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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Eban Norman Earthmovers Ltd (DC, 16/06/06)

OSH Tracker

Defendant:
Eban Norman Earthmovers
An earthmoving company has been convicted for not suspending work after its client repeatedly entered a deep, unshored excavation, which eventually collapsed, killing him. 
Eban Norman Earthmovers Ltd was convicted under s15 of the HSE Act and fined $12,500 for failing to ensure the actions or inactions of its employee did not harm another person ( Auckland DC, Aug 31 2006). 
In July 2004 the defendant company hired out a digger and operator to help a client locate a pneumatic boring drill that had been lost underground. 
During digging the defendant’s director twice saw the client enter the unshored trench, and told him not to. He later left the site, however, without having discussed the size or shape of the lost tool, or whether it would be necessary to enter the excavation to retrieve it. 
In a phone call nearly two hours later the digger operator said the client was still entering the hole, and was told to instruct him not to. An hour later, however, the client again climbed into the excavation, now more than four metres deep, and it collapsed, burying him. 
Defence counsel contended the charges must fail because, at the time of the incident, the operator was the deceased’s loaned employee under the terms of s3F of the HSE Act. However, the judge found that the company retained control over its employee and his method of work, and that it had failed to comply with its own safety rules, which required a job safety check-sheet to be filled out, and all excavations of more than 1.5m to be shored. 
The company’s manual also provided for work to stop if life was at risk, but the director had not ordered this, despite being told of the client’s actions. 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Engulfment/drowning
Harm:
Death
Penalty Amount:
$12500.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 101

Judgment Text

JUDGMENT OF JUDGE A E GASKELL 
Judge A E Gaskell
[1]
Brae Eagle offered to fix a leaking water pipe in the driveway of his brother's property. He his pneumatic boring drill underground on the first day. He spent the next two weeks looking for it. He dug holes by hand, then hired a digger, and then a bigger digger, all to no avail. On 29 July 2004, Brae Eagle involved Eban Norman Earthmovers Limited in the search. Within 4 hours, one wall of the excavation collapsed burying Brae Eagle in wet clay. He did not survive. 
[2]
ENE faces one charge of failing to take all practicable steps to ensure that Brae Eagle was not harmed by the actions of its employee, the digger operator. There are two issues. The first is whether ENE was the employer of the digger operator for the purposes of the Health and safety in Employment Act 1992. If ENE were not the employer, that would be fatal to the charge. If it were the employer, the second issue is whether ENE discharged its statutory obligation to ensure that Brae Eagle was not harmed by the actions of its employee. 
Facts: 
[3]
Brae Eagle operated a drilling business. When his brother had a leaking pipe on the driveway of his property at 80A Atkin Avenue, Mission Bay, Brae Eagle offered to replace it for the cost of the materials. The job was meant to take about a day. In the course of the first day, Brae Eagle lost his pneumatic boring tool somewhere under the ground. Over the next week, he dug holes at various places along the drive trying to find the tool. He hired a small digger, and later a 3.5 tonne digger, without success. During the two week search, Brae Eagle became “extremely focused on getting his tool back” so he could get back to paid work. 
[4]
Duane Eagle was very concerned about his brother's safety as the excavation looked dangerous and there had been a lot of rain. He discussed his concerns with his brother, but Brae Eagle told him not to worry - he knew what he was doing. 
[5]
Duane Eagle said that his brother had asked a number of people for advice. His cousin, Wayne McKay, told Brae Eagle to shore the hole before he continued trying to find his lost tool. It seems he had timber on site to use for that purpose. 
[6]
On 28 July 2004, Brae Eagle, wanting a digger that could dig deeper than the previous diggers, contacted ENE after seeing its advertisement in the Yellow Pages. He spoke to Eban Norman, a director of the defendant. Mr Eagle wanted to hire a 5-tonne excavator for 2 to 3 hours, and he wanted it to come right away. As ENE's smaller excavator was engaged elsewhere, Eban Norman offered to bring an 11-tonne excavator to begin work on the site the next morning. Mr Norman said Brae Eagle “wanted to hire the machine and operator to dig at his directions to retrieve his drill”
[7]
On 29 July, Eban Norman brought the excavator to the site on a transporter at about 8 a.m. Chris Wilson, the digger operator, was there with Brae Eagle. The operator had been working for ENE for approximately fourteen months at the time, had been through the Site Safe programme, understood the safety risks involved in operating diggers, and was competent to operate them. 
[8]
The evidence about the depth of the hole at the start of ENE's involvement varied. When Duane Eagle spoke to Mr Lasenby, the Health and Safety Inspector, in September 2004, he said that the hole was about 2m deep. In evidence he said that he thought it was a lot deeper than 2m, as he was approximately 2 metres tall and the hole would have been well over his head. 
[9]
Chris Wilson, when interviewed on the day of the accident, described the hole as being about 4m deep. In evidence he said that it was no more than about 2m deep. 
[10]
Eban Norman, when he was interviewed on 6 August 2004, a week after the incident, said that the hole was 3 to 4m deep before Chris Wilson began working on it. 
[11]
ENE had an accident report prepared for it by Summit Systems Limited. Eban Norman signed it as correct on 22 October 2004 and sent it to Mr Lasenby. In the report, the excavation was described as a “two to three metre hole tapered and sloped down to a depth of approximately three to four metres”
[12]
In Court, Eban Norman said the hole was no more than 2m deep. 
[13]
It is hard to be precise about the exact depth of the hole when ENE first became involved as no one measured it, but I find that it was at least 2m deep. 
[14]
When Mr Norman and the operator arrived at the site, they saw that Brae Eagle had a pump removing water from the excavated hole. To set up the pump, he would have had to go into the hole. After a discussion about what was wanted from ENE, Eban Norman had Brae Eagle sign a job authorisation form. 
[15]
During the hour that Mr Norman remained on site, he saw Brae Eagle in the hole at least twice, once to pump water out and again to attach a chain to a tree root that had to be pulled from the hole. Eban Norman told him not to get into the hole. Mr Eagle replied that he knew what he was doing. He went down the hole again. 
[16]
The operator said that Eban Norman told him that when he stopped digging, he was to place the digger bucket against one bank of the hole, to support it. Mr Norman gave him that instruction when they first saw Mr Eagle go down into the hole that morning. The operator did as instructed. It is implicit in that direction, that Mr Norman recognised that there was a possibility of collapse and a need for the cut faces of the hole to be stabilised. 
[17]
Despite seeing him in the hole twice during the time he was there, Mr Norman said he did not believe it would be necessary for Mr Eagle to go down the hole again. For that reason, he did not discuss with him what safety precautions should be taken in the event that he decided to go down into the hole again. Nor did he discuss with him the size or shape of the lost tool, or whether he would need to get into the hole to search for or retrieve it. 
[18]
After Mr Norman left the site at about 9am, Mr Eagle told the digger driver where he wanted him to dig, and when to start and stop digging. The operator dug out the clay spoil in such a way as to make a ramp on the side of the hole nearer the excavator. He said that whenever Mr Eagle went to enter the hole, he told him not to. Mr Eagle ignored that advice. He continued going down into the hole, initially using the ramp to do so. He dug around with a shovel trying to locate the lost drill. 
[19]
At one point, he used a compressor in case he would be able to hear the lost drill being shaken by the compressed air. When that was not successful, he had the operator dig the hole deeper. As the depth of the hole increased, the ramp disappeared and the sides became more or less vertical. 
[20]
When Mr Norman phoned him at about 10.40 am, the operator told him that the job would take longer than anticipated and that Mr Eagle was continuing to get into the excavation. Mr Norman did not ask how deep the hole was. He simply instructed him to tell Mr Eagle not to go into the hole. 
[21]
At 11.40 am, Mr Eagle asked the operator to dig back towards the road. The operator got out of the digger cab to check whether it was safe to move the digger backwards. He left the digger bucket hanging in the hole, but not supporting anything, as he intended to move the digger as soon as he established that the way was clear. When he came back, he saw Brae Eagle in the hole again, digging around with his shovel. The hole at this time was more that 4.5m deep. An 11 tonne digger can dig to a depth of 5.6m. When it is positioned with a bulldozing blade on the same side as the boom, as here, the digging depth is reduced by up to a metre. 
[22]
The operator said that he did not see how Mr Eagle got into the hole. There was no evidence that there was a ladder or rope or lengthy plank that could be, or was, used. There were two small services pipes at the very top of the hole, but the evidence was that, even if it had been otherwise safe to use them, neither of them could have supported a man's weight. Even assuming it might have possible for Brae Eagle to jump down into a hole of at least 4.5 metres (about the same height as two rooms), it is clear he could not have got out by doing so. It is not necessary to decide whether he used the lowered digger boom and bucket to get into the hole, or intended to use them to get out. 
[23]
While the operator stood on the side of the hole watching Mr Eagle, one face of the hole collapsed burying Mr Eagle to the top of his head. After calling for emergency services, the operator reported the accident to Mr Norman, who said he was on his way and who arrived within half an hour. 
[24]
A Health and Safety Inspector, Mr Lasenby, took photos of the excavation and measured the hole from the surface to the top of Mr Eagle's head as 4.2metres. The opening was approximately 1.8 by 2 metres. 
[25]
He interviewed the operator that day, and Eban Norman 2 weeks later. He subsequently received an accident report prepared on behalf of ENE by Summit Systems Ltd. Eban Norman signed the report as correct on 22 October 2004. 
Elements of the Offence 
[26]
To prove a charge laid under ss 15 and 50(1)(a) of the Health and Safety in Employment Act 1992, the prosecution must establish beyond reasonable doubt that: 
(i)
the defendant was the employer of Chris Wilson, the digger operator; 
(ii)
the operator was at work at the time of the accident (not disputed); 
(iii)
an action of the operator exposed Brae Eagle to the risk of harm; 
(iv)
there were practicable steps that the defendant could have taken to ensure that the operator's actions did not expose Mr Eagle to harm; and 
(v)
the defendant failed to take all those steps. 
[27]
As it is a strict liability charge, the prosecution is not required to prove intention. A defence of total absence of fault is available: Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
[28]
It is not necessary to set out the scheme of the Act or the proper approach to be taken to it as the law about that is settled and is as stated in Central Cranes v Department of Labour [1997] ERN 520 (CA)
Was ENE the Employer of the Digger Operator? 
[29]
The prosecution has to prove beyond reasonable doubt that ENE was the employer of the operator. The defence contends that the operator was not the employee of the defendant, but the “loaned employee” of Brae Eagle under s 3F of the Act. 
[30]
The pre-requisites for the Act to apply are set out in s 3F(1) and for the purposes of this case are that — 
(i)
The defendant, ENE, placed the digger operator at Brae Eagle's disposal to do work for him, and 
(ii)
There was no contractual relationship between ENE and Brae Eagle regarding the work to be performed by the operator. 
[31]
There is no dispute that the first limb of the test is satisfied. Ms Davenport submits that the second limb, which is conjunctive, is not met. 
[32]
If both parts of the test in s 3F(1) were satisfied, the effect would be that, while the digger operator was working for Brae Eagle, he would be treated as his employee, instead of the employee of ENE: s 3F(2). If ENE was not the operator's employer, the Act would not apply to it and the charge would fail. 
[33]
The defence case is that, although there was a contractual relationship between ENE and Brae Eagle, it did not specify the nature of the work to be done. Ms Davenport submitted that it was not a contract for services, but a contract of service as all ENE had to do was supply an excavator and operator at an agreed time and place, to dig as directed by Brae Eagle. If that were correct, then the operator would be an employee loaned to Brae Eagle in terms of s 3F of the Act, and Mr Eagle would be his employer. 
[34]
The decision as to whether, for the purposes of s 15 of the Act, the operator remained the employee of ENE, or became the employee of Brae Eagle, requires a factual analysis and will turn upon the Court's view of the relationship between the parties considered as a whole. 
Employment Relationship- Factual Considerations: 
[35]
Brae Eagle contacted ENE to arrange for a digger and an operator to be on his site the next morning to excavate an existing hole to look for his lost drill. They agreed on prices for the cost of transporting the digger to and from the site, and an hourly rate of $90 for the hire of the digger and operator. Mr Eagle anticipated that the job would not take long. 
[36]
The next day, Brae Eagle signed a contract on which the work to be undertaken was described as “excavate driveway at 80A Atkin Ave, Mission Bay, to look for underground drill” and “backfill hole as directed by Brae Eagle”. In the hour that Eban Norman spent on site, he identified potential hazards associated with the location and with the work to be done. He warned both Brae Eagle and the digger operator not to get into the hole. 
[37]
When he talked to the operator by phone some two hours later and discovered that Brae Eagle was continuing to enter the hole, he said he would return to the site to assess the situation. 
[38]
While the contract may be treated as specifying the work to be done by ENE, the issue of whether the contract was one “regarding the work to be done” by the operator (that is, a contract for services), or whether it was a contract of service necessitates a fuller inquiry. 
Employment Relationship - Legal Considerations: 
[39]
Ronald Young J, dealing with a similar issue in Nelson Dive Centre v Department of Labour (unreported, High Court, Nelson, AP 1701, 4 March 2001, at para.15) held that, as the definitions of “employee”, “contractor” and “principal” in s 2 of the Act did not assist, the Court must look to the general law for guidance. He noted that the Courts currently take a “multiple factor” approach to the issue of whether there is an employer/employee relationship between two parties, that is, whether there is a contract for services, or a contract of service. 
[40]
There is no universal and conclusive test to decide, in the case of a borrowed employee, who is the employer: Mersey Docks Harbour Board v Coggins & Griffths [1947] A.C. 1. Their Lordships said that it is necessary to keep in mind “who is paymaster; who can dismiss, how long the alternative service lasts; what machinery is employed”. They held that the most important issue is which of the two employers, the general or the temporary, has the right to control the employee's method of working. 
Control over Operator: 
[41]
The question of control is an important factor in the analysis. 
(i)
Pay — Brae Eagle paid ENE for hiring the digger, but it was ENE that paid the operator. 
(ii)
Work Hours — ENE had control over the hours when the operator would start and finish work. It also had the right to dismiss him. 
(iii)
Place of Work —ENE had control over which site the operator would work on. ENE could decide when the operator would stop work on one site and move to another. 
(iv)
Method of work — ENE had the right to control the method of work that the operator used. ENE exercised that right in directing the operator to support the sides of the excavation when the digger was not in use and when Brae Eagle was in the hole. While Mr Eagle could say where and how deep he wanted the hole dug, that is different from his having any control over the method of doing the work. The decision as to how that was done rested with the operator, who always retained the right to refuse to do what Brae Eagle asked him, if he thought it unwise or unsafe. 
(v)
Machinery — It is implicit in the operator's using ENE's machinery, that ENE was entrusting him to use it in a safe manner. That tends to be consistent with ENE's retaining control over the operator. 
[42]
Considering the circumstances of the relationship between the parties, I find that ENE retained control over the employee and the method of work. That is consistent with Mr Norman's remaining on site for the first hour of what was to be a short job, his checking on progress later in the morning, and his indication, once he heard his employee's concerns, that he would return to the site to assess the situation. 
Intention of Parties: 
[43]
From the discussions between Brae Eagle and Eban Norman and what was done, I conclude that there is nothing to indicate that the parties intended for Brae Eagle to become, even on a temporary basis, the employer of the operator. ENE had employed him for 14 months. ENE told him where he was to work and when. ENE paid him. The fact that this was a short term contract tends to indicate that ENE did not intend to enter a relationship with Brae Eagle where it would relinquish its control over the digger driver. 
Organisation: 
[44]
The fact that Eban Norman went to the site at all and, having done so, stayed there for an hour is consistent with his maintaining his interest in and control over the particular task and the employee. Eban Norman directed him how he should deal with potential hazards associated with the location. If this had simply been a contract of service, then the operator would have been on site with the machine and worked at the direction of Brae Eagle without any input from his permanent employer. 
[45]
The work to be done by the operator did not include either his getting into the hole or his enabling anybody else to do so. Mr Eagle paid no heed to the warnings of the operator or of Mr Norman about not going into the hole. While anyone's getting into the hole was not a necessary part of the work that ENE agreed to do, the nature of the task was such that it had to include the possibility that Brae Eagle would do that, either to search for the drill, or to retrieve it. The likelihood of that happening was increased by his demonstrated willingness to do that, despite being warned against it. 
[46]
On an analysis of the factual situation, I am satisfied that the parties entered a contract for services and that ENE remained the employer of the operator throughout. He was not an employee loaned to Brae Eagle under s 3F. The Act therefore applies to ENE as an employer. 
Other elements of the charge: 
[47]
Mr Wilson was at work at the time of the accident. The defence has accepted that. 
[48]
The prosecution must prove that an action of Chris Wilson exposed Brae Eagle to harm. The prosecution relied on his excavating the hole to a greater depth. There is no dispute that such an action exposed Mr Eagle to harm and I am satisfied that that element of the charge is proved. 
Practicable Steps - Legal Considerations: 
[49]
The fourth element of the charge requires proof that there were practicable steps that the defendant could have taken to ensure that the actions of Mr Wilson did not expose Brae Eagle to harm. The fifth element requires proof that the defendant failed to take all those practicable steps. It is convenient to deal with both elements together. 
[50]
The term “all practicable steps” is defined in s 2A of the Act as: 
“1.
… in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to — 
(a)
The nature and severity of the harm that may be suffered if the result is not achieved; and 
(b)
The current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and 
(c)
The current state of knowledge about harm of that nature; and 
(d)
The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each; and 
(e)
The availability and cost of each of those means. 
2.
To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about. ”
[51]
The section refers to the “result to be achieved.” In the present case, the desired result would be minimizing the risk of harm to Mr Eagle. 
[52]
The Courts have considered the meaning of “all practicable steps” in a number of cases. In Buchanans Foundry Limited v Department of Labour [1996] 3 NZLR 112Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , the Court held that deciding what was reasonably practicable required a balancing exercise. The Court cited with approval the statement in Edwards v National Coal Board [1949] 1 KB 704Has Cases Citing which are not known to be negative[Green]  at 712, that: 
‘Reasonably practicable’ is a narrower term than ‘physically possible’, and it seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed on the other; and if it be shown that there is a gross disproportion between them — the risk being insignificant in relation to the sacrifice, the defendant discharges the onus on them. Moreover this complication falls to be made by the owner at a point in time and anterior to the accident. ”
[53]
In Marshall v Gotham K Limited [1954] All ER 937 at 942 Lord Reid said “ … if a precaution is practicable it must be taken unless on the whole circumstances that would be unreasonable. And if men's lives may be at stake it should not lightly be held that to take a practicable step is unreasonable”. This was cited with approval by Baragwanath J in Department of Labour v Solid Timber Building System Limited (unreported, HC Rotorua, LP 464/44/2003, 7 November 2003)
[54]
The Act requires an employer to take all reasonably practicable steps to guard against potential hazards rather than to provide a certain, complete protection against all potential hazards. Whether or not a person has taken all practicable steps is not a matter to be judged with the benefit of hindsight: Buchanans Foundry, at 116. It must be judged on the basis of what was known, or ought reasonably to have been known at the relevant time. 
[55]
The question of what is practicable is a matter of fact and degree in each particular case: Central Cranes Limited v Department of Labour [1997] ERNZ 520 (CA)Has Cases Citing which are not known to be negative[Green]  at 528. 
[56]
Counsel made submissions as to whether, in deciding what was practicable, the Court should use a subjective or objective approach. From the wording of s 2A(2), it appears that the Court must use both approaches. An employer is required to take all practicable steps only in respect of circumstances that he knew about (a subjective assessment), or ought reasonably to have known about (an objective assessment) at the time he was called on to make a decision. 
[57]
The Act is clear that there may be more than one party in a particular situation that has obligations or duties under the Act in respect of safety in a work place. The fact that one party has a responsibility or duty does not in any way diminish the responsibility or duty of another: Central Cranes (CA) at 527. On the present facts, Mr Eagle had a duty to take all practicable steps to ensure his own safety. That did not exonerate or diminish ENE's responsibility. 
Practicable Steps — Factual Considerations: 
[58]
The prosecution's case is that the defendant should have taken the following practicable steps: 
“1.
Establishment of work methods. 
Upon arriving at the work site, the defendant should have established the work methods to be used for the retrieval of the boring tool. If the defendant had assumed that it would not be necessary for anyone to enter the hole to retrieve the tool, once Mr Eagle was observed to have entered the hole for the first time, it should have been apparent that this was at least a possibility. Establishment of work methods could then have taken place at that time. 
2.
Compliance with its own Health and Safety Rules. 
The defendant had failed to comply with the following of its own Health and Safety Rules: 
Failing to establish and insist upon the safe methods and safe practices at all times and ensure employee participation at all times; 
Before starting any new project, to meet and discuss safety issues; 
Before starting any new job, full consideration will be given to all matters of safety associated with the work to be undertaken. 
A job safety check sheet would be used for this purpose; 
Every employee must report a hazardous situation as soon as practicable and may need to cease work activity when that work is considered to be dangerous or likely to cause harm or damage. 
3.
Suspension of operations until such time as a safe method of work had been established. 
Once it became apparent that Mr Eagle would enter the hole, work should have been suspended until such time as a safe method of work had been established. This could have included ‘shoring’ of the sides of the excavation, which is a commonly used method. 
If Mr Eagle ignored advice not to enter the hole, then work should have been suspended indefinitely. ”
[59]
The informant's expert, Mr Cosman expressed the second step differently. He said that the defendant, having identified the likelihood that someone would need to enter the excavation to retrieve the drill, should have agreed with Mr Eagle how the job was to be done and who was responsible for providing safe access to and support for the excavation. While Mr Cosman looked beyond the defendant's Health and Safety Manual in forming his opinion, he believed that the process he suggested was reflected in it. 
[60]
The third step was effectively a default step, one to be taken if the first two steps proved ineffectual. The informant's case is that if ENE had taken these steps, it would have discharged its duties and obligations under the Act, regardless of the outcome on the site. 
[61]
The defence submissions 
(a)
that ENE did not have to take the suggested steps, as Brae Eagle was the employer of the operator, under a contract of service, and 
(b)
that ENE had taken the first two steps in regard to the work which it was engaged to do, that is, providing machinery and an operator for hire under a contract of service, 
must fail, as I have already found that ENE entered a contract for services with Brae Eagle, and therefore that the operator remained the employee of the defendant, rather than being temporarily the employee of Mr Eagle. 
[62]
There seems to be no dispute that the first two steps were practicable. The only issue is whether ENE performed each step in an adequate manner. 
[63]
The expert evidence is relevant to this assessment. Schedule 4 of the High Court Rules states that the overriding duty of an expert witness is to assist the Court impartially on relevant matters within the expert's area of expertise. The defence expert, Mr Carson, seemed not to understand that duty, nor the need to restrict his opinion evidence to his area of expertise. He presented more as an advocate for the party that called him, than as an expert. His evidence was less helpful than it might have been. On the other hand, Mr Cosman demonstrated a clear understanding of his role as an expert witness. Although there was a potential for conflict between his giving expert evidence for the Informant and his role as the Department of Labour's Chief Advisor, Health and Safety, he remained objective and impartial throughout. His evidence was careful, methodical and logical and therefore was of considerable assistance to the Court in assessing what steps were available to the defendant and whether they were practicable. 
Establishment of Work Methods (Step 1): 
[64]
Did the defendant establish proper work methods? The evidence from Mr Norman was that he identified the hazards of the site and assessed the risks. This was done informally, without using a written checklist. That was acceptable in the circumstances. Mr Norman recognised that the work may present a hazard to pedestrians as it was close to a footpath, and noted that there was a kindergarten in the street. The hole was an obvious hazard, but he did not think that anyone would be getting into the hole as part of the work. Back-filling the hole was another potential hazard. That assessment was fine as far as it went, but it should have gone further. To establish proper work methods, Mr Norman first had to find out exactly what the job entailed. That required him to ask questions, rather than to make assumptions. For example, it was crucial for him to ask if it would be necessary for anyone to enter the excavation. Asking about the dimensions of the lost drill may have been relevant to that inquiry. If at first he did not think anyone would go into the hole and did not factor in that eventuality, once he had seen Mr Eagle enter the excavation twice, then there was no excuse for his not asking that fundamental question. He ought to have identified the likelihood that someone would enter the hole at some point to search for or retrieve the drill. While Mr Norman went part way to establishing proper work methods, he did not complete the inquiry and therefore fell short of properly executing the first practicable step. 
Compliance with own Safety Rules (Step 2): 
[65]
Did the defendant comply with its own health and safety rules? ENE had its own comprehensive safety system, including a Health and Safety Manual, that provided for the defendant, before starting any new job, to look for, consider, and discuss all matters of safety associated with the work to be undertaken. There was a job safety check-sheet in the Manual, to enable a complete assessment to be made. Mr Norman did not use this check sheet. His identification of risks was deficient, as set out above, in regard to Step 1. In making an incomplete risk assessment, the defendant failed to carry out the instructions in its own Manual. 
[66]
The Manual provides guidelines and mechanisms for managing hazards. For example, if a client's safety rules were in conflict with the defendant's, then the employee was required to refer the matter to his manager. Similarly, specific safety rules require employees to report hazardous situations or imminent danger to their supervisor. While the operator did report his concerns to Eban Norman, he could have done so earlier. There is an explicit recognition in the Manual that work may have to stop if it is dangerous or if there is an immediate danger to life or health. 
[67]
The defendant's safety system deals with excavations, and includes passages from the Approved Code of Practice for Safety in Excavations, such as the requirement that excavations of a depth of 1.5m or more are recognised as particularly hazardous and must be shored. 

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