(a) the defendant failed to provide and maintain systems of work that were safe and without risks to health in relation to its employees working around trees that were at risk of falling;
(b) the defendant failed to provide and maintain a safe system of work so as to ensure that its employees did not walk into the area or zone which included the falling path of a tree that had been scarfed and backcut at a time when that tree posed a risk of falling into that area or zone;
(c) the defendant failed to have in place supervision that ensured that employees would not be required to rely solely on their own judgment as to risks to their health and safety, or to the health and safety of other employees, that might arise by reason of trees being scarfed, backcut and left standing.
4 The defendant company entered a plea of not guilty to that charge. The essence of the defence case at the hearing was that the defendant company did provide an effective and safe system of work in the felling of trees, and had the work on the day been carried out in accordance with that system, there was no risk to the safety of the workers and in particular the safety of Mr Munday.
THE EVIDENCE
5 Mr McDonald had been employed by the defendant company for over 26 years and confirmed that in November 2001 he was employed as a bulldozer operator and held the position of bush boss. His role as bush boss was to make sure that the operation was run in a safe and "proficient" manner. He implemented occupational health and safety procedures, identified any hazards and dealt with those hazards in the compartment that was being worked upon by the crew in the bush. As bush boss, it was Mr McDonald's duty to induct any new employees and visitors to the area to make sure that they understood the safety procedures the crew worked under. The duties of bush boss were documented in the defendant's occupational health and safety manual.
6 In an interview with Inspector Franke on 5 March 2002, Mr McDonald stated that he had a category L3 professional faller's ticket, an advanced problem tree felling and a bulldozer certificate. He had obtained those qualifications by training and practical demonstration over 30 years. Those qualifications were current. He had been employed as a faller on a temporary basis, including a few days after the accident involving Mr Munday. Mr McDonald was aware of the Harvesting Plan provided by State Forests New South Wales to the defendant and the fact that the Plan prohibited the falling of trees into filter strips and across National Park boundaries.
7 Mr McDonald described the method of falling timber used by the crew as both machine assisted falling and directional falling. With directional falling the tree was scarfed and backcut and was then either wedged by the faller or machine assisted to fall in the direction desired by the faller. The equipment used in directional falling was either the bulldozer or the faller could use an axe/hammer and wedges. A faller did not always use an axe and wedge to assist the tree to fall and whether those implements were used depended on the boundaries and whether the terrain was steep: both habitat and retained trees had to be kept in mind. Mr McDonald said that it was not a high percentage of trees that would have to be wedged and the falling depended upon the skill of the faller and the way the tree was leaning.
8 In oral evidence, Mr McDonald described scarfing as putting in a bottom cut with a chainsaw on one side of the tree in the direction the faller wanted it to fall, then putting in a top cut and taking out that wedged shaped piece of wood. The faller then placed what was called a backcut at the rear of the tree which allowed the tree to fall in the direction intended by the feller. A faller could put a wedge into the backcut, tapping it in with a hammer or axe and then lever the tree in the direction the faller intended it to fall. It was usual for the wedge to be made of plastic or aluminium and to be tapped in with the axe although a hammer could be used. The first thing a faller did in getting a tree to the ground was to check the direction in which the tree was leaning so that it could be scarfed in the right direction and fall in the area desired by the faller. The place where the tree was scarfed actually affected the direction in which the tree fell. A tree could lean in one particular direction, but to a certain degree a good faller could make it fall in another direction. Usually it was desirable to have the tree fall into an open area where it was not going to be tangled with other trees and was also directed away from filter strips. Filer strips were the protection strips on the edge of creeks and gullies and were designated by State Forests.
9 Mr McDonald described how directional falling could also be achieved using a bulldozer. This was called tree assisted or machine assisted tree falling. This occurred in certain cases when a tree did not fall and the faller could ask the bulldozer driver to assist in getting the tree down by pushing with an attachment connected to the bulldozer.
10 In his statement to the Inspector, Mr McDonald agreed that it was normal practice for the faller to carry his pouch strapped around his waist containing two wedges, as well as carrying his axe. It was a matter of individual preference whether the axe was left at the last stump or whether it was kept in the personal possession of the faller but it was always within a short distance from where the faller was working.
11 On the day of the accident, Mr Munday had felled three trees before being joined by Mr McDonald. Mr Munday had been accredited by training conducted by the Eden Logging Investigation and Training Team (ELITT). He would not be allowed in the bush to fall trees unless he was accredited. It was a State Forests requirement for all persons working in the forest to be trained and accredited. A faller's accreditation was reviewed and Mr McDonald reviewed Mr Munday's work by observing his cutting and falling techniques. This was also reviewed by the State Forests officer and ELITT once a month. There were also documented toolbox talks.
12 As bush boss, Mr McDonald had inspected the stumps of trees felled by Mr Munday and was satisfied with his work. He said that, in this position as bush boss and driving the snigger, he was in the best position to see the day to day operation of the faller and the loader operator. The supervising forestry officer responsible for this compartment was Mr Bradley Hyde, who attended the worksite daily but it varied from day to day as to how long he would be present. His duties were to check the work that was being performed, to mark the habitat trees and the retaining trees and to inform the bush boss if there was any hazard that needed to be attended to. In consultation with the bush boss they could close off an area. The forestry officer also submitted his own report to his superiors concerning the crew's workmanship. That officer also had responsibilities relating to occupational health and safety.
(a) Both the supervising forestry officer and Mr McDonald had carried out `assessments of trees felled by Mr Munday prior to the accident. If the forestry officer thought there was a problem, he would raise it with the bush boss but nothing had been said to Mr McDonald - his own inspections showed that the work was "okay".
13 In relation to the work on the previous Friday, 2 November 2001, Mr McDonald noticed that Mr Munday did not have his axe with him. When asked about the axe, Mr Munday said that he had left it at a stump of a tree that he had felled that afternoon, and it was agreed that together they would look for it on the following Monday morning. On the Monday, the crew had a cup of tea, spoke about what work would be done and at approximately 7.15 am Mr McDonald went to his bulldozer and performed his usual check of equipment. Mr Munday took his chainsaw and fuel from the utility and went to the area in which he was to work. Mr McDonald saw him falling a couple of trees before starting his work snigging, and after snigging and debarking a few trees at the dump, Mr McDonald went back to where Mr Munday was working and noticed he was refuelling his chainsaw that was laying on a stump. Mr McDonald then remembered that they had agreed to look for Mr Munday's axe although at that stage did not know if the axe had been found. Mr McDonald stopped his machine and spoke to Mr Munday about the axe and they agreed to look for it. Mr McDonald started up his bulldozer while Mr Munday walked through the bush to the area in which he had worked on the previous Friday. Mr McDonald followed Mr Munday using the snig track and joined Mr Munday in looking for the axe amongst the foliage after removing a number of tree heads. They spent approximately 15 minutes in this area looking for the axe but did not find it. Mr McDonald suggested that Mr Munday use a sledgehammer that was in the bulldozer until another axe could be obtained. Mr McDonald then went back to his bulldozer and a few seconds later heard the noise of a tree falling. The tree did not injure him because he was protected by the canopy of the bulldozer - the tree did hit Mr Munday, approximately four metres to Mr McDonald's right.
14 Mr McDonald said that, prior to the accident, he was unaware that Mr Munday had attempted to fall the tree which eventually fell on him. If he had known that the tree had been scarfed and backcut there was "no way" he would have gone into the bush looking for the axe, nor would he have allowed Mr Munday to do so. Mr McDonald said that, when falling was being undertaken there was an exclusion zone of at least two tree lengths in which persons had to be clear of the faller - that was the rule that operated when working in the forest.
15 It was Mr McDonald's view that an operator with Mr Munday's level of competence would have had no difficulty in using his chainsaw to fall a tree with a diameter of approximately 1300mm, such as this particular tree. Mr McDonald had considered the state of the stump of the tree on a number of occasions. He could not see anything wrong with the procedure followed by Mr Munday. He noted that there was a "pipe", that is a rotten hole in the middle of the tree, but thought that was not a contributing factor other than it might have reduced the amount of holding wood that Mr Munday believed was present in the stump. There was also an old burn scar covered with bark which reduced the strength of the holding wood on the top side of the stump which Mr Munday would not have been aware of, and there was decay reducing the strength of the holding timber of which Mr Munday could not have been aware. Mr McDonald noted that, whenever there was a problem with a tree, Mr Munday would inform him and it would be pushed down using the bulldozer. He believed that Mr Munday thought there was enough holding wood left in the tree because it was not his style to work in an unsafe manner and he was a good operator. Mr Munday had not mentioned that he had scarfed the tree.
16 In a statement given to the New South Wales Police, Mr McDonald said that he was aware of Mr Munday and his family and knew that he was experienced in the forestry industry. In the performance of his work, Mr Munday was regarded as being very efficient and doing a very good job: he was the sort of person who never took risks and was very safety conscious, which was required for the job that he performed. Mr Munday always wore his safety equipment while working on the site, which included a hard hat, ear muffs, eye protection, safety boots, cut proof pants and a high visibility vest. Mr McDonald could only recall one incident where he thought Mr Munday had displayed an error in judgement. That had occurred on 26 October 2001 while working in the dump. Mr Munday was cross cutting a log on the dump which was below another log which had the potential to roll - that log did roll, and both Mr McDonald and the excavator operator alerted Mr Munday to the danger. He was said to be lucky to get out of the way of the log otherwise he could have been injured.
17 It was only after contacting emergency services and trying to find Mr Munday's pulse that Mr McDonald became aware that Mr Munday had scarfed and backcut the tree. At no time when talking with Mr Munday while searching for his axe did he tell Mr McDonald that he had scarfed and backcut a tree which was above them. The cuts in the tree were not visible to Mr McDonald at any time during his discussions with Mr Munday or while searching for his axe, mainly because where Mr Munday was working on the stump was out of sight, being over a ridge and an outcrop of rock. Mr McDonald said that it was common practice in the industry not to work below a tree that had a potential to fall on or near a person. On inspection of the stump, Mr McDonald noticed that the cut had left about 10 inches of uncut wood on the top side of the stump. This indicated that possibly Mr Munday had run out of fuel and was refuelling his chainsaw prior to completing the cut.
18 In his oral evidence, Mr McDonald said that, at the start of the day while they were having a cup of tea, there was no discussion with Mr Munday about his axe or his equipment nor did Mr McDonald ask him about his axe. During the early part of the work, while Mr McDonald was taking trees to the dump, he had no conversation with Mr Munday and did not raise the issue of looking for his axe until he noticed that Mr Munday had stopped work and was refuelling his chainsaw. Mr McDonald had not seen the axe with the rest of Mr Munday's equipment and he did not know whether Mr Munday had retrieved the axe or whether it was still in the bush.
19 Mr McDonald said that on some occasions a faller may not be able to wedge down a tree because it may be sitting back or otherwise would not fall. In those circumstances, it was the faller's decision whether it was to be pushed down by the bulldozer. Normally, the faller would cut an escape route behind the tree at a 45 degree angle away from the stump. It was preferable to cut in an upside direction where that was practicable, because the uphill side was the safest side of the tree to be on when it fell. It would depend on the individual faller how far up the escape route he would go after the backcut was put in but normally it would be about 10 metres.
20 Mr McDonald was cross-examined in detail about forestry practices when falling trees as well as the circumstances surrounding the accident involving Mr Munday.
21 In cross-examination, Mr McDonald said that his advanced qualification as a tree faller required him to be re-assessed every three years - it was a qualification he had held for a considerable period of years. There were also different grades of tree faller which reflected the capacity of a faller to undertake certain work. At the time of the accident in November 2001, he had been a bush boss for five or six years. In this position, if a faller or another employee had a problem with a hazard, he would be the first person spoken to about it. In this position, he was continually making assessments about the work being carried out because he was in the actual work area.
22 The faller assessed a tree before deciding whether or not he was going to fall it: it was the faller's decision and it was the final decision as to whether the tree was felled or whether it was left. As the bush boss, he would not go into the area where the faller was working if he could not see the faller. He could approach to within two or three tree lengths of the tree on which the faller was working but no closer. That rule applied to everybody on the site. The bush boss also carried out induction of inexperienced people visiting the site and they were to stay in designated areas more than two treelengths away from where the faller was working. Inexperienced people on the site would normally be accompanied by the bush boss or the State Forests officer. The State Forests officer usually visited daily but on the day of the accident, which occurred early in the morning, he had not yet arrived.
23 Mr McDonald stated that when a tree was being felled it was not to fall into the filter strip nor was it to hit another tree and force it into the filter strip. If that occurred, it had to be documented and a report made about it. A tree which hit another tree and left limbs hanging in it created a hazard and that too was to be avoided. The faller picked a tree to bring down and, before doing so, he established an escape route. He would normally cut any scrub with his chainsaw and would then assess the tree and its lean before he cut the escape route. There were also other considerations, such as when the ground was too wet it was not safe or appropriate to work in the coupe. The decision as to whether it was safe to work was not made by the bush boss but by the State Forestry officer and he would also decide when work could resume.
24 While they had been working in this area, Mr Munday had requested machine assistance and Mr McDonald had provided it. The bulldozer had a tree pusher attached which enabled this task to be performed. The bulldozer also had a certified protection cage to protect against rollovers and falling limbs. In areas where there was a hill, such as this work, the work was to start at the bottom and an area was cleared for the trees higher up the site to fall into. In this coupe, the bottom area had been cleared the previous week and that was the area in which Mr McDonald and Mr Munday had looked for the axe.
25 The harvesting plan was prepared by State Forests and unless there was such a plan the defendant company could not go into an area and fall trees. Before the plan was finalised, there would be a discussion between the forestry officer and the bush boss which would take place during an inspection prior to the crew moving into an area. The discussion would deal with filter strips and areas where trees were not to fall.
26 It was Mr McDonald's opinion that a faller did not always need to use an axe and wedge to assist in bringing down a tree and that most trees did not need to be assisted in that way. The axe was used to wedge the tree if necessary, with the blunt end of the axe head being used as a type of hammer. The blade of the axe was not very often required to be used during the falling process - sometimes, if cuts had not met in the scarf, the axe would be used to cut that piece of wood out if it was stuck. Sometimes the scarf could be hit with the back end of the axe and would come out and at other times it would need to be cut out with the axe. From Mr McDonald's observation of Mr Munday's work, he did not have problems with his chainsaw cuts in creating the scarf and he regarded Mr Munday as a very good tree faller. Whether a person was a good tree faller could be assessed by looking at the stump to see where he had left the holding wood, the type of scarf cut and how he put in the backcut. The holding wood was like a piece of hinge wood and was the small piece of wood that was left either side between the scarf and the backcut for the tree to hinge on as it fell. The hinge wood provided some control of the direction in which the tree fell and, if the hinge wood was cut out, the tree might fall in any direction. The presence of the hinge wood resulted in the tree falling into the scarf cut. From studying the stumps of trees felled by Mr Munday, Mr McDonald had formed the view that he had cut appropriate lengths and depths of scarf and an appropriate length and depth of backcut, as well as leaving an appropriate amount of hinge wood. It was not necessary to speak to Mr Munday about the need for improvement or about his falling capacities.
27 Prior to commencing work with the defendant in mid-January 2001, Mr Munday's accreditation as a faller had expired - without ELITT accreditation as a faller, State Forests would not permit that task to be performed. State Forests also required accreditation and licences for driving bulldozers and other machines.
28 On the Friday before the accident, 2 November 2001, Mr McDonald noticed that Mr Munday did not have his axe with him at knock-off time when he brought his chainsaw and fuel back from the worksite to the work vehicle. Mr McDonald asked him where was his axe and Mr Munday said that he had left it at the base of a stump where he had been falling that afternoon. That was the same area where work commenced the following Monday. Mr Munday had been gradually working up the hill and had left or misplaced his axe. The work on the following Monday commenced from where it had ceased the previous Friday.
29 On the following Monday, Mr Munday was observed to have all his personal protective equipment except his axe, that is, he had his hard hat, earmuffs, cut proof pants, safety boots and high visibility vest. He had a belt and a pocket with two wedges and he had his chainsaw and fuel cans. Mr Munday commenced work about 150 metres from the dump site where Mr McDonald had initially commenced working. After working at and around the dump for approximately half an hour Mr McDonald commenced to drive the bulldozer towards Mr Munday where he was refuelling his chainsaw. As Mr McDonald approached, Mr Munday did not give him a signal. If a faller did not want anyone to approach he would hold his hand up to stop the person from coming into the area. If Mr Munday had needed machine assisted falling, he would have given a hand signal which was understood between them that assistance was required. Mr McDonald confirmed that, if he had not seen Mr Munday, he would not have proceeded into the area or if Mr Munday had not noticed Mr McDonald coming, he was required to wait until seen by Mr Munday, then receiving a signal he could go into Mr Munday's area of work. A person in that position was to remain at least two tree lengths away and wait until eye contact could be made and a signal given to come into the work area.
30 On the day of the accident, Mr McDonald could not recall whether he actually made eye contact with Mr Munday, but he could see Mr Munday refuelling the chainsaw. Mr McDonald presumed that it was safe to proceed into the work area because Mr Munday was in a cleared area, which he thought must have been safe for Mr Munday to be working in and therefore it would be safe for Mr McDonald also to be present in that area. Mr McDonald was unable to see the base of the tree that had been cut but had not yet fallen because of an outcrop of rocks. Mr McDonald had since examined the site again and had satisfied himself that the stump could not be seen until standing on top of the outcrop of rocks. Mr Munday was refuelling his chainsaw about 20 metres away from the outcrop of rocks.
31 Mr McDonald said that it was an unwritten law that the faller was in charge of the area where he was working on falling trees and that he was responsible for the tree being cut. Nobody was permitted to go within two tree lengths of that area without the faller's permission because it was regarded as a danger zone. On considering this particular stump, Mr McDonald was of the view that the tree ultimately fell where Mr Munday had intended it to fall.
32 When Mr McDonald approached Mr Munday while refuelling the chainsaw, Mr Munday did not mention anything about the tree he had cut, nor did he raise any form of difficulty he was experiencing in relation to the tree. Mr McDonald stated that, if a tree had a scarf and a backcut and did not fall, as bush boss he regarded the first priority was to get the tree on the ground. He would wedge the tree if he could but if it would not respond to wedging he would call for machine assisted falling. If neither of those courses was possible because of the terrain, then the tree would be left and the area would be flagged to warn people not to go into that area. Mr McDonald agreed that sometimes the wind could have an effect on a tree because of its height and size. Just a slight breeze had a lot of power in the top of a tree, the leafy area, and sometimes the faller could wait for the wind to bring down the tree.
33 Mr McDonald agreed that he had looked at the stump on a number of occasions. When asked if there was anything left for Mr Munday to have done in terms of bringing the tree down, Mr McDonald said that "maybe he could have cut a little bit more holding wood on the top side end", but he also agreed that Mr Munday did not really need to do that in order to bring the tree down. Mr McDonald also agreed that, when Mr Munday was refuelling his chainsaw, he "probably" did not need to return to cut any more of the tree. Mr McDonald said in his statement to the police that the uncut wood on the top side of the stump indicated that Mr Munday had possibly run out of fuel and that he was refuelling his chainsaw prior to completing the cut. He said that at the time he made that statement, he was feeling very stressed and that was a possibility or an assumption on his part. Having the opportunity to consider the matter further, Mr McDonald did not think it remained a possibility.
34 Mr McDonald agreed in cross-examination that putting in wedges did not always result in a tree coming down. Sometimes, a tree cut by the chainsaw could rock back on the stump, lean the wrong way, and close the gap created in the backcut. When that occurred, it was difficult to insert a wedge and when that occurred it may be inappropriate for safety reasons to try to insert a wedge. This would be a circumstance where machine assisted tree falling would be appropriate.