Worboyes v R
[2020] VSCA 169
•23 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0019
| KEILOR MELTON QUARRIES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, HARGRAVE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 February 2020 |
| DATE OF JUDGMENT: | 23 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 169 |
| JUDGMENT APPEALED FROM: | [2018] VCC 2139 (Judge Lyon) |
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CRIMINAL LAW – Appeal – Conviction – Occupational health and safety – Quarrying operations – Truck carrying loads to top of stockpile – Risk of accident – Whether applicant had ‘management or control’ of operations which created risk – Applicant had sole legal authority to carry out quarrying works – Applicant had right to control operations at quarry – Sufficient to establish control – Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23 followed, Occupational Health and Safety Act 2004 ss 4, 20, 21, 26.
CRIMINAL LAW – Appeal – Conviction – Occupational health and safety – Reasonable practicability of safety measures – Quarrying operations – Truck unloading at top of stockpile – No protective barrier at edge of stockpile – Whether subsisting risk of accident – Applicant did not intend trucks to unload at top of stockpile – No barrier to truck access – Risk subsisted – Fatal accident evidenced existence of risk – No practical or financial obstacle to implementation of safety measure – Applicant had duty to implement – Leave to appeal refused – Occupational Health and Safety Act 2004 ss 20, 21, 26.
WORDS AND PHRASES – ‘control’, ‘reasonably practicable’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Palmer QC | Stary Norton Halphen |
| For the Respondent | Mr D D Gurvich QC with Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
HARGRAVE JA
WEINBERG JA:
Summary
On 23 May 2016, Robert Wallace was working at a quarry at which basalt and scoria were being extracted.[1] He was driving a truck taking loads of extracted scoria to an existing stockpile. Making his sixth or seventh trip of the morning to the top of the stockpile, Wallace reversed his truck to the edge of the stockpile. Before he could release the load, the truck flipped over the edge and slid down the side of the stockpile. Wallace died from injuries sustained in the accident.
[1]The prosecution’s expert witness, Mr David Lucas, described basalt as an ‘igneous rock used for a variety of construction purposes’ and scoria as a ‘vesicular igneous rock’. He said that, while basalt and scoria were ‘similar materials’, they were ‘quarried in separate … parts of the operation’.
The applicant (‘KMQ’) was convicted after a trial in the County Court of breaching s 26(1) of the Occupational Health and Safety Act 2004 (the ‘Act’). The guilty verdict reflected the jury’s satisfaction, beyond reasonable doubt, that KMQ:
(a) had the ‘management or control’ of those aspects of the quarry operations which created the risk to the safety of the drivers; and
(b) had failed to ensure ‘so far as was reasonably practicable’ that that risk was eliminated or reduced.
KMQ now seeks leave to appeal against the conviction on the unreasonableness ground, that is, that the verdict ‘is unreasonable and/or cannot be supported having regard to the evidence’. According to the appeal submission, it was not reasonably open to the jury to be satisfied either that KMQ had management or control over the relevant aspects of the quarry operations, or that it was reasonably practicable for KMQ to take the safety measures which it was alleged it should have taken.
For reasons which follow, we would refuse leave to appeal. As to management or control, KMQ was the holder of an extractive industry work authority under the Mineral Resources (Sustainable Development) Act 1990 (‘MRSD Act’), which gave it sole legal authority to carry out quarrying works at the site.[2] The work authority also imposed on KMQ sole responsibility to ensure the stability of ‘all excavations, roadways, stockpiles and dumps’. It was well open to the jury to be satisfied, in those circumstances, that KMQ had control of the relevant operations at the site.
[2]The work authority was originally issued under the Extractive Industries Development Act 1995, and continued in force by virtue of s 2 of schedule 7 to the MRSD Act.
As to reasonable practicability, KMQ conceded before the jury that there was a risk to the driver’s safety if a loaded truck went to the top of the stockpile, as the protective barrier usually in place at the edge of the stockpile had fallen away. KMQ further conceded that it would have been a straightforward matter to reinstate the barrier, which would have eliminated the risk. KMQ maintained, however, that it had not been necessary for it to take that safety measure, because it had no intention of sending any trucks to the top of the stockpile.
The question for the jury was whether there was a risk to safety and, if so, whether it was reasonably practicable for KMQ to eliminate that risk. As will appear, the expert evidence led by the prosecution established that the risk persisted unless the stockpile with its unprotected edge was rendered inaccessible. That had not been done and, as the fatal accident demonstrated, the risk continued to exist. That being so, KMQ was obliged to implement the safety measure — reinstating the protective barrier — which it acknowledged would have eliminated the risk.
Statutory provisions and the work authority
Section 26 of the Act relevantly provides as follows:
26 Duties of persons who manage or control workplaces
(1)A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)The duties of a person under subsection (1) apply only in relation to matters over which the person has management or control.
KMQ conceded that it did have ‘to an extent’ control of the workplace, within the meaning of s 26(1). In reliance on s 26(2), however, it contended that it did not have control over the day-to-day quarrying operations and, hence, had no safety duties with respect to those ‘matters’. We return to this question below.
Section 20 of the Act provides as follows:
20 The concept of ensuring health and safety
(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
As already noted, KMQ was the holder of a ‘work authority’ under the MRSD Act. For reasons explained below, the provisions of that Act were not placed before the jury. They do not, as a result, have any bearing on our consideration of the safety of the verdict. The trial, and the appeal, were conducted on the basis that it was the work authority which provided the legal basis for the quarrying work and that KMQ, as the holder of the authority, was responsible for compliance with the conditions to which the authority (and the attached work plan) were subject.
The work authority held by KMQ was in evidence before the jury. The authority was subject to the following conditions:
1.This Work Authority applies to the land described in the Approved Work Plan (refer attached plan).
2.Work may only be undertaken in accordance with the approved work plan or approved variation to the work plan.
3.The holder of a Work Authority must keep a copy of:
(a) this Work Authority; and
(b) any approved work plan or approved variation to the work plan, including work plan conditions and a rehabilitation plan
near or at the Work Authority area so that an Inspector and any other authorised officer can readily inspect them.
4.This Work Authority remains in force for the period for which carrying out of an extractive industry is permitted on the land under the relevant planning scheme or a planning permit unless—
(a) the Work Authority is sooner cancelled; or
(b) landowner’s consent (if required) is revoked, lapses or otherwise ceases to have effect; or
(c) it is varied under section 22.
…
The work plan was also subject to numerous conditions, of which the following are illustrative:
A. GENERAL CONDITIONS
1 WORK PLANS
1.1Work must be carried out in accordance with the approved Work Plan and any subsequent approved variations, incorporating a rehabilitation plan. Where any inconsistency occurs between the Work Plan and other Work Authority conditions or regulations, the Work Authority conditions and regulations have precedence.
1.2The Work Authority holder must, within 60 days of being requested by an Inspector submit an updated work plan based on the situation prevailing in the quarry at the time.
2.SLOPE STABILITY
2.1All slopes/batters including excavations, roadways, stockpiles and dumps must be designed, constructed and maintained to ensure stability.
2.2Where any significant slope failure occurs a suitably qualified person must undertake a formal slope stability analysis and recommendations, where practicable, must be carried out. The results of any such analysis must be forwarded to the Manager, Minerals and Extractive Operations.
3.WORK AUTHORITY BOUNDARIES
3.1The Work Authority holder shall erect and keep erected posts not less than one metre high above the ground and painted white with the number of the Work Authority painted legibly on them so as to define the boundary lines of the land and so that each post is visible from those nearest to it on either side.
3.2The Work Authority holder must erect and maintain a legible sign at the entrance to the Work Authority, containing:
1.the name of the Work Authority holder and the Work Authority number;
2.the Manager of the Work Authority; and
3.Emergency contact details.
4. FENCING AND SECURITY
4.1Where public access is a safety hazard within the quarry, the Work Authority holder must fence and signpost the area to ensure public safety is maintained.
…
16.1Excavation may not take place within the buffer zones shown on the approved work plan.
16.2The Work Authority holder must erect and maintain posts or star pickets painted yellow to stand no less than 0.75 metres in height at intervals of not more than 50 metres around the final approved limits of extraction.
…
20.1Prior to commencing any work authorised under this Work Authority, the holder must be insured under a policy of public liability insurance. The public liability insurance must be maintained at all times while work occurs on the Work Authority and must cover the specific activities approved under this work plan.
…
23.1The holder of the Work Authority must establish and maintain a complaints register. The register should contain details of the nature of any complaints received, including the date of the complaint, details of the complainant, and actions taken where practicable to resolve the particular issue.[3]
[3]Emphasis added.
Control of the operations
Under the work authority, KMQ was authorised to extract basalt and scoria. Once extracted, the materials were crushed, screened and loaded into dump trucks.[4] The dump trucks would then be driven to a tip-off point, where the screenings were unloaded. Successive unloadings would lead to the creation of a stockpile.
[4]‘Screening’ is a process which ensures that the resulting aggregate is of the correct size and shape. Once the crushed materials have been screened, they are referred to as ‘screenings’.
As the size of the stockpile increased, the drivers would usually — though not universally — dump subsequent loads on the top of the stockpile. This was facilitated by the creation of a road leading to the top of the stockpile. It was normal practice to dump the load a couple of metres away from the edge of the stockpile. A loader would then come up onto the stockpile and push the material over the edge.
In this process, the jury were told, the loader would push some of the material together near the edge of the stockpile to form a barrier, known as a bund or windrow. As explained by the prosecution’s expert witness, Mr David Lucas, a bund/windrow is
a raised mound of … the scoria material which is formed along the edge of the top of the stockpile … to form a barrier to vehicles going over the edge.
As a rule of thumb in the industry, Mr Lucas said, the windrow should be about half the height of a truck wheel. That is regarded as sufficient to stop a truck from travelling over the edge. Although the driver should not reverse the truck to the very edge of the stockpile, the purpose of the windrow is to prevent the truck from getting to the edge and hence being at risk of going over.
The other relevant operation described in the evidence was ‘loading out’ from a stockpile. This is the process of excavating scoria from the base of a stockpile so that it can be loaded into trucks for sale and delivery. Mr Lucas confirmed that digging material from the base of a stockpile was a standard method of operation. But doing so, he said:
creates hazardous land form, which is then unsafe to operate on. In that situation it should have been deemed unsuitable for trucks to operate on top of until it had been made stable, or made more stable, more safe.
Mr Lucas was asked about condition 2.1 attached to the work plan, which states:
All slopes/batters including excavations, roadways, stockpiles and dumps must be designed, constructed and maintained to ensure stability.
He said that this was a ‘fairly commonplace condition’, which required first that all excavations be designed to ensure that they were stable. The stockpile must then be constructed according to that design. Mr Lucas said:
So if it’s determined through design, which can include experience in this case, that a stockpile of 8.8 metres can be formed with inclined slopes and will be stable and trucks can operate safely on top of the stockpile with windrows to prevent them from accessing too near the edge, that provided it’s constructed to those standards then that should maintain stability.
Further, Mr Lucas said, the stockpile must be
maintained to ensure that that continues to be the case. So after it’s been constructed and normal operation requires that material be dug away from the base, … the design profile must then be reinstated and windrows maintained to ensure that it continues to be safe to operate.
We deal in the next section of these reasons with the question of whether there was a safety risk and, if so, whether it was reasonably practicable for KMQ to take measures to eliminate or reduce that risk. The present question is whether it was open to the jury to be satisfied that KMQ had control of the operations said to have given rise to the risk, that is, the operations of establishing and maintaining stockpiles and ‘loading out’ from them.
The submission for KMQ was that there was simply no evidence to show that it was in actual control of those operations. It was common ground that all of those working at the site at the relevant time were employees of the co-accused, Altona North Landfill Pty Ltd (‘ANL’). There was no evidence to show that KMQ had engaged ANL, nor that any representative of KMQ was on site at any relevant time.
Counsel for KMQ further pointed out that, when Worksafe Victoria issued improvement notices and prohibition notices under the Act following the accident, they were all addressed to Leakes Rd Quarry Pty Ltd ‘as trustee for the Leakes Road Quarry Unit Trust’. No such notices were ever issued to KMQ. The informant confirmed under cross-examination that the assumption on which the notices were based was that Leakes Road Quarry Pty Ltd had management or control over the relevant activities. It was not until investigators became aware of the existence of the work authority that the decision was made to charge KMQ.
KMQ’s submission was that, given the state of the evidence, the work authority was insufficient by itself to support an inference that KMQ had control over the relevant activities. While accepting that KMQ was the only entity having legal authority to undertake the quarrying operations, counsel maintained that this circumstance was not capable of establishing that it was in actual control of those operations. To illustrate the point, counsel postulated the existence of a lease between KMQ and Leakes Road Quarry Pty Ltd, under which the putative lessee had been given management and control of the operations. This was said to be a rational hypothesis consistent with KMQ’s innocence, which the jury could not reasonably have excluded.
Consideration
The safety duty imposed by s 21(1) of the Act is imposed on the employer, which is required to provide a safe workplace for its employees. Under s 26, by contrast, the safety duty is imposed on a person who has ‘to any extent, the management or control of a workplace’. The workplace must be made safe, ‘so far as is reasonably practicable’, for all persons in the workplace or entering or leaving it.
The imposition of a control-based duty reflects the second of the five ‘Principles of health and safety protection’ set out in s 4 of the Act. Section 4(2) states:
Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
Consistently with that principle, s 26(2) confines the safety duty imposed by
s 26(1) to ‘matters over which the person has management or control’. In the same way the operation of s 21(3)(a) of the Act — which extends the safety duty of an employer to employees of an independent contractor — is limited by s 21(3)(b) to ‘matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control’.
It is in the latter context, concerning independent contractors, that the question of ‘control’ has been repeatedly litigated. The question which typically arises is whether a safety risk which eventuated in the course of an independent contractor’s work was a matter within the employer’s control. Appellate courts have consistently concluded that it is sufficient for this purpose if the employer had a right to control the particular matter or activity giving rise to the risk, whether or not control was in fact being exercised.
Most recently in this State, the question was addressed by Nettle JA (with whom Neave and Kyrou JJA agreed) in Baiada Poultry Pty Ltd v The Queen.[5] His Honour was referred (as were we) to the following passage from the decision of the Western Australian Court of Appeal in Reilly v Devcon Australia Pty Ltd:[6]
[T]he control must be actual control (encompassing a right of actual control, whether exercised or not) over the particular matter affecting safety, … rather than general responsibility for, or control over, the workplace. That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work: see, eg, Humberstone v Northern Timber Mills (Dixon J)) a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it.[7]
[5][2011] VSCA 23 (‘Baiada’).
[6](2008) 36 WAR 492, 502–503 [34]–[35]; [2008] WASCA 84 (Steytler P, Miller JA and Newnes AJA) (emphasis added).
[7]Baiada [2011] VSCA 23, [17] (citation omitted).
His Honour was also referred, as were we, to the following statement from the judgment of the English Court of Appeal in R v Associated Octel Co Ltd:[8]
[T]he question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person — that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.
But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken. ...[9]
[8][1994] 4 All ER 1051, 1063 (Stuart-Smith LJ).
[9]Baiada [2011] VSCA 23, [18].
Having set out those passages, Nettle JA said:
For present purposes, I doubt there is much difference between the two formulations. Both proceed from the premise that an employer is not liable for failing to exercise control unless the employer has the right to control. Both recognize that, in the scheme of things, an employer does not ordinarily have control over the way in which a competent or expert contractor does the work which the contractor is engaged to perform. Equally, both allow that there are cases where an independent contractor is susceptible to direction in some respects. Additionally, Associated Octel is clear, and Reilly v Devcon does not gainsay, that a contractor may be susceptible to direction regarding the safety measures to be observed while work is performed. Whether it is reasonably practicable for an employer to exercise such a power of direction is then a question of fact and degree.[10]
[10]Ibid [19] (emphasis added).
The present case is much clearer, in our view. The character, and the terms, of the work authority were unambiguously clear. KMQ had the sole legal authority to carry out quarrying operations on the site. And the continued enjoyment of that right required KMQ to ensure that the conditions attached to the authority and the work plan were complied with. That being the case, it cannot be doubted that KMQ had control of the relevant operations. It alone could decide which operations were undertaken, and where, and when, and how.
As counsel for KMQ properly conceded, the obligation to comply with the conditions meant that KMQ had to maintain control in order to discharge its responsibilities. It could not relinquish control; it could not put itself in a position where it was disabled from exercising control over the operations.
There was no alternative hypothesis available on the evidence before the jury. Had KMQ wished to challenge the inference of control so powerfully supported by the work authority, it would have needed to adduce some evidence of other arrangements put in place. Merely to postulate the possibility of a lease, without any supporting evidence, could never have sufficed.[11]
[11]R vBaden-Clay (2016) 258 CLR 308; [2016] HCA 35.
It was indisputable, in our view, that under the work authority KMQ had the right to control all of the operations at the site. In his reply submission, counsel for KMQ conceded that a conclusion in those terms would be sufficient to dispose of this point.
For completeness, we return to the issue of the jury not being provided with the relevant parts of the MRSD Act. The prosecution had proposed to provide them with relevant extracts but defence counsel objected on the grounds that it was for the judge to inform the jury as to the applicable law and that providing the legislation itself was likely to confuse the jury. As noted earlier, the upholding of this objection had the consequence that this Court was said — by both parties — to be unable to refer to the MRSD Act in considering this aspect of the appeal.
We have proceeded on that basis but, in our respectful view, some means should have been found to provide the jury with at least an outline of the key provisions in the MRSD Act. The prosecution’s case on ‘management or control’ was, after all, founded entirely on the terms and effect of the work authority. The jury’s comprehension of the nature of such an authority, and of its significance in the trial, would have been enhanced had such an outline been provided. As was suggested in the course of argument, it seems a strange result that both the jury, and this Court, should have been prevented from taking into account publicly-available legislation of this State.
Was it reasonably practicable to eliminate or reduce the risk?
As set out in the indictment, the charge against KMQ was that:
as a person who had, to any extent, the management and control of the workplace it failed, so far as was reasonably practicable, to ensure that the workplace was safe and without risks to health.
The particulars of the charge referred to the work authority and to the use of ANL employees to carry out work at the site, and continued:
4.The tasks carried out by ANL employees at the workplace included loading dump trucks with material, driving dump trucks up an earthen ramp to the top of a stockpile and dumping the material at or near the edge of the stockpile.
5.On 23 May 2016 ANL employees were engaged in transferring material from one part of the quarry to a stockpile by loading the material into the dump truck and then dumping the material at either the bottom or the top of the stockpile.
6.There were risks of serious injury or death by transferring material from one part of the quarry to a stockpile and then dumping the material at the top of the stockpile.
7.The risks to the health and safety of the drivers of the dump trucks included, but were not limited to:
(a)injury or death if the truck were to go over the edge of the stockpile.
8.On 23 May 2016, one of the risks identified in paragraphs 6 and 7 eventuated when Robert Wallace was operating a dump truck at the top of the stockpile and the truck flipped over the edge and slid down the side of the stockpile. Robert Wallace suffered serious injuries and died while being transported by ambulance to hospital.
9.KMQ failed to ensure, so far as was reasonably practicable that the workplace was safe and without risks to health by failing to provide a safe system of work for operating trucks on or near the stockpile.
10.It was reasonably practicable for KMQ to reduce or eliminate the risks to health and safety by:
(a)carrying out a risk assessment of the task of dumping material at the stockpile to identify hazards and risks; and
(b)engaging a suitably qualified person to regularly assess the stability of the stockpile; and
(c)ensuring that the whole perimeter of the stockpile was adequately bunded; and
(d)employing a ‘spotter’ when dumping from the top of the stockpile.
As can be seen from paragraph 7 of the particulars, only one safety risk was identified, namely, the risk of injury or death if the truck were to go over the edge of the stockpile. In its original form, three other types of risk had been particularised but they were all struck out following a no case submission on behalf of KMQ. As can be seen from paragraph 10, the prosecution case was that it was reasonably practicable for KMQ to take any one of four safety measures to reduce or eliminate that risk. (A fifth particular was struck out as a consequence of the same application.)
It was common ground that it was sufficient for the prosecution to establish the reasonable practicability of any one of the four measures. Both at trial and in this Court, the submission on behalf of KMQ was principally directed at the third of the four safety measures particularised, that is, ‘ensuring that the whole perimeter of the stockpile was adequately bunded’. In his final address, defence counsel said to the jury:
There’s no issue here about is it expensive or costly to put bunding up or is there a risk that if a truck goes up onto the top of a stockpile which is unstable and has no bunding that it could fall off. Of course there is that risk. That’s been admitted from the outset. But the question is if there’s an intention to dump at the bottom, as even the prosecution expert agrees there clearly was, do you need these safety measures?
And you heard him. I asked him, ‘Well, do you need to go up and check the stability of the slope all the time or maintain the bunding if you’re not intending to go up there?’ ‘No, you don’t’.
When he came to address the reasonable practicability of the safety measures, counsel submitted to the jury as follows:
Of course if you’re going to … be dumping on a stockpile of course it’s reasonably practicable and essential to make sure that the stockpile is stable and that it has bunding around it. Absolutely you need those things and if you don’t have a stable slope or you don’t have bunding, you should have a spotter. It’s not costly, no issue’s been made about it costs too much or that Keilor Melton Quarries or whoever was running the quarry didn’t know about these things. The question though is whether they needed to be implemented in the circumstances where there was no intention to dump on the top of the stockpile and where Mr Lucas, the prosecution expert, says in those circumstances you don’t need them.
So reasonable practicability in this case is really about going, ‘Were they needed in the circumstances?’ You don’t need to spend any time worrying about whether they cost too much or whether people knew about the measures or anything like that. They’re not the issues. Everyone knows that there’s a risk that a truck can fall off a stockpile. Everyone knows that you can put bunding around it to reduce that. No-one suggests it costs too much, but in these circumstances were they needed?
The submission in this Court was to the same effect. The elements in the argument may be distilled as follows:
1.There had been no dumping of material on the top of the stockpile since December 2015, almost six months before the accident.
2.There was no intention as at May 2016 to send any trucks to dump materials on the top of the stockpile.
3.The expert evidence established that, in those circumstances, it was not necessary to ensure that bunding was maintained around the top edge of the stockpile.
4.Accordingly, it was not reasonably practicable to take that safety measure.
Both before the jury and in this Court, counsel for KMQ employed the language of necessity. He conceded that there was a risk to the driver’s safety if a loaded truck went onto the top of the stockpile, given the lack of bunding. The critical issue, however, was the absence of any intention to have trucks go onto the top of the stockpile. As counsel expressed it in argument in this Court:
If there is no intention, then you don’t need these measures, and there was no intention.
The concept of necessity has no place, however, in the conception of reasonable practicability, as elaborated in s 20(2) of the Act. ’Practicable’ means ’capable of being done’, not ’needing to be done’. The element of necessity is to be found in the imposition of the statutory duty — in this case, by s 26(1) — to do whatever is reasonably practicable to ensure a safe workplace. The qualifier ’reasonably’ makes clear that not everything that could be done must be done.[12] What is reasonably practicable in the circumstances is to be determined by reference to the matters listed in s 20(2). But, where a risk to safety exists, the duty holder is obliged to take such measures as are reasonably practicable to eliminate or reduce that risk. The taking of such measures is a matter of statutory necessity.
[12]BaiadaPoultry Pty Ltd v The Queen (2012) 246 CLR 92, 100 [15]; [2012] HCA 14 (French CJ, Gummow, Hayne and Crennan JJ).
The issue in the present case was whether there was, in the circumstances which prevailed, a risk to the health and safety of those engaged in these quarrying operations. If there was, then KMQ was obliged to do what was reasonably practicable to eliminate or reduce that risk. On proper analysis, therefore, KMQ’s argument is better understood as a contention that there was no subsisting risk, by reason of the fact that there was no intention to send any trucks to the top of the stockpile.
An analogy discussed in the course of argument will illustrate. An unguarded saw in a factory creates a risk to the health and safety of workers using the saw. Ordinarily, the responsible duty-holder will be required to implement reasonably practicable safety measures. But if the factory is closed, and no workers have access to the saw, there is no safety risk. It is not, with respect, correct to say of this situation that there is a safety risk but the usual safety measures are unnecessary. Rather, there is simply no risk. Otherwise, safety measures would have to be taken.
In the present case, it was well open to the jury to be satisfied that there was a subsisting risk to health and safety. Far from supporting the defence case, the evidence of the expert witness, Mr Lucas, made clear that the only circumstance in which it was unnecessary to maintain the bunding around the top of the stockpile was when there was no access to the top.
Under cross-examination, Mr Lucas confirmed that when loads were being taken from the base of a stockpile, it would be expected that the face of the stockpile would collapse, leaving steep slopes and unstable edges. It was then put to him that, during the loading-out phase, it would not be expected that someone would be ‘going up every day and making the slope stable or checking the bunding on the top of the crest, given that no-one’s intending — being expected to dump up there’. Mr Lucas responded:
If nobody … is able to access the top of the stockpile then that would be the case. It’s been made inaccessible. And access is prevented from vehicles, then yes that’s the case.
Counsel again put to Mr Lucas that:
If you’re not intending to dump on top of the stockpile then the safety measures you would need if you were intending to dump on top of the stockpile are not necessary.
Mr Lucas again replied:
Yes, if a truck was not able to access the top then the safety measures are not necessary, that’s true.
As already mentioned, the top of the stockpile had not been made inaccessible. On the contrary, there was unimpeded access to the top by road. That was the road used by Mr Wallace on the day in question. This was a subsisting safety risk. There was no bunding to eliminate the risk of a truck going over the edge.
KMQ was not, of course, prosecuted for causing Mr Wallace’s death. As this Court explained in Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd, offences under the Act are risk-based, not harm-based.[13] The occurrence of an accident is of evidentiary significance only. In this case, the fatal accident demonstrated, with awful clarity, that there was a subsisting risk. Moreover, as senior counsel for the Crown submitted to the jury, and again in this Court, KMQ was in continuing breach of its safety obligation throughout the period from December 2015 to May 2016, because of its failure to ensure that the top of the stockpile was stable and safe. Tragically, it was only the death of Mr Wallace which drew the regulator’s attention to the safety breach.
[13](2016) 49 VR 676, 700–701 [90]; [2016] VSCA 55 (Maxwell P, Redlich and Whelan JJA).
Counsel for KMQ accepted that, if there was a subsisting risk on the day of the accident, it had existed in the period leading up to the accident. That concession was properly made. It was for that reason, no doubt, that the submissions advanced on behalf of KMQ placed no reliance on the fact, established by the evidence, that Mr Wallace’s decision to continue dumping loads at the top of the stockpile was in direct contravention of an instruction given to him during the morning by a supervisor on the site. It is, of course, well established that the safety duties which the Act imposes
are to a considerable extent designed to protect [persons in a workplace] from the consequences of their own inattention, carelessness and sometimes foolishness.[14]
[14]R v ACR Roofing Pty Ltd (2004) 11 VR 187, 214 [70]; [2004] VSCA 215 (Nettle JA, with whom Ormiston and Vincent JJA agreed).
Once the jury accepted — as they were entitled to — that there was a safety risk, there was no issue about reasonable practicability. As counsel for KMQ properly conceded before the jury, there was no practical or financial obstacle to the restoration of the bunding at the top of the stockpile. KMQ’s position was that they could easily have reinstated the bunding but that, under the circumstances, they did not need to do so. For the reasons we have given, that contention must be rejected. Put simply, KMQ failed to do what was reasonably practicable to eliminate a risk to the safety of workers in the workplace.
It follows that leave to appeal must be refused.
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