Puleio v Olam Orchards Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MILDURA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S CI 2016 03931

SANDRA PULEIO	Plaintiff
v
OLAM ORCHARDS AUSTRALIA PTY LTD	Defendant

---

JUDGE:	ZAMMIT J
WHERE HELD:	Mildura
DATE OF HEARING:	30 October 2017 to 3 November 2017, 8 to 13 November 2017, 16 November 2017
DATE OF JUDGMENT:	21 March 2018
CASE MAY BE CITED AS:	Puleio v Olam Orchards Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 109

---

NEGLIGENCE – Duty of care – Nervous shock – Agricultural accident – Death caused by alleged negligence of employer – Nervous shock suffered by wife of deceased after being told of husband’s death – Deceased intoxicated at time of accident – Whether evidence of intoxication admissible – Whether duty of care owed to plaintiff – Scope of duty owed to deceased – Whether employer breached duty – No evidence that employer breached duty – Wyong Shire Council v Shirt (1980) 146 CLR 40 applied – Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; Homsi v Homsi [2016] VSC 354; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 discussed – Transport Accident Act 1986 s 93; Road Safety Act 1986 ss 56–7.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr M Seelig	Ryan Legal
For the Defendant	Mr R Middleton QC with Mr J Plunkett	Transport Accident Commission

TABLE OF CONTENTS

Introduction.......................................................................................................................... 1
Factual background............................................................................................................. 2
The plaintiff............................................................................................................. 2
The deceased and his accident............................................................................. 3
Ownership and operation of Annuello............................................................... 5

The claim............................................................................................................................... 6
The evidence........................................................................................................................ 8
For the plaintiff:...................................................................................................... 8
For the defendant:.................................................................................................. 9
Relevance of the Saunders report........................................................................ 9
Failure to call certain witnesses......................................................................... 10

Duty of care........................................................................................................................ 13
What duty was owed to the plaintiff?............................................................... 13
What was the scope of the duty owed to the deceased?................................ 16

Breaches alleged by the plaintiff..................................................................................... 20
Admissibility of the toxicology report........................................................................... 21
Applicable legislation......................................................................................... 23
Presumption of regularity.................................................................................. 26
Plaintiff’s submissions......................................................................................... 27
Defendant’s submissions.................................................................................... 28
Analysis................................................................................................................. 30
Significance of toxicology report....................................................................... 31

Was there a failure to prevent alcohol consumption on the premises?.................... 32
Was there a failure to provide adequate training?....................................................... 37
Was there a failure to supervise and provide proper guidelines?............................ 39
Was there a failure with regards to fatigue and permitting the deceased to remain on the premises overnight?.............................................................................................. 48
Conclusion as to breach.................................................................................................... 50
Overall conclusion............................................................................................................ 51

HER HONOUR:

Introduction

The plaintiff, Mrs Sandra Puleio, is the widow of Francesco Puleio (‘the deceased’). The deceased was an employee of the defendant, Olam Orchards Australia Pty Ltd, and died on 29 August 2013 at the ‘Annuello’ orchard in Wemen, Western Victoria, when a slasher, which was attached to a Kubota tractor, rolled onto him (‘the accident’). The deceased had been using the tractor and slasher attachment to mow grass on a sloped headland. The critical issue in this case is the deceased’s level of intoxication at the time of the accident.

The plaintiff claims her husband’s death was caused by the negligence of the defendant and that, as a ‘secondary victim’, it has breached its duty of care towards her, causing her to suffer psychiatric injury, including ‘nervous shock’, post-traumatic stress disorder and depression. The plaintiff alleges the defendant failed to prevent the deceased from consuming alcohol on the premise after hours, failed to adequately train and supervise him, and failed to manage his fatigue levels. One or several of these failings, the plaintiff contends, caused the deceased’s death.

The defendant denies it was negligent. It says the deceased’s death was caused by his own carelessness, which took the form of consuming alcohol and failing to apply the handbrake when the tractor was on a slope, for which it cannot be held responsible. It relies on a toxicology report, authorised by Ms Voula Staikos, in which it is opined that the deceased’s blood alcohol content (‘BAC’) was 0.18g/100ml (‘.18’) at the time of, or shortly after, the accident.[1] (The plaintiff’s objections as to the admissibility of this report, which I consider later in these reasons, are without merit).
[1]Exhibit D10.

It is not disputed that the defendant, as his employer, owed the deceased a duty of care. Nor is it disputed that it owed a corresponding duty to the plaintiff as a ‘secondary victim’. What is disputed, however, is whether the defendant breached that duty, whether that breach caused the deceased’s death and, in turn, the plaintiff’s injury, and whether the harm suffered by each was a reasonably foreseeable consequence of the defendant’s acts or omissions.

For the reasons that follow, I have concluded that the deceased’s intoxication and failure to apply the handbrake cannot be attributed to any negligence on the part of the defendant, from which it follows that the plaintiff’s case must fail. The defendant did not breach its duty to take reasonable care to avoid risk to the deceased. It did not, for example, fail to provide safe machinery, safe premises, a safe system of work, adequate safeguards and supervision, and so on. It did not breach its duty to take reasonable care to avoid causing the plaintiff a reasonably foreseeable and recognisable psychiatric injury.

In short, the plaintiff’s claim is not made out on the evidence, and so must be dismissed.

Factual background
The plaintiff

The plaintiff was born on 17 December 1961 and is currently aged 56. She married the deceased in May 1982, at which time they moved to Robinvale, in north western Victoria. The plaintiff had two children with the deceased: Roslyn Meadows and Michael Puleio. She has six grandchildren.

The plaintiff worked as a hairdresser for approximately one year until the birth of her first child. In the late 1990s, she commenced employment with the Swan Hill Council as a home care worker, remaining in the role for approximately two years. She then worked at the Riverside Hostel for the Aged in Robinvale as a personal carer for approximately 14 years.

The plaintiff also undertook other work in the form of cleaning, cooking and washing for employees and sub-contractors of an irrigation company. In addition to paid work, she regularly cared for her grandchildren, one of whom is autistic.

The deceased and his accident

The deceased was born on 20 June 1958. His main area of employment and expertise throughout his life was agriculture and irrigation.

In January 2013, the deceased commenced employment with the defendant at Annuello, his role being that of an ‘orchard technician leading hand’ (a role he continued to hold at the time of his death). The deceased’s duties at Annuello were largely focused on irrigation but he was also involved in other tasks.

The Annuello orchard consists of a large number of almond trees planted in long rows which are accessible by roads.

On 28 August 2013, the deceased worked a full day at Annuello, returning home at around 4:30pm. The plaintiff, who was at home, gave the deceased a saucepan full of tripe for his dinner. At approximately 5:30pm, the deceased left home and took the tripe with him, planning to heat it up and eat it at Annuello.[2]
[2]Transcript of Proceedings, Puleio v Olam Orchards Pty Ltd (Supreme Court of Victoria, Zammit J, 30 October 2017 - 3 November 2017, 8 - 13 November 2017, 16 November 2017) (‘T’)94.15–94.17.

At approximately 6:00pm, the deceased arrived at Annuello, and over the next two hours spoke to several persons. The deceased was not observed, however, by anybody after 8:00pm that evening. He was last seen in the area referred to as the ‘smoko room’, which contained kitchen facilities, and an eating area for workers. He was next seen at 7:55am the following morning when Mr Paul Coutts, the assistant manager at Annuello, found his body at the rear of the slasher.[3]
[3]Exhibit P9 (statements of 29 August 2013 and 10 September 2013).

It appears that on the evening of 28 August 2013 the deceased set up a swag on the floor of the locker room at Annuello and remained overnight.[4] The deceased reportedly did this from time to time, usually when his wife was working night shift, although on this particular night she was at home. The plaintiff was told of her husband’s death by a family member late in the morning of 29 August 2013. She was at work when she received the news.
[4]Exhibit P22, 1. This document refers to the deceased staying [sleeping] in a swag in a bunker. See also the evidence of Mr Keir: T553.28–553.30.

As I have said, prior to his death, the deceased had been driving a Kubota tractor with a slasher attached to it.[5] The tractor had a ‘pull up’ handbrake inside the cabin at the base of the driver’s seat. It also had several prominently displayed warning signs, situated throughout the cabin, one of which read: ‘Before dismounting, lower the implement to the ground, set the parking brake, stop the engine and remove the key.’[6] The slasher was affixed to the rear of the tractor by way of a ‘power take off’ (‘PTO’) mechanism. The slasher’s hydraulics were operable from inside the cabin of the tractor.[7]
[5]Exhibit P8.
[6]Exhibit D14.
[7]T142.14–142.15.

There was no direct evidence before the Court as to what occurred from approximately 8:00pm on 28 August 2013 until the next morning when the deceased’s body was found by Mr Coutts. However, it can readily be inferred that the deceased had been slashing grass and weeds along the fence line in an area known as Block D1 of the orchard. He drove the tractor too close to a ring lock wire fence, which became entangled with the slasher. He stopped the tractor at the top of a slight rise, disengaged the gearbox and PTO shaft, and disembarked from the tractor. He did not apply the handbrake when he exited the tractor.[8]
[8]Exhibit D9; T8.12; T711.08–711.09.

It is likely the deceased moved behind the tractor and probably positioned himself in front of the slasher so as to inspect its undercarriage for wire. The tractor then rolled 23 metres down the slope, veering to the left, before coming to a halt. The deceased was dragged under the slasher and suffered fatal injuries.

As I have said, the first person to discover the deceased was Mr Coutts, who arrived at work at or around 6:20am on the morning of 29 August 2013. He went to the ‘north hub’, to the ‘smoko room’, made coffee and spoke to some workers, with the balance of the workers assembling around 7:30am.[9] At some point, he was approached by Mr Michel Galbes, who reported that his tractor and slasher were missing (it had been Mr Galbes’ job for the past few days to mow the headland).[10] Mr Coutts then went looking for the missing tractor and located it in Block D1 of the orchard. He switched off the engine and observed that the PTO was disengaged and the headlights were on.[11] He did not observe whether the handbrake was applied.[12] He found the deceased shortly thereafter.
[9]T376.03–376.07.
[10]T377.29–377.31.
[11]T370.03–370.05; T370.19–370.20.
[12]T379.05–379.07.

At approximately 9:05am, an ambulance arrived and a paramedic inspected the deceased, pronouncing him dead. At approximately 9:15am, the police arrived, taking photographs as part of their investigation. Those photographs reveal that the handbrake was not applied and the slasher was raised.[13]

Ownership and operation of Annuello

[13]Exhibit D9.

The Annuello property was established in 2007 by Timbercorp.

From 2007 to 2009 Select Harvest managed the almond plantations for Timbercorp. In 2009, the defendant purchased Annuello and a number of other properties from Timbercorp, after which time Select Harvest continued to manage the property up until July 2012.

At that time, the defendant took over management of the property and became responsible for, among other things, employing staff. It was then that Mr Trevor Smith was brought in as manager and Mr Coutts as assistant manager.

The deceased commenced working for the defendant in January 2013.[14]
[14]Exhibit D17.

The claim

The plaintiff’s second further amended statement of claim dated 31 October 2017 alleges over 50 particulars of negligence and breach of Part 3.5 of the Occupational Health and Safety Regulations 2007. The plaintiff did not press the breach of statutory duty allegations at trial.[15]
[15]T667.15–667.18.

The defendant’s second further amended defence dated 30 October 2017 denies negligence and pleads in summary as follows:

(a) that the incident was caused by the deceased’s failure to apply the handbrake to the tractor, which failure was contrary to instructions and training given to and the experience of the deceased, and which negated any duty owed by the defendant to the deceased;

(b) at or about the time of the incident the deceased had a blood alcohol reading of .18 or more and as such the defendant owed no duty to the deceased in the circumstances;

(c) the deceased was operating the tractor and slasher:

(i) without the knowledge, consent or permission of the defendant;

(ii) as a frolic of his own and outside the scope of his employment;

(iii) contrary to the defendant’s work system;

(iv)with a blood alcohol reading of .18 or more such as to negate any duty owed by the defendant to the deceased;

(d) the deceased was consuming alcohol:

(i) outside the hours of his employment;

(ii) by reason of his own free will;

(iii) beyond the control of his employment;

(iv)in excessive quantities;

(v) in full knowledge of the consequences of doing so

such as to negate any duty owed by the defendant to the deceased.[16]

[16]Second further amended defence dated 30 October 2017 [8]–[12].

The vagueness and prolixity of the plaintiff’s pleadings made it impossible to know with any clarity what allegations were being put and what issues would be in dispute at trial. Nevertheless, at trial, the particular allegations of breach of duty were distilled into the following five propositions. The defendant, it was alleged, breached its duty to take reasonable care in the following ways:

(vi)by failing to prevent the consumption of alcohol on the premises during and after work hours (if the toxicology report is admissible);

(vii) by failing to provide the deceased with adequate training in the use of tractors, slashers, and how to remove wire from slashers;

(viii) by failing to adequately supervise the deceased and provide proper guidelines;

(ix) by allowing the deceased to remain on the premises overnight; and

(x) by failing to have a fatigue management policy and allowing the deceased to work while fatigued.[17]

[17]These five propositions were helpfully set out in the defendant’s submissions on liability dated 15 November 2017 (defendant’s written submissions) at [24].

I have combined (iv) and (v), since I consider that the evidence in support of each proposition—and, indeed, the legal significance of each allegation—was largely the same.
The evidence

The following witnesses gave viva voce evidence in this trial.

For the plaintiff:
·Mrs Sandra Puleio, the plaintiff, the deceased’s wife;
·Mr Dominic Michael Puleio, the deceased’s son, currently employed by the defendant as the equipment and maintenance manager;
·Mr Trevor Smith, farm manager, employed by the defendant from 1 July 2012 to 13 August 2013;[18]
[18]T273.08–273.19.
·Ms Roslyn Meadows, the deceased’s daughter;
·Mr Scott Meadows, the deceased’s son-in-law;
·Mr Kenneth Miller, irrigation worker, employed by the defendant from approximately August 2012 to December 2013;[19]
[19]T318.17–318.18; T318.28–318.30.
·Mr Paul Coutts, development supervisor, employed by the defendant as assistant manager from July 2012 to August 2013 and from August 2013 to January 2014 as acting manager at Annuello;[20]
[20]T357.19–357.22; T361.12–361.15; T364.03–364.06.
·Mr Michel Galbes, tractor driver and assistant OHS officer, employed by the defendant from 1 July 2012 to approximately September 2013;[21]
[21]T392.22–392.23; T393.16–393.17; T393.25–393.28.
·Dr Nalinda Amarasinghe, the plaintiff’s general practitioner;
·Dr Luigi Lucca, the plaintiff’s general practitioner;
·Ms Leanne Adcock, director of clinical services, Robinvale District Health Service;
·Dr Joseph Slesenger, occupational physician.

For the defendant:
·Mr Peter Keir, contract cleaner, currently employed by the defendant;[22]
·Detective Senior Constable Matthew Pascoe;
·Ms Voula Staikos, senior forensic toxicologist, Victorian Institute of Forensic Medicine;
·Associate Professor Morris Odell, senior forensic physician, Victorian Institute of Forensic Medicine.

[22]T533.13–533.15.

For completeness, I note that a view of the Annuello property was conducted on 31 October 2017, which included an inspection of the site of the accident, the ‘north hub’, the ‘smoko room’ and of machinery similar to that in use at the time.

Relevance of the Saunders report

It is necessary to say something about Exhibit P22, which was referred to as the ‘Saunders report’ at trial. It was tendered by the plaintiff.

Dated 6 September 2013, the Saunders Report is an ‘Incident Investigation Report’ prepared by Mr Garry Saunders, the defendant’s environmental, health and safety manager at the time. Mr Saunders prepared the report with the assistance of the safety advisor, Mr Ray Curran. Mr Saunders was not called by either party and Mr Curran was not available to give evidence because of ill health.

The Saunders report states that it was prepared with the aim of uncovering the root cause of the deceased’s accident. It was not tendered as an expert opinion pursuant to s 79 of the Evidence Act2008 and the plaintiff did not submit that Mr Saunders held any particular expertise. Nor did the defendant object to the Saunders report being tendered or make any request pursuant to s 167 of the Evidence Act 2008 that its contents be tested in evidence.

As it stands, the Saunders report is evidence before the Court and there is no issue as to proof of its contents.

The plaintiff relies on the Saunders report to show that the defendant failed to adequately supervise the deceased.[23] The soundness of its conclusions are difficult to determine. At best, it is demonstrative of the defendant’s appropriate response to the accident, at which time it examined its own processes and obtained statements from relevant personnel. Ultimately, I do not consider that the Saunders report carries much weight, preferring the viva voce evidence of the defendant’s employees on the issue of supervision.[24]
[23]T724.08–724.10.
[24]I note that the plaintiff did not challenge the attached interview statements signed by Ms Cattanach and Messrs Coutts and Curran dated 31 August 2013. I note also that Mr Coutts’ oral evidence was consistent with his signed interview statement.

The Saunders report is problematic because it is inconsistent with the evidence of Ms Cattanach and Mr Coutts. In the investigation summary, the author states that Mr Coutts noticed that the handbrake was not engaged when he looked inside the tractor, yet in his statement to police Mr Coutts says he had no recollection whether the handbrake was on.[25] The report is also equivocal as to whether Ms Cattanach saw the deceased at 7:00pm on 28 August 2013. In the timeline of events, the author states that Ms Cattanach saw the deceased at that time in the ‘smoko room’, yet in her interview statement dated 30 August 2013 (attached to the report) she makes no reference to having seen the deceased. Moreover, as the toxicology analysis had not yet been completed, the Saunders report makes no reference to the fact that the deceased was intoxicated at the time of the accident.
[25]Exhibit P9.

For completeness, I note that the plaintiff was critical of the defendant for failing to call Mr Saunders, submitting that this Court can infer that his evidence would have been detrimental on the issue of adequate supervision. I do not consider Mr Saunders’ evidence would have damaged the defendant’s case.

Failure to call certain witnesses

The defendant did not call Mr Robert Wheatley, its manager of orchard operations, and Ms Rhonda Cattanach, its irrigation controller.

The plaintiff submits that this Court can infer that the evidence of these witnesses would not have advanced the defendant’s case. This sort of inference, commonly referred to as a Jones v Dunkel inference, arises where a party inexplicably fails to give evidence or call a witness and this leads ‘rationally to an inference that the evidence would not help that party’s case’.[26]
[26]Jones v Dunkel (1959) 101 CLR 298, 321 (Windeyer J, Kitto and Menzies JJ agreeing).

The availability of a Jones v Dunkel inference in the circumstances is predicated upon satisfaction of the following conditions:

(xi) the absent witness will be called by one party rather than another;

(xii) the evidence will elucidate a particular matter; and

(xiii) the absence is unexplained.

The first and second conditions are contestable, while the third is a matter of evidence. A court may find it unnecessary to draw a Jones v Dunkel inference where the case is proved on other evidence or the absent witness’s evidence was relatively unimportant.

The plaintiff submits that Mr Wheatley could have given evidence about the following:

(a) a conversation he had with the deceased at Carwarp car park in May 2013;

(b) the OHS policies and procedures at Annuello as at 29 August 2013;

(c) the defendant’s knowledge as to the extent of overtime being worked by the deceased and other matters going to the allegation that it did not properly manage his fatigue levels (with reference to its subsequently implemented fatigue management policy of 20 October 2013);[27] and

(d) the instructions in respect of and in response to the ‘toolbox meeting’ on 13 August 2013[28] together with the procedures for training of workers and implementation of safe machinery practices in 2013.[29]

The defendant does not contest (a) and, in relation to (b), the relevant OHS policies have been discovered and tendered into evidence. In relation to (c) and (d), several witnesses gave uncontroverted evidence about toolbox meetings, while Exhibit P6 sets out the deceased’s hours of employment in the relevant period.

[27]Exhibit P17.

[28]Exhibit P12.

[29]Written outline of plaintiff’s closing submissions dated 16 November 2017 (plaintiff’s written submissions).

Although the defendant did not explain why Mr Wheatley was not called, I am not persuaded that his evidence would have been of any real significance in this case, especially given that two of the deceased’s managers and several co-workers were called and gave evidence.

Ms Cattanach was also not called to give evidence. No explanation was given by either party as to Ms Cattanach’s availability to give evidence. Ms Cattanach’s signed interview statement gives an account of the events on 29 August 2013 from 7:00am to approximately 9:30am.[30] As I have said, her statement makes no mention of her having spoken to the deceased at 7:00pm on 28 August 2013, whereas the Saunders report states that Ms Cattanach ‘spoke with [the deceased] back at the hub office area about the day. [He] was cooking his tea (dinner) ready to eat and then he was going to have a sleep in his swag in the locker room.’[31]
[30]Attachment 2 to Exhibit P22.
[31]Exhibit P22, 2.

The plaintiff submitted that the defendant failed to call Ms Cattanach and that the Court can infer that her evidence would not have advanced the defendant’s case. It was submitted, in particular, that Ms Cattanach could have given evidence as to the work usually undertaken by the deceased; work other than irrigation work undertaken by the deceased (including tractor and slasher work); the hours usually worked by the deceased and the nature of that work; and the state of fatigue and sobriety of the deceased at 7:00pm on 28 August 2013.

The plaintiff submitted that the Court can infer from the defendant’s failure to call Ms Cattanach that the deceased was given ‘carte blanche’ to do whatever he wanted to improve the property and that the deceased’s injury was therefore reasonably foreseeable.[32]
[32]T744.28–745.02.

I cannot speculate about what Ms Cattanach may have said. There is nothing in the Saunders report to suggest she was informed by the deceased that he intended to operate the tractor and slasher the following morning. This is consistent with the evidence of Messrs Coutts and Keir. Neither man observed the deceased to be fatigued or under the influence of alcohol.

I do not consider Ms Cattanach’s evidence would have damaged the defendant’s case. It is for the plaintiff to prove there was a lack of supervision and that it was causative of the deceased’s injury. While Ms Cattanach is the defendant’s employee, there is no property in witnesses; the plaintiff could have called her.

Duty of care
What duty was owed to the plaintiff?

It was common ground at trial that the defendant owed the plaintiff a duty to take reasonable care not to cause her psychiatric harm on the basis of her close relationship with the deceased. This was despite the fact that the plaintiff did not have any direct relationship or history of dealings with the defendant. Although not in dispute, it is convenient to say something about the nature and scope of this duty, since it will naturally inform the question of breach.

In the recent case of Homsi v Homsi,[33] J Forrest J described the development of the common law duty to take reasonable care not to cause psychiatric harm to ‘secondary victims’. His Honour said:

[I]t is now clearly established in this country that the duty of care in psychiatric injury cases extends beyond that to an immediate victim. Family members who suffer psychiatric injury as a result of a negligently inflicted injury to a close relative, but who do not witness the event, may be owed a duty of care by the tortfeasor. This has been described as the duty owed by the negligent party to a ‘secondary victim’—the primary victim being the person killed or suffering serious bodily injury.[34]

[33][2016] VSC 354.

[34]Ibid [50].

High Court cases dealing with the duty of care that tortfeasors owe to ‘secondary victims’ indicate that the relationship between the primary and secondary victim will be an important factor in determining whether or not a duty was owed. For instance, in King v Philcox,[35] the High Court held that the negligent driver of a motor vehicle owed a duty of reasonable care not to cause psychiatric harm to the sibling of the primary victim killed in the accident. This was so even though the sibling was not present at the scene of the accident.[36]
[35](2015) 255 CLR 304 (‘King’).
[36]The fact that the plaintiff was not ‘present at the scene of the accident’ (even though he inadvertently drove past it several times) meant, however, that the claim was barred by statute: at 323 [31].

The relationship between the primary and secondary victim is chiefly relevant to the question of reasonable foreseeability. It goes to duty insofar as one must be able to say that the plaintiff, either individually or as a member of a class, was someone whom the defendant could reasonably foresee would suffer injury as a result of the defendant’s act or omission.[37] Close proximity—as, for example, between a parent and child, siblings or spouses[38]—will satisfy foreseeability for the simple reason that a tortfeasor should be able to foresee that a negligent injury to a primary victim may also injure their loved ones.[39]
[37]See generally Donoghue v Stevenson [1932] AC 562. See also Paul Vout, Torts: The Laws of Australia (Thomson Reuters, 3^rd ed, 2016) 52.
[38]See, eg, Jaensch v Coffey (1984) 155 CLR 549.
[39]King (2015) 255 CLR 304, 337–8 [82]–[85] (Nettle J).

The leading authority on the duty of employers towards secondary victims is Gifford v Strang Patrick Stevedoring Pty Ltd.[40] That case concerned a claim for psychiatric injury brought by the children of the primary victim, an employee of a stevedoring company, who was killed by a forklift driven negligently by another employee of the same company. At issue was whether the employer owed an independent duty to take reasonable care to avoid causing the children a recognisable psychiatric injury as a result of their father’s death in the course of employment. The Court unanimously held that this was so even though the children did not directly perceive their father’s death. As McHugh J said:

An employer owes a duty to take care to protect from psychiatric harm all those persons that it knows or ought to know are in a close and loving relationship with its employee. It is not a condition of that duty that such persons should be present when the employee suffers harm or that they should see the injury to the employee.[41]

[40](2003) 214 CLR 269.

[41]Ibid 281 [27] (emphasis added).

Further, in their joint reasons, Gummow and Kirby JJ said:

The respondent’s duty of care to the appellants to exercise reasonable care to avoid causing them psychiatric injury as a consequence of their father’s death in the course of his employment would be, at most, co-extensive with the tortious and express or implied contractual duties that it owed Mr Gifford directly as his employer. The law requires an employer in the position of the respondent so to order its affairs as to avoid causing injury or death to its employees.[42]

Their Honours’ description of the duty as being ‘co-extensive’ with the tortious and contractual duties that the employer owed to the primary victim is instructive. As we shall see, in the present case, much turns on whether it can be said that the deceased’s accident was incurred in the course of employment. If so it will follow that the defendant not only owed a duty of care to the plaintiff but that the scope of that duty was identical to that owed to the deceased.

[42]Ibid 302 [90] (emphasis added).

Next I turn to the scope of the duty owed to the deceased and, in particular, whether the defendant needed to take reasonable care to prevent him from consuming alcohol on the premises outside of work hours.

What was the scope of the duty owed to the deceased?

An employer is under a duty to take reasonable care for the safety of its employees. This does not mean that it must safeguard its employees from every danger that might conceivably arise. What is required is that it take care in the circumstances to avoid exposing its employees to risks that are reasonably foreseeable.

Significantly, it is the employer-employee relationship that gives rise to this duty, which flows from the fact that the former is able to direct or control the behaviour of the latter. As Hayne J said, in Crimmins v Stevedoring Industry Finance Committee, the common law imposes a duty on the employer because ‘the employer is in a position to direct another to go in harm’s way and to do so in circumstances over which that employer can exercise control.’[43] Implicit in this formulation is the notion that the employer owes a stringent duty of care to its employees in the course of their employment but not outside of that context.[44]
[43](1999) 200 CLR 1, 98 [276].
[44]For a discussion of the ‘course of employment’, see Comcare v PVYW (2013) 88 ALJR 1.

To be clear, this does not mean an employer only owes a duty to employees on the premises, since their employment may very well take them off the premises. As J Forrest J explained, in Hardy v Mikropul Australia Pty Ltd, an employer’s duty:

exists irrespective of where the work is carried out. In most claims involving an allegation of breach of duty on the part of the employer, the injury sustained by the employee (be it physical or psychiatric) occurs during the course of the employment and whilst carrying out the employer’s tasks.[45]

Hardy concerned a plaintiff suffering from alcoholism and depression. He claimed that his psychiatric condition was caused by the negligence of his employer. His work involved travelling throughout regional Victoria (and interstate) for prolonged periods and staying in accommodation paid for by the employer. He and his colleagues, in their own time and after work, smoked marijuana and drank alcohol. The plaintiff claimed that the employer had breached its duty of care by ‘forcing’ him to be away from home for long periods. He alleged that these absences, in addition to being exposed to the ‘drinking and drug culture of his fellow employees’, led to a major breakdown and the cessation of his employment.[46]

[45][2010] VSC 42 [53] (‘Hardy’).

[46]Ibid [1]–[3].

J Forrest J held that Hardy’s case was based on a misconception of the employer-employee relationship. As his Honour put it:

[The plaintiff] was not forced to go away for long periods—this was not the Soviet Union under Stalin or his successors. Australia is not a Command Economy. [The plaintiff], knowing the tasks he was to perform and knowing that he would be away frequently, entered voluntarily into a contract of employment. He received extra remuneration for being away from home. He could have resigned if he wished … [or] sought alternative employment … [or] asked [his employer] for a different position.[47]

I agree with his Honour that in such circumstances an employer does not owe its employees any duty of care. This is because an employer is not in a position, and nor should it be, to control the after work or off duty behaviour of its employees.[48] Of course, there will be cases in which an employer’s duty of care extends beyond the workplace, but it cannot extend any further than ‘where the impugned conduct is … an integral part of the employment duties’.[49]

[47]Ibid [242] (emphasis in original).

[48]Ibid [62].

[49]Ibid [66].

In the present case, the defendant ran a large almond farm in the north-west of Victoria, which at times required employees to work night shifts (especially during the harvest).[50] Accordingly, the defendant provided onsite accommodation, although on the night in question—and it appears this was the deceased’s practice—he did not use this facility but rolled out his swag in the ‘smoko room’. The evidence is that he returned to work so as to attend to irrigation lines that may have been damaged by bee hives being removed from the property. The accident occurred when the deceased was performing an activity not assigned to him and without the knowledge or consent of the defendant.
[50]T373.02–373.08; T552.11–552.19.

Relevantly, in August 2013, the defendant had an onsite accommodation policy and an alcohol and drug management policy. These policies, the content and intent of which were understood, stated that employees must have a BAC of .00 when using heavy machinery and only consume alcohol on the premises to the extent that would be acceptable in a public space.[51]
[51]Exhibit D4; Exhibit D2.

It is not disputed that the defendant owed a duty (and understood it owed that duty) to take reasonable care to ensure a safe system of work was in place whilst employees were performing their duties. What is disputed is whether the scope of that duty required it to take reasonable care to prevent the deceased from consuming any alcohol on the premises after hours.

The element of control an employer has over its employees must be directed to the safety of the worksite. It cannot be intended as ‘some de facto proscription of the employees’ social habits during their own time.’[52] Accordingly, while the defendant owed a duty to employees who used its onsite accommodation or remained onsite overnight, it did not extend to unreasonably controlling or directing their personal activities. For example, if an employee was to go into town and have a meal and a glass of beer or wine and then return to stay overnight at the premises, it would be an overreach to impose a blanket prohibition on the consumption of alcohol. The situation would be different if the employee was on call, that is, if they might be required to perform their employment duties during the night. It would then be necessary to ensure that employees did not consume alcohol so as to be safe when operating heavy machinery. But that is not this case.
[52]Hardy [2010] VSC 42 [63].

In short, insofar as the deceased’s conduct occurred on the premises but did not involve his employment duties, it did not fall within the scope of the duty that the defendant owed to him.[53] To extend the duty would erode the deceased’s and other employees’ personal autonomy. The scope of any duty owed by the defendant to the deceased in the circumstances of this case could be no more than a duty to avoid harm or injury by providing safe onsite accommodation. Thus, for the same reasons given by J Forrest J in Hardy, for the defendant to impose any more control over its employees would be to interfere in their private lives in a way unacceptable in a liberal democracy.[54]
[53]The scope of employment is a ‘question of fact dependent entirely on the circumstances of the particular case’: Bugge v Brown (1919) 26 CLR 110, 118 (Isaacs J). See also Greenwood v Commonwealth [1975] VR 859, 864–5 (Gillard J).
[54]Hardy [2010] VSC 42 [62].

As the High Court observed in CAL No 14 Pty Ltd v Motor Accidents Insurance Board:

Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility.[55]

[55](2009) 239 CLR 390, 414 [54].

In any event, even if the defendant did owe a duty to take reasonable care to prevent its employees from drinking alcohol on the premises after hours, it is difficult to see how the specific harm that befell the deceased could be described as a reasonably foreseeable consequence of the defendant’s act or omission. As the High Court explained in Wyong Shire Council v Shirt,[56] the test for foreseeability is prospective (rather than retrospective) and chiefly focused on the degree of risk,[57] an element of which will include whether the risk was obvious and avoidable to persons taking reasonable care for their own safety.[58]
[56](1980) 146 CLR 40, 47–8 (‘Shirt’).
[57]See also Rosenberg v Percival (2001) 205 CLR 434; Tame v New South Wales (2002) 211 CLR 317 (‘Tame’); Sydney Water Corporation v Turano (2009) 239 CLR 51.
[58]See, eg, Romeo v Conservation Commission (NT) (1998) 192 CLR 431.

I agree with the defendant that, by parity of reasoning with Hardy, no such duty of care was owed. This is so even though Hardy is not ‘on all fours’ with this case.[59] As the defendant submitted, there was no evidence to suggest the deceased had a history of consuming alcohol on the premises, of working whilst intoxicated, or undertaking another employee’s work prior to the 7:00am allocation meeting.[60] It follows that the defendant could not reasonably have foreseen that the deceased would, whilst staying overnight on 28 August 2013, consume alcohol to the point that his BAC the next morning would be .18 and proceed to operate heavy machinery in violation of company policy and undertake a task that had not been allocated to him, i.e. slashing the headlands, prior to any other staff arriving onsite. Relevantly, as in Romeo v Conservation Commission (NT),[61] the harm that the deceased suffered seems too remote in light of his gross failure to take care for his own safety.
[59]Defendant’s written submissions [94].
[60]Ibid [95].
[61](1998) 192 CLR 431.

Breaches alleged by the plaintiff

As I have said, as the deceased’s employer, the defendant owed a stringent duty to take reasonable care to avoid causing him harm. The scope of this duty did not, however, extend to supervising the deceased’s alcohol consumption on the premises after hours. Nevertheless, if the defendant’s duty did extend to the deceased in this way, then for the reasons that follow I do not consider that the defendant breached its duty.

This Court has often said—and it bears repeating—that it is for the plaintiff to prove on the balance of probabilities that the defendant was negligent and that such negligence was a cause of the harm suffered. It is not for the defendant to disprove negligence. Germane to this inquiry will be whether there were any reasonable steps that the defendant employer could have taken but did not take.

The plaintiff alleges that the defendant breached its duty to take reasonable care in the following four ways:

(xiv) by failing to prevent the consumption of alcohol on the defendant’s premises during and after work hours (if the toxicology report is admissible);

(xv) by failing to provide the deceased with adequate training in the use of tractors, slashers, and how to remove wire from slashers;

(xvi) by failing to adequately supervise the deceased and provide proper guidelines;

(xvii) by failing to manage the deceased’s fatigue and permitting him to remain overnight at Annuello overnight.[62]

It is submitted on the plaintiff’s behalf that these breaches, or a combination of one or more of them, caused the deceased’s death.

[62]See [27] above where I explain why I have collapsed the five alleged breaches into four.

The most pressing issue, which I shall deal with first, is the admissibility of the toxicology report. This is because, if I find that the deceased had a BAC of .18 at the time of the accident, then it will be very difficult to maintain the submission that the defendant was responsible for his failure to apply the handbrake.

The toxicology report

The toxicology analysis was conducted by the Victorian Institute of Forensic Medicine.[63] A report was authorised by senior forensic toxicologist, Ms Staikos, on 19 September 2013.[64] Ms Staikos is an ‘approved analyst’ for the purposes of s 57(1)(b) of the Road Safety Act 1986 (‘RSA’) and the comments in her statement are directed to Coronial Case 3833/2013 in respect of the deceased.[65]
[63]The Victorian Institute of Forensic Medicine is part of the Attorney-General’s department, the Department of Justice, and co-exists with the coronial services system. Its function is to investigate coronial deaths.
[64]Exhibit D10.
[65]T 587.19–587.20; Exhibit D10, 2.

Significantly, the plaintiff failed to object to the toxicology report both during Ms Staikos’ evidence and again during closing submissions, at which point the toxicology report was tendered absolutely. The report was admitted into evidence and was accepted as proof of the facts and matters contained therein.[66] However, at the conclusion of closing submissions, counsel for the plaintiff sought to impugn this evidence as follows:

The defence in this case, Your Honour, relies substantially on the consumption of alcohol. We say that a very primary failure in the defence is that they have not established the plaintiff was at the time affected by alcohol and so that first leg of the defence fails. We say, Your Honour, we are not challenging the reading by the forensic department of the items which were tested there and we didn’t cross-examine Ms Staikos there. We are challenging the proof that those items which were samples from the deceased.
…
[W]e say there’s no evidence upon which there can be a finding that the deceased had a blood alcohol concentration because there’s no evidence of it being blood taken from the deceased or fluid taken from the deceased.[67]

Given the lateness of this submission, and the difficulties it raises, I then gave the parties leave to file and serve further submissions on this point.[68]

[66]Pursuant to ss 48 and 79 of the Evidence Act 2008.

[67]T748.22–748.31; T752.14–752.18.

[68]T769.05–769.09; T771.10–771.11.

As I have said, the report is in evidence and is proof of its contents, including the fact that the blood and fluid was taken from the deceased. Based on this evidence, it is open to the Court to infer that the accident was due to the deceased’s level of intoxication, which caused him to behave recklessly while operating the tractor. In any event, for the reasons that follow, I reject the contention advanced by counsel for the plaintiff that is an issue with regard to the proof of the samples.

The report states that the post-mortem specimens were received with ‘seals intact’ in the laboratory on 4 September 2013. It outlines a series of forensic procedures which were performed and which, for coronial purposes, are stock-standard. It explains that alcohol is removed from the human bloodstream at an average rate of .015% per hour. And it observes that a BAC in excess of .15% ‘can cause considerable depression of the Central Nervous System affecting cognition and … producing adverse behavioural changes.’[69]
[69]Exhibit D10 4 [6].

The critical finding is that the concentration of alcohol (or ‘ethanol’) in the deceased’s bloodstream was .18g per 100ml.

Next I turn to the statutory scheme governing the admissibility of this kind of evidence and the ‘presumption of regularity’ that applies where the legislation and regulations have been complied with.

Applicable legislation

The admissibility of the toxicology report is governed by the RSA and the Transport Accident Act 1986 (‘TAA’). It is necessary to set out the relevant provisions from each Act.

Part 5 of the RSA creates investigative powers in relation to the taking of samples.[70] Section 56(6) provides:

If a sample of a person’s blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceedings except—
(a) for the purposes of section 57; or
(b) for the purposes of the Transport Accident Act 1986 —

[70]See also regulations 10, 11 and 12 of the Road Safety (General) Regulations2009 (‘the Regulations’).

Section 57(2) provides:

If the question whether any person was or was not at any time under the influence of intoxicating liquor or any other drug or if the question as to the presence of alcohol or any other drug or the concentration of alcohol in the blood of any person at any time or if a finding on the analysis of a blood sample is relevant—
…

(d) in any inquest or investigation held by a coroner—
then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, after that person drove or was in charge of a motor vehicle, of a sample of blood from that person by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within twelve months after it was taken, of the presence of alcohol or any other drug and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis and, if a drug is present, evidence may be given by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person’s ability to drive properly).

Section 57(3) provides that a ‘certificate’ will be prima facie admissible for the purposes of s 57(2) if signed by a registered medical practitioner or approved health professional:

A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

Section 57(4) provides that a ‘certificate’ will be prima facie admissible for the purposes of s 57(2) if signed by an approved analyst and analysed in an approved laboratory:

A certificate, containing the prescribed particulars, as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood—
(a) purporting to be signed by an approved analyst; and
(b) stating that the sample of blood was analysed in an approved laboratory—

is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.[71]

[71]Section 57(1)(b) defines ‘approved analyst’ as a ‘person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified analyst for the purposes of this section’.

Finally, and significantly for present purposes, s 57(9A) provides that evidence for the purposes of s 57(2), i.e. for a coronial inquest or investigation, will also be admissible where it is ‘for the purposes of the Accident Compensation Act 1985, the Workplace Injury Rehabilitation and Compensation Act 2013 or the Transport Accident Act 1986.’

What does the RSA contemplate in stating that s 57(2) evidence will be admissible where it is for the purposes of the TAA? Several provisions of the TAA shed light on this question.

Section 3(1) defines a ‘transport accident’ to mean:

an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.

It is not disputed for the purposes of this proceeding that the deceased’s accident was a ‘transport accident’.

Section 93(1) provides:

A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident … except in accordance with this section.

The subsequent subsections of s 93 outline three ‘gateways’ by which persons injured as a result of a transport accident may recover damages. Those gateways are as follows:

(xviii) a determination by the Transport Accident Commission (‘TAC’) that the person has a degree of permanent impairment of 30 percent or more—s 93(3);

(xix) where the TAC has assessed the degree of impairment as less than 30 percent, but is satisfied that the injury is a ‘serious injury’ and issues a ‘certificate’ consenting to proceedings—93(4)(c); and

(xx) where a court gives leave to bring proceedings after being satisfied on the balance of probabilities that the plaintiff has sustained a ‘serious injury’—s 93(4)(d).[72]

These ‘serious injury’ gateways create a legal liability in defendants to pay damages pursuant to s 93.[73]

[72]‘Serious injury’ is defined by s 93(17) of the TAA.

[73]See generally Wilson v Nattrass (1995) 21 MVR 41.

Crucially, with respect to the three types of s 93 proceedings, s 93(6A) states that toxicology evidence will be admissible if it complies with the RSA:

Despite anything to the contrary in any other Act, a party may in proceedings under this section when adducing evidence on the question of whether any person was at the time of the transport accident under the influence of intoxicating liquor or any other drug, use the analysis or the results of the analysis of a blood sample or breath analysis lawfully taken under the Road Safety Act 1986 at or after the time of the transport accident.

This provision was inserted into the TAA by way of the Transport Accident (Amendment) Act 2000. One of the aims of that amending title was to facilitate and streamline evidentiary procedures in common law proceedings. The Second Reading Speech clearly states that forensic samples lawfully taken after a transport accident will be accessible and admissible for the purposes of any subsequent common law proceedings.[74]
Presumption of regularity

[74]Transport Accident (Amendment) Bill – Second Reading – 21 November 2000, 1460.

The evidentiary certificate scheme in Part 5 of the RSA provides a statutory basis for presuming that lawfully taken forensic samples are regular and admissible.

The learned author of Cross on Evidence defines the ‘presumption of regularity’ as follows:

Whereby, upon proof of a public act, it will be presumed that the pre-conditions to the lawful performance of that act exist.[75]

As the learned author says, it is ‘a principle of expediency’, which requires the impugning party (here the plaintiff) to rebut it.[76] A party will succeed in displacing the presumption of regularity where there is evidence of a real possibility that the sample was tampered, mishandled or interfered with.

[75]J D Heydon, Cross on Evidence (LexisNexis Butterworths Australia 10^th ed., 2015) 326 [7240].

[76]See, eg, McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164.

It is well settled that the presumption of regularity applies to the integrity of a blood sample from the time of its taking until analysis.[77] As Fullagar J said, in Naylor v Mitchell, the ‘identity and integrity’ of a sample is ‘reasonably secured by labelling’ and a court may rely on ‘professional persons’ to comply with the regulations.[78] Similarly, in Huntington v Jupp, O’Bryan J observed that, in the absence of evidence to the contrary, it would be ‘perverse’ to find that a clearly labelled sample was not taken from the person whose name it bore.[79]

Plaintiff’s submissions

[77]See, eg, Collins v Mithen (unreported, Supreme Court of Victoria, Gowans J, 21 May 1975); Hardess v Beaumont [1953] VLR 315, 320 (Deane J); Mallock v Tabak [1977] VR 78; Stone v McIntyre [2007] VSC 406 [50] (J Forrest J).

[78](unreported, Supreme Court of Victoria, Fullagar J, 22 March 1983) 8.

[79](unreported, Supreme Court of Victoria, O’Bryan J, 19 May 1978) 14.

Counsel for the plaintiff provided further written submissions dated 21 November 2017. Those submissions may be summarised as follows.

Firstly, the admissibility of the toxicology report is governed by s 140 of the Evidence Act 2008, which codified Briginshaw v Briginshaw.[80] In other words, in light of the nature of the proceeding and the gravity of the situation, strict proof on the balance of probabilities is required.
[80](1938) 60 CLR 336.

Secondly, for the report to be admissible, the Court must have some evidence before it as to the taking of the forensic samples. In the absence of such evidence the samples cannot be attributed to the deceased. This is because the RSA does not contemplate the taking of samples from deceased persons. In particular, the framing of s 56 supports this construction, while s 57(9) prohibits the taking of a sample save for where ‘expressed consent’ has been given (and it is for the prosecution to prove that ‘expression of consent’). These provisions, and the exceptions under ss 55(9A), 55(B), 55(E13) and 56, all pertain to living persons. What is more, the purpose of the scheme is to supply evidence for the prosecution of offences under the RSA, which can only be brought against living persons. In this context, if s 57(2)(d) authorises the use of forensic samples for coronial inquests and investigations, it can only be where knowledge is sought as to the toxicology of a person who was alive when the sample was taken.

Thirdly, even if the RSA does apply to deceased persons, there is no evidence before the Court that the subject sample was taken pursuant to the RSA. Section 57(3) requires the sample to have been taken by a ‘registered medical practitioner or an approved health professional’. Yet no certificate has been provided to the Court that complies with s 57(3) (and nor could one be provided since, once again, the RSA only applies to living persons). This failure to provide a lawful certificate means that the sample cannot comply with s 93(6) of the TAA.

Fourthly, while the deceased’s injury is as a result of a ‘transport accident’, the present proceeding is not a proceeding for the purposes of the TAA (as is required by s 57(9A) of the RSA). This is because proceedings pursuant to s 93 of the TAA are, in fact, the exercise of legal rights outside the TAA. This follows from the fact that the heading to Part 6 of the TAA (in which s 93 is to be found) is ‘Legal rights outside this Act’. The only proceedings that are properly ‘for the purposes of the TAA’ are those set out in ss 40 and 41 relating to the receipt of certain no-fault benefits.

In short, unless the defendant adduces evidence to prove that the samples were lawfully taken and that the chain of control has been preserved, the toxicology report cannot be relied upon as evidence.

Defendant’s submissions

Counsel for the defendant provided further written submissions dated 23 November 2017. Those submissions may be summarised as follows.

Firstly, the RSA applies to the taking of the deceased’s blood, from which it follows that the toxicology report is prima facie admissible. The plaintiff has not adduced any evidence to show that the samples were unlawfully taken or subsequently interfered with and so has not rebutted the presumption of regularity. Ms Staikos’ evidence explicitly addressed this issue (indeed it was the only purpose of her evidence) and was not challenged at trial. Indeed, in the absence of any evidence to the contrary, the plaintiff’s contention that the samples cannot be linked to the deceased is preposterous.

Secondly, in reply to the plaintiff’s submission that the RSA does not apply to deceased persons, such a construction would contradict the plain meaning of the relevant provisions and frustrate one of the purposes of the scheme, namely to provide evidence for coronial inquests and investigations, which logically must involve forensic samples being taken from deceased persons. It would also contravene Ms Staikos’ evidence, which was not challenged at trial, and which established her authority to collect and analyse forensic samples under the RSA.[81]
[81]T592.11–592.21.

Thirdly, the plaintiff’s submission that the ‘certificate’ is invalid unless signed by a registered medical practitioner or approved health professional is plainly wrong, since s 57(4) the RSA provides that an ‘approved analyst’ has the same authority. Once again, since Ms Staikos is an ‘approved analyst’ under the RSA, the toxicology report must be admissible.

Fourthly, in reply to the plaintiff’s submission that s 93 proceedings are not for the purposes of the TAA, the only support that can be found for this construction in the whole of the TAA is the subheading ‘Legal rights outside this Act’. It is trite law that subheadings do not form part of the operative provision of an Act and so cannot be used for the purposes of interpretation. Further, such a construction would run counter to public policy, since it would make all BAC evidence, whether of persons dead or alive, inadmissible in common law proceedings. This would frustrate the purpose of the TAA as a statutory scheme designed to compensate injuries that arise as a result of transport accidents. In any event, common law proceedings are the only ‘proceedings’ contemplated by s 93, and so must be for the purposes of the TAA.

In short, by reason of s 93(6A) of the TAA and s 57(4) of the RSA, the Court must, absent any evidence to the contrary (of which there is none), accept the toxicology report as proof of the facts and matters contained therein.

Analysis

The plaintiff’s construction of the RSA and TAA is misconceived. Not only is it refuted by the plain meaning of the relevant provisions, it would frustrate the very purposes for which the RSA’s evidentiary scheme was adopted by the TAA, namely to facilitate the admissibility of lawfully taken toxicology evidence in common law proceedings arising out of transport accidents.

The contention that the RSA does not contemplate the taking of forensic samples from deceased persons runs counter to the express provision in s 57(2)(d) that the scheme is to be used for coronial inquests and investigations. The deceased’s death was a coronial death and, as such, it is entirely proper that such evidence be used in a subsequent proceeding at common law. The RSA explicitly authorises ‘approved analysts’ such as Ms Staikos to take and analyse forensic samples and to provide a ‘certificate’ which, by reason of the presumption of regularity, will be proof of the facts and matters contained in it.

The contention that the present proceeding is not for the purposes of the TAA is similarly misconceived. The stated aim of s 93 of the TAA is to ensure that all common law proceedings arising out of a transport accident meet certain evidentiary requirements. The idea that such proceedings, which necessarily must pass through the TAA, are not proceedings for the purposes of the TAA is illogical. (I note that the plaintiff in this proceeding has had to comply with s 93 of the TAA in order to obtain her serious injury certificate and issue common law proceedings.) What is more, s 93(6A) clearly states that toxicology evidence will be relevant to such proceedings, such that forensic samples lawfully taken under the RSA must be accessible and admissible. To adopt the construction favoured by the plaintiff would severely hamper, if not render nugatory, significant aspects of the Act.

Nor does it follow from the subheading ‘Legal rights outside this Act’ that common law proceedings are not proceedings for the purposes of the TAA. Firstly, as the defendant correctly pointed out, this subheading does not form part of the operative provisions of the TAA. This is because the heading to Part 6 dates from 1986 (when the TAA entered into force) whereas, pursuant to s 36(1A) of the Interpretation of Legislation Act 1984, subheadings only form part of an Act for interpretative purposes if the Act was passed, or the subheading inserted, on or after 1 January 2001. Yet, even if the subheading did form part of the TAA, it still would not follow that common law proceedings arising out of a transport accident are not proceedings for the purposes of the TAA. Self-evidently, a legal right may lie ‘outside’ the TAA and yet still be for its ‘purposes’, since the drafters of the TAA clearly intended the scheme to apply exhaustively to proceedings arising out of transport accidents. Again, but for such a construction, there would be no clear reason why proceedings would have to pass through the s 93 serious injury ‘gateways’.

In short, the defendant’s submissions are to be preferred, in which case the onus rests with the plaintiff to adduce evidence that raises a reasonable possibility that the forensic samples were unlawfully taken from the deceased or else the chain of control was in some way interfered with. Since this has not occurred, the presumption of regularity is not rebutted, justifying the inference that the samples were lawfully obtained under the RSA and are valid for the purposes of the TAA. The toxicology report is therefore admissible as proof of the facts and matters contained therein.

Significance of toxicology report

It is convenient at this point to say something about the significance of the toxicology report as evidence of the fact that the deceased had a BAC of .18 or higher at the time of the accident. It will be remembered that, as set out at [73] above, the report explains alcohol a BAC in excess of .15% can cause ‘considerable depression of the Central Nervous System affecting cognition and … producing adverse behavioural changes.’

The same point is made, although tailored more specifically to the facts of this case, by the evidence of Associate Professor Odell. He provided a written report and gave viva voce evidence as to the effect that such intoxication would have had on the deceased.[82] He opined, inter alia, that the deceased would have been seriously impaired in terms of his cognition and motor skills:

[A]s a general rule, the higher the blood alcohol concentration, the more the effect there is the more impairment that’s caused by alcohol.
…
The task of driving is a complex one that involves all those things at the same time. So the end result of a high blood alcohol is to degrade the capacity to drive safely and increase the risk of a crash.
…
[W]e know that in general if people are at a blood alcohol of about 0.1, they’ve got about 10 times the risk of crashing tha[n] they would have had at zero and if they’re at 0.2 it’s about a hundred times … the risk rises very rapidly at high blood alcohol levels.[83]

[82]Exhibit D11.

[83]T614.26–614.29; T615.17–615.21 ; T615.29–616.03.

With a BAC of .18 the deceased would have had serious difficulty maintaining proper control of the tractor. Professor Odell’s evidence helps to explain how such an experienced farm hand could have made such a basic error of judgment as to exit the tractor cabin without applying the handbrake.

Was there a failure to prevent alcohol consumption on the premises?

As I have said, in the circumstances of the case, the defendant did not owe the deceased a duty to take reasonable care to prevent him from consuming alcohol on the premises after hours, since such a duty would impermissibly interfere with the autonomy and independence of citizens in their own private time. However, in the event that I am wrong in this, it is necessary to ask whether the defendant breached such a duty. In my view, for many of the same reasons why reasonable foreseeability fails at the duty stage, it did not.

The plaintiff submitted that if the defendant had had a zero alcohol policy in August 2013 then the deceased could not have suffered his accidental death.[84] What is more, if the decease drank to excess, this may have been caused by fatigue.[85] Once again, the defect in the plaintiff’s case is that the circumstances of the deceased’s accident have been viewed through the ‘prism of hindsight’, rather than prospectively according to the test of reasonable foreseeability.[86]
[84]T730.25–730.28.
[85]Plaintiff’s written submissions [87].
[86]See, eg, Vairy v Wyong Shire Council (2005) 223 CLR 422, 443 [60] (Gummow J), 461–2 [124]–[129] (Hayne J) (‘Vairy’); Swift v Wearing-Smith [2016] NSWCA 38 [117] (Hoeben JA, Meagher JA agreeing).

The test, as the High Court authoritatively stated it in Shirt, involves two components. The Court must ask, first, whether the risk was ‘far-fetched or fanciful’; if not, it will be ‘real and therefore foreseeable’.[87] This limb of the test is undemanding.[88] The second limb, however, is not so easily satisfied. This involves asking whether the defendant’s response to the risk that has been identified was reasonable in all the circumstances. As Mason J put it in Shirt:

The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[89]

Putting the two limbs of the test together we arrive at what the High Court has called the ‘Shirt calculus’.[90]

[87](1980) 146 CLR 40, 48 (Mason J).

[88]Tame (2002) 211 CLR 317, 353 [99] (McHugh J).

[89](1980) 146 CLR 40, 47–8 (emphasis added).

[90]New South Wales v Fahy (2007) 232 CLR 486, 505 [57] (Gummow and Hayne JJ) (‘Fahy’).

It is clear, applying the ‘Shirt calculus’ to the facts at hand, that the first limb of the test is satisfied. It would be in the contemplation of any reasonable person that an employee who operates heavy machinery while intoxicated will be at serious risk of life and limb. But the second limb of the test is more difficult to surmount. It is hard to see how a reasonable person in the position of the defendant in August 2013 could have foreseen as a real possibility that an employee would stay overnight on the premises and consume alcohol to the point that their BAC was .18 and then, in the early hours of the morning, undertake a task assigned to another employee which involved using heavy machinery. As I have said, for reasons of autonomy and independence, an employer cannot be expected to control—and should not want to control—the behaviour of employees in their own private time. Such a gross failure to take care of one’s own safety is not a risk that a reasonable person in the position of the defendant as at August 2013 would have had in contemplation.

In such circumstances, it is not necessary to ask whether the defendant could have taken any ‘reasonable avoiding action’, since the failure of the deceased to take reasonable care of himself is not something the defendant could have prevented without violating his autonomy and independence. In other words, even if it could be shown that a prohibition on alcohol on the premises would have prevented the deceased’s accident, it would not be required as it would be unreasonable. As Callinan and Heydon JJ observed in their dissenting judgment in Fahy, it is often unhelpful to focus on whether something ‘easily or inexpensively’ could have been done to prevent the injury that occurred, when in reality ‘it would not have occurred to a reasonably careful person either that injury would result, or that the “neglected measure” would have made a difference.’[91]
[91]Ibid 552 [219].

While it may be accepted that certain measures might have prevented the deceased’s accident, i.e. total surveillance and a blanket prohibition on alcohol on the premises, this would be to engage in the sort of retrospective analysis that the High Court has deemed improper. When we ask, on the other hand, what a reasonable person in the position of the defendant, as at August 2013, would have done it is hard to avoid the conclusion that they would have done nothing differently.

The evidence was that employees knew and complied with the defendant’s accommodation and alcohol policies and, in particular, the requirement of a BAC of .00 when operating heavy machinery.[92] Further, while the defendant knew that its employees occasionally drank alcohol on the premises, this drinking was strictly after hours and within the parameters of what would be acceptable in a public space. There was no evidence of a workplace culture, condoned by the defendant, that encouraged regular and excessive drinking.[93]
[92]T214.19–214.23; T276.13–276.26; T320.14; T337.11–337.20; T380.26–381.03; T424.11–424.17.
[93]T173–174; T212–214.

I accept that the defendant knew that its employees did from time to time drink alcohol on the work site. The evidence, however, was that any drinking occurred after work hours.

While Mr Puleio (the deceased’s son) said that it was common for employees to sit around after work and have a beer,[94] he was only able to recall three specific occasions on which alcohol had been, or was to be, consumed on the premises. These were:
[94]T173.23.

(xxi) at a birthday party planned for the deceased;[95]
[95]T173.25–174.08.

(xxii) as part of a fishing trip (outside of work hours) on another property owned by the defendant;[96]

(xxiii) on another occasion, as captured in a photograph, which the witness was unable to identify with any certainty.[97]

Mr Puleio confirmed that he and other employees were aware of a zero BAC policy when operating heavy machinery.[98]

[96]T174.10–174.22; T212.13; Exhibit P2

[97]T212.04–212.09.

[98]T214.19–214.23.

Mr Galbes’ evidence was that there was a locked fridge at the ‘south hub’ that contained chemicals and some alcohol. He said it was widely known that employees could not use any machinery when under the influence of alcohol.[99] Messrs Coutts and Smith gave evidence that was consistent with this proposition.[100]
[99]T273.31; T319.18; T333.13; T334.17.
[100]T380.26–381.03; T276.13–276.26.

The defendant had a drug and alcohol management policy. It stipulated that:

Alcohol may impair a person’s ability to perform work duties safely or efficiently. The company requires all workers to maintain a level blood alcohol concentration (BAC) below 0.05.
Individuals operating machinery (for example heavy vehicles, equipment and plant including trucks, forklifts, tractors, moon buggies, tree shapers, pickup machines, elevated work platforms, front end loaders, 4W motor bikes, etc) are required to legally maintain a BAC of 0.00. When driving vehicles the driver must be within the limits of the licensing requirements of the relevant State’s transport regulations (P plate drivers must have a BAC of 0.00).[101]

The defendant’s drug and alcohol policy was entirely adequate throughout the period of the deceased’s employment. The employees understood that they could not drink and use machinery and abided by this protocol.

[101]Exhibit D2

In the circumstances, on 28 August 2013, there was no reason for the defendant to believe the deceased would consume alcohol such that his BAC would be .18 and that he would go and operate heavy machinery. The deceased engaged in conduct that was not only prohibited by the defendant but which he understood was prohibited.

The defendant submitted that the evidence showed that it conducted random drug and alcohol testing. I do not consider that the evidence supports such a conclusion during the period of the deceased’s employment. But it is neither here nor there for present purposes.

In short, even if defendant owed the deceased a duty to take reasonable care to prevent him consuming alcohol on the premises after work, it did not breach this duty. To require the defendant to ‘eliminate a risk’ of the kind that befell the deceased would be contrary to community expectations.[102] I agree with the defendant that only comprehensive around-the-clock surveillance—which plainly would be exorbitant and unreasonable—could have detected such a course of conduct.[103]
[102]See, eg, Swain v Waverly Municipal Council (2005) 220 CLR 517, 520–1 [5]–[7] (Gleeson CJ).
[103]Defendant’s written submissions [95].

Was there a failure to provide adequate training?

Next I turn to the allegation that the defendant failed to adequately train the deceased in the use of a tractor and slasher and heavy machinery generally.

The plaintiff submitted that if the deceased had been adequately trained he would have applied the handbrake on the tractor.[104] The mere fact that someone is an experienced tractor driver, it was submitted, establishes no more than the driver can carry out the functions of the tractor. Training as to how to drive a tractor safely is a different thing.[105]
[104]T713.25–714.05.
[105]T714.14–714.21.

The evidence is equivocal as to what, if any, formal training the deceased was given in relation to operating a tractor and slasher. There is no doubt that the defendant provided training in the use of heavy machinery; what is unclear is whether the decease received any such training. Exhibit D8 is a ‘Training Acknowledgment On-site Agricultural and/or Heavy Vehicle Operation’ form signed by the deceased dated 31 May 2013. The document reveals that the appointed trainer was Mr Trevor Smith. However, Mr Smith did not sign or date the document, and his viva voce evidence was that he did not provide any training to the deceased and that it was not his handwriting on the form.[106] The Saunders report,[107] on the other hand, annexes documentation which indicates that, on 3 July 2013, the deceased underwent a general safety induction program and signed a number of ‘training acknowledgement forms’.[108]
[106]T262–263.
[107]Exhibit P22. See my remarks on the weight to be given to this exhibit at [30]–[35] above.
[108]Those co-signed by trainers include: ‘Pull behind implement paddy puller’ dated 30 May 2013; ‘Weed spray unit’ dated 30 March 2013; ‘Orchard cart’ dated 12 February 2013, ‘X-Plane’ dated 30 May 2013 and ‘Bankout’ dated 12 February 2013. Those not co-signed by trainers include: ‘Tractor’ dated 31 May 2013; ‘Backhoe’ dated 31 May 2013; ‘Excavator’ dated 31 May 2013; ‘Tele handler’ dated 31 May 2013; and ‘Sweeper’ dated 12 February 2013

In my view, while it cannot be said with certainty that the defendant trained the deceased in the operation of a tractor or slasher, it trained him in the operation of other heavy vehicles and machinery. The deceased also held certificates enabling him to operate heavy machinery including a certificate allowing him to operate a forklift and a licence to use heavy vehicles.[109] In any event, all of the evidence at trial was that the deceased was a very experienced person insofar as heavy machinery is concerned, including an experienced tractor driver.[110] And, more fundamentally, the application of the handbrake in a tractor (especially when parked on a slope) is basic to common sense. It defies logic and human experience to think that someone so familiar with heavy vehicles and technical apparatuses would fail to apply the handbrake when exiting from a tractor parked on a slope.
[109]Attachment 5 to Exhibit P22; Exhibit D13.
[110]T205–206; T379.22–379.27; T339.18–339.19; T670.05–670.12.

As Mr Smith agreed, in his evidence, the slashing would be a ‘pretty simple job for a tractor operator’.[111]
[111]T285.12.

The risk was obvious and the defendant was in no better position to appreciate and guard against it than the deceased himself. I agree with the defendant that, insofar as O’Connor v Commissioner for Government Transport[112] is a relevant authority, it is in relation to the proposition that an employer will not have breached its duty to take reasonable care to avoid risk to its employees where the identified risk is one that would be obvious to any competently skilled worker.[113] Even so, the tractor had a warning sign in the cabin stating that the handbrake must be applied before exiting the cabin, especially when on a slope.[114]
[112](1954) 100 CLR 225.
[113]See also Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.
[114]Exhibit D14.

In closing submissions, I asked senior counsel for the plaintiff what training the deceased should have had and what difference it would have made, to which I received the following answer:

We would submit, Your Honour, that if somebody is trained and supervised in their training, there would be an observation as to whether or not [he was] carrying out that practice safely—and it is not necessarily a training that shows them how to press the accelerator or things like that but it would be to ensure that they carried out each of the safety steps.[115]

In other words, if the deceased had been trained and supervised in driving a tractor generally rather than in any particular task or mechanism, then his accident could have been avoided. But this is to say that the act of training itself would have ensured that the deceased was operating the tractor safely.[116] This is not logical and defies reasonableness in that it would require the defendant to continually and in an open-ended fashion train its employees in tasks of a basic and common sense nature. It is for this same reason that persons who have attained their driver’s licence in Victoria are not required to have ongoing training as to the operation of a handbrake.

[115]T719.04–719.10.

[116]T722.16–722.23.

I consider the deceased was adequately trained, highly experienced and skilled in the operation of a tractor and slasher.

In short, it is difficult to see how any training of any kind could have prevented the deceased’s failure to apply the handbrake, since this failure arose out of his own carelessness brought about by his level of intoxication.

Was there a failure to supervise and provide proper guidelines?

Next I turn to the allegation that the defendant failed to supervise the deceased and allowed him to work without proper guidelines. The implication is that the defendant by its omission authorised the deceased to undertake the task, i.e. slashing the headlands at Annuello, that led to his death.

The plaintiff submitted, in particular, that the defendant knew the deceased:

·worked extended hours;
·stayed on the premises overnight on 28 August 2013;
·worked with the tractor and slasher and had no specific training in respect of such machinery;
·was not supervised in this work or directed to do such work; and
·had unlimited access to the machinery.[117]

[117]Plaintiff’s written submissions [40].

The plaintiff submitted that these elements of knowledge show that the defendant breached its duty to take reasonable care to provide its employees with a safe system of work. It would be no defence, it was submitted, to say that the defendant had not directed the deceased to slash the headlands when it knew he often worked for long periods on his own motion and without supervision.

In essence, the plaintiff’s argument is one of authorisation and the extent of the authority bestowed on the deceased, without which he would not have unilaterally and unbeknownst to the defendant undertaken the task of slashing the headlands. The evidence in support of this proposition appears to be that the deceased was allowed to store his boat and use his own tractor at the Annuello property; was permitted to stay overnight in the ‘north hub’; and had freedom to perform activities without being explicitly asked.[118]
[118]Defendant’s written submissions [44].

The plaintiff submitted that if the defendant had had a safe system of work the deceased would not have been able to:

(a) access machinery that he was not trained to operate;

(b) undertake tasks using machinery that he was not trained to operate;

(c) undertake tasks, as per (b), in the dark and hence with increased risk;

(d) work when he was fatigued;

(e) work without supervision; and

(f) access machinery when he was intoxicated.[119]

[119]Plaintiff’s written submissions [37].

The defendant submitted that this sort of sine qua non reasoning must fail for the following reasons:

(xxiv) the supervision of the deceased was not inadequate; and

(xxv) even if it was inadequate, in any event, the deceased’s death was too remote a consequence of the alleged negligence.

In support of (i) the defendant pointed to the fact that the deceased was an experienced farm hand who knew how to use heavy machinery. He was by all accounts hard-working, highly competent, safety conscious and had no history of breaching safety protocols or company policy. There was, in particular, nothing to suggest that he would suddenly and unexpectedly violate the ‘sign on’ protocol and policy that employees must not operate heavy machinery if their BAC is above zero.[120] Further, the deceased’s use of his own tractor was seemingly the subject of a hire arrangement,[121] and the plaintiff’s submission that hiring plant from employees suggest inadequate supervision is difficult to follow. Finally, the defendant highlighted the lack of any submission as to what would have constituted adequate supervision (as well as the cost and effect of implementing such policies), the evidentiary onus of which is on the plaintiff.[122]
[120]See, respectively, T373.03 and T279.09–279.17; Exhibit D2.
[121]Defendant’s written submissions [50].
[122]Ibid [54].

In support of (ii) the defendant submitted that the common law for over 160 years has held that damage that is too remote a consequence of a defendant’s negligence is not recoverable.[123] Thus, while it might be said in some situations that the defendant was negligent by allowing the deceased to store his boat and tractor at Annuello, these would be entirely different from the one that did materialise. For example, if the deceased slept overnight at Annuello and was somehow injured and not found for many hours, it might be said to flow from the defendant’s negligence. Or, if the deceased’s tractor was not maintained while on the premises and some mechanical defect injured the deceased, it might again be said to flow from the defendant’s negligence. However, to suggest that storing his tractor and boat on the premises and staying overnight would somehow give rise, absent a history of anything similar, to his extreme intoxication and use of heavy machinery, in violation of company policy, prior to ‘sign on’ and when the task of slashing the headlands had been assigned to another worker, and that this would lead him to exit the tractor’s cabin without applying the handbrake, which would cause his wife to suffer a recognisable psychiatric injury—all this is to take remoteness to absurd lengths.
[123]See, eg, Greenland v Chaplain (1850) 155 ER 104. See also Wrongs Act 1958 s 51(1)(b).

The vice in the plaintiff’s submission is in the broad unspecified allegation that there was a complete lack of supervision of the deceased. There is no evidence that the deceased worked outside of his skill range or that he was exposed to unnecessary risks. Even if the defendant failed to properly supervise the deceased, which I do not accept, the defendant did not allow, or turn a blind eye, to employees who used heavy machinery while intoxicated.

The evidence established that the deceased was an independent worker who performed a variety of tasks on different machinery. There was no dispute that the deceased was a hard-working and highly competent employee. There is no evidence that he gave any sign that he was going to use a tractor outside of the scope of his employment or that beyond his training. I agree with the defendant that there is no reason to infer, in the absence of evidence before the Court, that the deceased was inadequately supervised.

The evidence of Mr Smith was telling in this regard. He described the deceased as a very hard worker. He said he would talk to workers like the deceased and tell them that they ‘need[ed] to back off a bit’ because they were doing ‘more work than anyone else’; but the deceased replied that he would ‘do it off the clock’ because he was simply ‘prepared to keep going’.[124] Mr Smith said he did not know the deceased was actually working ‘off the clock’ but that, if someone had told him as much, it would not have surprised him.[125] Mr Smith’s evidence was that the deceased never caused him any concern and was able to carry out his duties ‘without management’.[126] There is nothing remiss or untoward about the picture that Mr Smith painted in his evidence. It would be a perverse system that incentivised workers away from independence and self-reliance.
[124]T270.01–270.08.
[125]T270.09–270.11.
[126]T270.12–270.15.

I note that the last person who saw the deceased on the evening of 28 August 2013 was Mr Keir and that, according to Mr Keir’s evidence, the deceased appeared sober and not particularly fatigued. He went on to the ‘smoko room’ and saw the deceased who was about to sit down to his meal. He did not observe any alcohol or alcohol containers. Mr Keir said the deceased was ‘cheerful’ and ‘sparky’ and ‘fairly chirpy’ and definitely did not ‘appear as though [he was] slurring his words of having to hang on to something.’[127]
[127]T538.03–538.13.

The evidence of Mr Coutts was of a similar nature. In his first statement, dated 29 August 2013, he said:

When I left work last night at about 6:20pm I saw Frank on one of the roads on the farm. He was seated in his ute texting on his phone. I stopped and said to him, “I hope you’re not going to stay here and work”. He quickly said, “Nah, mate I am not working tonight.” I left him and that was the last time I saw him alive. [128]

In the second statement, dated 10 September 2013, he said:
Frank Puleio sometimes stayed overnight at the farm in one of the locker room (sic) around one the hub complex. There are showers and toilets and everything there. He had his own swag that he left in the locker room.
…
I would say that it was not unusual for him to stay at the farm from time to time. The gates are not locked because we often have trucks coming in overnight. Frank had worked late a number of times, particularly when cleaning the areas up, burning trees that had been flooded and getting the ground ready for planting.
He was the sort of person who loved to work and had a strong work ethic. On August 28 2013 I was finishing work at approximately 6:20pm I saw Frank in his ute and I asked him what was going on and he replied that he was not working [and] he was just keeping his eye on the bee keepers as they had knocked a valve out of an irrigation line that morning … I presumed from that that when the bee keepers left, he would be leaving.[129]

[128]Exhibit P9.

[129]Exhibit P9.

The defendant had protocols in relation to its work that its employees were expected to follow. Mr Coutts’ evidence was that when he assigned a task, such as slashing, to an employee, the employee would be informed of their task; the employee would fill in a time sheet with their start time; if machinery was required, the employee would conduct a pre-start inspection of the machinery;[130] and the employee would then attend to their task.[131]
[130]Exhibit D6.
[131]T376.03; T377.01–377.15.

The slashing task undertaken by the deceased was assigned by Mr Coutts to Mr Galbes. Mr Coutts did not ask the deceased to do the slashing.[132] Mr Galbes had been performing the slashing task for at least two days before 29 August 2013 and intended to continue the work on 29 August 2013.[133] Mr Coutts simply could not recall giving the deceased directions about sleeping at the ‘north hub’[134] or instructing him not to do any particular work.[135]
[132]T379.02.
[133]T378.01.
[134]T365.08; T368.12.
[135]T368.08.

Mr Smith’s evidence was consistent with that of Mr Coutts. Mr Smith confirmed that when an employee commenced their shift they would fill in a time sheet and the type of work they were to perform.[136] In relation to overtime, Mr Smith said that the employees knew it was necessary to get permission, else they would not be paid for it.[137] Mr Galbes confirmed that he was required to fill in a time sheet and the work he was performing.[138]
[136]T292.09–292.13.
[137]T292.21–292.31.
[138]T400.11–400.12.

The defendant had monthly toolbox meetings that employees were required to attend. Mr Smith explained that the purpose of a toolbox meeting was to keep employees informed about a range of topics, including any accidents or incidents, information from the office and concerns they may have had with staff. Minutes of two toolbox meetings dated 17 July 2013 and 13 August 2013 were tendered.[139] The minutes confirm that safety and employee conduct were issues discussed and that the need to comply with protocols was reiterated by Messrs Smith and Coutts and Ms Cattanach. Mr Coutts said toolbox meetings had been consistently held either on a weekly or monthly basis.[140]
[139]Exhibits P12 and P21.
[140]T373.18–373.19; T374.05–374.06.

Mr Galbes confirmed that employees were required to attend monthly toolbox meetings.[141] His evidence was that if there was any issue in regard to work or machinery it would be raised at the toolbox meetings and management would deal with it.[142] He also confirmed that the keys were kept in the tractor and that, prior to commencing a job involving machinery, he was required to conduct an inspection of the machinery.[143]
[141]T427.22.
[142]T426.
[143]T396.

The defendant had in place best practice documents (such as ‘tractor operation best work practice’)[144] and had company policies on drug and alcohol management,[145] the use of onsite accommodation[146] and fatigue management.[147]
[144]Exhibit D7.
[145]Exhibit D2.
[146]Exhibit D4.
[147]Exhibit P10.

The evidence was equivocal as to the actual knowledge the employees had of the written policies or access to such policies. Mr Coutts, for example, could not recall ever having seen the fatigue management policy. He recalled seeing an accommodation policy and said that he must have signed the alcohol and drug policy if it was provided with his employment paperwork.[148] Mr Galbes could not recall seeing fatigue policies.
[148]T380.20–380.23.

Mr Puleio gave evidence that in 2012 there was a lot of work to be done on machinery as it was not up to standard.[149] He said that, on 1 September 2013, he inspected the tractor used by the deceased at the time of the accident. He observed that there was no guarding around the PTO shaft which would prevent the shaft getting caught on things such as an operator’s clothing.[150] He confirmed that the key to the tractor was a standard key able to operate any of the 14 tractors in use at that time on the premises. He also confirmed that the key was left in the machines including the tractor.
[149]T132.13–132.15.
[150]T139.

Mr Puleio gave evidence that the deceased had concerns about the state of the defendant’s property and that he didn’t feel people were doing their jobs properly. He said that the deceased met informally with Mr Wheatley in May 2013 (operations manager at the time) at the Carwarp processing facility where the defendant’s head office was located. The conversation took place in the car park and, according to Mr Puleio, the deceased told Mr Wheatley:

That there – we have big issues out on the farm. Um, that, you know, that we need help and that – the guys that are out there, that are out on the farm need to be – need to be seriously looked at because they’re – they’re not doing what – what they should be. And because of that the farm’s suffering for it and it reflects on …[151]

[151]T158.18–158.25.

Mr Puleio’s evidence was that he then spoke to the deceased:

COUNSEL:What, if any, response did Mr Wheatley have to your father in the course of those conversations or that conversation?
WITNESS: He said that – that it’s noted and that, um, we needed to do something about it. … I just said … I hope [the deceased] didn’t come across, you know, in a bad way and [Mr Wheatley] just turned to me and he said, “No, don’t – don’t worry about that, um, at least someone cares.”[152]

[152]T159.06–159.21.

Mr Puleio agreed that there was no investigation report after the deceased’s death that indicated any fault with the handbrake in the tractor.[153] He agreed that when the defendant took over Annuello it was proactive in changing the system of work.[154] He confirmed that the defendant had terminated staff it did not consider appropriate or that were not doing their jobs.[155]
[153]T231.09.
[154]T235.07–235.10.
[155]T235.11–235.12.

The evidence of Messrs Keir and Coutts did not suggest any reason for concern about the deceased’s behaviour. Certainly, it did not suggest either man should have known that the deceased would become grossly intoxicated and take it upon himself to slash the headlands, a task already assigned to another employee.[156]
[156]T378.01–378.02; T379.01–379.02.

Since the evidence does not rise any higher than this, it is not necessary to speculate as to what measures may have prevented the deceased’s accident; it is sufficient to observe that the deceased was acting outside the scope of his employment when he became grossly intoxicated and, on the morning of 29 August 2013, began to operate heavy machinery with a BAC of .18 in violation of company policy. It is irrelevant that the deceased had access to the tractor and that the keys were left in the vehicle.[157] The simple point is that the deceased’s conduct and carelessness was not foreseeable by the defendant.
[157]T396.20–396.29.

I do not consider the deceased was inadequately supervised or that the defendant failed to have adequate guidelines and protocols in place relating to employee supervision.

Was there a failure with regards to fatigue and permitting the deceased to remain on the premises overnight?

Lastly I turn to the allegation that the defendant failed to manage the deceased’s fatigue and/or failed to prevent him from staying overnight on the premises.

The plaintiff submitted that the defendant was negligent in that it permitted the deceased to remain overnight at Annuello and work long hours and that, as such, it caused him to become fatigued and so legally ‘caused’ his accident. In essence, while the plaintiff accepts that it was not in and of itself negligent to permit the deceased to stay overnight on the premises, it was negligent in light of the knowledge the defendant had of the hours the deceased worked and his fatigue.[158]
[158]T728.10–728.18.

Crucially, the plaintiff submitted that the deceased was extremely fatigued at the time of his accident, based on the following:

The deceased had between approximately 6:30am and his time of death been either travelling to or from work or been at his work place save for one hour. He was engaged with work between 14 hours (10:30pm death) and 20 hours (4:30am death) with no sleep if it were the earlier time line and limited sleep if it were the later time. If it were the earlier time there would still have been some fatigue suffered by the deceased. If it were the later time the fatigue would have even been greater.[159]

Accordingly, it was submitted, the Court should infer that the deceased at the time of his accident was fatigued and that this fatigue would have affected his thinking and concentration.[160]

[159]Plaintiff’s written submissions [34].

[160]Ibid [35].

The plaintiff called Dr Slesenger to give expert evidence on the issue of the deceased’s fatigue and what effect it would have had on him on the morning of 29 August 2013. Dr Slesenger’s evidence was that there was an increased risk of fatigue when employees work more than 38 hours per week.[161]
[161]T531.15–531.17.

The difficulty is that the plaintiff’s submission is not supported by the evidence. For this Court to infer that the deceased was fatigued would be mere speculation. There was no evidence as to the amount of slashing the deceased performed or what time he performed it. Nor as to how the deceased got to the headlands or how long it took him to get there. The fact that the Saunders report states that an ambulance officer attended and guessed that the deceased had been dead for at least four hours is not proof of the time of death. There is, in short, no basis upon which to support the plaintiff’s contention that the deceased commenced the slashing work by 8:00pm and no later than 3:00am.

In fact, contrary to the plaintiff’s submission, all the evidence was that the deceased was not fatigued.

In the week commencing Monday 19 to Friday 23 August 2013 the deceased appears to have worked a total of 37 hours. He did not work Saturday 24 or Sunday 25 August 2013. On 26 August he worked nine hours and, on 28 August 2013, eight and a half hours. On Tuesday 27 August 2013 he attended a course at Sunraysia Institute of TAFE.[162]
[162]Exhibit P30.

This was not a case of an employee being coerced to work excessive hours. Nor was there any evidence that he was stressed, not coping with his workload, or that his performance was in any way affected by the hours that he was keeping and the additional work that he chose to do. As I have said, Mr Keir, the last person to see the deceased at 8:00pm on 28 August 2013, described him as ‘cheerful’, ‘sparky’ and ‘fairly chirpy’.[163]
[163]T538.01–538.13.

In short, I do not consider that permitting the deceased to stay overnight at Annuello was in any way causative of his injuries, nor that he was fatigued at the time of the accident.

Conclusion as to breach

Given my findings of fact, and bearing in mind the aforementioned ‘Shirt calculus’, I am of the view that a reasonable employer in the position of the defendant as at August 2013 would not have foreseen that:

(a) allowing the deceased to remain at the defendant’s premises overnight on 28 August 2013 would cause him to be fatigued and impede his ability to operate heavy machinery;

(b) the deceased would unilaterally and in violation of the usual ‘sign on’ practice undertake the task of slashing the headlands;

(c) the deceased would consume alcohol to the point that his BAC would be .18 or higher at the time of the accident; and

(d) the deceased, an experienced operator of heavy machinery, would fail to apply the handbrake before exiting from a tractor parked on a slope.

It follows that the defendant cannot have breached its duty to take reasonable care to avoid injury to the deceased. Rather, the deceased’s accident was a consequence of his carelessness, for which he alone was responsible.
Overall conclusion

The plaintiff has not been able to adduce evidence that raises a real possibility that the defendant breached its duty to take reasonable care to avoid causing injury to the deceased. It follows that the defendant cannot have breached any duty it owed to the plaintiff, as a ‘secondary victim’, to avoid causing her a reasonably foreseeable and recognisable psychiatric injury.

The proceeding must therefore be dismissed. I will hear the parties as to the appropriate form of order and as to costs.

–––

[2018] VSC 109

21 March 2018