SafeWork NSW v Autocare Services Pty Ltd

[2022] NSWDC 547

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547

Hearing dates:

8 November 2022

Date of orders:

14 November 2022

Decision date:

14 November 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Note that the defendant accepts that it committed a breach of duty by failing to take the measures particularised in par 14(a) and 14(b)(v) of the Amended Summons.

(2)   The prosecutor has failed to establish that the measures particularised in par 14(b)(ii), (iii) and (iv) of the Amended Summons were reasonably practicable.

(3)   Confirm that the matter has been adjourned to 13 December 2022 for finalisation of the sentence hearing.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCING – plea of guilty – plea to elements of offence – disputed facts – reasonably practicable ways to eliminate or minimise the risk

Legislation Cited:

Work Health and Safety Act 2011 (NSW), ss 18, 19, 32

Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 39

Cases Cited:

Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92

Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243

Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
Autocare Services Pty Ltd (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
G Livermore KC with B Anniwell

Solicitors:
Department of Customer Services (Prosecutor)
Seyfarth Shaw Australia (Defendant)

File Number(s):

2021/117835

Judgment

Introduction

1. On 15 May 2019 Mr Trent McIntosh was performing running repairs to the air lines of a vehicle transportation trailer. Mr McIntosh was employed by the defendant Autocare Services Pty Ltd (Autocare) as a heavy vehicle driver. Mr McIntosh died while performing that work, when a deck of the trailer descended and crushed him.

2. By a Summons filed on 27 April 2021 the prosecutor SafeWork NSW (SafeWork) alleged that Autocare, being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act NSW (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr McIntosh, to a risk of death or serious injury contrary to s 32 of the Act.

3. On 29 April 2022 Autocare entered a plea of guilty to the elements of the offence pleaded in the Summons filed on 27 April 2021. The court noted that Autocare “disputes everything pleaded in paragraph 14(b) in Annexure A to the Summons”. The matter was set down for a disputed facts hearing before me on 8, 9 and 10 November 2022. Directions were made for the parties to identify the facts which were agreed and the facts upon which there was disagreement.

4. On 7 November 2022 the parties agreed on all of the facts necessary to deal with the matter. Their agreement was set out in a signed Statement of Agreed Facts.

5. There was still a dispute between the parties concerning par 14(b) of the Summons. This judgment concerns the resolution of that dispute.

The Risk

6. Paragraph 13 of the Summons pleaded the risk as follows:

“13. The risk was the risk of workers, in particular Mr McIntosh, suffering serious injury or death as a result of being struck and/or crushed by the movement of a deck on the trailer while undertaking maintenance work on the airlines of the trailer.”

Failure to Comply with the Duty under Section 19(1) of the Act

7. The original Summons was amended on application made by counsel for the prosecutor at the hearing on 8 November 2022. As amended, par 14 of the Amended Summons is as follows:

“14. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr McIntosh, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a)   Prohibiting non-maintenance workers from undertaking any minor fault fixing or repair work on trailers; and /or

b)   In the alternative to (a) above, if non-maintenance workers were to undertake minor fault fixing or repair work on trailers then:

(i)   Obtaining or developing an Operator’s Manual for the trailer and providing such a manual to workers; and/or

(ii)   Developing, implementing and enforcing a safe work procedure or safe work method statement for the task of repairing an airline on a trailer which:

a.   identified the risk of being struck and/or crushed by a deck on the trailer when it was suspended;

b.   required that the trailer be disconnected from any power source prior to commencing any inspection or maintenance work on the airlines of the trailer;

c.   required that the trailer decks be structurally supported by an isolation device (such as lock-in pins, packers, props or a jack) prior to commencing any inspection and/or maintenance work on the decks;

d.   prohibited workers from moving under, or in close proximity, to a suspended deck unless it was structurally supported by an isolation device (such as by lock-in pins, packers, props or a jack);

e.   prohibited workers from activating any controls on the control panel of the trailer whilst undertaking repairs on the airlines on the trailer.

(iii)   Providing non-maintenance workers, and in particular Mr McIntosh, with an isolation device (such as lock-in pins, packers, props or a jack) to support the belly deck on the trailer; and/or

(iv)   Providing training, information and instruction to non-maintenance workers, and in particular Mr McIntosh, in relation to the safe work procedures for the task of repairing an airline on a trailer (such as the safe work procedure described in paragraph 14(b)(ii) above); and/or

(v)   Enforcing a requirement that non-maintenance workers seek authorisation (from the maintenance supervisor) prior to any minor fault fixing on a trailer.”

8. As previously recited, Autocare accepted that it had failed to comply with its duty in the manner pleaded in par 14(a) of the Amended Summons. In other words, it failed to prohibit non-maintenance workers from undertaking any minor fault fixing or repair work on trailers.

9. During the course of the hearing, counsel for SafeWork abandoned par 14(b)(i) of the Amended Summons, which concerned an Operator’s Manual.

10. In final submissions, Senior Counsel for Autocare accepted that it had failed to comply with its duty under s 19(1) of the Act in the terms pleaded in par 14(b)(v) of the Amended Summons. That is, Autocare failed to enforce a requirement that non-maintenance workers should seek authorisation (from the maintenance supervisor) prior to any minor fault fixing on a trailer.

11. This left the contest between the parties confined to whether or not the prosecutor had established particulars 14(b)(ii), (iii) and (iv) as pleaded in the Amended Summons.

Agreed Facts

12. The parties agreed upon the following facts (PX 1, Tab 2):

“Authority to bring proceedings

1. SafeWork NSW, being the regulator as defined by section 4 of the Work Health and Safety Act 2011 (the Act), is empowered under section 230(1)(a) of the Act to institute proceedings in this matter.

Background

The defendant

2.   Autocare Services Pty Ltd (the defendant) is and was at all material times a corporation with its registered address at Unit 12, 335 Hillsborough Road, Warners Bay NSW 2282.

3.   The defendant was registered in 1961 and acquired by Patrick Corporation in 1996. The defendant is now a wholly owned subsidiary of LINX Cargo Care Group Pty Ltd (LINXCCG), which is a logistics infrastructure and solutions provider in Australia and New Zealand. LINXCCG comprises of Linx, C3, GeelongPort, the Pedersen Group and the defendant.

4.   The defendant’s business or undertaking involves providing finished vehicle logistics to the Australian automotive market. The defendant’s business comprises of three main activities, namely:

a.   minor pre-sale preparatory/fitting works on vehicles (vehicle processing);

b.   road transportation of vehicles on multi-vehicle carrier trailers towed by trucks; and

c.   storage of vehicles in Autocare operated yards until required by car dealers.

5.   As at December 2019, the defendant handled more than about 1 million vehicle movements per annum, processed over 600 000 vehicles per annum and stored up to 80 000 vehicles nationally.

6.   As at 15 May 2019, the defendant had depots in each State and Territory in Australia (save the Australian Capital Territory). The depots in New South Wales are located in Port Kembla, Dapto and lngleburn.

Workers

7.   The defendant employed Mr Trent McIntosh as a truck driver. Mr McIntosh commenced employment with the defendant on 4 June 2012.

8.   As at May 2019, Mr McIntosh worked as a night-shift driver. His shift would commence at 5.00 pm and finish between 2.00 am - 5.00 am.

9.   The defendant employed Mr Clayton Wall (Mr Wall), Mr Criag Whitby (Mr Whitby), Mr Joshua Porter (Mr Porter), Mr Conan Rex (Mr Rex), Mr Wayne McDonagh (Mr McDonagh) and Mr Ben Katete (Mr Katete) as truck drivers.

10.   The defendant employed Mr Allan Blake as the Fleet Maintenance Supervisor, NSW. Mr Blake commenced employment with the defendant in April 2012. Mr Blake was initially employed as a truck driver and then became the assistant Fleet Maintenance Supervisor in 2017. Mr Blake assumed his role as the Fleet Maintenance Supervisor in December 2018.

Heavy vehicles

11.   As part of its business or undertaking, the defendant owned and/or operated a fleet of heavy vehicles. In 2018-2019, the fleet consisted of 199 prime movers, 357 trailers and 139 autotainers. The NSW fleet comprised of approximately 120 prime movers and trailers.

12.   The fleet was used to deliver cars to car dealerships across NSW. The fleet operated 24 hours per day, five days per week.

13.   Mr Blake was responsible for co-ordinating the service and repairs of the fleet in NSW, in his position as Fleet Maintenance Supervisor.

14.The truck drivers were allocated to a prime mover truck and trailer. The truck and trailer would usually be shared between a day shift driver and a night shift driver.

15.   As at May 2019, Mr McIntosh was assigned to a Kenworth T359 prime mover truck (registration NSW CG89FT) (the truck) and vehicle transportation trailer (registration NSW TB84KT) (the trailer).

16.   As at May 2019, Mr Whitby was assigned as the day shift driver for the truck and trailer.

The trailer

17.   The trailer was a ‘Doric H4’ trailer and was purposely built by Doric Engineering for the defendant. Doric Engineering is a business specialising in the design and manufacture of transport and logistic solutions for road, rail and sea bound freight.

18.   The trailer was provided to the defendant in 2013.

19.   The trailer had a seven-vehicle capacity.

20.   The trailer had eight decks and five control panels. The control panels were labelled A - E. The control panels and decks on the trailer were hydraulically operated.

21.   Each control panel contained buttons and/or levers which were numbered and labelled. The controls on each panel enabled the decks on the trailer to be raised or lowered.

22.   Deck number 6 on the trailer was known as the ‘belly’ or ‘well’ deck (the belly deck). The belly deck had what is referred to as a front end and rear end. The belly deck was operated by control panel C.

23.   The front end of the belly deck was lowered by pressing button 10 on control panel C and was raised by pressing button 8.

Image: Control Panel Con the trailer

24.A number of the decks on the trailer had pneumatic operated lock-in pins (air pins) which locked the decks into place. The belly deck did not have a lock-in pin on the front or back sections of the deck.

Air lines on the trailer

25.   Air lines were located throughout the trailer. The airlines were fitted to the trailer to operate its brakes and suspension. The locks and hydraulic valves on the decks of the trailer also required air supply.

26.   There were two separate air lines on the belly deck which were located on the inside of the trailer along the side panels. The airlines were used to activate the hydraulic valves positioned at the front and rear of the belly deck.

Air leaks

27.   Air leaks were a common problem with the trailers especially the ‘Doric H4’ trailers. Mr Whitby had experienced ongoing problems with the air lines on the trailer since he began driving it in 2013.

28.   (Depending on the size of the leak), if there was an air leak in the air lines on the belly deck the deck would not move up (if the air leak was in the air line connected to button 8 on control panel C) and/or down (if the air leak was in the air line connected to button 10 on control panel C).

29.   Truck drivers repaired minor air leaks on their trailers.

30.   This practice arose because of the frequency of the airline leaks and the ease and speed with which drivers could often make the repairs rather than waiting on the road for a maintenance worker to arrive and fix the problem.

31.   The process followed by truck drivers to fix an air leak would usually involve (i) locating the air leak, (ii) cutting the airline hose on either side of where the air leak was and (iii) then placing a joiner on to the airline hose to join the line back together.

The repair kit

32.   In approximately 2018, the defendant provided truck drivers with an air repair kit (the repair kit). The repair kit enabled drivers to conduct their own repairs to air leaks whilst on the road.

33.   The repair kits were placed in each truck as part of its day to day equipment. The contents of the repair kit included joiners, airliners, cutters, cable ties and insulation tape. The materials in the kit were previously held by drivers in their trucks or within depot location store rooms.

14 May-15 May 2019

34.   Mr McIntosh commenced his shift at 4.39 pm on 14 May 2019.

35.   At 1.09 am Mr McIntosh arrived at a Toyota Holding Yard in Artarmon to deliver vehicles. At approximately 1.30 am Mr Porter arrived at the Toyota Holding Yard and observed Mr McIntosh unloading cars from the trailer.

36.   Mr Porter noticed the top main deck of Mr McIntosh’s trailer was in an irregular position.

37.   Mr McIntosh departed the dealership at Artarmon at 1.45 am. His trailer was empty.

38.   At approximately 3.00 am on 15 May 2019 Mr McIntosh arrived at Bath Road Kirrawee. He parked the truck and trailer alongside 118-126 Bath Road Kirrawee.

39.   Bath Road Kirrawee is an industrial area with several car dealerships along the road. Sydney Survivors Gym is located within the commercial complex at 118-126 Bath Road.

40.   At 3.02 am Mr McIntosh recorded he was having a rest break. The night shift drivers, including Mr McIntosh, often stopped at this location for a rest break.

41.   At the same time, Mr Katete was unloading cars at a dealership about 15 metres away from Mr McIntosh. Mr Katete saw Mr McIntosh get out of the truck and walk around the passenger's side of the trailer to the control panel. Mr Katete departed from Bath Road approximately 10 minutes later. He did not see Mr McIntosh when he left.

The incident

42.   At around 4.55 am Mr Daniel Finch and Mr Jarrod Robertson arrived at Sydney Survivors Gym to attend a class which commenced at 5.00 am. Prior to entering the gym Mr Finch and Mr Robertson observed the truck and trailer parked outside 118-126 Bath Road and noticed that the engine was running. Mr Finch observed Mr McIntosh standing on the footpath side of the truck near the cab. Mr Robertson saw Mr McIntosh walk along the east side of the truck.

43.   As part of the 5.00 am class, participants were required to run along Bath Road as a warm­up. A number of participants, including Ms Nicole Torrossian and Ms Donna White, observed Mr McIntosh walking around the truck and leaning towards the vehicle. They also described a strong hydraulic smell coming from the truck.

44.   When Mr Robertson and Ms Torrossian were running on Bath Road they observed Mr McIntosh in a semi-squat position alongside the footpath. They assumed Mr McIntosh was working on the truck.

45.   After Mr Robertson and Ms Torrossian had finished their warm up run, Mr McIntosh was still in the same position and Ms Torrossian questioned whether Mr McIntosh was alright. Mr Robertson approached Mr McIntosh and saw that he was trapped under a deck of the trailer.

46.   An ambulance was called at 5.13 am Mr Robertson, Mr Finch and Ms White attempted to assist Mr McIntosh. Mr Robertson and Mr Finch attempted to raise the deck in order to free Mr McIntosh; however, they were unable to do so.

47.   An ambulance arrived at the scene at 5.23 am. Mr McIntosh was pronounced deceased at 5.24 am.

Inspection of the truck & trailer following the incident

48.   Senior Constable Sean Donnelly of Sydney Crime Scene, Forensic Evidence & Technical Services Command, conducted an inspection of the truck and trailer following the incident. Senior Constable Donnelley observed:

a.   The engine of the truck was running; a key was in the ignition cylinder lock, it was in neutral gear and the parking break was engaged;

b.   A red ‘Trailer Air Supply’ button on the lower right side of the console beside the driver’s door was pressed in and the air pressure gauge was reading 400 (kPa);

c.   A red ‘Brake Low Air’ warning light was on a centre console display;

d.   Mr McIntosh was situated on the kerb side near the mid-section of the trailer. He was in a slightly raised squatting position facing towards the trailer. His head was between the lower rear deck of the trailer and its outer frame. His left hand and right lower arm were raised near his shoulders and were also between the lower rear deck of the trailer and its outer frame;

e.   In the console towards the rear of the trailer a piece of crushed up masking tape was between the button marked 10 and the button marked 4. The signs above button 10 and button 4 were labelled ‘Well Deck Front Lower’ and ‘Main Air Supply’ respectively;

f.   A roll of masking tape, a piece of crushed up masking tape and a leather glove were on the upper ramp of the trailer near the consoles;

g.   A set of red handled wire cutters were located on the ground underneath the trailer in front of Mr McIntosh’s right foot. A small clear plastic storage box containing a number of items was located in front of Mr McIntosh's left foot;

h.   The upper deck on the rear section of the trailer was down with its rear part positioned on the lower ramp and its forward part angled upward at the front.

49.   On 11 June 2019, Senior Constable Ben Wilson of the Engineering Investigation Section of NSW Police, conducted a forensic mechanical examination of the trailer. Senior Constable Wilson is a licensed and trade qualified motor mechanic.

50.   Senior Constable Wilson examined the area where Mr McIntosh was trapped by the lower deck. He observed a black airline and an air connector below the area where Mr McIntosh was trapped. The air connector was connected and holding air. When he pulled on the airline it separated from the connecter with ease.

Systems of work prior to the incident

Standard Operating Procedures and Critical Risk Controls

51.   The defendant had Standard Operating Procedures entitled ‘Doric H3 or Doric H4 Car Carrier Trailer Procedure’ (CCSOP08), ‘Vehicle Handling & Tie Down Procedure’ (CCSOP01) and ‘Loading & Unloading Vehicles on Trailer Procedure’ (CCSOP02) (the SOP’s).

52.   The SOP’s did not identify the risk of being struck by a deck on a trailer.

53.   The defendant was required to comply with LINXCCG’s safety systems including its critical risk controls (CRC) program and ‘life saving rules’. There were 11 critical risks which formed the CRC program, including a risk control relating to maintenance and inspection.

54.   The LINXCCG CRC’s for maintenance and inspection provided:

‘Each site must ensure tasks are risk assessed and safe work processes are in place for maintenance and inspection activities’

55.   The defendant did not have a SOP or safe work method statement which addressed the task of inspecting and/or repairing an air leak on a trailer.

56.   The LINXCCG CRCs for maintenance and inspection also required that:

•   ‘Each business must develop and each site must implement a process to document history of inspection, maintenance and modification that is maintained and readily available’;

57.   Under the defendant’s maintenance system, all maintenance issues required a serviceability report. However, truck drivers were not required to report minor air leaks on the serviceability reports after they had conducted repairs.

58.   The defendant’s maintenance policies and procedure also stated:

•   ‘MUST ring maintenance supervisor prior to ANY minor fault fixing to get authorisation’

59.   Similarly, the defendant’s ‘Drive Manual’ required drivers to seek permission from the maintenance manager prior to carrying out any minor fault fixing.

60.   The defendant did not enforce this requirement prior to the incident, in relation to minor airline leak repairs. Truck drivers were not required to consult Mr Blake if the air leak was minor and could be repaired themselves.

Operator’s Manual the trailer

61.   The defendant did not have an Operator’s Manual for the trailer.

62.   Doric Engineering did not provide the defendant with an Operator’s Manual for the trailer. The defendant did not obtain an Operator’s Manual from Doric Engineering for the trailer.

Isolation device

63.   The belly deck on the trailer did not have lock-in pins.

64.   The original design of the Doric H4 trailer was without lock-in pins for the belly deck. That design was then changed to include lock-in pins. Prior to the incident the defendant instructed Doric Engineering to supply Doric H4 trailers without lock-in pins on the belly decks, because the lock-in pins were causing damage to the underside of the trailer.

65.   Autocare did not provide truck drivers with any other isolation device to support the belly deck whilst minor maintenance work was being performed on the airlines of the trailer (such as packers, props or a jack).

Information, instruction and training

66.   Mr McIntosh was provided with ‘General Driver Training’ and a Driver’s Operation Manual at the commencement of his employment with the defendant. Mr McIntosh was trained and assessed as competent in the use of an H4 trailer.

67.   The ‘General Driver Training’ and ‘Driver’s Operation Manual’ did not include any information in relation to the risks of being struck or crushed by the movement of a deck on a trailer or the measures to control the risk.

68.   The LINXCCG for maintenance and inspection stated:

•   ‘Each site must ensure all personnel involved in maintenance and inspection are trained, competent and hold relevant qualifications to undertake the task’

and

‘Life Saving Rules

1. You must only perform maintenance work that you are trained and authorised to do’

69.   The defendant did not provide truck drivers with any training on fixing air leaks. The defendant considered this to be a very simple task which did not require training.

70.   The defendant did not inform or instruct truck drivers that the belly deck on the trailer must be supported with an isolation device prior to commencing any inspection or maintenance work on the air lines.

71.   The defendant did not inform or instruct truck drivers that the trailer was to be disconnected from the truck or any power sources prior to commencing maintenance work on the air lines of a trailer.

Action taken following the incident

72.   After the incident the defendant issued a Safety Alert which directed that:

a.   no repairs of any aspect of a truck or trailer are to be carried out by truck drivers;

b.   all repairs are required to be undertaken by dedicated qualified maintenance personnel;

c.   all air repair kits and any equipment relating to the repair of air lines are to be removed from trucks;

d.   in the event of mechanical concerns drivers are to pull over and contact their supervisor;

73.   The defendant also provided training to workers on ‘line of fire’ risks. The defendant informed and reinforced with drivers that they should not put themselves in a position on a car carrying trailer where they are in the line of fire of a suspended deck or uncontrolled energy force, unless that suspended deck or energy source has been locked into place with deck pins or an isolation device.”

Evidence for the Prosecutor

13. The prosecutor tendered a folder of documents which was marked as PX 1. The material admitted into evidence for the purpose of the present issue is the material behind Tabs 2, 4, 5, 6, 7, 13 and 14 of PX 1.

14. Tab 2 was the Agreed Statement of Facts.

15. Tabs 4, 5 and 6 consist of photographs taken by the police or by a SafeWork inspector.

16. Tab 7 is a statement of Senior Constable Wilson, of the Police Engineering Investigation Unit. He is a licensed and qualified motor mechanic who examined the trailer on 11 June 2019. The result of his examination was set out in par 12 of his report as follows:

“At the time of my examination, I conducted a number of tests and found that the trailer was functioning and operating correctly. I then examined the area where the deceased was located and trapped by the lower vehicle plat form. I observed several airline connectors running inside the chassis rail. I noticed a black airline and an air connector directly below where the deceased was trapped. At this time the air connector was connected and holding air. I then pulled on the line and discovered the airline separated from the connector with ease.”

17. Tab 13 in PX 1 is a copy of an email dated 19 June 2019 from Mr Boardman, the NSW State Manager of Autocare, to Mr Gjaltema of SafeWork. The email is a response to an Improvement Notice issued to Autocare. The email says:

“Hi John,

RE: In response to the Improvement Notice 7-354459

Autocare has taken a number of steps to reinforce its safety system regarding the repair of air lines on its trailers. In particular we have:

1.   We have issued a National Directive to all Autocare employees and sub-contractor drivers reinforcing our current safety system directing that no repairs are to be undertaken on our trucks or trailers by drivers in accordance with our driver manual and that any repairs are to be undertaken by dedicated qualified and trained maintenance personnel (either internal or external) who are tasked with the relevant maintenance task and trained in that task.

2.   We have removed air repair kits from trucks to reinforce the directive.

3.   We have reinforced that mechanical concerns are to be reported to supervisor and then repairs are to be made by dedicated qualified maintenance personnel.

4.   We have reinforced training on line of fire risks, particularly in relation to car carrying trailers.

We continue to assess our system and processes for maintaining our fleet and should we determine there are any tasks which drivers or our maintenance personnel are able to undertake, these tasks will be risk assessed and appropriate processes and training provided before such task is able to be undertaken, ensuring that our drivers have suitable and adequate information having regard to the nature of the work to be carried out by them.”

18. Tab 14 in PX 1 is a safety alert issued by Autocare dated 17 May 2019. It is headed “Truck and Trailer Repairs”. Under the heading “Safety Direction” the following appears:

“Safety Direction

As part of Autocare’s ongoing commitment to safety and to reinforce our current safety systems you are directed that:

1.   No repairs of any aspect of a truck or trailer are to be carried out by truck drivers.

2.   All Repairs are required to be undertaken by dedicated qualified maintenance personnel who are tasked with the maintenance of Autocare equipment (either internal or external).

3.   All air repair kits and any equipment relating to the repair of air lines are to be removed from trucks.

4.   In the event of any mechanical concerns you are directed to immediately pull over and contact your supervisor.

You are also reminded that as per Autocare’s procedures and training no one is to put themselves in a position on a car carrying trailer where they are in the line of fire of a suspended deck or uncontrolled energy force, unless that suspended deck or energy source has been locked in place with deck pins or an isolation device.”

Submissions for the Prosecutor

19. Counsel for the prosecutor submitted that, as pleaded in par 14(b)(ii) of the Amended Summons, Autocare should have developed, implemented and enforced a Safe Work Procedure or a Safe Work Method Statement (SWMS) for the task of repairing an air line on a trailer. The Amended Summons set out five matters which should have been contained in an appropriate Safe Work Procedure or SWMS. The prosecutor relied upon Part 3.1 of the Work Health and Safety Regulation 2017 (NSW) (the Regulation). Clause 34 provided as follows:

“A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety.”

20. Clause 35 provided as follows:

“A duty holder, in managing risks to health and safety, must--

(a) eliminate risks to health and safety so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety - minimise those risks so far as is reasonably practicable.”

21. The prosecutor accepted that the pleaded matters in par 14(b) of the Amended Summons were minimisation measures, rather than elimination measures.

22. It is clear from cl 34 of the Regulation that Autocare was under a duty to identify the risk of being struck and/or crushed by a deck on the trailer when it was suspended. That was a reasonably foreseeable hazard.

23. In relation to the four further steps which the Amended Summons says should have been part of a Safe Work Procedure or SWMS, counsel for the prosecutor acknowledged that there was no guidance material or expert evidence as to whether such matters were reasonably practicable. The submission made was that “common sense” dictated that these steps should have been mandated.

24. The allegation that there should have been training, information and instruction provided to non-maintenance workers in relation to the proposed new Safe Work Procedure was pleaded in par 14(b)(iv) of the Amended Summons. The submission was that if an appropriate Safe Work Procedure or SWMS was developed, then there would have been an obligation to provide training in relation to that procedure. Counsel for the prosecutor pointed to cl 39 of the Regulation which obliged a PCBU to ensure that information, training and instruction is provided to workers which is suitable and adequate having regard to the nature of the work carried out, the nature of the risks associated with the work and the control measures implemented.

25. Clearly par 14(b)(iv) of the Amended Summons stands or falls together with par 14(b)(ii) of the Amended Summons.

26. Paragraph 14(b)(iii) of the Amended Summons pleads that non-maintenance workers should have been provided with an isolation device to support the deck on the trailer. The suggested devices are lock-in pins, packers, props or a jack. Again, counsel for the prosecutor, in the absence of guidance material or expert evidence, said that this allegation succeeded as a matter of common sense.

Submissions for Autocare

27. Senior Counsel for Autocare submitted that the five elements pleaded as part of an appropriate Safe Work Procedure or SWMS in par 14(b)(ii) of the Amended Summons were cumulative. There was no submission from the prosecutor in opposition, and logically, all five elements would have had to be present for any new document to be an appropriate Safe Work Procedure or SWMS.

28. Senior Counsel pointed out that there was no guidance material in this case and no expert evidence. The crucial allegation as to the measures which should have been taken required an appropriate isolation device to be provided to a non-maintenance worker doing maintenance work on the trailer. Again, there was no evidence in relation to an appropriate device, and the submission of Senior Counsel was that the court simply did not know whether lock-in pins, packers, props or a jack would have been reasonably practicable. There was simply no evidence that such devices would have been suitable to deal with the particular deck involved in the incident.

29. Senior Counsel for Autocare pointed to par 64 of the Agreed Facts, which showed that the trailers had to be supplied without lock-in pins on the relevant deck, because lock-in pins at that point were causing damage to the underside of the trailer. This agreed fact shows that lock-in pins were not reasonably practicable.

30. Senior Counsel for Autocare pointed out that the material in PX 1, Tabs 13 and 14 did not establish what devices were reasonably practicable, as those documents simply prohibited non-maintenance workers doing any maintenance work on the trailers. The documents behind Tabs 13 and 14 were evidence in relation to par 14(a) of the Amended Summons (to which Autocare had pleaded guilty in April 2022), but were not evidence of matters pleaded in par 14(b) of the Amended Summons.

31. In relation to par 14(b)(iv) of the Amended Summons, Senior Counsel pointed out that there could be no fault in failing to provide training, information and instruction, without the prosecutor being able to establish the terms of an appropriate Safe Work Procedure or SWMS. Since it had failed to establish this, there was no breach of duty as pleaded in par 14(b)(iv).

32. Finally, Senior Counsel for Autocare submitted that because there was no evidence of what devices were reasonably practicable, the prosecution had failed to establish par 14(b)(iii) of the Amended Summons.

Consideration

33. In the absence of any evidence in the nature of guidance material or expert evidence, I accept the submissions made by Senior Counsel for Autocare that the prosecutor has not established the matters in dispute, being those pleaded in pars 14(b)(ii), (iii) and (iv) of the Amended Summons.

34. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable 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 practicable to eliminate the risk, or if not, it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.

35. “Reasonably practicable” is defined in s 18 of the Act which provides:

“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including—

(a) the likelihood of the risk concerned occurring, and

(b) the degree of harm that might result from the risk, and

(c) what the defendant knows, or ought reasonably to know, about;

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

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

37. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.

38. The statutory 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.

39. 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 the 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 Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

40. Evidence of actions taken by a defendant after the incident is admissible on the question of whether the steps particularised in the Amended Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243 at [9] and [35].

41. I find that the prosecutor has failed to prove the availability and suitability of the pleaded ways to eliminate or minimise the risk, as required by s 18(d) of the Act.

42. I find that the prosecution has failed to prove what knowledge would be possessed by persons engaged in the relevant field of activity in relation to what is reasonably practicable.

43. As recited above, there is no evidence in the nature of guidance material or expert evidence, to show what was reasonably practicable in the circumstances. Evidence of steps taken by a defendant after an incident are admissible on the issue of what was reasonably practicable to be done prior to the incident occurring. However, in this case the steps taken by Autocare after the incident (PX 1, Tabs 13 and 14) do not establish anything pleaded in par 14(b) of the Amended Summons, as the steps taken by Autocare after the accident were to prohibit workers such as Mr McIntosh doing any running repairs on the trailers. The Agreed Statement of Facts (PX 1, Tab 2) shows that there was such a prohibition in existence prior to the incident, but it was more honoured in the breach than the observance. After the incident, Autocare took steps to enforce the prohibition, a step which would have eliminated the risk, as admitted by the plea of guilty to the particulars in par 14(a) of the Amended Summons.

Conclusion and Orders

44. This judgment deals with the hearing of the matters in dispute after a plea of guilty was entered. I will record my findings on the issues in dispute at this stage. The matter will then be adjourned to an agreed date, for conclusion of the sentence hearing.

45. The orders of the court are:

1. Note that the defendant accepts that it committed a breach of duty by failing to take the measures particularised in par 14(a) and 14(b)(v) of the Amended Summons.

2. The prosecutor has failed to establish that the measures particularised in par 14(b)(ii), (iii) and (iv) of the Amended Summons were reasonably practicable.

3. Confirm that the matter has been adjourned to 13 December 2022 for finalisation of the sentence hearing.

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Decision last updated: 14 November 2022