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[2026] QDC 5
General information, not legal advice.
District Court of Queensland
2026-01-30
Original judgment source is linked above.
INDUSTRIAL LAW - WORK HEALTH AND SAFETY - DUTIES AND LIABILITIES - MANAGEMENT OR CONTROL OF WORKPLACE - where a worker was injured while working on the appellant's construction site - where the appellant was charged with a failure to comply with a statutory duty imposed under section 19(1) of the Work Health and Safety Act 2011 (Qld) contrary to section 32, in circumstances where that failure resulted in an injury to a worker - where there is no dispute that the appellant owed a duty to the worker and the worker suffered a serious injury at the worksite - where the issue in dispute is what steps does the appellant's duty require the appellant to implement under the Work Health and Safety Act 2011 (Qld) - whether there was a breach of that duty which resulted in or exposed the worker to that risk of injury.
MAGISTRATES - APPEAL AND REVIEW - QUEENSLAND - OTHER CASES - where the Magistrate at first instance found the appellant guilty - where the appellant contends that the learned Magistrate erred in law and in fact by finding that the particularised control measures were reasonably practicable and should have been implemented by the appellant to satisfy its duty under the Work Health and Safety Act 2011 (Qld) - whether the prosecution (respondent) failed to prove the charge beyond reasonable doubt.
Justices Act 1886 (Qld) ss 222, 223, 225
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
Dansie v The Queen [2022] HCA 25; 274 CLR 651
DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472
Edwards v Noble [1971] HCA 54; 125 CLR 296
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
Griffiths v State of Queensland [2010] QSC 290; (2010) 197 IR 447
House v The King [1936] HCA 40; 55 CLR 499
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
M v the Queen [1994] HCA 63; 181 CLR 487
McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612
NK Collins Industries Pty Ltd v President of the Industrial Court [2013] QCA 179; [2014] 2 Qd R 304
R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321
R v Irvine [2009] VSCA 239; (2009) 25 VR 75
R v Waters [2023] QCA 243
Safe Work NSW v Wollongong Glass Pty Ltd [2016] NSWDC 58; (2016) 257 IR 351
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52; (2020) 3 QR 594
Work Health and Safety Prosecutor for the respondent
[1] Mr William Sills (Mr Sills) was injured in 2020 while working at the appellant's (BMD) construction site. At the time Mr Sills was injured, he was assisting another worker, Mr Joshua Dawson, (Mr Dawson) to lay out geofabric in an excavation hole when he was struck by a grader operated by Mr Jaimie Page (Mr Page) (Incident).
[2] Following an investigation into the Incident, the Work Health and Safety Prosecutor (WHSP), by way of complaint and summons, charged BMD with a failure to comply with a statutory duty imposed under section 19(1) of the Work Health and Safety Act 2011 (Qld) (WHS Act), contrary to section 32 of the WHS Act, in circumstances where that failure resulted in an injury to a worker.
[3] Following a trial in the Magistrates Court, BMD was found guilty and sentenced with a penalty of $100,000 plus costs with no conviction recorded.
[4] Mr Page was also charged with breaching his duty pursuant to section 28(b) of the WHS Act for failing to take reasonable care that his acts or omissions do not adversely affect the health and safety of other persons. Mr Page was found not guilty.
[5] On 27 May 2025, BMD filed a notice of appeal against the decision of Magistrate Nolan delivered on 14 November 2024 in accordance with section 222 of the Justices Act 1886 (Qld) (Justices Act).
[7] There was no dispute on the evidence that BMD had comprehensive policies and procedures in place to manage safety and risk. The material demonstrates BMD was cognisant of the risk in relation to the scenario which occurred. The evidence also demonstrated the workers involved in the Incident had had safety training and that Mr Sills and Mr Dawson were aware of the safety measures to be implemented.
[8] The issue is whether the measures particularised by WHSP as measures which should have been implemented, were either not taken or not reasonably practicable to have been taken. As identified below the authorities note that the duty under section 19 of the WHS Act is not an absolute duty to provide an entirely risk free environment.
[9] Section 17 of the WHS Act requires an attempt to eliminate the risk, or if that cannot be achieved, minimise the risk as far as reasonably practicable.
[10] There is no dispute about the duty owed by BMD and that an individual suffered a serious injury at BMD's worksite. The issue is what steps did that duty entail BMD to implement and whether there was a breach of that duty which resulted in or exposed the worker to that risk of injury.
[11] I find that the learned Magistrate's decision that BMD should have implemented the supervision/spotting of workers, discloses no legal or factual error and no error in reasoning. The appeal is therefore dismissed.
[12] The following facts were jointly admitted at trial (Admissions):
1. B.M.D Constructions Pty Ltd ("BMD") is an Australian proprietary company limited by shares, registered with the Australian Securities and Investment Commission on 20 March 1980.
3. BMD entered a contract with the Carmichael Rail Network Pty Ltd ('CRN'), a subsidiary of Adani Australia, to construct a railway line and related infrastructure connecting the Carmichael Coal Mine to the existing rail network ('the project').
4. As part of the project, local public roads were required to be upgraded, including Bulliwallah Road at Belyando.
5. BMD entered a Labour Hire Contract with Protech Personnel Pty Ltd ('Protech') for the provision of labourers to complete the project.
6. William Alan SILLS was employed by Protech and assigned to the project as a labourer. He commenced work at the project on 5 March 2020.
7. BMD entered a contract with Farrells Earthmoving Pty Ltd ('Farrells') for the hire of plant and equipment.
8. As part of that contract, Farrells provided a John Deere Grader to BMD.
9. As part of that contract, Farrells also provided plant operators to BMD.
10. Jamie PAGE was a plant operator assigned to the project by Farrells.
11. On 8 June 2020, William SILLS sustained the following injuries:
a. Undisplaced fracture of the medial mallelus of the right ankle;
b. 15 centimetre laceration to the right calf muscle that extended to the subcutaneous tissue; and
12. William SILLS' ankle was plastered and fitted with a 'moon boot'.
[13] Following the Incident, an investigation was undertaken by Workplace Health and Safety Queensland (WHSQ).
[14] The WHSQ investigation led to BMD and Mr Page being charged.
[15] By its particulars, amended prior to the commencement of the evidence at trial, the relevant "hazard" at the BMD worksite was particularised as (Hazard Risk):
"...the risk to pedestrian workers from being struck by moving plant."
[16] The WHSP alleged BMD should have implemented the following control measures (Particularised Control Measures) to minimise the Hazard Risk:
"The defendant company should have eliminated or minimised the risk to workers from the hazard by:
[17] The WHSP contended the failure to implement any of the Particularised Control Measures constituted a breach of the WHS Act.
[20] A person who is aggrieved by a decision made by a justice in a summary way on a complaint for an offence or breach of duty, may appeal within 1 month after the date of the order to a District Court judge under section 222 of the Justices Act.
[21] Section 223(1) sets out the hearing procedure on appeal:
(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
[22] The powers the Court has on appeal are set out in section 225 as follows:
(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
(3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
(4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.
[23] On appeal, the onus is on BMD to demonstrate that there has been some legal, factual, or discretionary error made by the court below.[1]
[24] It must be shown that there has been some error either in acting upon irrelevant matters or failing to take into account a material consideration.
[25] The appeal must be determined based on the evidence and proceedings presented before the Magistrates Court. It is important to keep the following applicable principles in mind in an appeal hearing, as explained by the High Court in Edwards v Noble [1971] HCA 54; 125 CLR 296, at 304 [17]:
(a) an appellant is not successful on appeal simply because an appeal judge may have found differently;
(b) the appeal is one on fact as well as on law;
(c) a rehearing is not a retrial of the issues:
"The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so"
(d) an appellant court ought not reverse a finding of fact unless convinced it is wrong;
(e) "If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong".[2]
[27] With these principles in mind, I turn to consider the grounds of appeal.
(a) the learned Magistrate's finding that BMD ought to have instructed the mobile plant operator to stop the grading activity until the pedestrian workers had placed the geofabric in the excavation and moved away a safe distance before recommencing grading activities, is unreasonable and not supported by the evidence:
(i) The learned Magistrate found that the workers were trained in BMD's comprehensive safety systems.
(ii) The learned Magistrate found that the workers followed those comprehensive safety systems prior to the incident occurring, when a pedestrian worker contacted the plant operator to cease work while the geofabric was being laid and the plant operator ceased work.
(iii) The learned Magistrate found the plant operator only recommenced the grading activity after receiving the approval to recommence from one of the pedestrian workers, notwithstanding that the geofabric was still being laid in proximity of the plant.
(iv) No evidence was led by the Prosecution regarding the factors the learned Magistrate was required to apply to decide the matters set out in ss 17, 18 and 19 of the WHS Act.
(b) The learned Magistrate's finding that BMD ought to have implemented exclusion zones within its workplace that separated pedestrian workers from moving plant, for example implementing barricades that delineate work areas for pedestrian workers and areas where moving plant is operating, is unreasonable and not supported by the evidence:
(i) The learned Magistrate erred by inferring that steps taken by BMD to preserve the incident scene pursuant to its obligations under section 39 of the WHS Act, by erecting flagging and witches hats, was sufficient to satisfy his Honour that the control measure was reasonably practicable.
(ii) The learned Magistrate erred by inferring that control measures that had been identified by BMD for other activities, was sufficient to satisfy his Honour beyond reasonable doubt, that it was a reasonably practicable control measure that BMD ought to have implemented.
(iii) No evidence was led by the Prosecution regarding the factors the learned Magistrate was required to apply to decide the matters set out in ss 17, 18 and 19 of the WHS Act.
(c) The learned Magistrate's finding that implementing spotters to observe the activity being undertaken by moving plant and pedestrian workers to ensure pedestrian workers were not placed at risk of being struck by operation of plant, is unreasonable and not supported by the evidence:
(i) The learned Magistrate erred in finding that the implementation of spotters was reasonably practicable by inference from the engagement of a worker to monitor the gate access to the work camp.
(ii) No evidence was led by the Prosecution regarding the factors the learned Magistrate was required to apply to decide the matters set out in ss 17, 18 and 19 of the WHS Act, in particular in relation to the number of pieces of plant operating across the project, the duration and nature of activities where there may be pedestrians in the vicinity of operating plant, the availability of other control measures and as such, the learned Magistrate erred in finding that such a control measure was reasonably practicable.
(d) The learned Magistrate's finding that there was insufficient supervision to ensure compliance and enforcement with BMD's appropriate health and safety procedures, is unreasonable and not supported by evidence:
(i) The learned Magistrate found that BMD had provided adequately trained and instructed workers in relation to its appropriate health and safety procedures.
(ii) The learned Magistrate found that the completion of a Job Hazard Analysis card was a reasonably practicable control measure that the supervisor ought to have checked before the work activity commenced, though he also found that the workers knew of the purpose of the Job Hazard Analysis, and had completed a Job Hazard Analysis for a different work activity earlier in the day.
(iii) No evidence was led by the Prosecution regarding the factors the learned Magistrate was required to apply to decide the matters set out in ss 17, 18 and 19 of the WHS Act.
(iv) The learned Magistrate made findings regarding acts and omissions of the supervisor despite the Prosecution not calling the supervisor to give evidence.
(v) The learned Magistrate found that BMD should have ensured their supervisors were monitoring the use of two-way radio broadcasts and been alerted to the need to intervene when there was no response broadcasted on the radio channel, despite that not forming part of the Prosecution case and in the absence of any evidence concerning whether such as step was reasonably practicable.
(e) The learned Magistrate's finding that that BMD should have instructed the pedestrian workers to stop the activity of placing the geofabric into the excavation until the mobile plant operator has finished grading activities, is unreasonable and not supported by evidence:
(i) The learned Magistrate found that the workers were trained in BMD's comprehensive safety systems.
(ii) The learned Magistrate found that the workers followed those comprehensive safety systems prior to the incident occurring, when a pedestrian worker contacted the plant operator to cease work while the geofabric was being laid and the plant operator ceased work.
(iii) The learned Magistrate found the plant operator only recommenced the grading activity after receiving the approval to recommence from one of the pedestrian workers, notwithstanding that the geofabric was still being laid in proximity of the plant.
(iv) No evidence was led by the Prosecution regarding the factors the learned Magistrate was required to apply to decide the matters set out in ss 17, 18 and 19 of the WHS Act.
(f) The learned Magistrate's finding that worker ought to have been provided two-way radios and been directed to use those radios to communicate with each other where moving plant is operating in the vicinity of pedestrian workers, is unreasonable and not supported by the evidence:-
(i) The Prosecution led no evidence as to the lack of availability of two-way radios on the day of the incident.
(ii) The learned Magistrate found that communication between the pedestrian workers and plant operator had been established using a combination of radio contact and hand gestures.
(iii) The learned Magistrate found that the pedestrian workers were aware of what 'positive communications' meant when interacting with plant operators.
(iv) No evidence was led by the Prosecution regarding the factors the learned Magistrate was required to apply to decide the matters set out in ss 17, 18 and 19 of the WHS Act, in particular the number of workers on the project, the size of the project, the availability of radios installed in plant and machinery and as such, the learned Magistrate erred when finding the control measure was reasonably practicable.
[29] The primary issue for determination is the implementation of reasonably practicable control measures with respect to the identified Hazard. The Particularised Control Measures set out what the WHSP asserts were reasonably practicable control measures which BMD should have had in place to deal with the Hazard Risk. The overarching contention of BMD in its grounds of appeal is that the learned Magistrate's findings were unreasonable and not supported by the evidence.
[30] The question therefore is whether "the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence": Dansie v The Queen [2022] HCA 25; 274 CLR 651 at [7]. Was it open on the whole of evidence for the learned Magistrate to be satisfied beyond reasonable doubt that BMD was guilty?[5]
[31] The WHS Act under section 19 places an obligation on business to ensure the health and safety of their works as far as is reasonably practicable. Section 19 provides:
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of -
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
[32] Section 19(3) sets out what an employer must ensure. It provides:
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable -
(a) the provision and maintenance of a work environment without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
[33] Whether that duty has been complied with is to be assessed objectively.
[34] The WHS Act also imposes duties on workers to take reasonable care for their own safety. Section 28 provides:
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
[35] An offence is created by section 32 for a failure to comply with a health and safety duty. Section 32 provides:
32 Failure to comply with health and safety duty - category 2
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
(a) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking - 1,500 penalty units; or
(b) for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking - 3,000 penalty units; or
(c) for an offence committed by a body corporate - 15,000 penalty units.
[37] If a health and safety duty has been imposed, there is a further requirement to manage any risks to health and safety. Section 17 provides:
A duty imposed on a person to ensure health and safety requires the person -
(a) to eliminate risks to health and safety, so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
[38] A serious injury or illness is defined in section 36 of the WHS Act. There is no dispute that Mr Sills suffered a serious injury as a result of the Incident.
[39] Approved codes of workplace health and safety practice may be approved by a relevant Minister.[8]
[40] What is meant by "reasonably practicable" is explained in section 18 as follows:
18 What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including -
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about -
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
[41] The majority of the High Court in Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 (Baiada Poultry), observed:[9]
"...The words "reasonably practicable" indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practical for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(2)..."
[42] The general propositions from the cases regarding whether something is reasonably practicable were summarised by Gaudron J in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (Slivak v Lurgi):[10]
"...the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases [citations omitted]:
[43] In Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52; (2020) 3 QR 594, the Court of Appeal noted that:[11]
[44] For a control measure to be reasonably practical to ensure safety, it must be a measure which is within the power of BMD to control, supervise and manage_:_ Slivak v Lurgi at [37].
[45] The WHSP cited R v Irvine [2009] VSCA 239; (2009) 25 VR 75 (Irvine) and R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321 (CICG) as authorities for the proposition that there must not only be a safety management system but an active implementation of that system which involves monitoring and supervision. Training and safety manuals alone are insufficient to ameliorate the known/identified risks and hazards that may present at a worksite. The manuals and system identify the known reasonably practicable measures that can be taken to minimise the risk. The recommendations in the safety manuals would serve no purpose if it was not intended that they be followed. This is not to say that the burden then falls on the worker alone. Beyond training and polices there must be monitoring, supervision and compliance audits.
[46] In Irvine, the Court said an employee's breach of safety standard "does not necessarily reduce the gravity of a breach committed by an employer".[12]
[47] In CICG (referring to obligations imposed by the equivalent to section 19(3)(e) of the WHS Act) the Victorian Court of Appeal said (citations omitted):[13]
"[44] ... Every employer has an absolute obligation to ensure that every employee is adequately informed, instructed, trained and supervised, so as to enable the employee to work 'in a manner that is safe'. Where an accident occurs, one of the first questions for the employer should be whether the event was the result of the employer's failure to provide the necessary instruction, training, supervision and monitoring of its employees, to ensure compliance with its safe system of work.
[48] ... the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer's active implementation of the system in the workplace. The employer's duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure "that procedures and instructions are actively and positively complied with by employees". Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.
[49] An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety to deliberate non-compliance with the prescribed safe system of work. In R v Australian Char Pty Ltd and DPP v Amcor Packaging Pty Ltd, this Court has referred with approval to the observations of Harper, J. in Holmes v R.E. Spence & Co Pty Ltd that an employer's responsibility for the safety of its workers will not be discharged unless the employer takes "an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality"."
[48] BMD accepted these excerpts from CICG was a statement of general principle.
[49] "It is necessary, in determining the response of a reasonable employer, not to be swayed by the benefits of hindsight": Griffiths v State of Queensland [2010] QSC 290; (2010) 197 IR 447 at [59].
[50] Employers must also take into account workers' inadvertence in following instructions. In Safe Work NSW v Wollongong Glass Pty Ltd [2016] NSWDC 58; (2016) 257 IR 351, the Court held:
"[29] A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
[30] The unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166 at [129].
[31] In some cases, it will not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. There are limits to the degree of instruction which can be expected to be provided to an experienced employee: Genner Constructions at [68].
[32] Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E."
[52] The burden of proving the elements of the offence beyond a reasonable doubt lies with the prosecution.
[53] There are four elements of the offence that need to be established beyond a reasonable doubt:
[54] There is no dispute that elements 1 and 2 are satisfied.
(a) Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531, 553, where the High Court held the employer's failure to take particular measures to prevent an identifiable risk eventuating constituted the act or omission giving rise to the charge, and it was "the measures which assume[d] importance to any charges brought"; and
(b) NK Collins Industries Pty Ltd v President of the Industrial Court [2013] QCA 179; [2014] 2 Qd R 304, 328, where the Queensland Court of Appeal held the relevant breach "is the measure not taken, the act or omission of the employer".
[56] The WHSP's case is not that there were no systems of work and training, but rather that the systems were not properly implemented or supervised on the day in question.
[58] As a result of the above, the WHSP submitted:
[59] The learned Magistrate provided a summary of the witnesses' evidence (I have set out the findings in summary below).
[60] Mr Sills was employed by Protech and was assigned to the project as an operator/labourer. He had been a plant operator for about 20 years and held various tickets/licences for civil construction.
[61] Mr Sills recalled starting with the BMD project in March 2020 and attending an induction program with BMD prior to commencing work onsite. The induction program included safety and general construction information, and being told about work method statements, high risk activities on BMD sites, exclusion zones for personnel and machinery, people and plant interaction, and manual handling tasks. It also included discussion around Job Hazard Assessment (JHA) cards and how BMD expected those cards to be filled out.
[62] There was evidence that Mr Sills had signed a Work Method Statement (WMS) entitled Incorporating Health, Safety and Environmental Risks on 8 March 2020 acknowledging his attendance at the induction and his understanding of his responsibility.
[63] In relation to the JHA cards, Mr Sills acknowledged he understood that:
[64] The learned Magistrate found Mr Sills attended a comprehensive induction program, and he signed an acknowledgment of his understanding of his obligations before entering the BMD worksite.[23]
"It's communication - communication with - with - with supervisor right through to the machine operators. We need to - we need to have positive comms to understand what each other are doing, whether you're on a machine or whether you're on the ground."
[66] The learned Magistrate noted that in addition to the use of two-way radios, another accepted form of positive communication was the use of clearly visible hand signals.[36]
[67] Mr Sills gave evidence that this form of positive communication was used on the day of the incident when he communicated by radio to Mr Page and in response, Mr Page communicated back to him using a 'thumbs up' signal. Mr Sills' evidence was that he understood that to mean Mr Page was responding 'Okay, I understand what you are saying".[37]
[68] In relation to the Incident, Mr Sills said the grader was facing at right angles to where the geofabric was being rolled out, whereas Mr Dawson gave evidence that the grader was facing the excavation area. In a contemporaneous written statement of Mr Sills provided six days after the Incident, he stated that:[38]
"The grader had been working parallel to the Camp 6 access road all day but had now changed direction to be working towards the excavated area."
[69] The learned Magistrate preferred the evidence of Mr Dawson as it was consistent with what Mr Sills said in his written statement within a week of the incident.[39] There is no contention that there was an error in this finding.
[70] Mr Sills said he was told by the supervisor Mick Mac, to park his roller and assist Mr Dawson with the geofabric placement over excavation holes that had been dug out by a rubber wheeled excavator.[40] The first was adjacent to the Camp 6 Access Road and the second one was on the other side of that road and adjacent to Bulliwallah Road.
[71] Having completed the laying of the geofabric in the first hole, the rubber wheeled excavator transported the 6 metre long roll of geofabric across the access road and placed it near the second hole.
[72] Mr Sills and Mr Dawson rolled out the initial sheet of geofabric and placed it in the hole. They were unrolling it parallel to Bulliwallah Road back towards Camp 6 Road; that is, they were unrolling it towards the grader that was moving forwards towards them and then backwards towards the Camp 6 Road.[41]
[73] Mr Dawson told the Court he then said to Mr Sills that they were working too close to the grader and that they should turn the geofabric roll at right angles to allow them to roll it out parallel to the edge of the hole.[42] This would also ensure they were no longer rolling it out in the direction of the grader. After they discussed this, they then decided it was better to turn the roll of geofabric at right angles so it was running parallel to Camp Road and adjacent to the edge of the hole they had to place it in. At this time, according to Mr Dawson's evidence, Mr Page had stopped the grader because of how close they were.[43]
[74] This is consistent with the evidence of Mr Sills, who told the Court he decided to use his personal two-way radio to communicate with Mr Page and tell him that they were rolling the geofabric towards Mr Page.[44]
[75] The learned Magistrate found that Mr Sills' evidence on exactly what he said to Mr Page was unclear. Mr Sills said he received a positive hand signal back from Mr Page to continue.[45]
[76] The learned Magistrate set out the unclear Mr Sills evidence:[46]
"Okay?--- So prior to rolling that out, I need to tell him what's going on, you know. So I did. And I had that - I had that two - two-way that I'd - that I'd purchased. And - so this is the same thing again with comms - how important they are. So I could see Jamie. He was still - still facing camp 6.
Yeah?--- And - and he gave me the thumbs-up, which in - in terms means, "Okay. I understand what you're saying." So we needed to roll it up towards him, you know.
Okay. And can you recall what it was that you said over the two-way that led to the thumbs up; what it was that you told Jamie?--- Well, we needed to - we needed to roll this geofab out towards - towards him so - so he knows what - what our intentions are."
[77] Despite this evidence, Mr Sills then immediately told the Court he was not confident that Mr Page understood what they were doing:[47]
"Yes. Sorry, so you - - -?--- We didn't think that Jamie understood that. So we thought, "Hang on. Instead of rolling the next sheet out that direction, let's - let's narrow - narrow the space down instead of rolling it towards the grader." So Josh and I - the - geofab's heavy and I couldn't really lift it, to be honest.
Okay?--- So Josh lifted one end. I held the other end. And we'd moved it around so it would be right beside our excavation hole.
Okay. And so when you say it would be beside your excavation hole, what direction were you planning on rolling it out that way?--- Parallel to - so our excavation's there like that - parallel, like, to - like, to the excavation. So we are now long - no longer rolling it towards that machine.
Okay. And why was it that you decided do it that way?--- Well, because I'm not - I'm not invading on his - on his - on his area where he's trimming.
Okay?--- And can feel totally comfortable, then, that we know that that fabric is there beside the hole. So now that - that roll is six metres - so excavation here. The roll's six metres wide. That's where the roll was. And I happened to be on this end here.
Okay. Now, I just want to ask - so at the time that you decided to roll it so that you were rolling in that direction and not towards the grader, what direction was the grader operating in relation to the road?--- He was still - he's still up - he's still up parallel with camp 6 road.
Okay. And just in terms of distance, if you can provide an estimate, at that time, where you would - at the point of deciding to roll it parallel to the road, the geofabric, in terms of distance, how far away was Jamie Mr Page from where you and Joshua were?--- He was enough distance away not to be concerned about anything.
Okay?--- Enough concern - enough distance to - not to be concerned by, yeah, absolutely anything.
Okay?--- I worked with - I worked with him many occasions and - and, you know, like - yeah."
[78] The learned Magistrate identified that Mr Sills offered no explanation to the Court why he didn't engage in further communication with Mr Page, in circumstances where on his own account, he was not confident Mr Page properly comprehended his earlier radio message.[48]
[79] The learned Magistrate found the evidence showed both Mr Dawson and Mr Sills pivoted the roll of geofabric and moved it down to the bottom of the hole before Mr Dawson gave a 'thumbs up' signal to Mr Page to let him know they were well clear of him.[49] Mr Dawson estimated that at this time they were approximately 50 to 80 metres away from the grader.[50] Mr Dawson told the Court that he engaged in positive communications with Mr Page by giving him the 'thumbs up' signal to indicate that Mr Page could recommence grading.[51]
[80] There was no evidence from Mr Sills or Mr Dawson as to whether the 'thumbs up 'communication given by Mr Dawson to Mr Page was ever made known to Mr Sills.
[81] Both Mr Dawson and Mr Sills then commenced to unroll the geofabric before the roll got caught on a rock and Mr Sills was unable to lift it over the rock. Mr Dawson swapped ends with Mr Sills who would then have had his back to the Camp 6 Road as Mr Dawson moved into the hole to free the caught end of the roll. Mr Dawson says Mr Page was trimming the shoulder on their side of the road moving in a south to north direction at this time.[52]
[82] As Mr Dawson was lifting that end of the roll, he heard Mr Sills scream and immediately jumped from inside the hole to see the grader on top of Mr Sills ankle. He waved his arms towards Mr Page to signal to him to stop, which Mr Page did before moving the machine back off Mr Sills ankle.[53]
[83] Mr Dawson was unclear of the time he gave the thumbs up signal but thought it was not long before the grader struck Mr Sills.[54]
[84] The learned Magistrate found that the communication that was implemented was inadequate, and allowed a situation to emerge, that resulted in the injury to Mr Sills.[55]
[85] Mr Leedy's evidence was that he had been assigned to work on 'the gate' at Bulliwallah Road, that day on a 6.00am to 6.00pm shift. He estimated he was positioned some 50 metres ("half a footy field") away from where the road was being repaired.[56]
[86] He recalled attending the pre-start meeting and hearing a discussion about maintaining positive communications and staying hydrated. He said he couldn't recall any details about what he was told about positive communications at that meeting.[57]
[87] Mr Leedy said he could see all of the works from his position including the rollers and the Moxys.[58]
[88] He explained that he thought Bill (Mr Sills) was working the roller, and he also thought Mr Dawson may have been too, but he wasn't sure about that. He went on to say, Josh (Mr Dawson) was doing some general labouring jobs around the place and also told the Court Jamie (Mr Page) was working the grader.[59]
[89] Mr Leedy explained how he heard a radio transmission between Mr Micheal McNamara (also known as 'Mic Mac'), who he described as a subforeman for BMD, and Mr Sills. Mr Sills was told to stop work on the roller and get out and help and lift the geofab and get it in the hole that had to be filled.[60]
[90] The detail described by Mr Leedy about what he observed is captured in the following extract:[61]
"Okay. So you mentioned that you'd heard Bill was told to get out of the cab and go and help lift the geofab. Whereabouts did you see Bill go then?--- Yeah. So he got out of the cab and got on the ground and they were - and was helping Josh fit that geofabric in - in the hole in the ground where they ripped up with - for that subgrade.
Sorry, what was that last part?--- Where they ripped up the hole that needed to be filled - redone again. So, yeah, they will get enough geofab in there so they can fill it in.
Did you see how the geofabric came to be placed at that hole?--- Yeah, they roll it out and- - -
They rolled it out?--- They lift it up and, yeah, carry - and roll it out.
At the time that they were doing that, can you just describe what you saw at the hole, in terms of any markings or cones or anything like that?--- Yeah. No, just a hole. There was just bollards around the place - all over the place, but - yeah, none that were separating the plant from the workers on the ground.
I'm sorry, you said they were all over the place?--- Yeah. There was no bollards that were in between, like, the - the boys on the ground and the - and the plant moving around.
Okay. Now, after you heard that - what Mick Mac told Bill, did you hear any other instructions?--- I was to hurry up and get that in so that they can fill it in and get it sealed up.
And now, at the time that happened - sorry, I should just clarify. Were you able to see where Bill and - - -?--- Yeah.
And where was Jamie when they were doing that?--- He was in and out that little area, like, trying to - he was waiting for that geofab to go down so they could put the - the fill in.
And from where you were, what did you see with any positive communications between Bill, Joshua and Jamie?--- No, there wasn't because he didn't have a radio on him.
Didn't have a radio?--- Yeah. I'm pretty sure they didn't have a radio.
And where - from where you were, what could you see in terms of any gestures, if you can describe that?--- Yeah. No gestures. Like, it was pretty dangerous. They could've got ran over by Moxys or [indistinct]
Sorry, could you just repeat that?--- It was pretty dangerous. They could've got ran over by Moxys [indistinct]
Now, at the time that you saw Bill and Josh doing that work, you said before that Jamie was all over the place. Can you just describe what actions he was doing with the grader?--- He was just parked up off the side so the - they could get the Moxys in and out and - with the fill to fill the hole in.
Okay?--- And so, once that's done, he can come in and - and smooth it out.
And did you see whether he changed from that position?--- No. He just waited until it was all clear for him to go so he could go through.
And when you said he was waiting until it was clear for him to go through, are you able to just describe, sorry, what you mean by that?--- So he's parked off to the side, so he's out of the way, yeah. So - away from all the cleaning everything out so they get the fill in.
Okay. And did he move at all after being parked off to the side?--- No. No.
You're - just to - just to ask, you're of what happened to Bill that day?--- Yes. So he was rolling the geofab out and then Jamie was coming back in and - yeah, he clipped his - clipped his leg.
And, from where you were, did you see that happen?--- Yeah.
When you said that Jamie was - sorry. Sorry, what was it that you said Jamie was doing with the grader?--- He's just in and out, yeah, so- and moving
Do you know - - -?--- So it's - it was in the one little area and there was, like, not really anywhere really to park off to the side because there was a drain there.
Are you aware when he started moving in and out again?--- After they - they got that geofab down and he was fixing up some of the entryway into camp 6 on that road.
Now, you mentioned before how you saw that it clipped Bill's legs; are you able to just describe what you could see happening?--- So at first it looked like Bill tripped, but he didn't, and then I realised the front wheel of the grader had actually clipped Bill's leg.
Okay. What did you do when you saw that?--- | got out of the cab and started running to him, just a natural response, like, from my time in the military and in advanced combat first aid, like, I knew he'd been hit and so I ran straight to him.
Okay. And were you able to assist with the first aid that you mentioned?--- Yeah."
[92] The learned Magistrate accepted Mr Leedy's evidence as "compelling and particularly useful, as it was an eye witness account of the incident and importantly, the work environment in which it occurred. It was frank and clear in its delivery and description of the day in question".[62]
Witnesses Shane Wright, Gavin Wesche and Graeme Hogan
[93] Mr Shane Wright, Mr Gavin Wesche and Mr Graeme Hogan, held positions, at the relevant time, within WHSQ. None of these witnesses observed the incident, however Mr Wesche and Mr Wright attended the site on the day after the incident occurred.
[94] Mr Wright had been an inspector for approximately one year at the time of the Incident. On 9 June 2020, the day after the Incident, he attended the BMD worksite with Inspector Wesche. They met with a BMD representative and were taken under escort to their main office. BMD representatives gave them copies of BMD WMS (including WMS002.1; the next column over, Areas Activity; and then General Labouring and Manual Handling), some JHAs and statements from some of the workers.
[95] Mr Wright learned BMD were having trouble getting compaction on an area of ground, so they had to remove fill and replace it with geofabric. This activity was a variation to pre-planned works. He discovered there was no time pressure applied from the client on the people doing work. However, the work couldn't proceed until variation was approved. This activity occurred at the same time as other work that was being carried out there as well.
[96] Mr Hogan was allocated the file in about August 2020 and noted how Mr Sills had been interviewed by Inspector Wright and a Mr Dunn, and that a transcript of that interview had been made which Mr Hogan said he viewed.[63]
[97] Having arrived at the entrance to the place, they were escorted to the offices where they met with multiple people from BMD, including superintendents, the directors and safety managers, as well as someone from Adani. The meeting occurred on the day after the incident, and it lasted about an hour.[64]
[98] After that meeting, both witnesses were escorted to the incident site. Mr Wesche described observing a grader, some geofabric on the ground and some mesh and witches hats. He told the Court that photographs were taken of these observations.[65]
[99] The photographs show the grader and a section of orange safety mesh and witches hats placed around the dug out area sitting in front of the parked grader. A roll of geofabric can be seen with one end approximate to the dug out area, and the other end pointing towards the front of the parked grader.
[100] When Mr Wright gave his evidence, he was asked about the work that was being undertaken at the time of the incident. His answer is as follows:[66]
"For the work that was being completed at the time of the incident, what did you come to learn about that?--- We come to learn that there was a - an area of ground that they were having trouble getting compaction of. From memory, I think it was compaction that they had a problem with. So they had to remove fill, replace fill with geofabric in there. I asked questions about the scope, the change of scope, how that was managed. We come to learn that it was a variation, however, there was no time pressure applied from the client on the people doing work. However, the work couldn't proceed until variation was approved. I come to learn that it was being done at the same time as other work that was being carried out there as well."
[101] Mr Wright said he asked about whether there were any time pressures and was told although the geofrabric activity was a variation in the work tasks, there was no time pressure because there was no timeframe put onto completing that variation.[67] This evidence is contrary to that of Mr Sills who said he felt under pressure to get the job done that day before their 3 week rotation finished.
[102] The learned Magistrate found Mr Sills evidence on this point was direct and without hesitation. The learned Magistrate accepted Mr Sills felt under time pressure to get the particular job completed the day of the incident.[68]
[103] The learned Magistrate referred to photographs taken the day after the incident showing the view from the driver's compartment of the grader and also an unidentified person standing in a bent forward position, in front of the grader's left front wheel. The learned Magistrate found this photograph had little probative value and placed no weight on it, preferring the direct evidence of Mr Sills and Mr Dawson as to what happened on the day in question.[69]
[104] A large amount of documentary evidence was submitted without objection. The learned Magistrate did not discuss/identify all aspects of the documentary evidence but identified they formed part of the evidence upon which his reasons and decisions were based.
[105] The learned Magistrate set out the relevant statutory provisions and authorities.
[106] The learned Magistrate was satisfied BMD had a comprehensive workplace, health and safety training program which was compulsory during induction and that each worker was required to attend and successfully complete before they were allowed to work at the site. The learned Magistrate gave the following summary/evaluation of the training material:[70]
"That program contained specific material with respect to workers and machines and in particular the exclusion zones established to ensure individuals were never to be placed in a position where a plant operator could not see them. The zones included a 5 metre exclusion area in respect to non-slewing machines, and a 5 metre exclusion area over and above the slewing radius for slewing machines.
Importantly, that material also clearly contemplates the use of physical barriers including witches hats and similar safety items for use to delineate where workers are on the ground, and machinery may be operating.
Similarly, the issue of maintaining positive communications between workers and plant operators is also stressed within the Work Method Statements as is set out in the materials. So too is the importance of completing a Job Hazard Analysis card for every job that is undertaken by each worker.
As the Prosecution did not raise issue with respect to the contents of this material, | do not intend to descend into a finite examination of the numerous health and safety components that clearly form part of BMD's workplace requirements. As already stated, | am satisfied on the evidence that there existed a genuine and informed system of workplace health and safety requirements at the site."
[107] The learned Magistrate correctly identified the issue as not one of training and procedure but one of implementation. He found:[71]
"The imposition of the primary duty is imposed on BMD pursuant to section 19(1) of the [WHS Act], while section 19(2) requires BMD to ensure the health and safety of other persons is not put at risk from work being carried out as part of their business or undertaking."
[108] It is not in dispute that BMD owed Mr Sills a primary duty.
Consideration - Particularised Control Measures
Grounds 1(a) and (1)(e) - finding that there was a requirement to instruct the mobile plant operator (Mr Page) and pedestrian workers (Mr Sills and Mr Dawson) to stop the activity of placing the geofabric into the excavation until the mobile plant operator had finished grading activities and to cease the grading activity while the geofab was being laid
[109] The WHSP submitted that the learned magistrate was entitled to draw an inference from the evidence of workers Mr Sills, Mr Dawson and Mr Leedy that no such instructions were given to the workers by BMD at the relevant time. That inference was said to be available from the following testimony:
(a) Michael McNamara (aka "Mic Mac") was the BMD supervisor in charge of the operation of the jobs on the day in question;
(b) Mr Dawson was flagged over by McNamara and told to do a "geofab job" and Mr Sills was asked to assist;
(c) Leedy heard 'Mick Mac' tell Mr Sills on the radio to "get out and lift the geofab" and "to hurry up and get that in so that they can fill it in and get sealed up";
(d) Mr Sills was given the instruction on the two-way and 'Mic Mac' had then "gone up to the other end of the job or something";
(e) Mr Sills was yelled at over the radio to "get that geofab in that hole now"; and
(f) Mr McNamara did not make any attempt to ensure that a new JHA card was completed for the task of laying the geofabric as was required of him as a supervisor.
[110] BMD submitted the inference drawn by the learned Magistrate was wrong in that it was unreasonable and not supported by the evidence. First, BMD submits it was an error to find that that measure was a measure that was not taken. Second, BMD submits it was in error to find that there was a measure that was reasonably practicable to minimise or eliminate the identifiable risk.
[111] BMD identified the following matters in support of its submission:
(a) the workers were trained in BMD's comprehensive safety systems;
(b) the workers followed those comprehensive safety systems prior to the incident occurring, when a pedestrian worker contacted the plant operator to cease work while the geofabric was being laid and the plant operator ceased work;
(c) Mr Page (the plant operator) only recommenced the grading activity after receiving the approval to recommence from one of the pedestrian workers, notwithstanding that the geofabric was still being laid in proximity of the plant.
[112] In these circumstances, BMD submits the WHSP failed to prove beyond reasonable doubt that the instruction detailed in particulars (a) and (e) of the WHSP's amended particulars were not provided.
[113] An assessment of the evidence at trial demonstrates the supervisor on the day in question was Mr McNamara. No evidence was led from Mr McNamara. This means there was no direct evidence from Mr McNamara as to what steps he took, if any, to identify, assess, or control the risk that caused (or could have caused) the incident.
[114] Other than the instruction to perform the task, there was no evidence of any safety instructions given to the workers by Mr McNamara. Given that Mr McNamara and Mr Page did not give evidence, it was not reasonable to infer beyond a reasonable doubt that instructions as particularised were not given.
[115] There was no direct evidence from Mr Sills or Mr Dawson about whether Mr McNamara instructed them to stop their activity until the grading activity was completed.
[116] There was no evidence from the grader operator, Mr Page, of what instructions he had been given.
[117] The evidence of the pedestrian worker, Mr Sills, was that Mr McNamara instructed him to help Mr Dawson complete the geofabric task on at least two occasions: face-to-face in the first instance, and then secondly over the two-way radio. Mr Sills' evidence was that before he engaged in the first rollout of the geofab, Mr Page had the grader parked and stationary approximately 25 metres away. Mr Sills said he and Mr Page had their two-way radios. Mr Sills told Mr Page what he and Mr Dawson were going to do with the geofabric and that they would get it done quickly and get out of his way. Mr Sills acknowledged he had a responsibility there as well as Mr Page. Mr Sills said he told Mr Page 'We're going to roll out this fabric'. Mr Page gave him the thumbs up. The grader stayed where it was while they rolled out the geofab.
[118] The evidence of the pedestrian worker, Mr Dawson, was that he was instructed by Mr McNamara to do the geofabric task, and that Mr McNamara 'had a bit of a chat to me and sort of ran me through what he wanted to do'.[72] No particulars of this conversation were elaborated on. What specifically was said by Mr McNamara is not known.
[119] When Mr Dawson was asked if he could recall what Mr McNamara said he answered "No".[73] On this basis alone, it was not possible to be satisfied beyond a reasonable doubt that the particularised instructions were not given.
[120] Mr Dawson explained the safety measures he implemented as follows:[74]
"So can you just describe what happened after the second hole had been dug. What did you do?--- We started to roll the wall Geofab ...
... said to Bill that we were working too close to the - to the grader because we were rolling towards him ...
... and we decided to go down and turn the role and works the opposite way...
Jamie was just starting to trim up one of the shoulders of the road and he'd stop because we were getting close. We moved the roller down to the bottom - down to the hole, sorry, and then I gave him a thumbs up just to let him know that we were well clear of him.
Okay. And at that point you gave him the thumbs up how far away from Jamie were you?--- Maybe 50 to 80 metres, roughly."
[121] Mr Dawson accepted that the use of the "thumbs up" was an indication to Mr Page that it was right for Mr Page to recommence moving his grader.
[122] Mr Sills and Mr Page knew exactly what to do in respect of working in proximity of plant. They engaged in positive communications to have the effect that the plant would stay idle, cease work, and allow them - the workers - to undertake their separate activity of rolling out the geofab. That situation ought to have continued except for the fact that when Mr Sills and Mr Page were doing the second rollout, Mr Dawson communicated with them by giving a thumbs up. As a result of which Mr Page recommenced what he was doing and the accident ensued.
[123] Grounds 1(a) and 1(e) relate directly to what instruction was given to Mr Page, Mr Sills and Mr Dawson. This instruction, presumably, must have been the instruction given by the supervisor of these workers. Yet Mr McNamara was not called to give evidence. Given this situation, one could not be satisfied beyond reasonable doubt of the details of the relevant instructions.
[124] The WHSP accepted there was no direct evidence of what Mr McNamara told Mr Page (if anything) on the day but submitted that given Mr Page was in fact operating the grader in the vicinity of pedestrian workers, the Magistrate was entitled to draw an inference that such direction or instruction was not given to him. With respect, the fact that the grader was in the same yard as Mr Sills and Mr Dawson does not give rise to that inference. The geofabric task was a variation to the work task and Mr Page stopped moving when Mr Sills communicated with him via a two-way radio.
[125] In addition to the above, there was also evidence from Mr Sills and Mr Dawson that they were aware from their training:
[126] Without the evidence of Mr McNamara and Mr Page on this matter, it was an error to find beyond reasonable doubt that Mr McNamara did not instruct the mobile plant operator to stop the activity of grading until the pedestrian workers had placed the geofabric into the excavation and moved away a safe distance before recommencing works.
[127] Given the awareness of those workers, it is not apparent how it could be inferred, beyond a reasonable doubt, that Mr Sills, Mr Dawson and Mr Page, were not "instructed". On the basis of the evidence, it was open to find BMD did appropriately and reasonably instruct the workers as particularised. This was supported by the fact that Mr Page stopped moving immediately upon being informed Mr Dawson and Mr Sills were engaged in the geofabric task, and that he did not recommence moving until it was indicated by Mr Dawson that he was clear to do so.
[128] Section 19(3) of the WHS Act refers to the mandatory obligation on an employer to ensure not just relevant training is provided but also necessary instructions and supervision (as far as is reasonably practicable).
[129] The evidence demonstrates BMD knew of the hazard risk and the means to eliminate or minimise that risk. What is not known is whether it implemented the instruction measure particularised.
[130] The WHSP submitted that based on the evidence it was open to the learned Magistrate to infer that no instruction was given by Mr McNamara to cease work until the geofabric task was completed or the other way round, because if he had given that instruction, the workers would have said so. Why? This is just an assumption; it is not a reasonable inference that arises from what is known. Similarly, the fact that Mr Page operated the grader in the vicinity of the pedestrian workers only gives rise to an assumption of a failure to give appropriate safety instructions.
[131] The fact that it was not disputed that Mr McNamara was not in the area where the work was being done, does not assist to identify beyond a reasonable doubt whether he gave the workers the safety instruction.
[132] For the reasons outlined, it was unreasonable for the learned Magistrate to infer that no specific instruction was given. The available evidence was in general terms and lacked particularisation. The evidence given went to the task the workers were asked to undertake. The workers were not asked if they had been instructed to stop the activity of placing the geofabric into the excavation until the mobile plant operator had finished grading. There is no positive affirmation, denial or lack of recollection on this point. Several inferences arise: either an instruction was given, an instruction was not given or it cannot be determined. As a result, it was unreasonable for the learned Magistrate to be satisfied beyond a reasonable doubt that no such instruction was given.
Ground 1(b) - the finding that there ought to have been exclusion zones implemented to physically separate the workers from the moving plant and that it was reasonably practicable for B.M.D to ensure appropriate flagging and witches hats were put in place to provide a clear and distinct barrier.
[133] This ground concerns the use of exclusion zones, flags and witches hats to create a barrier between the pedestrian workers and the graders.
[134] It was not in dispute that there was a WMS for the site in place.
[135] The BMD Work Method Statement 005.1 General Earthworks (Clearing and grubbing) identified a control measure for the risk of personnel being injured by plant because of the hazard of plant movement with ground personnel in the area, that being "no work in the areas where there is existing hazards or active work unless adequate controls are implemented, positive communication, VMPs and delineation etc." The operator was a person responsible for ensuring the measures were controlled. The BMD Work Method Statement 001 Operation of Mobile Plant similarly required all traffic to "call up" where required and requirement for no persons to enter 'no go' zones.
[138] The documentary evidence confirms BMD knew about the hazard and identified ways of controlling it, including the use of flagging and witches hats and the implementation of exclusion zones.
[139] Photographs taken at the scene the day after the incident show flagging, 'witches hats' and star pickets erected around the excavation hole where the geofabric was being laid following the incident.
[140] The workers' evidence that those markers were not around the excavation hole at the time of the Incident was not disputed. Mr Sills' evidence was that witches hats and netting "weren't there" while he was rolling out the geofab.[78]
[141] The fact that BMD had identified that markers were a control measure for use in certain circumstances did not mean they were reasonable or appropriate measures to be used in this instance. In my view, the facts do not go far enough to demonstrate a reasonable inference that they should have been used in this instance.
[142] WHSP says the markers were clearly available. But what, other than a photo taken the following day, was the evidence to support this assertion? The day after the Incident the WHSP attended to investigate. Photographs of the site on the day of the inspection show flags and witches hats were placed at the Incident site. There was no evidence led explaining the presence of those flags and witches hats. Despite this, the presence of those items was relied upon as a basis for suggestion that they were a reasonably practicable control measure to delineate the exclusion zone on the day of the Incident. No evidence was led on this.
[143] It is an assumption that these markers were available, and it is an assumption that they were a suitable control measure which would have eliminated or minimised the Hazard Risk
[144] In relation to exclusion zones, BMD had implemented a rule requiring an exclusion zone of five (5) metres for all non-slewing plant, and an exclusion zone of five (5) metres plus the slew radius for all slewing plant, unless adequate control measures were identified. This rule was communicated to the workers.
[145] Mr Sills and Mr Dawson confirmed their awareness of this rule. Mr Sills and Mr Dawson also confirmed they were aware, based on their training, that depending on the activity and the type of plant involved there may be a different exclusion zone. Despite this awareness, the accident occurred. Initially an exclusion zone was maintained when the grader was parked. But then, having received a thumbs up, the exclusion zone was breached.
[146] The evidence of Mr Sills and Mr Dawson confirmed they were aware different plant required different exclusion zones. Mr Sills confirmed his practice was to ensure 10 metres[79] whilst Mr Dawson understood 10 metres was to be maintained all the way around.[80] Mr Sills and Mr Dawson also confirmed that they had had positive communications with Mr Page when he was at least 25 metres away.[81]
[147] Mr Sills' evidence was that he believed an exclusion zone could be maintained because of the communications he had with Mr Page.[82]
[148] Given the awareness of, and initial maintenance of, the exclusion zones and the distinct lack of evidence as to why a thumbs up positive communication was given to Mr Page, it is not apparent that this particularised control measure was not in place.
[149] In relation to the markers, the fact they were available to be used to cordon off the investigation site area, may lead to an assumption the witches hats were available the day before (there is no evidence about this), but the evidence does not establish they would have minimised the risk of what happened here. Given that Mr Sills was unseen by the driver, how can an inference be drawn that the grader driver would have seen a witches hat. How far from the excavation pit should they have been placed? There is insufficient evidence to conclude that this a reasonably practicable control measure. There was no direct evidence that signs or witches hats should have been erected. There was no evidence that the implementation of these measures would have prevented the Incident.
[150] Despite the workers evidence of the exclusion zone, the evidence confirms that the workers were working outside the exclusion zone. They remained at the excavation hole doing the geofabric task when Mr Sills was struck.
[151] In relation to physical barriers, there was no evidence led by WHSP as to the type of physical barrier and the reasonableness of installing/implementing the unidentified physical barrier. Without particularisation, the reasonableness or otherwise of the control measure cannot be assessed.
[152] There was also no evidence led regarding whether installing barrier flagging would have prevented the Incident.
[153] Mr Leedy explained there were not many markers on site because of the number of Moxys, road trains and scrapers needing to come in and out - i.e. it was not practical. He then said in relation to the markers (bollards) whereabouts at the time Mr Sills and Mr Dawson were working on the geofabric, "we got them there...you wouldn't really notice them".[83]
[154] This evidence supports a finding that it should not be inferred that markers and witches hats should have been implemented in this situation.
[155] No evidence was led by WHSP as to any new risks posed by the installation of physical barriers, for example, any risks posed by the need to use additional plant and equipment or manual handling or increasing the number of people on the ground associated with the installation of physical barriers.
[156] His Honour erred in concluding witches hats and flags would provide a clear and distinct barrier between ground workers and the operating plant. His Honour drew an inference from seeing those measures in photographs taken the day after the incident, that they were or should have been available the day before and should have been utilised on the day Mr Sills was injured. BMD's written procedures reference the need for delineation as a control measure to be implemented in circumstances of geotechnical testing. The activity engaged in by Mr Sills, Mr Dawson and Mr Page was not geotechnical testing. There is no reference in BMD's written procedures to the need/requirement of using witches hats/flags to create an exclusion zone for this type of activity.
[157] It was not established beyond a reasonable doubt that:
Ground 1(c) - It was reasonably practicable for BMD to have ensured spotters to observe the activity
[158] The particulars do not identify the number of "spotters" it was reasonably practicable to have nor the "activity". Nor is it explained why more than one spotter was required. How far away should the spotter have been?
[159] BMD submits that regardless of the lack of particulars of this ground, "BMD's system of work already contemplated a higher order of controls than the use of spotters". BMD submits spotters are administrative controls whereas it had implemented higher controls including:
[160] Mr Leedy, who was the spotter stationed at the gate of the BMD construction site, gave evidence that he "could see everything".[84] Mr Leedy also gave evidence that he could hear the instructions being given to Mr Sills over the two-way radio to go and assist Mr Dawson will the roll out of the geofabric. Mr Leedy had been provided with the site safety training from BMD. Mr Leedy said at the start of the day there was a "toolbox" meeting where using positive communications was reiterated. Mr Leedy saw Mr Sills and Mr Dawson rolling out the geofabric. He saw Mr Page waiting for the geofabric. Mr Leedy did not know if any of them had a radio and could not see any gestures. This suggests that Mr Leedy's earlier evidence that he "could see everything" was not an entirely accurate description.
[161] It does not necessarily follow from this evidence that there were no positive communications. In fact, the evidence from Mr Sills and Mr Dawson is that they used two-way radios and hand signals to communicate.
[162] Mr Leedy's evidence that Mr Sills and Mr Dawson were in danger was expressed in relation to the Moxys (dump trucks) that were coming in and out of the worksite. Mr Page was parked to the side so that Moxys could get in and out to fill the excavation hole. According to Mr Leedy's observation, Mr Page "waited until it was all clear for him to go so he could go through".[85] He saw the grader clip Mr Sill after which he assisted with first aid.
[163] BMD's safety manuals identified that a spotter's role is to maintain exclusion zones, ensure hand signals are understood and to check the area for obstacles, equipment and people before allowing plant to move.
[165] Just because something is an identified possible safety measure does not make it mandatory to implement. Section 18 of the WHS Act requires the suitability of a measure, the availability, and cost as matters to be considered when considering whether something is reasonably practicable. Some of these matters were not specifically addressed in evidence at trial.
[166] However, it is common sense that the use of a spotter would have minimised the Hazard Risk. Given how busy the site was (as described by a number of witnesses), there is ample reason to infer and conclude the use of a spotter (for what was apparently only a 30 minute geofabric job) would not have been an expense out of proportion to the minimisation of such an extreme risk.
[167] While there were employees, including Mr Leedy, stationed at gates, they were approximately 50 metres from the excavation and their role was to monitor protestors at the site. Mr Leedy's unchallenged evidence was that the worksite was "pretty dangerous" because of the number of various operational plant in operation. It was, as already referred to, clear that Mr Leedy could not see everything from where he had been stationed.
[168] While there was no evidence led by WHSP as to the reasonable practicability of implementing spotters given the labour and cost requirements of doing so, it is reasonable to infer, given there were other supervisors/spotters on site, that it would have been reasonably practicable to have this quick task supervised. It is also reasonable to infer that the cost of doing so would have been minimal, if not negligible, in circumstances where the risk of serious injury was extreme.
[169] The learned Magistrate had regard to the documents in evidence which recorded the movement of mobile plant and people as a high-risk activity in which an on-site controller was identified as a control measure to minimise that risk. The learned Magistrate accepted Mr Leedy's unchallenged evidence.
[170] It was established beyond a reasonable doubt that this measure was not in place and that it would have provided a reasonable means of eliminating or minimising the Hazard Risk.
[171] It was reasonable and open for the learned Magistrate to infer that the use of spotters was a reasonably practicable control measure that could minimise or eliminate that risk.
[172] There is no identified error in his Honour's findings in this regard.
Ground 1(d) - the finding of insufficient supervision to ensure compliance and enforcement with BMD's appropriate health and safety procedures
[173] BMD submits the finding that there was insufficient supervision to ensure compliance and enforcement of safety procedures was unreasonable and unsupported by the evidence where:
[174] It is not disputed that a JHA card was not completed for the geofabric task.
[175] The learned Magistrate found that the completion of a JHA card was a reasonably practicable control measure that the supervisor ought to have checked before the work activity commenced, though also found that the workers knew, through their training by BMD, of the purpose of the Job Hazard Analysis, and had completed a Job Hazard Analysis.[88]
[176] BMD accepted the workers did not sufficiently comply with the procedures because Mr Dawson, by his thumbs up to Mr Page, signalled to Mr Page that it was safe for him to start moving up towards where the workers were. However, BMD submits the learned Magistrate erred in relation to his finding as follows:[89]
"When the supervisor Mick Mack issued the instructions to the workers to change their duties to lay the geofab, B.M.D had an obligation under their own safety and work method procedures to ensure new JHAs were completed and checked by a supervisor and, further, that all necessary and reasonable - reasonably practical control measures were put in place, and he goes on to say, "On the evidence before me, this constituted a failure on the part of B.M.D to comply with the primary duty that they are under."
[177] BMD submitted there are two errors with this finding. First, BMD had complied with its own procedures and second, the workers knew they had to complete JHAs. The evidence demonstrated they were aware of the safety measures. In relation to the supervision, it was not demonstrated that it was reasonably practicable for a supervisor to be standing over workers in respect of every new task and ensuring that a JHA was completed:[90]
"In the court's view, it was reasonably practicable for a supervisor, who ought to have been alert to that message" this is the radio message "to have immediately intervened to ensure Mr Page heard the broadcast and then to have reminded Mr Page of the need for positive communication by use of the two-way radio in the cabin of the grader."
[178] I disagree with BMD's submission. It was reasonably practicable for a JHA to be completed which would have identified the Hazard Risk and addressed appropriate control measures to be implemented. There was evidence of other JHA's having been completed. According to BMD's safety documents, the supervisor is responsible for facilitating the implementation of risk management measures including:[91]
[179] WHSP submitted in conclusion that the supervisor's (Mr McNamara) role on the day was to ensure a JHA was completed and that control measures were implemented to ensure that the work was safe. The evidence of the workers was that after the supervisor gave those initial instructions, he was not in the area and had no further involvement in the task. That is, the supervisor did not ensure spotters were implemented, and that there was accurate communication between all the parties.
[180] BMD submitted the evidence did not demonstrate that it was reasonably practicable for a supervisor to be present "standing over and physically observing and watching the activity"[92] at a large construction site. BMD submitted that (notwithstanding their training) "this is why ... there's such comprehensive training, so the supervisors don't need to be there".[93]
[181] BMD notes there was no suggestion that there was a need for a supervisor to tell Mr Page to remain parked. He was parked. There is no evidence he was under pressure to continue. The evidence demonstrates he only continued moving when he was given the thumbs up for him to recommence.
[182] The problem arose due to the incorrect communication, not the lack of radios or lack of utilisation of appropriate communication methods.
[184] Here, BMD had comprehensive safety measures and assessments for the types of potential risks which may have been encountered on this particular worksite. Despite this, no specific JHA was undertaken with respect to the geofab task and there was no supervision of this task. The implementation of a supervisor/spotter for the task was a reasonable practical measure in circumstances where:
[185] Despite the comprehensive training and manuals, an accident occurred because of an incorrect communication which could have been rectified with appropriate supervision.
[186] It appears that through their training the workers had received necessary information and instructions as to how to minimise the risk. The information provided from that training was not followed. Employers must factor in an employee's inadvertence in the provision of a safe workplace.
[187] BMD submitted it is not "reasonably practicable" for BMD to provide step-by-step instructions for each task being performed on site immediately before the task is performed as to how to conduct the task in accordance with the system of work. No evidence was led by WHSP to demonstrate how this could practically be achieved. Nor was there any evidence regarding costs. I do not accept that such an instruction was not reasonably practicable. It is entirely reasonable and practical for the cessation instruction to be given in these circumstances. The risk was high, the potential outcome extremely serious. It is obvious that such an instruction was a reasonably practicable measure to minimise the risk.
"The evidence didn't demonstrate, given the nature of the construction site and the activities being undertaken that it was reasonably practicable for a supervisor to be there literally hanging over the workers at all times, and that's particularly the case in respect of the knowledge in respect of the procedures that the relevant workers had."
[189] While there was no evidence led by WHSP as to the reasonable practicability of implementing spotters given the labour and cost requirements of doing so, it is reasonable to infer, given there were other supervisors/spotters on site, that it would have been reasonably practicable to have this quick task supervised. It is also reasonable to infer that the cost of doing so would have been minimal, if not negligible, in circumstances where the risk of serious injury was extreme.
[190] The learned Magistrate had regard to the documents in evidence which recorded the movement of mobile plant and people as a high-risk activity in which an on-site controller was identified as a control measure to minimise that risk. The learned Magistrate accepted Mr Leedy's unchallenged evidence.
[191] It was established beyond a reasonable doubt that this measure was not in place and that it would have provided a reasonable means of eliminating or minimising the Hazard Risk.
[192] It was reasonable and open for the learned Magistrate to infer that the use of spotters was a reasonably practicable control measure that could minimise or eliminate that risk.
[193] There is no identified error in his Honour's findings.
[194] There is evidence that the workers were rushing to complete tasks. Perhaps the workers, although adequately trained and experienced, in their haste to complete the job, simply failed to implement known safety protection measures. This is not said to criticise those workers, it is simply a product of the evidence in this case being insufficient. There was no evidence Mr McNamara was not adequately trained and as addressed above, no inference can be drawn about a lack of proper instructions.
[195] The evidence of the workers demonstrates they were adequately trained and had good recall of safety measures despite their training occurring three months prior to the accident. It was not open on the evidence for any inference to be drawn that there had been insufficient training. The learned Magistrate found the training materials were comprehensive and covered possible precautionary measures to deal with the Hazard Risk.
[196] It is unknown what instruction regarding control measures were given on the day. In the circumstances, it is not apparent what instructions could have been given to avoid the accident. There is nothing to indicate that Mr Page would have done anything except recommence the plant operation when he received the thumbs up.
[197] Despite the training an accident still occurred.
[198] In Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57, the Full Bench of the Industrial Relations Commission stated that:[95]
"... in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee."
[199] Given the extreme risk associated with the task, a supervisor ought to have been present for the duration of the geofabric activity.
Ground 1(f) - the finding that the workers ought to have been provided with two-way radios and been directed to use those radios to communicate with each other when moving plant is operating in the vicinity of pedestrian workers.
(a) The Prosecution led no evidence as to the lack of availability of two-way radios on the day of the incident. In this respect:
(i) Mr Sills gave evidence about a meeting where an alleged issue regarding a shortage of radios was raised and he was told 'we're getting to it', though he said this meeting was with 'a lot of Protech workers', and does not mention anyone from BMD being present or otherwise formally notified of this alleged concern. No other evidence was otherwise forthcoming regarding this alleged meeting.
(b) The learned Magistrate found that communication between the pedestrian workers and plant operator had been established using a combination of radio contact and hand gestures.
(c) The incident on 8 June 2020 occurred despite Mr Sills and Mr Page both having two-way radios available at the time. Mr Sills had a two-way radio on his person, and Mr Page had access to the radio installed in the grader. Mr Sills and Mr Page knew to use the two-way radio to establish positive communications, given the JHA completed the morning of 8 June 2020 identified the two-way radio (using channel 39) as the nominated method of communication between operators and pedestrian workers, and the evidence establishes Mr Sills an Mr Page communicated using the two-way radio shortly before the incident while completing the same tasks.
(d) On 8 June 2020, the workers had two-way radios available which they knew how to use, and had used in the lead up to the incident. Nevertheless, for an unknown reason, the workers did not communicate using the two-way radios in accordance with the JHA when establishing positive communications the second time, and instead communicated using hand signals. It was not demonstrated how, given the clear and unambiguous signal for the grader to recommence, and given that it appears none of the workers noticed the subsequent proximity of the grader to the pedestrian workers until it made contact with Mr Sills, that a direction to use two-way radios would have assisted to minimise the risk of the incident.
(e) The learned Magistrate found that the pedestrian workers were aware of what 'positive communications' meant when interacting with plant operators.
(f) No evidence was led by the Prosecution regarding the factors the learned Magistrate was required to apply to decide the matters set out in ss 17, 18 and 19 of the WHS Act, in particular the number of workers on the project, the size of the project, the availability of radios installed in plant and machinery, or available to be carried by workers, and as such, the learned Magistrate erred when finding the control measure was reasonably practicable.
[201] The learned Magistrate found that BMD should have ensured their supervisors were monitoring the use of two-way radio broadcasts and been alerted to the need to intervene when there was no response broadcasted on the radio channel, [96] despite that not forming part of the WHSP case and in the absence of any evidence concerning whether such a step was reasonably practicable.
[202] BMD's BOLT Module - Plant and Equipment Management (Exhibit 4 at trial), referred to a variety of communication methods being appropriate in relation to blind spot awareness and controls, such as two-way radios, verbal or hand signals.
[203] His Honour took into account Mr Sills' evidence that there were not enough two-way radios supplied for workers and that there was no spotter. Mr Sills' evidence was that he had a radio and so did Mr Page, so between the two relevant parties there was an ability to communicate via two-way radio, which in fact happened. There was no specific spotter engaged to solely monitor the geofabric or grading task but there were spotters monitoring other activities at the gate.
[204] The evidence of Mr Dawson was that although he did not have any radio communication, he had a line of sight.
[205] Mr Sills and Mr Page both had two-way radios. At all times there was the provision of two-way radio communication between the two groups.
[206] The evidence given by the workers was that they had been trained, were aware and understood what they were supposed to do in respect of a situation such as this: that there was to be an exclusion zone, positive communications and there was to be a JHA. BMD submitted that in those circumstances, it was not demonstrated on the evidence that it was a reasonably practicable step to require the supervisor, Mr McNamara, to be there giving precise instructions to Mr Page to stop the grading activity whilst this work was being undertaken, because there was a range of procedures that the workers knew about and, as can be seen from Mr Sills' own actions to Mr Page at the beginning of the exercise, knew had to be implemented.
[207] The error with respect to this finding is that what happened here, that being the grader recommencing operation, was not a problem that arose due to lack of radios. It was a problem that arose because of what was communicated and the lack of supervision. It was not through any lack of effective means of communication that the grader restarted. The grader restarted because Mr Dawson gave it the accepted signal, being a thumbs up, to restart.
[208] The Excavation work Code of Practice 2013 required a system of communication to be in place that should not only stop ground workers from approaching mobile plant but should stop operators from moving plant closer than a set distance until they were advised of proposed movement.
[209] In addition, BMD's Work Method Statement Operation of Mobile Plant required that positive communications were used before plant could move.
[210] The WHSP alleged that BMD ought to have provided workers with two-way radios and directed them to use those radios to communicate with each other where moving plant is operating in the vicinity of pedestrian workers. The learned Magistrate found that the pedestrian workers were aware of what 'positive communications' meant when interacting with plant operators, and the parties did use the radios to communicate.
[211] Mr Page was found not guilty in circumstances where the learned Magistrate found that:
[212] It is agreed that there was a risk a pedestrian worker could be struck by moving plant causing serious injury. Was the evidence capable of establishing that the control measures which were identified in paragraph 6 of the complaint were reasonably practicable to eliminate or minimise the risk?
[213] BMD's safety documents demonstrate the Hazard Risk was known and foreseen by BMD. The safety documents set out the extent of, and the potential, control measures which could be implemented to eliminate/minimise the identified risk.
[214] BMD had a Plant and Equipment Management Core Operating Procedure manual (COPM) whose stated purpose was to outline and detail the processes to ensure the safe and controlled operation of plant and equipment on a BMD-controlled site. It covers the use of earthmoving equipment and high-risk plant. The COPM identifies that people-plant interaction is known to be a high-risk construction activity. The operator of all mobile equipment must ensure the equipment is installed with an operational two-way radio. Control measures such as the use of a two-way radio, the use of a controller or spotter to monitor plant movement, and the cessation of work in certain circumstances, are identified.
[215] The material contained in the COPM demonstrates BMD was aware of the potential hazards on site and had identified risk minimisation steps that could be taken in relation to this high-risk activity.
[216] The WHSP submitted, and I agree, that if these risk minimisation measures are nominated in BMD's own safety system material, it is reasonable to infer that these measures were reasonably practicable to have been implemented at the time. It would be illogical to decide that the control steps identified within BMD's own manuals were never genuinely intended to be implemented. It is reasonable to infer that these identified measures were not listed merely to pay lip service to safety measures but were listed so that they would be implemented. It was accepted by the WHSP that the identified control measures were to a degree "high-level" and that there would still need to be that nexus between the risk that's articulated in the complaint and the control measure, such that it is reasonable to conclude it would have eliminated or minimised that risk, before the failure to implement it could constitute a breach.
[217] A WMS was in place at the site on the day of the accident. Part of the WMS sets out the probability of a risk eventuating without control measures in place. BMD had assessed at the time the relevant hazard, being plant movement with ground personnel in the vicinity, that the impact "struck by plant, personnel injury", as being likely in terms of probability, the risk was extreme without control measures, and the consequences being major. BMD set out in its safety documents the control measures it considered appropriate to manage those risks. The controls identified were:[97]
[218] Training documents indicate induction training regarding plant movement with ground personnel in the vicinity of other work crews included references to:
[219] COPM makes reference to the following measures with respect to people-plant interaction:[98]
[220] While a measure may be objectively a reasonable measure to list as a possible control measure, it does not necessarily follow that that measure was required to be implemented in every scenario. Further, gaps in the evidence give rise to a reasonable doubt about whether the particularised measures were in place.
[221] The Particularised Control Measures identified are known control measures. However, the evidence fell short of identifying why all of the Particularised Control Measures were reasonable in the specific circumstances.
[222] No evidence was led about the assessment of risk vis-à-vis the cost or burden of implementing the Particularised Control Measures but these matters, at least in relation to the use of a limited supervisor or spotter, could reasonably be inferred.
[223] The learned Magistrate was satisfied that BMD had a comprehensive package of training and instruction in place for all workers before they could enter the site. He accepted the evidence from the workers called to give evidence that they had attended and passed a pre-start induction program. His Honour says in the next paragraph:[99]
"The issue is not one of the absence of appropriate health and safety procedures and training, but rather it is one of what the court finds on the evidence to be an insufficient compliance and enforcement of those procedures."
[224] The steps that are to be taken in performance of the duty are those that are reasonably practical for the employer to take to achieve the identified end of providing and maintaining a safe working environment. A policy may identify that a spotter may not be required in every situation, but it is reasonable to infer that it was likely to be the most effective control measure in this situation.
[225] It is evidence from BMD's safety material and induction training that it was alive to the extreme risk posed by plant and people operating together on a worksite. Comprehensive attention was paid by BMD in its safety and training materials to workers' awareness of hazards, the risks those hazards posed, and the steps which could be implemented to eliminate or minimise the identified risk.
[226] The evidence before the learned Magistrate demonstrated that the risk and Particularised Control Measures were known by BMD as being measures which could be implemented to eliminate or minimise risk. The evidence supported the findings that those measures were available, practicable and reasonable.
[227] The Particularised Control Measures in grounds (c) and (d) of implementing supervision and a spotter were within the power of BMD to control, supervise and manage.
[228] Costs usually follow the event and are ordered to be paid on a standard basis.[100] There is no basis to depart from the usual order.
[229] The appellant is to pay the WHSP's costs of and incidental to the appeal on a standard basis.
[230] The Court orders that the appeal on conviction is dismissed.
[231] The appellant is to pay the WHSP's costs of and incidental to the appeal on a standard basis.
[232] I will hear the parties in relation to sentencing.
[1] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612, at 627 [47].
[2] See also House v The King [1936] HCA 40; 55 CLR 499 at 505.
[3] DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 480 .
[4] R v Waters [2023] QCA 243, at [139].
[5] M v the Queen [1994] HCA 63; 181 CLR 487, at 493.
[6] Work Health and Safety Act 2011 (Qld) (WHS Act) s 14.
[9] Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [15] (per French CJ, Gummow, Hayne and Crennan JJ).
[10] Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [53].
[11] Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52; (2020) 3 QR 594 at [49] - [50].
[12] R v Irvine [2009] VSCA 239; (2009) 25 VR 75 at [46].
[13] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321, at [44], [48]-[49].
[15] Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
[16] Citing Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92, at [15] and [38] (per French CJ, Gummow, Hayne and Crennan JJ).
[17] Transcript of Trial Day 1 (dated 15 April 2024) (Transcript Day 1) pg 1-66, line 8 - 10.
[18] Transcript Day 1, pg 1-66, line 18 - 20.
[19] Transcript Day 1, pg 1-66, line 24.
[20] Transcript Day 1, pg 1-66, line 38 - 39.
[21] Transcript Day 1, pg 1-66, line 44 - 45.
[22] Transcript Day 1, pg 1-67, line 9 - 12.
[23] Decision of Magistrate Nolan dated 14 November 2024 (the Magistrate Court Decision), pg 14.
[24] Transcript Day 1, pg 1-35, line 35 - 38.
[25] Transcript Day 1, pg 1-36, line 1 - 3.
[26] Transcript Day 1, pg 1-36, line 5 - 7.
[27] Transcript Day 1, pg 1-36, line 12 - 23.
[28] Transcript Day 1, pg 1-36, line 25 - 27 and line 35 - 37.
[29] Transcript Day 1, pg 1-36, line 46; pg 1 - 37, line 1 - 12.
[30] Transcript Day 1, pg 1-41, line 9 - 13.
[31] Transcript Day 1, pg 1-37, line 14 - 17.
[32] Transcript Day 1, pg 1-41, line 29 - 32.
[33] Transcript Day 1, pg 1-39, line 37 - 40.
[34] Transcript Day 1, pg 1-39, line 19 - 31.
[35] Transcript Day 1, pg 1-39, line 31 - 33.
[37] Transcript Day 1, pg 1-44, line 1 - 2.
[38] Magistrate Court Decision, page 17.
[39] Magistrate Court Decision, page 17.
[40] Transcript Day 1, pg 1-41, line 10 - 13.
[41] Transcript of Trial Day 2 (dated 16 April 2024) (Transcript Day 2), pg 2-56, line 34 - 36.
[42] Transcript Day 2, pg 2-56, line 38 - 43.
[43] Transcript Day 2, pg 2-57, line 1 - 3.
[44] Transcript Day 1, pg 1-43, line 44 - 47.
[46] Magistrate Court Decision, pg 18; Transcript Day 1, pg 1-43, line 44 - 47 and pg 1-44, line 1 - 7.
[47] Magistrate Court Decision, pg 18; Transcript Day 1, pg 1-44, line 11 - 46.
[50] Transcript Day 2, pg 2-57, line 3 - 8.
[51] Transcript Day 2, pg 2-58, line 36 - 37.
[52] Transcript Day 2, pg 2-57, line 10 - 18.
[53] Transcript Day 2, pg 2-57, line 30 - 47 and pg 2-58, line 1 - 2.
[54] Transcript Day 2, pg 2-57, line 37 - 41.
[55] Magistrate Court Decision, pg 19 fn 32.
[56] Transcript of Trial Day 3 (dated 17 April 2024) (Transcript Day 3), pg 3-7, line 3 - 26.
[57] Transcript Day 3, pg 3-7, line 28 - 37.
[58] Transcript Day 3, pg 3-7 and 3-8, line 46 - 47 and 1 - 2.
[59] Transcript Day 3, pg 3-8, line 6 - 25.
[60] Transcript Day 3, pg 3-9, line 6 - 25.
[61] Transcript Day 3, pg 3-9, line 36 - 47, and pgs 3-10 - 3-11.
[63] Transcript Day 3, pg 3-27, line 25 - 47 and pg 3-28, line 1 - 12.
[64] Transcript Day 3, pg 3-15, line 14 - 41.
[65] Transcript Day 3, pg 3-16, line 20 - 32.
[66] Transcript Day 2, pg 2-10, line 17 - 25.
[67] Transcript Day 2, pg 2-11, line 9 - 13.
[72] Transcript Day 2, pg 2-54, line 36 - 38.
[73] Transcript Day 2, pg 2-55, line 44.
[74] Transcript Day 2, pg 2-56, line 34 - 46 and pg 2-57, line 1 - 8.
[75] 005.1 General Earthworks (including Clearing and Grubbing) and BMD Work Method Statement 001 Operation of Mobile Plant.
[76] Operation of Mobile Plant Work Method Statement.
[77] The General Earthworks (including Clearing and Grubbing).
[78] Transcript Day 1, pg 1-51, line 18 - 19.
[79] Transcript Day 1, pg 1-62, line 24 - 29.
[80] Transcript Day 2, pg 2-67, line 11 - 16.
[81] Transcript Day 1, pg 1-102, line 10 - 44 and pg 1-103, line 1 - 21 (Mr Sills); Transcript Day 2, pg 2-57, line 7 - 8 (Mr Dawson).
[82] Transcript Day 1, pg 1-103, line 11 - 24.
[83] Transcript Day 3, pg 3-12, line 32 - 34.
[84] Transcript Day 3, pg 3-8, line 1 - 2.
[85] Transcript Day 3, pg 3-10, line 45 - 46.
[86] BMD Plant and Equipment Management - Core Operating Procedure;
[87] BMD Work Method Statement 005.1 General Earthworks (Clearing and Grubbing)
[88] Magistrate Court Decision, pg 28 - 29.
[89] Transcript of Appeal hearing before Judge Grigg dated 7 October 2025 (Transcript of Appeal), pg 1-22, line 6 - 12.
[90] Transcript of Appeal, pg 1-24, line 41 - 45.
[91] Exhibit 5 - BOLT Module - Activity Based Risk Management, pgs 6 and 33.
[92] Transcript of Appeal, pg 1-25, line 28 - 29.
[93] Transcript of Appeal, pg 1-25, line 29 - 30.
[94] Transcript of Appeal, pg 1-21, line 30 - 33.
[95] Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [67] (per Wright P, Walton VP and Hungerford J).
[97] Exhibit 1 - Agreed Trial Bundle, tab 26, BMD Work Method Statement - WMS No: 005.1 - General Earthworks (including Cleaning and Grubbing), pgs 998-999.
[98] Exhibit 1 - Agreed Trial Bundle, tab 17, BMD Plant and Equipment Management - Core Operating Procedure, pg 916.
[100] Uniform Civil Procedure Rules 1999 (Qld) r 702.
B.M.D. Constructions Pty Ltd
Nicholson [2026] QDC 5
(2003) 214 CLR 118
(2001) 110 IR 57
(2010) 197 IR 447
(2010) 239 CLR 531
(2009) 25 VR 75
(1952) 87 CLR 313
(2004) 135 IR 166
(2006) 14 VR 321
(2016) 257 IR 351
(2001) 205 CLR 304
(2012) 246 CLR 92
(1957) 97 CLR 337
(1986) 5 NSWLR 209