Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex

[2016] NSWDC 295

District Court

New South Wales

Medium Neutral Citation:	Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295
Hearing dates:	24, 25, 26, 27, 28 October 2016
Date of orders:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. The elements of the offence have been proved beyond reasonable doubt. 2. I find the defendant guilty of the offence. 3. I will list the matter for a sentence hearing at a date convenient to the parties.
Catchwords:	CRIMINAL LAW – trial- plea of not guilty- prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – serious injury to employee – offence – not guilty – labour hire – labour hire worker – supervision – safe work method statement PROCEDURAL – charge particularised – amendment – proof of elements of charge – burden of proof – proof beyond reasonable doubt - onus WORK HEALTH AND SAFETY – safe work system –– employee training – previous compliance notices – duty
Legislation Cited:	Work Health and Safety Act 2011 ss 12A, 19(1), 19(3), 32 Occupational Health and Safety Act 2000 s 8(2)
Cases Cited:	Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Bulga Underground Operations v Nash [2016] NSWCCA 37 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Mahmood v State of Western Australia (2008) 232 CLR 397
Category:	Principal judgment
Parties:	Safe Work (NSW) (Prosecutor) Tamex Transport Services P/L t/as Tamex (Defendant)
Representation:	Counsel: Mr Magee (Prosecutor) Mr Ranken (Defendant)     Solicitors: Safe Work (NSW) (Prosecutor) Clyde & Co (Defendant)
File Number(s):	2015/00233400

Judgment

Introduction

1. Tamex Transport Services Pty Ltd (the defendant) pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Allan Lever, a worker at work in the business or undertaking, to a risk of death or serious injury contrary to section 32 of the Act.

2. Mr Lever was employed by Parry Bros Pty Ltd (Parry Bros) as a truck driver. On 28 February 2014, he drove a semi-trailer (the truck) to the defendant’s Beresfield Depot (the depot) to deliver freight, arriving at about 3.30am. At the depot, an employee of the defendant, Mr Mackersey, began to unload the truck using a forklift. Mr Lever assisted in the unloading process by taking steps to unsecure the load. A short time later, Mr Lever was standing at the rear nearside of the trailer undoing a load restraint strap, within 2 metres of the operating forklift. He was struck in the head by the door of a freight cage (cage) that became dislodged and fell as the cage was removed from the mezzanine level of the trailer by the forklift. Mr Lever suffered serious head injuries.

3. The issues to be determined are;

1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [18] of the Summons?

2. Did the defendant’s breach of duty expose Mr Lever to a risk of death or serious injury?

The elements of the offence

4. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt.

5. Section 32 of the Act provides:

A person commits a Category 2 offence if:

1. the person has a health and safety duty, and

2. the person fails to comply with that duty, and

3. the failure exposes an individual to a risk of death or serious injury or illness.

6. The elements of the offence are:

7. Element 1   The defendant was conducting a business or undertaking;

8. Element 2   The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of;

9. workers engaged by it;

10. (ii)   while the workers were at work in the business or undertaking;

11. Element 3   The defendant failed to comply with its health and safety duty; and

12. Element 4   The failure exposed an individual to a risk of death or serious injury.

13. The defendant conceded that Elements 1 and 2 were established. [1]

    1. Defendant’s written submissions at [30].

The relevant law

14. The offence is one of strict liability: section 12A of the Act.

15. The content of the duty is set out in section 19 of the Act that relevantly provides:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

(c) while the workers are at work in the business or undertaking.

(3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe systems of work, and

(c) the safe use, handling and storage of plant, structures and substances, and

(d) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(e) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

16. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law.

17. The prosecution bears the onus of proving as an element of the offence that at the time of the offence that it was reasonably practical to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practical to eliminate the risk, or if not, if it was reasonably practical to minimise it. In this way the application of reasonable practicability may arise more than once. [2]

    2. Section 17 of the Act.

18. “Reasonably practicable” is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including;

1. the likelihood of the risk concerned occurring, and

2. the degree of harm that might result from the risk, and

3. what the defendant knows or ought reasonably to know about;

1. the risk, and

2. ways of eliminating or minimising the risk, and

4. the availability and suitability of ways to eliminate or minimise the risk, and

5. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

19. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

20. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.

21. The word “risk” is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of section 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the section 32 offence is a risk of death or serious injury.

22. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.

23. The phrase “exposed to risks” contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94.

24. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

25. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

26. The words reasonably practicable indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

27. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

28. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

29. The unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].

30. In some cases, it will not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. There are limits to the degree of instruction which can be expected to be provided to an experienced employee: Genner Constructions at [68].

31. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.

32. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

33. The question is to be determined by the application of commonsense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

34. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant was the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

The incident

Background

35. Mr Lever commenced work for Parry Bros in August 2007. Before that he had worked as a truck driver for another company and had been a regular visitor to the depot from about 2000. For Parry Bros, Mr Lever drove from the depot to Tamworth, Muswellbrook and back to the depot (the run) 5 nights a week. He started work at 7.00pm each night, leaving the depot at about 7.15pm and returning at about 3.00am the following morning. From about the time he started work for Parry Bros, Mr Lever began to drive a semi-trailer on the run, having previously driven a heavy rigid truck.

36. The trailer of the truck was configured in 3 sections. The “goose” or “gooseneck” (the goose) was at the front of the trailer over the coupling to the prime mover. The goose was used to transport 3 double cages that had dimensions of 1.2m wide, 2.4m deep and 2m high or 6 pallets. The goose represented about one-quarter of the length of the trailer. Behind the goose, was the section referred to as the “back deck”. The back deck was split into 2 levels; the lower level and the mezzanine level. The lower level was used to transport goods on pallets and the mezzanine level could hold pallets or cages; which were usually single cages measuring 1.2m wide, 1.2 m deep and 2m high.

37. The cages had 3 fixed sides and a fixed floor. The cage doors were hung on the top of the frame of the cage by 2 metal hooks about 50mm wide and 50mm high. The bottom of the door had 2 metal lugs that fitted into corresponding slots on the bottom of the cage frame. The doors relied on gravity to hold them in place.

38. The pallets and cages were secured in place on the truck by straps. The straps also went over load containment gates that fitted into the side of the trailer. On the outside of the trailer was the tautliner curtain that was secured in place by clips at regular intervals. To unload the truck it was necessary to unclip the curtain and pull it to one side, loosen or undo the straps, remove the load containment gates and then remove the pallets or cages using the forklift. If the load straps were loosened, rather than undone completely, it may have also been necessary to hold the straps up or pull them to one side before removing the pallets or cages.

39. Mr Mackersey commenced work for the defendant in about 2002. From about 2005 he worked alone at the depot on nightshift, sorting freight and loading or unloading trucks. From about that time, Mr Mackersey was responsible for unloading the truck when Mr Lever arrived back at the depot at about 3.00am and then loading the Brisbane truck at about 8.30am. When unloading the truck Mr Mackersey used a forklift to unload the pallets and cages.

40. In the years leading up to February 2014, Mr Lever and Mr Mackersey had developed a usual practice for unloading the truck. Mr Lever parked the truck outside the shed in an area where there was a painted rectangle on the pavement. The painted rectangle was intended to indicate where trucks, of the size of the truck, were to park for unloading. After parking the truck Mr Lever would attend to completing paperwork including filling in his National Driver Work Diary (logbook), while seated in the cabin of the truck. While he was doing this, Mr Mackersey would commence unloading the goose by unclipping and pulling aside the curtain, loosening the straps and removing the load containment gates. Mr Lever would then alight from the truck, put his personal items into his car and then assist in the unloading process by unclipping and pulling aside the curtain, loosening the straps and removing the load containment gates towards the rear of the trailer. At this time Mr Mackersey would use the forklift to unload pallets and cages from the trailer. If necessary, Mr Lever would pull the straps out of the way to allow the pallets or cages to be removed by the forklift. After the pallets and cages were unloaded and at various times during the unloading process, both men would replace the load containment gates, close the curtain and clip it back into place. Mr Lever would then move the truck to an allocated parking space in the yard.

CCTV footage

41. The incident was captured by the CCTV system at the depot. The footage is of high quality, in real time and is the best evidence of what occurred in the incident.

42. The footage depicts the unloading process that I have described in [34] above, which I will not repeat. At the beginning of the footage the unloading of the goose has commenced. The footage covers a time period of about 1 minute and 41 seconds before Mr Lever is struck by the door.

43. Mr Lever was struggling to undo a strap at the rear of the trailer when Mr Mackersey removed a cage from the mezzanine level with the forklift from a position about 3m in from the back of the trailer. As the forklift reversed away from the truck with the cage on its tines, the door became dislodged and fell to the right towards the rear of the trailer. As the door fell it struck Mr Lever on the head, while he was bending over trying to loosen the strap at the rear of the trailer. Mr Lever was knocked to the ground and appeared to be unconscious.

44. At the time when Mr Mackersey loaded the cage on the forklift, Mr Lever was within 1-2 m of the operating forklift and he remained within that proximity at the time he was struck by the door.

45. In the 1 minute and 41 seconds of the footage, the forklift approaches the truck on 7 separate occasions. On 4 of those occasions the forklift comes within 1-2m of Mr Lever, including one where Mr Lever is seen to hold a strap up and out of the way of the pallet being removed by the forklift. On the last of those occasions Mr Lever is struck by the door. On only 2 occasions is Mr Lever 5m or more from the forklift when it approaches the truck and on these occasions it is because Mr Lever has walked away from the forklift when taking steps to prepare the truck for unloading. There are other occasions when the forklift comes within 2-3m of Mr Lever when it is taking pallets or cages away from the truck.

46. I accept Mr Mackersey’s evidence that he had seen the footage and there was nothing unusual about the procedure adopted by him and Mr Lever on the night of the incident.

Events following the incident

47. On 28 February 2014 Inspectors from WorkCover attended the depot and issued 2 Improvement Notices pursuant to section 191 of the Act.

47. The first of those notices (7-264267) directed the defendant as follows:

You must ensure so far as is reasonably practicable the health and safety of workers/other persons by implementing a safe work procedure to manage the risks associated with persons being struck by moving plant and/or loads being moved at the workplace.

49. The second of those notices (7-264268) directed the defendant as follows:

You must eliminate the risks associated with metal gates falling from cages, where this is not reasonably practicable you must minimise the risks so far is as reasonably practicable by developing and implementing a system for ensuring the gates are secured in position during transport.

50. On 28 February 2014 Mr Greg Dee the Compliance/Human Resources Manager of the defendant attended the depot. A decision was made to temporarily shrink wrap the cages until another solution could be found to attach the doors to the cages. Each depot already had the necessary equipment to shrink wrap the cages.

51. On 12 March 2014 Mr Dee produced a Safe Work Method Statement (the March 2014 SWMS). It was distributed to the Operations Manager of each depot and the defendant’s employees were taken through it at a toolbox talk. The employees were asked to sign the March 2014 SWMS to indicate that they had read and understood its contents and that they agreed to comply with it. Mr Dee asked for the signed versions to be returned to him, so that he could be satisfied that the defendant’s employees had been trained on the March 2014 SWMS. The defendant’s employees at the depot signed the March 2014 SWMS on 12 and 13 March 2014.

52. The March 2014 SWMS required the implementation of a 5m exclusion zone for pedestrians to be delineated by line marking, witches hats and/or barricades, and the provision of a designated driver waiting area that was visible to the forklift operator. It required the driver to wait in the driver waiting area during the loading/unloading process and for the forklift operator to cease operations if any person entered the exclusion zone. It also required the cage doors to be chained or shrink wrapped.

53. By 13 March 2014, each cage door was secured to the cage by the use of a d-shackle, a length of chain of about 500mm and a snap hook karabiner. [3] Yellow lines were painted on the depot floor adjacent to where the truck was unloaded on the night of the incident and in other places in the depot, delineating the exclusion zone. [4] Signs were placed around the depot and on the forklifts requiring a 5m exclusion zone around operating forklifts. Drivers were instructed about the 5m exclusion zone when they attended the depot and were also instructed to wait while their truck was being unloaded in a designated place being either, behind the barrier near the offices or behind the barrier under an awning at an outdoor setting. A regular system of inspection of the CCTV footage by employees of a supervisory rank was also introduced to ensure that the exclusion zone was being enforced.

    3. Exhibit 1, p308-309.

    4. Exhibit 1, p310-312.

54. On 14 March 2014 Mr Brian Patterson, the Operations Manager at the depot, Mr Peter Rowden, the afternoon shift supervisor at the depot, and Mr Dee (collectively the investigation team) completed and signed an Incident Investigation Form relating to the incident. The investigation team interviewed employees and watched the CCTV footage of the incident for the purpose of preparing the report. The investigation team concluded that the contributing factors and causes of the incident were that the cage door had bounced out of the slots while the truck was in motion or was possibly levered out when the cage was being removed by the forklift and that Mr Lever was working in the exclusion zone. The investigation team decided that the risk could be avoided by temporarily shrink wrapping the cage doors, manufacturing chains and d-links to hold the doors in place and by the definition of clear exclusion zones at each depot with staff and contractors to be trained in the use of the exclusion zones.

55. At a later time the defendant decided that the painted lines on the floor of the depot were not a practical way of delineating the exclusion zone around the forklift, because the forklift was required to move to different areas throughout the depot. The forklifts at the depot were then fitted with blue lights on the front, the back and both sides. The lights emit a 5m beam on the floor from each of the front, back and sides of the forklift to delineate the exclusion zones around it. The defendant also later decided to attach 2 chains to the side of each door, rather than attaching one chain at the top, so that if the door became detached it did not swing out dangerously.

The pleaded risk

56. The prosecution pleaded the risk to safety in [17] of the Summons as:

… the risk of workers suffering serious or fatal injuries by being struck by falling objects or loads from delivery trucks or from forklift trucks whilst the task of loading or unloading delivery trucks using forklifts was being undertaken. (the pleaded risk)

57. The pleaded risk was actually known to the defendant before 28 February 2014.

58. In March 2010, the defendant adopted a Safe Work Method Statement for the Loading and Unloading of Vehicles (the 2010 SWMS). [5] The 2010 SWMS identified a risk of “[F]atality or serious personal injury from unsecured freight falling from forklifts or vehicles”.

    5. Exhibit 3, Tab 8, p2.

59. On 28 May 2013 Mr Dee issued a draft Safe Work Method Statement to the regional managers, the operations managers and the directors of the defendant relating to the loading and unloading of vehicles by forklifts (the May 2013 SWMS). [6] The May 2013 SWMS identified the risk of personal injury to workers caused by being struck by a forklift or being hit by falling objects during the loading or unloading process. The risk identified in the May 2013 SWMS was indistinguishable from the pleaded risk.

    6. Exhibit 1, Tab 23.

60. Mr Dee was challenged in cross-examination as to his recollection of the date when the May 2013 SWMS was issued. I accept Mr Dee’s evidence that he dated the May 2013 SWMS at the time that he completed it and circulated it to management by email. But even on the defendant’s case, the May 2013 SWMS was circulated by Mr Dee by no later than October 2013.

61. The defendant ought to have known about the risk of death or serious injury to workers as a result of being struck by a forklift from a time much earlier than 28 May 2013. That risk was obvious. Further, there were documents available within the transport industry that alluded to that risk. In November 2010, the LUEZ Guidelines [7] were published by Safety Assist, a transport industry body funded by WorkSafe Victoria. The LUEZ Guidelines recognised the risk of fatality and a high potential for severe injury resulting from the interaction of forklifts and pedestrians; most commonly truck drivers standing too close to the unloading and loading of their trucks. [8] Mr Dee and other managers of the defendant had received the LUEZ Guidelines at an external training course that they attended. Mr Dee gave evidence that he was given a copy of the LUEZ Guidelines on more than one occasion.

    7. Exhibit 1, tab 44.

    8. Exhibit 1, tab 44, p2.

62. At a time prior to 28 May 2013, there was available for download a template for a SWMS relating to the loading and unloading of freight vehicles by forklifts. Such a template was downloaded by Mr Dee in order to draft the 28 May 2013 SWMS. The template referred to a risk that is indistinguishable from the pleaded risk.

63. It can be accepted that the defendant did not actually foresee the precise risk that manifested in the incident, being the dislodgement of the door that fell and struck Mr Lever (the precise risk), but the analysis must focus on the pleaded risk.

64. Nevertheless, I am satisfied that the precise risk was reasonably foreseeable for the following reasons.

65. There were instances of the cage doors falling off that were witnessed by the workers. Mr Lever gave evidence of cage doors becoming dislodged in transit and finding them lying on the deck of the trailer. On other occasions the cage doors were dislodged whilst the cage was being unloaded by a forklift and the cage door fell on the floor in his vicinity. Mr Mackersey gave evidence of a cage door becoming dislodged during unloading and falling on the deck of a trailer. Mr Dee gave evidence that Mr Rowden told him during the course of his investigation that there had been instances of the cage doors falling off.

66. Neither Mr Lever or Mr Mackersey reported the incidents of the cage doors falling off during the unloading process. They were required to do so by the defendant’s policies that it contended were implemented from March 2010 onwards.

67. In March 2010 the defendant adopted a policy entitled “Guidelines for Occupational Health and Safety Roles and Responsibilities”. [9] At page 5 of that document it stated that all staff, visitors and contractors at a site operated by the defendant were obliged “to report any incidents, near misses, safety hazards and dangerous occurrences”. Other policies adopted by the defendant required the report to be in writing and completed within 2 hours of the near miss or dangerous occurrence. [10] Those written policies were contained in a folder with a spine marked “Compliance” that was kept in the lunch room of the depot (the Compliance Folder). [11]

    9. Exhibit 3, tab 4.

    10. Exhibit 3, tab 3 p14.

    11. Exhibit 3.

68. The incidents described by Mr Lever and Mr Mackersey were properly classified as near misses or dangerous occurrences.

69. Mr Mackersey gave evidence that he was unaware of the incident reporting process at the time of the cage door falling off. I infer from his evidence [12] that he became aware of the incident reporting process when he was trained on the content of the March 2014 SWMS, which contained a requirement to report near misses. [13] Mr Mackersey gave evidence, which I accept, that he had not read the policies contained in the Compliance Folder and that he had not been instructed to do so. I do not accept that Mr Mackersey should have been aware of the policies in the Compliance Folder, merely by reason of their presence in the lunch room. It was not suggested to Mr Mackersey in cross-examination that he was or should have been aware of the obligations imposed on him by the defendant’s written policies to report near misses, but only that he was aware that there was an incident reporting process that he could go through. I find that Mr Mackersey was not aware of the defendant’s policies on this issue because he had not been trained on them.

    12. At T81 lines 1-25.

    13. Exhibit 1, tab 37.

70. Mr Lever gave evidence, which I accept, that he never went into the lunch room and I infer that he had no knowledge of the existence of the Compliance Folder. It was not suggested to Mr Lever in cross-examination that he was obliged to report near misses to a member of the defendant’s staff. I find that Mr Lever was unaware of the obligations that were imposed on him in this regard by the defendant’s policies because he was not made aware of them.

71. Further, it was common sense that because the cage doors were held in place by gravity that they were susceptible to becoming detached by either the forces applied to them during transport or because they became jammed against another cage when they were being unloaded. This possibility was recognised by the conclusions of the investigation team. The defendant was only required to consider if a cage door could fall off, not that it was likely to or definitely would fall off.

Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [18] of the Summons? (Element 3)

72. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) (2010) 239 CLR 531 at [37].

73. In order to find the defendant guilty of the offence I must be satisfied beyond reasonable doubt that it failed to comply with its health and safety duty in that it failed to take the steps set out in the particulars of breach in 18(a)-(d) of the Summons and those steps were reasonably practicable.

74. The alleged failures were not pleaded in the alternative. What was alleged by the prosecution was that the defendant failed to ensure safety by not taking all of the steps referred to. On that basis if the prosecution failed to prove that any one of the alleged failures was reasonably practicable, then the defendant is entitled to an acquittal.

75. The prosecutor’s case is that the defendant’s system of work was inadequate in the respects particularised in [18] of the Summons and that each of the steps particularised were reasonably practicable to eliminate or minimise the risk pleaded.

76. The defendant contended that the Court could not consider any of the steps taken by the defendant after the incident because it was legally compelled to take those steps by the issue of the Improvement Notices. The defendant did not cite any authority for that proposition. The argument can be simply disposed of on the basis that the Improvement Notices did not require the defendant to take the particular steps taken by it after the incident. The Improvement Notices required it to take steps that were reasonably practicable as required by the Act. The defendant chose to take the particular steps that it did. I can see no reason why the taking of the particular steps by the defendant cannot be some evidence of the fact that they were reasonably practicable. When the Court comes to apply section 18 of the Act, that evidence may not be determinative of the issue. At that point, I must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve the provision of a safe working environment at the time leading up to the incident and not with the benefit of hindsight.

77. There are some matters that are common to the application of the reasonably practicable definition provided for in section 18 of the Act. I will refer to those matters now.

78. The likelihood of the pleaded risk occurring was moderate to high. The system of work adopted by Mr Lever and Mr Mackersey brought Mr Lever into close proximity to the operating forklift and he was thereby at risk of being struck by the forklift or by an object falling from it or the truck during the unloading process. The likelihood of Mr Lever being struck by the cage door was low, but that was irrelevant for the reasons I have given.

79. The defendant properly conceded that the degree of harm from the pleaded risk was serious. It was a risk of death or serious injury.

80. For the reasons I have given the defendant had actual knowledge of the pleaded risk from 28 May 2013. Information was also available within the transport industry about the risk of truck drivers being struck by forklifts during loading and unloading procedures from as early as November 2010.

81. The defendant was actually aware of ways of eliminating or minimising the risk by no later than 28 May 2013. In the 2010 SWMS the defendant adopted a safe work method requiring a pedestrian exclusion zone. [14] In the May 2013 SWMS, Mr Dee set out the measures to eliminate or minimise the risk. Those measures were the matters set out in the March 2014 SWMS adopted by the defendant after the incident set out at paragraph [46]-[47] above, with the exception of the requirement to secure the cage doors by shrink wrapping or chaining them, because the precise risk had not been foreseen by Mr Dee.

    14. Exhibit 3, tab 8, p2.

82. By 29 October 2013, the LUEZ Guidelines had been circulated to the Operations Managers for each of the defendant’s depots. At a meeting of the operations managers on that date the minutes recorded that the consideration of the LUEZ Guidelines had been accepted by the defendant as being “within acceptable parameters”. [15] Other employees of the defendant had received the document at the external training course that was also attended by Mr Dee. The LUEZ Guidelines provided guidance on what factors to consider and what steps to take to implement exclusion zones for the loading and unloading of trucks.

    15. Exhibit 1, tab 22

83. I will deal with the issue of costs when considering the requirements of the system pleaded by the prosecutor.

84. I will now deal with the particulars of breach pleaded by the prosecutor.

18(a)   To implement and enforce a traffic management control system, such as a Traffic Management Plan, in relation to the loading/unloading of trucks by forklift trucks at the premises, which included:

(i) A pedestrian exclusion zone in areas where forklift trucks were operating to load/unload trucks;

(ii) A designated truck driver safety zone;

(iii) An instruction that truck drivers should be directed to remain in a designated safety zone while their truck was being loaded/unloaded;

(iv) An instruction specifying that forklift drivers were not to undertake forklift operations if persons were in the exclusion zone.

18(c)   To induct workers at the premises, including Mr Mackersey and Mr Lever, which induction should include information, instruction and training on a traffic control system, such as a Traffic Management Plan, which included matters set out in 18(a) above.

85. These particulars can be conveniently dealt with together because 18(c) relates to the implementation of the Traffic Management Plan (TMP) by the provision of appropriate training.

Traffic Management Plan

86. The Traffic Management Plan (TMP) pleaded had 4 minimum requirements. The pleading did not identify what steps should have been taken to implement those requirements. The defendant sought some particulars of what steps should have been taken (the particulars). [16] The prosecutor responded that the request was not a proper request for particulars. The defendant did not seek an order before the commencement of the hearing requiring the prosecutor to provide the particulars. Accordingly, I have proceeded on the basis that the particulars were not required by the defendant to know the case it had to meet.

    16. Exhibit 5.

87. The defendant argued that some of the measures implemented or raised in the documents were not considered by it to be practical. Those arguments are misconceived. None of the measures taken by the defendant were necessarily required to implement the pleaded requirement. For example, the defendant contended that the painted line-marking on the floor of its depots was not practical because the forklifts had to move throughout the depot and the exclusion zone was by necessity a mobile requirement. The establishment of a 5 metre exclusion zone was not however dependant on painted line-markings, so much is evident from the other measures available, such as signage, the instruction of the forklift drivers and truck drivers and the installation of the blue lights on the forklifts. Second, whether or not the defendant found the particular measures to be practical is not determinative of whether those matters were reasonably practicable.

Pedestrian Exclusion Zone

88. The defendant’s case was that it had adopted the 2010 SWMS that was contained in the Compliance Folder, in March 2010. The 2010 SWMS relevantly provided;

“5.   Ensure the loading (exclusion) zone (up to 5 meters) is clear of bystanders or other vehicles before attempting to load and unload pallets (page 1 of 14)

…

1.2.1 RESPONSIBILITY

1.2.1.1.1.1   ALL Drivers, Loaders, Shift Supervisors, Managers

1.2.2 RISK

Fatality or serious injury from unsecured freight falling from forklifts or vehicles

1.2.3.1.7   All personnel standing on the ground in the vicinity of moving forklifts with loads or vehicles being loaded or unloaded are to stand up to 5 meters clear (the exclusion zone) of forklifts, vehicles and unsecured loads, even while acting as guide for oversized loads.

1.2.3.1.8   Personnel operating plant or vehicles within the depot are to cease activity if they see anyone standing on the ground (within the exclusion zone) that they deem to be in an unsafe position should a load dislodge or fall during the loading/unloading process.

1.2.3.1.9   Customers to remain up to 5 meters away (exclusion zone) from plant and vehicles involved in loading or unloading. (page 2 of 14)”

89. The defendant’s primary submission was that the prosecutor had failed to prove beyond reasonable doubt that the defendant failed to implement or enforce the pedestrian exclusion zone provided for in the 2010 SWMS and that the practice adopted by Mr Lever and Mr Mackersey was consistent with the 2010 SWMS; in that except on the night of the incident, the practice always resulted in there being 5m (if not at least 4m) between Mr Lever and the forklift.

90. The defendant accepted that the implementation of a pedestrian exclusion zone in the terms of the 2010 SWMS was reasonably practicable. [17]

    17. Defendant’s submissions T230 line 50 and T233 lines 25-40.

91. The defendant submitted that the 2010 SWMS:

1. provided for an exclusion zone that was specified to be 5m. The precise distance did not matter, but what was important was that there was distance between the forklift and the pedestrian;

2. included an instruction that the forklift operator was to cease operations if a pedestrian was within the exclusion zone; and

3. included an instruction to pedestrians not to enter the exclusion zone. [18]

   18. Transcript of defendant’s submissions at T227 lines 12-20.

92. Counsel for the defendant in closing submissions referred to the 2010 SWMS containing, “the 5m rule” and a “5m exclusion zone” that required the driver to stand outside the 5m exclusion zone to ensure that the driver was away from the hazard. It was contended that a designated driver safety zone was not required because the exclusion zone provided for by the 2010 SWMS required the driver to be outside the 5m and that was sufficient.

93. The defendant’s contentions are not supported by the language of the 2010 SWMS.

94. The pedestrian exclusion zone provided for was an exclusion zone of “up to 5 meters (sic) clear”. The natural and ordinary meaning of the words used in the instruction permitted a pedestrian to be within 5m of an operating forklift, thereby providing no effective separation of pedestrians from forklifts and no amelioration of the risk. The natural and ordinary meaning of the words used in the instruction rather required a pedestrian to be no more than 5m clear of an operating forklift. This was apt to mislead the ordinary reader.

95. The instruction only required the forklift operator to cease activity if a pedestrian was within the exclusion zone and the forklift operator deemed the pedestrian to be in an unsafe position should a load dislodge or fall during the loading or unloading process. In other words, if a pedestrian was within the exclusion zone the forklift driver was required to form a judgement as to whether the pedestrian was in danger from a falling load and without reference to the risk of being struck by the forklift. For this reason the 2010 SWMS was incapable of protecting the pedestrian from the pleaded risk, which involved the 2 risks referred to.

96. Contrary to the defendant’s submission, the 2010 SWMS did not contain an instruction that pedestrians were not to enter the exclusion zone.

97. I am satisfied beyond reasonable doubt that the pedestrian exclusion zone provided for in the 2010 SWMS was not reasonably practicable because on its natural and ordinary meaning it did not create an exclusion zone that was capable of eliminating or minimising the pleaded risk.

98. I am satisfied beyond reasonable doubt that the pedestrian exclusion zone provided for by the 2010 SWMS was not implemented or enforced at the depot for the following reasons.

99. Mr Lever gave evidence that he was unaware of the existence of a pedestrian exclusion zone of any specified radius. It had been his practice for a number of years to assist with the unloading process of the truck and that he was regularly within close proximity to the operating forklift. I am conscious of the fact that Mr Lever gave evidence that he had suffered profound memory difficulties as a result of the head injury he sustained in the incident. However, I am satisfied that I should accept his evidence on this point because it related to a practice he had experience of over many years and his evidence was corroborated by the evidence of Mr Mackersey, Mr Rowden and the CCTV footage of the incident.

100. I accept Mr Mackersey’s evidence that he was not trained as to the existence of the 2010 SWMS or that he was required to observe a pedestrian exclusion zone with reference to a distance of 5 metres when operating a forklift at the depot. I accept Mr Mackersey’s evidence that he had never read the 2010 SWMS, that he had not been required to do so, that he was unaware of its contents and that he was only advised of the need to observe a 5 metre exclusion zone after the incident. I do not accept that Mr Mackersey should have been aware of the content of the 2010 SWMS by reason of its presence in the Compliance Folder. It is evident from the CCTV footage that Mr Mackersey was not observing an exclusion zone of any observable radius at the time immediately before the incident.

101. I accept the evidence of Mr Rowden, Mr Mackersey’s supervisor, that he was unaware of a policy requiring a pedestrian exclusion zone with reference to a distance of 5m at the depot prior to the incident. From 1 May 2008, Mr Rowden was responsible for inducting new employees to the depot, which included an instruction that there were documents relating to procedures in the lunch room if the worker wanted to read them. I infer that the induction given by Mr Rowden to new employees did not include a specific instruction that a pedestrian exclusion zone was to be observed. Mr Rowden accepted in cross-examination that he had probably read the 2010 SWMS, but denied that he was aware of the 5 metre exclusion zone requirement or that he could have forgotten it. Mr Rowden also gave evidence that he did not provide any training on the policies of the defendant to workers at the depot that had started work there before him. This included Mr Mackersey and Mr Lever. I do not accept his evidence that he had read the 2010 SWMS, because the evidence is clear that he was not aware of, nor enforcing, a 5m exclusion zone at the depot, in either his capacity as the afternoon shift supervisor or as the Work Health and Safety (WHS) representative for the depot. This was in stark contrast to his evidence that he did implement and enforce the 5m exclusion zone when it was introduced by the defendant after the incident.

102. Mr Dee, a manager who had some responsibility for WHS matters was unaware of the existence of the 2010 SWMS when he came to draft the May 2013 SWMS. I infer from this evidence and the evidence of Messrs Lever, Mackersey and Rowden that the existence of the 2010 SWMS or the pedestrian exclusion zone provided for in it was not well known to the defendant’s employees at the depot, including those of a supervisory rank.

103. The defendant submitted that I could not be satisfied beyond reasonable doubt that Mr Lever and/or Mr Mackersey were not trained on the 2010 SWMS without seeing the training and induction records kept by the defendant. Mr Rowden gave evidence that he assumed there would be induction records for employees that commenced work at the depot before he started to work there in 2008. That is not evidence that there are such records in existence. He agreed in cross-examination with the general proposition that training records were kept by the defendant. He was not asked if any training records existed for Mr Mackersey or Mr Lever. I must not speculate as to whether induction or training records exist relating to Mr Lever and/or Mr Mackersey or what those records may show. Where the prosecution fails to present evidence that may be expected, I can take that into account in deciding whether I have a reasonable doubt as to the guilt of the defendant: Mahmood v Western Australia (2008) 232 CLR 397 at [27]. In this case the failure of the prosecutor to tender the induction and training records does not cause me to have a reasonable doubt because the evidence that such records exist does not rise above a mere possibility. I prefer the direct evidence from Mr Mackersey and Mr Lever that they were unaware of the pedestrian exclusion zone because they were not trained on the 2010 SWMS. Even if they were trained on the 2010 SWMS that training was inadequate because it did not cause them to put into effect the pedestrian exclusion zone.

104. The defendant’s fall-back position was that Mr Mackersey and Mr Lever unloaded the truck in a manner that was consistent with the requirements of the 2010 SWMS by observing a safe distance between the forklift and Mr Lever, albeit that the safe distance was not specified. The defendant then contended that Mr Mackersey got too close to Mr Lever with the forklift and by so doing departed from a known safe procedure.

105. Both Mr Lever and Mr Mackersey had held a forklift licence for a considerable period. Both agreed that as a general rule that it was necessary to keep a safe distance between a pedestrian and an operating forklift. Neither of them employed a rule of thumb of what that distance should be. It was contended that the usual sequence of unloading supported the conclusion that there was a safe distance maintained between the men, because for example when Mr Mackersey was unloading the goose with the forklift, Mr Lever would be towards the back of the trailer. The defendant’s fall-back position should be rejected for the following reasons.

106. The CCTV footage of the incident demonstrated that a safe distance was not maintained between the forklift and Mr Lever during the unloading process. At various times he was close enough to be struck by the forklift itself or close enough to be struck if a load or part of it fell from the forklift during the unloading process. Mr Lever stood beside the forklift within 1m of it at one point to hold a strap out of the way while a pallet was being unloaded. The evidence was that this was a normal part of the unloading process.

107. Mr Mackersey gave evidence that there was distance between the forklift and Mr Lever from time to time, but at other times he was close to it.

108. The fall-back position relied on the judgement and perceptions of the workers as to what was a safe distance, without the defendant knowing or controlling what that safe distance was. The defendant had not provided any training on what a safe distance should be and had thereby not taken any steps to eliminate or minimise the risk. It also did not provide for a worker who was careless or inadvertent.

109. The defendant’s duty to ensure safety was non-delegable. The defendant could not simply rely on the common sense of the workers, the fact that they had obtained forklift licences many years ago or that there had been no accidents in the past. The risk posed to Mr Lever by the forklift was one of death or serious personal injury. One way of eliminating that risk by the defendant was to implement a pedestrian exclusion zone of a specified safe distance and to enforce it. The defendant’s fall-back position could only at its highest minimise the pleaded risk, when it was capable of being eliminated by the implementation of the 5m exclusion zone.

110. It was suggested to Mr Mackersey in cross-examination that he knew that he got too close to Mr Lever with the forklift on the night of the incident. Mr Mackersey accepted that Mr Lever “probably was too close”. [19] The questions put in cross-examination did not amount to an assertion that Mr Mackersey had departed from a known safe procedure, or that such a departure was an isolated one. In my view, Mr Mackersey provided a limited acceptance of the proposition put to him with the benefit of hindsight; that is that he got too close because the incident had occurred. Mr Mackersey was not given the opportunity to respond to the proposition that he had departed from a known safe procedure that was relied on in final submissions. In any event, the evidence is clear that Mr Mackersey was not appropriately trained and/or instructed, the defendant did not enforce the 2010 SWMS and a known safe procedure had not been put in place by the defendant.

     19. T80 line 33.

111. The defendant implemented a 5m exclusion zone by adopting the March 2014 SWMS. The relevant steps taken by the defendant to implement the exclusion zone were the installation of signage in the depot and on the forklifts, line-markings on the floor of the depot adjacent to the unloading area and in other places delineating the exclusion zone, and the training of the employees at the depot in the use of the 5m exclusion zone and the need for them to instruct the truck drivers about it.

112. There was some cost to the defendant in implementing the 5m exclusion zone.

113. There was a monetary cost involved in the fabrication and installation of the signage, the line-marking at the depot and later the installation of the blue lights on the forklifts. There is no evidence as to the actual monetary cost incurred by the defendant in taking these steps, but I can infer that it would not have been substantial.

114. Mr Dee had already drafted and circulated the May 2013 SWMS. There was no additional cost to the defendant because that was part of Mr Dee’s role. A toolbox talk was held with the defendant’s employees at the depot to train them on the March 2014 SWMS that introduced the concept of the 5m exclusion zone. Toolbox talks were regularly held at the depot and the particular toolbox talk may not have been an additional one. Even if it was additional to the usual program, it could not be considered to be a costly exercise. The implementation of the 5m exclusion zone meant that the drivers could no longer be involved in the loading or unloading process. Mr Mackersey gave evidence that it took on average approximately 10-15 minutes longer to unload a truck. Mr Rowden gave evidence that loading and unloading was “a bit slower, but safety is the main concern”. [20]

     20. T179 at line 34.

115. Taking into account the extent of the pleaded risk and the fact that the 5m exclusion zone was a way of eliminating the risk, I find that the cost to the defendant was not grossly disproportionate to the risk.

Designated Truck Driver Safety Zone (TDSZ)

116. The provision of a designated TDSZ was a way of eliminating the pleaded risk. The key consideration provided for in the LUEZ Guidelines was a separation of pedestrians and forklifts. The LUEZ Guidelines stated that the stronger the separation controls provided for by the system, the less likely an incident was to occur. The TDSZ was a control that provided a greater level of separation between the driver and the forklift.

117. The LUEZ Guidelines recommended that an employer consider a number of matters relating to the definition of the TDSZ and its fitness for purpose. The defendant was aware of the LUEZ Guidelines and the May 2013 SWMS provided for the creation of a TDSZ. One such area, behind the barriers near the offices was already available to the defendant to be used as a TDSZ without incurring any further expense. The defendant chose to create another TDSZ in the outdoor area. The outdoor TDSZ was located under an awning and had an outdoor setting where the drivers could sit and wait. The outdoor setting was behind a physical barrier that was installed that Mr Rowden described as a “massive handrail”. From those 2 positions the drivers could observe the loading or unloading of the truck so that they could ensure it was being done properly and that the freight was not damaged. In those locations the drivers were physically separated from the forklifts by the installed barriers.

118. The defendant installed the outdoor setting and the barriers near it after the incident. The barriers near the offices already existed. There was some monetary cost to the defendant in creating the outdoor TDSZ, but there is no evidence as to what that cost was.

119. The defendant submitted that if the 5m exclusion zone was being enforced at the depot then the provision of the TDSZ was unnecessary. For the reasons given the 5m exclusion zone was not being enforced at the depot prior to the incident.

120. The designation of the TDSZs provided 2 additional layers of protection in the system. First, the forklift drivers could be confident that the driver was not in the exclusion zone. Second, there was a physical barrier between the driver and the forklift.

121. Taking into account the extent of the pleaded risk and the fact that the TDSZ was a way of eliminating the risk, I find that the cost to the defendant was not grossly disproportionate to the risk.

Instruction to Truck Drivers to Remain in the TDSZ

122. The provision of the TDSZ was worthless without the drivers being instructed to use it.

123. The cost involved with this measure was minimal in that it only required the defendant’s employees to be trained to deliver the instruction and then to instruct the drivers to wait in the TDSZ while their truck was being loaded or unloaded.

124. Taking into account the extent of the pleaded risk and the fact that the instruction to drivers to remain in the TDSZ was a way of eliminating the risk, I find that the cost to the defendant was not grossly disproportionate to the risk.

Instruction to Forklift Operators to Cease Activity

125. This instruction was included in the May 2013 SWMS drafted by Mr Dee and referred to in the LUEZ Guidelines.

126. Contrary to the defendant’s submission it was not included in the 2010 SWMS. Inherent in that submission was an acceptance that it was a reasonably practicable measure.

127. It was a necessary fail safe to eliminate the pleaded risk if the exclusion zone was infringed for any reason.

128. There was little, if any, cost involved in training the defendant’s employees to comply with it.

129. Taking into account the extent of the risk and the fact that the instruction to forklift operators was a way of eliminating the risk, I find that the cost to the defendant was not grossly disproportionate to the risk.

Conclusion on the TMP

130. I am satisfied beyond reasonable doubt that the implementation of the pleaded TMP by the defendant was reasonable practicable.

Induction and training on the TMP

131. If the implementation of the TMP was reasonably practicable, the defendant was required so far as is reasonably practicable by section 19(3)(f) of the Act to provide adequate information, training and instruction to protect all persons from risks to their health and safety.

132. The March 2014 SWMS was conveyed to the defendant’s employees at the depot through toolbox talks and by asking them to sign and date the document. The document bears the signature of Mr Mackersey. For the reasons I have given the cost of that training was insignificant.

133. There was no evidence that any other workers at the depot, including contract drivers received that training. The cost involved in training the other workers was also insignificant. It involved an appropriate employee from the defendant providing that training at a time when the other worker attended the depot.

134. The training of the other workers on the TMP provided an additional layer of safety to the system by providing them with knowledge about the exclusion zone, the TDSZs and the relevant instructions.

135. I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to have provided induction training on the pleaded TMP to its employees and the other relevant workers.

18(b) To implement and enforce a system for securing the cage doors while they were being transported, loaded or unloaded from trucks, such as chaining or shrink wrapping or other means

136. For the reasons given, the defendant did not actually foresee that a worker could be injured by a falling cage door.

137. Had the defendant given consideration to preventing that occurrence, it ought to have been aware of simple measures to prevent it from happening.

138. The defendant had the equipment available at each depot to allow it to shrink wrap the cages. That step involved minimal cost. The practice of shrink wrapping the cages commenced on the day of the incident and continued until the chain system was devised and implemented, which occurred within 2 weeks of the incident.

139. The materials used to chain the doors were commonly available and did not require specialist fabrication or installation. There was no evidence of the monetary cost incurred by the defendant in attaching the chains, but I can infer by reference to the materials used that the cost was not substantial.

140. Mr Dee gave evidence that the initial fitting of the D-shackle and the chains took about 10 minutes per door. The evidence was that there were about 350 cages in use by the defendant across all of its depots.

141. Mr Rowden gave evidence that the chains took no longer to secure than it took to fit the doors before the chains were installed and that securing the chains did not add time to the loading and unloading processes at the depot. Mr Dee gave evidence that securing the chains after a cage was loaded took about 10-15 seconds.

142. Taking into account the extent of the pleaded risk and the fact that shrink wrapping the cages or chaining the cage doors was a way of eliminating the risk, I find that the cost to the defendant was not grossly disproportionate to the risk.

143. I am satisfied beyond reasonable doubt that the securing of the cage doors, by shrink wrapping of the cages or attaching the doors to the cages by using chains was reasonably practicable.

18(d) To conduct adequate and regular inspections of the premises to verify that safe procedures were in place and enforced in the delivery areas of the premises where workers were undertaking loading and unloading of trucks using forklift trucks.

144. If the implementation of the TMP was reasonably practicable, the defendant was required so far as is reasonably practicable by section 19(3)(f) of the Act to provide adequate supervision to protect all persons from risks to their health and safety.

145. Mr Rowden gave evidence that before the incident, as a shift supervisor, he was required to conduct monthly site safety inspections. Those inspections required him walk around the depot and to complete a checklist to ensure that the premises and equipment in the depot were safe and not in need of replacement and/or repair.

146. The process described by Mr Rowden was in the Compliance Manual adopted by the defendant in March 2010 under the heading “Workplace Inspection Procedures”. [21] The policy required the completion of a “Workplace Inspection List” (the checklist) on a monthly basis that was required to be “signed off by the Manager”.

     21. Exhibit 3, tab 3, p51.

147. The checklist was in evidence. [22] The policy provided that the checklist could be modified to include a check on any controls implemented as a result of subsequent hazard identifications.

     22. Exhibit 3, tab3, p53-55.

148. Had the defendant implemented the controls identified by the March 2014 SWMS that I have found to be reasonably practicable, the checklist could have been easily amended to include a check on those controls to be completed during the monthly Workplace Inspection Procedure. The cost of amending the checklist and the additional time to complete the monthly inspection would have been minimal.

149. There was no supervisor present on the nightshift at the depot to supervise the work of Mr Mackersey in general and/or the unloading of Mr Lever’s truck at the time of the incident. The usual practice of Mr Lever and Mr Mackersey had been developed and deployed over a period of years.

150. The defendant had available to it high quality CCTV footage of each night’s work at the depot. It was often used to track items of missing freight.

151. After the incident a regular system of reviewing the CCTV footage was put in place to ensure compliance with the measures implemented by the March 2014 SWMS. The footage was regularly reviewed by Mr Dee, Mr Patterson, Mr Bugden the Regional Manager and Mr Hoffman a director of the defendant. The cost of the defendant to conduct a review of the CCTV footage was minimal.

152. I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to have conducted regular and adequate inspections of the premises to ensure that the system of work requiring the TMP and the securing of the cage doors was being implemented, by amending the checklist to include the relevant controls, continuing to conduct the Workplace Inspections Procedures and by regularly reviewing the CCTV footage.

Conclusion on Element 3

153. I am satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the reasonably practicable steps pleaded in [18] of the Summons.

154. I am satisfied beyond reasonable doubt that the prosecutor has proved Element 3.

Did the defendant’s breach of duty expose Mr Lever to a risk of death or serious injury?

155. Mr Lever was exposed to the risk because he was proximate to the forklift during the unloading process at the time the cage door became dislodged and fell.

156. The defendant failed to implement a safe system of work, particularly to take the reasonably practicable steps to implement the TMP and to secure the cage door. As a result of those failures, Mr Lever was standing in close proximity to the forklift and he was struck by the cage door.

157. I am satisfied beyond reasonable doubt that there was a causal relationship between the defendant’s failures and the pleaded risk to which Mr Lever was exposed.

158. I am satisfied beyond reasonable doubt that the prosecutor has proved Element 4.

Conclusion

159. The elements of the offence have been proved beyond reasonable doubt.

160. I find the defendant guilty of the offence.

161. I will list the matter for a sentence hearing at a date convenient to the parties.

**********

Endnotes

Decision last updated: 11 November 2016