SafeWork NSW v JBS Australia Pty Ltd (No 3)

[2023] NSWDC 382

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v JBS Australia Pty Ltd (No 3) [2023] NSWDC 382

Hearing dates:

31 July 2023; 1-4, 7-10, and 17 August 2023

Date of orders:

19 September 2023

Decision date:

19 September 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   The prosecution has proved all of the elements of the offence beyond reasonable doubt.

2   I find the defendant guilty.

Catchwords:

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

WORK HEALTH AND SAFETY – likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – failure to provide information, training and instruction - failure to undertake a risk assessment, failure to develop and implement a safe work procedure for the task of moisture testing and hay stacking – failure to train its workers on the safe work procedures

Legislation Cited:

Occupational Health and Safety Act 2000

Work Health and Safety Act 2011

Work Health and Safety Regulation 2017

Cases Cited:

Baiada Poultry Pty Ltd v R (2012) 246 CLR 92

Bulga Underground Operations v Nash [2016] NSWCCA 37

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467

Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209

Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50

Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313

Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267

Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288

Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

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

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171

R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321

R v Conlon (1993) 69 A Crim R 92

R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332

Royall v The Queen (1991) 172 CLR 378

SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316

Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304

Smith v Broken Hill Pty Ltd (1957) 97 CLR 337

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

WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166

WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

Texts Cited:

Australian Fodder Industry Association (2019) Hay Safe Information Guide

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
JBS Australia Pty Ltd (Defendant)

Representation:

Counsel:
J Agius SC with N Read (Prosecutor)
A Moses SC with P Sharp (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Loupe Legal (Defendant)

File Number(s):

2022/40927

Publication restriction:

None

Table of Contents

Introduction

Facts

Background

The JBS Australia Safety System

Induction

JBS Feedlots Induction

Team Member Handbook

Code of Conduct and Ethics

Risk assessment training

Prerequisite Competency (PRCs)

Task Training

Toolbox talks (TBTs)

Events prior to 19 February 2020

The first delivery of hay on a contract from O’Sullivans

The near miss event of 1 November 2019

The weather

Events of 19 February 2020

Evidence of Margaret Wippell

Evidence of Belinda Fletcher

Evidence of Bradley Keeys

Evidence of Allan McKenna

Evidence of Craig Pickering

Evidence of Anthony Cottee

Evidence of Nicole Radcliffe

Findings on the evidence relating to the events of 19 February 2020

Steps taken by JBS after the incident

The Elements of the Offence

Relevant Law

Causation

Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [12] of the Summons?

The pleaded risk

The likelihood of the risk occurring

The degree of harm

The defendant’s knowledge of the risk

The defendant’s knowledge of the ways of eliminating or minimising the risk

Cost of the particularised measures

Reasonably practical steps

12(a) – Failure to undertake an adequate risk assessment on the tasks of unloading hay bales, moisture testing hay bales and stacking hay bales

12(b) – Failure to develop, implement and enforce a safe work procedure for moisture testing

12(c) – Failure to develop, implement and enforce a safe work procedure for hay stacking

12(d) – Failure to provide information, training and instruction

12(e) – Failure to provide adequate supervision

12(f) – Failure to appoint a spotter

Conclusion on Element 3

Element 4 - Did the defendant’s breach of duty expose Ms Fletcher to a risk of death or serious injury?

The defendant’s submissions

Conclusion on Element 4

Conclusion and Orders

JUDGMENT

Introduction

1. JBS Australia Pty Ltd (JBS or the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Belinda Fletcher to a risk of death or serious injury contrary to s 32 of the Act.

2. On 19 February 2020, Ms Fletcher, an administrative employee of JBS, was testing the moisture levels of hay bales that had been delivered to the JBS Feedlot at Caroona (the feedlot). Each bale measured 2,350mm long by 1,260mm wide and 820mm high and weighed approximately 700 kilograms. The bales were supplied by O’Sullivan Farms, a producer from Echuca in Victoria (O’Sullivans). The bales were in the process of being unloaded from a truck and placed into a stack using a frontend loader (FEL). Before they could be placed into the stack, bales needed to be moisture tested. Bales with a high moisture content posed a risk of spontaneous combustion and were of poor nutritional value for the livestock. Moisture testing was performed by a worker inserting a probe into the bale in three different locations and recording the highest reading. Bales with a moisture content of 14% or more were either rejected by the feedlot and sent back to the supplier, or put aside for immediate use, as opposed to being placed in a stack. On the morning of the incident, Ms Fletcher was working in close proximity to a partially constructed stack when two of the bales fell on her, trapping her underneath them and causing her serious injury.

3. JBS admitted Elements 1 and 2 of the charge, which are set out at [192] below. The legal issues in the case are:

1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [12] of the Summons? (Element 3)

2. Did the defendant’s breach of duty expose Ms Fletcher to a risk of death or serious injury? (Element 4)

4. For the reasons that follow, I am satisfied beyond reasonable doubt that the defendant failed to take some of the reasonably practicable steps to ensure the health and safety of Ms Fletcher particularised in [12] of the Summons, and that those failures exposed Ms Fletcher to a risk of death or serious injury. It follows that I find the defendant guilty of the s 32 offence.

Facts

Background

5. The JBS Group is the largest meat processing company by sales in the world, producing factory-processed beef, chicken and pork and selling the by-products of processing.

6. JBS operates Australia’s largest meat and food processing business and has a number of facilities, feedlots and distribution centres across Australia. JBS’s Northern Division operates five beef processing facilities and five feedlots across Queensland and NSW, including the Caroona feedlot.

7. JBS employed the following workers at the feedlot:

1. Margaret Wippell, Livestock Supervisor;

2. Glenn McIntosh, HR & Compliance Officer;

3. Nicole Radcliffe, Feeding Supervisor. Ms Radcliffe was the supervisor of the mill department and responsible for bringing commodities into the feedlot, including hay. She was the JBS supervisor responsible for unloading the hay, moisture testing and stacking the hay. Ms Radcliffe was on leave on 19 February 2020;

4. Bradley Keeys, Feed Mill Hand (Intake). Mr Keeys was responsible for receiving commodities at the feedlot including hay, grain and silage and other tasks relating to feeding the livestock. Prior to the incident, Mr Keeys had approximately 9 years’ experience stacking hay bales at the feedlot. Mr Keeys was the feedlot’s nominated Health and Safety Representative (HSR);

5. Allan McKenna, Manure Leading Hand;

6. Ms Fletcher, Commodities Clerk and Weighbridge Attendant;

7. Anthony Cottee, Maintenance Supervisor;

8. Darrell Bridge, Feed Mill Hand (Intake). Mr Bridge was Mr Keey’s counterpart on the opposing swing shift.

8. As part of its business, JBS received hay from various contractors that was used to feed stock at the feedlot.

9. Hay bales were delivered on trucks, unloaded and stacked on approximately 20 uncovered pads. The pads were constructed of compacted material that created a hard surface. They measured up to 30 metres in length and 2.3 metres wide, depending on the size of the bales. The pads were positioned in various places around the feedlot, approximately 30–40 metres apart. The pads had a slope in them from one end to the other. Stacks were constructed from the high side of the pad down the slope because that provided better visibility for the FEL operators. The pads were separated by contour banks that controlled the movement of water in the area where the stacks were located.

10. Bales were stacked up to 6 bales high. A stack was usually constructed using the following steps. First, 3 stacks of 3 bales would be placed side-by-side, making a base of 9 bales. Second, 2 stacks of 3 bales would be placed on top of the 3 x 3 stacks with the top stacks being placed in a brick pattern, i.e., with the weight of the top stacks being evenly distributed over the two bales underneath. This was known as “offset stacking”. Third, as the stack progressed, the FEL would be used to push the stack from each side to pack the bales in tight and to provide extra stability. In the early stages of construction, stacks were very unstable and bales could, and did, fall from time to time. It was generally known at the feedlot that it was unsafe to approach a stack that was being constructed because the bales could fall.

11. JBS owned two FELs that were used to handle bales. They were equipped with hay fork attachments which enabled them to lift up to 3 bales at once.

12. Bales were moisture tested prior to being stacked for a number of reasons, including:

1. wet bales were a fire risk and provided poor nutritional value for the livestock;

2. if bales were rejected they could be returned to the supplier on the truck that delivered them;

3. it was impractical to remove a wet bale from a stack without compromising the structural integrity of the stack; and

4. wet bales could become unstable and compromise the structural integrity of a stack.

13. Bales were also assessed for their structural integrity before being placed into a stack. If a bale was loosely packed, or its strings had broken, it could collapse and compromise the structural integrity of a stack. Soft bales were identified by FEL operators and/or workers undertaking moisture testing. Bales were assessed visually and by their feel on the tynes of the FEL or with the moisture probe. Soft bales were set aside and sent to the mill for immediate use.

14. The task of hay stacking was the subject of a written Task Description at the feedlot (the Hay Stacking TD). The Hay Stacking TD contained the following relevant matters:

1. FEL operators were required to complete the pre-requisite competency training (PRC) for operating a FEL and to have been issued with the Hay Stacking TD;

2. FEL operators were required to remain aware of bystanders and other plant and machinery operating in the area as well as obstacles that could impede the safe operation of the FEL;

3. no more than 3 bales were to be lifted at once;

4. stacks were to be constructed on pads and in the dimensions directed by a supervisor;

5. bales were to be packed as tightly as possible to reduce the effect of the weather on the hay in a stack;

6. extra care was required when stacking the higher bales. Badly stacked bales were to be removed and re-stacked;

7. the Hay Stacking TD required workers to follow all WHS rules and requirements, to wear appropriate PPE and to notify any WHS issues of concern to a supervisor;

8. the final entry in the Hay Stacking TD provided (emphasis in the original)

NEVER WORK WITHIN 1.5 METERS (sic) OF THE EDGE OF STACKS

15. The Hay Stacking TD made no mention of the task of moisture testing. There was no other Task Description relating to the task of moisture testing.

16. Moisture testing was performed by different workers at the feedlot, depending on the number of deliveries being received at any one time and the demand for mill workers to perform other tasks. Moisture testing was sometimes performed by the FEL operators, Ms Radcliffe and administrative staff such as Ms Fletcher and Tanya Green, Ms Fletcher’s assistant.

17. A general practice for the tasks of unloading hay, moisture testing and stacking hay had developed over time at the feedlot, consisting of the following steps (the general practice):

1. Trucks were directed where to unload by Ms Radcliffe in consultation with Ms Fletcher. Trucks usually parked parallel to the pad where the hay was to be stacked.

2. A FEL operator would commence unloading the hay on the truck and placing it on the ground adjacent to the pad where it was to be stacked, but not on the pad. The hay would be placed in stacks of 2 or 3 bales high depending on how the truck had been loaded. If the truck was loaded 4 bales high, it was easier to remove 2 bales at a time. If a truck was loaded 3 bales high, it was easier to remove all 3 bales at once. The bales were placed a distance away from the truck, allowing sufficient room for the FEL to operate and to create separation between the operation of the FEL and the worker conducting moisture testing.

3. After a portion of the truck was unloaded, the worker conducting moisture testing would test the bales using the probe and record the results on a form. Wet and/or soft bales that were identified were sprayed with pink paint on each end of the bale to indicate that they were not to be stacked. If there was a large number of wet or soft bales, the worker conducting the moisture testing would contact a supervisor to reject the load. If a load was rejected, it would be returned to the supplier on the same truck it was delivered on. The rejection of an entire load was rare. If there were a small number of wet or soft bales, they would be taken to the hay grinder pad at the mill for immediate use. Trucks were not permitted to leave the feedlot until all of the bales had been moisture tested.

4. While the first portion of bales were moisture tested, the remainder of the bales would be unloaded to a different location adjacent to the pad, again allowing for the separation of the worker conducting the moisture testing and the FEL.

5. After the first portion of bales were moisture tested and passed, the bales placed in the first location were stacked on the pad by the FEL operator while the second portion of bales were moisture tested.

6. After the second portion of bales were moisture tested and passed, the bales placed in the second location were stacked on the pad by the FEL operator.

7. The general practice was not invariable. On occasion, an entire load was removed from a truck and placed on the ground adjacent to a pad and the FEL operator would attend to other duties while the moisture testing took place, returning later to stack the hay. Further, some FEL operators stacked the bales for moisture testing in stacks of 3, and others stacked bales for moisture testing in 2 x 2 stacks (4 bales).

18. The evidence was that the general practice was passed on at the feedlot through the buddy system of training, where a new worker was paired with an experienced worker to demonstrate how to undertake some tasks. The general practice was not the subject of more formal Task Training referred to at [35] to [40] below, which involved the buddy system concept.

19. The existence of the general practice as described, was supported by the evidence of all of the JBS workers called to give evidence in the case. I am satisfied that hay bales were usually unloaded from the truck, moisture tested and stacked in accordance with the general practice.

The JBS Australia Safety System

20. JBS had in place the “JBS Australia Safety System” that operated across all of its Australian sites. The system was based on identifying hazards, assessing the risks posed by hazards and implementing controls.

21. Workers were trained to:

1. identify hazards and to be on the lookout for potential hazards in undertaking their activities;

2. consider what may happen if a person was exposed to a hazard, that it was necessary to understand the risk assessment process and to assume that “bad things will happen to you”; and

3. take action to eliminate or minimise risks by following all procedures at all times, wearing correct PPE and completing tasks in accordance with their training;

4. continually think about safety, to remind themselves of the hazards and control measures and to notice if something was different, to say something or do something immediately.

22. The JBS Safety Training Program was comprised of four components: Induction, Pre-requisite Competency (PRC), Task Training and Toolbox Talks (TBTs).

Induction

23. Induction training was intended to raise general awareness of safety training and to introduce workers to specific WHS rules that applied to everyone on site.

JBS Feedlots Induction

24. The JBS Feedlots Induction was a training module undertaken by workers upon their commencement at the feedlot. It introduced new workers to the information in [20]-[21] above, identified common hazards including being struck by a vehicle or mobile plant, set out emergency procedures, outlined what to do if a worker was injured or hurt and set out culture and leadership goals. A worker’s knowledge and understanding of the training was assessed by a quiz at the completion of the induction.

Team Member Handbook

25. The JBS Team Member Handbook (the Handbook) also provided workers with important safety information. The Handbook identified the goal as “Just Be Safe” and asked workers to consider the impacts of a workplace injury on their friends, family, hobbies and community (the Top 4).

26. The Handbook provided examples of hazards and how they could be identified, including through risk assessment processes. The Handbook stated that JBS required its leaders to implement a risk management approach consisting of:

1. identifying hazards;

2. assessing the risk by analysing the likelihood of and consequences of an injury;

3. implementing control measures that were the most effective control that was reasonably practicable; and

4. reviewing control measures to ensure that they are working.

27. The Handbook advised operators of vehicles and plant to conduct pre-op checks, remain vigilant and alert for pedestrians, other vehicles and livestock and not to use a mobile phone while operating equipment.

28. The Handbook urged workers to consider their Top 4 before undertaking any task, directed workers to comply with the WHS Policy, to remain alert to hazards and to speak up about safety concerns to their supervisor or WHS representative.

Code of Conduct and Ethics

29. Workers were trained on the JBS Australia Code of Conduct and Ethics (the CCE) as part of their induction training. The CCE stated that a compliance with it was a condition of employment with JBS. The CCE stated that failure to comply with the CCE or JBS policies could result in disciplinary action up to and including termination.

29. The CCE stated that team members were responsible for observing safety rules and practices that applied to their work. This included a responsibility on workers to take precautions necessary to protect themselves and colleagues and included reporting accidents, injuries and unsafe practices.

Risk assessment training

31. Most of the workers at the feedlot were trained in the “Take 5” Procedure. The “Take 5” Procedure required workers to stop and to conduct a risk assessment of the task that they were going to perform and how it could be done safely. Workers carried a Take 5 booklet on their person or in machinery or plant they were operating. The booklet contained a pro forma document to be completed for each new task undertaken that encouraged workers to consider certain hazards and if there were control measures in place.

32. Formal risk assessments were conducted at the feedlot pursuant to the Hazard Identification and Risk Assessment Procedure dated 5 October 2018 (the HIRA Procedure). The HIRA Procedure provided that risk assessments were to be undertaken by WHS officers and signed off by supervisors. Trainers/Assessors were required to review risk assessments and to update Task Descriptions for each task to reflect the findings of a risk assessment. Employees were required to participate in the risk assessment process as required. There was no evidence that employees as referred to in clause 18.02 of the HIRA Procedure were trained on it.

Prerequisite Competency (PRCs)

33. Prerequisite competencies (PRCs) were training programs that focussed on activities that were common to a number of tasks on site. Examples of PRCs included the training provided to workers who were required to operate a FEL, handle livestock and use knives. The training included general principles and specific controls for to manage the hazards associated with those activities. PRCs were intended to be read in conjunction with specific procedures for the task a worker was required to complete. PRC training was mandatory for the workers undertaking the relevant activity. Workers were required to pass a knowledge and understanding test before being awarded a PRC.

34. By way of example, PRC 47 was required to be attained before a worker could operate a FEL on a JBS site. It set out important safety information and directions in relation to the use of a FEL.

Task Training

35. Task Training related to specific tasks undertaken by workers. Workers were required to be assessed as competent by an authorised trainer or supervisor in a specific task before undertaking the task without supervision. Task information was contained in a Task Description or training manual. Safety information in a training manual was divided into 4 areas:

1. what are the hazards associated with the task;

2. what are the potential consequences of each hazard;

3. what are the controls (including PPE); and

4. what is the correct method/procedure to safely complete the task.

36. Before being assessed as competent to complete a task, a worker was required to demonstrate knowledge of all of the relevant safety information and that they could complete the task using the safe procedure set out in the training manual.

37. The assessment of a worker’s competence to perform a task was formally recorded in an Assessment Form completed by the worker and a trained assessor.

38. By way of example, Ms Fletcher completed task training for “Commodity Receival/Weighbridge” and “Administrative Work”. Ms Fletcher completed task assessments for both tasks on two occasions, 20 May 2016 and 12 March 2019 conducted by WHS personnel. Ms Fletcher was assessed as competent for both tasks on both occasions.

39. The “Commodity Receival/Weighbridge” task assessment required the worker to identify and describe the steps required when undertaking this task, including conducting an equipment check, weighing in accordance with the National Weighbridge Operators Manual and ensuring that the truck operator was following all WHS procedures. The worker was then required to provide written answers to a series of questions and a short case study.

40. The “Administrative Work” task assessment was structured in the same way and addressed matters such as workstation and set-up, communications, archiving procedures and biosecurity and safety procedures. In both task assessments, the worker was taught that they could “ROLL Up” to their direct supervisor any concerns for their own welfare and/or safety issues that arose.

Toolbox talks (TBTs)

41. TBTs were formal sessions within teams run by a supervisor. Workers were required to acknowledge their attendance at a TBT and that they understood it by signing a record of the TBT. Safety information covered in TBTs included:

1. updates to legislation;

2. communication about change;

3. process reminders;

4. recognition of excellence; and

5. notice of an incident.

42. At all material times, Ms Radcliffe conducted TBTs for the mill department and occasionally Mr Cottee would attend if there was additional technical information that needed to be communicated, for example if new machinery was being introduced. Mill department TBTs were held in the mill office and the whole feeding team was required to attend. Matters discussed at TBTs were recorded on a TBT Record Form. After a TBT was conducted, the Record Form was signed by the workers. Ms Radcliffe gave evidence that sometimes she would “roll” the point over to subsequent TBTs so that the whole team received the information. If a worker was not present on the day the TBT was conducted, they would sign the Record Form at a later date after having a conversation with the leading hand or Ms Radcliffe about the information discussed in the TBT.

43. A TBT was held at the feedlot by Ms Radcliffe on 12 August 2019, after the death of a farm worker in Queensland caused by a hay bale falling onto him when it was being unloaded from a truck. Ms Radcliffe prepared the Record Form after receiving an email from James Palfreeman, JBS’s Manager of Feedlots, about the incident. The Record Form noted that the worker was unloading bales of hay using a FEL. He exited the FEL and approached a trailer to remove a strap when an unstable hay bale fell from the trailer, fatally crushing him. The TBT Record Form noted the following issues and safety instructions were discussed:

1. bales can move during a trip and fall when the straps are released. Therefore, if a truck had arrived and the bales looked unstable in any way, workers had to contact their supervisor to discuss a safety plan for unloading the truck;

2. workers were to instruct drivers to remain on the same side as the loader, within eyesight of the operator and away from the working area of the loader, or within their cab;

3. falling bales can roll away and this needs to be considered when determining everyone is at a safe distance from the loader;

4. drivers should not work around or walk along the “blind side” of trucks being unloaded;

5. if a worker does not know where a driver is, work is to stop immediately until the driver is located.

44. Ms Radcliffe gave evidence that these instructions had been provided to workers prior to the TBT on 12 August 2019. Ms Fletcher did not attend the TBT on 12 August 2019.

45. A JBS Safety Alert for the feedlot relating to the “Correct Movement of Hay” was created at about the same time as the TBT was delivered. The Safety Alert stated that movement of hay can only be undertaken with the correct vehicle, with the correct attachment and with a maximum of three bales. The Safety Alert also stated that “Only operators trained, assessed as competent and instructed to can move hay using a FEL, with hay fork attachment” and advised workers to contact Ms Radcliffe if they were in any doubt. The Safety Alert was displayed on the notice board at reception of the feedlot, near the bundy clock.

Events prior to 19 February 2020

The first delivery of hay on a contract from O’Sullivans

46. On 2 October 2019 Craig Pickering, a truck driver employed by O’Sullivans, delivered a load of hay to the feedlot that had moved in transit. Two stacks of 4 bales at the rear of the trailer were leaning towards the passenger side of the truck. Mr Pickering had tried to stabilise them by placing another strap over the load before his arrival at the feedlot.

47. When Mr Pickering arrived at the feedlot, he brought the situation to the attention of the administrative staff who notified management. Ms Radcliffe took photographs of the truck on her mobile telephone. She later downloaded the photographs and put them into a document.

48. The photographs were later circulated by email by Mr Palfreeman, as an example of a risk posed by hay bales on JBS feedlots.

49. Mr Pickering gave evidence that the bales were soft and not well constructed in that load but after that delivery, to his observation when he loaded the bales on to his truck using a FEL, the quality of the bales from O’Sullivans were firm and of better quality.

The near miss event of 1 November 2019

50. Overnight on 1 November 2019 there was a partial collapse of a haystack referred to as “Stack 1” at the feedlot. It was first noticed and reported by William Ezzy, a leading hand of the mill team. At about 6.30am on 1 November 2019, he completed an incident report form for the near miss event.

51. Mr Cottee took photographs of the partial collapse and sent them by email to Mr McIntosh and others at 7.24am on 1 November 2019.

52. Mr McIntosh completed another type of incident report form on 1 November 2019 and put the time of 7.24am on it, which was the time that he received the email from Mr Cottee. Mr McIntosh gave evidence that the information he included in the Incident Report Form came from others in discussions that occurred later in the day.

53. The near miss of 1 November 2019, the height of stacks and the quality of hay bales that were being received from O’Sullivans, was discussed at the site amongst Mr Nicholls, Ms Radcliffe, Mr McIntosh, Mr Ezzy, Mr Cottee and possibly Mr Palfreeman.

54. Ms Radcliffe’s evidence was that the quality of the hay being received from O’Sullivans was low because the bales were soft and poorly constructed and she wanted the contract to be terminated, but Mr Nicholls did not agree. In those circumstances, she said that the only other alternative was to bring the height of the stacks down to 3-4 bales high and the other participants in the meeting agreed. Ms Radcliffe’s evidence was that it was resolved to stack future deliveries of hay from O’Sullivans to no more than 3 bales high at the feedlot and a directive to that effect was given to the workers at the feedlot in a TBT.

55. No TBT Record Form was produced recording the directive allegedly given by Ms Radcliffe as to the height of hay stacks following the 1 November 2019 event.

56. Mr Cottee’s evidence was that the height of stacks was discussed at the management meeting following the 1 November 2019 event, in which he suggested that stacks be formed in an offset pyramid configuration of 3 bales high. Mr Cottee’s evidence was that Mr Palfreeman enquired of him if stacks could be 4 bales high in the pyramid configuration. Mr Cottee’s evidence was that there was no resolution of the issue at the meeting and that stacks continued to be constructed to 6 bales high at the feedlot after the 1 November 2019 event.

57. Mr Bridge’s evidence was that he was instructed by both Mr Ezzy and Ms Radcliffe to take the bales that had fallen to the ground in the partial collapse to the hay grinder pad and to restack the hay in Stack 1 to no more than 3 bales high until the hay in that delivery had been used up. Mr Bridge later restacked the hay to 3 bales high in Stack 1.

58. Mr Keeys gave evidence that he was not given a directive to stack hay from O’Sullivans, or hay generally, to stacks of no more than 3 or 4 bales high following the 1 November 2019 event. His evidence was that he would have welcomed such a directive because it would have been a lot easier and quicker to form stacks that were 3 or 4 bales high. Mr Keeys did not see stacks that were 3-4 bales high at the feedlot after 1 November 2019 or at any time. Bales were always stacked 6 high from 2011 when he started work at the feedlot until after the incident on 19 February 2020. Mr Keeys testified that there was discussion about the lack of offset stacking leading to the 1 November 2019 event but not as to the height of stacks. Mr Keeys denied that he had been given a directive by Ms Radcliffe to only stack hay 3-4 bales high.

59. Ms Wippell gave evidence that she was not aware of the directive or a TBT relating to it. Ms Fletcher gave similar evidence, but she was not usually included in TBTs conducted by the mill department. She had participated in a few TBTs that related to issues in the administration office.

60. Mr McIntosh used the information on the Incident Report Form to make entries on the WHS incident reporting system. The entries were later used in internal discussions of near misses with the HSR of the site, in weekly supervisor’s meetings at the site and with the WHS officers of other JBS sites. The entry in the Near Miss Injury Events Log for the 1 November 2019 event provided:

Hay stacks collapsed near mill. Hay was made wet by rain overnight and fell outside of work hours. The stacking in 6 high without offset was not idea (sic). Poor quality hay made wet and in less than ideal stacks was a set of factors that should have led to choices of offset / 3 and 4 height only stacks. No attempt was made to restack. Care will be used to remove as needed. Future stacking will occur using better techniques.

61. The entry in the Hazard Reporting Register for the 1 November 2019 event relevantly provided:

Hay stack collapse – six stack high not offset wet from rain and lower quality hay

Careful removal as needed. Height restricted on new hay on site.

62. The Hazard Reporting Register noted that the matter had been allocated to Ms Radcliffe and had been closed out on 1 November 2019.

63. There was some evidence in the end of month stocktakes that hay supplied by O’Sullivans were stacked 3 bales high after 1 November 2019 at the feedlot. The November 2019 stocktake recorded hay from O’Sullivans being stacked 3 bales high at Stack 1 and Stack 4. The December 2019 stocktake recorded hay from O’Sullivans being stacked 2 bales high at Stack 1, and 3 bales high at Stacks 4 and 5. The January 2019 stocktake recorded hay from O’Sullivans being stacked 3 bales high at Stacks 4 and 5 and no bales remaining at Stack 1.

64. The evidence that bales were stacked 3 bales high at Stack 1 at the end of November 2019, 2 bales high at the end of December 2019 and gone by the end of January 2019 is consistent with Mr Bridge’s evidence that he was instructed to restack the hay in Stacks 1 to 3 bales high and that it was to remain at that height until the hay was used.

The weather

65. On 17 and 18 February 2020, there was rainfall of about 26.5mm per day in the Quirindi region, where the feedlot was located. The ground of the feedlot was wet, and this made it difficult to manoeuvre trucks and FELs to unload hay.

66. At about 7.00pm on 18 February 2020, Mr Pickering arrived with a load of hay at the feedlot. He slept in the truck outside the feedlot until the morning.

Events of 19 February 2020

67. There were a number of matters in dispute relating to the events of the morning of the incident, so it is necessary to summarise the evidence of each relevant witness and I will make findings based on all of the evidence.

Evidence of Margaret Wippell

68. On 19 February 2020 Ms Radcliffe was on leave and Mr Nicholls was attending meetings in Queensland. Ms Wippell, as the Livestock Supervisor, was the second in charge of the feedlot and assumed responsibility for supervision of the operation of the feedlot on that day.

69. Mr Pickering drove his truck into the feedlot and parked adjacent to where he had last delivered a load of hay. Ms Wippell noticed the truck at some point before 6am when she was driving around the feedlot. She approached the truck and spoke to Mr Pickering. She decided that it was too wet to unload in that area and instructed Mr Pickering to move his truck to be unloaded on a pad known as Stack 9. The truck parked on the sealed road rather than trying to park between the pads because the ground was too wet to do so. There was some distance between where the truck was parked and the pad where the hay was to be stacked.

70. Ms Wippell returned to the office and spoke to Ms Fletcher who had just arrived at work. Ms Wippell asked Ms Fletcher if she had time to do the moisture testing of the hay and Ms Fletcher agreed that she did. Ms Wippell drove Ms Fletcher to where the truck was being unloaded.

71. When she arrived back at the truck, Ms Wippell believed there was one FEL operating, but she could not recall which one, or who was operating it. Ms Wippell was aware that Mr Keeys and Mr McKenna were involved in unloading the truck using FELs. She could not recall if she was involved in asking Mr Keeys to unload the truck.

72. Ms Wippell was called to a breakdown of a piece of machinery. By the time that she arrived at that location, she was told by Mr Cottee that there had been an accident.

73. When Ms Wippell arrived at Stack 9, she saw Ms Fletcher trapped under a bale of hay. That bale was removed by Mr McKenna using the FEL. Ms Wippell stayed with Ms Fletcher until she was airlifted from the feedlot.

74. In cross-examination, Ms Wippell gave evidence that she did not believe that she had asked Mr Keeys to unload the truck and that it was part of his job to do so. She denied telling Mr Keeys anything about how to unload the truck. Ms Wippell accepted that she asked Mr McKenna to relieve Mr Keeys in unloading the truck but could not recall what she said to him.

75. In re-examination, Ms Wippell gave evidence that she asked Mr McKenna to relieve Mr Keeys because she understood that Mr Keeys was required back at the mill to feed the cattle. She denied having a conversation with Mr Keeys about “double handling” the bales.

76. Ms Wippell came across as a knowledgeable witness with significant experience at the feedlot. At times she appeared tentative, but it was also apparent that the incident had a traumatic impact on her. Overall, I formed the view that she was a reliable witness whose evidence should be accepted.

Evidence of Belinda Fletcher

77. Ms Fletcher began working at the feedlot in 2009. She worked as a casual cleaner before applying for the role of Commodities Clerk. In that role, she was responsible for paperwork relating to the receipt of commodities at the feedlot and invoicing. She also performed the task of Weighbridge Attendant and was responsible for the reception and weighing of trucks delivering commodities to the feedlot.

78. Ms Fletcher was taught to perform moisture testing a few years after she commenced work at the feedlot by the Mill Supervisor, Kevin Griffith. She would be called on to undertake that work when it was busy, when there were multiple trucks coming in, or otherwise as required. Her assistant, Ms Green, also undertook moisture testing if required. Ms Fletcher had trained Ms Green on how to undertake moisture testing.

79. Ms Fletcher gave evidence that the usual procedure for moisture testing involved waiting for one side of the truck to be unloaded so that she could work on the opposite side of the truck to the FEL. The bales were placed randomly in stacks of about 2 bales high for moisture testing and would not be placed into a stack until they had been moisture tested.

80. On 19 February 2020 Ms Fletcher was asked by Ms Wippell to go to Stack 9 because there was a truck to be unloaded. Ms Fletcher had just arrived at work. She usually arrived at 7.00am. Ms Wippell drove her down to where the truck was being unloaded.

81. When she arrived, Mr Keeys was using a FEL to unload the truck. She saw a few bales in stacks of 2 placed alongside the pad that she could start moisture testing.

77. Ms Fletcher had a discussion with Mr Keeys. Her evidence was that Mr Keeys was needed back at the mill and that he had been instructed by Ms Wippell not to “double handle” the load and to get back to the mill as soon as possible. Ms Fletcher gave evidence that she understood this to mean that the bales would not be put on the ground to be moisture tested and then picked up again later and stacked on the pad.

78. At some point, Ms Fletcher noticed that Mr Keeys had begun to construct a stack on one end of the pad. The partially constructed stack at that time consisted of 9 bales placed in 3 stacks of 3 bales and one stack of 3 bales placed on top of the first 2 stacks of 3 bales in an offset stacking pattern.

79. Sometime later, another FEL driven by Mr McKenna arrived.

80. A stack of 2 bales that had not been moisture tested were placed next to the partially constructed stack. Ms Fletcher could not recall which FEL operator placed the 2 bales in that position.

81. Ms Fletcher approached the 2 bales to moisture test them. She tested the bottom bale first. She then tested the top bale. She could recall writing the result of the test but could not recall anything after that.

82. Ms Fletcher’s evidence was that she proceeded to test the 2 bales next to the partially constructed stack because they needed to be tested, but she had never had to do that before. Her understanding from speaking to Mr Keeys was that he had been instructed to do the task that way by Ms Wippell.

83. Ms Fletcher testified that she had not been trained on the content of the Hay Stacking TD and that she had not seen the document before. She also had not been trained on the “Take 5” Procedure.

84. In cross-examination, Ms Fletcher agreed that she had been taught how to undertake moisture testing using the buddy system in about 2012.

85. At T134 line 34 – 135 line 48 Ms Fletcher was asked questions and answered as follows:

Q.    I want to ask you now about a different topic. You were taught that the task of moisture testing was not to be performed once hay bales had been stacked from a pad, correct?

A.    Well, it had never ever come up.

Q.    But listen to my question. You were taught that the task of moisture testing was not to be performed once hay bales had been stacked on the pad, correct?

A.    No. I’d only ever been shown that it was to be done, but it wasn’t specified that you must never do that.

Q.    But you knew you should not be doing moisture testing once hay bales had been stacked on the pad, correct?

A.    Yes.

Q.    And that was because it was impractical to remove a high moisture bale from a stack after it had been formed, that was one of the reasons, correct?

A.    Yes.

Q.    And do you agree that it was also important and you were taught not to perform moisture testing of hay bales that were placed in, or were approximate to a six high stack? Do you agree?

A.    No.

Q.    You accept, don’t you, and you knew prior to 19 February 2020, that it was important not to perform moisture testing of hay bales at the face of a stack that was being constructed at a pad. You knew do that.

A.    That had never come up, because we just don't do that.

Q.    No, you don’t. And the reason you don't do that is because it would be dangerous to do that, correct?

A.    It would, yes.

Q.    And you knew that before 19 February, correct, ma'am?

A.    Yes.

Q.    If you saw someone conducting moisture testing at the face of a stack, you would tell them not to do it, correct?

A.    Yes.

Q.    And that’s because of the risk that the top bales could fall and injure the worker conducting the moisture testing?

A.    Yes.

Q.   Now, can I ask you this. I asked you earlier that you trained other employees on how to do moisture testing, correct?

A.    Yes.

Q.    And that included Tanya Green who commenced employment with JBS in 2017?

A.    Yes.

Q.    And you trained Tanya as to how to undertake the procedure for moisture testing?

A.    Yes.

Q.     And you taught her to do it in a safe manner, correct?

A.    Yes.

Q.    You certainly didn’t teach her to test hay bales at the face of a stack, correct?

A.    That's right.

Q.    Because that would be unsafe, correct?

A.    Yes.

91. Ms Fletcher agreed that it was rare for the unloading of the truck to occur at the same time as the moisture testing. It was more common for the truck to be entirely unloaded, the moisture testing to take place in the absence of the FEL and for Ms Fletcher to tell the FEL operator that she had finished, at which time the FEL operator would return and stack the hay on the pad.

92. Ms Fletcher agreed that the process that was followed on the day of the incident was different because of her understanding of what was occurring at the feedlot on that day. She agreed that she did not recall the conversation with Mr Keeys until she was asked about the events in a conference with the lawyers for the prosecution that took place on 15 May 2023. In re-examination, it was established that this topic was first raised by Ms Fletcher in an interview with Inspector Halcroft on 9 February 2022.

93. At T140 line 32 to T141 line 39, Ms Fletcher was asked questions and answered as follows:

Q.    On 19 February, you've told us that you were undertaking moisture testing of bales; correct?

A.    Yes.

Q.    I think you told us that you were undertaking moisture testing of bales that were already placed in the stack; correct?

A.    Yes.

Q.    You were asked a question by Mr Agius when you were conferenced with him on 15 May, "Did you think it was strange, that it is a strange that you were being asked to do the testing? Sorry, did you think it was strange that the bales being were put in the stack before the test?", and you said, "Yes, we had never done that before."?

A.    Yes.

Q.    It's correct, isn't it, you were not directed to do the testing that way by anybody; correct? On 19 February, nobody told you to undertake the moisture testing of bales that were put in the stack; correct?

A.    I was taken down to do the job, not specifically told how to do it, so.

Q.    But you had done the job previously; correct?

A.    Yes.

Q.    You had never previously

A.    No, that day was

Q.    Let me finish. I apologise.

A.    Sorry.

Q.    It's my fault, Ms Fletcher, I'm sorry. Prior to 19 February, you had never tested hay bales that were in a stack; correct?

A.    That's correct, yes.

Q.    That was contrary to your training, correct, of course, to test bales that were in a stack; correct?

A.    Yes.

Q.    It's correct, isn't it I don't mean to be disrespectful but you can't explain why you undertook the moisture testing at the face of the stack on 19 February, can you? You can't explain why you did it on that day?

A.    Because I was taken down there to do the job and that is how the job came together. So, to be taken down and yeah I was taken down to do the job, so, I just did the job.

Q.    You were taken down to do the job as you had always done the job; correct?

A.    But the the did the whole handling of the hay was different. So, it changed the dynamics completely.

Q.    When you say the whole handling of the hay was different

A.    Yep.

Q.    You are referring to, are you, what you told the lawyers for the prosecutor in relation to the issue of double handling; is that right?

A.    Yes, and the truck being further away. Everything, that day, was different.

Q.    You accept, don't you, that on 19 February, you made a mistake in testing the bales in the stack; correct? You accept that?

A.    In hindsight, yes.

94. I pause to note that the second question set out in the preceding paragraph could only have related to the 2 bales placed next to the partially constructed stack. Ms Fletcher gave evidence, which I accept, that the other bales in the partially constructed stack had already been tested and passed.

95. At T143 line 1 to T144 line 23, Ms Fletcher was asked questions and answered as follows:

Q.    You can't explain, can you, as to why you made the decision to test it that way, contrary to your training?

A.    Only that I was put there, as I said, to do the job and the – the only person to roll it up to was the person who took me down to do the job.

Q.    Who was that?

A.    Meg Wippell.

Q.    You didn't roll it up to her?

A.    No. In Richard's absence, she would be the one that I would have spoken to.

Q.    And you didn't roll it up to her, did you?

A.    No, because it was – it was sort of her – her organising that

Q.    She didn't tell you to do the moisture testing at the bales once they were in the stack; correct? Do you agree with that?

A.    Yes.

Q.    It was you who made that decision on that day; correct?

A.    Yep, based on where the where the bales were and I had to – I had to test them, so, yes.

Q.    But you accept, don't you, that was contrary to your training? As to how

AGIUS: That's been asked and answered at least twice.

MOSES: Can I ask the question? I press the question, your Honour.

HIS HONOUR: Just finish the question.

MOSES

Q.    Do you accept that what you did that day. By testing it once it was in the stack was contrary to how you had been taught to do moisture testing, correct?

A.     I had never been put in that position before, so I'm guessing yes.

Q.    Well, you had never been instructed ever to test bales once they were in stack, correct?

A.    Never been instructed not to either.

Q.    Well, you were taught – I withdraw that. You accepted, when I put the proposition to you earlier, that it would be dangerous to test for moisture testing in the face of a stack, correct? You accepted that.

A.    Yes.

Q.    And you knew that would be unsafe, correct?

A.    Yes.

Q.    But you did it on that day.

A.    Yes.

Q.    And you knew you shouldn't have done it on that day.

A.    Afterwards, when I thought back, yes.

Q.    Well

A.    Prior to that I was just following instructions.

Q.    You were not instructed to test the bales in the stack, correct?

A.    Just to do my job, and that's where the hay was.

Q.    And what I'm going to put to Ms Fletcher, respectfully if I can, is that on that day you did not act in accordance with a safe procedure to do the moisture testing, correct?

A.     Correct.

Q.    And you knew that it would be unsafe to do the moisture testing in the face of a stack before you did it that day, correct?

A.    Yes.

Q.    And you had taught Tanya Green to not do moisture testing in the face of a stack, correct?

A.    Well, that's again, I've not told her not to. We just leave that up to common sense, so yes.

96. Ms Fletcher was an impressive witness. She was careful and tried to do her best to answer the questions put to her. Clearly her recollection of some of the events was impacted by the head injury that she sustained in the incident and its after-effects, which included ongoing headaches and symptoms of post traumatic stress disorder (PTSD).

97. I do not accept Ms Fletcher’s evidence of the conversation with Mr Keeys on the topic of “double handling” of the bales for reasons which I will return to.

98. Assessing Ms Fletcher’s evidence in context, I do not accept that Ms Fletcher acted contrary to her training by testing the 2 bales placed next to the partially constructed stack. I accept her evidence that she had been trained in the general practice and that did not involve testing bales at the face of a stack. I accept her evidence that she had not been in a similar situation before the day of the incident where untested bales were placed at the face of a partially constructed stack. I accept her evidence that she had not been instructed that she was prohibited from testing bales at the face of the stack or that it was dangerous to do so.

99. Ms Fletcher was not trained on the Hay Stacking TD and did not know what safety measures the FEL operators were required to take. This included the direction not to work within 1.5m from the edge of a stack. She had not been involved in TBTs relating to tasks at the mill, including the August 2019 TBT relating to the dangers posed by falling bales.

100. I accept Ms Fletcher’s evidence that the realisation that she made a mistake on the day of the incident was one made in hindsight, by reference to the bales falling on her. I am satisfied that Ms Fletcher’s acceptance of the fact that it was dangerous to test bales at the face of a stack was also informed by hindsight.

101. I accept Ms Fletcher’s evidence that she tested the 2 bales next to the partially constructed stack because they had not been tested and that was the job that she was there to do. I am satisfied that she did so without realising the danger posed by the partially constructed stack. I am satisfied that Ms Fletcher did not act in contravention of a known safe work procedure.

102. In all other respects, I accept her evidence.

Evidence of Bradley Keeys

103. Mr Keeys gave evidence that he became aware over the 2-way radio that there was a hay truck in the feedlot to be unloaded. At the time, he was in the mill processing the feed for the cattle. He sought clarification from Ms Wippell over where the truck was to be unloaded and there was some discussion about the suitability of different locations because the ground was wet. Ms Wippell said that the truck could remain on the road to be unloaded. Mr Keeys then told the driver where to park the truck.

104. Mr Keeys denied that he received any instructions from Ms Wippell on how fast he should unload the hay or how urgent the work was. Mr Keeys denied having a conversation with Ms Wippell where the term “double handling” was used on the day of the incident.

105. Mr Keeys estimated that from where the truck was parked to the pad was a couple of hundred metres.

106. Mr Keeys commenced unloading the truck by taking 3 bales off the truck at a time and driving them down to the vicinity of the pad where the hay was to be stacked. Ms Fletcher was not in the area at that time. Mr Keeys drove back to the truck and collected 3 more bales.

107. Sometime later, Ms Fletcher came to the area. Mr Keeys recalled her driving down to the unloading site in a company utility. Mr Keeys gave evidence that by that time, he had moisture tested some of the bales, recorded the results on a piece of paper and begun to construct a stack on the pad.

108. When Ms Fletcher arrived, Mr Keeys spoke to her. He could not recall the content of that conversation. When asked if he had used the term “double handling” in that conversation he gave the following evidence at T202 line 7 to line 41:

Q.    And was that expression ever used by you in conversation with Belinda Fletcher on the morning of 19 February 2020?

A.    Only in the fact that if she was testing, it would save me moving it while she'd test, she could mark, I can then move the bales around to wherever they've got to go as opposed to me getting out and doing it. But as for yeah, only in the fact that if she's there she's taking one step away from me, like, she's taking one process away.

Q.    So, having thought about that, can you tell us the expression how double handling, how that expression was used in your conversation with Belinda.

A.    The double handling would have meant that I don't have to if I if we've got a stack three high, and she was to mark the middle one with the pink paint means it's too wet. Instead of I'm still in the loader, I can just come alone and pick up that one and separate it without having to go through that, put the dry one on, and then proceed to build the stack with the dry ones. So, that was the context. It was not anything else, just taking that step away.

HIS HONOUR: Sorry, it might be – I've jumped, Mr Agius.

Q.    Do you have a recollection of having a conversation with Ms Fletcher on the morning of the incident where you used the term "double handling"?

A.    Only in that context. Just, not having to move the bales two or three times as she's marked it, I can see which ones are marked.

Q.    Would you have any recollection of what you said to her?

A.    Not exactly, no.

Q.    Words to the effect of what you said to her?

A.    "It was good you were here to save me". I would have said double handling in in regards to if I come along and she's got, say, six bales by the end of it that have all got the pink paint, I can then take them straight up to the mill to be processed rather than me hopping out of the loader and having to move around the bales a lot. If they're marked, we can just take them straight up. So that's the double handling that I'd been referring to. Makes it a lot quicker.

109. Mr Keeys gave further evidence on this topic that did not clarify the position.

110. After that he took some bales to the far end of the pad about 50m away from the partially constructed stack to be moisture tested by Ms Fletcher. Mr Keeys thought he had put a few stacks of 3 bales in that area to be moisture tested. I pause to note that it was unclear from the photographs taken of the scene after the incident if there were one or 2 stacks of 3 bales in the area indicated by Mr Keeys, but there was at least one stack of 3 depicted in them.

111. Mr Keeys was aware that Ms Wippell had asked Mr McKenna over the two-way radio to come and relieve him from the task of unloading the truck because the FEL was required back at the mill to load the feed trucks to feed the cattle.

112. A short time later, Mr McKenna arrived in the second FEL. Mr Keeys saw Mr McKenna stop at the truck and unload some bales before driving to the pad where Mr Keeys was. Mr Keeys could not recall if Mr McKenna brought one or more loads of bales down to the pad.

113. Mr Keeys waited near the partially constructed stack for Mr McKenna to drive down the contour bank, because there was not enough room for the FELs to pass each other. As he was waiting for Mr McKenna, he saw the top 2 bales of the partially constructed stack fall off, bounce and then hit the ground.

114. Mr Keeys approached one of the fallen bales to “clean it up” while he was waiting for Mr McKenna to drive down. Mr Keeys looked for Ms Fletcher but could not see her. When he picked up the fallen bale, he saw her lying on the ground near the partially constructed stack with another bale on top of her.

115. Mr Keeys got out of the FEL and commenced first aid. Later, after others arrived, Mr McKenna used the FEL to move the other bale off Ms Fletcher.

116. Emergency services attended and Ms Fletcher was taken away. Mr Keeys could not recall having a discussion with Ms Radcliffe about the incident or the height of stacks at the feedlot. He denied that he had been told at any time that the height of stacks at the feedlot was to be limited to 3 or 4 bales.

117. In cross-examination, Mr Keeys gave evidence that he had a discussion with Mr McKenna about Ms Fletcher being present to undertake the moisture testing.

118. Mr Keeys was an unusual witness. He appeared to be more comfortable in cross-examination than he was in giving evidence-in-chief. He had trouble following some of the questions put to him. There were times when he was confused about what he was being asked.

119. Ms Radcliffe said in her evidence that he had a tendency to “babble”, which was an apt description of some of Mr Keeys’ evidence. Overall, I formed the impression that Mr Keeys was doing his best to tell the truth and that being called as a witness was a very foreign experience for him. He was understandably concerned that he could lose his job, and this was a further reason for him to be defensive. It was apparent from Mr Keeys’ evidence that he took his role as the HSR very seriously and applied himself diligently to safety issues at the feedlot. There are some aspects of Mr Keeys’ evidence that I do not accept, but I have not made those findings on the basis that Mr Keeys was an untruthful witness.

120. I do not accept Mr Keey’s evidence that he had a conversation with Ms Fletcher on the topic of “double handling”. I am satisfied that he accepted the suggestion that he had a conversation with Ms Fletcher on that topic rather than having a reliable recollection of doing so. He appeared confused when giving evidence on this topic. My understanding of his curious evidence was that anything done by someone else that saved him time would avoid “double handling” because he did not have to do it.

286. There was no PRC assessment specific to the task of moisture testing.

287. There was no independent assessment of Ms Fletcher’s ability to undertake the task of moisture testing. Whereas her other tasks were independently assessed as part of the Task Training aspect of the defendant’s WHS system.

288. As an administrative worker, Ms Fletcher was not included in TBTs conducted by the mill department that provided safety information relevant to the moisture testing task, such as the TBT delivered on 12 August 2019. Further, she was not trained in the “Take 5” Procedure that may have equipped her to deal better with the unique situation that she was presented with.

289. Ms Fletcher was not trained on the Hay Stacking TD or the task generally.

290. The introduction of the Hay Testing Manual or the Hay Stacking Manual would not have had any impact on the safety of the task unless the relevant workers were trained on those safe work procedures.

291. The defendant provided regular training to its workers at the feedlot on the tasks required to perform their roles. It had a dedicated WHS department and was capable of providing training on the Hay Testing Manual and the Hay Stacking Manual.

292. The training could have been provided at minimal cost and inconvenience to the defendant.

293. I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to have provided training to its workers on the content of the Hay Testing Manual and the Hay Stacking Manual prior to the incident.

12(e) – Failure to provide adequate supervision

296. Whether there has been a failure to provide adequate supervision is a question of fact in each case. The circumstances to be considered will ordinarily include, at least:

1. the nature of the work the worker is required to undertake;

2. the extent of the worker’s training and prior experience in the performance of such work;

3. the identity of co-workers with whom the worker will be performing the work and the extent of the training and experience of those co-workers: Vibro-Pile at [149].

297. The prosecutor advanced two submissions on this particular:

1. that a supervisor such as Ms Radcliffe or Ms Wippell should have been present to ensure compliance with a safe work procedure; and

2. that there was no evidence that the defendant undertook random safety observations of the relevant tasks in accordance with its Consultation and Communication Procedure.

298. As to the first submission, there was no evidence from which I could ascertain the cost or convenience of having a senior supervisor present for the entirety of the unloading, moisture testing and hay stacking process. On that basis, I am not satisfied beyond reasonable doubt that such a measure was reasonably practicable.

299. As to the second submission, the evidence was that the general practice was usually followed and there was a separation of pedestrians and FELs when the relevant tasks were being undertaken. The incident was a “one off” caused by a breakdown in communication, Mr McKenna’s placement of the stack of 2 bales in proximity to the partially constructed stack and gaps in Ms Fletcher’s training. I am not satisfied that random observation of the tasks of unloading hay, moisture testing and stacking hay would have identified the risk that arose on the day of the incident.

300. I am not satisfied beyond reasonable doubt that the prosecutor has established that supervision of the kind contended for was a reasonably practicable measure.

12(f) – Failure to appoint a spotter

301. The prosecutor submitted that this was a control measure mentioned in the guidance material issued by WorkCover Queensland and that “there was no reason why such a measure could not have been adopted to ensure separation between the moisture tester and the [FEL] operator”.

302. There was no evidence from which I could assess the inconvenience or cost of this measure. It would have added a potential third worker to each and every unloading operation at the feedlot. Further, I am not satisfied that having a spotter appointed on the day of the incident would have had any demonstrable impact on safety by reference to the pleaded risk. There was no evidence that the pleaded risk arose because of a lack of separation between Ms Fletcher and the FELs.

303. I am not satisfied beyond reasonable doubt that appointing a spotter was a reasonably practicable measure.

Conclusion on Element 3

304. I am satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty by failing to take the steps particularised in [12](a)-(d) of the Summons.

Element 4 - Did the defendant’s breach of duty expose Ms Fletcher to a risk of death or serious injury?

305. The relevant principles to be applied were not in dispute and are set out at [222]-[225] above.

306. I am satisfied beyond reasonable doubt that Ms Fletcher was exposed to a risk of serious injury or death and that the defendant’s conduct by failing to undertake a risk assessment, failing to develop and implement a safe work procedure for the task of moisture testing and hay stacking and to train its workers on the safe work procedures was a significant or substantial cause of exposure to the risk for the reasons that follow.

307. First, the defendant knew that the risks associated with the task of moisture testing included a worker being struck by a falling bale or being stuck by a FEL. The defendant was required to undertake a risk assessment by the Regulations and the HIRA Procedure. It failed to do so because it did not identify moisture testing as a separate task posing those risks. The defendant knew what the relevant control measures were because they were incorporated to some extent in the general practice. I am satisfied that if the defendant had conducted a risk assessment on the task of moisture testing in accordance with the HIRA Procedure that it would have identified that there was no Task Description for the task and that it would have taken steps to develop and implement a safe work procedure for that that task.

308. Second, the defendant’s failure to identify moisture testing as a separate task led to it not being incorporated into the defendant’s Safety Training Program. It was not the subject of PRC training or any assessed Task Training, as other identified tasks, such as hay stacking, were.

309. Third, the post-incident SWPs addressed the ad hoc nature of the buddy system training on the general practice, by standardising that training. The post-incident procedures filled the gaps in Ms Fletcher’s training that were identified in the evidence. They contained a clear prohibition against testing bales in a partially constructed stack and introduced stricter isolation controls that would have removed Ms Fletcher from the source of the pleaded risk as well as the risk of being struck by a FEL.

310. Fourth, the defendant failed to provide adequate training to Ms Fletcher. The evidence established that she was trained on the general practice but not that it was dangerous to conduct moisture testing close to a partially constructed stack. She was not trained on the Hay Stacking TD, the Take 5 Procedure or included in relevant TBTs conducted by the mill department. She was not assessed on her competence to conduct moisture testing safely in accordance with the Task Training procedures of the defendant’s WHS system. She did not know what to do when faced with an unusual scenario and had not been trained on the risk that it posed.

311. Finally, the failures in Ms Fletcher’s training led her to approach and moisture test the 2 bales placed next to the partially constructed stack by Mr McKenna. At that point she was exposed to the pleaded risk.

The defendant’s submissions

312. For the sake of completeness, I will now deal with the defendant’s submissions on causation.

313. The defendant submitted in its written outline of closing submissions that:

1. the cause of Ms Fletcher’s exposure to a risk of serious injury or death was her deliberate decision to undertake the moisture testing in a manner that she knew to be unsafe;

2. the Court could not be satisfied beyond reasonable doubt as to why Ms Fletcher did what she did at the time she was injured;

3. the evidence disclosed that Ms Fletcher knew of the danger of testing bales at the face of a stack because:

1. even without training, it was a matter of common sense;

2. even if she had been inadequately trained, she knew of the risk and her deliberate decision was a more immediate cause of the risk to her health and safety and would displace a finding that any of the defendant’s failures had a significant or substantial effect on the cause of the incident.

314. I reject the defendant’s submissions for the reasons that follow.

315. I have rejected the central factual premise on which they are based. For the reasons given, I have rejected the proposition that Ms Fletcher made a deliberate decision to test the bales in a manner that she knew to be unsafe or that was contrary to her training. I have found that when presented with a novel situation, that she had not been properly trained. Ms Fletcher proceeded with the task she had been given without comprehending the danger that she was in.

316. I do not need to be satisfied beyond reasonable doubt when making a finding about why Ms Fletcher acted as she did, because it is not an element of the offence. I am not satisfied on any basis that Ms Fletcher’s conduct severed the chain of causation or otherwise gives rise to a reasonable doubt on the issue of causation.

317. In the defendant’s oral submissions, it contended that the prosecutor had cast its case on the evidence of Ms Fletcher and Mr Keeys that the general practice was not followed on the day of the incident due to result of labour shortages, leading to the 2 bales being placed on the pad for moisture testing to avoid “double handling” of the bales. For the reasons given, I rejected this evidence.

318. It is fair to say that the prosecutor sought to embrace the evidence of Ms Fletcher as to why she did what she did on the day of the incident and asked the Court to infer that Mr Keeys was not telling the truth in his evidence about the “double handling” conversation. However, the prosecution case outlined in its written opening was that the risk could have been avoided by placing the bales away from the stack for moisture testing and the incident was caused by gaps in Ms Fletcher’s training and poor instruction and training of the FEL operators. At all times the prosecutor maintained that the general practice and the way in which it had been communicated to workers was insufficient and that the defendant should have adopted a “clear consistent and documented procedure” to comply with its s 19(1) duty. I am not satisfied that the prosecution case was limited, in the way contended for by the defendant, by the prosecutor seeking favourable factual findings on the “double handling issue”, or that my factual findings on the issue are fatal to the prosecution’s case.

Conclusion on Element 4

319. I am satisfied beyond reasonable doubt that the defendant’s breach of its s 19(1) duty exposed Ms Fletcher to a risk of serious injury or death.

Conclusion and Orders

320. The prosecution has proved all of the elements of the offence beyond reasonable doubt.

321. I find the defendant guilty.

322. I will list the matter on a convenient date for sentence.

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Amendments

27 October 2023 - (No 3) added to case name

Decision last updated: 27 October 2023