HKSAR v. THE HONG KONG AND CHINA GAS COMPANY LTD

HCMA 125/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 125 OF 2013

(ON APPEAL FROM KCS NO. 2590 OF 2012)

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JUDGMENT

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Introduction

1.  The appellant was tried at Kowloon City Magistracy before Deputy Magistrate Sin Kam-seung between 25 to 28 September, 3 October and 9 November 2012 on an information which charged it with the offence of failing to ensure the safety and health of employees, contrary to sections 6(1), 6(2)(a), 6(2)(c) and 6(3) of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”).  On 4 January 2013 it was convicted of this offence and was ordered to pay a fine of $10,000.  It now appeals its conviction.

The Legislation

2.  Section 6(1) of OSHO imposes an obligation on employers and failure to comply with this obligation is made an offence by section 6(3) punishable by a fine of up to $200,000.  The obligation created by section 6(1) is as follows:

“Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.”

3.  Subsection (2) of section 6 sets out, in an inclusionary and non-exhaustive way, cases in which an employer fails to comply with subsection (1).  All these cases are failures by the employer to do something as can be seen from the way subsection (2) is drafted, which is as follows:

“The cases in which am employer fails to comply with subsection (1) include (but are not limited to) the following –

(a) a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b) a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employer’s employees;

(d) as regards any workplace under the employer’s control –

(i) a failure to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health; or

(ii) a failure to provide or maintain means of access to and egress from the workplace that are, so far as reasonably practicable, safe and without any such risks;

(e) a failure to provide or maintain a working environment for the employer’s employees that is, so far as reasonable practicable, safe and without risks to health.”

4.  One other provision in OSHO should also be mentioned.  It is section 38 and it imposes on a defendant a burden of proving that compliance with the section 6(1) obligation “was not practicable or was not reasonably practicable, or that steps, reasonable steps or reasonably practicable steps were taken to comply with the requirement or obligation”.

The Charge

5.  The failures on which the prosecution relied at trial are those contained in section 6(2)(a) and (c).  Thus, the summons to the appellant pleaded that:

“on 24 July 2001, being the employer of Tse Sui Fai at Main Switch Room, G/F, 100 To Kwa Wan Road, To Kwa Wan, Kowloon, so far reasonably practicable, fail to ensure the safety and health at work of your employee(s), namely (1) that you failed to provide the maintain a system of work for monitoring the testing and inspection on Main Switch Board A that were, so far as reasonably practicable, safe and without risks to health; and (2) that you failed to provide such information as might be necessary to ensure, so far as reasonably practicable, the safety and health at work of your employee(s).”

6.  It is clear from the way that the case was presented that the failure in (2) related to the work duties particularized in (1).  Thus, crucial to the court’s adjudication of the guilt or innocence of the appellant is a determination of what were the work duties that the appellant required of its staff in “monitoring the testing and inspection on Main Switch Board A”.  In this regard it is necessary to appreciate from the outset that this was a charge against the appellant for a failure in respect of its employees in relation to work duties that they were performing for it.  I emphasize “it” because the context in which this failure became manifest was of work being performed on its premises by an independent contractor.  This context and the language employed by the prosecution in describing these work duties in the summons and in court (“monitoring” in the summons and “supervising” in court) led to the appellant being confused during the trial as to what the prosecution was alleging the work duties required by the appellant of its employees were and in what respect the appellant failed its employees in relation to these duties.

The Factual Background

7.  The appellant (“Towngas”) is a public utility company which operates a number of gas plants in Hong Kong, one of which is at Ma Tau Kok.  Under the Electricity Ordinance, Cap 406 it is required to have a 5 yearly inspection of its electricity installation by a registered electrical contractor. It outsourced this inspection to Easytech E&M Engineering Limited (“Easytech”). Mr Tse Siu-fai (PW1) was employed by the appellant and in respect of this inspection was instructed to monitor, in the sense of oversee, the inspection process.  In the course of the inspection, an accident occurred which caused injuries to PW1 and Easytech’s employee, Mr Chi Hing-kwong (PW2).

8.  Easytech was prosecuted for not taking adequate precautions to ensure that the work it carried out might be carried out without undue risk from electrical hazard.  This offence was contrary to Regulations 19(1), 31(1) and 31(2) of the Factories and Industrial Undertakings (Electricity) Regulations, Cap 59.  Easytech was convicted after trial.  Although Easytech’s prosecution was initiated by a separate summons, its summons and the appellant’s summons were tried together and at trial the appellant was referred to as D2.

9.  Thus, the same accident has led to two prosecutions – one of the company, Easytech, who was contracted to carry out the inspection, and one of Towngas whose electrical installation was being inspected.  The same accident caused injuries to employees of each of these two companies and led to them both being prosecuted but the focus of the prosecution of Towngas was entirely on the failure by Towngas to comply with its section 6(1) OSHO obligation.

10.  In order to understand the basis of the prosecution case and the findings of the magistrate, some background information is necessary.

11.  The location of the accident was the Main Switch Room of Towngas at its To Kwa Wan premises.  Within this switch room were five main switch boards. Easytech was contracted to perform the inspection on two of the five main switch boards which are referred to as MSB “A” and “D”.  The inspection is referred to as WR2 Works, an acronym derived from the statutory form that Easytech had to submit in order to obtain the certificate that Towngas required and which was the whole purpose of the inspection.  I shall adopt the same terminology in this judgment.  The inspection commenced on 24 July 2011 and the accident occurred at the back of MSB “A”.

12.  It was an admitted fact that at 8.30 a.m. on the day of the inspection the appellant issued PW1 with an internal document called a “Permit-to-work” which was produced as Exhibit P2.  This document provided PW1 with official authorization to proceed with the isolation, that is, cutting off the power, of the Main Switch Board A and D which was a necessary prerequisite to the inspection but this document did not set out his duties in relation to it.

13.  The accident that took place during the inspection is what is known as a “flashover” and it was an admitted fact that a flashover took place at Air Circuit Breaker 5 (“ACB5”) [1] and that prior to the flashover MSB “A” was energized.

The Trial

14.  The prosecution case consisted of four factual witnesses and two expert witnesses.  Apart from PW1 and PW2 the prosecution also called an Emergency Services Engineer of China Light and Power Company Limited (“CLP”) (PW3) and an electrical technician employed by Easytech (PW4).  PW5, the first of the two expert witnesses, is an electrical engineer seconded from Electrical and Mechanical Services Department (“EMSD”) to Labour Department (“LD”).  PW5 visited the site of the accident on the day it occurred and prepared a technical report (Exhibit P13). Which was attached to his statement (Exhibit P12).  PW6 is an Occupational Safety Officer of LD and is a registered Safety Officer.  He visited the Main Switch Room on 9 March 2012 and subsequently prepared a statement of opinion which became Exhibit P14.[2]

15.  It was PW1’s evidence that five workmen from Easytech attended the WR2 Works. PW1 was assisted by a colleague.  He and his colleague then proceeded to isolate ACB3-ABC6.  ACB2, an emergency generator, had already been isolated.  PW1 said that isolation of ACB1 was PW2’s responsibility and PW2 then performed this task.  With ACB1 isolated MSB “A” was effectively “dead” ie all electricity supply to it was cut and this is when Easytech, in substance, took over the whole of MSB “A”.

16.  PW1 said that at about 11.30 a.m., and before all the “dead” tests had been conducted, PW2 decided to reconnect the power supply.  PW1, who could not understand why PW2 was in such a hurry for this to be done, thought that it was premature and posed a safety hazard.  Nevertheless, this was, in his view, a decision for PW2 to take.

17.  A break was taken for lunch and after lunch PW1 and PW2 returned to the Main Switch Room.  PW1 said he saw PW2 switch on ACB1.  By this time ACB5 was switched off.  PW2 informed PW1 that he was going to reconnect the N-cable of ACB5.  PW1 was afraid that PW2 may have forgotten that with ACB1 switched on, the power supply was back on and so he reminded PW2 that there was current in the busbar of MSB “A” even with ACB5 switched off.  To this PW2 responded “Its alright.”

18.  PW1 says that he was aware that with the right tools and the right precautions being taken, PW2 could have connected the N-cable to ACB5 without isolating ACB1 but was nevertheless afraid that PW2 might accidentally receive an electric shock.  Consequently, without interfering with PW2, PW1 decided to take the precaution of isolating ACB1 but as he was about to do so an explosion occurred somewhere inside ACB5 and ACB6.

19.  It was PW5’s opinion that he suspected the accident was caused by the short circuit of the busbar at the back of ACB5 by external hard tools and that was due to the fault of PW2 in not isolating ACB1 in order to make dead the busbar before carrying out the N-cable connection for the outgoing circuit of ACB5.  He also expressed the opinion that the appellant’s supervision of Easytech was too lenient.

20.  In his evidence PW5 stated that PW1 should have stopped PW2 from proceeding with the N-cable reconnection of ACB5 once he realized that ACB1 was not isolated.  One of his reasons for so saying was because the appellant was not a normal client and any electrical accident of the MSBs might cause serious damage to the whole of the gas plant.

21.  When cross-examined PW5 agreed that PW1 was not required to supervise in detail the work of PW2 as long as ACB1 was kept isolated.  Isolating the ACBs should have included padlocking them so that they could not be turned back on without unlocking them.  PW5 said PW1 should have ensured this was done and should have retained possession of the padlock keys.  PW5 was insistent that even though the appellant had contracted out the WR2 Works it was still incumbent on the appellant to ensure that Easytech observed best practices in carrying out the required work.

22.  PW5 did concede that he was not sure of the demarcation of responsibility between Easytech and the appellant and PW1 and PW2.  He also accepted that normally it should be the responsibility of the electrical contractor to carry out the isolation.

23.  PW6 prepared his report some seven months after the accident.  He expressed the opinion that there had been a lack of system of work by the appellant in respect of PW1’s role of monitoring the WR2 Works.  This included a lack of information on the hazards associated with the work and the precautions that might be needed to be observed in order to effectively monitor that the works were carried out in a safe manner.  PW6 also pointed to the failure to provide PW1 with any internal safety rules, work procedures and precautions; the failure to ensure MSB “A” was locked off with a warning notice affixed to it, a failure to ensure ACB1 was isolated before the N-cable reconnection to ACB5; a failure to keep any records on the progress and results of the WR2 Works on MSB “A”; a failure to stop PW2 from reconnecting the N-cable whilst the nearly busbar was still live; and a lack of management control by the appellant of Easytech’s workmen who did not follow safety procedures.

24.  What PW6 said in his testimony was summarised by the magistrate as follows:

“51.1 China Gas should have given guidelines to PW1 in respect of the resumption of CLP power supply.

51.2 China Gas should have given guidelines to PW1 in respect of PW2’s reconnection of N-cable of ACB5 when the circuit was in fact energized with ACB1 switched on and racked in.

51.3 China Gas should have given guidelines to PW1 how to deal with the seemingly uncooperative contractor Easytech/PW2.

51.4 CLP power supply should not be resumed and ACB1 should remain isolated before the completion of all “dead” tests prior to the commencement of “live” tests.

51.5 PW1 should have kept records on progress of WR2 Works to report to superiors on Easytech’s workmen who did not follow safety procedures for better management control.

51.6 Easytech/PW2 did not bother to have any warning notice hang up or locked up the isolated (switched off and racked out) ACB1 and failed to provide or bring along any protective equipment.” [3]

25.  The appellant submitted that it had no case to answer but the magistrate ruled against it.  The appellant called no factual witnesses in its case but only an expert witness, Professor S.L. Ho, referred to as DW2, and whose report became Exhibit D2(3).

26.  The evidence of this witness was that the accident was entirely the fault of PW2 and that it fell to the electrical contractor, here Easytech, to take all necessary precautions to ensure that the WR2 Works were conducted in a manner safe to its staff and safe to its client, the appellant.

27.  DW2 equated the position of the appellant to that of a domestic landlord who engages an electrical contractor to work on his flat.  The domestic landlord is not in a position to supervise the contractor who is expected to possess the professional expertise needed to do the work for which he has been engaged. He said that where the contractor, through his wrong-doing, created a hazard then the client could not be held responsible for it.  He also examined the contract between Easytech and the appellant for the WR2 Works and concluded:

“This means the role of Towngas was simply as a client and the landlord, and hence no engineering supervision was to be expected from Towngas, because Easytech was employed in the capacity of a competent and professional Contractor.” [4]

28.  Consequently, DW2 disagreed with the opinion of Mr Siu Kam‑wah, PW5, that the appellant “should provide supervision and management of the Contractor”.[5] He concluded that “Towngas was not expected to provide any professional supervision to the electrical workers employed by Easytech”.[6]

29.  DW2 gave oral evidence and said that PW1 behaved responsibly and professionally in reminding PW2 that ACB1 was  live and in attempting to isolate it but had no duty to do either of these things.  When being cross-examined by the prosecutor the following exchange took place:

“Q. In your opinion when Tse saw that, what would you expect him should have done?

A. I would – if I were him, I would caution Chi that the circuit ‑ the ABC has been joined in, has been join in and the circuit is alive, so …

Q. That’s it?

A. Well, that should be minor.

Q. Yes.

A. So it will be up to the contractor to react in a professional manner.

Q. What if the contractor is not reacting in a professional manner?

A. Then that will put Tse in a very difficult situation because Tse is not supposed to look over the shoulder of how and what the contractor should do.

Q. I see, and he is caught in a dilemma.

A. That’s right, yes.

Q. He don’t know – he just don’t know how to do it?

A. Yes.

Q. And obviously it would be dangerous there …

A. Yes.

Q. … to continue the work …

A. Yes.

Q. … by Chi.

A. Yes.” [7]

The Magistrate’s Statement of Findings

30.  After setting out the evidence, the magistrate directed himself on the relevant provisions of the OSHO.  He then set out what he perceived to be the issues that he had to resolve.  He said:

“65. My job is to consider whether PW1 of China Gas was monitoring the WR2 Works on MSB “A” carried out by Easytech in the Main Switch Room;

65.1 If so, whether there had been/would be any risk involved in PW1’s monitoring of the WR2 Works carried out by Easytech.

65.2 If there had been/would be a risk:

(i) What precautions China Gas, or its servants, had or should have taken to ensure that the “monitoring” was a safe operation? and

(ii) Whether, so far as reasonably practicable, those precautions, if any had ever been taken, were sufficient?

(iii) What information China Gas, or its servants, had or should have provided to ensure the safety and health at work of PW1? and

(iv) Whether, so far as reasonably practicable, such information, if any had been provided, was sufficient.” [8]

31.  In order to address these issues he proceeded to evaluate the evidence. He found PW1, PW3 and PW4 to be honest, truthful and reliable witnesses, but not so for PW2.  He decided, as a consequence of this assessment of the witnesses, that whenever there were discrepancies between PW1’s and PW2’s evidence, he would prefer and adopt PW1’s evidence.

32.  He found the appellant’s expert, DW2, to be unhelpful as he simply pointed the finger at Easytech without addressing the issues raised by the summons that had been laid against the appellant.  The deficiencies in DW2’s evidence were summarised by the magistrate.  I shall quote them in full as they clearly reflect his view on the issues in the case.  He said:

“74.2 And even though in his opinion, it would be ‘helpful’ for China Gas to have a responsible person at the Main Switch Room during the performance of the WR2 Works by Easytech, DW2 failed to further elaborate on:

(i) Why then and for what purpose and how it would be ‘helpful’ for China Gas to have a responsible person at the Main Switch Room during the performance of the WR2 Works by Easytech?

(ii) What would be the role and duty of that responsible person of China Gas in the Main Switch Room?

(iii) Whether there would be any risk involved to that responsible person’s playing of such role and performing such duty at the Main Switch Room on behalf of China Gas?

(iv) If there would be a risk or risks:

- What precautions China Gas, or its servants, should have taken to ensure that the playing of such role and performing such duty by that responsible person at the Main Switch Room was a safe operation and whether, so far as reasonably practicable, those precautions, if any had been taken, were sufficient.

- What information China Gas, or its servants, should have provided to that responsible person to ensure the safety and health at work of that responsible person and whether, so far as reasonably practicable, such information, if any had been provided, was sufficient.” [9]

33.  This contrasted with the approach of PW5 and PW6 whom he found to be honest, truthful and reliable expert witnesses.  As he did with PW1 and PW2 so did he do with PW5 and PW6 in relation to DW2 ‑ preferring their evidence over DW2’s wherever there was a difference between them.

34.  In respect of the cause of the accident, he accepted the evidence of PW1, PW5 and DW2 and found it was due to the fault of PW2.  He said:

“79.2 The incident was caused by the short circuit of the busbar at the back of ACB5 by external hand tools due to default of PW2 who failed to switch off and isolate the incoming electricity power supply circuit breaker ACB1 to make dead the busbar before carrying out the N-cable connection or the outgoing circuit of ACB5.” [10]

35.  In respect of the WR2 Works he found that the appellant, and hence PW1, “was not involved in the WR2 Works and PW1 was not required to supervise Easytech for its execution of WR2 Works in the Main Switch Room”.

36.  The magistrate analysed PW2’s conduct which led to the accident and recognized that with the correct tools and by taking proper precautions the N-cable could be reconnected whilst ACB1 was live.  However, he noted that it was PW2’s evidence that he did not use any special tool or take any particular safety measures. In these circumstances, the magistrate concluded that it was reasonable for PW1 to be anxious as to PW2’s safety.

37.  He then addressed the key question of what role, if any, PW1 had in the WR2 Works.  He concluded that PW1 did have a monitoring role as alleged in the summons and his reasoning for so finding and his conclusion as to what was involved in this monitoring role, he described as follows:

“85.2 Yet, according to PW1:

(i) It was China Gas’s practice that no contractor’s workmen would be allowed remaining in the Main Switch Room in the absence of China Gas’s staffs.

(ii) PW1 had to ensure compliance of the general house rules by Easytech’s workmen and that they were carrying out WR2 Works just on MSB “A” and “D” and not on other MSBs (MSB “B”, “C” and “E”) at the Main Switch Room.

85.3 PW4 had been performing relay testing at all time in the Main Switch Room.  It was his evidence that in addition to PW1, Mr. Leung, had always been around in the Main Switch Room.

85.4 This was consistent with the evidence of PW5, PW6 and DW2 that it would be necessary or helpful for China Gas to have PW1 or a representative at the Main Switch Room:

(i) To observe compliance of the general house rules by the workmen of Easytech (evidence of PW1, PW5, PW6 and DW2) in the Main Switch Room;

(ii) To make sure that Easytech did not temper with other installations in the Main Switch Room outside its WR2 Works limit and boundary, i.e. not tempering with the running and operation of MSBs other than MSB “A” and “D” (PW1, PW6);

85.5 If China Gas was just to fully rely upon Easytech and hence PW2 was allowed to lead and perform the WR2 Works anyway he so wished, there was simply no need to waste any manpower and have any China Gas’s representatives in the Main Switch Room, a Closed Circuit Television (CCTV) with monitor installed somewhere else would suffice.

85.6 Why then had it been China Gas practices that no contractor’s workmen would be allowed remaining in the Main Switch Room in the absence of China Gas’s staffs?

85.7 Obviously, China Gas must have intended to have its own staffs in person present at the Main Switch Room to monitor the WR2 Works on MSB “A” carried out by Easytech.

85.8 In this case, ‘monitoring’ would perfectly mean ‘keeping an eye on’, ‘observing’, ‘reviewing’ and ‘checking’:

(i) Full compliance of the general house rules of China Gas by workmen of Easytech;

(ii) That there was no tempering of MSBs other than MSB “A” and “D” by workmen of Easytech;

(iii) The progress and quality of the WR2 Works executed by workmen of Easytech;” [11]

38.  He also found, by reliance on PW1’s evidence that “it was up to PW1 to determine when the actions of a contractor were safe or unsafe, whether they breached his own safety threshold, whereupon they would interfere”.[12]

39.  The magistrate went on to find that PW1’s presence in the Main Switch Room was for the purpose of monitoring the WR2 Works.  He also concluded that given the nature of the work involved in the WR2 Works and given the nature of the appellant’s premises in which this work was to take place, there were obvious risks and hazards associated with it.

40.  He concluded by saying that he accepted the evidence of PW5 and PW6 that the appellant had failed in the two ways particularized in the summons to ensure the safety and health of PW1 in the Main Switch Room.  He thereupon convicted the appellant.

The Grounds of Appeal

41.  There are four grounds of appeal.  The first is that the magistrate erred in finding a case to answer.  This ground complains that the prosecution case, at the start of the trial, was based upon an allegation that the appellant had a direct involvement in the carrying out and supervision of the WR2 Works and this allegation was not established by the evidence.

42.  The second ground of appeal complains that the magistrate erred in allowing the prosecution to present its case on a basis other than that originally presented.

43.  The third ground complains that the magistrate convicted the appellant on a basis different from the original basis presented by the prosecution who changed its stance throughout the trial and in any event the facts found by the magistrate were not supported by the evidence.  It is said that the consequence of the magistrate’s errors is that she imposed an obligation on the appellant in respect of work performed by an independent contractor that is beyond the provisions of OSHO.

44.  There is some overlap between the first three grounds of appeal.  In support of these grounds it is argued that the prosecution case changed in the course of the trial but what it became by the close of the prosecution case was also not established by the evidence and sought to impose upon the appellant a legal obligation which does not, in fact, exist under OSHO.

45.  The position of the appellant is that the accident was wholly attributable to the fault of Easytech’s employee, PW2, who was carrying out the inspection and this is not disputed by the prosecution.  The appellant argued that the prosecution case was really focusing upon the improper way PW2 carried out the WR2 Works but that it was no part of the appellant’s obligation to PW1 to provide and maintain a safe system of work for Easytech in respect of their performance of the WR2 Works.

46.  Easytech was an independent contractor and the appellant could not be held responsible for the conduct of its employees.  The appellant argued that it was just the landlord of the premises and the client of Easytech with whom it had contracted to perform the WR2 Works.  It was never intended that the appellant’s staff become involved in the WR2 Works and both experts, DW2 and PW5, agreed that the appellant’s staff need not supervise the performance by Easytech’s staff of their work in carrying out the WR2 Works.

47.  The summons particularized two failures by the appellant.  The first was a failure “to provide and maintain a system of work for monitoring the testing and inspection on Main Switch Board “A””.  The appellant argued that PW1’s duties did not involve monitoring the testing and inspection of Main Switch Board “A” and, consequently, there could be no obligation to provide and maintain a system of work for a non‑existent work role.

48.  The appellant further says that the monitoring role which it instructed PW1 to perform on its behalf should not have exposed him to the risk of any reasonably foreseeable harm and there was no failure by the appellant to take any reasonably practicable measures to protect PW1 and that consequently there was no obligation on it to “ensure the safety and health at work” of its employee, PW1, and therefore no breach of section 6(1) of OSHO.

49.  Even if it could be argued that the appellant was obligated to provide a safe system of work in respect of a duty of PW1 to ensure that Easytech did not break any of the appellant’s house rules at the Main Switch Room, this would not extend to the appellant providing PW1 with a safe system of work to control, and to interfere with Easytech’s system of work.

50.  Part of the third ground of appeal complains that the magistrate erred in her analysis, treatment and use of the expert evidence.

51.  The fourth ground of appeal complains that the magistrate, in finding that the appellant had failed to discharge the onus under section 38 of OSHO, failed to appreciate that the evidence of PW1 did not support the need for there to be a safe system of work and, in fact, discharged the onus imposed on the appellant by section 38.

Discussion

52.  The starting point for understanding the prosecution case as it was pleaded is to examine the way the summons was drafted and the particulars that were provided.  The summons was drafted as follows:

“Information has been laid THAT YOU, on 24 July 2011, being the employer of TSE SIU FAI at MAIN SWITCH ROOM, G/F, 100 TO KWA WAN ROAD, TO KWA WAN, KOWLOON, did, so far as reasonably practicable, fail to ensure the safety and health at work of your employee(s), namely, (1) that you failed to provide and maintain A SYSTEM OF WORK FOR MONITORING THE TESTING AND INSPECTION ON MAIN SWITCH BOARD A that were, so far as reasonably practicable, safe and without risks to health; and (2) that you failed to provide such information as might be necessary to ensure, so far as reasonably practicable, the safety and health at work of your employees(s).” [13]

53.  This summons is clearly drafted in conformity with section 6(1) of OSHO.  There are two particulars of the appellant’s failure to ensure the safety and health of its employees.  The first is that the appellant failed to provide and maintain a system of work for “monitoring the testing and inspection of Main Switch Board A”.  By this particular the prosecution is implicitly asserting that one of the duties that the appellant’s employees were required by the appellant to perform was the monitoring of the testing and inspection of Main Switch Board “A”.  The second particular of failing to provide information does not identify the work duty to which this failure relates, but it must, in the circumstances of this case, be the duty of “monitoring the testing and inspection on Main Switch Board A.”

54.  I have not been told of any pre-trial request of the prosecution for further and better particulars of its case and so the next document, in chronological order, that would shed light on the nature of the prosecution case would have been the Brief Facts of the Case – a document prepared for the first mention of the case and frequently used by the prosecution to open its case.  This document contains a number of allegations.  It recited the facts and went on to state the opinion of the Senior Electrical Engineer of the Technical Support Unit of Labour Department that:

“The supervision and management of D1 (that is, the appellant) by TSE in connection with the concerned periodic inspection (WR2) work was too lenient.” [14]

It then went on to specifically address the appellant’s summons as follows:

“KCS 2590/2012

7.3 There was no precaution provided to ensure the switchboard’s busbars were dead during inspection by TSE before carrying out the neutral cable connection of ACB5.

7.4 There were no steps/precautions to stop CHI to carry out live electrical work at the time of accident.

7.5 There was no laid down internal working procedure (ie information) provided to TSE in view of supervising D2 to carry out the WR2 work.

7.6 D1, being the employer of TSE, failed to provide and maintain a safe system of work for monitoring the testing and inspection on Main Switch Board A, and to provide such information as might be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employee”.[15]

55.  I can well understand that the contents of 7.3 and 7.4 above may have misled the appellant into thinking that the supervision and monitoring referred to in 7.5 and 7.6 was a supervision of the actual work being carried out by Chi on behalf of Easytech as if Tse was the supervisor of Chi.  This confusion over what it was that the prosecution was alleging led to Mr Jenkyn-Jones requesting, in open court, that the prosecution provide further and better particulars of its case.[16]

56.  The reply by the prosecutor satisfied Mr Jenkyn-Jones but did not remove the confusion for it apparently confirmed in Mr Jenkyn-Jones’ mind that the prosecution was alleging a supervision of the kind that is provided by a supervisor to a subordinate working directly under him.  The prosecutor said:

“Its our case that a worker, Mr Tse, employed by the defendant’s company to work at the workplace which is the main switchboard, the main switchroom, situated at the Ground Floor of 100 To Kwa Wan Road, he was tasked with a responsibility to carry out the works there by supervising and monitoring the progress of work of those instructed or contracted to work there and it is the prosecution allegations that the defendant’s company did not provide a safe system of work and also failed to provide sufficient information necessary to ensure the safety of Tse to carry out his work at that location and, as a result, it did not prevent what had happened, which was the explosion in this case which caused injuries to himself and also injury to the worker Mr Chi that works thereat. This is the prosecution case against the defendant company.” (Emphasis added) [17]

57.  That Mr Jenkyn-Jones took this to mean that the supervision the prosecution would be alleging the appellant was requiring of Tse was the kind of supervision provided by a superior of a subordinate, is apparent from his submission of no case to answer.  Mr Jenkyn-Jones said in his written submission:

“The fact remains, however, that there is a vagueness and imprecision in the prosecution’s approach to the summons against D2. That vagueness and imprecision persisted and mutated throughout the prosecution case.

It was precisely to avoid this feature of the prosecution case that the prosecution was asked to elucidate and state clearly their case against D2 at the commencement of the proceedings. In light of the elucidation provided it is perhaps surprising that PW1 was nevertheless called to state the exact opposite, namely that he had no supervisory role at all in relation to the performance and execution of the work by D1. It is also surprising that Mr Siu, the prosecution electrical expert when called also gave evidence that TSE was not required or expected to supervise D1’s works. This contradicts the prosecution’s clarification of their case against D2.” [18]

58.  This last sentence clearly shows that even at the end of the prosecution case Mr Jenkyn-Jones was still labouring under a misapprehension of the prosecution case as it related to the duties that it was alleging the appellant required Tse to perform.

59.  The prosecutor replied:

“It seems that D2’s counsel has wrongly assumed that the prosecution is alleging D2 having instructed TSE to perform the WR2 works. This is not the case. TSE was not alleged to have been there to perform the WR2 works himself, he was there to supervise and monitor the WR2 works being carried out by D1’s workers.” [19]

60.  It is apparent to me that from the very beginning of the trial Mr Jenkyn-Jones and the prosecutor were talking at cross-purposes.  Both spoke in terms of Tse being required by the appellant to supervise and monitor the WR2 Works and both had quite different understandings of what was meant by these words.  Unfortunately, Mr Jenkyn-Jones never actually asked the prosecutor for particulars of these supervisory and monitoring duties, that is, what it was the prosecution was alleging the appellant required Tse to do in supervising and monitoring on its behalf the work being carried out by Easytech. Consequently, the misunderstanding by Mr Jenkyn-Jones was as much due to what wasn’t asked and what wasn’t said as it was to what was said.

61.  This misunderstanding is unfortunate but I cannot see any evidence that it was deliberately created.  Consequently, I do not agree that the prosecution kept changing their case.  It was always the same case, there was no shifting of position by the prosecution other than to accommodate the evidence as it unfolded in the course of the trial.  These accommodations did not radically alter the nature of the prosecution case.

62.  I cannot see any unfairness to Mr Jenkyn-Jones in the way the trial proceeded or the way the prosecution conducted its case.  In any event what the prosecution was alleging was certainly clear to Mr Jenkyn-Jones by the time the prosecutor made his closing submission.  In that submission the prosecutor made clear his position which was essentially that although the appellant directed PW1 to perform a work role on its behalf in relation to the WR2 Works, the duties involved in performing that role were vague and ill-defined. This left PW1 in a dilemma as to how he should respond when PW2 insisted on proceeding with the N-cable reconnection when ACB1 was still live.  PW1 would not himself have gone ahead with the reconnection in these circumstances but recognized it could be safely done and that whether to do it in this way was a judgment call and decision for Easytech to make.  The prosecutor submitted that the appellant should have had an agreed method statement with Easytech by which PW1 would know what steps he could and should take in response to conduct by PW2 and PW2 would know that PW1 had a right to intervene if PW2 failed to follow the agreed method statement.

63.  In his own closing submission Mr Jenkyn-Jones showed a true understanding of the prosecution case, albeit he maintained the prosecution was shifting its ground.  He said:

“TSE is no longer alleged to be carrying out the works, TSE is no longer alleged to be supervising the works and even the word “monitor” no longer contains the implied meaning of supervise.” [20]

64.  Had Mr Jenkyn-Jones felt that he or his client was disadvantaged in any way as a result of a misunderstanding by him of the prosecution case or of any perceived shifting of position by the prosecution, he could have asked for an adjournment to consider his position and then sought the recall of witnesses, reconsidered whether he should call any other evidence or even, if he felt he could justify it, ask for the trial to be aborted and a fresh trial held.  He did none of these things and presumably he adopted this stance because he felt that he could adequately deal with any prejudice flowing from what he perceived as a turn of events unfavourable to the appellant.

65.  I find, therefore, no merit in grounds 2 and 3a of the Perfected Grounds of Appeal.

66.  Insofar as Mr Jenkyn-Jones relies on his own misunderstanding of what the prosecution was alleging by “supervision and monitoring”, I find his complaint in his first ground of appeal that the magistrate wrongly found a case to answer is not made out as there is nothing to suggest in the magistrate’s Statement of Findings that she laboured under the same misunderstanding.  However, under these grounds of appeal Mr Jenkyn-Jones argues that a case to answer was not established even if PW1’s evidence as to his duties was accepted and relied upon.  Mr Jenkyn-Jones argues that the prosecution case is based upon interpreting PW1’s evidence so that it supports a view of what it would like PW1’s duties to be, not what PW1 said they actually were.

67.  There is no doubt that there were times when the experts, in trying to articulate the safe system of work that they believed was required, spoke of what should have been done but that is central to proof of the two particularized failures of the appellant to comply with its section 6(1) OSHO obligation.  They were not ignoring the evidence as to what PW1’s duties were and, by reference to the duties they thought he should have been instructed to perform, transforming them into something they were not.  Nor can I detect in the magistrate’s reasons anything to suggest that he allowed any such approach to infect his finding as to what PW1’s duties actually were.  In making this finding he relied exclusively on PW1’s evidence.

68.  To determine whether the magistrate’s finding that, on PW1’s evidence of his duties, there was a case to answer, was correct, it is necessary to examine PW1’s evidence on this issue in greater detail.

69.  From the very beginning of his evidence PW1 emphasized that he would not be involved in the details of Easytech’s work or of their working procedures. But, this was subject to a qualification that as long as the Easytech staff have not “stepped out of my safety threshold”.[21] So long as this did not happen he would not interfere with them.  Under a document that the appellant provided to contractors coming onto its premises, entitled “General Notes to Contractors”, the appellant warned contractors that they could be required to leave the premises if they failed to follow the ground rules laid down by it.

70.  As to his duties on the day in question PW1 described them as only “to act as a bridge between the Towngas Company and the contractor”. [22] The following exchange took place with the prosecutor:

“Q. You were designated by Towngas to work as a Towngas personnel at the main switchboard room, not carry out the WR2 works?

A. Yes.

…

Q. And you were on duty that day, working for Towngas?

A. Correct.

Q. Yes, Now, I want to ask you, why did you go to the main switchroom on that day?

A. Because on that day I needed to pass on main switchboard A and main switchboard D to Easytech for repairing.

…

Q. So, apart from handing over the switchboard to Easytech, what else do you have to do – did you have to do on that day?

A. What do you mean? Is that outside the switchboard or things concerned with the switchboard?

Q. Concerning the switchboard and also the works in connection with switchboard.

A. There, what I need to do was to isolate the lower part of that switchboard, downstream.” [23]

71.  There were general safety rules that were provided to contractors when working on the appellant’s premises but there was nothing specific to a WR2 Works inspection.  In his evidence in chief the following exchange took place:

“Q. Did you receive any instruction or training from your company, that while you were in this main switchroom, under what circumstances you should stop the other contractors from continuing with their work?

A. If, specifically, for this situation inside the switchroom, no. The training my company gave me was in regard of general situations.

Q. Were you provided with any safety clothing, working in the switchroom or protective clothings?

A. No, but I have to restate that, I was not working at that time in the switchroom. I was merely monitoring them, if they had crossed over my safety threshold. Practically, I was not inside the switchroom all the time. On that day, occasionally, I had to go to handle my other works.” [24]

72.  He was asked by counsel for Easytech about a briefing he gave to their staff before they commenced work.  He explained it as follows:

“First of all, I told them the restrictions on using electrical appliances inside the Gas Company Plant. And also, I told them the area which they should move around. And then, I told them again that in this occasion, the scope of work was only main switch for A and B and also, the outgoing power cable connected.” [25]

73.  Insofar as these were matters of concern to PW1 they were no doubt matters which he would bear in mind when monitoring the WR2 Works.  But this monitoring work did not require PW1 to be present the whole time and there two to three occasions when PW1 left the main switchroom for not more than half-an-hour at a time.  But, significantly, when he did leave he arranged for his subordinate to replace him.  When asked whether his presence was to ensure that Easytech staff were carrying out the WR2 Works, he said:

“I think to conclude, it was to make sure that they won’t work on the wrong switchboard which they were not supposed to work on.” [26]

74.  However, he did also say that he wanted to observe what was being done in the course of the WR2 Works inspection.  He said:

“To put it bluntly. I was being curious and watched what were they doing and watched them test the protection appliances.” [27]

75.  Under cross-examination by counsel for Easytech he said the following:

“… My job was merely to make sure that, at that time, the staffs of the Easytech were not inflict unnecessary damage to the instruments beyond their working scope.

Q. To the equipment.

A. Equipment, yes.

…

Q. Mr Tse, you mentioned you had this safety threshold, what, actually, is your safety threshold?

A. First of all, the staffs of Easytech must not move beyond the moving area outside the switchroom, which are allowed. I used a string in red and white colour to make a crossing line. Secondly, the restrictions on using electronic instruments.

Q. So that’s your safety threshold?

A. Yes, these are from the position of the company.

Q. So, your company must have brief you, or train you or gave you this kind of information?

A. Yes and actually, about these instruments, I have already remind the Easytech company again, before they began to work in the morning.” [28]

76.  In cross-examination by Mr Jenkyn-Jones, PW1 agreed that he was not there to supervise Easytech staff in terms of telling them how to do their work, when to do it or at what stage to do certain things.  He also agreed that there was no requirement for him to remain in the switchroom when he handed it over to Easytech and so he was asked what his purpose was in entering it from time to time.  He replied:

“Because I have to go to check occasionally to ensure that staff of Easytech would not go to the area of the – in the plant which I did not allow them to go …” [29]

77.  He agreed he put in place a plastic tape boundary fence to limit the area of movement of Easytech staff and that he was there to act as liaison officer with them and answer any of questions they may have.  He agreed that at the time of the accident he was playing no particular role in respect of the WR2 Works and it was sheer coincidence that he was present.  He made it clear that his conversation with PW2 about the power was a reminder that it was still on and a hint to turn it off.  He was not directing him or even urging him.  He had his own views on how the N‑cable should be connected and though they differed from the procedure adopted by PW2 he kept them to himself because the WR2 Works were the work of Easytech.

78.  In re-examination it came out that PW1 had input into the decision by his supervisor as to whether a contractor remained on the Towngas list.  Thus, should he observe something during his monitoring duties that was relevant to this decision then he would report it to his supervisor.

79.  As to his duties in the main switchroom he said his duties and those of his subordinate were interchangeable and he didn’t have to be in the switch room; that was for him to decide.  The following exchange then took place:

“Q. And once inside the switchroom, it’s up to you how to perform your duty?

A. Correct.

Q. You see what is fit and decide what to do.

A. Yes, except for work of Easytech.” [30]

80.  There is no doubt that the appellant required its staff to be physically present during the WR2 Works inspection.  The purpose of their presence must have been to protect the interests of the appellant.  What this involved is what this case was all about.  It is clear that it involved, at the very least, ensuring that the staff of Easytech:

(i) did not wander outside the designated work areas;

(ii) did not interfere with plant and equipment outside the scope of the WR2 Works, and

(iii) complied with all the safety measures required of them when working in this particular part of the appellant premises.

Should PW1 observe the staff of Easytech conducting themselves in breach of any of these matters he was authorized to intervene to stop them from doing what they were doing.

81.  The appellant does not dispute any of this but argues that PW1’s duties were confined to monitoring compliance with these requirements and did not extend to generally overseeing and certainly not supervising the actual work being performed by the staff of Easytech in the course of carrying out the WR2 Works contract. His presence in the area of the flashover was not because he had to be there in performance of his employer’s duties but out of personal curiosity at what PW2 was doing.  Thus, when PW1 was injured in the flashover he was not performing any duty on behalf of the appellant.

82.  The appellant, therefore, takes issue with the magistrate’s finding at paragraph 85.8 (iii) of his Statement of Findings that “monitoring” would include checking “the progress and quality of the WR2 Works executed by workmen of Easytech” [31] To the appellant this “is a completely new concept for which there was no evidence in support” [32] and sounds too much like a supervisor supervising the work carried out by a subordinate which would contradict the magistrate’s finding that the appellant was not required to supervise the detailed performance by Easytech staff of the inspection work.

83.  Of course, on this key issue of the role and duties of PW1 there was no evidence adduced by the appellant at trial.  The appellant could only present its case on this issue through the evidence of PW1.  But, since PW1 had no guidelines or instructions specific to the WR2 Works, Mr Jenkyn-Jones could not point to any document or instruction given to PW1 setting out his duties in relation to these works.  It all came down to what PW1 said they were or what he understood them to be.

84.  In my view the duties of PW1 in respect of the WR2 Works inspection as revealed by him in his evidence, can be divided into active and passive duties.  The only active duty of PW1 was isolation downstream (ie cutting off the electricity supply) before handing over MSB “A” and “D” to Easytech for commencement by it of the WR2 Works.  The other duties of PW1 were all passive in nature.  The full nature and extent of these passive duties is disputed by the parties.  The prosecution alleged they were monitoring or overseeing duties which could require PW1 to take action if he saw something which called for his intervention, such as staff of Easytech doing things outside of the scope of their duties or performing their duties in a way which did not comply with the appellant’s work requirements.  Being a gas processing plant the premises had inherent dangers and the appellant had certain rules and work practices in place to prevent those dangers becoming manifest.

85.  However this role of PW1 might be described, it was not a supervisory role of the actual work being performed by PW2 and his staff, except insofar as the manner in which that work was performed might adversely impact upon the interests of the appellant.  PW1 said that there were no internal rules of the appellant that specifically dealt with WR2 Works.

86.  Notwithstanding the absence of any internal rules dealing with WR2 Works it is commonsense that the general purpose or reason for the appellant’s staff to be present during the WR2 Works was to protect the interests of the appellant.  Such a phrase is inevitably vague until those interests are defined, parameters in respect of them set and guidelines provided to staff on what fulfilling such a purpose would require of them.  That, of course was never done.  As PW1 himself said, everything was left to his own discretion and, it is clear, with no guidance given to him on how to exercise that discretion.

87.  In considering what might be expected of staff in the situation in which PW1 found himself, account must the taken of the context and this includes such things as the interests of the appellant, the dangers to those interests posed by the work being performed by the contractor and the expertise of the appellant’s employees who are safeguarding its interests.  In the context of the present case it extended, in my view, to acting to protect the appellant’s interests whenever PW1, with his electrical engineering expertise, observed a risk to those interests and this included a risk created by the way that the WR2 Works was being conducted.  I am in no doubt that when PW1 attempted to isolate ACB 1 he was acting pursuant to the purpose of safeguarding the interests of his employer.  To portray his presence at the site of the flashover as merely due to curiosity on his part is to ignore the reality of the situation. Curious he may have been but he was satisfying his curiosity pursuant to his monitoring role and his role of safeguarding the interests of the appellant.

88.  As soon as an employer instructs employees to be present whilst potentially hazardous work is being carried out by others it necessarily follows that the employer must clearly define the responsibilities of its employees and provide them with whatever the circumstances might practicably require in order to safeguard them from the risk of harm.

89.  Of course, part of the context in determining PW1’s duties is that he is not just any employee of the appellant, he is a qualified electrical engineer fully familiar with the appellant’s plant and equipment.  The appellant knew this and deliberately chose him and his staff for the role of overseeing or monitoring Easytech’s inspection.

90.  The appellant, through its counsel, appears to have also accepted that PW1 was providing a liaison role with the staff of Easytech on behalf of the appellant.  In cross-examining PW5 the following exchange took place:

“Q. … Towngas don’t have to appoint a qualified electrician, do they, to liaise with Easytech?

A. But, in reality, Mr Tse was an assistant electrical engineer. … He may not be … he’s not necessarily to be a registered electrical worker.

Q. Isn’t … you’re right, therefore, it’s good practice on Towngas’ part to appoint someone who actually is an electrician and familiar with the installation so that in the event the Easytech have any questions about the ACBs, or about the age, for instance, they can perhaps get quick and accurate answers, rather than having to wait a long time for the appropriate person to be found to answer the question …

A. What is your question?

Q. Do you agree?

A. Yes.

…

Q. It doesn’t mean that by appointing such a person that he has to take over the job of the electrical contractors, does it?

A. No.

Q. Since there are …

A. No, you don’t have … you can … no need to take over, you can stop work, stop the work of the contractor.”

91.  This intervention, PW5 subsequently made clear, is part of what he regards as the appellant’s contract management role – not to perform the contract but simply to ensure that it is performed in a way which does not put at risk the interests of the appellant.  Initially, this required just monitoring or observing what the staff of Easytech were doing.  What transforms this passive role into active supervision is the expectation that PW1 will intervene should he assess that the actions of the staff of Easytech have crossed his safety threshold.  When a person is given a power to direct others, even if it is only a power to direct them as to what they should not do, it is not inapt to describe that as “supervision”.

92.  I cannot, therefore, find any fault in the magistrate’s analysis and reasoning and findings of fact.  Her reasoning and findings do not, contrary to Mr Jenkyn-Jones’ contention, impose a legal obligation upon the appellant in respect of the work of independent contractors.  The obligation in the present case arose solely because the appellant chose to station staff with particular skills and particular knowledge of its plant and equipment in the Main Switch Room and to impose on its staff work duties which required them to act in protection of their employer’s interests whenever they observed anything being done by the staff of the contractor which placed those interests at risk.

93.  On the findings of the magistrate as to PW1’s duties it was open to her to find that the particulars of the failures by the appellant were made out. The defence case was based upon persuading the magistrate that PW1’s work duties were very limited and that within those limits there was no reasonably foreseeable risk of harm to him.  Once the magistrate found a broader duty to act in protection of the employer’s interests when monitoring the WR2 Works, which duty was imposed without any guidance as to its parameters or how it should be performed, then it was open to her to find that the particulars of the charge had been established to the level of a prima facie case.

94.  I find no merit in the complaint that the magistrate wrongly found a case to answer based upon her finding of the duties of PW1 as explained by him in his evidence.  I reject grounds 1b and 3b of the Perfected Grounds of Appeal.

95.  I can find nothing in the magistrate’s reasons which would show she had made improper use of the prosecution’s experts’ evidence.  Once the magistrate made findings that the appellant had imposed a broader duty on PW1 and his staff in respect of the WR2 Works and then found that no parameters had been set in respect of the scope of the duties, no clear authority to act had been laid down for PW1 when performing the duties and no guidance given to PW1 as to how he should respond to any particular circumstance arising in the course of the duties then much of what the expert witnesses had to say was commonsense.  The need, or lack of it, for a safe system of work and the provision of information, as asserted in the two particularized failures of the appellant, depended on the finding as to the scope and nature of PW1’s duties.

96.  Nor do I think that the magistrate has wrongly rejected the expert evidence of DW2.  The evidence of DW2, in so far as it concerns the cause of the accident, is not contested.  But, apart from finding that the accident was caused by PW2’s wrong-doing, DW2 says little else other than advancing various justifications for why the appellant cannot be held liable for that wrong‑doing.

97.  But, this prosecution is not about holding the appellant liable for the accident or liable for the actions of PW2 or of Easytech.  The prosecution is based upon an assertion that the appellant imposed work duties on its staff but failed, in respect of their performance of those duties, to ensure their safety and health at work.  The location of the duties, the inspection by Easytech and the occurrence of the accident provide the context for the prosecution’s case but the charge is not proven by simply showing that an accident took place, PW1 was injured and PW1 was employed by the appellant.  Likewise, the innocence of the appellant is not established by showing that PW2 caused the accident and it, the appellant, is not accountable for his actions.  What DW2 has not addressed is whether, within the parameters of the duties imposed by the appellant on its staff in the context of this case, there was a failure by the appellant, in the two ways particularized, to “ensure the safety and health at work” of its employees.

98.  However, DW2 was forced to address this issue in cross‑examination by the prosecutor and the relevant excerpt from the transcript is quoted at paragraph 29 of this judgment.  It makes for illuminating reading.  DW2 described PW1 as being in a dilemma and that is what much of this case turns on; that is, placing PW1 in a position where he may encounter dangerous actions being taken but being placed in a dilemma as to how he should respond because no clear guidance has been given to him and his authority to act as not been clearly laid down to all concerned, and that includes the staff of Easytech.

99.  I find no merit in grounds 3A and 3B of the Perfected Grounds of Appeal.

100.  In ground 4 of the Perfected Grounds of Appeal criticism is made of the magistrate’s finding that the appellant had failed to discharge the onus under section 38 of OSHO to show that there was nothing practicable that it could do.  However, this complaint is based upon an assumption that the magistrate’s finding on what was meant by “monitoring” could not be sustained.  Given my view of the magistrate’s findings on this issue, this ground of appeal must be rejected.

101.  For the reasons I have given I can find no merit in any of the grounds of appeal.  However, this being a rehearing I must satisfy myself that on the evidence adduced at trial the guilt of the appellant is proven beyond reasonable doubt.

102.  In considering this question I take as my starting point that the appellant did appoint PW1, a qualified electrical engineer, to be responsible for overseeing the WR2 Works inspection.  This included authorizing him to isolate the Main Switch Board and hand over the site temporarily to the staff of Easytech.  However, his duties did not end there.  He was further tasked with the responsibility of monitoring the work of Easytech by arranging for either his staff or himself to be present in the Main Switch Room.

103.  The purpose of having someone present was so that person could observe what was taking place and take whatever action might be needed to safeguard the interests of the appellant.  They were not provided with any meaningful guidance on what to do in any set of circumstances or what not to do in response to particular danger that they perceived.  Their duties were vague and uncertain and everything was left to their discretion.  There was, for example, no guidance given to PW1 as to when he should intervene in the WR2 Works exercise and there is no doubt that halting the work and directing the contractor how to or how not to perform duties that are part of the WR2 Works exercise is a very serious matter.  It impacts upon the demarcation line between Easytech as contractor and the appellant as owner of the premises.

104.  I cannot believe for a second that the appellant did not wish PW1 to intervene should he have observed Easytech staff performing an act that was dangerous to its plant and equipment.  This would be “any act” not just acts in contravention of its “house rules”.  When PW1 referred to his safety threshold being crossed I do not believe he intended to limit it to being crossed only by a breach of house rules but rather by any act which he thought would endanger the interests of his employer.

105.  I have no doubt that is why he acted as he did in this case.  He recognized that PW2’s decision to reconnect the N-cable whilst ACB1 was energized was a procedural work judgment that PW2 was entitled to make.  Yet in his, PW1’s, judgment, it put at risk the interests of the appellant and so he decided to take action to neutralize that risk by isolating ACB1.  I have no doubt that such a course was taken by PW1 because it was a non-confrontational means of protecting his employer’s interests.  Of course, a non-confrontational means of resolving a problem is the preferred course whenever there is uncertainty about one’s authority to act or the lines of professional responsibility in a given set of circumstances are blurred.  Furthermore, no person can act decisively in giving directions to others unless those others recognize that he has the authority to do so.  Because of the uncertainty surrounding his authority to act he first tried other means, short of giving PW2 a direction, to encourage PW2 to desist from what he was doing until ACB1 had been isolated.  This uncertainty in respect of PW1’s authority prevented him from acting decisively and delayed him in isolating ACB1.  That delay was a direct contributing cause of the flashover.

106.  I believe PW5 has accurately characterized PW1’s role as a contract management role.  In reality that is what it was although the appellant may not have described it thus.  The appellant wanted the WR2 Works certification to proceed smoothly and uneventfully and PW1 was tasked with ensuring that was done.  What was lacking here was a clear understanding of all parties of the role and position of PW1 and his staff, the parameters of their responsibilities and their authority to act immediately and decisively, including giving directions relating to the WR2 Works procedures, whenever they observed conduct or circumstances that endangered the appellant’s interests.

Conclusion

107.  For the reasons set out in this judgment, I find no merit in any of the grounds of appeal.  After conducting a rehearing on the evidence placed before me, I am satisfied that the offence with which the appellant was charged is proven beyond reasonable doubt.  I dismiss the appeal.