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Internal Code: 1IIIB Work Health and Safety Law NSW - Problem Question Attached below is the decision of the Coroner’s Court regarding the death of Darren Laing, a technician employed by LongReach Telecommunications Limited (LongReach). The State Coroner found Mr Laing died when he fell from the Southern Cross Tower building in the Sydney CBD. The circumstances surrounding the fall are outlined in the decision. At the time of his death, Mr Laing was installing a telecommunications base station. The installation of the base station was funded by a scheme established by the Federal Government through the Federal Communications Corporation (FedComm). The incident has been the subject of an investigation by State Inspector Joan Spender who is attached to SafeWork NSW. You are a barrister who has been briefed by SafeWork NSW to act as the prosecutor in this matter. QUESTION – 800 - 900 Words (excluding footnotes) You are a barrister who has been briefed by SafeWork NSW to act as the prosecutor in this matter. LongReach has been prosecuted although, SafeWork NSW is contemplating on also prosecuting FedComm in relation to the incident. Advise it whether or not FedComm is liable under work health and safety legislation. Notes:
  • Read decision of court for facts
  • No bibliography. only use footnotes
  • 800 to 900 words excluding footnotes
  • You do not need to consider any of controller's duties, the duty of officers, and the regulations in this assignment.
  • Make reference to SafeWork NSW regulations
  • Make reference to Work Health and Safety Act 2011
  • Make Reference to Related cases such as Baiada Poultry Pty Limited v The Queen [2012] HCA and you must find and use other related cases of your own findings.
  • Ensure that the answer is in essay format and concludes by answering if FedComm is liable.
STATE CORONER’S COURT OF NEW SOUTH WALES Inquiry Inquest into the death of Darren LAING Hearing Date 19 June 2018 Date of Findings 1 August 2018 Place of Findings State Coroner’s Court – Glebe File Number: 2018/21908 Findings of: Magistrate Delaney, State Coroner Catchwords: CORONIAL LAW – Cause and manner of death – workplace death – fall from height – fall arrest device Representation: Mr P Murray, Counsel Assisting, instructed by the Crown Solicitor’s Office Ms L Abboud representing SafeWork NSW Mr N Brown QC representing LongReach Telecommunications Limited Ms G Fraser representing Australian Communications Corporation Findings: I find that Darren Laing died on 3 December 2017 in Sydney as a result of a fall from height of over 50 metres. IN THE STATE CORONER’S COURT OF NEW SOUTH WALES REASONS FOR DECISION
  1. This inquest concerns the death of Darren Laing.
  2. The role of a Coroner as set out in s 81 of the Coroner’s Act 2009 (NSW) is to make findings as to:
(a) the identity of the deceased; (b) the date and place of the deceased’s death; (c) the physical or medical cause of death; and (d) the manner or circumstances surrounding the death.
  1. It must be taken into account that inquests are not criminal investigations, nor are they proceedings to determine civil liability.
INTRODUCTION
  1. Mr Laing was born on 12 January 1990 in Liverpool, New South Wales. At the time of his death, he was married with one young daughter.
  1. After completing his secondary education, he undertook an electronics course at a TAFE College. He had a special interest in telecommunications. On 20 October 2017, he was employed by LongReach Telecommunications Limited (which I will refer to as 'LongReach') as a technician.
LONGREACH
  1. LongReach is an ASX-listed Australian telecommunications company and a carriage service provider within the meaning of the Telecommunications Act 1997 (Cth). The company was established in 2007 and provides mobile telecommunication services to over 5 million Australians, primarily in the eastern states.
  2. LongReach operates a large transmission network across Australia. It has over 10,000 base stations which it owns. It also has arrangements with other carriers allowing LongReach’s customers to utilise the base stations of those other carriers. A base station provides a wireless connection between mobile phones and the carriage service provider's mobile telecommunications network. Put simply, it is the antenna to which customers’ mobile telephones connect to the mobile telecommunications network. Given the ubiquity of mobile telephones, it is no surprise that base stations can be found in a variety of locations including on transmission towers and on the top of buildings.
  3. IMPROVED RECEPTION SCHEME
    1. In 2016, the Commonwealth Government announced plans to provide $500 million to
    upgrade Australia’s mobile telecommunications network and reduce the amount of ‘mobile black spots’. The project is called the “Improved Reception Scheme” (the ‘Scheme’). Telecommunications carriers, such as LongReach, are eligible for grants under the Scheme.
    1. The grants are distributed by a body corporate established by the Commonwealth
    Government called the Federal Communications Corporation (which I will refer to as 'FedComm'). FedComm was constituted under the Telecommunications (Connecting Australia) Act 2017 (Cth) ('the TCA Act'). Section 5 of the TCA Act lists the functions of FedComm to include: (a) investing in technology to improve telecommunications coverage in Australia; and (b) providing grants to carriage service providers for the installation of additional telecommunications base stations in Australia.
    1. In September 2017, LongReach obtained a $100 million grant to build new base
    stations. The grant was made available under a Base Station Facilities Agreement entered into between LongReach and FedComm. Clause 20 of the agreement provides:
    1. Safety
    LongReach must ensure that LongReach, and its employees and contractors: (a) comply with all work and safety obligations under work health and safety laws; and (b) comply with all safety policies of FedComm.
    1. One of the policies issued by FedComm was the Working from Heights Policy (the
    ‘Policy’). The Policy provides that all workers working from heights must wear a fall arrest device (commonly known as a safety harness). 12. The Scheme clearly had financial benefits for LongReach. Using the funds from its grant from FedComm, it employed 25 new technicians, one of them being Mr Laing. Each technician was given a one-week training course with LongReach which included information about the company, its operations and how to carry out work safely. INCIDENT ON 3 DECEMBER 2017
    1. On 3 December 2017, Mr Laing and his supervisor, Bruce Coleman, attended the
    Southern Cross Tower in the Sydney CBD. The pair had been assigned to install a base station on the roof of the Southern Cross Tower. The building is 50 meters in height.
    1. Mr Laing and Mr Coleman were due to start work at 9am. However, they arrived
    earlier, at 8.30am. In his oral evidence at this inquest, Mr Coleman said that the reason why he and Mr Laing arrived early was that the pair had a ‘busy day’ and that they had less than a week to finish installing the base station on top of Southern Cross Tower.
    1. When Mr Laing arrived at Southern Cross Tower, he put on his harness. The harnesses
    used by LongReach have a rope (called a lanyard) with a snap hook on the end which connects to an anchor or guardrail on the building. The harness is intended to prevent workers from falling. From the evidence, I am satisfied that Mr Laing connected the lanyard from his harness to the anchor on the building.
    1. At about 8.45am, Mr Laing, while working on the edge of the roof, lost his footing and fell down the side of this building. His harness momentarily stopped him from falling. However, a few seconds later, the lanyard snapped and Mr Laing fell to ground. He sustained fatal injuries as a result of the fall.
    HARNESS SAFETY
    1. Joan Spender, a state inspector at SafeWork NSW attended the scene of the incident
    and has been responsible for the investigation of the incident on behalf of SafeWork. Testing by SafeWork revealed that there was a failure in the lanyard which caused it to snap or, more precisely, tear.
    1. Expert evidence was given by Dr Nicholas Royce, an engineer. His evidence was that
    the failure of the lanyard was due to damaged webbing. That is, prior to the incident, Mr Laing's lanyard had started to fray. A photograph of a lanyard with damaged webbing is reproduced below: 19. In the opinion of Dr Royce, with which I agree, when Mr Laing fell, the weight placed on the lanyard caused it to break apart at the location of the damaged webbing. Dr Royce's evidence was the frayed lanyard would not have been able to withstand the load placed by Mr Laing's fall (which would have exceeded his weight).
    1. At the inquest, a memorandum dated 10 November 2017 and addressed to the
    Management Committee of LongReach was tendered. The notice stated that there were a few lanyards which appeared to have damaged webbing and could therefore fail in the event of a fall. The notice recommended replacing the lanyards. Director of Operations at LongReach, Michaela Reynolds gave evidence at the inquest and was examined as follows by counsel assisting: Q: What did management do when they saw the notice? A: Naturally we were concerned. I asked my team to obtain quotes to replace the faulty lanyards. Q: Until the new lanyards came, did you think to remove the faulty lanyards from use by workers? A: We didn't think we needed to. The Working From Heights Policy requires each worker to inspect the lanyard before using it. If they see any fray or damage to the lanyard, they are required to get another lanyard. Q: So you were relying on workers to check the lanyard before using them? A: Correct. That’s the policy. Q: Is the Working From Height Policy the policy issued by FedComm? A: Yes. Q: Did you ever share the information in the memorandum about the potentially defective lanyards with AusComm? A: No. We didn’t think it was necessary. It's an internal issue.
    1. I accept the evidence of Mr Coleman who said that workers rarely had time to inspect
    lanyards. In his words: ‘unless the lanyard has a massive tear in it, we just carry on.’ He also said that: ‘We have seen a policy on working from heights but we don’t consult it. We don’t have time.’ He also said, 'the policy is not enforced'.
    1. It is probable that Mr Laing did not inspect his lanyard on the morning of the incident
    as required by the Policy. Dr Royce suggests that if Mr Laing had checked his lanyard carefully, he would likely have noticed the damaged webbing. However, it may not have been immediately obvious. Mr Royce's opinion is based on his close inspection of the lanyard which revealed which fibres were 'freshly torn' and those which were old.
    1. Ms Reynold's evidence was that the topics of lanyard inspections and safety regarding working from height were covered in the safety induction of each new employee.
    2. Inspector Spender, in her evidence, said that in his inspection of the lanyards at
    LongReach's maintenance depot, there were about 15 defective lanyards that she came across. WEATHER CONDITIONS
    1. I accept the evidence presented at the inquest that at the time of the incident, there were
    strong winds which may have caused Mr Laing to lose his footing, causing him to fall. When asked about whether LongReach considers weather conditions and wind as part of its risk assessment in working from heights, Ms Reynold's response was that it was ‘not necessary because of the fall arrest devices.’ FINDINGS
    1. I find that Darren Laing died on 3 December 2017 in Sydney as a result of fall from a height of over 50 metres. I also find that the cause of the fall was a failure in the lanyard attached to Mr Laing's harness.
    Magistrate B Delaney Deputy State Coroner 1 August 2018

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