Section 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident."
88. In respect of foreseeability and the operation of s 28, Drake Personnel makes it clear that although foreseeability of a risk has no application to liability under s 8, it is relevant when considering whether a defence has been established under s 28.
89. It is well settled that to establish a defence under s 28 of the Act, it must be proven, to a civil standard, that it was not reasonably practicable in the circumstances to have complied with the relevant duty, or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: Legge v Coffey; Drake Personnel (at 457); and WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182.
Consideration
90. It is clear from the preceding review of authorities that in order to determine liability, the Court should identify the relevant risk; determine whether, as a matter of fact, there was a relevant failure by the defendants (by act or omission, as particularised in the charges); and, if so, determine whether there is a causal connection between the risk and the defendant's failures.
91. The relevant risk, in my view, was allowing cars to be parked at the end of rows of fruit trees in the orchard. In my view, there was not a sufficient system of work in place in relation to the parking of cars which was safe. In these proceedings, the charges against the defendant allege a failure to "ensure the health, safety and welfare at work of all of the employees of the Defendant", particularised as failing "to ensure that the premises (and/or the means of access to or exit from the premises) were safe and without risks to health, in that it failed to ensure that vehicles were not parked in the orchard, in particular at the end of the rows of fruit trees, such that the parked vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; failing to adequately instruct or supervise employees to ensure that they did not park vehicles in the orchard, in particular at the end of rows of fruit trees, such that the vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; failing to provide or maintain a system of work in relation to the carting of fruit at the premises by use of the tractor and trailers that were safe and without risks to health; failing to ensure that any plant, in particular the tractor, provided for use by the employees at work at the premises was safe and without risks to health, by failing to ensure that a safety belt or other restraining harness device was fitted to the tractor for the use of the operator."
92. The defendant had used the HACCP system to provide quality assurance contained in the Employee Induction Training Manual. Under the heading "Car Park" the following appeared: "parking facilities are located to the side of the packing shed. Please keep vehicles parked in that area. Bikes can also be stored in the same area." To this system was added the oral instruction of Mr P Pavese: "to park in the orchard parallel to the rows of trees to be picked".
93. The question that arises is whether the system of work that provided for the parking of vehicles in the orchard posed a risk to the safety of an employee driving a tractor. In my view, the answer is yes.
94. In Genner the Court emphasised that for a system of training to be adequate, in accordance with an employer's obligation under the Act, what must be shown is that the "system is sufficiently systematic or comprehensive, contains appropriate detail and, importantly, is sufficiently promulgated to its workers who are themselves adequately trained in their implementation". In Genner these observations were made in the context where the particular method of work (in that case the method of work providing for the entering and exiting of trucks to a worksite) was not the subject of consideration on appeal.
95. In my view, it was inevitable upon a proper consideration of the evidence that a tractor would confront a car parked at the end of a row of fruit trees. Mr Vuadreu in cross examination gave the following evidence regarding the parking of cars (at T 16):
Q: Do you recall where you saw for the first time on 23 September 2001, Mr Peni Tavua's car?
A: When I came in there, all the cars was down here with my daughters, down here, right at the end of the thing in here.
Q: Whereabouts?
A: At the end of this, of this patch here.
Q: Did you see, whose cars were there?
A: Well my daughter and Peni's car.
Q: And what time did you arrive at the orchard on 23 September?
A: It was about 11, half 11, I couldn't remember the time exactly...
...
(At T 21)
Q: And where you say back to the place which we did the pick, sometimes were cars parked parallel to the rows that you were picking in adjacent rows?
A: Yes, sometimes they do that. But actually the tractor is coming up and down, you have to keep the road clear so either you park away from the farm beside the road or right at the back of the farm and right at the shed.
...
(At T 22)
Q: Was it the situation that sometimes cars were parked in a parallel to the rows of the rows not being picked by the pickers?
A: That's correct.
...
(At T 23)
Q: I will give you another sticker, a yellow sticker with a 3 on it, if you just indicate where your car was?
A: My car is right at the back here. This is where we bringing my car, is at the back here. This is the main road.
96. Mr Vuadreu indicated on the aerial photograph that his car was parked in the block behind the block where the oranges were being picked on 23 September 2001.
97. In re-examination, Mr Reitano sought to clarify where certain cars were parked on 23 September 2001.
(At T 24)
Q: Is it the case that in the middle of the map there is the words "packing shed"?
A: Yes.
Q: And is that where you refer to where you understood Peni normally parked his car?
A: That's correct.
Q: If I can just ask you to move to the bottom right hand corner of the map, you indicated that, I think your daughter's car, I may be wrong, it may be your son in law's, but one of them and Peni's car was origianlly parked in the bottom right hand corner of the map when you arrived on the day?
A: Over here.
Q: Now we are going the (sic) try and describe this. It is at the intersection of Murray Road and -?
A: No, that is not the intersection, there is just the end of the rows, there is another patch in there.
Q: Where Murray Rd meets the break between the block of oranges on the far right hand side of the map?
A: Yes.
Q: And were they parked in amongst the trees or in that area that I described as the break between the two blocks?
A: They were parked just in here right in the head land here.
Q: When you say right in here at the headland, you have indicated about four rows of trees along roughly?
A: Somewhere here because I just can't - and I just drive past.
Q: I understand what you're saying but it's very important that everyone else does and they can't see, that is that (sic) problem. I am trying to describe where you are saying here somewhere along Murray Rd at the head, you are pointing to the third or the fourth or even the fifth row of trees?
A: It could be there, somewhere -
Q: Is that what I have described a correct description?
A: Yes.
Q: So they would be parked, as it were, alongside the head of the road?
A: Yes.
(At T 25)
Q: ... I will just go to the third thing you indicated where you parked?
A: Yes.
Q: And that is the yellow sticker that has the number 3 on it?
A: Yes.
Q: Which is towards the top right hand corner of the map?
A: Yes.
Q: And can you indicate was it amongst the rows or once again was it -?
A: No, there is a space there between these two rows here, right. There is a big space there. I parked it in there just beside this row here.
Q: Once again at the head of the row?
A: No, just parallel to this.
Q: When you say" parallel?
A: Just like a straight line, just follow the road.
Q: A straight line from right to left?
A: Yes.
Q: It's not a road but in that break between the two lots of trees?
A: Yes.
...
Q: And where Peni normally parked, were cars ever parked anywhere else?
A: Well you can park - I mean the car straight inside the rows here, unless, if the rows already been picked and if it's not been picked, no, it's going to, it will never be the way to stop; not to block the tractor from coming in.
Q: Did anyone tell you about where you should park your car?
A: Yes the owner of the farm always keep clear from here, I park in the shed.
Q: The packing shed?
A: There is a carpark area there, or park it away from the place where you pick.
Q: And is that what you were told "away from the place where you were picking"?
A: Yes.
98. Ms Toga's evidence confirmed that given by her father, Mr Vuadreu, that her car was parked approximately four or five rows to the left of rows 3 and 4 at the end of the row facing Murray Road. Ms Toga recalled that Mr Tavua's car was parked near her car. Furthermore, Ms Toga's evidence was that no-one told her where to park or not to park when she arrived at the farm. She saw where the picking was taking place and parked her car. Ms Toga placed a sticker on the aerial photograph indicating her car was parked some four rows to the left of rows 3 and 4 and in the headland region. Ms Toga's evidence was a third car was parked in row 2 parallel to the rows of trees which were being picked.
99. The evidence discloses that there were four cars parked in the orchard on 23 September 2001 and only one of those cars was parked in accordance with the manual or oral instructions provided by Mr Pavese to employees. I find beyond reasonable doubt that Mr Tavua's car was initially parked some four to five rows to the left of rows 3 and 4 with Ms Toga's car in the headland. It was subsequently moved to the headland at the Murray Road end of rows 3 and 4 partially blocking the entrance to those rows.
100. In order to meet the requirements of s 8 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. The majority in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 219 observed:
In order to ensure such a system was safe as required by s.15, 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.