Saunders Civilbuild Pty Ltd v SafeWork New South Wales

[2023] NSWCCA 261

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261

Hearing dates:

26 July 2023

Date of orders:

18 October 2023

Decision date:

18 October 2023

Before:

Beech-Jones CJ at CL at [1];
Walton J at [22];
McNaughton J at [398].

Decision:

(1) The appeal is dismissed.

(2) The parties have liberty to apply to Walton J within 21 days for directions in relation to any proposed appeal against sentence.

Catchwords:

APPEALS – appeal against conviction – nature of appeal - failure to establish any of the three grounds of appeal - appeal is dismissed – conviction sustained.

EMPLOYMENT AND INDUSTRIAL – prosecution – work health and safety – relevant principles – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker – s 19(1) of the Workplace Health and Safety Act 2011 (NSW) – elements of offences – reasonable practicability – Baiada – written instructions – training – supervision - relevance of post-incident conduct – essential facts – safe work procedures and methods – written instructions and directions – whether safe work methods and procedures were reasonably practicable - omissions

CRIMINAL LAW – appeal - work health and safety – exposing employee to risk of death or serious injury – conviction sustained

EVIDENCE – communication with deceased persons – rejection of evidence when it is illogical, unreliable or contradictory to a large body of alternative evidence - Landmark Roofing – accepting parts but not all evidence

Legislation Cited:

Coal Mines Act 1911 (UK)

Crimes Act 1958 (Vic)

Criminal Appeal Act 2012 (NSW), s 5AA(1)(a)

Health and Safety in Employment Act 1992 (NZ)

Metalliferous Mines General Regulations 1938 (UK)

Occupational Health & Safety Act 2004 (Vic)

Occupational Safety and Health Act 1984 (WA)

Work Health and Safety Act 2022 (NSW), s 155

Work Health and Safety (National Uniform Legislation) Act2011 (NT)

Workplace Health and Safety Act 2011 (NSW), ss 19, 32, 155

Cases Cited:

City of Adelaide v Australasian Performing Right Association (1928) 40 CLR 481; [1928] HCA 10

Allianz Australia Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14

Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27

Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112

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

Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71

City of Adelaide v Australasian Performing Right Association Ltd (1928) 40 CLR 481; [1928] HCA 10

Cullen v State Rail Authority (NSW) (1989) 31 IR 207; [1989] AR (NSW) 588

Davis v Langdon [1911] 11 SR (NSW) 149

Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43

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

Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; [2016] VSCA 55

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

Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361; (1997) 98 A Crim R 481

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Genner Constructions Pty Ltd v Work Cover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57

Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745

Hamilton v State of New South Wales [2020] NSWSC 700

Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149

Hunt v Barlow [2000] NSWSC 324

Hunter Quarries Pty Ltd v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326

Inspector Christensen v Abigroup Contractors Pty Ltd (2013) 238 IR 360; [2013] NSWIRComm 111

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1

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

Landmark Roofing Pty Ltd v Safe Work NSW [2021] NSWCCA 95

Leyshon v Western Australia [2007] WASCA 223

Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297

Nash v Silvercity Drilling NSW Pty Ltd; Attorney-General for NSW v SilvercityDrilling (NSW) Pty Ltd [2017] NSWCCA 96 New South Wales v O'Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198

Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201

Nguyen v R (2012) 267 FLR 344; [2012] ACTCA 24

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171; [1993] 3 All ER 853

R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; [2006] VSCA 181
R v Jasper [2003] NSWSC 285

R v Leonie [1999] NSWCCA 319

R v Mulcahy [2010] ACTSC 98

R v VHP (Unreported, NSWCCA, 7 July 1997

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

SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605

SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163

Shannon v Camalco Aluminium Ltd (1986) 19 IR 358

Simpson Design and Associates Pty Ltd v Industrial Court of NSW (2011) 213 A Crim R 340; [2011] NSWCA 316

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

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

State Rail Authority (NSW) v Dawson (1990) 37 IR 110

Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94; [2010] NSWCA 252

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Whelan v The Queen (2012) 228 A Crim R 1; [2012] NSWCCA 147

Work Cover Authority (NSW) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIR Comm 316

Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2

WorkCover Authority (NSW) (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447; [2001] NSWIRComm 319

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

WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

WorkCover Authority (NSW) v Police Service (NSW) (No 2) (2001) 104 IR 268; [2001] NSWIRComm 90

WorkCover Authority of (NSW) v Kirk Group Holdings Pty Ltd (2004) 135 IR 166; [2004] NSWIRComm 207

Texts Cited:

SafeWork NSW, Managing The Risk Of Falls At Workplaces, Code Of Practice (April 2016)

Category:

Principal judgment

Parties:

Saunders Civilbuild Pty Ltd (Appellant)
SafeWork NSW (Respondent)

Representation:

Counsel:
M Cunneen SC with P Barry (Appellant)
J Agius SC with M Cahill (Respondent)

Solicitors:
Moray & Agnew Lawyers (Appellant)
SafeWork NSW (Respondent)

File Number(s):

2020/32219

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 605

Date of Decision:

10 November 2021

Before:

Scotting DCJ

File Number(s):

2020/32219

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 10 November 2021, Saunders Civilbuild Pty Ltd (“the appellant”) was found to have breached its duty of care under s 19 of the Workplace Health and Safety Act 2011 (NSW) (“WHS Act”) and as a result was convicted of an offence under s 32 of the WHS Act, namely, a failure to comply with a health and safety duty that exposed individuals to a risk of death or serious injury or illness. On 18 May 2022, the appellant was ordered to pay a fine of $375,000 and to publish two Adverse Publicity Notices pursuant to s 236 of the WHS Act.

On 16 February 2018, the late Mr Edwards drove a heavy combination vehicle to transport an excavator and bundles of timber piles to a site. He was assisted by two employees of the appellant, Mr Williams, a labourer, and Mr Brown, a supervisor. Mr Brown and Mr Edwards had worked closely together for around 20 years and Mr Brown had frequently assisted Mr Edwards to load and unload trucks.

While attempting to unload the first bundle of timber, Mr Edwards climbed on top of the pile to readjust the attachment to the excavator and then gave Mr Brown a nod to lift the pile. As the pile was lifted, Mr Edwards fell backwards from the truck and onto the road where he suffered a blunt force head trauma and, notwithstanding hospital treatment, died six days later.

The appellant identified the risk of a fall from height by its policy to issue a verbal direction to its employers that they were “not allowed to climb onto the back of trucks or trailers” and the adoption of the engineering control of pre-slinging loads, such that piles are accessible from the ground. The trial judge did not find that a verbal direction was given by Mr Brown to Mr Edwards on 15 February 2018 or at any other time. Nor were such verbal directions systematically conveyed to contract drivers prior to the incident.

After the incident, the appellant, inter alia, inserted additional written safety instructions to its Safe Work Method Statements to the effect that the loading and unloading of trucks should be carried out from the ground and, if work must be carried out from a height appropriate fall, protection must be in place. The appellant also incorporated a reference to loads being slung from the ground.

The appellant sought to appeal its conviction on the following grounds:

(1) that the trial judge erred in law and fact in finding that the evidence did establish the charge had been proved beyond a reasonable doubt;

(2) that the trial judge erred in not applying his Honour’s own reasoning from his Honour’s interlocutory decision, namely, that the conjunction ‘and/or’ between the words ‘loading’ and ‘unloading’ in the charge particulars should be read as ‘and’, to the trial decision where his Honour interpreted the conjunction ‘and/or’ as ‘and/or’ and ‘or’ on many occasions; and

(3) that the trial judge erred in law and fact in finding that the word ‘permitted’ in par 16 of the charge particulars was not an essential fact that must be established by the prosecution.

The Court held (Beech-Jones CJ at CL, Walton J and McNaughton J), dismissing the appeal and allowing the parties to apply for directions in relation to any proposed appeal against sentence:

In respect of Ground 1

1. 1. Section 19 of the WHS Act is contravened where there has been a failure, on the part of a person conducting a business or undertaking to take particular measures to prevent an identifiable risk eventuating. There was requisite evidence for the primary judge to establish that the appellant failed to ensure, as far as reasonably practicable, the health and safety of workers: Walton J at [155] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]).

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338; [2016] NSWCCA 37, applied.

2. 2. When the manner in which a defendant is alleged to have committed an offence is by omission, the omission needs to be proved to have been something the defendant had a duty to do: Walton J at [164]-[165] (McNaughton J agreeing at [399]).

Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43, applied.

3. 3. The relevant question is not, did the duty holder envisage a particular danger, but rather, should it have: Walton J at [167] (McNaughton J agreeing at [399]).

WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

4. 4. The employment of the concept of a defendant having to be proactive in ensuring safety in relation to liability may distract from the real questions in relation to proof of a pleaded measure to determine a breach of duty. Nonetheless the evaluation of whether an omission amounts to a breach by a duty holder must be made in the context of the strident obligations in duty holders under the WHS Act to ensure safety: Walton J at [168] (McNaughton J agreeing at [399]).

5. 5. The trial judge was not in error in accepting Mr Brown as a witness of truth but rejecting part of the evidence of Mr Brown. The acceptance or rejection of evidence of a particular witness is a matter for the trial judge, particularly where the evidence is illogical, inherently unreliable or contradicted by a credible body of substantial evidence. Even where the witness is not challenged in cross-examination: Walton J at [240]-[247] (McNaughton J agreeing at [399]).

Landmark Roofing Pty Ltd v Safe Work NSW [2021] NSWCCA 95, applied.

The trial judge enjoyed a distinct advantage compared to this Court in assessing the credibility of witnesses and there is no basis established to interfere with those findings: Beech-Jones CJ at CL at [7] (Walton J agreeing at [243] and McNaughton J agreeing at [399]).

6. 6. There was no systematic conveyance of the verbal direction or engineering control to contract drivers prior to the incident. Mr Edwards was not given a verbal direction prior to or on 15 February 2018. This must mean that the appellant had not taken an available measure to minimise the risk of fall. There was an omission by the appellant to adopt the procedures which otherwise underpinned its safety systems by written directions: Walton J at [168], [224], [226], [228] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]).

7. 7. In circumstances when the appellant had accepted the importance of written safety procedure by its Integrated Management System or otherwise by its system of work, it was incumbent upon the appellant to evaluate whether the management of the known risk would be enhanced by written directions, appropriate training, or supervision: Walton J at [168] (McNaughton J agreeing at [399]).

8. 8. A documented practice recording the necessity to convey verbal directions accompanied by workers acknowledging in writing their receipt and understanding of such a direction was necessary. This conclusion is simply a matter of common sense and the trial judge did not need any further evidence to reach it: [11] Beech-Jones CJ at CL (McNaughton J agreeing at [399]).

9. 9. The appellant sought to control the work of sub-contractors. This was recognised by the primary judge. The appellant’s supervisor had significant obligations under those arrangements to ensure the work health & safety of sub-contractors in accordance with the written instructions or policies: Walton J at [262] (Beech-Jones CJ at CL agreeing at [11] regarding 17(a)(i)-(ii) and McNaughton J agreeing at [399]).

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, distinguished.

10. 10. The evidence discloses that written safe work procedures did minimise risk as compared to the counterpart verbal direction procedure adopted by the appellant. Those written safety procedures were required to be read, discussed, and acknowledged by workers in writing: Walton J at [265]-[266] (McNaughton J agreeing at [399]).

11. 11. Changes made by the duty holder post-incident may provide evidence that there existed, at the time of the incident, practical measures which would have reduced or eliminated the subject risk if adopted: Walton J at [268] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]).

Davis v Langdon [1911] 11 SR (NSW) 149; Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR, applied.

12. 12. The method of work, as one component of a safe system of work, is a foundational element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend, for their effective operation: Walton J at [332].

Work Cover Authority (NSW) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIR Comm 316; Genner Constructions Pty Ltd v Work Cover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57, applied.

13. 13. The appellant failed to provide adequate training in a safe work method or procedure and adequate supervision of its workers: Walton J at [297]-[316], [333], [332] (Beech-Jones CJ at CL agreeing at [11] and [17] and McNaughton J agreeing at [399]).

14. 14. Written instructions often play an important role in ensuring that duty holders meet their duties under the WHS Act, provided the written safety procedures actually address risks rather than simply constitute a global policy statement as to work health and safety. A duty holder may be required to supplement written procedures with verbal directions and reinforcements such as toolbox meetings, training, and direct management by supervisors., Nothing in this judgment should be taken as indicating the verbal directions issued by the appellant in this case were sufficient to satisfy the primary duty under s 19(1) of the WHS Act: Walton J at [274] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]).

In respect of Ground 2

15. 15. The trial judge consistently applied his Honour’s own reasoning from the interlocutory decision that the conjugation ‘and/or’ in the charge particulars should be interpreted as ‘and’. The trial judge’s approach to the risk of fall and analysis of the evidence was referable to both the loading and unloading of trucks: Walton J at [355] (Beech-Jones CJ at CL agreeing at [19] and McNaughton J agreeing at [399]).

In respect of Ground 3

16. 16. The word ‘permitted’ in the charge particulars was not an essential fact to be proved in the prosecution for a breach of duty under s 19 of the WHS Act: Walton J at [372] (Beech-Jones CJ at CL agreeing at [19] and McNaughton J agreeing at [399]).

17. 17. Given the control exerted by the appellant over Mr Edwards and Mr Williams, the appellant clearly did ‘permit’ Mr Edwards to climb onto the trailer when he attempted to unload the wood piles: Walton J at [385]-[388] (Beech-Jones CJ at CL agreeing at [19] and McNaughton J agreeing at [399]).

JUDGMENT

1. BEECH-JONES CJ at CL: On 10 November 2021, the appellant, Saunders Civilbuild Pty Ltd, was convicted of an offence under s 32 of the Work Health and Safety Act 2011 (“the WHS Act”) (SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605; (“Saunders Civilbuild (No 1)”). It appeals against that conviction pursuant to s 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW).

2. The background facts and circumstances of the prosecution along with a summary of the primary judge’s reasons are set out in the judgment of Walton J. On appeal it was accepted that the elements of the offence were that the appellant: (1) conducted a business or undertaking; (2) owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of workers engaged by it or workers whose activities are influenced or directed by it while those workers were at work in the business or undertaking; (3) failed to comply with its health and safety duty; and (4) the failure exposed an individual to risk of death or serious injury.

3. In this Court, only element (3) was in issue. The particular health and safety duty that was owed by the appellant and found to have been breached was that imposed by s 19(1) of the WHS Act, the relevant terms of which are reflected in element 2 (see [138]). Further, s 19(3) provides, inter alia, that, without limiting the duty imposed by s 19(1), a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the “provision and maintenance of safe systems of work.”

4. One of the individuals who was found to have been exposed to a risk of death or serious injury by the appellant’s breach of duty was the late Mr Geoffrey Edwards. A labourer employed by the appellant, Mr Nathan Williams, was the other. On 16 February 2018, Mr Edwards was the driver of a truck which was contracted to deliver an excavator and timber piles to a residential building site on behalf of the appellant. When he arrived at the site, he was assisted by Mr Williams, and by a supervisor employed by the appellant, Mr Stephen Brown. While they were attempting to unload the first of three bundles of timber piles, Mr Edwards climbed onto the top of the load of timber piles and Mr Williams climbed onto the trailer. After the first bundle of timber piles was lifted, Mr Edwards fell from the truck and suffered a serious head injury that led to his death a few days later.

1. The appellant clearly recognised the risks associated with persons such as Mr Edwards and Mr Williams loading and unloading materials from the trailers of trucks. The primary judge accepted that in 2017 the appellant “issued a verbal direction to its employees that they were not allowed to climb onto the back of trucks or trailers to load or unload them” and, at the same time, introduced a practice of attaching slings to bundles of piles before they were loaded onto trucks, so that they could be unloaded at their destination without the need for a person to climb onto the load or onto the back of a truck or trailer (“pre-slinging”). ^[1] However, these practices were not recorded in any of the versions of the appellant’s safety control documents known as “Safe Work Method Statements” (“SWMS”) that existed before the accident. The primary judge found that the evidence as to when the practice of giving a verbal direction commenced was “imprecise and inconsistent”. ^[2] His Honour also did not accept that verbal directions were systematically conveyed to contract drivers prior to the accident. ^[3] Critically, his Honour rejected evidence given by Mr Brown to the effect that when Mr Edwards attended the appellant’s business yard on the day before his accident to collect the excavator and the three bundles, Mr Brown told him that the “bundles of piles were pre-slung so they could be lifted off the truck from the ground because the [appellant] had a rule that no one was allowed to get up on the back of the trucks”. ^[4]

   1. (SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605; (“Saunders Civilbuild (No 1)”) at [28]; [82].

   2. Ibid at [82].

   3. Ibid at [83].

   4. Ibid at [35]; [91].

Ground 1 of the Appeal: Finding the offence proven

6. Ground 1 of the notice of appeal contends that the primary judge “erred in law and fact” in concluding that it was established by the evidence that the charge was proved beyond reasonable doubt. Clearly this ground is far too widely expressed. However, some precision surrounding the ground emerged during oral argument.

7. One aspect of the first ground of appeal is a challenge to the rejection by the primary judge of the part of Mr Brown’s evidence noted at [5]. This is addressed in detail by Walton J (at [233]-[235]). The essence of the complaint on appeal is that, in rejecting Mr Brown’s evidence partly on the basis that the supposed timing of the conversation was “far too convenient for my liking” (being the day before the accident), ^[5] the primary judge ignored the context that Mr Brown said the conversation occurred in, namely a discussion about why the piles had been tied in string (i.e. pre-slinging). ^[6] I am not satisfied that his Honour overlooked that context. An assessment of the credibility of this aspect of Mr Brown’s evidence is something that his Honour enjoyed a distinct advantage compared to this Court. Leaving aside the difference between an appeal in the strict sense and an appeal by way of rehearing, no basis for disturbing that finding has been established (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). I otherwise agree with Walton J’s reason for rejecting this challenge.

   5. Saunders at [93].

   6. Tcpt, 26 July 2023, pp 4-5.

8. As explained by Walton J, the primary judge upheld three of the four particulars set out in [17] of the Summons, each of which was sufficient to make out the charge.

9. Particular [17(a)] was upheld by the primary judge. It provided:

(a)   Providing and implementing a safe work method or safe work procedure for the loading and/or unloading of materials, such as packs of piles, from heavy combination vehicles, such as Mr Edwards’ heavy combination vehicle, including the following steps and/or requirements:

(i)   access to loads on the back of trucks and/or trailers must be obtained from the ground; and/or

(ii)   preparation of materials for the loading and/or unloading of materials including the rigging of loads, must be performed from the ground; and/or

(iii)   where access to the backs of trucks and/or trailers and/or onto loads, including the rigging of loads, is required in preparing for and/or during the loading and/or unloading of materials, appropriate fall prevention must be in place before access is obtained; and/or

(iv)   where work in preparation for and/or in the course of loading and/or unloading must be performed at height, appropriate fall prevention must be in place to address the risk of a fall.

For the purposes of fall prevention, appropriate fall protection may include a purpose built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or scaffolding.

10. The primary judge dealt with sub-particulars [17(a)(i)] and [17(a)(ii)] together. His Honour noted that these particulars “encapsulated the verbal direction and the practice of pre-slinging loads” ^[7] which I understand to mean that, at the very least, a “safe work method or safe work procedure” encompassed conveying the direction and placing loads onto trucks in a way that they could be unloaded without needing to climb onto the trailer. His Honour noted that the appellant’s relevant SWMS did not contain any reference to either of those methods. His Honour then reasoned: ^[8]

The addition of sub-paragraphs (i) and (ii) [i.e. the direction and the practice of pre-slinging loads] to the Pile Driving SWMS or the Loading and Unloading Trucks SWMS was a simple measure that could have been undertaken prior to the incident. The ease with which those matters were incorporated in the Pile Driving SWMS is demonstrated by what occurred on the afternoon of the incident. Had these measures been included in the Pile Driving SWMS and the workers on site required to sign that SWMS before commencing work, the prohibition against accessing the back of the truck would have been clearly stated and acknowledged by the workers as the way in which the work was to be carried out. In this way the defendant would have taken a reasonably practicable step to convey the verbal direction, which it accepted was necessary to control the risk posed by a fall from height from the back of a truck.

Further, Mr Brown’s evidence was that part of his role as the defendant’s supervisor at the site was to enforce the control measures contained in the Pile Driving SWMS. By contrast, he did not step in to enforce the verbal direction when he saw Mr Edwards climb onto the load. For this additional reason, I am satisfied that the inclusion of subparagraphs (i) and (ii) of particular (a) into a safe work method or safe work procedure, such as the Pile Driving SWMS, would have had a demonstrable impact on safety.

The inclusion of sub-paragraphs (i) and (ii) in a SWMS that had to be signed onto was a way of ensuring that the requirements were systematically communicated to the contract drivers. (emphasis added)

7. Saunders at [166].

8. Saunders at [168]- [170].

11. The essence of the criticism of this reasoning on appeal is that, in a context where the duty imposed by s 19(1) of the WHS Act is conditioned by the words “so far as is reasonably practicable”, there was “no evidence called to tend to prove … in the circumstances of this case, how [the measure identified in this passage] better minimised risk” compared to “Mr Brown [looking] Mr Edwards in the eye and [having] a one-to-one conversation with him telling him verbally that there is a prohibition on getting on the back of a truck”. ^[9] The obvious difficulty with this submission is that his Honour did not accept Mr Brown said that to Mr Edwards, and the balance of his Honour’s finding were to the effect that the practice of issuing verbal instructions was not systematic but was very much ad hoc. In those circumstances, his Honour considered that a documented practice that recorded the necessity to convey the direction, accompanied by having workers acknowledge in writing their receipt and understanding of such a direction, was necessary. With respect, that conclusion was simply a matter of common sense and his Honour did not need any further evidence to reach it. Otherwise, I agree with Walton J’s reasons for rejecting the challenge in relation to particulars [17(a)(i)] and [17(a)(ii)]. The findings in relation to those particulars are sufficient to uphold the conviction.

    9. Tcpt, 26 July 2023 p 7(23).

12. In relation to sub-particulars [17(a)(iii)] and [17(a)(iv)], I agree with Walton J for the reasons his Honour gives that the primary judge’s finding in relation to those particulars cannot be sustained.

13. The second particular that was established before the primary judge was as follows:

[17(b)]    Ensuring, as far as is reasonably practicable, that where its workers are engaged in the loading/unloading of materials from vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, those workers were adequately instructed and/or trained in a safe work method or procedure for the unloading of such materials, which set out the step by step requirements to be followed in preparation for and during the loading and/or unloading of materials.

14. The primary judge identified two aspects of the training that were inadequate, namely the training given to Mr Brown in that he gave evidence that he thought the practice of unloading adopted by Mr Edwards was safe, and the inadequate, i.e. non-existent, training given to Mr Edwards. ^[10] Having regard to the training measures that were introduced after the accident, his Honour found that the provision of appropriate training was a “reasonably practicable step that [the appellant] failed to take”. ^[11]

    10. Saunders at [180].

    11. Saunders at [187].

15. The main complaint made in relation to this particular is the same as that made in relation to sub-particulars [17(a)(i)] and [17(a)(ii)], which has already been addressed (at [11]). Otherwise, it was submitted that the primary judge erred in reasoning that, because something was done after the accident to minimise risk in the form of training that reflected the direction and undertaking pre-slinging, it followed that those measures should have been done prior to the accident. I do not accept his Honour so reasoned. His Honour’s finding that such training should have been undertaken was made in the context of the ostensibly ad hoc verbal warning system that was in place prior to the accident. I otherwise agree with Walton J for rejecting the challenge to the primary judge’s finding in relation to this particular.

16. Particular [17(c)] which the primary judge found was established was as follows:

Providing adequate supervision for its workers engaged in the unloading of materials from heavy combination vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, so as to ensure as far as is reasonably practicable that its workers were not exposed to a risk of falling from height whilst engaged in loading and/or unloading of materials from vehicles.

17. The primary judge’s reasons for upholding this particular, and the basis for the challenge to them, are set out in the judgment of Walton J (at [323]-[329]). I agree with his Honour’s reason rejecting that challenge.

Grounds 2 and 3 of the Notice of Appeal

18. Ground 2 of the appeal contends that the primary judge erred in not applying his Honour’s reasoning for refusing a stay of the proceedings based on the presence of the word “and/or” between the words “loading” and “unloading” in the particulars by construing it as a reference to both. Ground 3 contends that the primary judge erred in concluding that the word “permitted” in par 16 of the summons was not an essential fact that had to be established by the prosecution. Paragraph 16 alleged that the appellant “permitted” Mr Williams and/or Mr Edwards to access to the trailer of Mr Edward’s truck when he arrived at the building site.

19. I agree with Walton J’s reasons for rejecting these grounds. In relation to ground 2, it is evident from the above that the primary judge’s analysis of the evidence concerning the verbal direction and pre-slinging was referable to the loading and unloading of trucks generally and Mr Edward’s truck in particular. In relation to ground 3, given the control exerted by the appellant over Mr Edwards and Mr Williams at the site at which Mr Edwards attended, it clearly did “permit” him to climb onto the trailer attached to his truck when he attempted to unload the excavator and wood piles. In any event, that was not an “essential fact” that had to be proved by the prosecution to make out the charge.

Future progress

20. Lastly, I note that at the hearing of the appeal there was some uncertainty about whether the appeal extended to include an appeal against sentence. The appeal concluded on the basis that the Court would publish its judgment in relation to the conviction appeal with the parties then having liberty to apply in respect of sentence. The parties should have liberty to apply to Walton J for directions in relation to sentence, although it should be noted that if a sentence appeal is to be pursued, a new Court will need to be constituted by the Chief Justice.

21. I agree with the orders proposed by Walton J.

22. WALTON J: By a Notice of Appeal filed 13 February 2023, Saunders Civilbuild Pty Ltd (“the appellant”) brought an appeal under s 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW) against a conviction for an offence contrary to ss 19(1) and 32 of the Workplace Health and Safety Act 2011 (NSW) (“WHS Act”).

23. The conviction followed upon the judgment of Scotting DCJ (“the primary judge”) on 10 November 2021 in which his Honour found that the offence had been proven: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 (“Saunders Civilbuild (No 1)”).

24. The conviction was formally entered at the conclusion of the sentence proceedings on 18 May 2022. In his Honour’s sentencing decision, Scotting DCJ ordered the appellant to pay a fine of $375,000 along with a series of adverse publication orders pursuant to s 236 of the WHS Act: SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163.

25. Whilst the Notice of Appeal in these proceedings refers to an appeal on conviction and sentence, the sentencing judgment of Scotting DCJ was not formally put before the Court and no submissions were advanced with respect to that appeal.

26. A submission was faintly advanced by Ms M Cunneen, senior counsel for the appellant, that a determination by this Court that the appeal was partially successful might result in a revisiting of the sentence imposed upon the appellant, conceivably because the establishment of a single particular of a charge is sufficient to sustain the conviction of the appellant: Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361; (1997) 98 A Crim R 481 at 365 (Gleeson CJ with whom Ireland and Bruce JJ agreed).

The Prosecution

27. The charges arose from circumstances in which Mr Geoffrey Edwards fell from his truck during the course of unloading piles under contract with the appellant for the purposes of the appellant undertaking piling works on behalf of Beechwood Homes (NSW) Pty Ltd (“Beechwood”) at Lot 87, 4 Rigney Place Shoal Bay (“the site”). Mr Edwards suffered a blunt force head trauma and not withstanding hospital treatment, he died six days after his fall on 16 February 2018 (“the incident”).

28. On 31 January 2020, SafeWork NSW (“the respondent”), brought a prosecution against the appellant by a Summons filed in the District Court of NSW on 31 January 2020 (“the Summons”), alleging, as mentioned, contraventions of ss 19(1) and 32 of the WHS Act (“the charge”).

29. The charge alleged the following:

On 16 February 2018, at Lot 87 (also known as “4”) Rigney Place Shoal Bay in the State of New South Wales, Saunders Civilbuild Pty Ltd, being a person conducting a business or undertaking, who had a duty under s 19(1) of the Work Health and Safety Act 2022 (the Act) to ensure so far as reasonably practicable, the health and safety of workers while workers are at work in the business or undertaking, did fail to comply with the duty and the failure to comply with that duty exposed workers, in particular, Mr Nathan Williams and/or Mr Geoffrey Edwards to a risk of death or serious injury, contrary to section 32 of the Act.

30. The appellant entered a plea of not guilty to the charge and the proceedings were heard in a summary trial before Scotting DCJ on 20, 21 and 22 September 2021 and 5 and 7 October 2021. Relevantly, the particulars of the charge were:

16. The defendant permitted Mr Williams and/or Mr Edwards to access the trailer of the heavy combination vehicle and/or the frames on the trailer and/or the load on the frames during preparation for and/or during the unloading the packs of piles from the heavy combination vehicle.

17. The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Williams and/or Mr Edwards, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers.

a) Providing and implementing a safe work method or safe work procedure for the loading and/or unloading of materials, such as packs of piles, from heavy combination vehicles, such as Mr Edwards’ heavy combination vehicle, including the following steps and/or requirements:

i) access to loads on the back of trucks and/or trailers must be obtained from the ground; and/or

ii) preparation of materials for the loading and/or unloading of materials including the rigging of loads, must be performed from the ground; and/or

iii) where access to the backs of trucks and/or trailers and/or onto loads, including the rigging of loads, is required in preparing for and/or during the loading and/or unloading of materials, appropriate fall prevention must be in place before access is obtained; and/or

iv) where work in preparation for and/or in the course of loading and/or unloading must be performed at height, appropriate fall prevention must be in place to address the risk of a fall.

For the purposes of fall prevention, appropriate fall protection may include a purpose built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or scaffolding.

b) Ensuring, as far as is reasonably practicable, that where its workers are engaged in the loading/unloading of materials from vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, those workers were adequately instructed and/or trained in a safe work method or procedure for the unloading of such materials, which set out the step by step requirements to be followed in preparation for and during the loading and/or unloading of materials.

c) Providing adequate supervision for its workers engaged in the unloading of materials from heavy combination vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, so as to ensure as far as is reasonably practicable that its workers were not exposed to a risk of falling from height whilst engaged in loading and/or unloading of materials from vehicles.

d) Consulting, co-operating and co-ordinating with other duty holders at the site, in particular Mr Edwards, to ensure that the above measures and processes were implemented and enforced during loading and/or unloading of materials from heavy combination vehicles.

18. On or about 16 February 2018, as a result of the defendant’s failures, workers were exposed to a risk of death or serious injury whilst at work in the defendant’s business undertaking.

19. On or about 16 February 2018, whilst preparing for and/or engaging in the unloading of materials, namely a pack of piles, from the heavy combination, Mr Edwards fell from height and sustained serious injury.

20. The injuries sustained, by Mr Edwards, which result in Mr Edward’s death, were a manifestation of the risk.

31. Scotting DCJ found particulars 17(a)(i)-(iv); (b) and (c) of the charge proven beyond reasonable doubt. His Honour found that the prosecution had not proved the final particular beyond a reasonable doubt (at [17](d)).

Factual Background

32. The appellant operated a business involving construction work including bridge design and construction, wharf construction, major concrete and building works, pre-cast concrete manufacturing and piling works. The appellant's piling services operated from a yard in Redhead in New South Wales (“the yard”).

33. On or about 31 March 2017, the appellant acquired Civilbuild Pty Ltd (“Civilbuild”) that operated the business of providing piling services and other construction activities. Thereafter, the appellant operated the business that was formerly conducted by Civilbuild.

34. Prior to the acquisition of Civilbuild, Civilbuild had implemented two Safe Work Method Statements relating to the activities of loading and unloading trucks and pile driving. (In this judgment, the abbreviation “SWMS” will be used for both the singular and plural versions of “Safe Work Method Statement”).

35. The first of the SWMS was entitled “Civilbuild Pty Ltd Safe Work Method Statement Loading and Unloading Trucks”. This SWMS was dated 25 February 2016.

36. Typical of SWMS operating at industrial enterprises, the SWMS provided a hierarchy of control with respect to the risks which were rated both in terms of the potential hazards and the risk remaining after the introduction of the safety control.

37. The second SWMS, which operated at the time of the accident giving rise to the charge, was the “Civilbuild Pty Ltd Safe Work Method Statement – Pile Driving SWMS (Number 6)” (“the Pile Driving SWMS”), dated 27 January 2016. (The Pile Driving SWMS, in evidence, concerned the work for Beechwood).

38. The Pile Driving SWMS contained a risk assessment table which appeared in the form of a matrix, describing ‘severity’ on the horizontal bar and ‘likelihood’ on the vertical bar which provided an overall risk rating. There was a hierarchy of controls ranging from the most effective, ‘eliminate,’ to the least effective, ‘administrative’ and ‘personal protective equipment’. The Pile Driving SWMS then addressed the work process through a number of steps, identifying in each case a step-by-step procedure, possible hazards, a risk rating, safety controls, the residual risk rating and who was responsible.

39. Step eight concerned a step-by-step procedure with respect to Pile Rig set up. The possible hazards identified were: loading and unloading equipment; routine pre-start (slip and fall hazards when walking around and inspecting equipment), unplanned movement of machinery during ground level inspection and access deck. The risk rating was high and after various safety controls were applied the residual risk rating was low. What step eight, in the Pile Driving SWMS, did not identify as a possible hazard was the unloading of piles from the truck. No other step in the procedure made provisions for that hazard and as a result, there were no safety controls within the SWMS addressing that hazard.

40. Civilbuild also had in place a number of Safe Work Procedures (Safe Work Procedures, both the singular and the plural, will be referred to as “SWP” in this judgment) prior to acquisition, which included procedures concerning personal protection, the use of lifting equipment and the operation of plant vehicles. However, none of those SWP contained a particular reference to the unloading of piles from trucks (or a later practice of pre-slinging loads to be unloaded from trucks prior to the incident).

41. After the acquisition of Civilbuild, the appellant identified that the risk of a fall from height could be controlled by prohibiting workers from accessing the back of trucks or trailers during the loading or unloading process.

42. The appellant adopted an engineering control whereby slings would be attached to bundles of piles before they were loaded onto trucks so they could be unloaded at their destination without the need for a person to climb on to the load or onto the back of the truck or trailer. This practice was known as pre-slinging the load: Saunders Civilbuild (No 1) at [28].

43. Inspector Bronwyn Halcroft’s (“Inspector Halcroft”) evidence was that the purpose of pre-slinging a load is to permit loads to be loaded onto and unloaded from trailers by workers working on the ground.

44. Before turning to some further aspects of the factual background, it is convenient to recount various responses to notices issued by Inspector Halcroft pursuant to s 155 of the WHS Act, respectively Notices 7-333707; 7-337873; 7-342610 and 7-339642. These are adequately set out in (Saunders Civilbuild (No 1)) at [73]-[79] as follows:

Notice 7-333707

[73] On 13 July 2018 Mr Benson provided information including the following answers to Notice 7-333707 to Inspector Halcroft.

Q8 What information, training and instruction did Civilbuild provide to Mr Edwards in relation to the work?

A8 Civilbuild provided job specific information and instructions to Edwards Float Hire, including regarding the location and timing of pick-ups and drop-offs, on a job by job basis as and when required. It also instructed Edwards Float Hire to perform the contracted work consistent with the applicable Safe Work Method Statement (SWMS).

…

Q25 When was Geoffrey Edwards inducted to the SWMS?

A25 Geoffrey Edwards performed work subject to the Edwards Float Hire’s [sic] SWMS.

Q27 Did Civilbuild have a written procedure for unloading materials on site?

A27 Yes

Q28 What was Civilbuild’s policy on climbing onto loads/trailers during unloading operations?

A28 Engineered alternatives, such as the use of pre-slung loads, to be used wherever possible so that unloading work could be performed from ground level. Alternatively, fall prevention methods must be used.

Q29 How was this communicated to workers, including contractors?

A29 Distribution of applicable Civilbuild SWMS (defining tasks, risks and controls, including in relation to working at heights), site inductions and discussions at pre-start meetings.

Contractors are required to have in place appropriate SWMS for works they are engaged to perform consistent with their specialist experience and qualifications.

Consultation with contractors in relation to the use of engineered alternatives such as pre-slung loads.

Q30 How did Civilbuild ensure that contractors adhered to the SWP?

A30 Adherence to SWMS is monitored by the safety officer and supervisors (where applicable).

45. I interpose here to note that at the time of the incident, the Edwards Float Hire Safe Work Method Statement (“EFH SWMS”) did not deal with the accessing of piles or a trailer during loading or unloading and accordingly, pursuant to the Integrated Management System, the policies operated by the appellant applied.

46. I also note the question and answer at Q45 in Notice 7-333707, reads as follows:

45. What remedial action did Civilbuild take as a result of the incident?

A 45: A number of enhancements were made to Civilbuilds existing WHS-system-company-wide electronic tablets were introduced, existing induction processes for delivery and transport drivers were enhanced (including reference to the SafeWork NSW video regarding safe loading and unloading procedures), general site safety expectations, work procedures and SWMS were reviewed. All contract transport companies were informed of the requirements for induction of all drivers into the enhanced system. [Emphasis added.]

47. Continuing with Scotting DCJ’s judgment with respect to the Notices:

Notice 20182707-BH

[74] On 3 August 2018 Mr Benson sent an email to Inspector Halcroft in response to Notice 20182707-BH identifying that the Pile Driving SWMS was the SWMS that governed the unloading of materials at the site on 16 February 2018. He stated that in Items 6 and 7, the Pile Driving SWMS incorporated, by reference, the following SWPs: the Manual Handling SWP SWP-01, the Personal Protection SWP, the Operation of Plant and Vehicles SWP, and the Use of Lifting Equipment SWP, referred to in [24] above. He stated that a copy of the Pile Driving SWMS had been produced in response to Notice 7-333707, issued earlier. Mr Benson further stated that the defendant could not locate a copy of the EFH SWMS in its records.

Notice 7-337873

[75] On 19 September 2018 Mr Benson provided information including the following answers to Notice 7-337873 to Inspector Halcroft.

Q2 Which Safe Work Method Statement was the “applicable” SWMS referred to in your response to question 8 (Notice 7-333707)?

A2 Edwards Float Hire’s SWMS.

Q3 When were Geoffrey Edwards and Stephen Brown inducted to (sic) the applicable SWMS?

A3 Neither Geoffrey Edwards nor Stephen Brown were inducted to (sic) the Edwards Float Hire SWMS by Civilbuild.

Q4 How did Civilbuild ensure that Edwards Float Hire’s SWMS was appropriate?

A4 By employing senior employees, previously engaged in the business over a long period prior to Civilbuild’s acquisition, who had experience dealing with transport contractors (including Edwards Float Hire), a history of consulting with contractors and knowledge of the applicable SWMS.

Q5 How did Civilbuild enforce its policy on climbing onto loads/trailers during unloading operations?

A5 Consultation with workers, including contractors.

Q6 When did Civilbuild consult with Geoffrey Edwards in relation to the use of engineered alternatives such as pre-slung loads?

A6 This information was discussed the day prior to the incident, between Steve Brown and Geoff Edwards.

Q7 What records were kept of such consultation/s? Please provide a copy of such records.

A7 There are no such records.

Q8 Was the “regular training” provided to Geoffrey Edwards (Q 38 in Notice 7-333707)?

A8 No.

[His Honour did not refer to question 12 or 14. Question 12 asked what specific actions [the appellant] took as part of the consideration of the incident? The answer was, apart from referring to the answer question 44 of Notice 7-333707, that the appellant prepared a Safety Alert to all workers. It was further stated that “enhancements were made to transport and delivery truck driver induction” and that the Safety Department reviewed and pre-approved all SWMS for working at height tasks.” Question 14 asked for documents which demonstrated the company had responded in a timely way to the incident to ensure, as far as reasonably practicable, that no person was placed at risk when undertaking the same or similar activity. In answer to that question, the appellant nominated the Safety Alert to all workers and the review of the SWMS].

[76] Mr Benson also provided a copy of what he described as the “signed” EFH SWMS with his response. The version of the EFH SWMS provided had an issue date of 1 November 2015 and it was not signed by any person, including Mr Edwards.

Notice 7-342610

[77] On an unknown date Mr Benson provided information including the following answer to Notice 7-342610 to Inspector Halcroft.

Q1 How many times did Geoffrey Edwards transport timber piles for Saunders Civilbuild Pty Ltd? Please provide invoices to support your answer.

A1 Our records show Edwards Float Hire transported piles for Saunders Civilbuild 4 times since 3 May 2017

18^th Dec 2017 from Teralba to Fingal Bay

9^th Feb 2018 Central Mangrove to Cessnock

15^th Feb 2018 from Redhead to Tomago

16^th Feb 2018 Tomago to Shoal Bay (Date of incident)

There were also a small number of other occasions on which Edwards Float Hire carried out similar work for the Company. However, there are no invoices or other business records held by the Company to confirm the dates on which that work was performed.

[78] On this point, two invoices of EFH were tendered by the prosecutor. Those invoices proved that Mr Edwards performed cartage services for the defendant, in addition to the above dates, on 1, 8, 13 and 20 December 2017 and on 8 February 2018.

Notice 7-339642

[79] On 9 October 2018 Mr Benson provided information including the following answers to Notice 7-339642 to Inspector Halcroft.

Q1 When was the practice of pre-slinging loads introduced at Saunders Civilbuild?

A1 The practice of pre-slinging bundles of piles was introduced in around November 2017. This was a part of the consultative process targeting working at heights operations in the business.

…

Q3 Why was the procedure changed?

A3 The practice was changed to reduce the risk of fall from height. This change was part of the company’s commitment to continuous improvement.

Q4 How was the amended procedure communicated to all affected workers? Please provide supporting documentation.

A4 The new practice was communicated to all affected workers as pre-start discussions and through face to face interactions in the yard.

Q5 How many transport companies subcontract to Saunders Civilbuild to deliver plant and materials to construction sites?

Q5 5.

Q6 Of the above, how many transported packs of piles for Saunders Civilbuild up to and including the date of the incident?

Q6 5.

48. The appellant also gave a verbal direction to its employees soon after its acquisition of Civilbuild that they were not allowed to climb onto the back of trucks or trailers to load or unload them: Saunders Civilbuild (No 1) at [28] (“the verbal direction”).

49. It will be observed that in his response to Notice 33942 Mr Benson indicated that the practice of pre-slinging commenced and the verbal direction was given in November 2017. Scotting DCJ found that the evidence of Mr Stephen Brown, a site supervisor of the appellant and the supervisor at the site where the incident occurred, should be accepted in that respect, namely, that the change in policy and procedure was introduced shortly after acquisition, on 31 March 2017. Mr Nathan Williams left Civilbuild to work for another company in 2017 and when he returned three to four months later, the appellant operated the business. (Mr Williams is one of the workers referred to in the charge and his position will be discussed further below). Mr Williams received the verbal direction at that time. There was no dispute in the appeal as to that finding and it may be accepted for the purposes of this appeal: Saunders Civilbuild (No 1) at [90].

50. On 17 November 2017, the appellant issued a SWMS entitled “[Saunders Civilbuild] SWM Abutment Construction for Martins Creek Overbridge site”. That SWMS did not identify the risk of falls from heights associated with workers accessing the backs of “delivery trucks”. However, a handwritten amendment was made to the SWMS noting a risk assessment in relation to a risk of “falls from heights” associated with the “delivery of roof formwork” and “Safety Controls” in that respect, including that “all delivery trucks must have fall prevention in place if worker is to access the tray” and “avoid accessing the tray where possible – look to pre-sling loads.” The relevant safety controls were directed in the amendment to the delivery drivers, supervisors, and project managers.

51. On 12 August 2017, the appellant adopted an Integrated Management System in the form of a written manual (“IMS”). (A revised IMS was issued on 18 June 2018).

52. In this document, the appellant recognised that it used IMS processes as part of its risk management strategies to ensure appropriate planning of all its operations. This was demonstrated by the development of a Project Management Plan (“PMP”) for each individual project (cl 2).

53. The appellant indicated that it was committed to ensuring a safe and healthy work environment and required “all its employees and sub-contractors to perform their duties in a manner which ensured their own safety as well as that of those around them” (cl 2.2). The IMS was designed, it was stated, to assist the appellant in ensuring that it was meeting its legal, moral, and social obligations in that respect.

54. The appellant’s objective was the highlighting of safety policy and procedures to all personnel and the identification of hazards in the workplace. A further objective was to “develop appropriate work methods and procedures to ensure safe performance of all activities” (cl 2.2).

55. The IMS document stated the scope and components of the IMS. The IMS defined the “processes and procedures which are required as a combined Quality Management System, Environmental Management System and Worker Health and Safety Management System.” It applied to all of the appellant’s “staff and sub-contractors.” Such persons were required to comply with the processes and controls specified in the IMS (cl 3). The IMS was made up of a system and process framework to provide the basis for the achievement of compliance to safety; procedures which outlined specific requirements required to be completed to achieve compliance and “project specific documents that describe any project specific controls to verify and provide evidence that the quality, environmental and safety aspects of the work as well as any client requirements are met” (cl 3.1). Work Health and Safety was defined in the IMS as, inter alia, “the health and safety of those at work or those who may be affected by the carrying out of the work, and, where the context permits, the preservation or protection of the health and safety of such people” (cl 3.1).

56. The structure of IMS was described diagrammatically as follows at cl 3.2:

57. The image depicts the pathway of the system structure of the IMS. The bottom of the ‘flow chart’ is labelled “records”; the ‘requirements’ (Clients, Legal and legislative, technical and others) lead to records; the ‘Guidelines and Historic Documents’ also lead to records. There is a two-directional flowchart in the middle of the diagram which connects requirements to the ‘Integrated Management System’ (Policy, System Procedures, Process Procedures & Controls) to Guidelines and documents ITP/SWMS/Risk assessments/Forms/Checklists. (“ITP” means “Inspection Test Plan”). The arrows go in both directions within the flowchart.

58. It was identified in the IMS that the appellant’s policies included implementing safe workplace practices, providing an effective system of hazard identification and injury reporting.

59. The appellant’s policy within the IMS was that it was committed to providing and maintaining “a safe and healthy work environment for all personnel involved in our operations.” It was further stated that the appellant required the same level of commitment from “our employees, sub-contractors, suppliers and visitors” (cl 4). It was stated that the appellant would endeavour to achieve these outcomes by, inter alia, the establishment of systems of work that ensured safe use, handling, storage and transport of plant equipment, material structures and hazardous substances and that there is a provision of any “information, training, instruction or supervision that is necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the business.” The appellant’s duty also extended to the monitoring of workplaces.

60. Section 5 of the IMS dealt with “Our Organisation and People.” Clause 5.1 is entitled “Responsibilities.” In that clause, it is stated that “all staff and sub-contractors are inducted, and training is provided to ensure they understand their responsibilities for the effective implementation and operation of the IMS.” It was stated in cl 5.1.2 that, if “someone is engaged solely as a worker or an officer, and is only responsible for implementing decisions made by the PCBU, that person is not a PCBU” (PCBU means ‘person conducting a business or undertaking’). A worker is defined in that context to include “employees, volunteers, contractors, sub-contractors, apprentices, work-experience students and outworkers.” As to sub-contractors and consultants, cl 5.2 of the IMS emphasised that such entities must be selected based on their ability to deliver products and services including with client requirements and that:

1. The sub-contractors are to be inducted into the IMS, with particular emphasis on WHS and environmental control (this did not happen for Mr Edwards);

2. Where relevant, they must be required to submit a project specific, quality, WHS and environmental document. In the absence of suitable documentation of their own, the sub-contractors were required to implement the controls and be monitored in accordance with the Saunders Civilbuild IMS requirements.

61. Clause 5.1.4 states that the appellant must ensure “duties of care.” These are to be fulfilled by the appellant ensuring as far as reasonably practicable the safety of workers of the appellant and workers whose activities in carrying out work are influenced and directed by the appellant. In the second dot point of the clause, it is stated as the fulfilment of the duty that “the health and safety of other persons is not put at risk from work carried out.” Likewise, the duty is met by “provisions for and maintenance of safe systems of work.” The clause also states that the appellant must ensure its duty of care is fulfilled by ensuring, so far as practicable, there are “provisions of any information, training, instruction or supervision that is necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the business.” The appellant must ensure suitable monitoring of workplaces under its control to identify “hazards and risks, to prevent workers from becoming ill or sustaining injuries” and “consults, cooperates and coordinates activities with other duty holders where more than one duty holder is responsible for the same work, health and safety matter to ensure that duty holders work together.” As to induction, clause 5.3, the IMS states that “all sub-contractors engaged to work on site must comply with the IMS and to be inducted in to ensure they understand their obligations. Performance is monitored and records are to be kept.” The appellant is the principal contractor who conducts site inductions for all workers including sub-contractors as to “WHS issues” and, in that respect, “especially hazard identification and risk management.”

62. Clause 6 was concerned with ‘System Processes’. In cl 6.1 it is stated that “all documents required for the successful and effective operation of the IMS must be stored…” The documents and templates must be “maintained and periodically reviewed…” The review includes the IMS itself as well as PMPs.

63. After dealing with reporting incidents, preventative action, compliance, internal and external communications, cl 6 of the IMS document turns to hazard and risk management. It was stated that “hazard and risk management/aspects and impacts” was a “proactive process aimed at identifying and developing strategies to mitigate potential risks/impacts of [the appellant’s] activities” (cl 6.13).

64. Table 1 outlined the methodology to identify hazards. Under ‘Develop Controls’ it is stated that ‘Hazard and Risk controls must be identified and documented, assuming no existing controls are to be in place.”

65. Under PMP’s, the IMS recorded that, when preparing a program, the activities in the quality process, ITPs, SWMS and EMPs are considered. Also, in relation to Project Management, it was emphasised that “this will also incorporate relevant project controls such as ITPs and SWMS to provide activity specific detail on how to carry out activities that the project manager believes is necessary.”

66. I agree with the submission of the respondent (which was consistent with the primary judge’s findings) that through the IMS, the importance of having written safety procedures was exposed, even though Mr Brown was ignorant of the content of the appellant’s IMS.

67. Mr Brown had been employed by Civilbuild from about 1988 and his employment was transferred to the appellant at the time of the acquisition in 2017. He was employed by the appellant as a Plant and Piling supervisor. Mr Brown worked in the yard as well as at building sites, undertaking piling works. He had a number of High-Risk Work Licenses allowing him to drive a forklift, undertake advanced rigging, act as a dogman and slew a mobile crane (up to 100 tonnes).

68. Another employee of Civilbuild had his employment transferred to the appellant at the time of the acquisition of Civilbuild by the appellant, Mr Nathan Williams. Mr Williams was employed by the appellant as a labourer at the yard. He was a qualified dogman. He also assisted in piling work on small jobs from time to time.

69. Mr William’s evidence as to pre-slinging was as follows:

Q. When the piles for the job were transported to the site – sorry, arrived at the site on 16 February is it right that one bundle of the piles had been pre-slung?

A. So the way it usually worked was the top – the top slings that you – the top bundles that you could not reach from the ground were pre-slung and all the other bundles on the bottom you can stand beside the truck and put the slings on them yourself from the ground. So it’s mostly – mostly the slings – the bundles that you cannot reach from the ground.

70. Mr Edwards worked as a truck driver for about 15 years, for a company contracted to Civilbuild to move plant, equipment, and materials to its sites. After the merger in 2017, Mr Edwards continued to be contracted to the appellant to move plant, equipment and materials to sites using his own vehicle.

71. Mr Edwards operated a heavy combination vehicle consisting of a Mack prime mover attached to a Lusty brand low loader trailer (“the truck”) and traded under the name Edwards Float Hire (“EFH”). The trailer consisted of a gooseneck that attached the prime mover to a low loader part of the trailer. Over the top of the gooseneck and at the beginning of the low loader part of the trailer, were two U-shaped frames mounted onto a trailer that was used to carry long freight such as timber piles. The uprights of the U frame were described as “Bollards” in the evidence. At the rear of the trailer there were two ramps that could be lowered to drive plant onto the low loader part of the trailer.

72. Mr Edwards and Mr Brown had worked closely together in their work for Civilbuild for about 20 years. Mr Brown had assisted Mr Edwards to load and unload his truck on many occasions.

73. Prior to the incident, invoices disclose the appellant contracted Mr Edwards to provide transport services on at least six occasions (although the invoices may suggest a greater number of transport services performed by Mr Edwards). On two of those occasions, 18 December 2017 and 9 February 2018, the appellant contracted Mr Edwards to transport piles to sites.

74. On 8 December 2017, Mr Brown attended the site and assisted Mr Edwards in unloading the piles from Mr Edwards’ trailer without providing Mr Edwards that verbal direction when the work performed was unloading piles from Mr Edwards’ trailer.

75. Mr Brown’s evidence that he did not give the verbal direction on 8 December was as follows:

Q. And that there was an order in respect of work to be performed by Mr Edwards between 10.30am and 4.30pm on 8 December 2017?

A. Yes.

Q. Can you tell his Honour what that work as you understood it entailed?

A. That work I’d asked to do on that day is to deliver the gear to the site with me and give me a hand to drive some piles for that day.

Q. So, there was a number of parts in respect of that work. One was to transport the 13-tonne excavator and piles on the defendant’s yard at Redhead to Rocky Point? Is that right?

A. Yes, yes.

Q. And what sort of piles are we talking of there, do you have a recollection?

A. Minipiles.

Q. And the excavator, was that the Zaxis 13-tonne excavator?

A. That one and our older excavator.

Q. But that was an excavator operated by – sorry?

A. Yes.

Q. That was a Saunders excavator?

A. Yes.

Q. And those materials, that is the minipiles and excavator, were loaded in the yard at Redhead?

A. Yes.

Q. And did you participate in the loading of those materials?

A. Yes.

Q. And did you participate in the loading of the excavator?

A. Yes.

Q. At the other end, was the truck unloaded?

A. Yes.

Q. And what role did you play in the unloading of the truck?

A. I drove the excavator.

Q. So, you drove the excavator off the truck?

A. Yes.

Q. Were you involved in the unloading of the piles?

A. Yes, I lifted them off with Geoff.

Q. Can you tell his Honour what the process was that you used for the unloading of the piles on 8 December 2017.

A. I couldn’t remember exactly what happened on that day and how we unloaded it then.

Q. Were you driving the excavator?

A. I would have been, yes.

Q. That was the way it was usually done. You drove the excavator and Mr Edwards dogged the load.

A. I would assume so.

76. As to unloading at other times prior to the incident, Mr Brown’s evidence as to the usual practice adopted in unloading piles was:

Q. Mr Edwards, could you tell his Honour what your usual practice was when working with Mr Edwards in the unloading of minipiles from trucks, both before and after the transfer of the business to Saunders.

A. I would drive the machine off and then I would – If I had a helper with me, an offsider, he would help me (not transcribable).. to unload the truck. Or if there’s only Geoff – Mr Edwards, he would help me unload it.

Q. And what role would you perform in the unloading of the piles?

A. My main role was driving the excavator.

Q. So, you operated them – excavated them in respect to the lifting off of the piles?

A. Yes.

Q. And what role did Mr Edwards play?

A. Mr Edwards would hook them up.

77. Mr Brown also stated:

Q. Did you understand before the 15 February, the date on which the load of this load of piles, did you have an understanding as to whether your employer, Saunders Civilbuild, had a safe work practice or procedure which you were required to follow in relation to the loading of piles onto trucks?

A. I don’t know.

Q. Did you have an understanding as to whether or not before 15 February 2017 Saunders had a safe work practice or procedure in relation to the unloading of piles from trucks at sites?

A. Not a procedure, unloading.

Q. So, had you received any instructions or directions about the procedure that was to be followed at sites in the unloading of piles from trucks?

A. The only thing we were – you’re not allowed to get on the back of trucks, because..(not transcribable).. straight out from the piling.

Q. When was it that you first received that instruction from your employer?

A. No long after they acquired the company.

Q. And was that an instruction that was provided to you in writing?

A. No.

78. By reference to the events on the day of the incident, which I shall turn to shortly, Mr Brown gave the following evidence:

Q. Seeing Mr Edwards on top of the load, was that unusual?

A. No.

Q. Was that something you’d seen him do before?

A. Yes.

Q. Was that something that he routinely did when you were working with him unloading the piles off trucks?

A. Yes, he would get up there if we had to unload it previously.

79. In light of this evidence (which the trial judge accepted and has not been the subject of challenge, as such), the respondent’s submissions that, prior to and as at the date of the incident climbing “on top of a load of piles during an unloading process to hook up the bundles formed part of a well-established practice followed by Mr Brown and Mr Edwards”, may be accepted. So too may the contention that Mr Brown did not provide Mr Edwards with the verbal direction on any day prior to 15 February 2018.

80. Mr Brown’s evidence-in-chief was that he had conveyed the verbal direction to Mr Edwards or had a conversation with him about it on the day prior to the incident. This evidence was as follows:

Q. And in relation to your relationship with Mr Edwards, prior to this incident did you ever have a discussion with Mr Edwards in which you communicated to him that people were not supposed to get on the back of trucks during the unloading of the vehicle.

A. Yes.

Q. Can you tell His Honour when that conversation took place?

A. It took – the day before the incident we were loading the piles up onto – we were going to load them up on Mr Edwards truck, and I put some – we slung it up there with some string so we could lift it off and explained to him then that we had to do that now because we’re not allowed to get up on the back of trucks.

Q. So, do I understand that your evidence is – am I right in understanding that your evidence is that the first time you had that discussion with Mr Edwards was—

BARRY: I object, your Honour. This is an important issue. It’s probably best not to lead the witness.

CAHILL

Q. In respect of the conversation about which you’ve just given evidence, when did that take place?

A. In our yard at Redhead.

Q. When?

A. The day before – the afternoon before the incident.

Q. But had you, prior to 15 February, that is the day before the incident, had you ever discussed with Mr Edwards prior to that day the use of pre-slinging? To your recollection.

A. No.

Q. In relation to the conversation that you had with Mr Edwards on 15 February, can you tell His Honour what it was that you actually said to him. Do you have a recollection then?

A. I told him that he had to pre sling them up because you’re not allowed to get on the back – they’ve got the rules that they’re not allowed to get on the back of trucks. So, we’ve got to put these slings on them so we can – we don’t have to get onto the trucks.

81. In cross-examination, Mr Brown gave the following evidence in that respect:

Q. During the afternoon of the day before the incident Mr Edwards came to the Saunders – when I say Saunders I mean Saunders Civil – site, to collect the piles and the excavator. Is that right?

A. Yes.

Q. We know at least one of those bundles was pre-slung, but you said it might have been two?

A. Yep, at least – at least two of them, yes.

Q. I understand Mr Edwards asked you that afternoon why the bundle was pre-slung. Is that right?

Q. You told Mr Edwards it was pre-slung because of a rule that no one was allowed to go on the back of trucks. Is that correct?

A. Yes.

Q. And again, correct me if I’m wrong, when you told Mr Edwards that, I understand he said something along the lines to you of, “Okay, righto”?

A. Yes, it was something like that, yes.

Q. Did Mr Edwards say anything to you that made you think he didn’t understand what you’d just told him?

A. No.

82. Scotting DCJ did not accept Mr Brown’s evidence that he had issued the verbal direction to Mr Edwards on 15 February 2018, even though he accepted all other parts of his evidence (at [91] of Saunders Civilbuild (No 1)). His Honour’s reasons in that respect were as follows:

[92] In the period between March 2017 and 15 February 2018, Mr Brown’s evidence was that Mr Edwards was regularly engaged by the defendant to pick up and deliver loads. Mr Brown’s evidence was that he was present on some of these occasions to assist Mr Edwards to load and unload his truck.

[93] It is highly unlikely that the first time Mr Brown told Mr Edwards about the verbal direction was on the day before the incident when there were other occasions closer in time to when the verbal direction was first given by the defendant. The timing is far too convenient for my liking. Mr Brown had an interest in giving that evidence, both on his own behalf and in the interests of his employer. Mr Brown’s evidence as to what he allegedly told Mr Edwards on 15 February 2018 was imprecise and there was no independent corroboration of it. Mr Edwards cannot now be called to give his version of the conversation.

[94] Claims based on communications with deceased persons must be treated with considerable caution and the lack of corroborative evidence which was or could have been available is significant: Plunkett v Bull (1915) 19 CLR 544 and Hunt v Barlow [2000] NSWSC 324 at [5]-[8] (Bryson J). While the present context does not involve a claim, the reasoning in the Plunkett line of authority is apposite.

83. His Honour’s conclusion rejecting Mr Brown’s evidence as to the conversation regarding a verbal direction on 15 February 2018 was the subject of challenge in the appeal under Ground 1. It will be convenient to deal with that issue later in this judgment, in that context.

84. The primary judge was not satisfied that Mr Edwards knew anything about the content of the appellant’s Pile Driving SWMS or any other safety document of the appellant. That conclusion was not in dispute. Mr Edwards did, in fact, have in place a SWMS entitled the “Loading and Unloading Plant” issued on 1 November 2015 (“the EFH SWMS”) which was located in the glove box of his truck after the incident. However, the SWMS did not contain a written equivalent to the verbal direction.

85. I will deal with the immediately preceding circumstances to the incident, the incident itself and the aftermath of the incident.

86. The appellant was contracted to Beechwood to undertake piling works at various sites. On 15 February 2018, the appellant received a purchase order from Beechwood to supply and install timber ‘mini piles’ at the site. The timber mini piles were cylindrical timber logs about 16,000mm long and about 200mm in diameter.

87. The appellant contracted with Mr Edwards that day to transport a 16-tonne Zaxis brand Model 160LC excavator, and three bundles of piles from the yard to the site. Each bundle contained about 11 piles and they were strapped together with steel straps.

88. On the afternoon of 15 February 2018, Mr Edwards attended the yard to pick up the excavator and the three bundles of piles. Mr Brown was present at the yard and assisted Mr Edwards to load the truck.

89. On the day of the incident at least one of the bundles of piles was pre-slung with two green coloured lifting slings that had been fitted during the loading process at the yard. This was consistent with the procedure put in place by the appellant soon after the acquisition of the business.

90. At approximately 8.00am on 16 February 2018, Mr Brown and Mr Williams arrived at the site and conducted an informal pre-site inspection for the purposes of undertaking the piling work at the site. About ten minutes later, Mr Edwards arrived and parked the truck in the centre of the road outside the site.

91. Mr Brown asked Mr Edwards to move his truck closer to the site to a position where it was further off the road and, therefore, safer for passing traffic. Mr Edwards repositioned the truck with the back of the trailer to the south of the access gate of the site, so that the excavator could be driven off the truck into the access gate of the site.

92. Mr Edwards lowered the ramps on the trailer and Mr Williams assisted him to remove the chains that were securing the excavator to the trailer. Mr Brown entered the cabin of the excavator and drove it off the trailer and into the access gate of the site. Mr Brown positioned the excavator so that he could use the arm to lift the bundles of piles off the trailer using a chain and hook attached to the arm.

93. Mr Williams and Mr Edwards packed away the chains that had secured the excavator to the trailer. Mr Edwards then raised the ramps, so that he could move the truck in a way that would position the piles adjacent to where Mr Brown had positioned the excavator. After Mr Edwards had moved the truck into this position, Mr Williams and Mr Edwards removed the ratchet straps restraining the piles.

94. Mr Brown positioned the arm of the excavator above the centre of the piles. Mr Williams attached the end of the two slings attached to the first bundle of piles to the hook attached by a chain to the arm of the excavator. He accessed the end of the slings from the ground and attached them to the hook, while standing on the ground. Mr Williams then stepped up onto the low loader part of the trailer to get a better line of sight on where the chain was attached to the slings to observe the lift.

95. According to Mr Brown’s evidence, Mr Edwards “all of a sudden”, climbed up onto the piles from the area between the chamber of the truck and the end of the piles.

1. Because permission was not an essential legal element of the offence or an essential fact to be established, [16] of the [charge] is surplusage and can be ignored or deleted by amendment’ (at [140]).

360. Had his Honour correctly approached the word ‘permitted’ in particular 16, it was submitted, as an essential fact, then having regard to the relevant evidence at trial, it was not open to his Honour to find the offence proven beyond reasonable doubt.

361. The appellant then turned to what constituted an essential fact and distinguished that concept from an essential element on the one hand and mere fact on the other.

362. The appellant relied upon the judgment of Button J in Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745 wherein his Honour stated at [36], [54], [64] and [75] as follows:

[36] It was said that the test for whether an alleged fact is “essential” is whether a failure by the prosecution to establish that fact would entitle an accused person to an acquittal: R v VHP (Unreported, NSWCCA, 7 July 1997). The point was made that the present case was not one in which requirements of procedural or substantive fairness would restrict the capacity of the Crown to amend the pleaded advantage. For instance, if the complainant failed to “come up to proof” regarding the nature of the alleged advantage, it was submitted that the Crown would not be restricted from amending the indictment to reflect the admissions that had been made by the defendant in his interview with the police. I understood the point to be that the availability, if necessary, of amendment to the prosecution demonstrates that the precise advantage alleged is not an essential fact.

…

[54] Having said that, it was accepted that there is no touchstone or litmus test to determine what is an element, essential fact, or a mere fact, in order to further determine the degree of specificity required with regard to indictments. It was also submitted that there is a paucity of authority about the question of classification of factual allegations as, on the one hand, mere facts, and, on the other hand, essential facts.

…

[64] As I have said, the question requiring resolution here is whether the nature of the advantage intended to be obtained is, on the one hand, an element of the offence, or in some other sense a fact essential to proof of the count; or, on the other hand, a “mere” or non-essential fact that need not be proven before a verdict of guilty could be returned, and that is amenable to resolution in proceedings on sentence.

…

[75] Thirdly, it is true that the elements of an offence are not the only matters that ever need to be proven by the prosecution beyond reasonable doubt. It is well known that, sometimes, factual assertions usually thought of as mere particulars are elevated to become “essential facts”. Two often encountered examples spring to mind.

363. In support of the contention that the allegation in particular 16 was an essential fact the prosecution had to prove in order to prove the contravention, the appellant advanced the following arguments:

1. The most common form of prosecution under the WHS Act alleges an omission by a duty holder. That is, an allegation that a duty holder failed to do certain things in circumstances where there were reasonably practicable measures it should have taken. That is the form of the charge in these proceedings.

2. The omissions in the charge alleged to be the reasonably practicable measures the appellant should have taken in order to discharge its health and safety duty are those set out at paragraph 17(a)-(d) of the Summons.

3. The preceding paragraph [16], under heading, ‘Particulars of the defendant’s failure to comply with the duty’, alleges the appellant permitted workers to access the trailer of the heavy combination vehicle during preparation and unloading of packs of piles.

4. However, the measures in [17], said to make good the alleged contravention of s 19(1), pleaded after [16], that the appellant ‘permitted’ workers to access the trailer during the unloading of packs’ (both under heading ‘particulars of the defendant’s failure to comply with the duty’), logically places the alleged omissions in [17] as the concomitant of the factual context said to have existed in [16].

5. Because of the existence of the alleged factual context in [16] (workers having been permitted by the appellant to access the trailer to unload piles), the omissions at [17] were enlivened, resulting in the alleged exposure to workers of a risk of death or serious injury or illness.

6. Prior to any unloading of piles from the trailer by workers, the mere existence of the omissions in the system of work said to exist at [17] could not, of themselves, have exposed workers to a risk of health and safety, because no worker was performing the task of unloading piles (see s 32(c) of the WHS Act).

7. The event that led to enlivening the alleged omissions in [17] was the placement of workers on the trailer unloading piles. How workers accessed the trailer was said to have occurred because the appellant ‘permitted’ those workers to do so.

8. It was not the case that the prosecution alleged the appellant failed to instruct workers to disembark the trailer after they got on it. Nor was this a case of an allegation of a failure to direct workers not to get up onto the trailer to unload piles.

9. It was the act of permitting workers which was said to have placed workers on the trailer to unload piles which, logically understood, enlivened reliance on a system of work said to contain the omissions pleaded at 17(a)-(d), leading to the allegation that the appellant contravened its duty as a result of those omissions.

364. The appellant contended that the introduction of the word ‘permitting’ in particular 16 as an essential fact resulted in the notion that the appellant permitting workers onto the trailer was a positive act the prosecution was required to prove beyond a reasonable doubt.

365. From that proposition, it was submitted that it was for the prosecution to prove beyond a reasonable doubt that the appellant failed to comply with its duty under s 19 by permitting Mr Williams and/or Mr Edwards to access the trailer of the heavy combination vehicle. An analysis shows that at trial there was no evidence to establish this essential fact or no direct evidence to the contrary.

366. The distinction between cases alleging an act or omission, and what a court must have regard to when considering either, was discussed in Bennett, where Gaudron J said, at [12]:

[12] Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened…

367. In Leyshon v The State of Western Australia [2007] WASCA 223 (“Leyshon”), the West Australian Court of Appeal noted the critical importance of proof in criminal cases alleging an act. At [30] the Court said:

[30] But absent factors do not tell the whole story. It must be borne firmly in mind that in crimes of commission rather than omission, an offender falls to be sentenced for what he or she did. Certainly, things that the offender did not do may be material but the primary focus must be on relevant factors that are present.

368. The Court of Appeal’s observation in Leyshon is particularly relevant here. First, because the prosecution elected to plead an act which it must prove, rather than proving a negative – an omission. Secondly, the Court of Appeal rightly emphasised the importance of what regard a Court must have to the evidence when an act, as opposed to an omission, is alleged.

369. It is not submitted that the word ‘permitted’ has a single application. Rather, the question is one of fact, which necessarily requires an examination of the evidence at trial.

370. In Broad v Parish (1941) 64 CLR 588 at [595] Starke J said the word ‘permit’ means ‘intentionally allow and ‘permission’ may be given expressly, or it may be inferred from circumstances which carry with them a reasonable implication of a discretion or liberty to use.’

371. In Adelaide Corporation v Australasian Performing Right Association (1928) 40 CLR 481 at 490, Gavan Duffy and Starke JJ said of ‘permitting’:

Mere inactivity or failure to take some steps to prevent the performance of the work does not necessarily establish permission.

372. In R v Leonie [1999] NSWCCA 319, the Court of Criminal Appeal concluded (at [100]) that after close examination of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the defendant ‘permitted’ another to do something.

373. It is important to note that the appellant emphasised that the Court of Criminal Appeal made such a finding even in circumstances where it took the view that the evidence disclosed ‘very suspicious circumstances.’ Such an approach was right because mere suspicion of (in this case) a criminal act is not enough for a court to proceed to a finding of guilt.

374. The appellant submitted that in R v Jasper [2003] NSWSC 285 (“Jasper”), the Court considered when a police officer had a power to do something (within the meaning of ‘permitted’) along a series of events. Reference was made to the Court’s judgment at [15] and [16]:

[15] However, notwithstanding that the applicant had the powers of a police officer and knowledge that Caccamo was carrying on a business as a heroin supplier, it does not appear from the Chronology and Facts that he had knowledge in advance of any particular intended transactions, and even if he did, it is not clear what powers he would have had in advance to prevent the commission of the offence. Once the offence was committed or even attempted, he would have had powers of arrest but not prior, as there is no power to arrest in advance merely because of knowledge of information that an offence will be committed.

[16] As a police officer he was not in a position to stop Caccamo from making a sale or from being in possession of heroin. He was not empowered to arrest him on account of his ‘intention’ to continue to deal in drugs. He was not empowered to arrest him before he committed the offence of supply or possess, but could only do so after he had committed the crime (including an attempt to do so)… in other words, he did not have authority or power to prevent the commission of the offences.

375. The analogy between Jasper and this case, it was contended, is a question of whether ‘permission’ can be given for others to perform an act, after those others have commenced the act on their own motion.

376. The appellant contended that the Court’s reasoning in Jasper is apposite here. First, it related to considerations of criminal wrongdoing. Second, despite that case relating to events treated as abhorrent by the community, the Court correctly confined its consideration to the issue of proof to the criminal standard of ‘permission.’

377. The appellant then turned attention to the evidence at the trial with respect to particulars involving “permitted.” In that respect, the following was emphasised:

1. There was no direct evidence that the appellant permitted either Mr Edwards or Mr Williams to get on the load or trailer before they did so.

2. There was no evidence to prove that the appellant, or any of its workers, were empowered or authorised to permit Mr Edwards or Mr Williams to access the trailer of the heavy combination vehicle before Mr Edwards or Mr Williams did so.

3. Mr Bromilow was not asked whether or not the appellant permitted Mr Williams or Mr Edwards to access the trailer of the heavy combination’s vehicle. Nor was Mr Brown or Mr Williams asked that question.

4. There was no documentary evidence which could be read as proving the appellant permitted workers to access the trailer of the heavy vehicle compilation.

5. Mr Brown was asked in evidence whether he told Mr Edwards to climb on top of the piles on the trailer. His response was no. He gave the same answer with respect to Mr Williams. ^[33] Mr Williams said that he did not tell Mr Edwards to climb up onto the load, nor was Mr Williams told that at the site meeting at the start of the day. ^[34]

   33. T114.27-38.

   34. T114.27-38.

378. The appellant contended that despite the deliberate way the prosecution pleaded the failing, no evidence was elicited from any witness in support of that allegation. Messer’s Brown and Williams gave direct and unchallenged evidence contradicting that assertion.

379. The appellant contended that his Honour erred in failing to have proper regard to the evidence at trial which, correctly viewed:

1. Established the act of ‘permitted’ at [16] as an essential fact; and

2. Did not prove to the requisite standard the existence of this essential fact.

Consideration

380. In my view, even if particular 16 of the Summons was found to be an essential fact the prosecution had to prove in order to prove the contravention, the appellant has not demonstrated that the respondent failed to the requisite standard to prove the same.

381. Whilst the appellant contended that the respondent had elected, by particular 16, to plead an act it must prove, rather than prove an omission, and in that context, the respondent must prove what the appellant did, ^[35] senior counsel for the appellant properly accepted that the word “permitted” does not have a single application and involved a question of fact. ^[36]

     35. Leyshon v Western Australia [2007] WASCA 223 at [30] (Owen JA).

     36. R v Leonie [1999] NSWCCA 319 at [89] (Smart AJ).

382. The appellant’s submission proceeded upon the basis that the word ‘permit’ means “intentionally allow”, even though permission may be given expressly or inferred from “the circumstances which carry with them a reasonable implication of a discretion or liberty to use.” ^[37]

     37. Broad v Parish (1941) 64 CLR 588 at [595] (Stark J).

383. When seen in the light of the appellant’s primary submission, and the challenges to the findings of the primary judge, in substance, the appellant contended that the prosecution has not demonstrated anything more than mere inactivity or a failure to take some step to prevent the performance of work. It was contended that that was not enough to establish permission. ^[38]

     38. Adelaide Corporation v Australasian Performing Right Association (1928) 40 CLR 481 at 490 (Gaven Duffy and Stark JJ).

384. It was from this foundation that the appellant, as earlier mentioned, contended that the respondent had not established on the evidence that the requisite permission for the purposes of particular 16 was given because:

1. There is no “direct” evidence that Mr Edwards or Mr Williams were permitted to get on the load or the trailer;

2. There was no question asked by the respondent of Mr Brown or Mr Williams as to whether they had permitted access to the trailer or the load. Mr Brown did not tell Mr Edwards to climb into the collars on the piles. Nor did Mr Williams.

385. However, the flaw in the appellant’s argument in this respect, even allowing for particular 16 to be an essential fact, was that the respondent did establish, to the requisite standard, the appellant had permitted Mr Edwards to access the trailer of his truck, the frames on the trailer, and the load on the frames during the unloading of the piles from the truck (to paraphrase the words of particular 16).

386. My reasons for this conclusion correspond with the discussion of the evidence at the outset of this judgment:

1. Mr Edwards was contracted to convey the load of piles to the site of the incident and, in that capacity, as he had done many times before, to assist in the unloading of the piles.

2. Mr Brown became aware of Mr Edwards presence on or about the piles before Mr Edwards had changed the hook on the slings. Mr Brown observed Mr Edwards changing the hooking arrangements on the pre-slung piles, from the top of the load.

3. Notwithstanding that observation, Mr Brown allowed Mr Edwards to continue with the process of re-slinging the piles. At the time, Mr Brown had manoeuvred the excavator above the pile for the purpose of moving the piles that had been slung together. It may be inferred from the combination of these two circumstances that Mr Brown gave liberty to or accepted Mr Edwards would proceed in the process of unloading from the top of the pile. Once this assessment of the evidence is made, then the conclusion is a fortiori, that permission had been given to Mr Edwards to operate in the way that he did on the top of the piles.

4. It is unnecessary in coming to this conclusion to make an evaluation of the “nod” given by Mr Edwards to Mr Brown. However, the nod did not represent mere acquiescence. Mr Brown and Mr Edwards had worked together over a considerable period of time. They plainly had established a working relationship in the unloading of piles. On Mr Brown's evidence, the nod from Mr Edwards was plainly an indication for him to undertake the lift with the excavator. Once this conclusion is reached, then a fortiori permission had been given to Mr Edwards to operate in a manner that he did upon the top of the piles.

387. A further submission advanced by the appellant was that the evidence disclosed no proof that the appellant or any one of its workers were empowered or authorised to permit Mr Edwards to access the trailer of the heavy combination vehicle before Mr Edwards did so. This proposition may not be accepted on the evidence. Mr Brown had oversight of the site. He said that historically when he would work with Mr Brown in loading and unloading operations, he drove the operating excavator and Mr Edwards would hook up the load. He thereby worked in unison with Mr Edwards. But at all times he was the supervisor. He had been piling supervisor for 20 years. He and Mr Edwards worked at sites away from other management so that Mr Brown provided local management, albeit under the control of the appellant’s detailed procedures so that by that means Mr Brown was under the control of the appellant and its senior management.

388. In fact, Mr Brown executed the period sub-contract agreement with Beechwood Homes in July 2017 and executed various SWMS. He signed the amended Pile Driving SWMS after the accident. In parallel with an earlier judgment Cullen v State Rail Authority (NSW) (1989) 31 IR 207; [1989] AR (NSW) 588 and by distinction with the facts and circumstances in State Rail Authority (NSW) v Dawson (1990) 37 IR 110 (at 124-125), Mr Brown’s supervisory activities were undertaken in a context where there was not a safe system of work operation because of flawed working methods, and flawed work procedures.

389. I turn to the question of whether the allegation in particular 16 is an essential fact.

390. The primary judge found that, in construing particular 16 of the charges, it is necessary to examine the context in which the particular appeared and in the context, the allegation of omissions in particular 17. His Honour’s view was that it is apparent that particular 16 is a factual allegation that a circumstance (accessing the back of the truck) was allowed to occur by the appellant because it failed to take one or more of the steps set out in particular 17. Accordingly, the relevant permission in particular 16 was not an essential factor to be established by the prosecution.

391. The appellant disputed that construction of the charges and contended that the measures in particular 17 which were said to make good the alleged contravention of s 19(1) were pleaded after the particular 16 and provided that the appellant permitted workers to access the trailer during the unloading of the pack. Both particulars appeared under the heading “particulars of the defendant’s failure to comply with a duty” and the positioning of particular 16 and its content logically placed, it was contended, the alleged omissions in particular 17 as the concomitant of the factual context said to have existed in particular 16. Thus, it was contended that because of the existence of the alleged factual context in particular 16, the omissions in particular 17 were enlivened, resulting in the alleged exposure to workers of a risk of death or serious injury or illness.

387. In R v VHP (Unreported, NSWCCA, 7 July 1997) Button J stated at [54] that there was “no touchtone or litmus test to determine what is an element, an essential fact or a mere fact.” By an essential fact, the prosecutor must prove the fact beyond reasonable doubt (at [75]).

388. When attention is directed to the elements of the offence (see [128] of this judgment), it is plain that the Summons did not allege that particular 16 was an essential fact to be proved in a prosecution for a breach of duty under s 19(1) of the WHS Act. Further, the risk as pleaded in paragraph 15 is the risk to workers such as Mr Edwards suffering injury or death as a result of falling from a height whilst loading and unloading materials from the back of a truck or trailer. It follows in my view that particular 16 is an allegation that access to the back of the truck was allowed to occur by the appellant because of the omissions in particulars 17.

389. The primary judge was correct to construe particular 16 in the context of the whole of the Summons and in particular the charge (and the elements thereof) and particular 17.

390. I reject Ground 3 of appeal.

CONCLUSIONS

396. The appellant has failed to establish any of the grounds of appeal. In the circumstances, I would dismiss the appeal with costs.

ORDERS

397. I would propose the following orders:

1. The appeal is dismissed.

2. The parties have liberty to apply to Walton J within 21 days for directions in relation to any proposed appeal against sentence.

398. McNAUGHTON J: I have had the benefit of reading the draft judgments of Beech-Jones CJ at CL and Walton J.

399. I agree with their judgments, and with the orders proposed by Walton J.

Endnotes

Decision last updated: 18 October 2023