Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 | Case summary

Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 | Case summary | Zoe

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ABB Power Transmission Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (Industrial Court of New South Wales, Fisher P, Bauer and Hungerford JJ, 2 May 1997, unreported) Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 Clarke v W L Meinhardt and Partners Pty Ltd (Industrial Court of New South Wales, Fisher CJ, 30 June 1992, unreported) CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 He Kaw Teh v The Queen (1985) 157 CLR 523 Inspector Blume v TMP Worldwide eResourcing [2003] NSWIRComm 37 Inspector Morgenthal v Visy Paper Pty Ltd [2008] NSWIRComm 211 Inspector Page v Woolworths Ltd (Industrial Court of New South Wales, Peterson J, 9 September 1994, unreported) Inspector Paul Jorgensen v Christopher John O'Keeffe and CJ & SJ O'Keeffe Building Pty Ltd [2004] NSWIRComm 397 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240; (2000) 102 IR 57 Kirk Group Holdings Pty Ltd and Another v WorkCover Authority of New South Wales and Another [2006] NSWCA 172; (2006) 66 NSWLR 151 Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156; (2008) 173 IR 465 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust Torts Reports 81-768 Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 R v Davies [2003] ICR 586 CASES CITED: R v Sault Ste Marie (1978) 2 SCR 1299 R v Wholesale Travel Group Inc [1991] 3 SCR 154 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Sheen v Fields Pty Ltd (1984) 58 ALJR 93 Slivak and Another v Lurgi (Australia) Pty Limited and Another [2001] HCA 6; (2001) 205 CLR 304 St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39; (2007) 162 IR 241 Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waugh v Kippen and Another (1986) 160 CLR 156; WorkCover Authority of New South Wales (Insp Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 WorkCover Authority of New South Wales (Inspector Ankukic) v Drake Personnel Ltd t/a Drake Industrial (No 1) (1997) 89 IR 374 Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278; (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453; (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316; (2002) 123 IR 121 WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (Industrial Court of New South Wales, Peterson J, 24 July 1995, unreported) WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153 WorkCover Authority of New South Wales v Hitchcock [2004] NSWIRComm 87; (2004) 135 IR 377 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80

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1 Western Freight Management Pty Ltd ('WFM'), the defendant, was contracted to supply prime movers and drivers to haul freight between depots operated by Star Track Express ('STE'), a road freight distribution company. On 2 December 2004, two employee-drivers of the defendant, Mr Brian Lloyd and Mr David Norman, attended the Waverley Drive depot of STE at Unanderra ('the depot') to collect trailers that they were scheduled to haul to other depots. The layout of the loading dock required Mr Norman and Mr Lloyd to reverse their trailers towards the loading dock to enable STE employees to load the trailers. Once Mr Norman's trailer was loaded, he was required to drive forward away from the dock in order to have sufficient room to close the trailer doors. To exit the depot he then had to reverse the trailer, in a jackknife manoeuvre, in order to create sufficient room to swing around and exit the depot without hitting a garden bed located near the southern gate of the depot. As Mr Norman reversed his trailer toward the loading dock, Mr Lloyd was caught between the rear of the trailer and the dock and, as a result of crush injuries, Mr Lloyd died. 2 The defendant was charged with a contravention of s 8(1) of the Occupational Health and Safety Act 2000, in that it allegedly failed to ensure the health safety and welfare at work of all its employees, in particular Mr Lloyd. Section 8(1) provides: An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 3 The particulars of the offence were that the defendant:

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4 The defendant submitted that the Court was without jurisdiction. It was contended that the approach taken by the Industrial Court to the duty imposed by s 8(1) of the Act had meant that the duty was incapable of being complied with. It was submitted this could not have been parliament's intention because it offended the rule of law. To elaborate on this submission: the defendant observed that the Court had interpreted the duty under s 8(1) (and its predecessor, s 15(1) of the Occupational Health and Safety Act 1983) as an absolute duty, discounting any concept of reasonable foreseeability (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452) or mens rea (see Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123) in relation to the criminal offence and had interpreted the provision in such a fashion as to make compliance impossible. This is with the exception, it seems to have been conceded, that the Court has accepted the legislation is not directed to unduly remote or speculative risks (see Drake). 5 That is to say that although the Court and its predecessors had acknowledged there were "examples of countless possibilities which occur in ordinary life where an exposure to risk arises but from which it could never be thought that an employer could have failed to ensure the safety of an employee" (per Peterson J in WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (Industrial Court of New South Wales, Peterson J, 24 July 1995, unreported), cited with approval by Wright J, President and Walton J, Vice President in Drake at 451; Peterson J not disagreeing on this point), the Court had never attempted to place any restriction or limit on the circumstances under which a defendant might be held to be liable under s 8(1). 6 The defendant submitted that it was clear that no employer could secure the health and safety at work of a truck driver: "Roads have collapsed, other drivers stray onto the wrong side of the road, buildings collapse onto roadways, storms can create hazards. In short, any amount of things can happen which can result in the truck driver's health and safety at work being anything but secure." However, according to the defendant, because of the way in which the Court has interpreted the duty under s 8(1), the Court has made no concession for the impossibility of compliance with the duty except where the risk is unduly speculative or remote. 7 Reliance was placed by the defendant on Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] per Heydon JA and Thompson v Woolworths (Q'land) Pty Limited [2005] HCA 19; (2005) 221 CLR 234 at [35] to [37] (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) for the proposition that an employer was entitled to act upon an assumption that a worker will not incur blatantly obvious risks and where such risks were ignored that could not be regarded as reasonably foreseeable. 8 Reference was made by the defendant to the decision of Basten JA in Kirk Group Holdings Pty Ltd and Another v WorkCover Authority of New South Wales and Another [2006] NSWCA 172; (2006) 66 NSWLR 151 at [143] to [146] where his Honour considered the claimants' submissions regarding whether ss 15(1) and 16(1) of the 1983 Act were to be properly regarded not as absolute liability offences, but instead that the sections invoked strict liability in the sense that they were "presumed to contain the requirement of a mental element which may be expressed as the absence of an honest and reasonable belief in a state of facts which if true would take the case outside the ambit of the offence": He Kaw Teh v The Queen (1985) 157 CLR 523. At [146] his Honour stated: [146] The jurisprudence in the Industrial Court has given significant weight to the fact that reasonable practicability and questions of control are dealt with by way of the defence provided to the employer by s 53. Although the structure of the legislative scheme is a significant consideration, it does not dictate the conclusion that the liability imposed by ss 15 and 16 is in each case absolute. Taken literally, s 15 requires an employer to ensure that workers do not fall sick, suffer strokes or heart attacks or die at work, even for reasons entirely unrelated to the work environment. That construction is not adopted, because it would not be sensible in the statutory context. Similarly, it appears that the obligation does not extend to the removal of risks which are so remote as to be speculative. That exclusion might extend to the risk of events which, though remote, are statistically predictable. But if the obligation is not taken to include its full literal extent, by what principle is that construction achieved? Whether the obligation extended to conduct of which the employer was not aware and of which it could not be said that it should reasonably have been aware, is a question of construction to be determined at least with reference to the principles discussed in the cases referred to above. The Court was not taken to any authority in the Industrial Court which addressed those principles. 9 The "cases referred to above" by Basten JA in Kirk were McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust Torts Reports ¶81-768; Waugh v Kippen and Another (1986) 160 CLR 156; Chugg v Pacific Dunlop Limited (1990) 170 CLR 249; and Sheen v Fields Pty Ltd (1984) 58 ALJR 93, as well as He Kaw Teh v The Queen. 10 The defendant also referred to the decision of the High Court in CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978. A majority of the Court (Gleeson CJ, Gummow, Crennan and Kiefel JJ; Kirby J and Hayne J in separate judgments) held that an honest and reasonable mistake that the complainant was of or above the age of 16 years was an answer to a charge under s 66C(3) of the Crimes Act 1900 (sexual intercourse with a person who is of, or above, the age of 14 and under the age of 16 years. The appellant told police in a recorded interview that he believed the complainant was 16 years of age. She was in fact 15 years old). The Court considered that there was a fundamental principle that a person was not criminally liable for an act or omission if labouring under an honest and reasonable belief in a state of facts such that, if the belief were correct, the conduct would be innocent: joint judgment at [8]; Kirby J at [66]; Hayne J at [145], [159], [173]. If Parliament intended to make the offence under s 66C(3) one of absolute liability, it should have made its intention "plain by express language or necessary implication": joint judgment at [35]; see also Kirby J at [61], [66]; Hayne J at [146], [148]. 11 The defendant submitted in effect that it was unreasonable to construe s 8(1) as casting an obligation on an employer to protect employees from a risk of injury of which the employer neither knew nor ought to have known: Waugh v Kippen and Another at 165, 166; Sheen v Fields at 26 per Gibbs CJ. To do so was inconsistent with the rule of law as Lord Bingham expressed that rule in "The Rule of Law" (reproduced in (2006) 15(3) The Commonwealth Lawyer, 22) whilst referring to the Constitutional Reform Act 2005 (UK). His Lordship proposed as a sub rule: First, the law must be accessible and so far as possible, intelligible clear and predictable. This seems obvious: if everyone is bound by the Law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it. 12 Senior counsel for the defendant submitted that the approach adopted in relation to UK legislation, which was similar to the Act, was instructive. Reference was made to what Gaudron J said in Slivak and Another v Lurgi (Australia) Pty Limited and Another [2001] HCA 6; (2001) 205 CLR 304 at 322 regarding the Occupational Health, Safety and Welfare Act 1986 (SA): [51] The statutory duty imposed by s 24(2a)(a) of the Act differs from the common law duty of care in at least two important but related respects. The first significant difference between the statutory duty and the common law duty of care is that s 24(2a)(a) imposes a duty to ensure the safety of construction workers, not simply to prevent a foreseeable risk of injury to them. The statutory duty is a duty to protect against all risks to construction workers, if that is reasonably practicable. In the words of Lord Upjohn in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 at 126, the duty is to make the structure "100 per cent safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage". 13 Section 24(2a)(a) of the South Australian statute provided that where any structure was to be erected in the course of any work, the person who designed the structure must ensure so far as reasonably practicable that the structure was designed so that the persons required to erect it were, in doing so, safe from injury and risks to health. The statutory provision considered in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 was s 29(1) of the Factories Act 1961 (UK), which provided: There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there. 14 The defendant acknowledged, of course, that s 28 of the Act provided for defences, but contended the Court so strictly applied these that they presented no real defence and that, therefore, one was directed back to the nature of the duty under s 8(1).

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15 At the risk of being repetitious, the defendant's case regarding the proper interpretation of s 8(1) would appear to be constituted by the following propositions: (a) that notwithstanding the Court has acknowledged that circumstances existed where it was impossible for an employer to ensure the health and safety at work of employees, the Court had interpreted s 8(1) (and its predecessor provisions) in such a fashion as to make compliance impossible; (b) that the Court had construed s 28 and its predecessor so restrictively it did not constitute a real defence; (c) that it was unreasonable to construe s 8(1) as casting an obligation on an employer to protect employees from a risk of injury of which the employer neither knew nor ought to have known and to do so was inconsistent with the rule of law; and (d) that the common law authorities supported a construction of s 8(1) to the effect that an employer could only be held liable if the risk was reasonably foreseeable or, alternatively, the section is to be presumed to contain the requirement of a mental element which may be expressed as the absence of an honest and reasonable belief in a state of facts which if true would take the case outside the ambit of the offence. 16 The defendant's submission, put plainly, is that the Court has made it impossible to comply with s 8(1) of the Act notwithstanding that the Court has recognised that there are a myriad of circumstances where it is impossible for an employer to ensure the health and safety of its employees. 17 However, the authorities, in my opinion, are against the defendant. Three recent judgments, in particular, have dealt with the issues raised by the defendant. These are: Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156; (2008) 173 IR 465; Cahill v State of New South Wales (Department of Community Services) (No 3); and WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153. 18 The line of argument pressed by the defendant in these proceedings was very similar to that run by the claimants in Kirk before the Court of Appeal, albeit in relation to the predecessor provision to s 8(1), namely s 15(1) of the 1983 Act: see Kirk at [20] to [33]. The Court of Appeal (per Spigelman CJ; Hodgson JA and Handley AJA agreeing) relevantly held that: the Industrial Court has not adopted an interpretation of the 1983 Act that rendered the statutory duties imposed by the Act impossible of compliance and no jurisdictional error of law was made out either in the general jurisprudence of the Court, or in its application to this case ([37], [40], [61], [63]); and the test of reasonable foreseeability should not be introduced into ss 15(1) and 16(1) of the 1983 Act. At [41] Spigelman CJ stated: [41] The claimants submit that any risk to safety had to be foreseeable. I reject the submission that a test of reasonable foreseeability should be introduced into each statutory obligation. Section 15(1) and s 16(1) are strict liability offences in the sense that a mental element is not part of the offence, whether expressed in terms of intention or negligence. I do not find any assistance in the cases relied upon by the claimants concerning actions in negligence by an employee against an employer. 19 The Court of Appeal also considered a submission by the claimants regarding the defence of honest and reasonable mistake of fact. In this regard, the Chief Justice stated at [42] to [43]: [42] The claimants also referred to the defence of honest and reasonable mistake of fact, which, if applicable could give rise to a jurisdictional issue. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 at [43] referring to R v Badger (1856) 6 EL & BL 138; 119 ER 816.) The significance of this "defence" or ground of exculpation, has recently been reaffirmed. ( CTM v The Queen [2008] HCA 25 at [5]-[8], [35].) This "defence" was not relied upon before Walton J. Reference was made in the submissions before his Honour to the "defence", but the claimants did not and, on my reading of the decision in the Industrial Relations Commission and on appeal to the Full Bench, could not suggest that the "defence" had anything to do with this case. [43] No fact was ever identified in the Industrial Court or in this Court which could serve to relevantly excuse any, let alone each, of the breaches established. Nor was the Court referred to any evidence about such a fact or of an honest and reasonable belief in it. The most the claimants could point to was that Mr Kirk could not believe that Mr Palmer acted as he did. However, as the extracts from Walton J's judgment set out at [17]-[19] above indicate, the actual accident did not exhaust the range of failures constituting the contravention. The "defence" of honest and reasonable mistake has nothing to do with this case. 20 It may be seen that the claimants' submissions regarding defence of honest and reasonable mistake of fact were not rejected on the basis of any point of law but rather on the basis that the defence had "nothing to do with this case." 21 In Cahill (No 3) the Court, as presently constituted, considered a submission by the defendant in that case that the offence with which the defendant was charged under s 8(1) of the Act was one in which there was an original obligation on the prosecution to prove mens rea. Alternatively, it was put that the offence was one in which the defence of honest and reasonable mistake of fact was available and, therefore, that the prosecution must undertake the burden of negativing the relevant belief beyond reasonable doubt. The Court held (at [256]) that actual knowledge was not required as an element of an offence under s 8(1). Moreover, that the terms of s 8(1) left no scope to presume mens rea was present as an ingredient of the offence to enable the defence of honest and reasonable mistake of fact to be raised. Nothing has been put in the present proceedings that would cause the Court to adopt a different view. 22 In WorkCover v Australand, Staunton J considered a submission by one of the defendants raising the issue of 'honest and reasonable mistake of fact' as a ground of exclusion from criminal liability to the substantive offences arising under s 8 of the Act. In doing so, her Honour considered the Court of Appeal's decision in Kirk, the judgment in Cahill (No 3) and the High Court's decision in CTM v The Queen (see WorkCover v Australand at [238] to [256]). Her Honour found (at [256]) that she could not agree with the defendant's contention that "the substantive offences arising under s 8 of the Act are not absolute and are subject to the common law exculpation of honest and reasonable mistake". I agree with her Honour's conclusion. 23 The defendant's contention was that the Industrial Court has construed s 8(1) in such a way as to make it impossible to comply with. This proposition needs to be considered in light of the nature of the offence. It is an absolute liability offence. Notwithstanding the philosophical arguments against absolute liability as a category of criminal offence (see, for example, R v Sault Ste Marie (1978) 2 SCR 1299 at [27] to [28] per Dickson J) the fact is the legislature has determined that offences against the general duty provisions of the Act are to be regarded as absolute liability offences: see Cahill (No 3). That is, such an offence entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element (see R v Sault Ste Marie at [22]) and no scope for a reasonable foreseeability test: Kirk at [41]. The offence falls into the class of offences regarded as regulatory offences. The Court in Cahill (No 3) sought to explain the nature of a regulatory offence at [189] to [190]: 189 The question of what constituted a regulatory offence was considered in R v Davies [2003] ICR 586 at 591 - 593…. 190 In explaining the notion of regulatory offences…the Court in Davies stated: [15] The first point to be noted about the legislation is that it is regulatory rather than prescriptive. This is important in the balancing exercise. Lord Clyde in R v Lambert [2002] 2 AC 545, 609, para 154, having said that the statutory provision in question (section 28 of the Misuse of Drugs Act 1971) could not be justified because the offence carried a sentence of life imprisonment, continued: "A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy." [16] The reasons for the distinction between truly criminal and regulatory offences were spelt out cogently by Cory J in the Canadian Supreme Court in R v Wholesale Travel Group Inc [1991] 3 SCR. He expressed the rationale for the distinction as follows, at p 219: "The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care. "It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care." This distinction could be justified by what he called the licensing argument, at pp 228 - 229: "while in the criminal context, the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity ... those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility ... those persons who enter a regulated field are in the best position to control the harm which may result, and that they should therefore be held responsible for it." and the vulnerability justification, at p 234: "Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the outset of the Industrial Revolution. Before effective workplace legislation was enacted, labourers-- including children-worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante's Inferno. It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century." This analysis led him to conclude that the legislation in question which required the defendant to prove that he had exercised due diligence to prevent false and misleading advertising was not incompatible with the presumption of innocence in the Canadian Charter saying, at pp 244-245: "Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. Thus, the question is not whether the accused has exercise some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed, it is essential for the protection of our vulnerable society."

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(4) in relation to the reasonable practicability defence, the test is not whether steps could be taken that were guaranteed to prevent the risk to health and safety but rather whether steps were available that could have materially reduced the risk… In other words, the defence requires a defendant to satisfy the court that it has done what is reasonably practicable to avoid a state of affairs. The defence is, therefore, flexible because it does not restrict the way in which the defendant can show that it has done what is reasonably practicable…. 25 It cannot be said, therefore, that the Industrial Court has construed the provision so as to make it impossible of compliance. As I noted earlier, the defendant submitted that it was clear that no employer could secure the health and safety at work of a truck driver: "Roads have collapsed, other drivers stray onto the wrong side of the road, buildings collapse onto roadways, storms can create hazards. In short, any amount of things can happen which can result in the truck driver's health and safety at work being anything but secure." Provided the employer has assessed the risks and has done all that is reasonably practicable (hardly an onerous duty) to equip a driver to deal with the unexpected, including the provision of information, instruction, training and supervision and has in place practical measures to avoid fatigue or drugs or alcohol being factors (see WorkCover Authority of New South Wales v Hitchcock [2004] NSWIRComm 87; (2004) 135 IR 377 where the employer was convicted because of a failure, in particular, to take steps to avoid driver fatigue), it is difficult to envisage how the employer could be penalised in the circumstances described by the defendant. 26 The defendant's contention that an employer could only be held liable under s 8(1) if the risk was reasonably foreseeable or, alternatively, the defence of honest and reasonable mistake of fact is available as a defence, is not made out. Agreed facts 27 A Statement of Agreed Facts was tendered in proceedings for the purpose of confining the issues in dispute between the parties. Annexed to the statement were the following documents: · a copy of the Road Linehaul Services Agreement dated 1 December 2003 between STE and WFM; · a copy of the lease granted to STE with respect to the premises at Unanderra covering the relevant period; · a copy of a colour photograph numbered 23 showing the office, loading bay and a garden bed adjacent to the southern exit driveway from the Unanderra depot. It was agreed that the garden bed depicted in the photograph was three metres in length; · "Bluecard" accreditation training in Occupational Health and Safety - overhead slides; · OTR Certificate III of Brian Lloyd in Transport and Distribution (Road Transport) - TDT 302 97; · a copy of the Western Freight Management Drivers' Manual; · receipt for issue of Western Freight Management Policies and Procedures Manual dated 7 August 2002 signed by Brian Lloyd; and · receipt for issue of Western Freight Management Policies and Procedures Manual dated 6 August 2002 signed by David Norman. 28 In addition, eight witnesses were called to give evidence in the proceedings. The witnesses for the prosecution were as follows: Mr John Patton, an Inspector with the WorkCover Authority of New South Wales; Mr David Norman, line haul driver employed by WFM; Mr Richard Schmidt, who at the time of the incident was employed as WFM's Operations Manager; Mr Leon Parr, driver and leading hand employed by STE; Mr Steven Stefanovski, fleet driver employed by STE and Mr Graham Bradley, who as at 2004 was employed by STE as Wollongong Branch Manager. The defendant called Mr Terrence Fogarty, a driver trainer employed by On Time Training, also known as OTR, a training, recruitment and consulting firm; and Mr John Peters, Managing Director of WFM.

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33 On the evening of 2 December 2004, Mr Norman and Mr Lloyd both attended the Waverley Drive site to haul trailers to other STE depots. There was a conflict in the evidence as to whether there was any traffic management plan for the depot that determined the way the drivers were to enter the depot or their movements once inside the depot. Mr Parr said that there was a formal traffic management plan which detailed movement of trailers. However, he could not recall if the plan was documented. He said that he understood that it was a requirement for line haul drivers, that is Mr Norman and Mr Lloyd, to enter the depot through the northern gate and exit via the southern gate. 34 However, Mr Norman, Mr Stefanovski and Mr Bradley were not aware of any traffic management plan regarding the movement of vehicles at the depot. Mr Bradley said that he was not in possession of any formal traffic management plan for the depot. Nor was there any formal procedure for the actual movement of line haul trucks entering, lining up to the docks and subsequently departing from the site. Mr Norman gave evidence that he did not know of any traffic management plan for the Waverley Drive depot and that when he had commenced work there in 1995 he was not given any specific direction about which gate to enter from. He was allowed to enter from either gate depending on which was suitable to him and also having regard to the number and location of trucks already in the depot. In terms of exiting the premises, Mr Norman stated that from 2003, when a semi trailer was parked outside the second southern dock, Dock 2, it prevented him from exiting out of the northern gate. This necessitated him exiting out of the southern gate and, in doing so, having to perform the reverse jackknife procedure. Even when a trailer was not on Dock 2, the number and location of other vehicles in the depot at times prevented Mr Norman from exiting out of the northern gate. 35 Mr Stefanovski said that the practice for him and other fleet drivers was to enter and exit via the northern gate. Mr Stefanovski noted that line haul drivers often entered and exited through the northern gate but said that when a trailer was parked on the second loading dock, they would exit out of the southern gate. 36 Once Mr Norman had entered the depot on 2 December 2004, he drove to the most southern of the southern loading docks, known as Dock 1. Inside the depot there were docks located in the northern area of the depot ("the northern docks") and docks located in the southern area ("the southern docks"). The southern docks were used for line haul freight movement, and consisted of two loading docks. Dock 1 was located on the most southern side of the southern docks, and was the dock where Mr Norman parked his trailer on 2 December 2004. Dock 2 was located on the northern side of the southern docks, and was the dock where Mr Lloyd's trailer was parked on the night of the incident. The layout of the northern docks is not relevant to the proceedings. 37 In order for his trailer to be loaded by STE employees, Mr Norman reversed the trailer up on to a ramp connected to the loading dock at Dock 1. Mr Lloyd reversed his trailer towards Dock 2. Mr Peters explained that when the original depot had been built, the docks were at the wrong height and the ramps were installed to bring the trailer up in line with the height of the loading dock. Once on the ramp, Mr Norman's trailer was loaded with freight by STE employees. 38 Mr Stefanovski was involved in handling and loading and unloading freight at the depot and helped load the freight into Mr Norman's trailer and Mr Lloyd's trailer on the night of the incident. Mr Stefanovski gave evidence that in terms of procedure as to which of the two trailers were loaded first, he said it was always the trailer located on the most southern dock, Dock 1, although he did not know why that was the case. On the night of the incident, Mr Norman's trailer was located at Dock 1 and was the trailer loaded first. 39 The freight was loaded on to Mr Norman's trailer by way of a conveyor belt which, according to Mr Norman, was 'extremely loud', but not so loud that when he had a conversation with Mr Lloyd that he had to raise his voice. Mr Stefanovski agreed that in the area in front of the dock, whilst the conveyor was noisy, a person could still hold a conversation without raising their voice. 40 When STE employees finished loading Mr Norman's trailer, Mr Norman entered the cab of the prime mover and drove the trailer forward, away from the dock. Mr Norman then exited the cab and he and Mr Lloyd entered the depot office to get their Subcontractor Payment Voucher's (SPV's) signed off and to collect security seals. The vouchers were required to be completed at the depot to ensure the payment of WFM drivers. Both men then returned to the rear of Mr Norman's trailer. Mr Norman stated that he closed one of his two rear doors and noticed that Mr Lloyd was closing the other door. Mr Norman explained in his evidence he would have done the same for Mr Lloyd and that it was a common practice between the two men to help each other out. However, Mr Schmidt stated that it was WFM procedure for the driver to close their own trailer doors and that there was no need for more than one WFM employee to be involved in the process of closing the doors. He was not aware, however, of the work practice between the two line haul drivers at the Waverley Drive depot and had not attended the depot prior to the incident. Mr Peters also gave evidence that only one WFM driver was required to close the doors or apply security seals, but said there was no mention of this in the Company's Drivers' Manual, as there was no requirement for two drivers to close the doors. 41 After Mr Norman and Mr Lloyd closed Mr Norman's trailer doors, they applied the security seals. The security seals were plastic seals with a security number or barcode on them and were required to be applied after each trailer was loaded. Once applied, the security seals could only be removed by physically breaking the seal. The driver recorded the seal details and upon arrival at the destination, the seals were physically checked to ensure that they were still intact and that the load had not been tampered with. Mr Schmidt explained that 'what was supposed to happen' was for a supervisor or security guard at the depot to apply the security seals to the truck and sign off on the relevant paperwork and despatch the driver. However, on the night of the incident it was Mr Norman, with the assistance of Mr Lloyd, who applied the security seals to the rear doors of Mr Norman's trailer. Mr Norman's evidence was that he understood that the responsibility to seal the doors lay with STE employees, but that he had always applied the seals himself. 42 After the seals were applied, Mr Norman and Mr Lloyd spoke briefly and Mr Norman said to Mr Lloyd:

[30]

46 Mr Norman explained that as a result of the jackknife manoeuvre the trailer would swing to the left and the right hand side of the trailer would come close to the dock, and often made contact with dock. It would then create space for Mr Norman to swing around and exit the depot without hitting the garden bed. 47 On the night of the incident, after completing his paperwork, Mr Norman checked both mirrors, selected reverse gear, checked both mirrors again, and then looked in the right hand mirror and commenced the reverse jackknife manoeuvre. Mr Norman explained that looking into his rear view mirrors he was unable to see the area between the rear of the trailer and the front of the dock, that is, the area immediately behind the trailer: As I prepared to reverse back onto the dock, I could see wholly and solely down the left hand side and down right hand side and in the front of the vehicle and nothing in directly behind the vehicle. 48 As Mr Norman reversed towards the dock, Mr Lloyd became trapped between the trailer and the dock. Mr Norman selected the gear to go forward and started to drive towards the gate. There was no dispute between the parties that Mr Norman was unaware that Mr Lloyd was behind the trailer and that he did not know that the trailer had struck Mr Lloyd. Mr Norman only became aware of what had happened after he heard shouting for him to stop and was informed by Mr Parr that Mr Lloyd had been trapped between the trailer and the dock. 49 Mr Stefanovski said in his evidence that as the trailer was reversed he had heard a scream and had seen Mr Lloyd 'pinned' between the dock and the trailer. Mr Stefanovski stopped the conveyor belt that was still loading Mr Lloyd's trailer and as he went to call an ambulance, he saw a number of people run to assist Mr Lloyd. In anticipation of the arrival of the ambulance, Mr Norman drove his truck out of the southern exit and parked it on the street to ensure that the ambulance could reach Mr Lloyd quickly. Tragically, the crush injuries sustained by Mr Lloyd were too severe and he died.

[34]

52 In terms of WFM management's involvement with the depot, Mr Schmidt, the defendant's operations manager, had not attended the Waverley Drive depot prior to the night of the incident. In his evidence, Mr Schmidt said that when he employed a new driver at a remote site he would from time to time personally visit the sites, and when he did visit sites he would conduct safety checks, as he was a licensed Occupational Health and Safety internal auditor. He said he would talk to drivers about which procedures they were to follow, including going through the depot's procedures. However, prior to the incident Mr Schmidt had not visited the Waverley Drive site because Mr Norman was a permanent driver and STE had its own induction at the depot. Mr Schmidt said he did not want to interfere with the depot. 53 Mr Peters had attended the site prior to 2 December 2004, when he himself had driven a truck down to review the depot prior to its opening. It was on this occasion that he had raised the problem with the loading dock height and had suggested a ramp be built. Mr Peters also noticed the location of the garden bed and the problem that it created for a driver who exited out of the southern gate, namely, that there was not enough room. It was Mr Peters' evidence that, at the time, he told two STE executives to get rid of the garden bed as it was going to be in the road. However, he was told that the garden bed could not be removed, as STE did not own the building and that the requirement of a garden bed 'had probably been part of the Development Application'. It was Mr Peters' evidence that if he thought that the garden bed was an obstacle that affected safety, he would have insisted at the time on something drastic being done about removing it or remedying it somehow to make it safe. 54 Shortly after the incident on 2 December 2004, STE relocated its premises from Waverley Drive to Industrial Road, Unanderra. WFM drivers continued to provide services for STE at the new depot. Change of procedure after incident

[35]

55 Mr Peters gave evidence regarding changes to procedures at the Waverley Drive depot that the defendant made after the incident. In this respect, it is to be noted that in his interview by Inspector Drain of the WorkCover Authority of New South Wales on 13 January 2005, Mr Peters had said that no trucks were to back up without supervision and that Mr Norman was required to sound his air horn before reversing. In giving evidence in the proceedings, Mr Peters said that the answer given to the WorkCover Inspector had been incorrect and he had been confused. He said he had given his answer based on what he had heard other people say was happening at the Unanderra depot. He also stated that the interview had occurred in January, sometime after the incident, and after STE had moved to its new Wollongong depot, which appears to have added to his confusion. 56 Mr Peters agreed, however, that prior to the move, Mr Norman had told Mr Peters that there had been no change to procedure. When Mr Peters was asked whether the control measures mentioned in his answer to WorkCover could have been implemented prior to 2 December 2004, Mr Peters agreed that they could have been and that he would have expected his drivers to follow any such direction. Mr Peters also conceded that in a meeting with STE representatives on 6 December 2004, after the incident had occurred, that he did not raise with STE the issue of putting in place a traffic management plan at the depot. 57 Mr M Cahill, counsel for the prosecution, submitted that Mr Peters' evidence revealed "a lie" that went to the heart of the issue in proceedings, namely, about whether a new procedure was introduced after the incident. Mr G Hatcher, senior counsel for the defence, contended that it was a very serious issue to say a witness had deliberately lied in his evidence and maintained that the evidence fell far short of Mr Peters perjuring himself. Whilst the inconsistency between the record of interview with WorkCover and Mr Peters' evidence in the witness box is a matter of some concern, I am not prepared to find that Mr Peters deliberately lied in giving his evidence in proceedings or to the WorkCover Inspector. There is room for reasonable doubt about whether Mr Peters was confused or was relying on second hand information.

[42]

63 The third element to be satisfied is that the defendant failed to ensure the health, safety and welfare of its employee, Mr Lloyd, whilst he was at work. In determining whether this element is satisfied it is appropriate to first identify the risk to the health, safety and welfare of the employee and then to consider whether there was any failure on the part of the defendant to ensure the employee was not exposed to the risk whilst at work: see Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [297]. Mr Cahill, for the prosecution, identified the risk as being the risk of an employee of the defendant being struck by vehicles as they reversed towards the loading docks. He submitted that on the evidence the risk was both an obvious risk and that it was a risk which was known or, in the alternative, should have been known to the defendant. 64 The evidence is clear that a driver of a prime mover with a trailer attached is unable to see the area located immediately behind their trailer. Mr Norman gave evidence that when he reversed a line haul vehicle his vision in the rear view mirrors was limited. He explained that from the cab of a prime mover standing straight, when he looked through his rear vision mirrors, he could see straight down the left and right side of the trailer, but could not see the area immediately behind the trailer. On 2 December 2004, before Mr Norman started to reverse, he could see the dock area to the left and right hand side of the rear of his trailer, but not the dock area that was immediately behind the width of his trailer. Once Mr Norman started to reverse and turn the vehicle, the trailer swung to the left and Mr Norman lost all sight of the dock. Through his left hand window he was only able to see the left side of his trailer as it swung around and through the right window he could see only the left hand side of the trailer parked in the next dock. Mr Norman further clarified in cross examination that it: [M]akes no difference whether you are reversing as a jackknife or straight back. If there is any obstacle directly behind you that you had not seen before you got into your cab, behind the two corners of the pan, in between the back section there, whether you are straight or jackknifing, you can not see it. 65 Mr Fogarty agreed that the vision of a driver in a prime mover with a trailer attached was restricted and that the driver would not be able to see the area located behind the trailer, that is, that the driver would be unsighted to the rear. In cross-examination, he conceded that one of the things that needed to be controlled was persons placing themselves between stationary vehicles, that may reverse, and a dock. He said that that was something that should be "a site restriction". 66 Mr Schmidt explained that it was an unwritten law in the transport industry that nobody would go behind a reversing trailer, whether they were in a forklift, a three tonne truck or were a pedestrian. He explained that this was: [b]ecause of the dangers of going behind a reversing trailer of the vision a driver may have from the front because you are looking at a 45 foot long trailer, another 16 to 20 foot prime mover and your clearance yea big and to try and look behind you and that is why you would see if you drive down the highway and see some signs on a semi trailer if you can't see my mirrors I can't see you, that is the reason because if you get behind them, you cannot see them. 67 Mr Peters stated that drivers knew not to stand behind a reversing vehicle and not to stand right behind a trailer where a driver could not see the person. He explained that it was something that drivers learnt through their experience and training and said that when drivers were reversing, they had to get out and check behind the vehicle and, because they performed this procedure, they must have known not to stand behind a vehicle. Mr Peters, in cross-examination, agreed that as a result of a driver's restricted vision there was a recognised risk, and agreed that the risk was identified in the Company's Drivers' Manual in the section regarding reversing. Indeed, in the defendant's submissions the defendant accepted that the risk constituted by a reversing trailer was an obvious risk and one that was well known in the industry. 68 The specific risk alleged, and the risk that must be proven by the prosecution, is the risk of an employee of the defendant being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot on 2 December 2004. In the present case, Mr Lloyd was in attendance at the depot at the same time as Mr Norman and, like Mr Norman, he was waiting to have his trailer loaded by STE employees. It was usual procedure for the trailer on the most southern loading dock, which on 2 December 2004 was Mr Norman's trailer, to be loaded first. When the loading of Mr Norman's trailer was complete he drove forward away from the dock in order to have sufficient space to close the rear doors. It was the evidence of Mr Parr that at this time there was a space of five metres between the loading dock and the rear of Mr Norman's trailer. This meant that there was an area between the rear of the trailer and the front of the loading docks. Mr Lloyd and Mr Norman then both attended the depot office to obtain and complete the relevant paperwork. They then both returned to the rear of Mr Norman's trailer, and Mr Lloyd, as was customary between the two men, helped Mr Norman close Mr Norman's rear trailer doors and apply the security seals. The two men spoke briefly at the back of the trailer, before Mr Norman farewelled Mr Lloyd, saying he would see him in Sydney. 69 Mr Lloyd's trailer was parked in Dock 2, that is, the dock north of Dock 1 where Mr Norman's trailer was parked. This prevented Mr Norman from exiting via the northern gate and required him to exit the southern gate. To exit out of the southern gate Mr Norman had to perform a jackknife manoeuvre in order to swing around and avoid the garden bed. At this stage, Mr Lloyd's trailer was still being loaded by STE employees and he himself was not ready to depart the depot. Mr Parr gave evidence that the last time he saw Mr Lloyd before the incident was in the area in front of the loading docks.

[43]

70 Mr Lloyd was, therefore, required to be at the depot, in the vicinity of the loading docks; he was waiting for his own trailer to be completed and was last seen at the rear of Mr Norman's trailer. Mr Norman's rear vision was restricted and, as he reversed the trailer towards the loading dock, Mr Lloyd was at risk of being struck by the rear of Mr Norman's trailer. On 2 December 2004, I find that there was a risk to the health and safety of Mr Lloyd whilst he was at work. Labour hire analogy 71 Before turning to the particulars of the charge and the question of whether the failures alleged in those particulars caused the risk, I would observe that the factual situation the Court is required to consider in these proceedings is analogous to a labour hire arrangement, where the employees of the labour hire firm are contracted to work for and under the direction and control of a third party. In these proceedings, the defendant's employees attended different customer sites and were directed by the WFM's own company Manual to follow the policies and procedures of its customers. To that extent, whilst at client depots, WFM drivers were subject to the direction and control of a third party, and not WFM. Although the factual situation in this case is not a labour hire arrangement, the obligation upon the defendant to ensure the safety of its employees is no different to that which is imposed upon a labour hire firm whose employees are sent to a foreign location to work under the control and direction of the hirer of the labour. 72 In relation to the occupational health and safety obligations that labour hire employers have, Hungerford J observed in WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Limited (t/a) Drake Industrial (No 1) (1997) 89 IR 374 at 382: The failures here to ensure the safety of Mr Douglas arose in a situation where he was directed by his employer, the defendant, to perform work for a third party, Warman, at that third party's premises. In such a situation, my view is that an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. 73 Labour hire employers have a special obligation to ensure their employees' safety. Here, the defendant's employees were at a workplace in which they were under the direct management and control of STE and not WFM. I am unable to see why the special obligation placed on labour hire employers to ensure their employees' safety, should not apply to WFM in respect of its employees at the Waverley Drive depot.

[45]

74 The prosecution alleged the defendant had failed to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the Waverley Drive depot. In particular, in respect of reversing line haul vehicles with trailers attached. The prosecution contended that there were no relevant procedures in place at the Waverley Drive depot prior to the incident, apart from general exhortations regarding safety and a generic reversing procedure that did not address the specific risk. Further, that the defendant had provided no relevant procedures and had taken no steps to ensure that STE had any relevant procedures in place. 75 The defendant, on the other hand, submitted that the Act imposed a duty on employers to ensure the safety of their employees only whilst they were at work, and that whilst one might concede that the vehicle, and even the immediate surrounds of a vehicle might constitute the employee's place of work (although the defendant did not concede the latter), it could not be said that such a definition required an employer to satisfy himself as to the traffic management system put in place by the customer. 76 I have already found that Mr Lloyd was at work at the time of the incident. Therefore, the obligation was on WFM to ensure Mr Lloyd's safety whilst he was at the Waverley Drive depot. In an environment with prime movers, trailers, and pedestrians all operating in the same area, the defendant, who knew of the risk created by a reversing trailer, should have ensured that safe systems of work in relation to traffic and pedestrian management were in place and were followed at the depot. An effective plan for managing pedestrians and traffic, designed and maintained to avoid the risk of a collision between pedestrians and vehicles in the areas adjacent to the loading docks, undoubtedly would either have eliminated the risk of being struck by a reversing vehicle or would have at least minimised the possibility of the risk occurring. 77 It is significant that Mr Peters agreed in cross-examination that the area behind the trailer should have been governed by a formal written site policy and should not have been entered except for an authorised purpose. Mr Fogarty agreed that in a situation where there were multiple drivers entering and leaving a delivery dock, one of the things that needed to be controlled was persons placing themselves between a dock and stationary vehicles that may reverse. He stated that there should be a site policy placing restrictions on access to the area behind a stationary vehicle. That is, if there was no need for a person to be in the area, they should be excluded from it. 78 In Inspector Blume v TMP Worldwide eResourcing [2003] NSWIRComm 37 at [17], it was held that a labour hire employer's obligations extended to the working environment in which their employee was located and to ensuring that the work environment was safe and without risks to the employee's health. This principle is equally applicable to the present defendant, and that in ensuring that the work environment at the Waverley Drive site was safe, the defendant was obliged to ensure that there was a traffic and pedestrian management plan in place. 79 As to whether any formal traffic and pedestrian management plan was in place at the Waverley Drive depot on 2 December 2004, evidence was led from STE employees, WFM managers and employees and an experienced driver-trainer. Mr Parr was the only witness who stated that there was a formal traffic management plan for the depot at the time of the incident. But he could not recall whether the traffic management plan was formally documented. All other witnesses maintained that there were no formal procedures governing traffic and pedestrian management at the depot. Significantly, Mr Bradley said there were no formal procedures for the actual movement of line haul trucks entering, lining up to the docks and subsequently departing from the depot. Mr Bradley also said that when Mr Lloyd began to provide additional line haul services, neither he nor anybody else conducted a review of the procedure line haul drivers followed when entering and exiting the depot.

[48]

In order to ensure such a system was safe as required by s15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. The defendant's system did not meet this test. 85 The defendant appeared to rely on two main contentions regarding the provision and/or maintenance of a safe system of work at Waverley Drive. First, that the premises were controlled by STE and WFM had no right or responsibility to attempt to override or otherwise interfere with STE's safety policies and procedures. Secondly, the defendant sought to rely on the company's Drivers' Manual (which Mr Norman was provided with in August 2002) to show that it did, indeed, have a policy instructing drivers on the reversing procedure and that this was applicable to traffic movements at the depot. The procedure, in effect, required the driver to alight from the prime mover and look behind, underneath and to the sides of the trailer and required the driver not to rely on helpers 'as they would not pay for damage'. However, it is to be noted that the Manual also required drivers to follow the policies and procedures of the customer at the relevant site attended by a driver. 86 Mr Peters explained that there were special procedures that related to certain sites annexed to the back of the Manual and agreed that where the company had thought it necessary to provide a detailed direction with respect to a specific site, the company had done so. There was, however, no annexure or attachment relating to special procedures required to be performed at the Waverley Drive depot. Mr Schmidt said that it was not possible to attach procedures for every site as the Manual would be too thick and drivers would not read it. 87 Mr Schmidt maintained throughout his evidence that it would not be appropriate for him, the Operations Manager of WFM, to tell STE how to run their depot, and that as STE had their own policies and procedures at the depot, there was no need for him to interfere. Mr Schmidt also said that:

[49]

· as Operations Manager he was not given access to traffic management plans and procedures at sites to which he assigned drivers, but later acknowledged that he did receive some traffic plans from depots, but this was usually in relation to a new job and were not in-depth discussions; · he was not provided with any documents containing policies or procedures or a traffic management plan in relation to the Waverley Drive depot, but was, after the incident, provided a traffic management plan in relation to the new Wollongong depot at Industrial Road. He said the document was quite detailed, and described what had to be done once a driver entered the new depot, where the driver was to park, the entry and exit points and what the driver was to do. Mr Schmidt said he was happy with the document; · he did not take Mr Lloyd down to the depot when Mr Lloyd started providing additional services out of there because Mr Norman was the permanent driver and STE had their own induction at the depot, "so there was no need for me to go down there and meddle"; · he never received documents confirming that either Mr Norman or Mr Lloyd had been inducted at the depot; · that the Operations Manager could not go to every site WFM drivers attended, to inspect and perform an assessment on the site, however, when Mr Schmidt did attend sites, for example remote country sites, his evidence was that he would conduct safety checks, have access to depot procedures and speak to drivers about which procedures they were to follow; · he had not attended the depot prior to 2 December 2004, had no plan of the depot, did not know the location of the loading docks nor did he know what traffic flow markings the depot had; · he said it was a matter for the running of the depot how the two drivers conducted their activities at the depot; and · after the incident Mr Schmidt relied on STE management to take steps and maintained he could not interfere with the running of the depot. 88 As to the defendant's reliance on STE's safety policies and procedures, I earlier found that Mr Norman was not aware of, or in possession of, any formal traffic or pedestrian management plan, policy or procedure for the Waverley Drive depot as at 2 December 2004, and had been given no specific directions in relation to line haul movement or restrictions on pedestrian access at the depot by STE. I am inclined to the view that STE had no policy or procedure but if it did exist, as I have said, it was inadequate as a means of ensuring safety. However, even if a plan, policy or procedure was provided or maintained by STE to ensure safety at the Waverley Drive depot, WFM took no effective steps to satisfy itself that the plan, policy or procedure was in fact safe. The defendant could not, in those circumstances, claim it ensured there was no risk to the safety of its employees at the Waverley Drive depot. 89 As to the proposition that WFM had no right or responsibility to seek to override or interfere with safety matters at the depot, that is not a submission that carries any weight for the reasons given earlier relating to the labour hire analogy. WFM was not entitled to rely on the systems of work of STE to ensure the safety of its employees especially when WFM did not take adequate steps to satisfy itself the STE system was safe. 90 The submission that WFM had a system in place at Waverley Drive to ensure safety by virtue of the instructions in its Manual regarding the reversing procedure also carries little weight. A mere paper based instruction that was not adequately policed by the defendant did not amount to ensuring that a safe system was maintained at the depot. In any event, the reversing procedure laid out in the Drivers' Manual was not one that I regard as effective in ensuring that persons would not be placed at risk by a reversing prime mover and trailer; the driver was still not able to ensure that there was no person behind the trailer as it reversed towards the dock. Further, the reliance by the defendant on a so-called unwritten law that drivers do not stand behind a reversing vehicle is not an adequate answer to the charge. Time and again this Court has referred to the well known observation of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 91 The true position was that: (i) to a large degree WFM left the provision and/or maintenance of a safe system in relation to traffic and pedestrian management at Waverley Drive depot to STE; (ii) WFM took no or no adequate steps to satisfy itself that STE provided and/or maintained a safe system. WFM did not inquire as to what STE policies and procedures were in place at the depot, whether there existed a traffic and pedestrian management policy, whether such policies and procedures adequately ensured employees' safety, whether there were any additional safety measures required or, importantly, whether WFM's employees knew of, understood and applied those safety procedures; (iii) STE did not itself provide and/or maintain a safe system in relation to traffic and pedestrian management at Waverley Drive; (iv) WFM left the question of safety largely in the hands of its drivers; and (v) WFM failed to provide and/or maintain a safe system in relation to traffic and pedestrian management at Waverley Drive.

[68]

97 Whilst Mr Peters knew of the risk, he did not actively turn his mind to any safety implications the risk might have for WFM employees. I conclude that neither Mr Peters nor WFM conducted a risk assessment in connection with the risk of an employee being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot. 98 The defendant submitted, however, that a failure to determine whether a risk existed did not, of itself, give rise to a risk to the health safety and welfare of an employee. What the Court should do, it was contended, was direct its attention to what it was that actually gave rise to a risk to the health, safety and welfare at work of the employee. As the risk alleged by the prosecution was the risk that an employee would be struck by a reversing vehicle, it could not be found that a risk analysis would have removed such a risk. In other words, whilst a risk assessment might have identified a risk, it would have done nothing to overcome the risk of an employee being struck by a reversing vehicle. 99 Mr Cahill submitted, however, that: It was observed by the Full Bench in Kennedy Taylor … that the defendant's failure to conduct a risk assessment played a causal role in the causal chain that results in exposure to risk. 100 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240; (2000) 102 IR 57 concerned an appeal from a finding of guilt in connection with an incident in which three electrical workers were injured when the trafficable suspended ceiling on which they were standing, collapsed. The prosecution had alleged that the defendant had failed to conduct a risk assessment of the structural integrity of the ceiling. The defendant submitted that a risk assessment would not have revealed any risk. The Full Bench found that in failing to carry out a risk assessment, the employer had exposed its employees to the risk of construction work adversely affecting the structural integrity of the trafficable ceiling. There was no reason why the defendant could not have conducted an adequate risk assessment, which would have identified the specific risk, and the Full Bench found the offence proven.

[69]

101 I earlier found that the defendant was aware of the general risk posed by a reversing prime mover with trailer attached; it admitted as much. What the defendant did not do was conduct an assessment of the risk in order to determine how to address the risk and, therefore, eliminate it or at least minimise the prospect of employees being exposed to the risk as it existed at the Waverley Drive depot. The defendant knew of the location of the garden bed, knew of the reversing manoeuvre that was consequently required to be performed in a confined space and yet did not turn its mind to how those elements could affect its employees' safety. 102 In my opinion, it would have been readily apparent from a risk assessment that these factors placed the defendant's employees at risk of serious injury. Yet the defendant, according to Mr Peters, did not think that the garden bed, for example, was an issue affecting the safety of WFM employees. In my opinion, a proper risk assessment would have exposed the risk to safety that the garden bed, the reversing manoeuvre and the lack of a traffic and pedestrian management plan created for the defendant's employees and would have made apparent the ways in which the defendant could have guarded against the risk occurring. It would have revealed that, because of the limited room caused by the adjacent trailer, the dock and the garden bed: the driver was required to focus a good deal of his attention on the driving function in order to execute a jack knife manoeuvre; the manoeuvre was not an easy one to achieve; the manoeuvre involved reversing a prime mover and its trailer up to a point very close to the dock such that a person could be struck by the trailer or be pinned between the trailer and the dock; in carrying out the manoeuvre it was completely impossible for the driver to see whether any person was located behind the trailer; and there was a complete absence of any effective system in place to ensure no person was in fact behind the trailer or in danger of being pinned. 103 Although the defendant failed to carry out an assessment of the risk, in order to show there was a failure by the defendant to thereby ensure the safety of employees, it must be proven beyond reasonable doubt that the failure caused or substantially caused the risk to health and safety. In other words, it must be proven to the requisite standard that there was a causal connection between the defendant's failure to conduct a risk assessment and the risk. 104 I consider it is beyond reasonable doubt that had the defendant conducted a proper risk assessment that WFM would not have failed to take the necessary steps to avoid the risk revealed by the assessment. There was no evidence that the defendant, having had a risk to safety brought to its attention at the depot, would have chosen to ignore the risk. I refer to the following evidence of Mr Schmidt: Q. Can you tell his Honour, assuming that an unsafe condition or procedure were identified, what steps would Western Freight Management take? A. Well, if it was life endangering we would stop that immediately. If a driver reported that they're expected to do something unsafe, we would ring the manager responsible for that site and tell them that it wasn't on - that the driver would not be doing any such practice.

[74]

(3) This section is subject to any regulations under section 37. 109 Regulations 9, 10 and 12 of the Occupational Health and Safety Regulation 2001 are as follows: 9 Employer to identify hazards (1) An employer must take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer's undertaking and that has the potential to harm the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both. (2) In particular (and without limiting the generality of subclause (1)), the employer must take reasonable care to identify hazards arising from: (a) the work premises, and (b) work practices, work systems and shift working arrangements (including hazardous processes, psychological hazards and fatigue related hazards), and (c) plant (including the transport, installation, erection, commissioning, use, repair, maintenance, dismantling, storage or disposal of plant), and (c1) dangerous goods (including the storage or handling of dangerous goods), and (d) hazardous substances (including the production, handling, use, storage, transport or disposal of hazardous substances), and (e) the presence of asbestos installed in a place of work, and (f) manual handling (including the potential for occupational overuse injuries), and (g) the layout and condition of a place of work (including lighting conditions and workstation design), and (h) biological organisms, products or substances, and (i) the physical working environment (including the potential for any one or more of the following: (i) electrocution, (ii) drowning, (iii) fire or explosion, (iv) people slipping, tripping or falling, (v) contact with moving or stationary objects, (vi) exposure to noise, heat, cold, vibration, radiation, static electricity or a contaminated atmosphere, (vii) the presence of a confined space), and (j) the potential for workplace violence. (3) An employer must ensure that effective procedures are in place, and are implemented, to identify hazards: (a) immediately prior to using premises for the first time as a place of work, and (b) before and during the installation, erection, commissioning or alteration of plant in a place of work, and (c) before changes to work practices and systems of work are introduced, and (d) before hazardous substances are introduced into a place of work, and (e) while work is being carried out, and (f) when new or additional information from an authoritative source relevant to the health or safety of the employees of the employer becomes available. (4), (5) (Repealed) Maximum penalty: Level 4. 10 Employer to assess risks (1) An employer must assess the risk of harm to the health or safety of the following persons arising from any hazard identified in accordance with this Chapter: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both. (2), (3) (Repealed) Maximum penalty: Level 4. ... 12 Employer to review risk assessments and control measures An employer must review a risk assessment, and any measures adopted to control the risk, whenever: (a) there is evidence that the risk assessment is no longer valid, or (b) injury or illness results from exposure to a hazard to which the risk assessment relates, or (c) a significant change is proposed in the place of work or in work practices or procedures to which the risk assessment relates. Maximum penalty: Level 4. 110 It is clearly the case that a failure to conduct a risk assessment may be a contravention of the regulations. However, more relevantly, where a failure to conduct a risk assessment causes employees to be exposed to a risk to their health and safety, in the same way as a failure to train may also cause exposure to risk, the failure may lead to the employer being found liable for contravening the relevant general duty under Division 1 of Pt 2 of the Act.

[78]

116 Mr Hatcher, for the defendant, submitted that it was wrong to assert that the defendant had made no attempts to raise with STE the need to remove the garden bed. Mr Peters had raised the matter with STE executives when he had driven down to the Waverley Drive depot prior to its opening. It was the evidence of Mr Peters that the response was that as the premises were leased and not owned by STE, STE was unable to remove the garden bed and that the inclusion and location of the garden bed 'had probably been part of the development application'. Mr Norman had also raised the issue of the garden bed with the Operations Manager at STE. 117 It was the defendant's submission that there was no evidence that the garden bed itself was a safety issue, and referred to the evidence of Mr Norman that it caused no more problems than having "yard trucks parked in the yard". Further, the defendant contended that there was no obligation under the Act, which required an employer to ensure that its customers' premises were of a particular physical character. The defendant accepted that the Act required the employer to ensure the safety of their employees whilst they were at work at the customer's premises, but maintained that that requirement did not involve an obligation to ensure certain tasks were performed safely or, as in this case, conveniently, at the customers' premises. It seems to me there is an inconsistency in this submission. If the physical character of premises causes a risk to safety, then there is an obligation on the employer to take steps to avoid the risk and if this means having the physical character of the premises altered, then that must be done or the premises should not be used. 118 In relation to the garden bed, the evidence showed that the Managing Director of WFM knew of the location of the garden bed, and the manoeuvre that was required by a driver to avoid the garden bed when exiting the southern gate. Mr Peters had noticed and raised the problem with STE executives prior to the opening of the depot that the garden bed was 'in the way and should be moved'. It is apparent, however, that Mr Peters and the defendant did not consider the location of the garden to be a safety problem. I have already addressed the failure to conduct a risk assessment in the context of traffic and pedestrian management and reversing trailers. But I again state that a proper risk assessment of the Waverley Drive depot would have revealed that due to the location of the garden bed it contributed to the creation of a risk to drivers.

[86]

128 The onus is on the defendant to prove to the civil standard either that it was not reasonably practicable for the defendant to comply with the Act, or that the offence was due to causes beyond the control of the defendant and against which it was impracticable to make provision: Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278; (2001) 110 IR 182 at [76] . The defendant relied on both limbs of the defence. 129 Determining what was reasonably practicable is an objective test that requires the court to consider what measures were available in the circumstances of the particular case: Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 362. The determination is not restricted to the state of knowledge of the defendant or to the measures, if any, which the defendant had contemplated: Workcover Authority v Cleary Bros at [80]. The Court is therefore required to make a finding as to what objective steps, if any, were available to guard against the risk. 130 After considering what measures were available, the Court must determine whether it was reasonably practicable to have implemented those measures prior to the incident. In determining what is reasonably practicable Walton J, Vice President in WorkCover v Cleary Bros at [87] said: It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and (at 635-636) per Lord Jauncey of Tullichettle. At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.

[88]

133 I find that the risk was obvious and that it carried with it the potential for serious injury. The defendant, therefore, has to prove that it was not able to avert the risk because either there were no measures reasonably available or because measures that were available were not reasonably practicable: WorkCover v Cleary Bros. 134 The submission for the defendant was that as the risk was so well known, there were no other effective measures the defendant could have put in place to ensure that Mr Lloyd would not have placed himself in the area to the rear of Mr Norman's trailer. 135 I am satisfied that there were objective steps open to eliminate or minimise the risk. A proper traffic and pedestrian management plan provided and maintained by the defendant was one measure that could have been adopted and would have removed or minimised the risk. Within the plan the defendant could have ensured that reversing procedures were kept to the absolute minimum, and that any unnecessary reversing manoeuvres eliminated. I note the evidence of Mr Peters who maintained that reversing could never totally be eliminated, especially for trailers that only had rear loading capabilities and which required to be reversed into a loading dock. 136 However, where it was necessary for drivers to reverse, steps could have been taken to ensure that there were no pedestrians in the vicinity of the rear of the reversing trailer. This could have been achieved by a policy and practice of excluding employees who were not required to be located in the area, from being between the loading docks and the rear of the trailer. I note that although the practice of Mr Norman and Mr Lloyd was to apply their own seals and help the other driver close their doors, and hence cause them to be in the vicinity of the rear of the other driver's trailer, it was in fact the responsibility of STE to apply the seals and, according to Mr Peters, himself a former truck driver, only one driver was required to actually close the doors. If such a measure was taken and policed to ensure that it was enforced, then only pedestrians with an authorised purpose would be in the area between the rear of a trailer and the loading dock, and all other persons would be excluded. On the evening of 2 December 2004, under such a policy, Mr Norman would have had an authorised purpose to be at the rear of his trailer, but Mr Lloyd would have been excluded from the area. The risk of Mr Lloyd being struck would, therefore, have been significantly minimised. 137 The policy could also have ensured that the trailer on the most northern of the southern loading docks had to depart first. This would have resulted in Mr Lloyd's trailer being loaded and completed first, and depending on other traffic in the yard would have decreased the possibility of Mr Norman having to exit via the southern gate. This would have also minimised the risk of Mr Lloyd being struck, as he would have had to depart first, and Mr Norman would not have had to perform the jackknife manoeuvre. 138 The defendant submitted, however, that as Mr Lloyd, a driver with extensive experience and training in the industry, knew that he was not to stand behind a reversing trailer, and yet he did so, no other steps, such as a policy excluding Mr Lloyd from the area, would have prevented Mr Lloyd from standing behind the reversing trailer and placing himself at risk. I do not agree with this submission. As I have already observed, it is clear from the authorities that the employer, in satisfying its duty to ensure health and safety of its employees, must take into account not only the careful and observant employee but also the careless, inattentive or inadvertent employee: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 at [45]. In other words, the obligation was on the defendant to devise a system of work in connection with the loading of the trailers at the depot that took into account the careless, inattentive or inadvertent employee. 139 Whilst it was maintained by Mr Schmidt and Mr Peters that Mr Lloyd knew not to stand behind a reversing trailer, it was reasonably foreseeable that a driver may inadvertently place, or find, himself in the dangerous position of being at the rear of a trailer as it reversed. There was no evidence as to why Mr Lloyd was behind the trailer, but the relevant issue was that he was there. I am satisfied that there may be circumstances where an employee, despite knowing of the 'unwritten rule', may find himself behind a reversing trailer. This could include, for example, someone who receives a phone call or is distracted for some reason, or who falls, becomes injured and is unable to move from the area. 140 The defendant's contention that nothing else could have been done approaches the issue too narrowly. The risk was that a reversing trailer could strike an employee and it is reasonably foreseeable that in the absence of a proper traffic or pedestrian management plan there may have been circumstances where an employee found themselves in the path of a reversing trailer unseen by the driver because of the driver's restricted vision. Focusing on why or whether employees willingly placed themselves in the situation is not relevant to the risk as charged. The risk was that an employee could have been in the area, and could have been struck by a reversing trailer. 141 Although there was dispute on the evidence as to whether STE's policy of sounding the vehicle's horn and using a spotter was, in fact, implemented at the Waverley Drive depot after the incident and prior to the move to the new STE Wollongong depot, I am satisfied that the procedure outlined in the evidence was a step that would have significantly decreased, if not eliminated, the risk. 142 The procedure involved the use of a spotter standing on the loading dock. When the driver was ready to depart the driver would sound the horn once or twice, and wait for a signal from the spotter. The spotter would check that it was safe for the driver to reverse, give the relevant hand signal and the driver would then reverse. If the spotter saw someone in the area between the dock and trailer they would not give the signal and the driver would not reverse. This would ensure that even where someone who knew of the risk had placed themself in the dangerous position behind the trailer for whatever reason, or the employee who was not paying attention found themselves behind the trailer, the risk of being struck by a reversing trailer would not occur because the trailer would not reverse whilst the pedestrian was in that area. I consider this to be a simple, yet highly effective and available step, especially when coupled with a policy that excluded unauthorised pedestrians from being in the area in the first place. Further, Mr Peters conceded that the procedure of utilising his drivers as spotters could have been implemented prior to the incident. I find that there were practicable steps available to remedy the risk of an employee being struck by a reversing trailer where the driver's vision was restricted.

[89]

143 Having found that there were measures available to reduce or eliminate the risk, the defendant has to prove that those measures were not reasonably practicable. It was submitted that it was not reasonably practicable for the defendant to have provided and maintained a traffic and management plan, as the depot was operated by STE and owned by Truebond Investments. The defendant submitted it would not have been looked upon favourably for WFM to meddle in STE's running of the depot, especially as STE itself did not have a traffic or management plan at the Waverley Drive depot. Further, it was impossible for the defendant to carry out investigations into all of their customer depots for the purpose of determining whether the policies of the customers were safe and maintained. Finally, the defendant contended that the configuration of the depot meant it was very difficult to develop a traffic management plan similar to that which was developed for the new site, and that there was evidence from Mr Bradley that he did 'not know how you would design one'. 144 I am unable to accept the defendant's submission that it was not reasonably practicable to provide and maintain a traffic and pedestrian management system for the reason that STE would not have looked favourably on WFM interfering with the running of the depot. I appreciate that the defendant was contracted to provide a service to the larger company, STE, but irrespective of the commercial relationship between the two, the defendant had a statutory obligation as an employer to ensure the health and safety of its employees. A submission to the effect that it is not reasonably practicable for an employer to insist that its employees undertaking work at the premises of a customer or client are to be provided with a safe working environment because such insistence might offend the customer or damage the client-customer relationship, is clearly not sustainable given that the safety and health of employees is at stake. 145 In any event, I note that aside from Mr Peters' request to move the garden bed and change the height of the loading docks, the evidence was that the defendant did not engage in discussions with STE concerning the safety of the defendant's employees. The defendant did not inquire as to what, if any, traffic and pedestrian management system was in place at the Waverley Drive depot, nor did it inform STE that an adequate traffic and pedestrian management plan was required. WFM's belief that it could not have interfered with STE's running of the depot, was based on an assumption that STE would not have responded well, or that STE would not have accepted the safety suggestions. 146 In WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453; (1999) 101 IR 239 at 260 Walton J said: In relation to the reasonable practicability of taking measures to remedy the potential threat to the safety of the defendant's employees, I consider that the formula identified in negligence cases such as Paris v Stephney Borough Council [1951] AC 367 at 375-376 is relevant. In short, the issue to be addressed may be expressed as follows: the greater the magnitude of the risk and the greater the gravity of the harm, should the event occur, the higher is the duty to take precautions, even if these are expensive or difficult to adopt. 147 Although it may have been difficult to ensure a traffic management plan was provided and maintained by STE at the Waverley Drive site, given the serious risk its employees were exposed to, the defendant had a duty to ensure that there were safety measures in place, in particular in the form of an effective traffic and pedestrian management plan. Regardless of how STE responded, the defendant had an obligation to address risks to safety, bring them to the attention of STE, and ensure that necessary measures were implemented. I find that it was reasonably practicable for the defendant to have taken steps to eliminate or minimise the risk to employees' safety at the Waverley Drive depot.

[90]

148 I reject the submission that it was impossible for WFM to investigate and satisfy itself of the safety policies in place at all of their client depots. The defendant's logs for November and December 2004 revealed that the defendant was servicing approximately 15 client depots on a daily basis in New South Wales, including the Waverley Depot site, but excluding interstate movements to Perth and Adelaide. The prosecution submitted that 15 client depots was not so onerous that the defendant could not have satisfied itself as to safety policies at their client depots, and further that those safety policies were being maintained. I agree with the prosecution in this regard. The evidence was that when Mr Schmidt, the operations manager, did attend depots he conducted assessments of the site and the adequacy of safety policies. He also ensured that drivers understood how the safety policies applied to them. 149 It is not a sustainable proposition that the cost and time involved for the defendant to assess safety at 15 depots outweighed the serious risk to health and safety that has been found to exist at the Waverley Drive depot. This is particularly so given the fact that had a traffic and management plan been in place, including a policy excluding pedestrians and a reversing procedure with a spotter, had been communicated to all employees and was continually maintained and enforced, the risk to Mr Lloyd would have been significantly minimised, if not completely eliminated. I cannot accept that it was not reasonably practicable for the defendant to have attended 15 depots within NSW to ensure first that there were safe traffic and pedestrian management plans in place, and second that those plans were being followed and enforced. 150 Finally, I refer to the submission that the configuration of the Waverley Drive depot meant that it would have been difficult to plan a traffic and pedestrian management system. In my opinion, even though the Waverley Drive site was different to that of the new depot at Industrial Road, an appropriate and adequate traffic and pedestrian management system could have addressed the unique situation of the Waverley Drive depot. The defendant has provided no evidence that such a plan could not be designed, other than referring to the evidence of Mr Bradley, STE's branch manager. There was no evidence that Mr Bradley had any specialised expertise in safety procedures or in designing traffic and pedestrian management plans for truck depots. In order to have succeeded with this submission, the defendant, who bears the onus of proving the defence, was required to show evidence that it was not reasonably practicable to design and implement an effective traffic and pedestrian management plan for the Waverley Drive depot. The defendant provided no such evidence and I am satisfied that the defendant has failed to discharge the onus that it was not reasonably practicable to have provided and maintained a traffic and pedestrian management system at the Waverley Drive depot. 151 I now turn to the defence under s 28(b). To be successful the defendant has to prove to the relevant standard that the offence was due to causes of which the person had no control and against the happening of which it was impracticable to make provision. In St Hilliers v WorkCover Authority, the Full Bench said at [59]: With that in mind, the task is then to consider the causes of that commission of the offence and assess whether the person against whom charges have been brought had control over them. Put simply, if the person did, then the defence fails at that point.

[91]

On the other hand, if the causes were outside the control of the person who committed the offence, the question is then whether it was impracticable for the person to have made provision for those causes not to have arisen or not to have occurred. 152 In my opinion, the failure to not have a traffic and pedestrian management plan in place, the failure to ensure that there was sufficient space to safely exit the depot, and the failure to conduct a risk assessment, which all gave rise to the risk of Mr Lloyd being struck, were within the control of the defendant to address. Although the depot was operated by STE, and even though Mr Lloyd may have known not to stand behind a reversing trailer, the defendant did have a sufficient degree of control at the Waverley Drive depot and was in a position to bring about change to the depot. Mr Peters' evidence was that when he requested the height of the loading docks be altered, STE acceded to his request and built the ramps. I acknowledge that Mr Peters said when he did make safety suggestions to STE they 'sometimes listened and they sometimes didn't', but the fact that STE did at times listen and make the requested changes is demonstrative of the fact that WFM did have some influence on how the depot was run. In WorkCover v Cleary Bros, Walton J found in that case that the defendant had some control over bringing matters to the attention of the owner of the site, and that, as a result, the defence was not made out. I consider that the same applies to the present case. 153 As I earlier noted, it is a defence under s 28(b) if the commission of the offence was due to causes over which WFM had no control and against the happening of which it was impracticable for WFM to make provision. Clearly, it was within WFM's control to raise with STE any risks to the safety of WFM's employees. Because WFM had not conducted a proper risk assessment it had not assessed the risks to its employees. So it was not so much a refusal by STE to address WFM's safety concerns that caused the risk because those concerns were not, in any effective way, brought to STE's attention. Had the risks been brought to STE's attention and WFM had done all that was reasonably practicable to have STE implement appropriate safety measures, but STE had refused or failed to do so, it may have been that a defence was available. But then again it may not if WFM had continued to allow its employees to be exposed to a risk to their safety. However, that is not this case. 154 As WFM did not even test to a proper degree the question of whether it had sufficient control over the causes of the risk at Waverley Drive and as there was no evidence about how STE may have responded to a proper request for safety to be addressed, WFM cannot succeed in a submission that it did not have the requisite control. 155 Although the defendant may have had only limited control, it was in a position to bring safety issues to the attention of STE, including issues that caused the commission of this offence, and as such the defendant has not discharged the onus of establishing a defence under s 28(b). Orders

Inspector Patton v Western Freight Management Pty Ltd

At a glance

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Decision date

Before

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Judgment (93 paragraphs)

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Legislation Cited (1)

Cases Cited (45)

Cited By (3)