design of the stops, which took place after the fatal accident, was conducted on the assumption of the speed at which the gates would operate manually rather than the motor speed because manual operation was faster than automatic operation. Therefore, it was submitted, that on this evidence the exact motor was irrelevant to the design of stops that were to be designed to act as a safety device during manual operation. The duty of the defendant, as a designer, was to check whether the gates were capable of manual use, the type of motor to be used and the travel speeds of the gates in these modes of operation and how to ensure the gates could be safely used in all modes of operation, including manual operation. The Court accepts this submission. 24 In summary the case for the defendant was that, on a proper understanding of the role of a structural engineer and the brief received from Hannas, attention had to be focused on the purpose for which the defendant's design was required and that purpose was limited to ensuring the "structural integrity of the gates under load" and that was all. It was accepted that the defendant's design did not stipulate stops but the task and hence the defendant's duty under s 11(1)(a) did not require it to do so. In this respect, the defendant relied on evidence from Mr Hadley that the work involved in structural engineering consisted of the engineering of the structural elements "in structures". The problems that structural engineers set out to solve included the "need to determine the forces that are inside the structural element in order to engineer those elements". The task of a structural engineer was to calculate the external loads on the structure, follow the load path through the structure down in the ground and engineer all the structural elements. That task was undertaken without regard to the motor. 25 Mr Hadley described the structural elements of the gate in other sections of his evidence as including the gate frames, the portals, the holding down bolts and the concrete foundations. Reference in the design plans prepared by the defendant to rails and wheels were specifically requested to be included in the drawings by Mr Twomey acting for Hannas. That was the only reason why those matters were included in the design plans and so, it was submitted, in any event, those items were to be supplied by others. Mr Hadley's evidence was that, for the purpose of designing the structural elements of the gate, he did not turn his mind to the manner of the operation of the gates because the structural engineering task that he was performing was "independent of the operation of the gates". Mr Hadley clarified that, by referring to "the operation of the gate", he was referring to the fact that it could be operated by a motor or "any other means". Mr Hadley stated his task as the structural engineer was to find the load path of the external load through the structure into the ground and that task "can be performed without knowing the operation of the gate". The load path travelled through the structure of the elements that did not relate to the operation of the gates. 26 Those explanations given by Mr Hadley in his evidence have to be considered in the context of other evidence that demonstrated: (a) the defendant, via Mr Hadley, was informed by Mr Twomey that the gate would be operated by an electric motor, albeit, one provided and installed by someone other than the defendant. (b) Mr Hadley and Mr Twomey had conducted an on-site inspection of other sliding gates and had noted the make of the motor used to operate those gates. Mr Hadley had also made enquiries as to who supplied such motors and had spoken to a supplier of automatic gates. (c) Mr Hadley had a document in his brief showing that MDI Motors allowed manual operation. Mr Dark from MDI gave evidence that such motors always allowed manual release. These matters strongly suggest a wider role for structural engineers than the defendant's case would allow. 27 The evidence shows that, at least within the period covered by the particulars of the alleged offence ( and in fact, earlier), the defendant was aware that the requirements of the Local Council regarding the broad dimensions of the gate and fence and that the gates controlled mainly vehicular access to and egress from a concrete batching plant that was under construction. The defendant knew the weights of the gates in their proposed design and knew that those gates would run on wheels within tracks to be laid by others. The defendant knew the gate would be operated by an electric/electronic motor and had information available as to the mode of operation of at least one brand of such a motor. Mr Hadley had inspected gates and motors at other premises. 28 Having regard to these matters, could the defendant ignore the use to be made of the gates and its method of operation and simply rely upon its perceived limited role as the structural engineering designer of the structural elements of the gates, leaving it to others to consider how the gate may be safely operated? The answer to that question does not necessarily lie in the boundaries of what may be considered the technical professional duties of a structural engineer or by any professional practice in that regard (if indeed there is such a practice). The answer to this question, at least, lies in the obligations imposed upon the defendant as a designer of the gate or a core component of the gate (namely, its structural elements) by the Occupational Health and Safety Regulation. 29 Earlier in this judgment reference was made to a number of clauses of Pt 5.2 of the Regulation dealing with design, manufacture and registration of plant. Clause 84 indicates that the Division applies to the design of plant for use at work and included alterations to plant designs. Pursuant to cl 86, a designer of plant must identify any foreseeable hazard that may arise from the design of the plant that has the potential to harm the health or safety of any person during the "use" of the plant at a place of work. In relation to the operation of cl 86, s 11(2)(c) makes it clear that the duties under s 11 extend to the design of components or any plant for use by people at work. To the extent that it may be said that the structural engineering elements of the gate were not the whole gate, those structural elements were a significant component of these gates and indeed, were a core component of the gate plant. The other components were primarily directed to the metal sheeting covering the steel framework of the gate and other components essential for the operation of the gates such as wheels, rails and other running gear, including the motor. 30 Under cl 86, as a designer of plant, the defendant could not close its mind to the use of the gate. In much the same way as contemplated in Slivak, it was within the power of the defendant as designer to ascertain the use of the structure but under this clause, the defendant designer then had to identify any foreseeable hazard arising from the design of the plant that had the potential to harm the health or safety of any person during the use of the plant. This provision would then require the defendant to satisfy itself as to the motorised operation of the plant and whether it was capable of permanently locking or stopping the gate plant so that each leaf could not pass beyond the supporting portal and thereby become unsupported and likely to fall, causing serious injury to any person in the vicinity. In the present case, it was a simple step for the designer of the gate plant to enquire of Mr Twomey and/or Hannas as to which brand of motor would be chosen to operate the gates - an investigation of that motor could reveal whether or not it permitted manual operation of the gate. The evidence shows that much of this information was already in the hands of Mr Hadley. Despite the allegedly limited role of the structural engineer designing the gate, nevertheless, Mr Hadley conducted an on-site inspection with Mr Twomey of a similar set of gates and made a note of the motor used to operate the gates. 31 It is no answer for the defendant to say that it was informed that only a motor would operate the gates when common experience (and the evidence) is that motors and electricity supply to motors from time-to-time, fail. Quite apart from this possibility any motor (and the evidence is that all MDI motors were capable of manual operation) that had a de-clutching mechanism permitting manual operation meant that the designer had to be alert to the possibility that by inadvertence, carelessness or deliberate act the motor might be disconnected and the gates manually operated. These were "foreseeable hazards" and the simple remedial step to guard against the leaves of the gates being manually operated and pulled beyond the support of the portals was to install stop devices. It was within the professional structural engineering capacity of the defendant to design such stops so that they would be effective and as it turned out, that is precisely what the defendant did after the event in relation to these gates. In addition, it should be observed at this point, to the extent that it was part of the defendant's case that it was made aware the gates would be motorised for operation, that information did not exclude the possibility that, from time-to-time, they may be manually operated, although for the vast majority of time they would be electrically/electronically operated. 32 The defendant's obligation as the designer of the core component of the gate was extended by cl 87, requiring the designer of the plant to assess the risk of harm to health or safety of any person arising from any hazard identified in accordance with the Division. In particular, the designer of plant had to evaluate the likelihood of an injury occurring and the likely severity of any injury that may occur and identify the design requirements and any other actions necessary to eliminate or control the risk. The obligation under this clause is, in effect, picked up by Mr Simpson when he referred to the obligation of professional engineers to undertake a "what if?" assessment in relation to plant and the use of that plant. In the circumstances of the present case, the defendant, as designer of the core component of the gate plant, had to undertake a risk assessment if its investigations indicated the possibility, from time-to-time, of manual operation of the gates. Clearly, the gates needed support to prevent them from falling: the defendant regarded it as part of its professional practice as structural engineers to design the portals to support the leaves of the gate while they moved back and forth. It was a short step further to consider what support was available for the gates should they be inadvertently, carelessly or deliberately manually operated. A risk assessment conducted in those circumstances again would yield the simple solution of installing stop points to prevent the gates from being drawn beyond the support of their portal. Considering the size of the gates any such risk assessment would readily come to the conclusion that, if the leaves did travel beyond the support of the portal (the hazard), they were likely to fall and anybody in the vicinity of the fall area (such as a person manually operating the gate) would be likely to suffer serious, if not fatal, injuries (the risk). 33 Clause 89 (1) of the Regulation imposes a duty upon a designer of plant to design that plant so that risks associated with the use of the plant are eliminated and if not reasonably practicable to eliminate those risks, to ensure those risks are controlled. In designing these gates and the portals to support them, the designer also had to consider what support would be present for the gates if, from time-to-time, the motor or power supply failed or for any other reason, manual operation was possible. Once manual operation of the gates was possible because of the range of movements permitted by the motor, then the designer had to give consideration to how the gates were to be supported or how to prevent them from travelling beyond the support of their portals. Any such risk had to be eliminated or, if not able to be eliminated, had to be controlled. 34 Clause 95 of the Regulation requires a designer of plant to specify systems of work if they are necessary for the safe use of the plant. Under this clause it was open to the designer to specify that a motor was to be used that did not allow for manual operation or, if a motor was chosen that allowed for manual operation, then to specify a system of work that would allow for the safe operation of the gates. Such a system of work may specify the minimum number of people necessary to hold the gate when manually operated but in such an event, the most effective means of ensuring continued support for the gate was the simple installation of stops preventing the leaves passing beyond the support of the portals. It is likely that, had the defendant given consideration to cl 95 of the Regulation, it would not have ventured into the area of laying down a safe system of work for the operation of the gates by specifying the minimum number of persons required to support the gate during manual operation but rather, having considered the terms of cl 95, would revert to including an instruction with the drawings that if manual operation was to be allowed, then stops would have to be included for the gate leaves. 35 If the defendant had formed the view that it did not wish to include stops in the design in the event that the plant was manually used then under cl 96 of the Regulation as the designer of the plant, the defendant was obliged to provide other persons who had responsibilities under the regulation with all available information about the plant that was necessary to enable those persons to fulfil those responsibilities with respect to identifying hazards, assessing risks arising from these hazards and eliminating or controlling those risks and the provision of information. In these circumstances, the defendant as designer may need to obtain from Mr Twomey and/or Hannas the identity of the manufacturer of the other component parts of the gate, including its fabrication or the supplier of any material or gear for the operation of the gate so that the defendant could inform them that if manual operation was possible then steps needed to be taken, including the provision of stops, to prevent the leaves extending beyond the support of the portal. The defendant may also have satisfied its obligation under this clause by placing a note to the same effect on its design plans that were issued for construction 36 The terms of cl 97 are also important to the operation of cl 86, 87 and possibly 89 as they deal with the designer of plant obtaining such available information as is necessary to enable the designer to fulfil its responsibilities under the regulation in respect of identifying hazards, assessing risks arising from those hazards, eliminating or controlling those risks and providing information. The content of these obligations has already been dealt with. 37 There is no evidence, however, to support a finding that the defendant considered any of the matters referred to in the Regulation - indeed, it was asserted on its behalf that, by reference to the nature of the task performed by structural engineers, it was no part of their function to give consideration to the actual operation of the gate and/or its use. In taking that approach the defendant failed to act in accordance with the obligations imposed upon it as a designer by the various provisions of the Regulation that have been identified. These clauses of the Regulation identify the many ways in which the obligation in s 11(1) of the Act can be met. To the extent that s 11(2)(c) extends the duty under s 11(1) to the design of components for any plant for use by people at work, cl 7(2) of the Regulation provides that ss 11(2) and (3) of the Act apply to the duties under the Regulation of designers of plant for use by people at work. The defendant also failed to take the steps referred to in the evidence of Mr Simpson and Mr Garg. In these various ways the defendant is in breach of s 11(1) as particularised by the prosecutor. 38 It is appropriate to deal here with two related matters: (a) in Inspector Carmody v Tsougranis (No 2) (2003) 123 IR 419 at para [183], the Court (as presently constituted) drew attention to the fact that what may be acceptable professional or business practice may not always be sufficient to establish compliance with the duties and obligations imposed by the Act. Evidence in that case suggested that what might have been previously acceptable in a professional sense had been altered by the absolute nature of offences created by the Act; (b) in a similar vein, the Full Bench in Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 in paras [91] - [93] dealt with industry practice and what legitimate use could be made of it in mitigating the penalty flowing from a breach that, nevertheless, arose from conduct in accord with the practice. The Full Bench emphatically rejected the submission that a general principle existed that conduct in accordance with industry practice would normally act as a mitigating factor in sentencing a defendant. The Full Bench also rejected the proposition that such a general principle should be established; (c) in light of the Court's analysis of s 11 and the operation of the Regulation in Pt 5.2 as well as the expert evidence received, the usual industrial practice or professional practice of structural engineers relied upon by the defendants is not available to avoid the regulatory obligations of a designer and otherwise does not meet the requirements of prudent design practice and the need to ensure the safety of people at work where that design is in use. 39 It is also instructive to consider the judgment in Arbor Products in determining this case. On the approach dictated by the Full Bench in Arbor Products, the design of the core components of the gate had to be safe (in the sense that safety was assured) for the operation of the gate by the time the defendant had issued the plans for construction. Mr Hadley's evidence was that he had not turned his mind to what use the gate would be put; he knew it would be operated by motor but even then his task was to be undertaken without regard to the motor. On these bare facts and applying Arbor Products, the design was unsafe because of the possibility, not considered or addressed by the defendant, that the gate leaves could be manually moved beyond the support of the portal and could fall. The mere fact that it was contemplated that the gate would be motorised did not, without more, eliminate the real possibility that the gate would also be manually operated and could fall when manually operated. Applying Arbor Products leads to the conclusion that the defendant was guilty of a breach of s 11(1) of the Act. The defendant's submission that the design, as designed, is the focus of the obligations is unsupportable in that narrow and technical sense. This approach is circuitous and leads to the result that a design, unsafe in its operation, would avoid a breach of s 11(1),for example, because others, such as running gear suppliers, should address the operation of the gate. That approach is contrary to the Full Bench decision in Arbor Products. In submitting that the failure must be in the design of the designer in order to contravene s 11(1) of the Act, the defendant then says that it becomes critical to identify what the defendant is required to design. The defendant then says that the design is limited by what structural engineers usually do and that is to consider problems of the structural integrity of the gate under load. That proposition asks the wrong question but in any event, the real answer to that question is that the defendant was required to design the core components of a gate and could not ensure the safety of that design without addressing the use to be made of the gate and how it would operate. 40 During the course of the hearing, it became convenient to conditionally admit certain evidence and to determine its admissibility at the end of the case. The written submissions for the defendant addressed the conditionally admitted parts of the evidence of Mr Manns, Mr Proctor, Mr Hanna and Mr Gando. In those submissions the defendant submitted that the evidence objected to was irrelevant as it was concerned only with the operation of the gates once the Mascot plant was in use. That evidence dealt with procedure for opening and closing the gates, both electronically and manually, once they were in use and the extent to which those gates did not operate automatically and had to be moved manually and dealt with the maintenance of the gate. It was pointed out that one of the defendant's primary answers to the charge was that, in designing the "gate plant", it was not concerned "at all with the manner of operation of the gate". Having regard to the provisions of s 11(1) and Pt 5.2 of the Occupational Health and Safety Regulation 2001, that submission is untenable. It was then submitted that if somehow or other it could be said that the defendant's task concerned the manner of operation of the gates, there was nothing linking this irrelevant evidence to the defendant. This submission was made in the context that the defendant played no part in specifying, selecting or installing the operating equipment for the gates as part of its design work and had never been informed after the plant was operational that the mechanical aspects of the gate were deficient or that, from time-to-time, the gates were being manually operated. All of these matters are to be dealt within the context of the operation of the various identified clauses of the Regulation: these objections, on the basis of relevance, are therefore rejected. In many respects this evidence goes to matters that the parties appear to have accepted in any event, namely, that while the gates were primarily to be operated by electric/electronic motor, the motor was able to be disengaged allowing the gates to be manually operated. This evidence also supports a finding that there were electric machines for the operation of these gates that permitted manual operation and that from time-to-time, this machinery or its source of power failed and therefore there had to be other measures to ensure that, during manual operation, the gates did not pass beyond the portal supports and cause a risk to safety by falling. 41 During the hearing the defendant objected to the Court receiving into evidence two reports prepared by Mr Colin Simpson, a mechanical engineer. Objection was raised that the reports did not come within the provisions of s 79 of the Evidence Act 1995 or alternatively, were not relevant and further should be rejected pursuant to the provisions of s 137 of Evidence Act. The defendant noted that, in allowing this evidence, the Court had indicated that the weight to be attached to that evidence would need to be assessed at the completion of his oral evidence. However, at the conclusion of the witnesses' evidence, no further objection was raised but it was now submitted that the evidence should be rejected or alternatively, be accorded little weight. The Court sees no reason to depart from the ruling already given in relation to the admissibility of this evidence. 42 The defendant's principal argument, repeated in its written submissions, was that, because Mr Simpson was not a structural engineer but a mechanical engineer, he could not give evidence as to the scope of duties and responsibilities of a structural engineer. The duties, responsibilities and functions of a structural engineer were central to the defendant's case, namely, that the structural engineer was concerned only with the structural elements of this gate plant and nothing else. 43 In the conventional way, Mr Simpson was provided with a number of assumptions upon which he was asked to express an opinion having regard to his specialised field of knowledge which included the work of a professional engineer, engineering design and risk assessment approaches in the field of engineering. In terms, Mr Simpson was not asked by the prosecutor to give an opinion on what a structural engineer would or should do in its structural design of the gates. He was asked to express an opinion based upon his specialist training in mechanical engineering and his studies, training and experience in the design, construction, installation and use of metal bi-sliding gates. He was asked whether there were systems available to prevent a gate leaf from falling during manual operation and whether they should have been part of the "design" of the western gate. In his report and answers, Mr Simpson stated that the notes on the relevant drawings identified that the gate was to be co-ordinated with the manufacturer of the gate motor and rollers prior to fabrication and that fabrication should not commence until all approvals had been obtained. As a professional engineer reading those drawings, the gates were to be "power operated" but nothing in the drawings provided for the power operation of the gates. Those details were to be provided by the manufacturer prior to fabrication. Mr Simpson did not give his opinion based solely on his specialist knowledge as a mechanical engineer but spoke of his knowledge of the work of professional engineers generally and in particular, in relation to his specialised field of study in aspects of design and risk assessment in the engineering field. It is to be remembered that Mr Hadley was described as a "chartered professional engineer" as well as being a "structural engineer". It was in this context that Mr Simpson expressed the view that, in effect, in providing the drawings to Hannas the defendant had to undertake a "what if?" assessment having regard to the fact that the motor and the nature of the motor to be used to operate the gate had not been identified on the plans and were to be externally provided. That "what if?" analysis had to take into account the possibility that the operation of machines or electricity supply could be interrupted and the gates would have to be manually operated. If that occurred there was nothing to stop the leaves of the gate travelling beyond the support of the portal and the simplest and most straightforward solution was to specify in the plans a requirement to install suitable stops. Mr Simpson's "what if?" analysis is, in effect, another name for a risk analysis, something that the clauses of the Regulation contemplated should take place in the design of plant for use at work. 44 The further recital of the defendant's objections to Mr Simpson's evidence as set out in the written submissions does not persuade the Court to reject Mr Simpson's evidence or to accord it little or no weight. Having regard to the obligations imposed by clauses of the Regulation, Mr Simpson's evidence provides a practical overview of the way in which those obligations would be addressed in the design of this gate plant. In many respects, the defendant's objection to this evidence is a further example of its misconception about the limited role of a structural engineer and the very limited matters that such an engineer should consider in the design of gate plant that is the subject of these proceedings. 45 The defendant raised other issues as to why the charge should be dismissed. One such issue was related to the charge period and that the defendant's design of the gate plant concluded in late June 2002. The end of the charge period is the date on which the defendant issued revision E of its miscellaneous steelwork drawing. The defendant points out that the charge period ended well before the final design of the gates was settled. The final design of the gates, it was submitted, was probably not settled until, at the earliest, early August 2002 when Mr Twomey approved the fabrication drawings and probably extended until the first stop was designed and installed in November 2002. Although it was contemplated by the notes in the design drawings supplied by the defendant that it would have a continuing role after supplying Revision E, the defendant ceased to be given any ongoing part in the structural design of the gates or any other aspect of the design of the gates. This was Mr Twomey's decision acting for Hannas. It was submitted that, as a result, the defendant was not given the opportunity to complete the task of the design for which it had been engaged. 46 It was submitted that, as a matter of logic, a person who designs plant cannot be said to have failed to ensure the plant is safe for use within the meaning of s 11(1)(a) until the last opportunity for it to do so had passed. In this case, when the charge period had expired, the defendant expected to have an opportunity to complete its work and had no reason to suspect that it would not be given that opportunity. 47 This submission represents an interesting departure from the defendant's previous position. Throughout its written submissions and in the running of the case, the defendant emphasised that it was not responsible for the whole gate but only the core structural elements as components of the whole gate, including the running gear. The present submission seems to accept some ongoing role and a role in the design of the whole of the gate and being denied that opportunity. The defendant, nevertheless, strongly argued that stops were never part of its task and it was not required to bear them in mind in its design. It follows that the defendant would never have considered stops before fabrication unless asked to by Hannas and/or Mr Twomey. 48 The prosecutor's submissions in reply on this aspect argue that it mattered not that the charge period ended before the final design of the gates was settled as designs by their very nature may be preliminary. The prosecutor referred to dictionary definitions of "design" to include the preparation of preliminary sketch plans. It was submitted that, to the extent the defendant's design was preliminary in the sense that other work had to follow, it nevertheless set the parameters for all the work that followed. Mr Simpson's evidence was that the design and drawings had been created for the purpose of the eventual fabrication and erection of the gates and the basic design drawings represented what was eventually made. Indeed, the scope of works given to Sunstate and MDI required those contractors to follow the drawings which were those issued by the defendant. Significantly, the prosecutor pointed out that the defendant's final drawing carried the notation "issued for construction". Mr Hadley's evidence was that notation meant that the drawings "were appropriate for construction of the project". This was consistent with Mr Simpson's evidence that, except for the detail, the notation displayed an intention that the design was complete. 49 The Court accepts the force of the submissions made by the prosecutor in relation to this aspect of the case and rejects the defendant's submission that, on this basis, the charge be dismissed. 50 The defendant then proffered another reason why the charge should be dismissed noting that the risk on which the prosecutor relied was the risk of the western gate falling on a person or employee whenever the gate was manually used because a substantial travel limiting device was not installed. The defendant suggests that risk did not exist until the period when the gates were in use up to and including the accident in mid-October 2003. During that period the actual risk was that the gates would fall because the stop that had been installed immediately before the gates were commissioned for use was inadequate. The defendant had absolutely no part in the design of that stop and there was no suggestion that the defendant's design had any causal connection with the inadequacy of that stop. Accordingly, there was no connection between the risk that actually existed up to and on 14 October 2003 and the defendant's design. 51 It was common ground that the defendant did not include a stop in its design and strenuously asserted the appropriateness of not doing so having regard to what it submitted was its limited role as the structural engineer. The charge under s 11 centres upon its design and the omission of such a travel limiting stop. The risk to health and safety followed from adopting this design in the fabrication and installation of the gates. In relation to the designer's duty it mattered not that someone else designed and installed an inadequate stop after the defendant's plans were issued for construction. That event merely gave rise to the possibility of a breach by another entity. In addition, the prosecutor points out that the inadequate stop that had been installed was a consequence of the omission in the defendant's design and its failure to specify an appropriate travel limiting device such as a stop. If such a device had been included in the design prepared by the defendant, then the occasion for the installation of an inadequate travel limiting device by others would not have arisen. It was submitted that this failure was a substantial or significant cause and/or materially contributed to the risk of injury to persons at work. On either approach, this further submission for the defendant does not establish a case why the charge should be dismissed. The defendant's argument in relation to this matter also ignores the different period particularised in the charge and the nature of the charge particularised. 52 The arguments for the defendant are then repeated in relation to the s 28 defences and thereby face the same fundamental difficulties. Under s 28(a) a defence is provided if a defendant proves that it was not reasonably practicable for it to comply with the provision. There was no evidence that it was not reasonably practicable for the defendant to insert in its drawings a provision for stops and the design of stops is accepted by the defendant as part of the work of a structural engineer. As discussed in Slivak, it was open to the defendant to make enquiries about the use of the gate and how it would operate, including the motor to be used in the gate opening operation. It was open to the defendant to seek information about the motor to be used and whether there could be manual operation of the gate. No evidence was adduced as to why the requirements of s 11(1) and/or clauses of the Regulation were such that it was not reasonably practicable for the defendant to comply with those provisions. The s 28(a) defence is not established. 53 Section 28(b) requires the defendant to prove that the commission of the offence was due to causes over which it had no control and against the happening of which it was impracticable for the person to make provision. There was no such evidence. The same comments made in relation to s 28(a) might be made in relation to the s 28(b) defence. The s 28(b) defence is not established. 54 Having regard to the foregoing discussion, the defendant is found guilty of a breach of s 11(1) of the Act as particularised in the present proceedings and in particular, by its failure to include in the design of the gate plant any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. The parties are to confer as to a suitable date for the Court to receive evidence and hear submissions in relation to penalty. The parties are to contact my Associate in order to set a date for the sentence hearing.

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