Greenham Tasmania Pty Ltd v Director of Public Prosecutions
[2021] TASSC 51
•4 November 2021
[2021] TASSC 51
COURT: SUPREME COURT OF TASMANIA
CITATION: Greenham Tasmania Pty Ltd v Director of Public Prosecutions
[2021] TASSC 51
PARTIES: GREENHAM TASMANIA PTY LTD
v
DIRECTOR OF PUBLIC PROSECUTIONS
FILE NO: LCA 627/2020
DELIVERED ON: 4 November 2021
DELIVERED AT: Hobart
HEARING DATE: 13 September 2021
JUDGMENT OF: Blow CJ
CATCHWORDS:
Industrial Law – Work health and safety – Duties and liabilities – Duties – Other matters and particular cases – Charge of failure to comply with health and safety duties exposing an individual to risk of death or serious injury – Elements of offence.
Work Health and Safety Act 2012 (Tas), s 32.
Aust Dig Industrial Law [3427]
Magistrates – Generally – Powers and duties – Reasons – Inadequate reasons for finding of breach of health and safety duty.
Pettit v Dunkley [1971] 1 NSWLR 376; Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.
Aust Dig Magistrates [1009]
REPRESENTATION:
Counsel:
Applicant: K E Read SC
Respondent: S Nicholson
Solicitors:
Applicant: Page Seager
Respondent: Director of Public Prosecutions
Judgment Number: [2021] TASSC 51
Number of paragraphs: 40
Serial No 51/2021
File No LCA 627/2020
GREENHAM TASMANIA PTY LTD
v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT BLOW CJ
4 November 2021
This is a motion for the review of a determination of a magistrate, Ms L Topfer, by which she found proven a charge that the applicant, Greenham Tasmania Pty Ltd, had contravened s 32 of the Work Health and Safety Act 2012. The charge arose out of an accident at an abattoir operated by the applicant in Smithton. On 6 April 2016 a worker at the abattoir named Ricky Thompson stepped underneath a rise and fall platform ("the RFP"), it descended on him, and he was crushed.
The learned magistrate delivered written reasons for her determination. In those reasons, at [3]-[5], she described the factual background, which was uncontroversial, as follows:
"3 The defendant operated an abattoir in Smithton which slaughtered and processed cattle. Mr Thompson had been employed by the defendant for many years in various roles. He had been employed initially as a floor boy and he had then progressed to work as a slaughterman for a period exceeding 20 years, but about six months before the incident, he had injured his right shoulder and so had been unable to continue slaughtering. He had worked as a stock worker out in the abattoir yard since that time. His son Dane Thompson also worked for the defendant as a floor boy on the slaughter floor. Dane's job was to clean up the floor throughout the day, and clean up 'all the bits and pieces at the end of the day'. He had been employed as a floor boy for about two months. Floor boys were the most junior workers, usually having no experience working in abattoirs, and slaughtermen were, apart from the Floor Supervisor, the highest level of employee working in the slaughter floor area of the abattoir.
4 Dane and Mr Thompson travelled to and from work together. Mr Thompson finished his work in the yard before Dane finished his day. Mr Thompson would go on to the slaughter floor and help Dane clean up so they could leave work sooner. He was helping Dane on the slaughter floor at the time of the incident. The slaughter floor was where the cattle would be stunned, turned out onto a cradle, hoisted onto a chain and moved along the processing line. Each person on the chain line would have different tasks to perform on each carcass as it went past their workstation. The initial or right hand side of the chain was known as the 'blood side', the chain turned a corner and the left hand side was known as 'the fat side'. There were three platforms on the fat side of the chain. This group of platforms was where workers would perform the flanking and legging on the beef carcasses. One of these platforms was the rise and fall platform. It was the only one that descended to the floor level and was the access and exit point for workers to work on the platforms. As the workers processed the cattle, offcuts from the carcasses, like hooves, lips and horns, would fall to the slaughter floor as it went around the chain. The floor boys were provided with buckets and brooms to carry out their functions, which would require them to throw carcass parts into bins, buckets or the screw, which took the waste away.
5 The incident occurred at the end of the working day. The last carcass on the chain was moving through the stands. Braiden Walters, a slaughterman, gave evidence. He was the last to exit the platforms. He had been top flanking, which involved skinning the cattle. He was on the RFP and pressed a foot pedal to make it descend. At the time of the RFP's descent Mr Thompson was cleaning out some carcass trimmings under the RFP and throwing them into the waste screw. A video exhibit of the incident was tendered which showed, although the view of the RFP was partially obscured, Mr Thompson going under the platform as it came down on top of him."
The applicant was charged with only one offence in relation to the accident. The charge alleged that the applicant "on or before 6 April 2016, being at all material times a person conducting a business or undertaking ('PCBU') for the purposes of the Work Health and Safety Act … and being a PCBU that owed health and safety duties to workers engaged by it, and in particular to Ricky John Thompson … and being a PCBU with management and control of a workplace namely an abattoir and slaughter floor … failed to ensure insofar as was reasonably practicable the provision of safe systems of work, safe plant and structures and the provision of a work environment without risks to health and safety …".
The complaint set out particulars of the alleged breaches of duties. The particulars that the learned magistrate found proven were as follows:
"(j) The defendant so far as reasonably practicable failed to:
i In relation to safe systems of work and the provision of a work environment without risks to health and safety:
1 Mark a clearly identifying [sic] exclusion zone below the RFP.
2 Implement isolation procedures for the RFP when workers were to be underneath the RFP to clean.
3 Create a written Standard Operating Procedure for the RFP that included a procedure for when workers were cleaning around and under the RFP, and to exclude workers from being under the RFP and outside the exclusion zone whilst the RFP was operating.
ii In relation to safe plant and structures:
1 …
2 …
3 Install signage warning of the crush risk and of the danger of being below the RFP.
4 …".
Section 32 of the Act, under which the applicant was charged, relevantly provides as follows:
"32 Failure to comply with health and safety duty Category 2
A person commits a Category 2 offence if –
(a)the person has a health and safety duty; and
(b)the person fails to comply with that duty; and
(c)the failure exposes an individual to a risk of death or serious injury or illness.
Penalty: In the case of –
(a) …; or
(b) …; or
(c) an offence committed by a body corporate, a fine not exceeding $1 500 000."
It is common ground that the applicant had health and safety duties by virtue of s 19 of the Act. That section contains the following relevant subsections:
"19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of –
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person –
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable –
(a) the provision and maintenance of a work environment without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
The charge against the respondent alleged the contravention of only s 19(3)(a), (b) and (c). The particulars relating to marking an exclusion zone, implementing isolation procedures, and creating an operating procedure related to s 19(3)(a) and (b). The particular relating to warning signage related to s 19(3)(c).
Section 18 of the Act defines the term "reasonably practicable", which is used in s 19(2). It reads as follows:
"18 What is reasonably practicable in ensuring health and safety
In this Act –
reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including –
(a)the likelihood of the hazard or the risk concerned occurring; and
(b)the degree of harm that might result from the hazard or the risk; and
(c)what the person concerned knows, or ought reasonably to know, about –
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
National model work health and safety laws were developed in 2011. The Act was part of a package of legislation enacted in Tasmania to give effect to those model laws. Counsel informed me that there has not yet been a decision of any superior court in Australia about a charge of failing to comply with a health and safety duty under the new legislation.
The applicant accepts that it had health and safety duties within the meaning of s 32(a). As to s 32(b), it denies that it failed to comply with that duty, and contends that it took all steps to discharge that duty that were reasonably practicable. As to s 32(c), it accepts that the complainant in the court below was not required to prove that any omission on its part caused or materially contributed to the injury suffered by Mr Thompson. It is common ground that the complainant was required to prove beyond reasonable doubt that one or more omissions resulted in Mr Thompson being exposed to a risk of death or serious injury. Amongst other things, the applicant contends that the evidence was insufficient to establish beyond reasonable doubt that any particularised safety precaution that it did not take would have made any difference to the level of risk of death or serious injury.
In the proceedings before the learned magistrate, evidence was given about the installation of the RFP and a risk assessment undertaken at the time of its installation in 2014. That evidence was uncontroversial. It was summarised by the learned magistrate as follows:
"20 RFPs are common to the abattoir industry, and an RFP had been installed in 2011 at the workplace as a safety measure to eliminate the slip and trip hazards of the stairs and static platform on the flanking station. The RFP was replaced in 2014 with another RFP – the RFP involved in the incident.
21 The defendant had engaged an external expert consultant, Mr Dean Mottram. Mr Mottram had worked with the defendant since 2003 and was significantly experienced in WHS matters. Mr Mottram had prepared a Health Safety and Environmental Management System (HSEMS) of approximately 600 pages for the defendant, which was prepared in accordance with Australian Standard 4801 Occupational Health and Safety Management Systems.
22 The document covered the safety systems of the workplace and risk assessments and procedures relating to all aspects of the workplace and its operations.
23 In September 2014 Mr Mottram, Travis Turnbull, the Plant Manager and Bruce Ellis, the HR Officer and Workcover person carried out a risk assessment of the RFP. They identified there was a crushing hazard for the RFP. Mr Mottram then prepared a Rise and Fall Platforms Risk Assessment and considered the likelihood of the hazard causing injury/loss, the potential consequences of the incident occurring, and the further action required to mitigate the loss. The document rated the risk as significant ; Senior Management attention needed to reduce the risk rating down to low risk, was stated on the document to be, 'Clean up underneath any rise and fall platform is to only occur when breaks in shifts and after shifts are completed. Supervisors to ensure workers follow these instructions at all times. Rise and fall platforms fitted with warning sound when descending'.
Further action required was, 'Staff to be advised and trained. Supervisors to be always on alert and to stop production immediately if a worker enters these areas during production'.
25 The document assessed the probability of the hazard causing loss occurring as 'possible – might occur at some time, but that the consequences of it occurring were major – causing – extensive injuries, loss of production capability, off-site release with no long- term detrimental effects, major financial loss'.
26 Mr Mottram gave evidence that when the Risk Assessment in 2014 was carried out they considered and excluded other safety measures as follows:
(a)Emergency stops were considered, but they would not serve any purpose because RFPs are operated manually anyway, and he said, 'Where are you going to put an emergency stop button in that area?'
(b)Isolation rails were not appropriate because of the risk of trapping and workers needed to get under the RFP for cleaning.
(c)Painted lines would quickly get covered by blood.
27 Mr Mottram took into account what were industry standards and determined at the time that the two best risk controls were the siren and the system of not going under the RFP until production was finished.
28 There was a loud distinctive siren installed on the RFP, the purpose of which was to give a warning as it descends. Mr Mottram stated:
'The platform descends fairly slow so it gives people – when I looked at it I thought people would have plenty of time to get out of the way once the siren goes'.
29 He said they did not need further controls 'I felt the alarm and that ... we've got a supervisor watching the floor all the time as well.'
30 He said that no person is required to go under the rise and fall platform, it's not a thoroughfare and he 'couldn't envisage anyone going under there during production'."
The learned magistrate made a finding that the RFP's siren was working at the time of the accident, and was loud and distinctive. In her reasons at [39] she said that the evidence "did not establish there was anything in writing provided to the employees prior to the incident which contained a direction specifically in respect to cleaning under the RFP". At [44] she found that, prior to the incident, no signs had been installed warning of the risk of crush, and no markings had been painted on the floor under the RFP. Those findings are unchallenged.
At [51] the learned magistrate made findings that Mr Thompson had 22 years' experience working in the abattoir, that he was aware of its dangers, that the risk of crush was obvious, and that he should have known not to enter under the RFP when it was in use.
At [55] and [56], her Honour rejected allegations that the applicant had breached its duty by failing to install an emergency stop button beneath or beside the RFP, and by failing to install a pressure-sensitive mat that would isolate the RFP from moving up and down should a worker step on that mat. Those allegations were set out in the particulars of the complaint, but I have not reproduced them above. Her Honour found that at the time of the accident the operator of the RFP activated its "Up" pedal, and that an emergency stop button would not have been activated any more quickly. She concluded that the installation of a pressure-sensitive mat was not reasonably practicable, given that such mats were not commercially available and were not known to have been installed in any other abattoir.
The essence of her Honour's reasons for finding the charge proven is apparent from her reasons at [57]-[63]. Those paragraphs read as follows:
"57However the question is whether it was reasonably practicable for the defendant to have implemented the other safety measures pleaded to avert the risk of crush that resulted in the serious injury to Mr Thompson?
58Greenhams carried out the hazard identification risk assessment in 2014 which identified the crush risk of the RFP. The HIRA [Hazard Identification Risk Assessment] report was authorised by the external safety consultant Mr Mottram. It identified the potential frequency of the risk as possible with consequence being major. The risk controls to be used were that:
a) clean-up staff were only able to be underneath the platform when it was not in use and there was to be a supervisor watching the floor all the time; and
b) a distinctive high pitched alarm was to be installed on the RFP and activated as a warning every time the platform descended.
59Mr Mottram's belief that he could not envisage anyone going under the RFP during production was in my view misplaced. This was a crowded, noisy and busy work environment. It was necessary for the defendant to take into account disobedience, lack of attention and inadvertence of its employees including by the worker who was injured. The defendant could and should have taken further steps to ensure that workers did not go under the platform when it was operational.
60If an injury occurred it was going to be very serious and so this required the employer to be vigilant and proactive in discharging its duty toward its employees. There was no clearly identifying exclusion zone below the RFP and I accept the evidence of Mr Walters [the RFP operator] that whilst production was happening 'if you needed to go under the rise and fall stand we just got to use the broom and used the broom and grab out whatever is under there'. There was also no signage warning of the risk prior to the incident. There was no written procedure as to cleaning under the RFP in the employee induction training manual.
61While Mr Thompson went under the RFP while the alarm was sounding any or all of these further steps may have served as further sufficient reminder to him not to go under the RFP.
62Finally, there was no evidence as to where the supervisor Mr Stubbs was at the time of the incident. From my observations of the video there seemed to be no concern as to the way the worker was cleaning around the RFP until it was too late.
63While a consideration of reasonable practicability should not be made with the benefit of hindsight, as Porter J said in Kent v Gunns [[2009] TASSC 30, 18 Tas R 454] there is no general rule or test for measuring whether the employer's obligation have been met. It involves a value judgment and is to be judged on the basis of what was known at the relevant time. Accordingly in all of the circumstances, I am satisfied that the failure of the defendant to take the measures listed in (j)(i)1-3 and (j)(ii)(3) of the particulars was a substantial or significant cause of the risk of crush by the RFP that resulted in the injury to the worker Ricky Thompson and that it was reasonably practicable for the defendant to have taken the steps as particularised."
I note that her Honour's observations at [62] as to lack of supervision and the apparent absence of the supervisor do not directly relate to any breach of duty asserted in the complaint.
Installation procedures for the RFP
One of the four bases on which the learned magistrate found the charge proven was that the applicant had failed to implement "isolation procedures for the RFP when workers were to be underneath the RFP to clean".
The term "isolation procedures" is a vague one. It could refer to the erection of a physical barrier to prevent or restrict the movement of workers wishing to get underneath the RFP. It could also refer to a procedure for isolating the RFP electrically, whereby a worker wishing to clean underneath it could switch off its power supply, preventing the operator from lowering it. At the hearing in the court below, remarkably little was said as to what isolation procedures the applicant allegedly had a duty to implement. In his opening speech the prosecutor, Mr Nicholson, said, "As alleged in the particulars, we say that despite that there was no standard operating or implementation of isolation procedures for the RFP ...", but did not identify any particular isolation procedures.
The prosecutor did not call any independent expert witnesses. He called the applicant's consultant, Mr Mottram, and seven of the applicant's employees or former employees. The evidence as to isolation procedures was limited to the following:
· Isolation procedures were first mentioned during the evidence-in-chief of Mr Bruce Ellis. He had been employed by the applicant with responsibilities for personnel, first aid, workers compensation and safety. He was asked what "isolation procedure" meant to him. He replied, "The procedure is there so as you can isolate a piece of equipment for – so as you can work safely around it without injury." He said that there was no isolation procedure in place in relation to the RFP for when workers would be cleaning in the slaughter floor area.
· Mr Mottram gave evidence that installing rails as a barrier around the area under the RFP was considered at the time of the risk assessment in 2014, but rejected because they would be a trapping hazard. He gave evidence that the applicant received an "improvement notice" from an inspector from WorkSafe Tasmania after the accident. That notice included a direction in these terms: "The highest order of controls must be implemented and include but not be limited to isolation and engineering ... to eliminate or minimise so far as is reasonably practicable the risk of a person being injured as the result of work being carried out from, or by the use of the rise/fall platform." The response to that notice involved getting engineers to design and install a pressure mat system so that anyone stepping under the RFP would cause its electricity supply to be disconnected.
· The applicant's plant manager, Mr Cox, gave evidence that there was no emergency stop switch on the RFP. The prosecutor then asked him whether there was "any other form of isolation on the machine after the 6 April incident". Mr Cox replied, "Isolation?" He went on to give evidence about the installation of the pressure-sensitive mat, and to say that a sign warning of a crush injury was installed, that an area of the floor was painted, and that an emergency "Up" button was installed.
Both counsel provided the learned magistrate with written closing submissions. Counsel for the applicant said the following at [69]:
"69The isolation procedure has not been explained at all by prosecution as to what it involved nor has any expert given evidence as to what it would do or how it would work. It is not for the defence to generate multiple possible meanings to an ambiguous particular and attempt to defend each of those permutations. The allegation should be dismissed on that basis alone. But in any event, in so far as isolation relates to the physical prevention of people being under the RFP it should be rejected on the basis of the evidence of Mottram. If it related to the electrical isolation of the RFP then this is dealt with in the particulars relating to the pressure sensitive mat below." [Footnotes omitted.]
There had been no evidence as to any means of isolating the RFP electrically otherwise than by the installation of the pressure-sensitive mat.
In his written closing submissions, the prosecutor dealt with the isolation procedures issue in one sentence. He said, "There were no isolation procedures for the RFP when workers were under the RFP to clean: particular 1(j)(i)(2)." Neither counsel mentioned the issue in their oral closing submissions.
In her reasons, the learned magistrate acknowledged Mr Mottram's evidence as to the inappropriateness of isolation rails at [26], which I have quoted above. In making an adverse finding in relation to isolation procedures, she did not say whether she accepted or rejected Mr Mottram's evidence as to the inappropriateness of rails, nor whether she regarded the allegation in the particulars as referring to physical isolation or electrical isolation or both, nor did she identify any isolation procedure that she considered to be reasonably practicable. It is not possible to discern from her reasons the basis upon which she found that the applicant had failed, so far as reasonably practicable, to implement isolation procedures for the RFP when workers were to be underneath it to clean.
A failure to give adequate reasons is an error of law: Pettit v Dunkley [1971] 1 NSWLR 376. The learned magistrate was obliged to give reasons containing enough detail for the parties to understand the reasoning which led to each conclusion that she reached, and to enable an appellate court to examine the decision and determine an appeal: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, per Crawford CJ at [64]. The learned magistrate erred in law by failing to give adequate reasons for finding the charge proven on the basis of a failure to implement isolation procedures for the RFP. That finding cannot stand.
Addressing the correct question
Having regard to the relevant legislative provisions and the wording of the complaint, the learned magistrate was required to consider whether she was satisfied beyond a reasonable doubt of the following matters:
· That the applicant, as a person conducting a business or undertaking, had a duty to ensure, so far as was reasonably practicable, (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work: ss 19(3) and 32(a).
· That the applicant failed to comply with one or more of those duties in one or more of the respects alleged in the particulars of the complaint: s 32(b).
· That the applicant's failure or failures exposed Mr Thompson to a risk of serious injury: s 32(c).
The first of those matters was not disputed. It was conceded that the applicant was a person carrying on a business or undertaking, and that it had the relevant duties by virtue of s 19(3)(a), (b) and (c) of the Act.
The applicant contends that the learned magistrate fell into error at [57] when she said, "… the question is whether it was reasonably practicable for the defendant to have implemented the other safety measures pleaded to avert the risk of crush …". Counsel for the applicant submitted that her Honour erred by addressing the s 32(b) question, but not the s 32(c) question, namely whether any failure or failures exposed Mr Thompson to a risk of serious injury.
It is true that her Honour needed to address two questions, the s 32(b) question and the s 32(c) question. However a decision-maker does not make a material error of law if, having posed the wrong question, he or she then deals with the question as though answering the right one: Conway v Repatriation Commission (1988) 9 AAR 397 per French J (as he then was), with whom Lockhart J agreed, at 408-409.
Her Honour addressed the s 32(b) question at [59] and [60], finding that the applicant "could and should have taken further steps to ensure that workers did not go under the platform when it was operational", and detailing appropriate steps in relation to a clearly identified exclusion zone, signage, and a written procedure. She then addressed the s 32(c) question at [61], making a finding that "any or all of these further steps may have served as further sufficient reminder to him [Mr Thompson] not to go under the RFP", and in the last sentence of [63], making a finding that the measures listed in the particulars were "a substantial or significant cause of the risk of crush by the RFP that resulted in the injury to the worker".
As to the s 32(c) issue, the question for the learned magistrate was whether any failure or failures by the applicant to comply with its duties was a "substantial or significant cause" of the risk of serious injury, as distinct from the sole cause of such a risk: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37, 93 NSWLR 338 at [127]; Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316, 213 A Crim R 340 at [104]-[105]; Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [375] (12). The learned magistrate's finding, at [63], that the particularised measures were "a substantial or significant cause of the risk of crush" was consistent with those authorities.
Marked exclusion zone, signage and operating procedures
Adequacy of reasons
The notice to review asserts that the learned magistrate failed to give adequate reasons for finding the charge proven on the basis of the applicant not having established a clearly identified exclusion zone, not having erected warning signage, and not having established a written procedure for cleaning under the RFP in the employee induction training manual. I disagree. In her reasons her Honour adverted the issue of reasonable practicability, the likelihood that any injury by the RFP would be very serious, the need to take into account disobedience, lack of attention and inadvertence, and the likelihood that any or all of the various steps might have served as a further sufficient reminder for a worker not to go under the RFP. She did not expressly state that each of the three precautions would have been simple and inexpensive to implement, but that was so obvious that there was no need to make the point.
Onus of proof
The notice to review asserts that the learned magistrate's finding, at [61], that any of the further steps "may" have served as a further sufficient reminder involved an error as to the onus of proof. I disagree. Section 32(c) required her Honour to consider whether any failure to comply with a duty exposed an individual to a risk. Addressing that question requires a fact-finder to consider whether taking a particular precaution might reduce or eliminate a risk, not whether taking a particular precaution would reduce or eliminate a risk as a matter of certainty.
Insufficient evidence?
As I have said, the applicant contends that the evidence was insufficient to establish beyond reasonable doubt that taking any of the particularised safety precautions would have made any difference to the level of risk of death or serious injury. As Crawford CJ said in Phillips v Arnold (above) at [46], "On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did."
On the day in question there was a risk that Mr Thompson would go under the RFP and be crushed by it. It was reasonably open to the learned magistrate to find that the substantial or significant causes of that risk included the failure of the applicant to mark an exclusion zone. That could have been done by painting a boundary line on the floor, or by painting the area under the RFP yellow or some other distinctive colour. It was reasonably open to her to find that another substantial or significant cause of the risk was the failure of the applicant to erect a warning sign. Minds might differ about the efficacy of directing compliance with a written procedure in an employee induction training manual, but I consider it was reasonably open to the learned magistrate to find that that too was a substantial or significant cause of the risk. The establishment of such a procedure is of course likely to be more efficacious if there is proper and thorough supervision to ensure compliance with the required procedure.
It is true that no witness gave opinion evidence to the effect that taking any of the particularised precautions would or might have made a difference to the level of risk. However such opinion evidence was not necessary. It was reasonably open to the learned magistrate, after receiving thorough and detailed evidence as to the layout of the premises, the equipment in place, and the systems of work, to draw her own inferences as to which precautions might or might not have made a substantial or significant difference to the risk of death or serious injury. It cannot be said that any of the inferences she drew in relation to the particularised precautions were inferences that a magistrate, as a reasonable person, could not have drawn.
Rejection of Mr Mottram's evidence?
Ground 3 of the notice to review relates to Mr Mottram's evidence that he could not envisage anyone going under the RFP during production. At [59], the learned magistrate said that, in her view, that belief was "misplaced". Ground 3 asserts that there was no evidence, or insufficient evidence, capable of supporting her Honour's "rejection" of Mr Mottram's evidence. I disagree. There was evidence that workers needed to remove body parts from slaughtered animals that landed on the floor under the RFP whilst production was continuing. Her Honour found that it was necessary for the applicant to take into account "disobedience, lack of attention and inadvertence of its employees". Having regard to all the evidence as to the layout of the abattoir and the system of work, her Honour's finding was reasonably open.
The supervisor
Ground 4 relates to the learned magistrate's observation, at [62], that there was no evidence as to where the supervisor was at the time of the incident. That ground asserts that her Honour erred in that "she impermissibly drew an inference adverse to the applicant based upon the absence of evidence of the location of the Slaughter Floor Supervisor at the time of the incident". As I have said, the absence of the supervisor has no direct relevance to any of the pleaded breaches of duty. Counsel for the applicant neither addressed nor abandoned this ground. No submission was made as to the learned magistrate drawing any particular inference in relation to the absence of the supervisor. If his absence had any relevance, it can only be relevant to the s 32(c) issue. A risk of death or serious injury is likely to be stronger when there is no supervision, and not so strong when there is supervision. I am not persuaded that the learned magistrate erred in any way in relation to the absence of the supervisor.
The Hazard Identification Risk Assessment
Ground 5 of the notice to review reads as follows:
"The learned Magistrate erred in that, when holding that:
athere was no evidence of the location of the Slaughter Floor supervisor; and / or
b there was no written standard operating procedure;
her honour (at paragraph [58]) directed herself to assess those matters against the applicant's Hazard Identification and Risk Assessment (HIRA) rather than assessing whether the evidence adduced by the prosecution proved the elements of the offence beyond reasonable doubt."
That ground was neither addressed nor abandoned by counsel for the applicant. It is misconceived. In her reasons at [58], which I have set out above, the learned magistrate referred to the "HIRA" only in summarising some background facts. She did not direct herself in relation to that document as asserted in ground 5. That ground must fail.
Conclusion
The motion to review must succeed, but only to the extent that the applicant's failure to implement "isolation procedures for the RFP" may not be relied upon as a basis for conviction. I will hear counsel as to the appropriate final orders. Subject to any submissions of counsel, I am minded to remit the matter to the learned magistrate with a direction that she is to continue to hear and determine the complaint on the basis that the charge has been proven only in respect of particulars (j)(i)(1), (j)(i)(3), and (j)(ii)(3).
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