Employer Found Guilty of Breach Under Occupational Health and Safety Act

The Industrial Relations Commission found the employer guilty of breaching the Occupational Health and Safety Act 2000 for failing to ensure the safety of its employees during pole top maintenance. The court noted the employer's failure to provide adequate information, supervision, and a safe method to perform the work at heights.

Industrial Court of New South Wales

CITATION: [NAME] v [NAME] [2007] NSWIRComm 180

PROSECUTOR: [NAME] PARTIES: DEFENDANT: [redacted]

CORAM: Haylen J

Occupational Health and Safety Act 2000 - s 8(1) - alleged breach by [NAME] - use of work teams to maintain poles carrying various electrical lines - workplace documents direct work to be carried out "clear" of nominated poles - member of team works on excluded pole and receives electric shock - fall injury leading to paraplegia - confusion amongst work team as to requirement of other workplace documents nominating maintenance work on excluded pole - despite training and safety rules employees not aware of presence of live cable on pole - system of safety at workplace did not ensure safety of employees - breach established - defence not made out CATCHWORDS:

HEARING DATES: 02/07/07, 03/07/07, 04/07/07, 05/07/07, 06/07/07, 09/07/07,10/07/07

DATE OF JUDGMENT: 24 July 2007

PROSECUTOR: [NAME] of counsel SOLICITORS: [redacted] LEGAL REPRESENTATIVES:

DEFENDANT: [redacted] SOLICITORS: [redacted]

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 24 July 2007 Matter No IRC 2607 of 2006 [NAME] v [NAME] under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 180

WORKING ON THE RAILWAYS 1 On 29 June 2004, [NAME] had been working as a linesman in the New South Wales Railways for approximately 13 years. On that day he was part of a work team undertaking maintenance work referred to as "pole top maintenance", involving the overhaul of overhead transmission lines known as feeders. This type of work was the subject of a number of documents prepared and followed under the workplace requirements of the [NAME] ("[NAME]"). 2 While performing this work on 29 June 2004 near [NAME] station [NAME] used a portable ladder to reach a fixed ladder attached to the pole designated as "[NAME]". At a height of approximately 7.5 metres from the ground, [NAME] came into contact with live wires, received an electric shock and fell to the ground. The injuries received by [NAME] in this accident rendered him a paraplegic. AN OCCUPATIONAL HEALTH AND SAFETY ACT PROSECUTION COMMENCED 3 The incident involving the workplace injury to [NAME] was investigated by Inspectors of the [NAME] Authority. In June 2006, [NAME] commenced proceedings alleging a breach by the [NAME] of s 8(1) of the Occupational Health and Safety Act 2000. The charge and particulars were framed as follows: On 29 June 2004 in a rail corridor adjacent to [ADDRESS], [NAME], in the [NAME], being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular [NAME] and [NAME], contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: (a) At all material times, [NAME] was a statutory State owned corporation pursuant to the provisions of section 19C of the Transport Administration Act 1988. (b) At all material times, [NAME] had the functions conferred and imposed upon it by section 19E of the Transport Administration Act 1988 and any other Act. (c) At all material times the principal function of [NAME] was to hold, manage, maintain and establish rail infrastructure facilities on behalf of the [NAME]. (d) At all material times, [NAME] was undertaking a work activity known as Pole Top Maintenance and/or overhaul of the feeders (the undertaking) at the site. (e) At all material times the performance of the functions conferred and imposed upon [NAME] pursuant to section 19E of the Transport Administration Act 1988 was subject to the requirements of the Rail Safety Act 2002. (f) At all material times [NAME] was subject to the provisions of the Rail Safety Act 2002, the purpose of which was to promote the safe construction, operation and maintenance of railways. (g) At all material times [NAME] was an operator of a railway who was responsible for a railway operation, pursuant to the provisions of section 7 of the Rail Safety Act 2002. (h) At all material times [NAME] was responsible for one or more railway operations pursuant to the provisions of section 7 of the Rail Safety Act 2002, including the construction and maintenance, or the construction or maintenance, of infrastructure of a railway. (i) At all material times [NAME] was an accredited person pursuant to the provisions of the Rail Safety Act 2002. (j) At all material times [NAME] was an employer and employed persons working at the site in the undertaking. (k) At all material times [NAME] employed persons at the site, including [NAME] and [NAME] in the undertaking at the site pursuant to section 20M(1) of the State Owned Corporations Act 1989. (l) At all material times the site was a place of work of [NAME]. (m) [NAME] failed to ensure that its employees were not exposed to risks to their health, safety and welfare in relation to the undertaking at the site, and in particular as to the work activity known as Pole Top Maintenance and/or overhaul of the feeders. (n) [NAME] failed to provide and maintain a system of work that was safe and without risks to health in relation to the undertaking at the site, and in particular as to the work activity known as Pole Top Maintenance and/or overhaul of the feeders, in that: (i) [NAME] failed to ensure adequate information and instruction was provided to its employees in relation to the documents used in the isolation procedure so that employees knew how to perform the undertaking safely on the day of the incident; (ii) [NAME] failed to provide adequate supervision of its employees at the site, in that supervisors were unable to and/or failed to identify the presence of an energised feeder present on [NAME]; (iii) [NAME] failed to provide adequate supervision of its employees at the site in that it directed and/or allowed an employee, [NAME] to ascend [NAME] and engage in the undertaking or ascend [NAME] at all, whilst there was present an energised feeder; (iv) [NAME] failed to provide a safe method to perform the undertaking at heights, in that it failed to provide and/or use a suitable Elevated Work Platform to access the feeders isolated for Pole Top Maintenance upon [NAME]; (v) [NAME] failed to ensure its employees properly used or used at all a harness and related fall arrest mechanisms when the undertaking was carried out at heights; (vi) [NAME] failed to ensure its employees received any adequate pre-work safety briefing prior to the undertaking and in particular in relation to [NAME]; (vii) [NAME] failed to ensure that the presence of the electrical feeder known as "[NAME]" was clearly marked on [NAME] so as to identify its existence and to ensure employees at the site were aware that [NAME] supported an additional feeder that may have been energised; (viii) [NAME] failed to de-energise the feeder "[NAME]" on [NAME] prior to the commencement of the undertaking on [NAME]; 4 In due course, the defendant entered a plea of not guilty and the matter was listed for substantive hearing. This judgment deals with the evidence and submissions as to whether the [NAME] is guilty of the offence charged and particularised. THE EVIDENCE 5 [NAME] attended the scene of the accident and was present when [NAME] was being attended to at the base of [NAME]. The [NAME] spoke to a number of representatives of the defendant including [NAME] (Regional Manager, North), [NAME] (acting team manager), [NAME] (leading hand) and [NAME] (a third year apprentice with the defendant). 6 The [NAME] took a number of photographs of the site of the accident around [NAME] and the surrounding area. He estimated that the fixed ladder was approximately three metres from the ground and that the top of the ladder was five metres from the ground. Around the bottom of [NAME] he observed on the ground a lanyard, a fall arrest harness, a high visibility vest, work boots and a helmet. He did not recall seeing any insulation gloves. Near the site was a portable extension ladder approximately three metres in length that could be extended to six metres. The rungs of the ladder were aluminium and the sides were constructed of fibreglass. There was an access gate from the street approximately 10 to 12 metres from [NAME]. The gate comprised two separate parts measuring approximately 5 to 5.5 metres in total width. The [NAME] was aware of the availability of elevated work platforms and their variety but observed no such piece of equipment near the site. 7 The [NAME] observed on [NAME], at a height of approximately 1.4 metres, three yellow metal tags carrying black writing. The tags were grouped together one on top of the other. The top tag carried the words "33Kv feeder 726"; the middle tag carried the number "49"; and the bottom tag carried the letters and numbers "[NAME]". The [NAME] noticed that at the base of the pole there were numerous sharp and jagged rocks blue-grey in colour and varying from approximately 20mm to 40mm in diameter. In oral evidence, the [NAME] expressed the view that, apart from a scissors- type elevated work platform, he could see no obstruction to the use of such a device for the work connected with [NAME]. In his view it was possible for a truck mounted lift or a cherry picker to be placed at [NAME]. 8 The [NAME] was supplied with a number of documents by the defendant including an "Electrical Permit to Work" carrying the permit number T401/04, a job safety analysis and an extract from the defendant's safety manual dealing with working at heights, a "Pre-Work Briefing" and a further four [NAME] "Job Safety Analysis". 9 On 30 June 2004, [NAME] issued an improvement notice to the defendant [NAME] stating that, in his opinion, the defendant was contravening s 8 of the Occupational Health and Safety Act 2000 and requiring the contravention to be remedied by 6 July 2004. Under the heading "Reason for issue" contained within the improvement notice, was the following statement: "Employees may be exposed to risks to health and safety whilst performing pole overhaul ie electric shock, electrocution, fall from height". Under the heading "Measures to be taken" the following was stated: · you must review the risk assessment for pole top overhauling; · you must review any measures adopted to control the risks associated with pole top overhauling; · your attention is drawn to Clause 12 of the Occupational Health and Safety Regulation 2001; · your attention is drawn to s 8 of the Occupational Health and Safety Act 2000.

The [NAME] stated that he formed the view expressed in the improvement notice and identified the risk because [NAME] was on a ladder which was unsecured when he could have been working from a cherry picker or similar device, thus avoiding the need to disconnect from the portable ladder to the fixed ladder at a height of six metres with the attendant risk of falling. The [NAME] had been informed by [NAME] that a fixed feeder on [NAME] was not isolated and relied on that information to form the view that there was a risk of electric shock when performing work on the pole. 10 In cross-examination, the [NAME] was shown a safety harness and a number of lanyards or fall arrest devices. While he could not identify the harness as the one found on the ground beside [NAME] on the day of the accident, he agreed that it was of a similar type. In relation to the harness and each of the lanyards, he was able to express the view, after examining each item, that they appeared to be in good working order. 11 In relation to the improvement notice issued, the [NAME] relied on what he was told by others: measures to be taken arose from a review and assessment of the pole top work. He called for the risk assessment for the work because he wanted the [NAME] to look at those documents to see if they were accurate. 12 While on site on 29 June 2004, he made an assessment as to whether an elevated work platform could have been used at [NAME] and he looked at access through the gates near that pole. He also inspected the terrain between the gate and [NAME] to see whether it was appropriate for use by an elevated work platform. He thought that an elevated work platform could have been used by gaining access through the nearby gates and that it could also safely travel over the ground and safely be positioned at the pole. 13 In re-examination, the [NAME] stated that, in relation to the fall arrest equipment he had been shown, the fall arrest equipment was at the lower end of safety and a work platform was at the highest level of safety. An emergency plan was needed with the use of fall arrest equipment because issues arose of swinging, hitting the pole and the need to quickly remove a person from a pole. The fire brigade removed persons by use of a cherry picker or used its crew to remove and walk a person down the pole. The [NAME] explained how the lanyard could be attached to the pole to arrest a fall but if it was not attached, it was of no use. 14 [NAME] had been a tradesman for 10 years and had been employed as a [NAME] for 20 years. He had been authorised to institute the proceedings against the defendant. He had issued a number of s 62 notices to the defendant and had visited the site of the accident on three occasions; 22 May 2005, 24 May 2006 and 23 June 2006. He had taken a number of photographs of the site. He estimated that it was 15 metres from the rail corridor to the track. He identified the pole he had photographed by reference to the plaque carrying a number attached to each pole. At [NAME], there was a fixed ladder approximately 5.5. metres above the ground, although he did not measure it. There was access from the gateway to the pole that was approximately 15 metres away and the access gates measured five metres in width. The distance between the fence and the gravel side of the track was approximately 15 metres. 15 [NAME] received a number of documents from [NAME] pursuant to s 62 of the Act dealing with the diagnosis and treatment of [NAME]. Amongst other things, those documents recorded that [NAME] had suffered from electric shock and had incurred a spinal injury. The [NAME] had also received the defendant's document known as 'Working High Voltage Instruction'" and "The Pre-Work Briefing". He had spoken to a number of witnesses and had taken statements from them. 16 In cross-examination, [NAME] confirmed that he had formed the view that there was no obstruction at the gateway near [NAME] preventing the entry of an elevated work platform attached to a truck although access would depend on the size of the truck. He was of the view that such an elevated work platform, depending on its size, could have been used at [NAME]. 17 When [NAME] gave evidence was still employed by the [NAME] but was now performing office duties. In 2004, he was employed by the defendant as a linesman and had been employed in that capacity for some 13 years. His day-to-day duties involved maintaining transition poles and working on maintaining the overhead wire for trains. In performing that work he was a member of a four-person team, generally comprising [NAME], the leading hand and linesman. On the day of the accident the team comprised, the team leader or leading hand [NAME], a linesman, and [NAME], an apprentice linesman. [NAME] was the most senior person and [NAME] was the most junior in the team. 18 [NAME] was shown the defendant's Working High Voltage Instruction T401/04 applicable to the work to be performed on 29 June 2004. That document specified the equipment to be isolated, gave special instructions that all work was to be carried out clear of specified poles, including "[NAME] H/V joint use [NAME]". The document specified that the electrical system operator would arrange for switching and safety earthing operations and nominated locations for circuit breakers indicating the action to be taken. In relation to [NAME] at [NAME], the circuit breaker or switch was identified as being "2Kv section AB Sw" with the action to be taken nominated as "check open and lock open with special lock and D.T.". The reference to "D.T" was a reference to danger tagging. After setting out the locations, circuit breakers and action to be taken, the instruction then carried the following statement: Prove dead and apply safety earths to 2Kv transmission line pole 45 and 51. 19 The area in which the permits might be issued was identified as: "[NAME] to [NAME] on 726 33Kv feeder and Epping 55 to Pole 48 on NL 16 fdr and Poles 51 to 134 on [NAME] 2Kv FDR". [NAME] said that the purpose of this instruction was to isolate a section of the transmission lines, that is, taking the power out. The document instructed where the switching was to be performed and similar actions. The reference to switching was a reference to isolating the overhead or transmission line. Earths were applied to the transmission lines when the power was taken out to make them safe. During his employment with the defendant, [NAME] had seen this type of document describing where the power was to be taken out: the document was required in order for isolations to be performed. The document was prepared from the electrical operations control. When prepared, it was generally sent to a foreman - on 29 June 2004, that person was [NAME]. The document was sent to the foreman of a transmission work team because the foreman was in charge, had authority, and, also held the "Working High Voltage Instruction". 20 Prior to 29 June 2004, [NAME] had not seen the Working High Voltage Instruction dated 23 June 2004. [NAME] said he had not seen that particular instruction. He had seen this type of form in the past. In the instruction, the reference to "equipment to be isolated" he understood to be a statement of the switching that needed to be undertaken in relation to the transmission lines where the power was to be isolated. Under the document dated 23 June 2004, the transmission lines to be isolated were the 33Kv transmission line between [NAME] and [NAME] on feeder No 726, the northern lighting transmission line ([NAME]) being a 2Kv transmission line between [NAME] on which feeder [NAME] and 50 were to be isolated. Also to be isolated was the northern lighting, transmission lighting [NAME], a 2Kv transmission line between the section ending at Pole 50 [NAME] and [NAME]. 21 In the Working High Voltage Instruction document there was a section entitled "Special Instructions". [NAME] understood that entries in this part of the instruction indicated actions that needed to be carried out: the document in this section said "All work to be carried out clear of" a number of specified poles. The last such entry read, "[NAME] H/V [NAME]": [NAME] understood this to be a reference to the [NAME] high voltage joint use [NAME]. It conveyed to him that they were to keep clear of [NAME], that is, not work on that pole. 22 In the Working High Voltage Instruction there was a section in the following terms: The electrical system operator shall arrange for the following switching and safety earthing operations.

This reference to switching meant isolating the power. Under that section, there was a reference to the 2Kv section air break switch at [NAME], which indicated that the action to be taken was "check open and lock open with special lock and D.T". [NAME] understood that the 2Kv section would be isolated and danger tagged. When the substation indicated that the lines were isolated, they tested that power was out so that earths could be applied to the feeder line. The instruction to "prove dead and earth" meant that there needed to be a test of the overhead lines to prove the power was isolated, which was done with a high voltage tester, and once it was proved that there was power isolation, earthing had to be applied to the conductors as an additional safety measure to ensure that no power was running along the lines. 23 Under the Working High Voltage Instruction, there was a limitation on the area in which work permits could be issued. In relation to the 23 June 2004 notice, Permits to Work could be issued between [NAME] and [NAME] on 726 33Kv feeder and the [NAME] to Pole 48 on [NAME] feeder line and Poles 51 to 134 on NI21 to Kv feeder. Anyone working in that area required a permit called a Permit to Work. [NAME] was shown a document entitled "Electrical Permit to Work" carrying permit No T401/04 concerning planned work for 29 June 2004. The work to be conducted on that day was described as "pole top overhaul to be carried out using cherry picker between [NAME]". [NAME] signed that document and agreed that he must have completed the document having received the Working High Voltage Instruction. [NAME] did not recall when he completed that document. He thought he would have filled out the document before he had signed it and included a time and date. The time and date would probably have been inserted when he received word that the power had been isolated - he would then have signed the Permit to Work. The usual process was to fill out the permit but not to sign it until notification was received that the power had been isolated. 24 As far as he could remember, [NAME] was told by [NAME] that the work was to be carried out using a cherry picker. [NAME] was the leading hand for the team. The Electrical Permit to Work carried the following entry made by [NAME]: "It is safe to carry out work between Poles 18 to 134 on 726 feeder, [NAME] feeder and [NAME] feeder". That section did not say that it was safe to carry out work on [NAME], but from the document it was possible to say that it was safe to carry out work on [NAME] because there was no instruction not to work on [NAME] written by him on the form. 25 Stapled to the electrical Permit to Work was a slip of paper containing "special instructions". Those special instructions were the same as those appearing as special instructions in the Working High Voltage Instruction document dated 23 June 2004. The special instruction stated that work was to be carried out, amongst other things, clear of Rail Infrastructure joint use [NAME]. 26 The Electrical Permit to Work issued by [NAME] contained an acceptance that he would comply with the provisions of Parts A and B on the reverse side of the form and that he accepted the associated responsibilities and would ensure that the work party complied with the provisions of Part B on the reverse side of the form. The work party was to sign and acknowledge that they had been shown and understood the details contained in the permit. By signing the Permit, [NAME] knew where the safe working areas were located and, having regard to the special instructions, the safe electrical working area was between Poles 18 to 134 on 726 feeder and the [NAME] and [NAME] feeders. 27 When [NAME] filled out the Electrical Permit he acknowledged that the specified electrical equipment had been earthed, namely, the 726 feeder 33Kv with working earths at Poles 18 and 134, [NAME] feeder 2Kv with working earths at Poles 47 and 51 used as working earths. When filling out this information, he assumed that he had been told by [NAME] that earthing had taken place at those locations. He acknowledged that, by earthing Poles 18 and 134, there would be no voltage running between the poles. Similarly, in relation to the 2000 volt feeder [NAME], there would have been no voltage running between Poles 47 and 51 if it had been earthed. [NAME] at the 726 feeder had been isolated and earthed also. If earthing was applied to Poles 47 and 51, there would not have been any current or voltage at [NAME] in relation to the [NAME] feeder. Neither would there have been any voltage current running along [NAME] at [NAME]. 28 In completing the Electrical Permit to Work, [NAME] said that he worked off the Working High Voltage instruction. [NAME] would have told him when the lines were earthed and the power had been isolated. The permit had been signed by [NAME] and [NAME]. When the other members of the team signed the form they did not have regard to the Working High Voltage instruction. They simply read the nature of the electrical work completed by [NAME] in the permit and signed their names. 29 [NAME] was aware of a "Pre-Work Briefing" document during his employment and that its purpose was to identify hazards before commencing a job. [NAME] did not exactly recall when he had previously carried out pole top maintenance prior to this accident but it was likely to have been for a period of less than two months. The reference in the document to a Certificate of Competence was a reference to being qualified: [NAME] held certificates in relation to linesman duties. He had attended schools run by the defendant and had various qualifications. To continue working as a linesman with the defendant, it was a requirement to annually undertake electrical safety instructions: that training lasted for a day and there were various other mandatory courses. 30 The Pre-Work Briefing document referred to a worksite protection officer. On the day of the accident, [NAME] performed those duties which were mainly to do with working near the track. [NAME] had no recollection of the details of the Pre-Work Briefing regarding this job and, in his 13 years as a linesman, he had not performed maintenance work on [NAME] at [NAME]. From photographs of [NAME] was able to recognise identification plates attached to the pole. The plate with the number "726" he understood to be a reference to a transmission line being a feeder attached to the pole - the purpose of the plate was to identify the presence of that feeder on the pole. Another plate identified the pole by number, that is, [NAME]. Another plate with "[NAME]" printed on it identified [NAME] as a feeder attached to that pole. [NAME] said that if there were any other feeders attached to that pole he would expect them to be identified by another plate. At the time of the accident he was aware of two feeders being attached to [NAME], being feeders 726 and [NAME]. As far as he was aware they were both isolated and he was told that by [NAME]. 31 Insulated cable running up the middle of [NAME] did not tell [NAME] what that cable was or its purpose. On the day of the accident, [NAME] did not remember if an elevated work platform was available for working on the poles. To obtain access to [NAME] he used a portable ladder that was carried on the work truck. He thought [NAME] directed him to climb the ladder to access the pole but he did not totally recall what happened. He recalled being on the ladder and falling, and feeling electric shocks through his arms. He had experienced an electric shock previously and the sensation was like an electric shock. He did not recall how far he was up the ladder or his position on the pole, but he believed he was wearing his safety harness. He assumed that he had not anchored the harness using the lanyard. 32 Before going up the pole, [NAME] remembered being told that the power was out and that it was allright to work on [NAME]. As a result of falling from the ladder, [NAME] suffered significant injuries including spinal cord injury and was admitted to the Royal North Shore Hospital. He underwent significant rehabilitation at Ryde leaving the Rehabilitation Centre just before Christmas 2004. He continues to undergo physiotherapy and electrical stimulation to keep his leg muscles working and to avoid muscle waste. 33 Photographs of [NAME] after the accident containing additional identification plates were shown to [NAME]. The plate warning that the HV cable must be isolated and earthed before ascending the pole was the type of plate he had seen throughout the course of his employment with the defendant. There was an additional plate with the writing "[NAME]". [NAME] knew that was a feeder line but he did not know exactly what it meant. 34 In cross-examination, [NAME] agreed that, when he began his employment as a linesman, he attended a training school and was trained in the duties of a linesman, including the use of ladders in the climbing of poles. He was also trained in the use of fall arrest harnesses and the way such harnesses should be worn, as well as being trained generally in the work involved in pole top overhaul. He was required to be retrained and re-certified in all electrical safety instructions each year and he accepted that, prior to the accident, he had been re-certificated in November 2003. During the re-certification, he was again instructed on the correct use of ladders in climbing or descending poles and the use of portable extension ladders in gaining access to elevated work locations. He was instructed that non-conductive ladders should be used for electrical work. A fibreglass ladder had been used at [NAME] on the day of the accident. 35 The ladder training included instruction to secure the top and bottom of the ladder by use of a pole chain or fall rope. He was trained that ladders should be adequately supported at the base. He was instructed that, when working in an elevated position from a ladder, a fall could result because of incorrect use of the ladder. He was instructed that injuries involving ladders could be prevented, by using, amongst other things safety belts or harnesses in a correct manner. That involved using correct anchorage points and knowing appropriate release and rescue procedures in the event of falling when wearing a fall arrest harness. The harness was to be correctly adjusted for secure fit. Before a harness could be trusted to support him in his work, he had to ensure that all hooks and other connections were correctly secured. He understood that he was to test the load of the harness and that only after ensuring all fittings were correctly secured and the harness tested for load, was he to trust the harness to carry his weight. [NAME] said that this was not something he did very often but that was the training. He was instructed not to work alone when using a safety harness and was trained in the steps to follow when using a harness to ascend or descend a pole. He acknowledged each of the steps involved, including attaching a pole strap to the side ring of the safety harness and, on reaching the top of the ladder, he should place the pole strap around the pole and secure it to the D ring on the other side of the harness. The head of the ladder was to be secured if not already done. Once the pole strap was around the pole and secured to the two D rings on the harness only then was he able to leave the ladder. He was trained and instructed that he was to be attached to the pole structure while ascending and descending or while moving his work position. 36 In both his initial training and annual re-qualification and re-certification, [NAME] was taught the elements of electrical discipline and the correct way in which to perform electrical work. He was given instruction in safety while working aloft and was trained in working on live low and high voltage conductors. For the purpose of carrying out such work, the line was to be tested and proved not alive before work commenced. The line must be earthed and proved not alive before work commenced and a testing device was used for that purpose. That equipment was part of the kit available to the crew. In the course of his training, he was told not to assume that a line was de-energised and that he should prove that fact himself once the power was isolated and the earth was connected where he was working on something. 37 The events that occurred on the day of the accident were only partially remembered by [NAME]: some matters were recalled but other parts he could not remember. [NAME] did not recall completing and signing the Electrical Permit to Work in relation to the work to be performed that day but he accepted that the document contained his handwriting and he had signed it. On that document there was a strip of paper containing "Special Instructions" for the work. He accepted that he attached that slip of paper to the permit. He was familiar with that document during the course of his employment but he was not sure there was printed material on the reverse side of the permit. [NAME] accepted that on the front of the permit he acknowledged that he would comply with the provisions of Parts A and B on the reverse side of the form but he said he did not look at the reverse side of the permit and he did not remember that detail. 38 On the day of the accident, [NAME] remembered asking whether they were to work on [NAME] although this was not a face-to-face conversation: it was directed to [NAME]. [NAME] confirmed that work was to be performed on [NAME] but [NAME] did not remember him saying anything else about [NAME] before he climbed it. [NAME] remembered starting to put on his harness. He said he would not have taken that step until he was to commence work because it was uncomfortable to sit waiting in the harness: he thought he had been told at that point that the power was isolated. He thought that he had been told that the power was isolated by [NAME] or [NAME]. He had no memory of being told anything else about [NAME] by [NAME] or anyone else before he began to climb it. [NAME] arrived on the site and said that the power was out and earthed and work could be commenced up the pole. That conversation took place before he started to get his gear ready and occurred somewhere at the foot of [NAME]. The conversation with [NAME] took place before his conversation with [NAME]. He could not remember whether anyone else was present when [NAME] spoke of the isolation of the line. [NAME] assumed that [NAME] was referring not just to [NAME] as being isolated but that all poles and feeders were included. He understood that feeder 726 and feeder [NAME] were de-energised. 39 In relation to the isolation of transmission lines that was to take place on the day of the incident at [NAME] there was an air break switch that could be operated from the ground which opened the air break on the pole thereby breaking the circuit that would isolate the circuit. On the day of the incident although he could not remember the exact words, [NAME] had arrived and told him that they were right to begin work effectively because the power was isolated. [NAME] was under the impression from what was said by [NAME] that the lines had also been earthed but he did not remember any conversation about using the cherry picker. He had no recollection of conducting any tests of any feeder or conductor on [NAME] before he began to climb, but he thought he would not have done so. That work would have been done at the other end of the work area which he could not have seen. 40 Although he remembered putting on the harness before climbing the pole, [NAME] did not remember what steps he took to ensure that he was securely attached to the pole. He remembered climbing the pole but did not remember exactly where he fell. He thought he was either in the process of attaching himself or had not attached himself to the pole, but accepted that he had not attached himself to the pole. [NAME] and [NAME] were present as he climbed the pole as was [NAME]. He could not remember where [NAME] was standing but heard his voice just after he had arrived and it was not a large area around the base of the pole. He had no recollection of [NAME] saying anything about using the safety harness as he climbed the pole. He did not recall where [NAME] was standing, but he did speak to him. He could not remember where [NAME] was standing. He did not recall whether the ladder was adequately supported at its base or whether the head of the ladder was secured. 41 At the time of the accident, [NAME] was employed by the defendant as a leading district linesman. He had been employed by the defendant since 1985. On the day of the accident, the work being performed was "Pole top overhauls" which involved looking after the infrastructure at the top of the poles, tightening cross-arms and steel work and making sure that the pole top itself was in good condition. He had previously participated in this maintenance task. The work on this day had been contained in a document he knew as the "work commit", that nominated the actual poles to be overhauled. This document was different to the Working High Voltage Instruction, the isolation request and the permit. The work commit document came via the computer and contained the scope of the work for the month. [NAME] was not sure where the document came from but he received it from the foreman who at that time was [NAME]. 42 On the day of the accident, [NAME] and [NAME] went to Pole 46 at [NAME] to undertake switching and earthing. They drove a truck to the site. The truck had no elevated work platform attachment. A work platform or cherry picker was not needed and [NAME] had undertaken the earthing by climbing the pole using of an extension ladder. The extension ladder was "footed" by [NAME]. Prior to the earthing, [NAME] told them that the two feeders at Pole 46 had been isolated. After the earthing had been completed, he and [NAME] waited for the Permit to arrive. The Permit advised in more detail than the Working High Voltage Instruction as to the switching to take place - the Instruction document allowed the carrying out of isolation of any particular area where work was needed on the high voltage lines. Work could not go ahead unless an Instruction had been provided by "electrical trouble" being the electrical operator. Copies of the instruction were provided to those carrying out the switching. 43 In relation to the Instruction for work to be carried out on the day of the accident, there was no mention of the isolation of the feeder known as [NAME]. The "Special Instructions" referred to "joint use" poles which were poles shared by the defendant and other users such as [NAME]. The Special Instructions stated in part that all work was to be carried out clear of [NAME] joint use [NAME]: [NAME] understood that to be a reference to a joint use pole, but he attached no importance to the words "all work to be carried out clear of the joint use [NAME]". 44 Work that day had commenced with earthing at Pole 47: [NAME] then performed pole top maintenance at Pole 48 using a ladder. [NAME] and [NAME] then arrived at [NAME] and he thought that [NAME] was there by the time they arrived. [NAME] had been with [NAME] performing switching. [NAME] was at Pole 51 in a "bucket truck" which was a cherry picker attached to a truck. That was a hired vehicle with an allocated driver. [NAME] said he would have directed the team including [NAME] to go to [NAME]. He knew to go to [NAME] because of the "commit" document. As far as [NAME] knew on the day of the accident, there were three feeders attached to [NAME] being [NAME] coming from the Epping end, [NAME] coming from the [NAME] end and 726 going straight through the top of the pole. [NAME] was not aware of any other feeder attached to [NAME] on the day of the accident. He knew the three feeders were attached to [NAME] because the instruction documents said so. 45 Work at [NAME] had to await the electrical Permit. The plan was to use a cherry picker and, although it was available and being used by [NAME], it was unable to be used at [NAME] because it could not obtain access from the street because cars were parked in a way that obstructed the cherry picker. The cherry picker supplied was very big and old and there was little chance of getting it near [NAME]. [NAME] said he made the decision to use other means than the cherry picker to get access to [NAME]. There was no particular discussion or direction about working on a particular pole as the team knew what had to be done. When he returned to [NAME], he laid the ladder against it having carried it from Pole 48. He then went to the cab of the truck to check the "commit" and whether work was to be performed on [NAME]. It was part of the work programme to perform pole maintenance at [NAME]. He did not direct anyone to climb [NAME] nor was there a decision made by anyone to climb that pole. 46 As a leading linesman, it was part of his duties to direct persons he supervised as to when and at what time to gain access to particular poles for maintenance. In relation to [NAME] had given no instructions to [NAME] at that time. He had placed the ladder against the pole and he returned to the cab of the truck to look at the commit document. [NAME] was present. While at the truck he came come across [NAME]: they had a conversation during which [NAME] was on the other side of the truck. The conversation with [NAME] did not conclude but was interrupted by [NAME] falling from the pole. [NAME] did not know he was up the pole but when he heard him scream he realised that he had gone up the ladder. [NAME] told them that he had been at the foot of the ladder. Prior to [NAME]'s fall, [NAME] was not aware of any person instructing or directing [NAME] to climb the ladder. [NAME] could not remember discussing with [NAME] prior to his fall whether he was to climb [NAME]. When [NAME] arrived, he had told them to go ahead to test dead and when lines were found to be dead to apply the earths - that was at Pole 47. [NAME] had said nothing about the isolation of power to [NAME] which was something that would not normally be done. [NAME] had not been tested dead. That testing had been done at Pole 47 and at Pole 51. There were no earths attached to [NAME] but they had been attached to Poles 47 and 51 and had been attached prior to [NAME]'s fall. They were aware that power at [NAME] had been isolated because [NAME] instructed them that he had clearance from the electrical operators that isolation had been carried out and it was appropriate to go ahead and prove the line dead and, if dead, to apply the earth. This was what had been done at Poles 47 and 51. [NAME] had understood that it was safe to work on [NAME] because of the detail in the Instruction and the fact that [NAME] had given the clearance to go ahead to test for dead and supply the earth. 47 On the morning [NAME] arrived, he was able to get his vehicle through the access gates at [NAME] because the vehicle was not an average size truck but was designed for tight manoeuvres. When he arrived, there were cars obstructing the entrance gates. There was little point postponing the work on [NAME] until later in the day because commuters had parked their cars obstructing the gates and they were unlikely to return before the end of the day. It was impossible to swing the cherry picker truck through the access gates because of the cars parked at the corner of the access way. 48 No particular instruction to work on [NAME] was given. However, [NAME] believed that if there had been a discussion about the pole and if it had been decided to work on it, then that work would have taken place. If there was an agreement to work on [NAME], then the work would be performed. The commit document contained details of the work programme and nominated each pole on which work was to be performed. [NAME] went to check that document in the truck to see that [NAME] and the other poles were contained within that document. [NAME] was contained in that document and pole top overhaul was to be performed on it. 49 A Pre-work briefing had been conducted by [NAME] in relation to the work to be performed that day. That Briefing looked at the hazards associated with the work and how to avoid the identified hazards. [NAME] said that he was the "protection officer" on that day as referred to in the Pre-work Briefing. The role of the protection officer was to check the Pre-work to make sure it was in line with what they were doing on the day. There was to be a check of the hazards associated with the work under the worksite protection plan and also to see if they were working near the tracks. 50 The plates on the pole identified the overhead transmission lines for the workmen. On the day of the accident, the black insulation cable running up [NAME] was merely a cable to [NAME], he did not know exactly what type of cable it was and he had never been told, although he would have expected to be informed. He did not know whether that cable was alive or not. Had the instruction stated that there was a live cable, he would have known. There was no reference to that high voltage cable in the Instruction concerning [NAME]. After the accident, [NAME] understood that the insulated cable was [NAME], a signal cable. He would have expected to be informed about that cable and whether it was alive or not. Any supervisor would have known that; his immediate supervisor was [NAME]. After the accident, a warning plate was attached to the pole with another plate identifying the presence of [NAME]. 51 In relation to the black cable [NAME] running up the pole, [NAME] stated that the insulation for that feeder ended just below the point of attachment which was adjacent to an insulator. There was no insulation beyond that point. [NAME] did not know whether feeder [NAME] would be dead or alive if the air brake was in an open position. When [NAME] arrived at [NAME] with [NAME] and up until the time of his fall, he did not provide any supervision to [NAME]. 52 In cross-examination, [NAME] accepted that, in the course of his work, he had often completed Permits of the kind in operation on the day of the accident. The Pre-work Briefing had identified electrocution as a hazard which was addressed by the Electrical Permit to Work. That Permit was a control against the hazards of electrocution. 53 In relation to the Permit to Work on the day of the accident, the Permit holder and the person authorised to complete and issue the Permit for that day's work was [NAME]. After it was completed by [NAME], it was shown to [NAME] who signed it. There were obligations set out in that document applying to the Permit holder and to those who had signed the Permit. 54 The Permit contained a general comment that work could not commence until the Permit had been received and all staff engaged on the work had signed the Permit. Under Part A, the responsibilities of the Permit holder were set out and included a responsibility to ensure that the work described on the Permit fully described the work to be carried out and that no work was to be carried out on or near the isolated equipment other than that specified on the Permit. It was also the Permit holder's obligation to ensure that persons carrying out the work understood the electrical equipment covered by the Permit that was safe to work on or near and that all other exposed equipment was to be treated as alive. The Permit holder was to ensure that persons carrying out their work were warned not to allow any part of their bodies, clothes, tools or materials they might be using or carrying to come within the safe working distance of any exposed equipment other than the isolated equipment in the electrically safe work area. Under Part B, persons signing the Permit acknowledged that they had been instructed and understood the extent of the electrically safe working area and that all other electrical equipment was to be treated as alive; that they had been instructed that, in order not to incur any danger, they must confine themselves, their clothing, tools and material within the electrically safe work area. [NAME] understood that this was the way in which the Permit operated. He agreed that nothing in Part A on the back of the Permit referred to the work commit document. The electrically safe work area was a reference to the area of the equipment that had been isolated. 55 [NAME]'s practice in completing an Electrical Permit to Work was that he filled out that document and the Working High Voltage Instruction at approximately the same time and together. The Working High Voltage Instruction told him what equipment was to be isolated and identified the electrically safe working area. That area was to be identified in the Permit. The Instruction had the principal purpose of identifying the electrical equipment to be isolated and was the primary reference point for that information. On the day of the accident, when [NAME] signed the electrical Permit, he had not by that time looked at the Instruction. The Special Instructions were on a slip of paper stapled to the electrical Permit to Work on that day. Those Special Instructions informed him of all work to be carried out on that day and that it was to be carried out clear of certain pieces of electrical equipment. The electrically safe working area was between Poles 18 and 134. The work within that area was to be carried out clear of the pieces of electrical equipment specified in the Special Instruction stapled to the Permit. This was his understanding on the day of the accident. [NAME] accepted that the Special Instructions told him that, under the Permit, the electrically safe work area for the day did not include [NAME] and that the workers were to stay clear of that pole. [NAME] was not within the electrically safe area which he understood on the day of the accident. He also understood, from the obligations under the electrical Permit, that employees were to confine themselves to the electrically safe work area and that they were to treat all other electrical equipment as live. 56 By reference to photographs of [NAME] said he that, on the day, he thought that all the air break equipment was part of [NAME]. He understood that, when the air break switch was operated and opened, it ensured that [NAME] above the air break switch was de-energised and isolated. When he first arrived at [NAME] he noticed that the lever on the Pole had been opened, locked and danger tagged. That was the requirement under the Instruction for the day's work. He looked at the air break in that state, he knew that [NAME] had been isolated and was thus de-energised above the air break switch. He was not aware that it was not isolated below the air break switch but he thought it was all connected in the one and that the whole was connected to [NAME], including the cable. 57 [NAME] had placed the ladder against [NAME] and recalled that it rested against the second step on the fixed ladder attached to the pole. It rested on the pole parallel to the fixed steel ladder. He did not see that ladder moved after he had placed it at [NAME] and before he heard [NAME] cry out as he fell. When he ran to [NAME]'s aid, the ladder was still standing against the pole but he did not know whether it was in the same position in which he had placed it. 58 Early in the day, he had been with [NAME] when he climbed Poles 47 and 48 and observed him correctly wearing his arrest harness. [NAME] knew how to wear the harness and use it properly as he was an experienced linesman. 59 At the work site, and before [NAME] began to climb [NAME] said there was a discussion as to how to get the cherry picker near Poles 49 and 50. He thought he had discussed that with [NAME] and the driver of the cherry picker: they had asked the driver if he could get access to those poles. He could not. The reason he could not get access was because he could not get past the cars outside the access gates. Had it not been for those cars, he could have gone through the access gates if it was wide enough and it could then have been used for [NAME]. [NAME] could not recall who made the decision that the cherry picker could not be used on [NAME] but it was a general conclusion with which he agreed. 60 After giving his initial evidence, [NAME] made a search for the "work commit" document he had referred to on the day of the accident. That search resulted in the production of a one-[NAME] document, although he was unsure whether there had been other pages attached to the document on the day. The document had been given to him on 29 June 2004 by the foreman, [NAME]. The document contained work numbers for each pole, including [NAME], but [NAME] was unsure whether, on that day, he also had a copy of the actual Work Order. He believed he had seen a copy of the Work Order as at 29 June 2004, but was unsure whether that had been at the depot or in the field. [NAME] agreed that from time to time, work orders were raised for work to be performed from particular poles: that was the way the defendant asked him to perform work on a particular pole, through the Work Order. The Work Order [NAME] read relating to the work to be performed on [NAME] mentioned feeder 726, also mentioned in the commit document. The Work Order also identified the period which work on [NAME] was to be performed. However, [NAME] did not remember the period during which work on [NAME] was to be performed. 61 [NAME] accepted that the electrical Permit to Work was a document that gave the team members and [NAME] permission to perform work on a particular day. The document issued on 29 June 2004 specified work to be done that day, the Instruction identified the electrical equipment to be isolated on that particular day thus identifying the electrically safe work area for that day. The area in which the team was to work and the electrically safe work area were defined and identified by both the Permit and the Instruction. [NAME] agreed that anything contained in any other document which reproduced any part of that information was to be read subject to the Work High Voltage Instruction and the electrical Permit. [NAME] did not remember if the Work Order for the day regarding [NAME] identified feeder [NAME]. 62 The use of truck-mounted cherry pickers had been observed and used by [NAME] in the course of his work: he had observed the use of 23 metre and 28 metre cherry pickers. [NAME] agreed, from his own observation, that both the 23 metre and 28 metre cherry pickers had a width of 2.5 metres and were designed to be driven on ordinary roads and when so driven they did not need to carry a sign warning of a wide load. The 23 metre travelling tower was, from his observation, 9.5 metres long: the 28 metre cherry picker 10.5 metres long. 63 In re-examination, [NAME] confirmed that on 29 June 2004 his understanding was that the Working High Voltage Instruction and the electrical Permit with the Special Instructions meant that all work to was to be carried out clear of [NAME]. Despite the Special Instructions and his understanding of it, he thought he was directed by way of the work commit document to carry out that work on that particular Pole. He regarded himself as being responsible for the work site on the day of the accident and it was therefore incumbent upon him to identify the Special Instructions. He did not think he had disregarded those Special Instructions. He thought that [NAME] was totally isolated and he did not "pick up" the Special Instruction to stay clear of [NAME]. According to the Instruction that he read, [NAME] had "total control" of [NAME], it was totally isolated and safe to carry out work. He thought it was safe to carry out work on [NAME] because, on reading the Instruction, there was no mention of a live cable going up [NAME], namely [NAME]. He thought that the line [NAME] ran from the aerial feeder to the ground because beside the Pole there was a box with a "pad mount type system" that was an automatic switch from the Electrical Trouble Office. When that office carried out the total switching it would switch it from that particular pad mount which was how the whole area, including cable [NAME], was isolated. [NAME] described the "pad mount" as similar to a small substation system containing switching components that could be switched from a central area such as the Electrical Trouble Office. He had made the assumption that the pad mount near [NAME] had been used to isolate the entire pole. 64 In performing work on 29 June 2004, [NAME] said he had a brief look and had skipped through the Special Instructions within the Working High Voltage Instruction and electrical Permit to Work - it looked like the same type of document as was always used. 65 It was understood by [NAME] that pole top overhaul work could be carried out over a period of time and up to 18 months. The Permit required the pole top overhaul work to be undertaken by use of a cherry picker. [NAME] said there was no reason why he could not have deferred the overhaul of [NAME] on the day until he was able to obtain access to [NAME] using a cherry picker. He had continued with the work at [NAME] because the work was on "a bit of a roll" and [NAME] was a bit of a fitness fanatic who did not mind climbing the poles. 66 The commit document used by [NAME] for the work on the day of the accident referred to transmission line 726, and only 726. From that entry in the commit document, [NAME] understood that the high voltage feeder 726 was to be isolated and nothing else. When working in the field [NAME] had the commit document and had a number of other documents called commit documents stapled together. The other documents and pages dealt with different types of work including line clearing, vegetation clearing etc. [NAME] relied on those documents to set his work pattern including work on [NAME] on the day of the accident. [NAME] did not remember whether, on the day of the accident, he had a one-[NAME] commit document or a number of pages with him. 67 At the time of the accident, [NAME] was employed by the defendant as an acting linesman, general, and had been employed for nine years. On that day he had conducted the Pre-work Briefing at the [NAME] with [NAME] and [NAME] present. That was the first occasion that he had conducted a Pre-Work Briefing. During the Briefing, he identified all the hazards associated with the job and how to control each hazard. He then filled out a Pre-work Briefing form, being the holder of a certificate of competency. In completing the document [NAME] did not look at any other document. The leading hand, [NAME], had told him that they would be doing pole top overhaul that day. The immediate hazard that he considered was electrocution, because of working on high voltage lines. The work had been allocated by the foreman, [NAME] and that work was contained in the paperwork, namely, the commit. The commit specified what jobs had to be done. The commit was issued every month and set out the jobs to be performed in that period. The document came from the foreman and was taken from the computer. On the day of the accident, [NAME] had not sighted the copy of the commit but the leading hand, [NAME], had informed him that the job that day was pole top overhaul. 68 After completing the Pre-work [NAME] directed him to go to Epping. [NAME] and [NAME] travelled by work truck to Epping to lay earths. At Epping, [NAME] went to a specified pole, prepared and laid out earths and stood by until he received a call from the operations control that there was clearance. Operations spoke to [NAME] to tell him in relation to a particular authority, that the team could proceed to test the line to see if it was dead. At the particular pole [NAME] was working on, two lines had been isolated, the 33kV and a 2kV line. [NAME] tested the lines, found that they were dead and applied the earths. After completing the earthing, [NAME] and [NAME] proceeded to [NAME] to meet the cherry picker in the [NAME] car park. [NAME] did not arrange for the cherry picker and was unsure who made those arrangements. The cherry picker was big and not the usual type used on line work. [NAME] had previously carried out pole top overhaul and on most of those occasions, had used a cherry picker. In [NAME]'s experience, work was usually performed with a small 23 metre cherry picker: he thought that the smaller cherry picker was preferable because of its reach and extension which were better than the larger cherry picker. It was also preferable because it was easier to access sites and there had been difficulties with the longer cherry picker. The defendant did not own the cherry pickers but hired them for each job. This was the task of the manager, [NAME]. 69 [NAME] had been directed to attend Pole 51 by [NAME] and to earth it. He had been told by [NAME] that the lines at Pole 51 had been isolated and he tested them for dead and laid the earths. He used the cherry picker for that task. He saw the advantage in using a cherry picker over the use of a ladder for that task as being able to get closer to the pole. It was easier with a bucket to get right to the point of the work. [NAME] regarded the cherry picker as a safer procedure because he was surrounded in the bucket and was hooked on the inside of the bucket. After completing the tasks at Pole 51, he returned to [NAME] to meet [NAME] to see which pole would next be overhauled. After finishing the earthing at Pole 51, [NAME] returned to [NAME] when he signed the electrical Permit to Work. He then returned to Pole 51 to complete the pole top overhaul. [NAME] had directed him to return to [NAME] when he completed earthing Pole 51. When he returned to [NAME] and [NAME] were present. They were all present to complete the Permit. When completing the Permit, he sighted the Instruction, being the Working High Voltage Instruction. At that point, he did not observe anything in relation to any ladders or equipment. 70 On the day of the accident, [NAME] firstly read the Working High Voltage Instruction. He understood the purpose of that document was to explain the work which was to be carried out, what feeders were to be isolated and the type of job to be performed. He understood that on that day the feeders to be isolated were the 726 and the [NAME]. He could not see from the Instruction whether any other feeders were to be isolated. In relation to the Special Instructions on the Working High Voltage Instruction, [NAME] understood that entry to refer to the fact that there could be other feeds on the pole and that [NAME] must stay clear of such feeds: he was not to go near it because it was live. Having regard to the Special Instructions, [NAME]'s understanding was that no work was to be carried out in relation to [NAME] and that it was a "joint use" pole. Under the Special Instructions, there were references to a number of joint use poles and [NAME] understood that to be the top part of the pole but not the whole of the pole. The Special Instructions in relation to [NAME] meant that he was to keep away from any live feeders on the pole. Having regard to the Special Instructions, [NAME] understood he could access the top part of [NAME]. [NAME] said that he understood how this Special Instructions was to be read and that he was not guessing when giving his answers. [NAME] expected to be told by labelling plates on the pole what feeders were on the pole and whether it was a joint use pole. 71 Having read the Working High Voltage Instruction document, [NAME] then read the Electrical Permit to Work document. The Permit had a strip of paper attached to it containing special instructions which were the same instructions appearing in the Working High Voltage Instructions document. He did not think that there was any reference to feeders other than the 726 and the [NAME]. It was pointed out to [NAME] that in the Permit, in Section 6, there was now a reference to a different feeder, namely, [NAME]. [NAME] said that was the same feeder but a different section. The electrically safe work area for the task on the day was between Poles 18 and 134. [NAME] understood that it was safe to carry out work between those poles, including pole top overhauls. The electrically safe working area referred to three feeders, 726, [NAME] and [NAME]. If there were any other feeders present, [NAME] expected to be notified in the documents of their presence because they could be a potential hazard. 72 Having concluded the pole top overhaul at Pole 51, [NAME] and the cherry picker driver returned to [NAME] as directed by [NAME]. He was stopped at the access gates before reaching the pole by [NAME] and told that [NAME] had fallen from the pole. The access gates were partially obstructed by parked vehicles. [NAME] then walked to the base of [NAME] and saw [NAME] lying there. There was a ladder lying on the ground. 73 The cherry picker in which [NAME] was working on the day of the accident could not have passed through the access gates near [NAME] because it was a bigger cherry picker than the one normally used and could not have passed through the gates regardless of any obstruction. [NAME] was the foreman of the gang who was more senior than [NAME] but under [NAME]. The foreman was involved with the "commit" document but [NAME] did not know who generated that document which had appeared at the depot. The document specified the work to be performed in that monthly period and when that work was to be performed. It was [NAME]'s understanding that [NAME] gave the [NAME] the work to be carried out on a day-by-day basis and organised the gear that was required for that work. [NAME]'s function was to hand out work to the foreman who would hand it down to the leading [NAME]. The foreman was responsible for liaising with the Electrical Controller. The foreman usually attended the site rather than staying at the depot: on the day of this incident, [NAME] was unsure whether [NAME] was at the site. 74 The Working High Voltage Instruction and the Electrical Permit were documents in which [NAME] were retrained every 12 months. There was retraining in relation to electrical safety manuals and permits were completed as an exercise during training. 75 On the day of the accident, [NAME] was not part of any discussion or decision as to whether work would be performed on [NAME]. He was not asked whether work should be carried out on that pole and, before [NAME]'s accident, he had no knowledge that work was to be carried out on that pole. His practice was to work on poles identified to him by [NAME] and he confined himself to such poles. 76 [NAME] understood that the Working High Voltage Instructions carrying the identification T401/4 was a number given to that particular document and identified that particular instruction. The document identified equipment to be isolated for the purposes of the work and identified a number of feeders being 726, [NAME] and [NAME]. [NAME]'s understanding was that any feeders not isolated were live. The Instruction stated that the air break switch on [NAME] was to be opened and locked open, secured with a special lock and a danger tag. On the day of the accident, [NAME] noticed that the lever had been opened, locked and danger tagged. [NAME] understood the Electrical Permit to Work defined the electrically safe working area within which work was allowed to be performed. Anything outside the area and the feeders identified in the Permit were areas in which he was not permitted to work. He was not to work on electrical equipment which was not identified because that equipment had not been isolated. If it was not isolated, it was alive: that was his understanding. He understood that equipment not identified as being isolated was to be treated as if alive. He agreed that this was a fundamental part of his training. 77 A joint use pole was a different pole from an ordinary pole because it carried feeders other than those that were isolated. On the day of the accident in the area in which work was to be performed, most of the poles in that area carried only two feeders and all the poles carried feeder 726, an aerial feeder. Some of the poles also carried feeder [NAME]. Other poles did not carry feeder [NAME] but carried [NAME]. [NAME] was an aerial feeder line carried at the top of the pole. There were also poles where feeders were carried underground which emerged from the ground and ran up the pole. Within the area, the poles either had "726", and "[NAME]" or "726" and "[NAME]". There were other poles which carried another feeder called "joint use poles" which carried a feeder other than [NAME] or [NAME]. An example was a pole carrying [NAME] feeders. The Working High Voltage Instruction informed [NAME] where 726, [NAME] and [NAME] were isolated. [NAME] understood from the Working High Voltage Instruction and the Permit that, on the day, [NAME] carried another feeder that was not isolated and that the pole was a joint use feeder. The instructions were that he was not to work on that pole. Under the Special Instructions, all poles identified were poles that were not to be worked upon. 78 [NAME], at the date of the accident, was employed by the defendant as an apprentice linesman and had been so employed for about two years. He was working in a team with [NAME] and [NAME], together with [NAME] the foreman. The acting manager was [NAME]. On the day of the accident, he was working on pole top overhaul maintenance. He had attended the Pre-work Briefing conducted by [NAME] and had signed an acknowledgement of the matters raised in that Briefing. 79 After the Briefing, he drove with [NAME] to the location of the work to apply earths. He applied those earths to the 33Kv feeder after testing the feeder. Before he undertook the testing he was informed that the power had been isolated. After completing the earthing, he proceeded to [NAME] at [NAME] to commence the pole top overhaul work: [NAME] was to be the meeting place. He drove to [NAME] with [NAME] and, on arrival, found [NAME] and [NAME] present. He was unaware of any pole top overhaul work having been commenced prior to his arrival. 80 When [NAME] arrived he saw a ladder against [NAME] and noticed that [NAME] was putting on his harness. The ladder was in a vertical position against the pole but [NAME] could not recall if it was fixed at the base or the head. He could not recall if the ladder was being footed when he arrived. When he left the vehicle, [NAME] was proposing to put on his harness to commence work on the pole overhaul at [NAME]. As [NAME] told him that [NAME] would be climbing the pole while he was putting on his harness, [NAME] took off his harness and put it back on the truck. As he was doing so, he heard [NAME] scream and hit the ground. He was 20 or 30 meters from the pole when he heard the scream and was unsure whether he had seen [NAME] on the ladder or on the pole prior to that. When he heard the scream, [NAME] was close to the pole, "observing" [NAME]. He was unsure if anyone was footing the ladder or where [NAME] was standing when [NAME] fell. 81 As at the date of the accident, [NAME] understood that, in relation to performing pole top maintenance, documents dealing with the pre-work briefing, the Working High Voltage Instruction and the Permit to Work were documents to be used and referred to. The Instruction told him where he was able to work and on what date. The Permit to Work detailed specifically which poles were to be worked upon and those which were not to be worked upon. By reference to a photograph of [NAME] said that he was unaware of another feeder on that pole on the day of the incident that ran down the pole - he became aware of it after the accident and had been told of its presence by senior staff at the depot. On the day of the incident, [NAME] was aware of two feeders that were fixed to [NAME], being the 33Kv and the 2Kv underneath it, known as [NAME]. He believed that both feeders were isolated at the time of the incident. [NAME] expected that all feeders on [NAME] would have been identified so that he would know exactly what was on the pole. 82 On 29 June 2004, the Permit indicated that a cherry picker was to be used but, from memory, [NAME] understood that the vehicle could not fit through the available space to get to [NAME] - the space was too confined for it to gain access. By reference to the Working High Voltage Instruction, [NAME] understood on the day that the Special Instructions meant that the [NAME] should not work on [NAME]. 83 [NAME], (known as "[NAME]") on 29 June 2004 was employed by the defendant at [NAME] as an acting team manager. His function was to organise the staff monthly roster and any outages required and to attend meetings of all team leaders for various areas to discuss isolation. At that time, he worked at the [NAME]. There were two team leaders below him, [NAME] and [NAME], and two group leaders, one of whom was [NAME]. He was also responsible for eight [NAME] and a trainee linesman. On the day of the incident, [NAME] was supervising [NAME] and [NAME] as well as another person. 84 On 29 June 2004, the team leaders were to work on feeders 726, [NAME] and [NAME] carrying out pole top overhaul. The schedule of work was supplied via computer with a planned schedule organised by the engineers each week. Every week, he knew what work was to be done for the year January to December. Instructions were relayed by computer as to what work was to be carried out and when it was to be completed. The engineers planning the schedule were located at Tuggerah on the Central Coast. The plan was known as Planned Schedule Work. That schedule proceeded to Control in Sydney by way of the computer and when it did [NAME] knew what work was to be carried out on the schedule and in what month it was to be carried out including the date it was to be started and the date on which it was to be completed. Team leaders and team managers had access to this schedule. Others might have access to the system if they had been trained. On the day of the accident, [NAME]'s group were to carry out pole top overhaul on lines 726, [NAME] and [NAME]. 85 Information on the computer regarding work to be performed could be printed out. Team leaders printed out their work for a certain day when work was to be performed. There were daily meetings with the team leaders regarding what they were to do. When these meetings were held, they had a copy of the schedule from the computer. 86 In relation to power outages, [NAME] was responsible for costing the isolation on certain days of the week on transmission lines. In relation to overhead lines, he had no power - that function was performed by the support manager. On 29 June 2004, the outage on the overhead work was done by a manager, [NAME], located in [NAME]. [NAME] would receive the request, enter the date and time required and send it to the Electrical Systems Office in Sydney where it was sorted out. The Electrical System Office would send back the Working [NAME] would send it on to the authorising officer to sign because he was not authorised to sign that document. The authorising officer was Mr [NAME]. Once authorised, it was returned to [NAME]. The electrical isolation request form was a form available from the computer. [NAME] entered the necessary information on that form and some of that information was already in the computer system. Sometimes that information was added to for a particular job. [NAME] knew that on the day of the incident that the 726 feeder needed to be isolated because he had been informed of that by the team leader [NAME]. The planning for this type of work was done in advance at a meeting of team managers. The Special Instructions were already within the computer system. The reference to [NAME] in the Special Instructions meant that there was an [NAME] high voltage feeder within that pole. That was a joint use pole. On the day of the accident, [NAME] was aware that there was a 726 feeder and [NAME] feeder but was not aware of any additional feeder on [NAME]. There was no tag to say that there was another feeder on the pole and only two feeders were identified by a pole plate. [NAME] would have expected to have been notified of the presence of another feeder if there was one on that pole. 87 On the day of the accident, [NAME] said that he was only responsible for the outage for the work team, which was to ensure that the electrical system operator contacted him to advise that the isolation had been carried out and that it was all right to test and install the earths. [NAME] was unable to be present at the worksite that day and the group leader was intending to act in his place. The supervisory role assumed by [NAME] in the absence of [NAME] on the day was to inform [NAME] to carry out the earthing when he was told by Operations that the lines were isolated. It was [NAME] who directed [NAME] and his team as to what poles were to be worked on that day. [NAME] said that on that day he did not know what poles were to be the subject of maintenance but he did not think that the team was going to start at [NAME]. 88 As the holder of the High Voltage Instruction, [NAME] said that, on the morning of the incident, he was required to make sure that the earthing was carried and that the switching was carried out. He carried out earthing at a particular pole with [NAME] after having been informed by the electrical systems operator to go ahead and test the line and apply the safety earths on Pole 48 and Pole 51. After receiving the call that the line was isolated, it was tested and the safety was applied on two poles, 48 and 51. [NAME] relayed the message to [NAME] that he could go ahead to test and supply the safety at those poles. After passing that information to [NAME], he called back and advised that he tested the line and that message would be relayed to the electrical systems operators by [NAME]. 89 After the earth had been applied, [NAME] and [NAME] made their way to [NAME]. [NAME] had participated in the Pre-work Briefing he was not required to acknowledge the electrical Permit because he was not responsible for that permit. [NAME] was only going to take part in the isolation and the earthing. A Permit was not required to merely apply the earths. Once the earths were completed then Permits were issued which enabled the [NAME] to carry out their work on the transmission lines. 90 [NAME] drove [NAME] to [NAME], and spoke to [NAME] near the truck about four meters from [NAME]. He did not recall where the ladders were placed on the pole and did not see [NAME]. The first time he saw [NAME] was when he was lying on the ground. [NAME] said he was in his car about to drive away when the accident happened. He thought that the work on [NAME] that day was going to be carried out using a cherry picker but he believed that the machine supplied was too big to get through the gates. 91 In cross-examination, [NAME] said that he did not take part in any decision as to whether the cherry picker would or could be brought alongside [NAME], nor did he make any assessment as to whether it could be brought through the access gates to [NAME]. 92 [NAME] was the electrical control room manager employed by the State Rail Authority on the day of the accident. In that position, he was the manager of the electrical systems and the issuing of safety documentation. He was responsible for issuing the Working High Voltage Instruction and 1500 volt Instructions under which trains operated. He had held the position of control room manager for about 25 years. 93 The issuing of the Working High Voltage Instruction commenced with a request from the region in the form of a Works Order detailing the feeders involved together with the Special Instructions and the area in which the Permit was to be issued. That information came in one document and was called a Works Order. When that document was received, the control room worked off the electrical diagrams that named the feeders and all the switching requirements together with notes and special notes for working in joint use for crossings. Those diagrams were called reticulation diagrams. All field staff had copies of reticulation diagrams in their offices and also their vehicles. A reticulation diagram identified what feeders connected to any pole including [NAME] at [NAME]. [NAME] was able to identify the Works Order for the period of 29 June to 1 July 2004 signed by [NAME]. It was also known as an isolation request. That document would have been received either by facsimile or email and was directed to a particular person who, in the case of this work, was [NAME]. He was assigned the task of completing the Working High Voltage Instructions, creating three copies of it. One copy was retained in [NAME]'s office for reference purposes, the second copy was forwarded to the electrical systems operators (being his staff in the control room) and the third copy was given to the regional district. In the field, the copy was signed by the "mains" person who checked the Instruction and signed the copy - this person was [NAME]. When he received the Instruction, his obligation was to check it against all the information given to him by his staff who had looked at the job. He was to ensure that the Instruction covered all the work which was to be carried out. 94 Looking at the Instruction issued, [NAME] stated that the line [NAME] was not to be isolated on that day, nor was it requested that it be isolated in the request document. If there was no request to isolate it on 29 June 2004, [NAME] would have continued to have been energised. Standard operating procedure was to isolate all feeders in relation to pole top maintenance where Permits were to be issued to make it safe for staff to carry out their duties. 95 In cross-examination, [NAME] accepted that the electrical systems operation centre was operated by the State Rail Authority on the day of the incident and that it was an entirely distinct authority from [NAME]. The operation centre was staffed by SRA employees and those employees had the capacity to isolate aspects of the electrical infrastructure. In order for [NAME] to carry out work on electrical infrastructure or near that infrastructure it was necessary for [NAME] to request SRA to isolate the relevant electrical components. That was done by way of a request. The Special Instructions were drawn up by the districts.

96 The document known as "Working at High Voltage Instruction" was not a document that [NAME] constructed but he had seen it over his years of employment - it followed a standard format. That document stated the equipment to be isolated and, in this case, mentioned feeders 726, [NAME] and [NAME]. This informed him of the feeders required to be isolated. It referred precisely to what was to be isolated and nothing else. The Special Instructions identified what was in joint use and what sort of feeders crossed over feeders that were mentioned in the initial part of the Instruction. Its purpose was to make staff aware that they were to stay clear of those poles or aerials. On this particular Instruction, employees had to work clear of [NAME] and the entry conveyed that there was a live conductor on [NAME]. The Special Instruction conveyed to [NAME] that no work was to be carried out on that pole, either at the base or the top. The base was not a specified part of the pole but the rest of the pole should not be gone near. To check, open and lock open the special lock and danger tag the air break on [NAME] was work that would be carried out at the foot of the pole. The Permit that was issued did not include [NAME] could not be issued other than for the area identified on the form. 97 [NAME] was employed by [NAME] as an electrical engineer having commenced with that Authority in February 2006. On 23 June 2006, he attended the site of the accident and took a number of photographs. He also completed three diagrams. [NAME] prepared a statement in which he expressed certain opinions. 98 [NAME]'s statement set out his qualifications and employment history noting that he had extensive experience in the design, construction, operation and management of electrical supply, distribution and transmission. He identified the conductors present on [NAME], stating that the uppermost conductors were feeders 726, the lower conductor was feeder [NAME] and that the underground cable was feeder [NAME]. He was unable to ascertain the supply source, the root of or the ultimate destination of the high voltage underground cable [NAME]. 99 [NAME] had studied copies of the electrical systems operations centre, the Working High Voltage Instruction, the electrical Permit to Work No T401/04 and the Pre-work Briefing dated 29 June 2004. Having considered those documents, he established that the work to be carried out on the day was tree-lopping and pole top overhauls on the 726 feeder and the [NAME] and [NAME] using cherry pickers and ladders. In order to clarify the electrical, physical and geographical details, he drew three diagrams using information contained in the documents he had studied and from information received during his visit to the site. 100 To enable the specified work to be safely performed, [NAME] stated that the following actions were carried out: (a) 33kV feeder 726 isolated at [NAME] and [NAME] by opening the 33kV line air break switch and attaching a danger tag at each substation; (b) 33kV feeder 726 was proven dead at [NAME] and [NAME] and earths applied to feeder 726 at each substation; (c) 2kV section air break switch on [NAME] was checked to be in the open position, operating handle locked with a special lock and a danger tag attached; (d) 2kV feeder [NAME] was isolated at [NAME] and a danger tag attached to the isolation point; (e) 2kV feeder [NAME] was isolated at [NAME] and a danger tag attached to the [NAME] transformer, 11kV oil circuit breaker at [NAME]; (f) [NAME] 2kV was proven dead at [NAME] and earths applied; (g) [NAME] 11kV transformer oil circuit breaker was proven dead at [NAME] and earths applied; (h) 2kV transmission line at Poles 47 and 51 was proven dead and earths applied at each pole; (i) The "electrical Permit to Work T401/04" advised that it was safe to carry out pole top overhaul work between Poles 18 and 134 for the 33kV feeder 726 and on 2kV feeders [NAME] and [NAME]. 101 [NAME] then expressed the following opinions: · I have encountered difficulty in ascertaining the system used to identify the 2kV feeders. My assumption is that 2kV feeder [NAME] commenced at [NAME] and finished at the set of normally opened 2kV links on Pole 50 and that 2kV feeder [NAME] commenced at [NAME] and finished at the set of normally opened 2kV links on Pole 50. Pole 48 which is the next pole south of [NAME], that is, the Epping side of [NAME], carried a label "[NAME]". Poles 45, 46 and 47 each carried a label "[NAME]"; · Based on my expertise and review of the documents referred to above, in my opinion it would have been safe to carry out pole top work associated with the overhead feeders 726, [NAME] and [NAME] as all sources of feed onto these feeders had been opened and danger tagged. In addition, the 33kV feeder 726 had been earthed at each end and 2kV feeders [NAME] and [NAME] had been earthed at each end and also at Poles 47 and 51. The 2kV air break switch on 2kV feeder [NAME] had been checked open and locked and danger tagged; · Because of the presence of the live underground cable [NAME] on [NAME], it is not possible to safely climb [NAME] from ground level. The connections from the cable termination to the lower portion of the open 2kV air break switch were alive. It would have been safe to carry out work on the top portion of [NAME] while working from the bucket of a cherry picker, if this working position was well clear of the live 2kV equipment below the open air break switch; · I note that in the document "To Electrical Systems Operations Centre (SRA)" and "Working High Voltage Instruction" that mention was made for work to be carried out clear of "[NAME] HV [NAME]"; · It is my opinion that 2kV feeder [NAME] is an alternate supply to the 2kV network and at the point of connection on [NAME] the controlling air break switch is normally in the open position and the cable normally alive. Therefore if work was required to be carried out on or near the 2kV equipment between the underground cable termination and the 2kV air break switch then 2kV feeder [NAME] would have to be isolated at its source, danger tagged and earths applied to the busbars adjacent to the underground termination on [NAME]; · In studying the documents mentioned above it is my opinion that work was to be carried out on the 33kV and 2kV overhead main and associated fittings whilst working from a cherry picker; · I note that in studying the document "Electrical Permit to Work T401/04" no mention is made of the presence of live 2kV equipment on [NAME] from the underground cable [NAME] terminations to the bottom of the open 2kV air break switch. In my experience, it is normal safe operating practice when working near or on high voltage equipment, to treat it as alive until it is proven dead and earths applied to equipment to be worked on. 102 By reference to photographs, [NAME] was able to divide into sections [NAME]. He was able to state that, from the ground up to the first section, that cable was insulated but he was unable to say if the next section was insulated. The third section at the top of the cabling was not isolated. He would class everything from the beginning of the second section as being live with the assumption that it had not been isolated. In his view, a mere touch by any part of the body would have been sufficient to experience an electric shock from the exposed part of the cable. 103 In cross-examination, [NAME] agreed that where the cable on [NAME] was covered, it was insulated and posed no risk of electrocution. He was unsure if the second section of covering was insulation and therefore took the view that it was to be treated as live although it was covered. He was certain that the top section of feeder [NAME] was no insulated which was an opinion derived from his own observations. 104 The defendant called one witness. [NAME] was the acting manager Implementation and Support with [NAME] and had been acting in that position for six months. His substantive position was as support officer for the Metro North Region, a position he had held for approximately nine years. The defendant maintained a computer system dealing with various work activities including maintenance programmes. There were earlier versions of this system and that information had been transferred to the latest system. 105 The system, as it operated in June 2004, enabled [NAME] to determine from information held in that system what work was to be performed on any particular rail pole. Under the present system in place, it was possible to search historical records and search for work orders from 2004. Using this system, it had been possible to search for the Work Order in relation to [NAME] with regard to the work to be carried out on the day of the accident. The entry for [NAME] described the work as pole top transmission line examination and the equipment at [NAME] referred to feeder number 726. The entry referred to only one feeder but, where there was more than one feeder on a pole, the practice was to identify the feeder at the top of the pole. Reference to only one number did not mean there were not more feeders on that pole. There was an entry that indicated the work to be done at a certain frequency under the technical maintenance plan. The computer system itself did not keep work orders but there were systems where hard copies were kept, for example, at the site. The entry also identified a work group operating from [NAME] and stated that the work had been completed. The document indicated that the job was to be done on 30 June 2004 but there was flexibility in the system allowing a span of time in which the work could be completed. Although this work was to be completed on 30 June 2004, there was flexibility to allow it to be finished by 22 December 2005. The entry also indicated that on 15 June 2006, the job was completed or performed. 106 [NAME] raised a query within the current database shortly before giving his evidence and had raised a nine [NAME] spreadsheet document. Included within that document was information concerning the Work Order relating to [NAME] and the work to be performed on the day of the accident. That document identified the Work Order description as a transmission line examination (pole top): the description of the equipment stated "[NAME] belonging to [NAME]" and in a further description stated, "Cable term. On [NAME] feeder". The record for each Work Order ran along a line on the first [NAME] and the corresponding line on the following eight pages, so that the whole nine pages had to be consulted to obtain the information in relation to the specified Work Order. 107 As at the date of the accident in 2004, the computer system, when asked to prepare a list of Work Orders due in the "preceding month", examined the maintenance schedule activity due in that preceding month. Based on instructions given, the system then produced Work Orders relating to those activities in the preceding month. There was a standard process that users followed to generate Work Orders. Based on the standard set of instructions when printing out a Work Order in the standard form, the two descriptions of the equipment namely "[NAME] belonging to [NAME]" and "Cable term. On [NAME] feeder" would appear on the standard Work Order form. In June 2004, if the system had operated as it was designed to do the whole entry should have appeared on the order form. 108 [NAME] was aware of the term "work commit" and understood it to refer to a package of work for a set period of time usually in the future. It was a package of Work Orders containing jobs due in the "preceding" period of time plus any backlog Work Orders that had not been completed within a previously committed period. [NAME] was shown the commit document produced by [NAME] and used by him on the day of accident. He recognised that document as a screen capture of a computer application that was in use in June 2004. The document had been cut short and should have contained the description of the work and read "Pole top examination". A double click on the entry in that document on [NAME] would have resulted in the system bringing up the Work Order details which would give the information largely contained in the spreadsheet. As a result of double clicking the reference to "726", the computer would display the Work Order number, the task number, the "726" and "49", and would show the equipment description as set out in the spreadsheet document. 109 In cross-examination, [NAME] said the spreadsheet document had been produced under the current computer system although in June 2004 another system was in operation. He had not conducted any query relating to [NAME] under the previous system. Any person trained in the previous system and who was in a role that was able to carry out maintenance could access that system. and that was generally supervisors. In 2004, approximately 1200 people were authorised to access the system as it then existed. He was not able to say, by reference to the spreadsheet document, how many people had accessed the computer system in relation to [NAME] since June 2004. The system left no imprint as to who had access at any particular time. [NAME] was unable to say what information had been logged into the system at any particular period of time. He was unable to identify who had entered a date indicating the work had been "closed" in June 2006. He made an assumption that the entry relating to the description of the equipment was entered in June 2004. Information for a job could be added to the system after an event and from time-to-time. When that occurred, [NAME] did not know when it had been added or by whom. He could not say with 100 per cent certainty that the equipment description in the spreadsheet taken from the current system had been in the system used at the date of the accident in June 2004. 110 The "Search for Work Orders" recently raised by [NAME] had, in the system regarding the Work Order on the day of the accident, referred to [NAME] and transmission line 726, but did not contain reference to cable termination on the [NAME] feeder. There was no reference to cable termination on the [NAME] feeder on the "commit" document held by [NAME] on the day of the accident. The commit document was a summary list of the activities performed. It did not contain full details of the activity - several pages would have been needed to do so. It was Mr [NAME]'s view that the information contained in the work commit document was inadequate to enable a work team to properly carry out their work. It did not contain enough information. He hoped that people in the field carrying out pole top examinations would be armed with more detail than was contained in the work commit document. The computer system was capable of giving more detail than the commit document. The commit document was a printout of information on the computer screen and showed a "Print" icon: if the print icon was activated in relation to [NAME], it generally allowed the user to print a more detailed version of the Work Order. 111 [NAME] was unaware what action was taken in each region for the team leaders to confer and plan the work to be undertaken. In June 2004, managers and supervisors of work teams were able to access the then existing system containing the Work Order information. That meant that perhaps three or four people had access to the computer system. Those people would be team managers and team leaders. Thus, there were three or four people in management at the [NAME] who could have access to the system to check what work was required to be undertaken by the work teams and by when that work was to be carried out. 112 There were variations as to how the Work Orders were retained in the districts: some required a filed and signed copy to be kept, while others completed the Work Order through the computer system and electronically signed the work off as being completed. Without a hard copy of a Work Order, there was no way of ensuring the accuracy of what was now kept in the computer system which produced the spreadsheet document. 113 The Work Order for [NAME] on the day of the accident was not able to be found. [NAME] was 80 to 90 per cent confident that the information now held in the system and printed out on the spreadsheet referring to cable [NAME] appeared on the Work Order. In the spreadsheet document produced under the present computer system, the Work Order description "T/line examination (pole top)" covered climbing the pole or using a cherry picker or elevated work platform to get to the top of the pole, and carry out an inspection to check if the fittings were tight, if the insulators were cracked, making sure the timber around the head of the pole had not degraded - generally, it was the activity of an examination and more an inspection - putting out a hand and tapping the pole to make sure there was no rotting or anything else about the pole that had degraded its condition. [NAME] said he was fairly familiar with the task because he knew what was written in the Technical Maintenance Plan which were engineering standards and he had worked as an engineer. DELIBERATION 114 The particulars of the charge under s 8(1) of the Act have been set out earlier in this judgment. The essence of the prosecution case was that, although the defendant had established a system of work addressing safety ultimately, it was no more than a paper system and lacked the necessary provisions under which that paper system was enforced and applied at the workplace. The documents used in the work of pole top overhauling were confusing and misleading: none of the work team involved on the day of the accident, including [NAME], was aware of the presence of the high voltage cable [NAME]. The work proceeded on the basis that [NAME] was to be overhauled despite the Special Instructions appearing in the Working High Voltage Instruction and the Work Permit. [NAME] regarded himself as being required to undertake maintenance work on [NAME] because of the content of the work commit document. None of these documents mentioned the presence of [NAME]. All members of the team, including [NAME], expected to be informed of its presence including an identification plate on [NAME]. Because this high voltage cable was not identified and known when [NAME] applied for isolation of the transmission lines to allow the overhaul work to proceed, no mention was made of isolating [NAME]. In his role as supervising the work, [NAME] was also unaware of the presence of [NAME]. 115 The prosector submitted that, although all members of the crew acknowledged that the Special Instructions required them to work clear of [NAME] and [NAME] on the day of the incident were prepared to carry out overhaul work on [NAME] contrary to that instruction. [NAME] as acting team manager and the holder of the Instruction, failed to ensure or, at least, comply with the Special Instructions contained in the Working High Voltage Instruction and the electrical Permit. The failure in the defendant's system of work included: inadequate training and instruction in relation to the interpretation of Working High Voltage Instructions and the preparation and understanding of electrical Permits to Work; inadequate supervision by [NAME] and [NAME] who were both in a position of authority to police and ensure strict adherence to the terms of the Special Instructions; and, the fact that the system created uncertainty such that employees were required to carry out overhaul work on [NAME] pursuant to the work commit and yet, at the same time, were told to carry out work clear of that Pole. It was the responsibility of the defendant through its management who created the work commit or Work Order to ensure that, if work was to be carried out at [NAME], all feeders on [NAME] had been properly identified both on paper and in the field in order that feeders could be isolated before pole top overhaul work commenced. The system of work was to be coherent and systematic so all employees performing work at any given site could properly understand what was required of them: the paper system alone was clearly insufficient to comply with the obligations imposed by the Occupational Health and Safety Act 2000. [ADDRESS] was to have regard not merely to the system as it existed in theory, but as it was implemented in practice. 116 It was submitted that it was not open to the defendant to simply establish safety rules and to effectively delegate responsibility for implementation of those rules to its workforce. The defendant's duty was to ensure the safety of its employees by not only establishing a safe system of work but enforcing that system in the workplace. Nor was the defendant's obligation diminished because of error or negligence of an employee, although it was accepted those matters might reflect on the degree of the employer's culpability. 117 There was a failure by the defendant to ensure adequate information and instruction was provided in relation to the documents used in the isolation procedures. [NAME] had requested the isolation of [NAME], but not in relation to cable [NAME]. No information was provided to the work team, including [NAME], informing them that there was an additional feeder at [NAME] that needed to be isolated prior to work commencing on the pole: had they been informed of the presence of [NAME] they could have taken steps to ensure that it was isolated before they commenced their work. There was nothing in the instructions or documents given to the work team or in the Pre-work Briefing relating to the isolation or presence of [NAME]. There was a failure by both [NAME] and [NAME] to provide adequate supervision of the work team in that neither of them were able to identify the presence of [NAME] on [NAME]. The defendant, through these two officers, failed to provide adequate supervision of its employees. [NAME] directed and allowed [NAME] to ascend [NAME] to carry out maintenance contrary to the Special Instructions while there was present an energised feeder [NAME], and [NAME] had acquiesced in those actions. Although the electrical Permit required that the work be carried out using a cherry picker, that method of performing the work was not undertaken because of a perceived difficulty in obtaining access for the cherry picker at [NAME]. The work, however, could have been performed on any of the other designated days or, indeed, in a period of up to 18 months as specified in the Work Order. If an elevated work platform had been used it was unlikely that [NAME] would have come into contact with the live [NAME] feeder because he would have been working in a bucket well clear of that feeder which terminated below the open air break switch. The work to be carried out by [NAME] related to aerial feeders sitting some distance above the air break switch. There was a failure by the defendant to ensure its employees properly used a harness or related fall arrest mechanisms. [NAME] fell because he was not adequately secured by his fall arrest equipment. No-one had observed [NAME] climbing the pole and no one was footing the portable extension ladder at the Pole. [NAME] and [NAME] failed to ensure that [NAME] used his fall arrest equipment properly and had they been watching, they could have ensured that he used his fall arrest equipment in a safe and proper manner and they could have ensured that he used the two fixed ladders to obtain access to the top of the pole. The Pre-work Briefing should have identified all the feeders on or connected to [NAME] and ensured that those feeders were isolated prior to commencing work. There was a failure to clearly mark [NAME] to identify the existence of the additional feeder and to ensure that employees at the site were aware of the existence of that feeder. 118 For the defendant, it was submitted that the evidence established that the work team was experienced, regularly trained, was qualified to safely perform the work it was asked to do, and, was specifically instructed in writing that it was to undertake all work on the day clear of [NAME]. The evidence established that these employees were specifically instructed in writing that [NAME] was a joint use pole which they knew meant that it had a feeder that was neither 726, [NAME] nor [NAME] and which was a high voltage feeder operated by [NAME] that had not been isolated and was therefore alive. Further, the evidence established that [NAME]'s training, experience and practice was that, when ascending a pole using a portable ladder, he firstly securely attached himself to the pole using the pole strap or lanyard attached to his fall arrest harness before leaving the ladder. [NAME], however, having ascended [NAME] contrary to the Special Instructions did not securely attach himself to the Pole as he was required and trained to do. Overall, there was a failure of supervision by [NAME] and [NAME] in that they did not follow the Instruction laid down by the defendant: [redacted] 119 It was submitted that the information contained in the defendant's computer data base included the Work Order or work commit. However, that document did not require any work to be done on a particular day but allowed a period, often of several months, within which the work could be completed. The evidence showed that there were up to 18 months in which to complete the work on [NAME] in this document. [NAME] knew and understood that the work that was or could be done on any particular day was not defined by the Work Order or work commit but was defined and limited by the critical working documents issued by the defendant. Those critical working documents were said to be the request sent to the operations centre (operated by the State Rail Authority) for the isolation of electrical equipment where work was to be performed during a particular period, the Working High Voltage Instruction and the electrical Permit to Work together with the Special Instructions. The Working High Voltage Instruction identifying the electrical equipment to be isolated, contained the Special Instructions identifying, amongst other things, what was in joint use so that staff were aware that they were to stay away from such poles: it also contained switching and safety earthing operations, as well as identifying the area where the Permit to Work would be issued. The Special Instructions specifically directed that all work was to be carried out clear of [NAME]. The completed Working High Voltage Instruction was usually provided to the foreman of a relevant work group. The Permit was then completed by an authorised Permit holder. [NAME] completed that document and was authorised to do so. He wrote on that document under the heading, "Details of electrically safe work area" that it was safe to carry out work between Poles 18 - 134 on 726 feeder, [NAME] feeder and [NAME] feeder. The Special Instructions from the Working High Voltage Instruction was stapled to the front of the Permit and each employee in the work group signed the Permit. The notes on the back of the Permit required the Permit holder to ensure that the work described on the back of the Permit fully described the work to be carried out, that no work was to be carried out on or near the isolated equipment other than that specified on the Permit, that persons carrying out the work understood which electrical equipment was covered by the Permit, and, that it was safe to work on or near and that all other exposed equipment was to be treated as alive. 120 [NAME] was familiar with these documents and understood that the Special Instructions dealt with the actions that needed to be carried out. He understood that the Special Instruction relating to [NAME] meant that it was a joint pole, that somebody else was using that pole as well as the defendant. The Special Instruction in relation to [NAME] was to keep clear of it and not to work on it. [NAME] was also familiar with the documents and understood the Permit to fully describe the work to be carried out. [NAME] understood that all equipment not identified in the Instruction in the Permit as having been isolated were to be treated as alive. The Special Instruction stapled to the Permit applied to the work to be carried out that day and he understood the Permit stated that work between Poles 18 -134 (specifying the electrically safe work area) was subject to the pieces of equipment identified in the Special Instructions. A Special Instruction meant that the Permit did not include [NAME] and that [NAME] was not within the electrically safe work area and that they were to stay clear of the pole. [NAME] also understood from the material on the back of the Permit that the work team was to confine itself to the electrically safe work area and to treat all other electrical equipment as alive. 121 [NAME] understood the Special Instruction meant that there might be another feeder on the Pole which he was to stay clear of and not to go near that feeder because it was alive. He understood the reference to joint use [NAME] as being a reference to a [NAME] high voltage pole and that no work was to be carried out in relation to that pole. He understood that everything outside the area and the feeders identified in the electrical Permit was an area in which he was not permitted to work because that equipment had not been isolated. As it had not been isolated, it was alive and was to be treated as if it was alive. He agreed that was a fundamental part of his training. [NAME] understood the Special Instruction to mean that he should not work on [NAME]. [NAME]'s evidence was that the Special Instruction meant that no work could be carried out on [NAME]: not at the base, the top or anywhere. 122 Special Instructions were well and properly understood by the work team, although the only relevant minds were those of [NAME] and [NAME]. Despite their clear understanding of the need to stay away and not work on [NAME], they ignored those instructions and they failed to adhere to those instructions. This was the failure of those two employees and was not a failure of the defendant: [redacted] 123 In a further submission, the defendant asserted that the members of the work team had been instructed in writing that [NAME] was a "joint use pole" which they knew meant it carried a feeder that was neither 726, [NAME] nor [NAME], and that the feeder was a high voltage feeder operated by the defendant that had not been isolated and was therefore alive. [NAME]'s evidence was that the Special Instructions regarding joint use [NAME] conveyed that there was a live conductor on that pole which was a [NAME] high voltage line in joint use, in addition to the feeders earlier identified. [NAME] understood the Special Instruction entry in relation to another pole as being a reference to a joint use by [NAME]. He thought the reference to joint use in relation to [NAME] was "joint use again". [NAME] understood the joint use of [NAME] meant that there was a potential hazard because there might be a different feeder on that pole other than those which had been isolated. He agreed that a joint use pole was different to an ordinary pole because it had feeders other than those which had been isolated. He understood that most of the poles in the area in which they were working on the day of the accident carried only two feeders, being either 726 and [NAME] or 726 and [NAME]. He understood joint use poles were poles that carried a feeder other than [NAME] or [NAME]. He understood that the extra feeder had not been isolated and if it had not been isolated it was alive. The work group, having been specifically instructed that [NAME] was equipped with a high voltage feeder that was not feeder 726, [NAME] or [NAME] and had not been isolated, should have treated the pole as being live in accordance with their training and experience. 124 [NAME] had been trained and accepted that he had been trained to secure himself to the pole. He agreed that he knew and understood each of the steps in the process when using ladders and a fall arrest harness. The requirement to be attached to the pole or the structure at all times was part of his re-qualification and re-certification. [NAME]'s evidence was that [NAME] was an experienced linesman and knew how to wear and use his fall arrest harness and understood the importance of using it correctly. In the Pre-work Briefing on the morning of the incident, the work group was reminded of the use of their fall arrest harness. [NAME] had worn his harness correctly earlier in the day. He had the harness on when he climbed [NAME] and it was accepted that it was in good working condition. [NAME] could not remember climbing the pole or the height to which he had ascended when he fell, no one else observed him at that point. Nevertheless, he must have at least reached the transition point of feeder [NAME] and so must have reached a height where he transferred from the head of the portable ladder to the fixed ladder. [NAME] acknowledged that he did not secure himself to the ladder or the pole. [NAME] was present and in the vicinity but said nothing to [NAME] about securing himself and, by his own admission, [NAME] failed in his duty of supervision. It was not clear whether [NAME] lost his grip and fell because he felt an electric shock or whether he may have experienced an electric shock as he fell. Whatever occurred, there was no evidence that [NAME] received any injury as a result of the electric shock. The injuries he received were as a result of the fall from the ladder. However, if he had secured himself to the pole, as he had been trained and was required to do, there was no reason to doubt that the fall arrest harness would have operated as it was intended to operate and would have prevented the fall and the consequent injury, thereby ensuring [NAME]'s safety. 125 While the work team envisaged that a cherry picker would be used, on the evidence, it seemed that a decision was taken not to use it, not because it was too large but, because the access gate was blocked by parked cars. [NAME] conceded that he could have deferred the work until another day when the access gate was clear and that the only reason for working on [NAME] was that they had been to Poles 47 and 48, were "on a roll" and [NAME] looked much the same as the rest of the poles. In addition, [NAME] was athletic and prepared to climb the pole himself. 126 The prosecution's reliance on the fact that [NAME] was not identified failed to acknowledge that such identification was not required, given that the Special Instruction directed the work group not to work on [NAME]. In addition, the Special Instructions indicated that there was another line on the joint user pole and it was to be treated as alive. There was no evidence that, by placing a plaque on [NAME] identifying feeder [NAME], it would have made any difference had it been present on the day of the accident. There was no evidence that any of the employees made any inspection of the existing plaques for any purpose, including the identification of the feeders on [NAME]. There was a high order of probability that the Work Order relating to [NAME] included an express identification of feeder [NAME]. 127 Having regard to these matters, the defendant submitted that the prosecution had not established the case beyond reasonable doubt. The defendant had established and maintained a safe system of work that, if followed by [NAME] and the members of the work group, would have ensured that [NAME] did not climb [NAME] and, even if he did climb the Pole, any fall from it would have been safely arrested by the harness and there would have been no injury to him. Notwithstanding their training and their understanding of every important element of the system of work, [NAME] and [NAME] failed to follow the system in a way that was unanticipated and unforeseeable. In the alternative, the circumstances made out a defence under s 28(b) of the Act. 128 The statutory provisions dealing with the powers, functions, duties and responsibilities of [NAME], as set out in the particulars of the charge, were not contested and it appeared to be accepted that the defendant was subject to the provisions of the Rail Safety Act 2002 - that legislation had the purpose of promoting the safe construction, operation and maintenance of railways. Similarly, the defendant made no submission challenging the more formal elements of the alleged offence under s 8(1): the evidence, in any event, established that the defendant was an employer at the time of the alleged breach and that the relevant employees were at work. The matters raised by the defendant focused on whether an employee's health and safety was exposed to any relevant risk and whether there was a causal connection between the defendant's alleged breach and the risk to the employees' safety. 129 The evidence disclosed a somewhat complex process by which maintenance work was ultimately undertaken on transmission lines. There appeared to be a maintenance schedule compiled by engineers specifying the regularity of inspection and maintenance work and that schedule became the subject of discussion in regions or districts with team managers and foremen. In [NAME]'s team, he became aware of the maintenance work to be performed by receiving a copy of the work "commit" from the foreman. He appeared to keep the work proposed for the coming months in a bundle in order to organise the work team and the equipment that might be necessary. As the authorised mains officer, [NAME] formulated a request for the isolation of lines necessary to allow the maintenance task to be performed. An amount of the relevant information appeared to be kept within the computer database he used which acted as a type of precedent document that he amended as required. The Special Instructions for this overhead maintenance work, however, were not matters he gave independent consideration to, but were instructions drawn earlier by another authorised mains officer. [NAME] appeared to have no personal knowledge of the existence of the high voltage cable [NAME] on [NAME] at [NAME] and so made no request for that line to be isolated. The request was then considered by the operations centre operated by SRA and checked against extensive records of the transmission system. The exercise had regard to the nature of the work to be performed and the area in which the work was to be performed and, following that exercise, the Working High Voltage Instruction was produced and approved. That Instruction was used as the foundation for the completion of the electrical Permit to Work prepared by employees of the defendant. The evidence showed that both the Working High Voltage Instruction and the Permit contained the same special conditions. It was in this way that arrangements were made within the defendant for the performance of overhead line maintenance in the railway system. 130 Against that background, it is appropriate to consider how the work team performed the maintenance task having regard to the documents provided by the defendant. The defendant relied upon its system of training and instruction and the terms of the Pre-work Briefing, the Working High Voltage Instruction and the Permit, especially in relation to the Special Instructions. I accept the prosecutor's submission that attention has to focus on the actual system of work as undertaken under the defendant's overall scheme. Because of his supervisory role as the group leader of the work team, it is appropriate to start with an analysis of the evidence given by [NAME], the leading hand or, as he described himself, the leading district linesman. 131 There was a degree of contradiction in [NAME]'s evidence although it was clear that he regarded the work commit document as playing a significant role in directing him as to the work to be performed. As with other witnesses, his evidence in-chief was given in relation to non-leading questions that allowed him to frame his answers as he chose: in contrast, much of his evidence in cross-examination was a response, usually to acknowledge the correctness of a proposition forcefully put on behalf of the defendant. While the defendant was perfectly entitled to conduct the cross-examination that way, [NAME] remained an employee of the defendant and, as contradictions were exposed in connection with his evidence in-chief, the answers given to such firmly put propositions need to be treated with some caution. 132 The degree of confusion or lack of full understanding of the defendant's documented system is shown in parts of [NAME]'s evidence. He understood that pole top maintenance work was contained in the work commit document that nominated the poles to be overhauled. When he gave that evidence, it was apparent that the commit document was not known to the legal advisers of the defendant and [NAME] made clear that it was a document different to the Working High Voltage Instruction and the Permit. It was not until near the end of the evidence that [NAME] was able to conduct a search, and found the work commit document he used on the day of the accident that nominated work was to be performed on [NAME]. The term "work commit" was understood by others, such as [NAME] and [NAME]. [NAME] had directed the work team to meet at [NAME] because that pole was specified in the commit document. He stated a number of times during his evidence that the commit document contained details of the work programme and nominated each pole on which work was to be performed. He was aware that the work commit document was contained within the defendant's computer system and was given to him by the foreman [NAME]. [NAME] was not called to give evidence nor was there any evidence sought from [NAME] as to any discussion between the two of them as to the purpose of this document and the use to which it was to be put when it was handed over. Clearly, [NAME] placed great emphasis on the document and used it to set his work pattern: on this day, his work pattern included [NAME]. [NAME] agreed in cross-examination that work orders were raised from time to time for work on particular poles but he added that this was the way in which [NAME] had asked him to perform work on a particular pole by using the work order. 133 Despite this evidence, [NAME] readily agreed with the propositions put to him in cross-examination that he understood, on the day of the accident, that the Working High Voltage Instruction and the Permit defined the work and the electrically safe working area and that those documents made no reference to the commit document. He also understood the Special Instructions to mean that he was to work clear of [NAME]. This understanding is to be contrasted with his evidence in-chief, when he was directed to the words in the Special Instructions: 'All work to be carried out clear of [NAME] HV [NAME]" and asked to state what that Special Instruction meant to him: he said it was a joint use pole like ones that were in joint use between the defendant and [NAME]. When asked what importance he attached to those words, he said that he did not attach any importance to them. Despite that answer, in cross-examination [NAME] readily accepted that the Permit was a control against the hazard of electrocution and that he understood the obligations under the Permit for those who signed that document and that he was to treat all other electrical equipment as alive and outside the electrically safe working area which included treating [NAME] as alive. He also agreed that the Special Instructions in the Permit operated so that the electrically safe work area was between Poles 18 and 134 and within that area and that work within that area was, nevertheless, to be carried out clear of the equipment specified in the Special Instructions on the Permit. He accepted that the Special Instructions told him that the electrically safe area did not include [NAME] and that he and the work team were to stay clear of [NAME]. In re-examination, he accepted that, in the team, he was responsible for the work that day and that he had to identify the Special Instructions. He did not think he had disregarded the Special Instructions. This was, it appeared, because of the content of the commit document and his assumption that all the lines were isolated on [NAME]: nevertheless, the commit document only referred to line 726 and he would have understood from that entry that only line 726 was isolated. Those passages of [NAME]'s evidence demonstrate the confusion in his mind as the leading hand group leader as to the interaction of these important documents dealing with the maintenance work to be performed by the team. 134 The lack of clarity and the resultant confusion arising within the defendant's system of work was also evident in other areas. For instance, [NAME] understood the joint use poles were those shared by other users such as [NAME] which was the type of joint use referred to in the Special Instructions regarding [NAME]: the pole was not used by an outside authority. As already recorded, he placed no importance on the provisions of those instructions referring to joint use [NAME] and staying clear of it. [NAME] read the Working High Voltage Instruction as advising the presence of three feeders on [NAME] which he thought were 726, [NAME] and [NAME]. There was nothing to inform him that there was another feeder on that pole, such as [NAME]. The defendant points to the spreadsheet document and the assessment that there was a high level of probability that the reference to cable [NAME] in that document would have been found in the work order. However, it had to be conceded that was not necessarily so and that information could have been added to the spreadsheet after the work order had been issued and used by [NAME]. Further, there was no evidence that the foreman or the team accessed or used the spreadsheet document in the field. There was no evidence as to what the work team would make of the entry in the spreadsheet, namely: "Cable term. On [NAME] feeder". The spreadsheet document, like the work commit, seems to refer otherwise only to feeder 726 with the entry: "[NAME] belonging to [NAME]" and does not mention [NAME] and [NAME]. In the complexity of the defendant's system, this inconsistency in information available to the workforce carried with it potentially serious risk. 135 The [NAME] cable on [NAME] was merely a cable to [NAME] and he did not know precisely what kind of cable it was and was not told by the defendant what kind of cable it was for the purposes of working on the pole top overhaul during this period in late June/early July 2004. He had been told of the presence of [NAME] and [NAME], even though he thought they were both present at [NAME]. He apparently did not treat the Special Instructions as informing him that there was another high voltage line on [NAME]. [NAME] expected to be informed of the presence of another cable on [NAME] by the attachment of a plate to that effect (as was subsequently done by the defendant) and by information from his supervisor - apparently a reference to [NAME] - whom, he would have expected would know of the existence of such a cable on the pole. [NAME] did not know if [NAME] was dead or alive with the air break in the open position. On the day, he though that all the air break equipment was part of [NAME] and, when the air break was operated for [NAME], all that was above the air break was isolated. When he arrived at [NAME], the air break was open and tagged and he was not aware it was not isolated below the air switch but he thought that the whole pole was connected to [NAME] including the cable, and therefore had been isolated. He thought it was safe to work on [NAME] and that he had total control of the pole because it was isolated. In addition, [NAME] thought that [NAME] ran from an aerial feeder to the ground because, beside the pole, was a mini control box for automatic switching from electrical control and he thought that was how the whole area, including the [NAME] cable, was isolated. He assumed this to be so and assumed it was the means by which the entire [NAME] was isolated. 136 These misunderstandings from an experienced leading hand undermine the defendant's submission that the Special Instructions clearly identified the presence of [NAME] and clearly gave instructions to work clear of the pole and that no work was to be performed on [NAME] being an instruction which any of the experienced work team would understand from their training and instruction. The possibility that one experienced member of the work team, operating on an unwarranted assumption or acting with over-familiarity with the work or in a careless way may thereby have operated outside the clear working instructions of the defendant is a proposition that has greater difficulty when it is clear that [NAME] was also clearly of the view that [NAME] was to be worked on and that it was fully isolated in circumstances where he was the author of the Work Permit and had attached the Special Instructions to that document. It is also apparent that [NAME] expected work to be performed on [NAME] even though he had requested the isolation for the work and had included the Special Instructions in that request. [NAME] had signed the Permit but was preparing to work on [NAME] when told by [NAME] that [NAME] would be doing the work. 137 From a number of members of the work team the defendant drew acceptance that they were thoroughly trained upon their engagement and were re-trained and re-certificated each year in the defendant's electrical instructions. Apart from [NAME]'s evidence about his training in the use of a safety harness and the use of ladders and an extract from the defendant's safety manual dealing with "[ADDRESS]", no detail was provided of the defendant's training, re-training and re-certification process in relation to the use of the work commit, the Working High Voltage Instruction, the Work Permit and the role of the Special Instructions in the last two documents. No written instruction relating to this subject was in evidence, nor was it referred to in any of the oral evidence. The result is that there is no evidence as to what, if anything, the defendant had laid down in its instructions to employees about the relationship between these documents and how they might interact. It might be that the defendant was unaware of the use made of the commit document, but it was a document within the defendant's system and appeared to be known beyond the foreman, [NAME] and, [NAME]. The evidence suggests that the defendant was unaware that the commit document would be regarded as another direction that maintenance work be performed on a particular pole regardless of the Special Instructions appearing in the Working High Voltage Instruction and the Permit. The evidence directly raises the question as to how members of the team knew to disregard any inconsistency between the Work commit, the Working High Voltage Instruction and the Permit and the details of how such instruction was passed to the workforce and how it was enforced. Although I am unable to accept the prosecutor's submission that the defendant's system was no more than a paper system (having regard to the yearly re-training and re-certification in particular), nevertheless, there was no evidence of the system used by the defendant to enforce that training and re-certification in the field and to obtain compliance with its safety instructions in the field by use of spot checks, periodic safety audits or similar inspections. The use of the work commit document in the field was simply not addressed. It was not a document that could be ignored coming, as it did, from the engineers and laying down the regular maintenance schedule. 138 As earlier observed, the Special Instructions in those terms was the work of an earlier supervisor and was used as a precedent document by [NAME] who showed in his evidence no recognition that the Special Instructions meant that no work at all was to be performed on [NAME]. Another experienced linesman [NAME] thought that the reference to "joint use" in the Special Instructions meant there were parts of the pole that could be worked on and that it was only the "joint use" line which was to be avoided in the performance of work. He understood the entry in the Working High Voltage Instruction to refer to the fact that there could be any other feeder on the line and that he was to stay clear of that feed and not go near it because it was live. [NAME] also said that, if there were any other feeders on the line, he expected to be notified of it but there was no reference to [NAME] on [NAME]. Again, this evidence shows the confusion that can result from an understanding of the Special Instructions that a live feed was available on a pole but nothing on the pole identifying that live feed. [NAME] thought the document should specifically refer to the presence of the live feed because of the hazards involved. His practice was to work on poles identified to him by [NAME] and he confined himself to working on poles so identified. This is evidence of another practice operating in the field despite the existence of the Special Instructions. It is apparent from this evidence that, in the Pre-work Briefing he conducted, [NAME] could not have mentioned specifically the presence of cable [NAME] on [NAME] because he was not aware of it. Further, although conducting the Pre-work Briefing to identify potential hazards in relation to the work required to be undertaken that day, he had no other document to assist in identifying those hazards. Again, in cross-examination, [NAME] accepted the proposition that the entry in the Special Instructions identifying [NAME] as a joint use pole told him that [NAME] carried a feeder other than 726, [NAME] and [NAME] and that it was a high voltage feeder. He also accepted that the Instruction told him that the extra feeder had not been isolated. He also agreed that the entry meant that he was to stay away from [NAME] but, by his earlier evidence, he would have worked on [NAME] if directed to do so by [NAME]. 139 The other experienced employee was [NAME] who was the team manager having two team leaders below him and two group leaders, one of whom was [NAME]. It was [NAME] who had completed the request for isolation using a precedent document within the computer. [NAME] also spoke about a "work schedule" being supplied via computer that contained the planned schedule of maintenance work organised by the engineers. [NAME]'s evidence had been completed before [NAME] found the document he had referred to as the "work commit" and it was not confirmed with [NAME] that the "work schedule" he referred to as coming from the computer via the foreman was the same document referred to by [NAME] or as containing the same information: they appeared to have the same purpose of setting out a schedule of work to be performed over a period of time. Although the Special Instructions were already within the computer system, [NAME] stated that the reference to [NAME] in the Special Instructions meant that there was an [NAME] high voltage feeder within that pole and that it was a joint use pole. On the day of the accident, he was aware that there was a 726 feeder and an [NAME] feeder but was not aware of any additional feeder on [NAME]. There was no tag on the pole identifying another feeder and he would expect to have been notified of the presence of another feeder if there was one on that pole. That evidence demonstrates that [NAME], despite the terms of the Special Instructions regarding joint use [NAME], did not regard that entry as identifying the presence of a live high voltage cable on [NAME] that was not isolated. In the early part of his evidence [NAME] said that the entry in the Special Instructions regarding [NAME] was that there were two feeders on it - and that was the joint use: the two feeders were 726 and [NAME]. On the day he filled out the request for isolation he was not aware of any other feeder on [NAME]. [NAME] said that, in his position on the day, if [NAME] as group leader required instructions for any of the work, he would come to [NAME]. This evidence, again, demonstrates the lack of complete knowledge of the system and what was meant by the entry in the Special Instructions. It also demonstrates how misunderstandings of the system could be passed to the work team. 140 The lack of clear understanding of what was contained in the various documents of the defendant was also exposed by [NAME]'s evidence. His evidence was that he understood the Special Instructions as meaning he was to keep clear of the nominated poles, although his evidence did not mention a knowledge of a live high voltage line being energised at [NAME]. [NAME] noted that the Permit he had filled out stated it was safe to carry out work between Poles 18 to 134 on the 726 feeder, the [NAME] and [NAME] feeders. [NAME], in that part of the document, was not identified as a pole not to be worked on. [NAME] believed that he had not ever read the reverse side of a Permit and the obligations set out there regarding his role in relation to the Permit document. He thought that, if there were any other feeders attached to [NAME], they would be identified by a plate on the pole. At the date of the accident, he was aware of only two feeders on the pole, being 726 and [NAME]. He was aware that both had been isolated. Significantly, the insulated cable running up the middle of [NAME] did not tell [NAME] what that cable was or its purpose. [NAME] was similarly uninformed. 141 Having regard to this evidence, it is clear that there was a good deal of confusion and a lack of full understanding amongst some very experienced and trained [NAME] and supervisors concerning the meaning and operation of what the defendant described as the critical work documents. On the evidence, I am unable to accept the proposition that what occurred on the day of [NAME]'s accident were merely isolated acts of negligence or carelessness over which the defendant had no control. Although it is to be accepted that the defendant had a system of instruction and training (even though the full scope of that material was not placed before the Court), the fact that these experienced men were so ill-informed about the full effect of the Special Instructions and what to do in relation to the work, leads to the conclusion that there was a breakdown in the defendant's system of safety in its workplace. There was a failure in the defendant's system to adequately enforce its instructions and training so as to ensure the safety of its employees working on overhead transmission lines while performing overhaul maintenance. That failure was causally connected to the presence of a risk of electrocution while performing the overhaul work. 142 While the team members in various ways acknowledged that the Special Instructions meant that they should work clear of [NAME], they were also prepared to work on [NAME] because it was part of the maintenance task and they assumed that the pole was isolated. The confusion and misunderstanding about the documents, critical to the overhaul maintenance task, results in the conclusion that the defendant did not ensure the safety of its employees in the sense of making secure or certain their safety in the workplace. It has often been said that a provision such as s 8(1) imposes both a preventive and remedial duty upon employers and that their obligations extend to searching for risk rather than being merely reactive to an incident. While an employer must take into account the fact that employees may be careless on occasions or lacking in attention, especially where work is routinely and repeatedly performed, the Act, nevertheless, protects against inadvertence and inattention and even a foolish disregard for personal safety. The employer's obligation is to make reasonable contingencies within its system although an employer is not liable for merely speculative risks or unduly remote risks. The present case is not necessarily one involving employee inattention, carelessness or negligence: rather, the variety of misconceptions and misunderstandings reflects on the defendant's system of safety in the workplace. There were steps available to the defendant to address these risks and the evidence shows that, indeed, some steps had already been taken by the addition of identification tags and warning plates placed on [NAME]. The breach alleged in para (m) of the particulars of the charge has been made out. 143 In relation to the various aspects of the breach alleged in para (n) of the articulars, the evidence establishes the breach alleged in sub-paras (i), (ii), (iii), (vi), (vii) and (viii). The thrust of the prosecution case relating to these matters is accepted. 144 There is then to be considered some contradictory evidence about whether work was to be undertaken at [NAME] and if any direction was given to anyone, including [NAME], to perform work on [NAME]. The effect of [NAME]'s evidence was that he was proceeding to check the commit document, which he kept in his truck, to see if work was to be done on [NAME] - that document indicated that work was to be done on [NAME]. Before he could return from the truck, [NAME] had apparently climbed the pole and had fallen. [NAME] said that he gave no direction to anyone to climb [NAME]. However, he also said that there was no particular direction necessary because the team knew what was to be done. When [NAME] fell, and the team members ran to give assistance, he said that [NAME] told him that he had been at the foot of the ladder. [NAME] could not recall having a discussion with [NAME] about him climbing the ladder. 145 [NAME]'s evidence was that, when he arrived, he saw the ladder against [NAME] and noticed [NAME] putting on his harness. [NAME] had proposed to put on his harness to commence work on [NAME] but, because [NAME] told him [NAME] would be climbing the pole and performing the work, [NAME] removed his harness and put it back on the truck. As he was doing so, he heard [NAME] scream and hit the ground. He was at that point some 20 to 30 metres from the pole and not footing the ladder as [NAME] said. When he heard [NAME] scream, he saw [NAME] close to the pole observing [NAME], although [NAME]'s evidence was that he was at his truck speaking to [NAME]. [NAME]'s evidence was that at the time he was in his car leaving the site when [NAME] fell but just prior to that he had a discussion with [NAME]. [NAME] thought that [NAME] had directed him to climb [NAME], although he did not completely recall what had occurred but he remembered being told that the line had proved isolated and that it was "alright" to go up [NAME]. He had asked [NAME] if he was to work on [NAME] which [NAME] confirmed - work was to be undertaken on [NAME] although [NAME] could not recall anything else being said by [NAME] about [NAME]. [NAME] had been told by either [NAME] or [NAME] that the isolation was effective, then [NAME] told him that work could commence up the pole. He had been told this before he began to put on his harness and before he had spoken to [NAME]. In the conversation with [NAME], he thought [NAME] was referring to all the poles being isolated. [NAME], having informed him that the lines were isolated, then said it was "allright" to begin work. [NAME] thought that [NAME] and [NAME] were present as he climbed the pole and that he spoke to [NAME]. 146 Importantly, [NAME]'s evidence was not challenged and, given the imperfection of [NAME]'s memory of the entire incident, nevertheless, his account has some elements of consistency with [NAME]'s version of what occurred. On the evidence, I am satisfied that, whatever the precise terms used, [NAME] and [NAME] gave an indication to [NAME] that work could commence on [NAME], a pole that was designated in the Commit document as one requiring overhaul work. 147 Under para (n)(iv) of the particulars, it is alleged that the defendant failed to provide a safe method to perform the undertaking at heights in failing to provide or use a suitable elevated work platform to gain access to the feeders isolated for pole top maintenance upon [NAME]. The evidence shows that it was anticipated that a cherry picker would be used in this work and, indeed, a cherry picker was available. Although there is some confusion in the evidence, it is clear that, although the cherry picker was not too large to fit through the access gates, parked cars obstructed that entrance preventing this particular cherry picker, (which was somewhat larger than normally used for this task) being driven into the railway corridor and close to [NAME]. I accept [NAME]'s evidence that use of a cherry picker would have provided the highest level of safety but that there was another safe means of gaining access to the top of [NAME], namely, by use of a suitable ladder. A suitable ladder was provided and quite detailed instructions were laid down by the defendant for working at heights requiring the foot of the ladder to be secured as well as the top of the ladder and the use of fall protection equipment whilst on the ladder. This was accepted by the [NAME] as a safe method of work, although not as safe as working from a cherry picker. Having regard to the manner in which the charge is framed, this Particular is not made out to the requisite standard. 148 Particular (n)(v) alleged that the defendant failed to ensure its employees properly used (or used at all) a harness and related fall arrest mechanisms when the undertaking was carried out at heights. The evidence shows that, prior to working on [NAME] had observed [NAME] using his harness properly in performing work at height. The defendant tendered [NAME]'s harness and a variety of lanyards that were accepted to be in good working order. [NAME] accepted that he had been initially trained and had been re-trained each year in the use of harnesses and he understood how the harness was to be used. 149 When the team assembled at [NAME] initially thought that he would be climbing that pole and put on his harness. This evidence shows not only that the harnesses were available and that employees had been trained in their use, but also shows that the employees put on harnesses when they were about to work at heights on the transmission poles.

150 The issue in relation to this part of the particulars therefore seems to turn on what steps were taken by the defendant to ensure that a harness was properly used once the team member ascended a pole to perform maintenance work. [NAME]'s evidence was to the effect that, essentially, [NAME] had decided to climb [NAME] and had not been directed to do so by anyone. [NAME] was at his truck looking at the commit document and talking to [NAME]. [NAME]'s evidence was that he saw both [NAME] and [NAME] at the site and that he spoke to both of them: [NAME] told him that the line was isolated and that it was all right to commence work and that [NAME] told him to work on [NAME]. [NAME]'s evidence was that, when he arrived at [NAME], he noticed that [NAME] was putting on his harness. [NAME] was proposing to put on his harness to commence work on that pole but [NAME] told him while he was putting on his harness that [NAME] would be climbing the pole. He was some 20 to 30 metres from the pole when he heard [NAME] scream. He also saw [NAME] close to the pole observing [NAME]. I accept the evidence of [NAME] and [NAME] in relation to this matter. While it is unclear at what point [NAME] received the shock and whether the shock caused his fall or whether he received the shock while falling, it is clear that the harness was not connected. It is also possible that [NAME], in order to suffer a shock, would have left the portable ladder and been in a position on the fixed ladder attached to the pole which would leave him open to the risk of receiving a shock from the exposed line in [NAME], but precisely where that point was reached is not established on the evidence, In addition, what is not known is how long [NAME] had taken to transfer from the portable ladder to the fixed ladder and whether he was in the process of attaching himself so that the fall mechanism would be effective. [NAME] has little recollection of this part of the incident but accepts that he did not connect himself to the pole although he thought he was in the process of doing so: this action may have been in accord with the defendant's instruction to secure the harness in moving from the ladder. [NAME] and [NAME] were present, none of them gave evidence of seeing what [NAME] was doing on the ladder or at what stage of ascending the ladder he had reached. In light of the unsatisfactory nature of the evidence, it is not possible to reach a conclusion that the defendant failed in the way alleged in Particular (n)(v).

151 The defendant finally submits that if a breach has been established it has made out a defence under s 28(b) of the Act, namely, that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision. Essentially, the defendant repeats its arguments on liability under s 8(1): the workforce was trained and re-trained yearly; the instructions were clear and in writing, not to work on [NAME], and have to use a safety harness and that the work team understood that to be the effect of the Special Instructions; and that it was not foreseeable that two experienced and trained employees would undertake work on [NAME] contrary to the defendant's written instruction. Given the scope of the defendant's safety system there was nothing more that could be done to ensure their safety whilst performing this work.

152 The submission in support of a defence under s 28(b) was not separately developed. During the course of argument the defendant's attention was drawn to that part of s 28 requiring a defendant to prove the defence relied upon. No attempt was made to bring forward evidence as to the impracticability of taking any further steps or to examine the circumstances of the work to demonstrate the defendant's inability to control the actions taken and the risks exposed by the accident involving [NAME]. Although witnesses were cross-examined as to the fact and some aspects of their training, the scope and content of that training as relevant to this maintenance work was not in evidence. The defendant's submissions spoke of the "critical working documents" but there was no evidence of direct instruction and/or training as to how the work commit document was to be used and its relationship with the Instruction and the Permit. The conduct of the defendant's case suggested that the use of the commit document by foremen, team leaders and group leaders was unknown to it although the term was known within the workforce, even at the level of [NAME]. The evidence showed confusion in the terms used to describe some of the critical documents: [NAME] referred to the isolation request as a works order although [NAME] produced a very different document as largely reflecting what was in a works order.

153 Some steps were taken by the defendant in response to the improvement notices issued by [NAME] inspectors. Importantly, additional identifying and warning plates were attached to the pole drawing attention to the presence of cable [NAME] and the isolation steps necessary before ascending the pole. There was, however, an almost total lack of evidence (apart from yearly re-training and re-certification, even then without detail) of the system by which the defendant's work rules were enforced in the workplace - spot checks, audits, inspections or similar steps - to ensure that the safety system was, in fact, implemented.

154 There was no precision in the defendant's case as to what it was unable to control. Is it suggested that it could not control random acts of carelessness or negligence and, if so, there has to be evidence of carelessness or negligence. In the present case, members of the work team thought they were applying the rules of safety, and believed that work was required on [NAME]. If work was to be performed on [NAME], the system operated to isolate that pole. It was not suggested in evidence that maintenance work was never to be carried out on [NAME]: if maintenance was required, either [NAME] was to be isolated, or a system of work introduced to allow that work to be carried out clear of the live cable, perhaps from a cherry picker as suggested by [NAME]. Either way, there were measures available to the defendant to safely perform the work. Contrary to the theme of the defendant's submissions, where an employee contributes to the presence of a risk to safety, that circumstance alone does not mean that there were no failures by the defendant.

155 In relation to both aspects of the defence under s 28(b), there was nothing odd or unusual about the way the work was performed: the task of pole maintenance involved climbing or being placed by cherry picker near the pole in order to conduct the task. This is what occurred at [NAME]. The pole could have been isolated (there is no evidence to the contrary) and it was not isolated. If [NAME] was not to be work upon, the system had to address the use made of the work commit document by supervisors and team members. There were steps available to the defendant to address these issues. On any analysis, the defendant has failed to discharge its onus to make out a defence under s 28(b) of the Act.

156 As a result of these conclusions the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000. The parties are to confer and contact my Associate within seven days in order to set a date for hearing evidence and submissions on penalty.

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