SafeWork NSW v Miller Logistics Pty Ltd;; SafeWork NSW v Mitchell Doble

[2024] NSWDC 58

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Miller Logistics Pty Ltd;; SafeWork NSW v Mitchell Doble [2024] NSWDC 58

Hearing dates:

12, 13, 14, 16 February 2024

Date of orders:

8 March 2024

Decision date:

08 March 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In relation to the Miller Logistics Pty Ltd Summons in proceedings No. 2022/144479:

(1)   The allegations set out in par 14(a), (b), (c), (d), (g), (h) and (i) in the Summons have been proved beyond reasonable doubt.

(2)   I find the defendant Miller Logistics Pty Ltd guilty.

(3)   The matter will be listed for sentence hearing on a date convenient to the prosecutor.

In relation to the Mitchell Doble Summons in proceedings No. 2022/144530:

(1)   The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

(2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

(3)   The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders, or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

Catchwords:

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

CRIMINAL LAW – prosecution – work health and safety – duty of officers – due diligence – risk of serious injury or death

OTHER – forklift hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts

OTHER – due diligence – work health and safety systems, processes and resources – verification – delegation – compliance officer

Legislation Cited:

Corporations Act 2001 (Cth), s 9

Criminal Appeal Act 1912 (NSW), s 5AE

Criminal Procedure Act 1986 (NSW), s 133(2)

Evidence Act 1995 (NSW), s 165

Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A, 16, 17, 18, 19, 27, 32

Work Health and Safety Regulation 2017 (NSW), cll 39, 214

Cases Cited:

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

Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

Constantanidis v R [2022] NSWCA 4

Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313

Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57

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

Orr v LakeCoal Pty Ltd [2019] NSWDC 178

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

SafeWork NSW v Hetherington [2019] NSWDC 11

SafeWork NSW v Miller Logistics; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) A Crim R 340

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

Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349

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

Texts Cited:

Code of Practice Managing the Risks of Plant in the Workplace dated August 2019

Forklifts Induction Sheet for Owners and Operators, Safe Work Australia, July 2014

General Guide for Industrial Lift Trucks, Safe Work Australia, July 2014

Michael Tooma, Tooma’s Annotated Work Health and Safety Act 2011, (Thomson Reuters, 2nd Edition)

Occupational Health and Safety Law NSW, LexisNexis

Traffic Hazard Checklist Safe Work Australia, July 2014

Category:

Principal judgment

Parties:

SafeWork NSW v Miller Logistics Pty Ltd
SafeWork NSW v Mitchell Doble

Representation:

Counsel:
M Scott (Prosecutor)
Mr Baroni / A Horne (Defendant Mitchell Doble)

Solicitors:
Department of Customer Service (Prosecutor)
Holman Webb (Defendant Mitchell Doble)

File Number(s):

2022/144479; 2022/144530

Judgment

Introduction

1. On 4 November 2020 Mr Christopher Herden, a truck driver employed by Zentry Pty Ltd (Zentry) was working at a transport depot operated by Miller Logistics Pty Ltd (Miller) in Tamworth (the site). Miller traded as Doble Express Transport (DXT). Mr Herden was working on foot assisting the driver of a B-Double trailer which was located in the loading/unloading area at the site. Mr Herden was struck by a forklift driven by another worker. He suffered serious injuries.

2. SafeWork NSW (SafeWork) prosecutes Miller in proceedings 2022/144479, alleging that Miller, being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS 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 the duty exposed workers, in particular Mr Christopher Herden, to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. SafeWork also prosecutes Mr Mitchell Doble in proceedings 2022/144530 alleging a breach of Mr Doble’s duty under s 27(1) of the WHS Act. SafeWork alleges that Mr Doble failed to exercise due diligence to ensure that Miller complied with its duty or obligation under s 19(1) of the WHS Act, because he failed to take reasonable steps to ensure that Miller had, so far as reasonably practicable, complied with its duty under the WHS Act.

Procedural History

4. Both Summonses were filed on 18 May 2022 and first came before the court for directions on 11 July 2022.

5. After several directions hearings, the matter came back before Judge Scotting on 6 March 2023. The court was informed that on 2 March 2023 Mr Gavin Moss was appointed the liquidator of Miller pursuant to a creditors’ voluntary liquidation. The prosecutor did not need leave to continue the prosecution against Miller – see Orr v LakeCoal Pty Ltd [2019] NSWDC 178. Before Judge Scotting Mr Doble entered a plea of “not guilty” on 6 March 2023.

6. The two matters were listed before me on 30 May 2023. On behalf of Miller, a plea of “not guilty” was recorded, as there was no appearance for that defendant and no plea. In the matter of Mr Doble, the court was informed that a Notice of Motion was to be filed by Mr Doble seeking a separate trial.

7. Mr Doble’s Motion was heard on 6 July 2023 and judgment was delivered on 13 July 2023: SafeWork NSW v Miller Logistics; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252. I dismissed the Notice of Motion seeking a separate trial and confirmed that both matters would proceed together as defended hearings commencing on 12 February 2024.

8. The joint trial of both defendants commenced on 12 February 2024 and concluded on 16 February 2024, when judgment was reserved. There was no appearance for Miller. The prosecution proceeded ex parte in relation to Miller. Mr Doble was represented by counsel.

9. The oral and documentary evidence for the prosecution was received in both matters. Some of the documents tendered against Mr Doble were objected to by counsel for Mr Doble, but ultimately all of the prosecution evidence went in against both defendants.

The Task of this Court

10. The joint trial of Miller and Mr Doble is a matter of administrative convenience, for the reasons set out in my earlier interlocutory judgment. I must consider the case against each accused separately. I must return a separate decision in respect of each individual accused.

11. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find.  I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process.  Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will.  I must then deliver my verdict according to the evidence.

12. The prosecution bears the onus of proving the guilt of the defendant at all times.  The defendant does not have to prove that it did not commit the offence charged.  If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.  The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt.

13. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.  The defendant then loses the presumption of innocence and I must find it guilty.  If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty.  If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.

14. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence.  I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.

15. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

16. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4. In the present case many of the witnesses worked for Miller or worked for Zentry at the site. For that reason they might have in theory attempted to minimise their own involvement or that of the defendants. I do not think that any witness did that.

The Miller Summons

The Risk

17. Paragraph 13 of the Summons pleads the risk as follows:

“The risk was the risk of workers, in particular Mr Herden, suffering serious injury or death as a result of being struck, or otherwise impacted, by a forklift whilst the workers were undertaking duties associated with the loading of transport vehicles in the loading/unloading area at the premises.”

Reasonably Practicable Measures

18. Paragraph 14 of Annexure A to the Summons pleaded nine measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively minimise, if it is not reasonably practicable to eliminate) the risk. At the conclusion of the trial, counsel for SafeWork abandoned particular 14(e).

19. Paragraph 14 pleaded 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 Herden, 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)   Provide a designated loading and unloading zone in the loading/unloading area at the premises; and/or

b)   Provide designated and clearly marked forklift movement lanes in the loading/unloading area at the premises; and/or

c)   Provide designated and clearly marked pedestrian exclusion zones in the loading and unloading area at the premises; and/or

d)   Install a physical barrier in the loading/unloading area at the premises to separate pedestrians and powered mobile plant; and/or

e)   [Abandoned]

f)   Enforce, or verify that Zentry was enforcing, the "3 metre rule" at the premises; and/or

g)   Develop, implement and enforce a safe work procedure for loading/unloading trucks and/or a traffic management plan at the premises which:

i.   identified the risk of being struck by a forklift at the premises;

ii.    described the control measures to be implemented to eliminate or control the risk, such as those measures outlined in paragraphs (a) - (f) above; and/or

h)   Provide, or require and verify that Zentry provide, an induction to new workers, which included information, instruction and training in relation to the safe work procedure and/or traffic management plan, identified in paragraph (g) above.

i)   Provide, or require and verify that Zentry provide, supervision to workers undertaking duties in the loading/unloading area to ensure that the safe work procedures and/or the traffic management plan was followed, such as those set out in paragraph (g) above.”

Exposure to a Risk of Death or Serious Injury

20. Paragraph 15 of Annexure A to the Summons pleaded that as a result of the failures by Miller, workers, and in particular Mr Herden, were exposed to a risk of death or serious injury.

Miller: The Elements of the Offence Charged

21. Section 32 of the WHS Act provides:

“A person commits a Category 2 offence if:

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.”

22. The elements of the offence are:

1. Element 1 The defendant owed the workers a duty under s 19(1) of the WHS Act;

2. Element 2 The defendant failed to comply with that duty; and

3. Element 3 The failure exposed the workers to a risk of death or serious injury.

23. The objects clause in s 3 of the WHS Act provides:

“(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by:

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

…

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

24. The offence is one of strict liability: s 12A of the WHS Act.

25. The content of the duty is set out in s 19 of the WHS Act which provides:

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

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

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

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

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

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

…

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

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

…

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

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

26. The meaning of “worker” is dealt with by s 7(1) of the WHS Act which provides:

“A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a) an employee, or

(b) a contractor or subcontractor, or

(c) an employee of a contractor or subcontractor…”

27. Section 16 of the WHS Act provides that more than one person can have a duty, and says:

“(1) More than one person can concurrently have the same duty.

(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3) If more than one person has a duty for the same matter, each person:

(a) retains responsibility for the person’s duty in relation to the matter, and

(b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”

28. Section 17 of the WHS Act deals with the management of risks and provides:

“A duty imposed on a person to ensure health and safety requires the person:

(a) to 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, to minimise those risks so far as is reasonably practicable.”

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

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

31. 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, if it was reasonably practicable to minimise it.  In this way the application of reasonable practicability may arise more than once.

32. “Reasonably practicable” is defined in s 18 of the WHS 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.”

33. 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].

34. 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 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ.

35. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [68].

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

37. 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.

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

39. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by a worker, but defendants must conduct operations on the basis that such acts will occur, and they must be guarded against to the fullest extent practicable.

40. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [127].

41. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

42. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) A Crim R 340 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130].

The Doble Summons

The Risk

43. Paragraph 14 of Annexure A to the Doble Summons pleaded particulars of the risk as follows:

“14.   The risk was the risk of workers, in particular Mr Herden, suffering serious injury or death as a result of being struck, or otherwise impacted, by a forklift whilst the workers were undertaking duties associated with the loading of transport vehicles in the loading/unloading area at the premises.”

Failure To Exercise Due Diligence

44. Paragraphs 15 and 16 of Annexure A to the Doble Summons pleaded particulars of the failures of Mr Doble to comply with his duty under s 27(1) of the WHS Act. Those paragraphs plead as follows:

“15. The defendant failed to exercise due diligence to ensure that Miller Logistics complied with its duty or obligation under section 19(1) of the Act, because he failed to take reasonable steps (as outlined in paragraph 16 below) to ensure that Miller Logistics had, as far as reasonably practicable, complied with that duty, as Miller Logistics failed to take one or more of the following reasonably practicable measures:

a)   Provide a designated loading and unloading zone in the loading/unloading area at the premises; and/or

b)   Provide designated and clearly marked forklift movement lanes in the loading/unloading area at the premises; and/or

c)   Provide designated and clearly marked pedestrian exclusion zones in the loading and unloading area at the premises; and/or

d)   Install a physical barrier in the loading/unloading area at the premises to separate pedestrians and powered mobile plant; and/or

e)   [Abandoned]

f)   Enforce, or verify that Zentry was enforcing, the "3 metre rule" at the premises; and/or

g)   Develop, implement and enforce a safe work procedure for loading/unloading trucks and/or a traffic management plan at the premises which:

i.   identified the risk of being struck by a forklift at the premises;

ii.   described the control measures to be implemented to eliminate or control the risk, such as those measures outlined in paragraphs (a) - (f) above; and/or

h)   Provide, or require and verify that Zentry provides, an induction to new workers, which includes information, instruction and training in relation to the safe work procedure and/or traffic management plan, identified in paragraph (g) above.

i)    Provide, or require and verify that Zentry provides, supervIsIon to workers undertaking duties in the loading/unloading area to ensure that the safe work procedures and/or the traffic management plan was followed, such as those set out in paragraph (g) above.

16.   The reasonable steps the defendant should have taken in exercising due diligence to ensure Miller Logistics complied with its duties and obligations under the Act included one or more of the following:

1)   Ensuring that Miller Logistics had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of Miller Logistics business or undertaking by:

a)   requiring, instructing or directing Miller Logistics to provide. a designated loading and unloading zone in the loading/unloading area at the premises; and/or

b)   requiring, instructing or directing Miller Logistics to provide designated and clearly marked forklift movement lanes in the loading/unloading area at the premises; and/or

c)   requiring, instructing or directing Miller Logistics to provide designated and clearly marked pedestrian exclusion zones in the loading and unloading area at the premises; and/or

d)   requiring, instructing or directing Miller Logistics to install a physical barrier in the loading/unloading area at the premises to separate pedestrians and powered mobile plant; and/or

e)   [Abandoned]

f)   requiring, instructing or directing Miller Logistics to enforce, or verify that Zentry was enforcing, the "3 metre rule" at the premises; and/or

g)   requiring, instructing or directing Miller Logistics to develop, implement and enforce a safe work procedure for loading/unloading trucks and/or a traffic management plan at the premises which:

i.   identified the risk of being struck by a forklift at the premises;

ii.   described the control measures to be implemented to eliminate or control the risk, such as those measures outlined in paragraphs (a) - (f) above; and/or

h)   requiring, instructing or directing Miller Logistics to provide, or requiring and verifying that Zentry provides an induction to new workers, which includes information, instruction and training in relation to the safe work procedure and/or traffic management plan, identified in paragraph (g) above.

i)   requiring, instructing or directing Miller Logistics to provide or requiring and verifying that Zentry provide supervision to workers undertaking duties in the loading/unloading area to ensure that the safe work procedures and/or the traffic management plan was followed, such as those set out in paragraph (g) above.

2) Verifying that one or more of the resources or processes listed in paragraphs 16 (1 )(a) - (i) above were provided, implemented and used by workers when undertaking work for, or on behalf of, Miller Logistics.”

Exposure to a Risk of Death or Serious Injury

45. Paragraph 17 of Annexure A to the Doble Summons pleaded that as a result of the failures of Mr Doble, workers, and in particular Mr Herden, were exposed to a risk of death or serious injury.

Doble: The Elements of the Offence Charged

46. Section 27 of the WHS Act deals with the duty of officers of a corporation. Section 27 provides as follows:

“27   Duty of officers

(1)  If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2)  Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3)  Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4)  An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5)  In this section, due diligence includes taking reasonable steps—

(a)  to acquire and keep up-to-date knowledge of work health and safety matters, and

(b)  to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c)  to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d)  to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e)  to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example—

For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

•  reporting notifiable incidents,

•  consulting with workers,

•  ensuring compliance with notices issued under this Act,

•  ensuring the provision of training and instruction to workers about work health and safety,

•  ensuring that health and safety representatives receive their entitlements to training.

(f)  to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).”

47. Section 4 of the WHS Act contains a definition of officer, which includes “an officer within the meaning of s 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership”.

48. The definition of “officer of a corporation” in s 9 of the Corporations Act 2001 (Cth) includes “a director or secretary of the corporation”. Mr Doble was the sole director and the secretary of Miller at the relevant time.

49. The elements of a Category 2 offence involving the failure of an officer to exercise due diligence (ie under s 27 of the WHS Act) are:

1. There is a corporate PCBU which has a duty or obligation under the WHS Act.

2. The accused individual is an officer of that PCBU.

3. The accused has failed to exercise “due diligence” to ensure that the PCBU complies with that duty or obligation.

4. The failure to exercise due diligence exposes an individual to a risk of death or serious injury.

50. In Occupational Health and Safety Law NSW, LexisNexis, par 2530.5 the learned authors say:

“Section 27 is a straightforward implementation of recommendation 40 of the First Report of the National Review, which was that a New Model Act should ‘place a positive duty on an officer to exercise due diligence to ensure the compliance by the entity of which they are an officer with the duties of care’ under the Act. The positive duty imposed by s 27 requires officers to be proactive and means that officers owe a continuous duty to ensure compliance with duties and obligations under the Act.”

51. The learned authors of that service also say at par 2530.30:

“The officer’s duty is to exercise due diligence to ensure that the PCBU complies with the PCBU’s duties or obligations (subsection 27(1)). This ordinary grammatical meaning is further extended by subsection 27(5) of the Act. The definition is framed in an ‘inclusive’, rather than ‘exclusive’, way. Due diligence now includes knowledge of work health and safety matters, understanding the hazards and risks associated with the business or undertaking’s operations, and resources and processes to eliminate or minimise the risks. Unlike s 26 of the OHS Act 2000 which required that the relevant company actually contravene the legislation, it appears an officer may be guilty under s 27 of the Act simply by failing to exercise due diligence, even if the company itself has not been charged or been found guilty of a breach. Due diligence also concerns information about incidents, hazards and risk, processes for complying with the PCBU’s duties and obligations, and arrangements to verify the provision and use of resources and processes.

The standard of care prescribed for officers in s 27 is ‘due diligence’. The Oxford English Dictionary defines the word ‘diligence’ as, simply: Constant and earnest effort to accomplish what is undertaken; persistent application and endeavour; industry, assiduity.

Subsection 27(5) requires an officer to be proactive in acquiring and keeping up-to-date knowledge of work health and safety matters and ensuring the PCBU has, and implements, processes for complying with any duty or obligation the PCBU has under the Act. It is a high standard to be reached. It does not place the officer directly in the position of the corporation, but requires the officer to be actively engaged in the governance of the corporation.”

52. The learned author of Tooma’s Annotated Work Health and Safety Act 2011, Thomson Reuters, 2^nd Edition expresses (in par 27.10) similar views to the matters set out above from the LexisNexis practice book.

53. The Summons in the Doble matter in par 16 specifically pleads two ways in which it is alleged that Mr Doble should have exercised due diligence.

54. Par 16(1) of the Doble Summons pleads that Mr Doble should have exercised due diligence to ensure that Miller “had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of Miller Logistics business or undertaking”. Par 16(1) of the Doble Summons then lists eight steps which should have been taken by Mr Doble to ensure due diligence in this regard.

55. Paragraph 16(1) of the Doble Summons picks up the words of s 27(5)(c) of the WHS Act, which provides that due diligence includes taking reasonable steps “to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking”.

56. Paragraph 16(2) of the Doble Summons pleads that Mr Doble should have exercised due diligence by “verifying that one or more of the resources or processes listed in par 16(1)(a)-(i) above were provided, implemented and used by workers when undertaking work for, or on behalf of, Miller Logistics”.

57. Paragraph 16(2) of the Doble Summons picks up the words of s 27(5)(f) of the WHS Act which provides that due diligence includes taking reasonable steps “to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e)”. Having regard to par 16(1) of the Doble Summons, which confines itself to pleading reasonable steps required by s 27(5)(c), the “verification” pleaded in par 16(2) of the Doble Summons is to be understood as a pleading that Mr Doble should have verified the provision and use of the resources and processes pleaded in s 27(5)(c), and particularised in par 16(1) of the Doble Summons.

58. In WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349, Staunton J held at [131]-[134] that:

“[Due diligence] is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established. Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safety standards established are in fact being adhered to and under ongoing review.”

59. Judge Scotting considered the scope of the duty imposed by s 27 of the WHS Act in SafeWork NSW v Hetherington [2019] NSWDC 11. His Honour said at [37]-[45]:

“37 The scope of the duty imposed by section 27 of the Act has not been authoritatively determined. The following matters appear to be non-controversial.

38 First, the section 27 duty is radically different to its predecessor section 26 Occupational Health and Safety Act 2000, which deemed a director on proof of a contravention by the company. The first report of the Stewart-Crompton Panel (the First Report) described section 27 as requiring an officer to be proactive to ensure compliance by the company, making the officer liable for their own acts or omissions. The approach was intended to require proactive steps by the officer for compliance by the company, with the duties of care placed on the company.

39   In McKie v Al-Hassani [2015] ACTIC 1 Chief Industrial Magistrate cited with approval the following relevant passage from Barry Sherriff and Michael Tooma, (Understanding the Model Work Health and Safety Act) (Wolters Kluher):

The approach taken by the model WHS Act, however, emphasises the corporate governance responsibilities of officers. The personal liability in that context reflects culpability of company officers in failing to meet the corporate governance responsibilities by preventing corporate misconduct. Consistent with this rationale, officers under the model laws will have a duty to ensure due diligence. Thus, their attributed liability is transformed into a positive duty to ensure compliance through sound corporate governance.

40 Second, ‘due diligence’ is defined to include taking reasonable steps to achieve the objectives set out in section 27(5)(a)-(f), but the definition of due diligence is not closed. ‘Due diligence’ in the context of the Corporations Act 2001 (Cth) has been defined as a minimum standard of behaviour involving a system which provides against contravention of relevant regulatory provisions and adequate supervision ensuring that the system is properly carried out: Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531.

41    In Inspector Kumar v Ritchie [2006] NSWIRComm 323 at [153] Haylen J considered that the due diligence defence provided for by section 26 Occupational Health and Safety Act 2000 required a systematic approach designed to achieve compliance with the regulatory scheme and to prevent contravention of it, that the system was appropriate and not a paper system designed to pay lip service to the Act and that the system was properly enforced to achieve compliance with the Act.

42    In WorkCover Authority v Daly Smith Corporation [2004] NSWIRComm 349 at 152] Staunton J described the due diligence defence as requiring that the person had put in place a system to identify and manage the risk to safety at the employer’s worksite. It involved ensuring that the workers had the skills to perform the work and ensuring that they complied with the safety standards established, by formal and informal review and auditing.

43     In Inspector Aldred v Herbert [2007] NSWIRComm 170 at [25] Backman J held that it was sufficient due diligence for directors to address safety matters at board meetings, to require managers to report on safety matters and to monitor safety as an issue.

44    In Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163 at [188] Boland P was not satisfied that the due diligence defence was established because there was no review or auditing process to ensure that the supervisors and managers were acting in compliance with the written policies.

45 Third, the exercise of due diligence and what are reasonable steps will be determined to some extent by the officer’s place in the corporate structure and their ability to control the objectives outlined in section 27(5)(a)-(f).”

60. Further, at [56]-[58], Judge Scotting said:

“56 The section 27 duty imposed on officers is not to take all reasonably practical measures to ensure compliance by the PCBU and an officer is not required to ensure the health and safety of workers.

57 An officer is required to adhere to a minimum standard of behaviour involving a system which ensures compliance by the PCBU with its duties and obligations under the Act and to provide adequate supervision to ensure that the system is properly carried out. The minimal standard of behaviour and the system is to take reasonable steps to include the objectives in section 27(5)(a)-(g).

58 Section 27 does not require that the officer undertake the reasonably practicable measures on behalf of the PCBU. A breach of section 27 by an officer is not dependent on a breach of another duty owed by the PCBU.”

Prosecution Documentary Evidence

61. The documentary evidence for SafeWork was largely contained in two folders which were marked as PX 1 and PX 2. Some, but not all, of the documents in those folders were tendered. My Associate kept a list of the documents in the folders admitted into evidence, and this list was marked MFI 1. It was provided to the solicitors for the parties, who agreed it was accurate. Once the list was agreed, the documents which were not tendered were physically removed from the folders and returned to the solicitor for SafeWork.

62. SafeWork also tendered:

1. An A4 photograph of the scene of the accident. The original version of this photograph contained in PX 1 was too small and too indistinct to make out any relevant detail (PX 3).

2. A s 155 Notice directed to Miller, together with the documents numbered 10, 11 and 12 in the Notice. These were the documents produced by Miller in relation to workplace inductions for Mr Herden, Mr Everson and Mr Hill. They were the three workers directly involved in the incident. Reference will be made to those induction records when the oral evidence of each worker is considered below (PX 4).

63. The documents in PX 1 and PX 2 were helpfully grouped into categories, which were listed in the index to the folders. I propose to consider the documents in chronological order.

Before the Incident on 4 November 2020

Service Agreement between Miller and Zentry dated 1 July 2019 (PX 1, Tab 14)

64. This Service Agreement was made between Miller as Principal and Zentry as Service Provider. Its term was from 1 July 2019 to 30 June 2023. Clause 10 (p 5) of the Service Agreement deals with “Workplace Health and Safety”. It requires both parties, and their employees, contractors and agents, to comply with all applicable workplace health and safety laws. Each party must ensure that employees, agents and subcontractors receive adequate training in workplace health and safety and risk management.

General Guide for Industrial Lift Trucks dated July 2014 published by Safe Work Australia (PX 2, Tab 61)

65. This Guide was provided by Safe Work Australia to provide information about health and safety risks for people who carry out activities involving industrial lift trucks ie forklifts. The Guide contained details about how forklift risks can be managed. It set out the following steps:

1. Identify hazards.

2. Assess risks.

3. Control risks.

4. Review control measures.

66. The Guide specifically dealt with “traffic management” on p 6. The Guide states:

“Industrial lift trucks must not collide with pedestrians or other powered mobile plant. If there is a possibility of an Industrial Lift Truck colliding with pedestrians or other vehicles you

•   must ensure the industrial lift truck has a warning device that will warn people of the movement of the industrial lift truck eg a horn or reversing alarms.

•   should set-up the workplace so industrial lift trucks, pedestrians and other vehicles are separated and their paths do not cross.

•   should provide dedicated loading and unloading areas.”

(Emphasis added)

67. The Guide also set out control measures to achieve traffic management. These included barricades for separating pedestrian and traffic areas for the use of bollards or guard rails.

Traffic Hazard Checklist dated July 2014 published by Safe Work Australia (PX 2, Tab 62)

68. This Checklist set out in table format matters to be considered in identifying potential traffic hazards arising from “powered mobile plant and other vehicles interacting with pedestrians”.

69. The list of matters to be considered include the following:

1. “Have you checked the floorplan of your workplace? Sketching the layout of the workplace can also help.”

2. “Are there physical barriers to stop vehicles and pedestrians interacting?”

3. “Are workers and other pedestrians safe from vehicles when for example:

•    hitching and unhitching trailers;

•   carrying out maintenance;

•    getting on and off mobile plant;

•    securing loads?”

4. “Can interaction between vehicles and pedestrians be eliminated or minimised? Consider mapping how often and where interaction occurs.”

5. “Are pedestrian routes designed so pedestrians will not take shortcuts?”

6. “Are workers and other pedestrians aware of the hazards? Are there procedures in place to manage risks? For example, site induction training, signage and traffic controllers.”

Forklifts Induction Sheet for Owners and Operators dated July 2014 published by Safe Work Australia (PX 2, Tab 63)

70. This Induction Sheet (PX 2, Tab 63) was a document referred to and accompanying the General Guide discussed above.

71. Under the heading “Traffic Management” the Induction Sheet says:

“Most forklift incidents involve pedestrians. Forklift trucks must not collide with pedestrians or other powered mobile plant. You should make sure there are clear, separate pathways for pedestrians and forklifts.”

(Emphasis added)

Safe Work Procedure issued in August 2017 (PX 1, Tab 15)

72. This Safe Work Procedure is on the letterhead of DXT. It was authorised by Mr James Hayter. It deals with forklift work. The operating procedure deals with:

1. Pre-operation.

2. Operation.

3. Post-operation.

73. The only mention of interaction between forklifts and pedestrians is contained under the sub-heading “Operation” where one of the dot points is:

“Look out for pedestrians at all times”.

74. It is to be noted that the Safe Work Procedure says nothing about separating forklifts and pedestrians to ensure that there is no collision between a forklift and a pedestrian.

Work Health & Safety Policy dated 31 July 2017 (PX 1, Tab 34)

75. The policy says that DXT provides, maintains and promotes a safe work environment and a safety management system by:

“•   A systematic approach to identifying, assessing and controlling health and safety hazards and risks through the development and implementation of suitable procedures;

•   Ensuring as far as practicable all operations conducted by employees and contractors are in accordance with relevant legislation and regulatory requirements and relevant industry standards;

•   Effective management demonstrated by commitment and direct involvement at all levels of the company;

•Effective two-way communication as an integral part of every job;

•   The provision of appropriate facilities, equipment, education, training and supervision for employees and contractors to ensure healthy and safe working conditions and methods.”

76. The policy also says that Doble Express Transport Management is required to “facilitate continuous improvement through periodic review of objectives and performance measures, systems, practices and procedures to ensure their continued effectiveness and relevance”.

Job Safety Analysis dated August 2017 (PX 1, Tab 29)

77. This Job Safety Analysis is on the letterhead of DXT and is authorised by Mr James Hayter. It deals with forklift operation at the Yennora depot of Miller. On p 6 of the Job Safety Analysis a noted risk is a crush or impact injury between a forklift and person. The control measures included:

“Designated areas for pedestrian and forklift to be used.”

78. It is noted that the document does not make clear whether there is one designated area for forklift and pedestrians, or whether there should be separate areas.

SafeWork NSW Improvement Notice issued on 23 October 2017 (PX 2, Tab 54)

79. This is an Improvement Notice issued to Miller in relation to the Yennora depot. Inspector Maddaford stated his belief that on 20 October 2017 at 9.30am Miller was contravening a provision of the WHS Act s 19.

80. The Improvement Notice states that workers may be exposed to the risk of being struck by moving plant and palletised loads due to an inadequate traffic management plan to control the interaction between forklift trucks and truck drivers. The Notice describes the required procedures to be:

“•    Specifying where the trucks drivers are to be located while their trailers are being loaded.

•   Ensuring the forklift trucks are not loading the trailers when the truck driver cannot be seen by the forklift driver, and

•    Specifying when the truck drivers can return to their trucks to strap and tarp their trailers.”

81. The Notice requires Miller, as far as is reasonably practicable, to develop, implement and maintain a documented traffic management plan. The plan must include, but not be limited to, the three procedures described in the Notice and set out above. The Notice requires all workers, supervisors, managers and contract drivers to be informed and trained in the traffic management plan.

82. The Notice was electronically issued on 23 October 2017 and was served by email upon Mr Hayter and upon Lofty Noah, a worker at Yennora. The Notice stated that the contravention must be remedied before 17 November 2017.

Email dated 10 November 2017 (PX 1, Tab 28)

83. This email sent on 10 November 2017 was from Mr Hayter to a large number of people. One of the recipients was Mr Doble. The subject was “Toolbox Talks”. Mr Hayter said that toolbox talks were to start from Monday, 13 November 2017 and continue fortnightly “until all staff are familiar with the processes and procedures within the company (DXT)”.

84. This email also said:

“It has become clear there are far too many incidents, near-misses or errors in judgment happening.

If it continues this way we could end up with a serious or fatal injury. All managers please grasp the bull by the horns. Enforce all safety processes/procedures and ensure they are under you [sic] control.”

85. There were attachments to the email. The relevant attachment is headed “TOOLBOX Forklift – 3 Metre Rule”. That attachment described the 3-metre rule in the following terms:

“Separation of a 3-metre distance between pedestrian and Operating PME (Powered Mobile Equipment). At all DXT sites the 3-metre rule MUST be strictly adhered to at all times, except where exclusion zones apply.”

86. The document also contained the following:

“Helping out is not worth the risk – Forklifts and people don’t mix

What are the risks?

Forklift-related incidents result in injury and death in the workplace – more than half of them are pedestrians.

The risk for those that do not follow 3-metre rules face the reality of being potentially injured or killed by a forklift operating the area.

Separation of forklift and people is essential.”

(Emphasis added)

Email dated 6 December 2017 (PX 1, Tab 27)

87. This email was from Mr Hayter to a number of people including Mr Collier and Mr Doble. It referred to SafeWork NSW visiting Yennora. It attached safety talks for forklift drivers and truck drivers to be held on 8 December 2017. The toolbox talk documentation was to be signed by those who attended, scanned and emailed back to Mr Hayter. The email included the following:

“As per the below email safety needs to come first. Speed kills and far too many forkies are speeding. (This was picked up by the safework inspector during his visit).”

88. The reference to the “below email” was a reference to an email of 10 November 2017 (PX 1, Tab 28), a copy of which was included at the foot of the email of 6 December 2017. The email attached documents relating to various topics for the toolbox talks. One of them was headed “TOOLBOX Forklift Safety”. It commenced:

“Each year, tens of thousands of injuries related to forklifts occur in the workplace. Many employees are injured when… struck by a forklift truck…”.

89. The document did not speak about separation of forklifts and pedestrians and did not mention the 3-metre rule.

Miller WHS Manual dated 8 February 2018 (PX 1, Tab 33)

90. This 148-page Manual sets out the Doble Express Transport Work Health and Safety Management System which is to apply at all sites of Doble Express Transport. The policy and procedures are formally authorised and approved by the Managing Director (p 6). The policy sets out the responsibilities of the Managing Director as follows (p 7):

“•   Formally approve the Work Health and Safety Policy.

•   Assign custody to ensure procedure is maintained and updated.

•   Formally approve the Work Health and Safety Procedures.

•    Review overall organisational health and safety performance.

•   Participate where required in the resolution of safety issues.

•   Review serious injuries/incidents and monitor corrective actions.

•   Review health and safety performance of middle management.

•   Ensure organisational compliance with health and safety legislation.”

91. Page 11 of the policy is in the same terms as the work health and safety policy dated 31 July 2017 (PX 1, Tab 34) which has been summarised above.

92. Section 3 (p 13) of the policy deals with “Hazard Identification, Assessment and Management”. Section 3.7 (p 14) of the policy is headed “Clear Marking of Designated Areas to Minimise Hazards”. It states that work areas where workers are exposed to risks or hazards are identified with proper markings.

93. Section 5 (p 15) of the policy deals with “Training and Supervision”. Section 5.1 (p 15) refers to a “First Day Induction” for new employees which is a verbal explanation, and observation of the task in a safe working environment with supervision. Part of the first day induction is an explanation to the new employee of hazards associated with the job and appropriate controls, and a description of the safe way to do the job. There is no document in PX 4 or otherwise in evidence showing that Mr Herden, Mr Hill or Mr Everson ever received such an induction.

94. Section 5 also refers to Form 06.1 entitled “First Day Induction Checklist”. There is no such checklist for Mr Herden, Mr Everson or Mr Hill in evidence.

95. Section 13 of the policy deals with “Traffic Control”. Section 13.1 (p 25) says that it is the responsibility of managers and supervisors to implement traffic control procedures relevant to pedestrians and vehicles, communicate the requirements of these procedures to workers, monitor the effectiveness of the procedures and monitor compliance. Section 13.2 deals with “Pedestrian Safety” (p 25). It requires appropriate controls to be implemented to ensure the safety of all pedestrians in and around the workplace. There must be a traffic control policy developed to ensure the health and safety of all persons while on the premises.

96. Form 01.2 is headed “Health and Safety Plan” (p 36). The Managing Director is given responsibility in relation to the following matters:

1. Adopt and review the Health & Safety Policy and associated Manual.

2. Provide safe plant and equipment.

3. Encourage consultation with employees on health and safety matters.

4. Consider hazards in the workplace and implement controls where required.

5. Ensure employees are properly trained and records kept.

97. In relation to the obligation upon the Managing Director to consider hazards in the workplace, the action required of the Managing Director is “conduct the yearly workplace inspection to identify hazards”.

98. Section 30 (p 127) of the policy deals with “WH&S Audit”. This makes the “Operations Manager” responsible for developing audit schedules and maintaining and updating all audit documentation. Any need for corrective action is to be “reviewed in the meetings held by the Managing Director”.

Code of Practice Managing the Risks of Plant in the Workplace dated August 2019 (PX 2, Tab 59)

99. This Code was created to provide practical guidance to PCBUs on how to manage health and safety risks associated with plant in the workplace. It states that plant is a major cause of work-related death and injury and that the significant risks associated with plant can result from being crushed by mobile plant (p 5). The Code specifically refers to the duty of officers to exercise due diligence (p 8).

100. The Code refers to Part 3.1 of the Work Health and Safety Regulation 2017 (NSW). The Code provides guidance on how to manage risks by a systematic process as follows:

1. Identify hazards.

2. Assess risks.

3. Eliminate risks so far as is reasonably practicable.

4. Control risks if it is not reasonably practicable to eliminate the risk.

5. Review control measures to ensure they are working as planned.

101. The Code refers to cl 39 of the WHS Regulation in relation to provision of information, training and instruction to protect all persons from risks to their health and safety arising from work carried out (p 11).

102. Section 2 of the Code deals with the risk management process in considerable detail (commencing on p 13).

Prosecution Case Against Doble: Consideration

257. As recited above, the four elements of a s 27 offence are:

1. There is a corporate PCBU which has a duty or obligation under the WHS Act. That was not a matter in dispute in the present case, and in any event, for reasons set out above I have found that Miller had a duty or obligation under the WHS Act. This element is established beyond a reasonable doubt.

2. The accused individual is an officer of the PCBU. Mr Doble was the sole director of Miller, and thus he falls within the definition of “officer”. This element is established beyond a reasonable doubt.

3. The accused has failed to exercise “due diligence” to ensure that the PCBU complies with that duty or obligation. This was the key issue in the prosecution of Mr Doble. I deal with it at length below.

4. The failure to exercise due diligence exposes an individual to a risk of death or serious injury. For reasons set out above, I have held that Mr Herden was exposed to a risk of death or serious injury. If there was a failure to exercise due diligence by Mr Doble, then his failure exposed Mr Herden to that risk. If on the other hand there was no failure to exercise due diligence, then Mr Doble is not guilty of exposing Mr Herden to a risk of death or serious injury.

258. Thus, this case turns upon whether Mr Doble failed to exercise due diligence to ensure that Miller complied with its duty or obligation under the WHS Act.

Doble: Failure to Exercise Due Diligence

259. As recited above, the Doble Summons pleads that Mr Doble failed to exercise due diligence in two respects:

1. By failing to ensure that Miller had available for use, and used, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking. Par 16(1) of the Summons pleads that Mr Doble should have carried out his duty of due diligence by “requiring, instructing or directing” Miller to take the reasonably practicable steps which Miller should have taken to ensure safety.

2. By failing to verify that one or more of the resources or processes were provided, implemented and used by workers when undertaking work for or on behalf of Miller.

260. As pointed out above, these two allegations of failure to exercise due diligence pick up the words of s 27(5)(c) and s 27(5)(f) of the WHS Act.

261. Counsel for the defendant submitted that the Doble Summons was a defective pleading, as it alleged an offence not known to the law. I reject that submission. The Doble Summons does not conflate the duty imposed on a PCBU with the duty imposed on an officer. The Doble Summons recognises that while a PCBU may fail to comply with its s 19 duty under the WHS Act (which is not an essential element of a s 27 charge), the breach of the WHS Act alleged against the director was a failure to take due diligence by two pleaded means ie ensuring the PCBU had appropriate resources and processes, and verifying that those resources and processes were implemented. Having said that, the Doble Summons does not actually plead what Mr Doble should have done to discharge his duty of due diligence. To put it in terms of the legislation, the Doble Summons does not particularise the ways in which Mr Doble failed to exercise due diligence, beyond essentially saying that he should have done something to ensure that Miller complied with its duty. What that something was is not elucidated in the Doble Summons or in the opening submissions (Tcpt 29/35-45) or closing submissions (Tcpt 255/35 – 264/7) for SafeWork.

262. The court is required to make findings of fact based upon the evidence concerning the provision by Mr Doble of resources and processes, and the verification that such resources and processes were implemented.

263. The evidence in this regard primarily comes from Mr Hayter. His evidence stated the following:

1. After commencing with DXT at the end of 2013, Mr Hayter was responsible, inter alia, for work health and safety. He commenced updating the work health and safety manual.

2. In 2017 Mr Hayter created a traffic management plan for the Yennora depot and sent this out as a template to other depots to ensure that their traffic management plans were up-to-date.

3. When he was first employed, anything to do with “compliance” (meaning work health and safety) was either done by email by Mr Hayter, or he spoke to Mr Doble or Mr Collier about work health and safety matters. When Mr Hayter started, he knew that Mr Doble and Mr Collier had regular meetings with the depot managers so that they could convey to the managers what Mr Hayter had to say about compliance.

4. Mr Hayter generally received his instructions from Mr Collier if the matter was administration-based or from Mr Doble if the matter was operations-based.

5. There were weekly management meetings. Work health and safety was always an agenda item for those meetings.

6. If a safety matter needed to be dealt with, it was attended to quickly. There was never any resistance about rectifying issues of safety.

7. Mr Hayter said that if he found that a policy or procedure was out-of-date, he would update it when he reviewed policies from time to time.

8. Mr Doble and Mr Collier kept themselves informed about what he (Mr Hayter) was doing in relation to work health and safety. Not everything needed their approval. Often Mr Hayter would go ahead and implement a safety measure which he thought appropriate.

9. At the management meetings where Mr Doble was present, the implementation of new safety measures was raised and discussed. A task involving work health and safety was allocated either to Mr Hayter, or to the operations manager, who sat above the depot managers.

10. At the following management meeting, there would be a discussion to check that the suggested safety measures had been “ticked off and implemented at the depots”. This was then minuted. Everybody would be satisfied that what had to be done had been done.

11. When Mr Hayter sent his template traffic management plan to all the depots in 2017, he assumed that traffic management plans were in place or would be put in place. He said that there was a process of continuous improvement in relation to traffic plans, policies and procedures.

12. When correspondence was sent concerning traffic management plans and their update, Mr Doble was kept informed.

13. After SafeWork made its inspections at the Tamworth depot, Mr Hayter would have informed Mr Doble about those inspections.

14. Mr Doble would have directed Mr Hayter to take the appropriate steps to ensure that there was compliance.

15. Mr Doble from time to time went and visited each depot.

16. If Mr Doble went to a depot and observed a problem, he would make a phone call to Mr Hayter and ask him to fix it.

17. Mr Hayter formed the view that Mr Doble took an active interest in ensuring that work health and safety and compliance was attended to.

18. At management meetings if anyone raised a problem with workers at a depot not listening to the depot manager, Mr Doble would direct whoever was in charge of them to chase them up and get them to do what they were instructed.

19. If there was something to do with a toolbox meeting which required urgent attention, Mr Doble would get involved and tell them to fix the problem.

264. Mr Doble was the managing director and indeed the sole director, of Miller. That does not mean that he had to do everything that the PCBU had to do to ensure safety. The WHS Act required him, as pleaded, to have processes and resources in place to ensure that the PCBU complied with its duty under the WHS Act. Miller was a medium-sized operation. It had eight depots spread throughout the State. It used a large number of transport drivers operating over a wide area. Unlike a one or two person business (such as the one Judge Scotting considered in Hetherington), a managing director in the position of Mr Doble cannot know everything that is going on at any given moment. To run a corporation there must be a level of delegation.

265. The evidence in the case shows that Mr Hayter was specifically employed to deal with work health and safety. This required Mr Hayter to not only update policies and procedures, but to deal with any issues which arose from time to time. There was no suggestion in the evidence that Mr Hayter was anything other than conscientious. There was no suggestion in the evidence that Mr Doble had any reason not to place confidence in Mr Hayter carrying out his work health and safety duties. The engagement of Mr Hayter was the primary process or resource which Mr Doble used to ensure that the PCBU carried out its duty under the WHS Act.

266. The fact that Mr Hayter failed to mandate the separation of forklifts and pedestrians is a failure by the PCBU. Of itself it is not a failure by Mr Doble to exercise due diligence.

267. Mr Doble was not a “hands-off” director in relation to work health and safety. The topic of work health and safety was listed on the agenda for every management meeting. Mr Hayter kept Mr Doble informed about matters of work health and safety at those meetings and contacted him from time to time to inform Mr Doble about safety matters and to receive instructions from Mr Doble about those matters.

268. Mr Doble was not “hands-off” in relation to the depots, and he visited each depot from time to time. If he observed a problem at a depot he would ring Mr Hayter and get Mr Hayter to fix it straight away. Mr Doble took an active interest in ensuring that work health and safety and compliance were attended to.

269. The prosecutor in a due diligence prosecution has a difficult task in that it must prove a negative. The evidence of Mr Hayter suggested that not only were things discussed with Mr Doble, but that management committee meetings were minuted. In those circumstances, if the minutes did not reflect what Mr Hayter said in his oral evidence, one would have expected the prosecutor to tender those documents and make a submission that the lack of entries concerning work health and safety in the management minutes demonstrated that due diligence was not being exercised by Mr Doble. No such documents were tendered.

270. Mr Hayter and Mr Collier both said that if there was a work health and safety matter which required attention, there was no budgetary constraint in fixing a safety problem and there was never any pushback by Mr Doble in relation to expending money on health and safety.

271. The listing of health and safety matters at management meetings as an agenda item, and the follow-up at the next management meeting to check that steps had been taken as discussed in the previous meeting, constitutes verification that the resources and processes provided to the PCBU were being implemented.

272. The evidence shows that Mr Doble put in place a system to identify and manage the risks to safety at the depots. The evidence shows that Mr Doble addressed safety matters at board meetings and required the work health and safety manager to report on safety matters and to monitor safety as an issue. The evidence also shows that Mr Doble reviewed whether or not safety matters drawn to his attention were being followed up.

273. The prosecution must prove, beyond a reasonable doubt, that Mr Doble failed to exercise due diligence to ensure that the PCBU complied with its separate duty under the WHS Act. Mr Doble was not obliged to take all reasonably practicable measures which had to be taken by the PCBU, and he was not required to ensure the health and safety of workers.

274. In light of the evidence reviewed above, and the lack of any evidence to cast doubt upon what Mr Hayter said concerning the involvement of Mr Doble in matters of health and safety, I have come to the view that SafeWork has not proved the third element of the offence. The prosecutor has not proved beyond a reasonable doubt that Mr Doble failed to exercise due diligence to ensure that Miller Logistics Pty Ltd complied with its duty or obligation under the WHS Act.

275. This means that consideration of the fourth element of the offence charged against Mr Doble (causation) is unnecessary.

Doble: Orders

276. The orders of the court are:

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

3. The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders, or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

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Decision last updated: 08 March 2024