Q. Did you approach the truck. Did you exit the loader and approach the truck?
A. No I talked in the loader. I had to. I didn't want to take my foot off the brake because the truck was downhill and I was uphill and if the loader was to roll forward because I was afraid of the height, so I stayed in there with my foot on the brake.
71 Mr Smeekens' evidence was that when he had previously worked as a loader operator, truck drivers would become impatient, particularly when it was busy.
72 Mr Smeekens recalled being involved in workplace risk assessment on 15 January 2002. However, Mr Smeekens could not remember whether the assessment occurred before or after the garbage trucks started arriving at the site. Mr Smeekens' evidence was that he was concerned about the trucks that did not stop at the stop sign and he conveyed his concern to Mr Cason. It is clear on the evidence that this assessment occurred after the garbage trucks commenced at the site in or around December 2001.
73 In cross-examination, Mr Smeekens' evidence was that one of the piles of debris was in his line of vision between where he was working and the gatehouse and the stop sign. When he was manoeuvring around to the stop sign, he had to avoid colliding with the pile of debris and the tray of "a dog" (a trailer) behind a truck which he had been loading. He did this whilst the bucket was up in front of the loader which obscured his vision of where Mr MacKenzie had parked his truck. Mr Reisenleiter had not informed Mr Smeekens via the radio that he had allowed the truck into the tipping area. Mr Smeekens' evidence was that if he had been informed that a truck had been let into the tipping area, he would not have driven with the bucket of the front-end loader in the up position.
74 Mr Smeekens stated that he knew the layout of the premises prior to attending work on 30 September 2002 and that the stop sign had moved and the barriers finished at the stop sign. Although Mr Cason told Mr Smeekens that trucks stopped at the stop sign until he moved them on, that was the procedure in operation when he had previously worked at the site. His evidence was that Mr Cason reminded him that most of the time when he had finished loading a truck, he would come back to the stop sign to bring in another truck. Mr Smeekens' evidence was that he did not get a message on all occasions that a truck had been let through into the tipping site. On occasions, Mr Smeekens would get a warning very shortly after the truck had arrived. On other occasions, he would get the radio warning in good time, sometimes before the truck had arrived, sometimes at the time when he saw the truck arriving. He recalled trucks had arrived on occasions without any warning. To find a truck in the yard without a warning was very annoying to Mr Smeekens. He complained to Mr Cason about this occurring. Mr Smeekens' understanding was that Mr Cason was going to do what he could about this situation.
75 Mr Tiberiu Orden gave evidence. Mr Orden is a director of the defendant. Mr Orden stated that during 2002, his role with the company involved managing the defendant's site at Botany. Mr Orden's evidence was that at the time of the accident, a document known as Botany Safe Work Practices was in place. Although this document referred to a yardman directing where trucks should stop for their loading and unloading, Mr Orden agreed that there was no yardman employed at the time of the accident. The procedures set out in this document were implemented in early 2002 which introduced new procedures in respect of the funnelling of trucks and a change to the stop sign.
76 Mr Orden's evidence was that at September 2002, it was not the intention of the defendant to have a yardman engaged. The procedure, as outlined by Mr Orden, was that the weighbridge operator would inform the trucks to go to the stop sign and from there the trucks were to come into the yard by communicating with a either through a two way radio or through a sign or hand signal. This would occur when the truck driver could see the loader operator. Mr Orden's evidence was that the traffic plan was put into operation after negotiations with Collex because it was not the defendant's place to do anything in the yard.
77 The defendant was only there in respect of what he described as a plant hire situation. Mr Orden's evidence was that everything had to be done through Collex, including safety issues. This included discussions about safety issues. Mr Orden stated that Collex and the defendant worked together on safety. Collex purchased the stop sign, however, it was physically erected by the defendant.
78 Mr Orden's evidence was there was no paperwork relating to induction and/or training prior to the incident of 30 September 2002. Mr Orden admitted that he was aware that from time to time that the gatehouse operator would let a truck past the designated stop sign to dump a load. He stated that Mr Cason complained about this. Mr Orden's evidence was that Mr Cason "complain(ed) to Steve" (Lawrence), the Manager at Collex. However, it did not stop happening and Mr Cason occasionally told Mr Orden it was still happening.
79 Mr Orden agreed that he knew throughout 2002, as a Manager, there was some risk to his employees and to non-employees. However, he stated the defendant was not in charge of the site and not in a position to change the traffic system. Mr Orden's evidence was that Collex was in charge of the site. This was the reason that a yardman was not put in place. The defendant offered to pay half the costs of the yardman, even though the occupation by the defendant was only 10 per cent to 20 per cent of the yard. Mr Orden's evidence was when the suggestion of a yardman was discussed, Mr Lawrence said "it might be dangerous for a yardman to be there because he could be run over".
80 Mr Orden's evidence was that the defendant did a risk assessment after the accident. It took the form of a site meeting. It was a Collex meeting in which the defendant participated. The meeting occurred on 9 October 2002. It resulted in the introduction of the boom gate in place of the stop sign. A yardman was also introduced who did not remain for a long period. Mr Orden's evidence was that the boom gate was proposed by WorkCover.
81 During cross-examination, Mr Orden stated that the defendant ceased its crushing operation at the site and then some months later, after entering into another contract, resumed work at the site sorting waste. This was around July 2001. Different traffic rules applied at the site after the defendant re-commenced operation. Mr Orden reaffirmed that the defendant suggested to Collex that they should engage a yardman, as they thought it would have been an advantage to have a yardman. Mr Orden confirmed that the concrete barriers were put in place by Mr Cason after getting permission from Collex.
82 Mr Orden's evidence was that he stood at the site quite regularly to see if the staff were okay, if it was safe and everything was going according to plan. He also checked that the machinery was in good condition during his visits to the site. He would watch the whole operation including the loader operator and excavator operator in action. He had observed both Mr Cason and Mr Smeekens operating the loader.
83 Mr Orden stated that he formed the view that Mr Smeekens was a good, reliable operator and safe. He had never seen him driving the loader with the bucket up and if he had, he would have told him it was an unsafe practice. He also stated that when the garbage trucks were introduced to the site, Collex removed the concrete barriers and replaced them with other barriers so that the Collex trucks could get through to their yard.
84 Mr Orden's evidence was that he passed on the complaints made by Mr Cason regarding the entry of trucks into the tipping area, without warning, to Mr Lawrence and Mr Barnes. This resulted in a meeting between Mr Orden, Mr Lawson, Mr Barnes and Mr Lawrence. Mr Orden also stated that Mr Cason complained about the physical state of the yard and the piles of material. In his view, the problem was obvious and he complained to Mr Lawrence.
85 The installation of the boom gate and the shifting of material was done by Collex, not the defendant. Mr Orden's evidence was that visibility improved dramatically after the accident because the stockpiles of material was not there any more. Mr Orden stated that nothing was done jointly. Suggestions were made to Collex to improve the traffic system. Sometimes they accepted the suggestions, sometimes they did not.
86 In re-examination, Mr Orden stated that when the defendant was conducting the crushing operation, it was the sublesee of part of the site.
87 The defendant called the following witnesses: Gregory David White, the Sales Administrator Manager and Occupational Health & Safety Manager of the defendant; Mr John Collins, a risk management consultant, and Mr Brent Lawson, a director and the Administrator Manager of the defendant.
88 Mr White has been employed by the defendant since 2000. He had the joint responsibility of Sales Administration Manager and Occupational Health and Safety Manager. In his role as the Occupational Health & Safety Manager, Mr White stated that any requests made of him by clients of the defendant were to be verified and considered by the directors. No arrangements were to be entered into on behalf of the defendant with its clients without the endorsement of the directors.
89 Prior to Mr White taking up his role as OH&S Manager, he had meetings with the management of the defendant and an organisation called Brief Group who had commenced to put together occupational health and safety policies and procedures for the defendant. He also had documentation from the Dust Diseases Board and other assorted files associated with health and safety of workers. Mr White also obtained a copy of the OH&S Act and Regulations and went to the WorkCover office at Parramatta and asked what documentation and procedures and guidelines were available.
90 Mr White maintained contact with WorkCover and would regularly attend its offices to get new publications. WorkCover Inspectors would often call at the defendant's site at Camellia shortly after Mr White became the OH&S Manager. A result of these discussions was the creation of the yard/depot traffic control document. Mr White stated that this document was a result of concerns that Mr Cason had raised with him. He raised these concerns with the directors of the defendant, Mr B Lawson and Mr T Orden. Mr White also had discussions with Collex employees at the Botany site. These employees were Scott Reisenleiter, Steve Lawrence and Tony Clavel.
91 The yard/depot document prepared by Mr White was finalised within a day or two of speaking to Mr Orden and Mr Lawson about trucks entering the tipping area. Mr White got the impression that both persons already knew of Mr Cason's concerns. Mr White estimated that he would go to the Botany site at least twice a week and undertake an inspection. His practice was to speak to the loader operator, enquire how everything was proceeding and whether anything was needed. Mr White would also take note of the amount of material that was around the site and how many trucks were waiting because he knew they were contentious issues.
92 Mr White observed both Mr Cason and Mr Smeekens operating the loader. He formed the view that Mr Smeekens operated the equipment safely and in a way consistent with the guidelines that he had presented from WorkCover. He also discussed safety working procedures with each of the employees. Mr White's evidence was that he had never seen either Mr Cason or Mr Smeekens driving the loader with the bucket in the air. Mr White acknowledged that the employees had been instructed that this should not occur and that it was highlighted in the Botany Safe Working Practices document.
93 Mr White's evidence was that the matters raised by Mr Cason and Mr Smeekens on 15 January 2002 regarding the traffic issues in the yard were in fact occurring. Mr White brought these to the attention of the directors of the defendant. Mr Cason also often raised that there was insufficient trucks provided to remove the material on site which diminished the working footprint for the loader to move around the site. Mr White's evidence was that the quantity of the material prepared remained pretty much the same after Mr MacKenzie's accident.
94 During cross-examination, Mr White agreed that it was a well known risk driving a loader with the bucket raised. Mr White agreed that unless the loader operator directed otherwise, there was to be no-one else in his immediate area to ensure that the loader operator would have complete control. This was the intent of the Traffic Management Programme that was put in place by Collex. Mr White stated that throughout 2002, the loader operators did not have total control of the situation. His evidence was, upon becoming aware of this, he reported what he had learned to his directors and asked them to raise that subject with the management of Collex so that they could rectify the problem with their employees at Botany.
95 Mr White agreed after he reported to his directors, he was told the problem persisted. He continued to ask his directors whether they had discussions with Collex and was told the discussions were ongoing and that improvements would be made. Mr White's understanding was the frequency of multiple vehicles being in the working area of the loader diminished after the directors of the defendant raised the problem with Collex. However, he did concede that he knew the defendant had to ensure that its employees were not put at risk.
96 In order to ensure that loader operators were not at risk of their machines colliding with a vehicle, Mr White believed that the defendant requested Collex to ensure that their employees ceased allowing vehicles to enter the yard. Mr White's evidence was that he was aware throughout 2002 that truck drivers would enter the tipping area without the knowledge of the loader operator and that it would be complained about whenever it occurred. He stated that when a truck entered the tipping area without the knowledge of the loader operator, the operator would go to the weighbridge or occasionally go upstairs to the office of Collex and inform them what was happening. Throughout 2002, Mr White stated that on each occasion that he became aware that the risk was repeated, he brought it to the attention of his directors. He gave evidence that Mr Lawson went to the site from time to time.
97 Mr John Collins has been a risk management consultant for the last 16 years advising clients in industry of the implementation of occupational health and safety management systems and compliance and best practice systems.
98 Mr Collins prepared a report in respect of the accident at the Botany site on 30 September 2002.
99 Mr Collins' conclusions and reasons for opinion were stated as follows:
(i) The Banksmeadow site appears to be controlled by Collex with Concrete Recyclers acting as a subcontractor.
(ii) Under both NSW legislation and normal practice Collex would be expected to control traffic on the site as part of their Occupational Health & Safety Management System.
(iii) There is no evidence that Concrete Recyclers were required by Collex to develop their own system and generally subcontractors would be expected to work with the site managers to ensure the safety of all persons via an integrated Traffic Management Plan.
(iv) Although Concrete Recyclers appears to have discussed traffic management with Collex on several occasions prior to the accident it was obvious at the time of the accident that Collex were responsible for traffic into the site and the recycling area. This can be inferred from the fact that the Gatehouse Supervisor allowed trucks into the recycling area on several occasions to reduce congestion at the gate.
(v) On this basis I believe Collex were responsible for the traffic plan on the site and therefore should also be responsible for the supervision and maintenance of that plan.
(vi) Due to the informality of the traffic plan and lack of supervision on the site it was foreseeable that the plan would fail.
100 In preparing his report, Mr Collins was provided with the prosecution brief, statements from Mr G White, Mr T Orden and Mr F Smeekens. He also undertook a visit to the perimeter of the site after the report was prepared.
101 Mr Collins stated that in respect of the installation of the boom gate, the loader operator should be the only person who has the remote control handset. He stated if other persons have access to remotes, that defeats the purpose and provides another method of failure of the system.
102 During cross-examination, Mr Collins' evidence was that once a truck went past the stop sign, there would still be some risk of collision even if the loader operator was aware that the truck had entered the tipping area.
103 Mr Collins observed that, in his view, you can never reduce risk to zero. He agreed that the fact that the traffic system was not formalised, would have been an element in increasing the risk. Formalising the traffic system, Mr Collins stated, would have reduced the risk because it could have been more easily enforced.
104 Mr Collins' evidence was, as he saw it, that Collex had the responsibility of establishing a traffic management system. His view was that there should have been a traffic management system across the site whereby someone was responsible for the whole of the site. In his view, this was Collex. When it came to the enforcement of that system, in Mr Collins' view, the primary responsibility is always with the people who have got the system in place and who have got authority for that system. According to Mr Collins, Collex should have been the primary people responsible for the maintenance of the system.
105 In respect of the defendant, Mr Collins' evidence was that they had the responsibility for the maintenance and enforcement of their systems and their systems would have related to the loading/unloading of the trucks because that is the task that they were doing and they would have responsibilities for informing Collex of deficiencies in the system. Mr Collins stated that once the defendant became aware that trucks were entering the tipping area without the knowledge of the loader operator, the defendant had a role to play in bringing the deficiency to the attention of Collex. This extended to ensuring that their own employees and non employees were not exposed to risk to their safety.
106 It was suggested to Mr Collins that they needed to do more than report it to Collex. Mr Collins' evidence was that if the failures in the system continued, it did not mean that the defendant was failing to meet its obligation. He contended that where a system is not operating as it should, individuals should talk and discuss how to improve it. This was the process that he believed was taking place at the Botany site.
107 Mr Collins stated in his opinion it was a flawed system at best in the sense that the system relied on people's behaviour, which is not perfect so ultimately there was a chance of a failure. He believed that if there had been a move of one level up in the hierarchy, a form of mechanical system such as a boom gate, could have been introduced prior to 30 September 2002, which would have reduced a risk. This has now occurred.
108 Mr Collins believed that the risk was low in respect of the system that was in place at 30 September 2002, but would have been lower still if there was a form of mechanical barrier in place. His view was that despite the lack of formality with regard to the system, the existing arrangements would have been adequate if they had been followed by all persons on the site. If the administrative controls had been enforced, they would have been adequate if they had been followed by all persons on the site.
109 Mr Collins stated that one option would have been to stop doing the job. According to Mr Collins, the Yard/Depot Traffic Control document was a reasonable attempt at a risk assessment in his experience. In his opinion, risk assessment methodologies in New South Wales are still developing. Mr Collins stated that it could not be said it was a perfect document. However, at the time that it was prepared, that being in 2002, it would have been a reasonable attempt at a risk assessment.
110 Mr Collins' evidence in respect of the formalisation of the traffic management system was that he saw no evidence of this or anything else being turned into procedures. He did not see any procedures that said "you will stop at the gatehouse, you will obtain clearance for this, you will drive down to the stop signs, under no circumstances will you move forward from the stop sign." Mr Collins would have expected to see these procedures written down. He would have expected Collex to have provided those to the drivers when they first arrived as part of their induction training and also to the defendant so that the drivers knew exactly what the system was.
111 Mr Collins' evidence was that the sign on the gatehouse was not a procedure. It did not really define all the aspects of the activity, nor tell the drivers what they needed to do.
112 In re-examination, Mr Collins stated that if a yardman was to be employed, it would have been the responsibility of Collex. Any financial issues would have been negotiated separately between the contractor and the sub-contractor.
113 Mr Collins stated that if the loader operator travelled around the yard with the bucket in an upright position so as to avoid contact with residual piles of material or the "dog" tray of the trailer, this was not something that the yardman could have prevented.
114 Mr Collins' evidence was that in respect of the yard depot traffic control document, this document would have been a suitable springboard or starting point for negotiations or continued negotiations with someone in the position of Collex.
115 Mr Brent Lawson, a director of the defendant, gave evidence. Mr Lawson's main function is the administration of sales and account work. Mr Lawson described Mr Orden's role as the management of staff in the field; the production of equipment; maintenance of the equipment and looking after the workers.
116 Mr Lawson confirmed that he had instructed Mr Greg White, the Occupational Health & Safety Officer after Christmas 2001 to come to him with guideline instructions and recommendations because, in his view, it was a better way of building relationships with their clients. Mr Lawson's evidence was that he visited the site for meetings with Collex and also over a period in mid 2002 when Mr Orden was on holidays. He took over his functions of supervising the site for three or four weeks.
117 Mr Lawson stated that he was aware of a complaint of trucks moving past the stop sign which had been placed in its current position approximately six months prior to the accident. The complaint involved warnings not being given to the loader operator when trucks were let through into the tipping area. He gave evidence that after he became aware of this complaint from Mr White and Mr Orden, he had been trying to resolve the issue with Mr Lawrence and getting nowhere. He decided he would organise a meeting with Mr Barnes, the State Manager for Collex. Mr Lawson admitted he was aware of a number of meetings that occurred at the Botany site and other sites which were attended by Mr Orden including a meeting in the middle of 2002.
118 Mr Lawson stated that the first meeting between the defendant and Collex would have been after the garbage trucks commenced coming to the Botany site. Prior to the garbage trucks commencing work at the site, Mr Lawson stated there was a lot more room in the yard which would have meant that the first meeting was around January 2002. He admitted that Mr Barnes was positive in respect of solutions and there was discussions of how the site could be improved, in particular, improving on the system that the defendant had provided with the barricades. The meeting concluded on the basis that Collex would work together with Mr Cason and Mr Orden, and that Mr Lawrence was asked to come up with a better system that worked for the defendant and for Collex's customers.
119 Mr Lawson stated that there were further meetings which were held at the Botany site that were about two months apart. He recalled attending a meeting after the modifications to the traffic arrangements which moved the stop sign into a more convenient position beyond the gatehouse.
120 Before Mr Lawson attended this meeting, he had discussions with Mr Cason to obtain his opinion about how the system was working at that time. Mr Cason informed Mr Lawson that he believed the system was working well although there was still the issue of trucks moving past the stop sign without his knowledge and he was concerned about that issue.
121 Mr Lawson gave evidence that when he raised this matter with Mr Barnes and Mr Lawrence, he proposed that yardman be put at the stop sign to try and stop the vehicles moving into the tipping area. Mr Lawson stated that he was advised the yard was losing money and that Collex was not prepared to fund it. According to Mr Lawson, the defendant offered to pay 50 per cent of the costs because they were concerned about this issue. This was rejected by Collex. Mr Lawson then stated that a cheaper option might be to install a boom gate and was again advised that Collex did not want to spend any further money as they felt the system they had was working.
122 The solution that Collex came up with was that Mr Cason would have the authority to give the truck drivers a warning and if they broke the procedure of going over the line, Mr Cason could tell them if it happened again, they would not be permitted back into the yard.
123 Mr Lawson stated that after the accident, the defendant wrote to Collex by letter dated 9 October 2002 setting out the six matters that the defendant sought to have addressed in respect of Collex' traffic management plan and sight risk assessment. These matters were as follows:
1. Drivers for the Garbage Collection vehicles garaged at the site entering via the outward vehicle ramp and gate in the morning. This places them at risk, as they must transit the waste handling area as pedestrian traffic.
2. The Garbage Collection vehicle parking area and the Maintenance Workshop, both allow pedestrian access to and from the waste handling area.
3. Barricades, installed by Concrete Recyclers to manage the movement of traffic in the waste handling area, were moved by Collex without consultation with Concrete Recyclers.
4. Drivers for the Garbage Collection vehicles, when leaving the site in private vehicles are not controlled by the current sop signs and are both at risk and placing others at risk of collision.
5. Restriction is to be placed on pedestrian access by visitors to the yard.
6. Prohibition on any entry to the yard by anyone not wearing High Visibility Safety Vest or clothing confirming to AS/NZS 4602-1999 and AS/NZS 1906.4. This is to apply to drivers of tipping trucks that may not expect to leave their vehicle, as they may need to in order to adjust or repair their vehicle.
124 During cross-examination, Mr Lawson agreed that after the various meetings between the defendant and Collex, Mr White continued to report up to September 2002 that trucks were still going through the stop sign without the loader operator's knowledge. Mr Lawson stated that every time the defendant raised this issue with Collex and asked for it to be re-investigated, Collex would address the problem and express it in one form or another. His evidence was that upon learning the trucks were still moving through the stop sign, he asked for another meeting. Each time Mr Lawson had a meeting with Mr Barnes, Mr Lawson stated he found that the defendant was getting results. He believed that the system which enabled the loader operator to ban drivers from the site who entered without approval was working.
125 Mr Lawson's evidence was that the defendant had to co-operate with Collex because they were running the site so the defendant had to do what they were told on the site. He stated that the defendant was employed to supply machinery to sort the waste but was never asked to run the yard from a traffic management point of view and were not paid to do so. Mr Lawson agreed that the defendant could have put on as many staff as it felt was necessary. However, commercially, the defendant was not being paid to do that and had no authorisation to do it without the approval of Collex even if they had taken such a decision.
126 Mr Lawson agreed that Mr Lawrence said that the defendant could employ a yardman but he stated that Collex's view was that a yardman was an added risk in the yard and it was not necessary. The defendant accepted that decision. Mr Lawson's evidence was that the procedures were set up by Collex and the defendant made sure these procedures were followed by the loader operator and that the loader operator was trained in those procedures. Mr Lawson stated that the loader operator also worked under the supervision of Mr Lawrence from Collex. If Mr Lawrence gave the loader operator a direction, the loader operator would follow that direction. Mr Lawson's evidence was that Mr Cason spoke to Mr Lawrence on a weekly basis expressing his concern regarding traffic management and if there was something that Mr Lawrence wanted done in the yard, such as placing the barricades, Mr Cason had to do it.
127 In re-examination, Mr Lawson reaffirmed that every time a meeting occurred with Mr Paul Barnes of Collex, the parties came to a resolution that improved the situation from the defendant's point of view.
128 Mr Lawrence was recalled for further cross-examination, specifically to deal with evidence which he had earlier given, in which he stated he was not present during conversations between the defendant and Collex concerning improving the traffic management system. Mr Lawrence stated that he could recall being present at one meeting at the Moorebank site with Mr Barnes and Mr Lawson, but it was not to do with traffic management at the Botany site. Mr Lawrence's evidence was he did not recall being at such a meeting where it was agreed that Mr Cason would be given the authority to reprimand drivers who crossed the stop sign line. Mr Lawrence admitted that his only recollection in respect of the topic of a yardman was when it was raised by Mr Barnes with him after Mr Barnes had a meeting with the defendant. Mr Lawrence had no recollection of a boom gate being discussed at any meetings prior to the accident. In re-examination, Mr Lawrence admitted that Mr Cason had control of the tipping area from the stop sign onwards to where trucks tipped.
129 Mr Lawson was also recalled for cross-examination. His further evidence was that the matters raised in the letter from the defendant to Collex dated 9 November 2002 included historical matters which were of concern to the defendant. Mr Lawson stated that there was no reference to the installation of a boom gate in that letter because Collex, after discussions with WorkCover, had informed the defendant that they proposed to install a boom gate. At the time of writing the letter, Mr Lawson admitted, he understood Collex was in the process of getting quotes to install the boom gate. Mr Lawson agreed that there was no other correspondence between the defendant and Collex prior to 30 September 2002 which raised the traffic management situation at the site.
130 Mr D O'Neil, counsel for the prosecutor, suggested to Mr Lawson that he may have been confused with the timing of the instructions of Mr Cason to reprimand truck drivers who crossed the line, suggesting that it was after the accident. However, this proposition was rejected by Mr Lawson. I would observe that Mr Lawson's evidence in this regard is corroborated by Mr MacKenzie and Mr Cason.
131 In re-examination, Mr Lawson agreed that he had made a statement in respect of this matter only a couple of weeks prior to the hearing.
132 Mr Lawson stated that he had discussed the operations of the Botany site and the circumstances of Mr MacKenzie's accident with Mr Orden and with his legal counsel, half a dozen to a dozen times since 30 September 2002. This included three or four conferences with the defendant's counsel so that the circumstances surrounding the operation of the site and the accident were alive in his mind when he made his statement for the purposes of it being provided to the OH&S expert.
Prosecutor's Submissions
133 Mr O'Neil commenced his submissions by acknowledging that the admissions made by the defendant dealt with place of work and undertaking. Counsel acknowledged that it was incumbent upon the prosecutor to prove that the defendant failed to provide and maintain a safe system of work in relation to the loading and unloading of trucks at the site in that the defendant failed to ensure that people like Mr MacKenzie only entered the area when the front-end loader was operating with the knowledge and at the direction at the front-end loader operator.
134 Counsel submitted that the evidence was crystal clear in terms of primary liability in that there was a failure to ensure the provision and maintenance of a safe system as at 30 September 2002 in that a truck entered the relevant area, the tipping area, without the knowledge of the loader operator. The risk of injury arose from the relevant risk of collision between the vehicles. It was submitted that the risk was foreseeable and was actually foreseen as early as 15 January 2002 when it was referred to in the yard depot traffic control document.
135 Mr O'Neil referred to the relevant legal principles as set out in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at 196.
136 Counsel submitted that the evidence of Mr Lawson and Mr Collins being that the defendant could not have liability because Collex was the lessee of the site was totally flawed. It was submitted that the evidence of Mr Lawson attending meetings to negotiate an appropriate traffic management plan was not an acceptable course in light of the absolute obligations on the defendant to ensure safety. To subject employees and non-employees to risk whilst parties are going through some negotiating process is not an acceptable course to follow. Mr O'Neil referred to the evidence of Mr Lawson and submitted that Mr Lawson was unsure about the timing of the introduction of the procedure which allowed Mr Cason to warn drivers if they crossed the line. Counsel observed this proposition was never put to Mr Lawrence.
137 It was contended that the weight of evidence from Mr White and Mr Cason was that there were problems with the traffic management system which continued until 30 September 2002. There was no paperwork, no instant reporting form. It was submitted that the system did not work and was not being enforced so the operator's safety and the safety of non-employees was not being ensured to the fullest extent practicable.
138 Mr O'Neil, relying on WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182; Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 and Inspector John Patton v Orest Peter Sywak [2003] NSWIRComm 238, submitted that the defendant was not permitted to contend that it did not have control of the site and could not do any more. Nor could the defendant submit it was working along a path which they believed to be improving the system. It was submitted the obligation to ensure safety remains with the defendant: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 432.
139 Mr O'Neil submitted that there was evidence of the defendant and Collex working co-operatively from time to time in relation to management issues. Counsel referred to the evidence of Mr Cason who suggested changes to the traffic management system in January 2002. They identified the risk of collision and sought to address it by the channelling of trucks towards the stop sign. It was submitted throughout 2002, there was no proper enforcement of the system of which Mr Collins said, if property enforced, it would have ensured safety.
140 Mr O'Neil submitted that the prosecutor did not have to establish that a step required to have been taken would have eliminated the entire risk, relying on Morrison v Powercoal at [105]. It was Mr Cason's evidence that as at September 2002, he was the only person who had the authority to let trucks into the tipping yard. This was supported by Mr Orden's evidence that the trucks would come into the tipping area by communicating with the loader operator either though a two way radio or through a sign or hand signal.
141 Mr Lawrence's evidence was to a similar effect that a truck driver was told to wait at the stop sign until the loader operator had inspected his load and determined what product he had which required sorting. In addition, his evidence was that the traffic rules which were previously in place were procedures for Collex where Collex solely operated the site and they continued on once the defendant became involved in the operation because the basic operation and principle of the trucks coming in and attending the tipping area did not change and the same customers with the same bin companies were still coming to the site.
142 Mr White's evidence was that everything that was brought to his attention in January 2002 was occurring at the site. It was this evidence that Mr O'Neil referred to which pointed to a knowledge on behalf of the defendant that the contemplated system was not being observed. Counsel submitted that the focus should be on the system, not the incident or the accident. Mr O'Neil referred to the evidence of Mr White who was aware that the problem of trucks crossing the line had not been eradicated. Mr White raised the matter with Mr Lawson who had a meeting with Mr Barnes. Mr O'Neil submitted that Mr Lawson's evidence that the system was working properly could not sit with Mr White's evidence that he continued to report to him right up until September 2002 that trucks were going through the stop sign without the loader operator's knowledge. It was submitted to the extent that there was some internal conflicts in the evidence, all it does is to reveal the deficiency in enforcing the system which arose from a lack of paperwork.
143 Mr O'Neil observed that the defendant was unable to produce any notes that any of its directors had taken in respect of meetings with Collex about occupational health and safety issues. In the absence of evidence of proper administrative controls and documentation recording incidents by Mr Cason, it was submitted that the defendant has not done everything practicable to enforce the system, relying on WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Construction Australia Ltd (2003) 123 IR 121 at [94] which discusses what will meet the test of reasonable practicability under s 53 of the Occupational Health & Safety Act 1983.
144 Mr O'Neil submitted that it is not sufficient for the defendant to conduct this case on the basis that there was a not a problem if the system was disregarded as long as Mr Reisenleiter contacted the loader operator. However, it was submitted that because the system did not involve any mechanical impediment to the traffic, there was the real need to monitor, enforce, promulgate, check and reinforce the system. In these circumstances, counsel submitted that to tolerate the breach of the system as long as Mr Reisenleiter rang through on the radio, is the very first step in failing to enforce the system.
145 In respect of the issue of the yardman, Mr O'Neil accepted that there was no evidentiary dispute that the yardman issue was raised with Collex. However, in respect, in particular, of Mr Lawson's evidence regarding the boom gate, Mr O'Neil submitted that as Mr Lawson had sat in court during Mr Orden's evidence and the evidence of other witnesses, it was not possible to know whether the evidence given by Mr Lawson was solely from his own recollection, a combination of discussions he had had with other people, or something directly from his discussions with other people. It was therefore submitted that where Mr Lawson is in dispute with other witnesses, the court should prefer the evidence of the other witnesses. On the issue of the boom gate, the only disputing witness was Mr Lawrence. He had no recollection of meetings between the defendant and Collex where the issue of the boom gate was discussed. Mr O'Neil submitted that had he been at these meetings, it was known that Mr Reinsenleiter was letting trucks into the yard. Mr Lawrence's evidence was that he was not aware of this which, it was submitted, he would have been had he attended the relevant meetings. Mr O'Neil submitted that I would not be satisfied that the discussions occurred.
146 It was further submitted that on Mr Lawson's evidence, the discussions regarding the boom gate were general in nature and that the defendant acquiesced in the decision taken by Collex not to install a boom gate. It was submitted that if I found that it was impracticable for the defendant to put a boom gate in place because Collex would not allow it, this did not mean the defendant should be acquitted at all as the defendant in any event was required to enforce the system in some other way. One way was employing a yardman and Mr Lawson conceded that Collex told the defendant that they could employ a yardman, although Collex believed that a yardman was an added risk in the yard.
147 Mr O'Neil submitted that it was open to the defendant to employ a yardman and there was no persuasive evidence that it was impracticable. It was submitted that the defendant could only be acquitted if the defendant has done everything practicable towards enforcing the system that was in place which, it was contended, had not occurred.
148 Finally, Mr O'Neil submitted that the matters set out in the letter to WorkCover dated 4 November 2002, suggested that the defendant took a number of steps after the accident. These included providing a second discreet radio channel to the loader operator; directing the loader operator to refuse services to any drivers failing to observe the traffic control measures and all the defendant's staff were instructed to refuse service to anyone not performing the current site rules. It was submitted that these matters could have and should have been done well before 30 September 2004. It was submitted that the defendant could not persuade the court that it had done everything practicable to ensure safety of non-employees through the maintenance of the system. It followed that no defence could succeed.
The Defendant's Submissions
149 A significant portion of the defendant's submissions focused on the contention that the causation had not been made out for the purpose of the charge. Mr L King SC, who appeared for the defendant, submitted that two causal acts of negligence beyond the control of the defendant produced the risk/accident. Counsel emphasised that the case brought by the prosecution is that there was a system failure with the charge being limited to the date of the accident. Mr King contended that the prosecution had not made out its case in accordance with the charge in the particulars because, it was submitted, it is clear that the prosecution proceeded upon, and depended upon, an allegation that the system was, at all material times that nobody other than the loader operator was to allow trucks to come into the area.
150 Mr King referred to Mr O'Neil's opening in which he submitted that this is not a case where it is said there was never any contemplation or any system. Mr O'Neil referred to the system thought to be in place which required only the loader operator to allow trucks into the loading/unloading area once they had passed the stop sign but also anticipated that there would be evidence that Mr Reisenleiter as the gatehouse keeper, not infrequently and contrary to what others thought the system was undertook that task himself, thereby evidencing a failure to ensure a safe system or enforce a system. Mr King submitted that the prosecutor sought to rely on something which was not the system and for that reason the prosecution ought to fail. Then senior counsel submitted that the only evidence for the proposition that the system was, which the prosecutor had opened its case, was that of Inspector Gill. Although he was given an opportunity to concede that the system had become one where Mr Reisenleiter would send trucks in and radio ahead, this was not embraced by the Inspector. Although he had interviewed Mr Smeekens, Mr Cason and Mr Orden, he had a different view of the system.
151 Mr King submitted that Mr Lawrence's evidence should not be accepted in respect of his denial as to what the system was because he ought to have known what it was as he spent half of his time at the premises. It was submitted that there was evidence of three witnesses who spoke to Mr Lawrence about the system. Counsel submitted that in respect of the complaint by the prosecutor that it was not put to Mr Lawrence that Mr Orden had spoken to him, Mr King observed that Mr Orden was a prosecution witness whose evidence was that he had spoken to Mr Lawrence about the system. Mr Lawrence also knew about the yardman, an issue which was discussed during these meetings.
152 In respect of primary responsibility, Mr King submitted that it was still necessary for the prosecution to demonstrate some causal connection between the failure of the defendant and the risk and the accident to the extent that the accident is a reflection on the risk. It was submitted that the prosecutor did not deal with the question of causation.
153 Senior counsel submitted Mr Smeekens admitted that he should not have driven with the bucket up. In addition to that, there is a lapse on the part of Mr Reinsenleiter, who admitted he had not radioed through. There was of course ample time for Mr Reinsenleiter to radio through before the accident. Mr King submitted that in respect of these lapses on the part of Mr Smeekens and Mr Reisenleiter, there is absolutely nothing that the defendant could have done about it. Messrs White and Orden were not cross-examined or challenged to what they would have done had they observed Mr Cason or Mr Smeekens operate with the bucket up.
154 Mr King submitted this was a case where only one party, Collex, had responsibility and another party, the defendant, did not have relevant responsibilities. Counsel submitted that Mr Collins' evidence, was to this effect. The owner of the site relevantly has the responsibility in respect of traffic control management. A person in the position of a sub-contractor, which is the defendant, has the responsibility of reporting problems and engaging in consultation which, Mr Collins observed, was exactly the same situation that arose in this case.
155 Mr King submitted that the contractual situation that existed between the defendant and Collex was completely distinguishable from the labour hire cases. Counsel observed this case did not involve a host employer.
156 In respect of the letter dated 4 November 2002 to WorkCover, Mr King submitted that the matters raised in that letter were issues that had been happening for some time before 30 September 2002. The matters contained in the letter of 9 October 2002 are to be seen in the same context. Mr King submitted that as a result of the accident on 30 September 2002, Collex was much more compliant than it had been in the past.
157 Mr King submitted that Mr Cason could not dictate in any way to Collex employees including Mr Reisenleiter. Relevantly, all Mr Cason did was to make a suggestion for an improvement to traffic management which was discussed with Collex and approved by them. The suggestion was installing a line of concrete barriers.
158 Mr King submitted that if anything could have been done to avoid the risk, it had to be done on a proper consideration of the evidence by Collex and that it was therefore not reasonably practicable for the defendant to ensure the safety of persons like Mr MacKenzie. For the purposes of s 28(a) of the Act, the defendant relied upon the fact of just how the risk could have been eliminated, submitted it does not emerge on the evidence. It was submitted, although the prosecutor had referred to the engagement of a yardman or a boom gate, it was not for the defendant to install a boom gate. It was not even asked to do that after 30 September 2002 when Collex attended to the installation of the boom gate, which it was submitted, did not eliminate the risk in any event so as to ensure safety.
159 In respect of s 28(b) of the Act, Mr King submitted that the relevant causes of the risk and accident on 30 September 2002 were Mr Smeekens (one off or isolated act of atypical negligence) in driving with the bucket of the loader in a upright position and Mr Reisenleiter's atypical act of sending Mr MacKenzie through to park. Mr King observed, had Mr MacKenzie not parked for some minutes, but either dumped his load, or if Mr Smeekens had been alerted by radio, he would not have been struck by the loader operator.
Consideration
160 The question for determination in this matter is whether the defendant has committed an offence under s 8(2) of the Act. As was observed by the prosecutor, the court has before it a systems failure charge limited to the date of a workplace incident, being 30 September 2002, which occurred at 38 McPherson Street, Banksmeadow. This site was leased by Collex who engaged the defendant to sort building waste products.
161 This is not a case where it is said there was no system, but rather, as contended by the prosecutor, one where the failure was to properly promulgate and enforce a system. An important matter requiring determination to the requisite standard is what was the actual system in place in respect of the unloading of trucks at the site on 30 September 2002: WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at [35], Schultz v Tamworth City Council (1995) 58 IR 221 at 226.
162 The evidence is that trucks would enter the Collex site and proceed along a driveway with barriers on either side to a gatehouse where the gatehouse supervisor, Mr Reisenleiter, would issue a docket and receive payment from the truck driver after assessing the material in the truck and its weight. A sign was attached to the gatehouse window which stated "Attention all vehicles you must stop and wait until the loader operator directs you into the unloading/loading area."
163 The risk to safety occasioned by any person other than the loader operator allowing truck drivers to drive their trucks into the loading/unloading area is self evident. The loader operator would not necessarily know that a truck was in the area in which the loader operator was working.
164 This system contemplated that trucks would proceed from the gatehouse to the stop sign and queue in a line until instructed by the loader operator to enter the tipping area.
165 However, the evidence discloses, and I find beyond reasonable doubt, that the system had evolved into one which Mr Reinsenleiter, at times when he thought there was a need to do so because trucks were queuing, took it upon himself, to let trucks into the tipping area. His usual practice was to radio through to the loader operator to give a warning that he had let in a truck. The loader operators were not always happy about that, because at times, the warning did not give them much notice. However, that system had been successful in practice in avoiding an accident. The system further evolved with the moving of the stop sign further into the yard. As a result of ongoing complaints from Mr Cason, Collex and the defendant agreed that Mr Cason could threaten a truck driver, who entered the tipping area without approval, with being banned from the site.
166 On 30 September 2002, the front-end loader was being operated by Mr Smeekens, an employee of the defendant, as the regular loader operator, Mr Cason, was on annual leave.
167 Mr Smeekens' evidence, which I accept, was that on the morning that he commenced work at the site, Mr Cason explained that the yard had changed from when he had previously worked at the site. Mr Cason informed Mr Smeekens that trucks were to stop at the stop sign until the loader operator told them to move into the tipping area. Mr Smeekens' evidence was that when he had previously worked at the site, Mr Reisenleiter had, on occasions, told trucks to move into the tipping area and Mr Reisenleiter would radio through that he had let a truck into the tipping area. Mr Smeekens was unsure whether Mr Reisenleiter was authorised to let trucks into the tipping area. When a truck had been let in to the tipping area, Mr Smeekens would normally get a radio warning. On previous occasions Mr Smeekens complained to Mr Cason that trucks would be let into the yard by Mr Reisenleiter without the loader operator being informed.
168 On 30 September 2002, Mr Reisenleiter approached a truck at the stop sign driven by Mr MacKenzie, a non-employee of both the defendant and Collex. Mr Reisenleiter directed Mr MacKenzie to enter the tipping area and park his truck. Mr Reisenleiter did not advise Mr Smeekens that he had let Mr MacKenzie's truck into the tipping area and the front-end loader driven by Mr Smeekens collided with the truck. Mr MacKenzie was assured that Mr Smeekens would be notified that he was entering the yard and that, in my view, was an important factor in him doing as he was directed. I accept Mr MacKenzie's evidence that he had been reprimanded on the previous Friday for crossing the line on the driveway at the stop sign. This reprimand must have been given by Mr Cason.
169 Mr Lawson's evidence was that the ability of the loader operator to reprimand truck drivers who entered the tipping area without approval emerged from a meeting between Mr Barnes and Mr Lawson which took place at Mr Lawson's request when he learnt that trucks were still entering the yard without approval. I should observe that Mr Barnes was not interviewed by WorkCover, and regrettably, therefore not available to give evidence. The importance of his evidence should have been clear after WorkCover interviewed Mr Orden.
170 Having reviewed the evidence, I find, beyond reasonable doubt, that the traffic management system evolved over time at the site from July 2001 when the defendant commenced as a sub-contractor. This finding is based on the evidence of Mr Cason who suggested to Mr Lawrence, the Collex Manager of the site after July 2001, that concrete blocks should be used as a barricade and corridor to channel the trucks into the yard. It was common ground that on or around December 2001, Collex introduced 15 garbage trucks to the site. This resulted in the concrete barricades being replaced by plastic barricades that could be pushed around to allow the garbage trucks to access a different part of the site.
171 I accept Mr Cason's evidence that he made complaints to Mr Reisenleiter about the traffic situation in early 2002. Mr Cason's evidence was that the yard would be very busy and the trucks would be lined up onto the street, although this was denied by Mr Reisenleiter. There is no doubt that there was a build up of trucks from time to time. This necessitated a desire on Mr Reisenleiter's behalf to push the trucks through. I also accept Mr Cason's evidence that Collex tried to hurry him up, and that he raised this matter with Mr Orden (and possibly with Mr Greg White) who took the matter up with Collex. As a result of the complaint, Collex supplied a stop sign which Mr Cason and Mr Reisenleiter erected. The stop sign was moved from the gatehouse to a position further into the yard at a later time. Finally, the loader operator was given the authority to reprimand or ban truck drivers who entered the tipping area without approval.
172 It is also clear and I find that Mr Reisenleiter gave directions to truck drivers to enter the tipping area from time to time. Mr Cason accepted this as Mr Reisenleiter would radio him, to advise that he was letting a truck into the tipping area. On occasions, truck drivers would also enter the tipping area without receiving permission from either Mr Cason or Mr Reisenleiter. This was particularly so in respect of some of the regular drivers.
173 The only witness who adhered to the proposition that the system was that only the loader operator could allow vehicles into the tipping site was Inspector Gill. It is difficult to accept the Inspector's understanding of the system, particularly as the evidence of Messrs Smeekens, Cason and Orden, which I will come to shortly, was that the system included Mr Reisenleiter taking it upon himself to send trucks into the tipping area. The Inspector's evidence also did not acknowledge the reality of what was occurring at the site on or about September 2002. The yard depot traffic control document dated 15 January 2002, prepared by Messrs Cason, Smeekens and White, identified as a physical hazard, "the vehicles entering the yard before other vehicles had moved on, crowding what is already a very limited area for materials, handling, sorting and loading."
174 Mr Cason's evidence was that if Mr Reisenleiter sent a truck in, he would radio him so he had a warning the vehicle was coming. It was this system that had been successful in avoiding an accident prior to 30 September 2002.
175 The evidence of Mr Lawrence is inconsistent with the evidence given by Mr Reinsenleiter, Mr Lawson and Mr Orden as to their knowledge of the system. Mr Lawrence's evidence was that the only person he was aware of who could authorise trucks to enter the tipping area, was the loader operator driver, although he conceded in cross-examination that he was not ignorant of the fact that Mr Reisenleiter was to direct trucks into the tipping area and advise the loader operator by two way radio that he had taken such a step.
176 However, Mr Reisenleiter's evidence was he saw Mr Lawson and Mr Orden arriving for meetings with Mr Lawrence and other managerial staff of Collex. Mr Lawson's evidence was that he spoke to Mr Lawrence on a weekly basis regarding the traffic issue. Although it was not clarified over what period such discussions occurred, the evidence discloses that Mr Lawson attended the site on a number of occasions around the middle of 2002 when Mr Orden was overseas. Mr White observed Mr Lawson attending the site and Mr Cason's evidence is that he complained to Mr Lawson regarding the trucks. I therefore find, beyond reasonable doubt, that Mr Lawson met with Mr Lawrence on or around the middle of 2002 and raised the issue of the trucks entering the tipping area without notice to the loader operator. His evidence was that he was getting nowhere with Mr Lawrence.
177 The reason for such meetings was Mr Cason had raised with Mr Orden and Mr White concerns that he had regarding the traffic management system at the site. These concerns related to the "free-for-all" in respect of the trucks and the physical state of the yard which had piles of material which stayed there for periods of time interfering with the manoeuvrability and visibility of the loader operator. More telling was the evidence of Mr Reisenleiter:
Q. So far as you were concerned, at 30 September 2002 who was it who could call the truck through; that is, pass the stop sign?
A. Their truck that was?