Inspector Wolf v The Forestry Commission of NSW t-as Forests NSW [2008] NSWIRComm 230 | Case summary

Inspector Wolf v The Forestry Commission of NSW t-as Forests NSW [2008] NSWIRComm 230 | Case summary | Zoe

[14]

In the course of the defendant's business or undertaking it had at least limited control of premises for the purposes of section 10(1), (3) and (4)(b) arising out of: a. The defendant under section 8A of the Forestry Act 1916 had objects that included "to … utilise the timber on Crown-timber lands and land owned by the commission or otherwise under its control or management to the best advantage of the State", "to provide adequate supplies of timber from Crown-timber lands and land owned by the commission or otherwise under its control or management for building, commercial, industrial, agricultural, mining and domestic purposes" and "to encourage the use of timber derived from trees grown in the State". b. The defendant under section 11 of the Forestry Act 1916 had powers and duties that included "shall have the control and management of State forests, timber reserves and flora reserves" and "may take any timber or products on any Crown-timber lands …" c. The defendant issued a timber licence to Davis & Herbert Pty Ltd (BTU) for the harvesting of a quantity of hardwood logs from Compartment 207 and the licensee then contracted Colebrook & Sons Pty Ltd ("the contractor") to carry out the harvesting and haulage operations. d. The defendant had a role in deciding which contractor would log which compartment according to a Plan of Operations and an Order of Working. e. The defendant issued the Harvesting Plan that applied to Compartment 207. f. The defendant required a Site Safety Plan to be completed by the harvesting and haulage contractor that documented the specific safety management system that was to be applied to an individual worksite. g. The defendant had employees on site in Compartment 207 to supervise the contractor, the harvesting event and to ensure compliance with the "Forest Workplace Safety Standards (FWSS)". 3. The defendant did not ensure that the premises were safe and without risk in respect of any of the following matters over which it had control: a. The defendant failed to identify and document in the Harvesting Plan one to five dangerous trees that were standing rotten and/or dead trees. b. The defendant failed to identify and transfer to the contractor's Site Safety Plan one to five dangerous trees that were standing rotten and/or dead trees. c. The defendant, on site, failed to identify one to five dangerous trees that were standing rotten and/or dead trees. d. The defendant failed to undertake an adequate risk assessment, in that it failed to: identify the risk from one to five dangerous trees that were standing rotten and/or dead trees; assess that risk by estimating the likelihood of an injury occurring and the likely severity of any injury that may occur; control that risk by developing and implementing risk prevention or reduction measures. e. The defendant failed to advise the contractor or insist, or both, that no timber harvesting operations were to be carried out by the contractor in the immediate area of a dangerous tree that was a standing rotten and/or dead tree. f. The defendant failed to require the contractor remove a dangerous tree that was a standing rotten and/or dead tree, prior to timber harvesting operations taking place in the immediate area of that tree. 4. A manifestation of the risk was that whilst carrying out timber harvesting operations a stag fell onto Brett James Heycox causing his instantaneous death due to massive blunt trauma to the thorax abdomen and cranium. And in the alternative: Further particulars of the Charge pursuant to section 8(2): . . . 1. There was an actual risk to persons being injured or killed as a result of being struck by falling dangerous trees that were standing rotten and/or or dead trees (also known as stags). 2. The defendant's business or undertaking was that: a. The defendant under section 8A of the Forestry Act 1916 had objects that included "to … utilise the timber on Crown-timber lands and land owned by the commission or otherwise under its control or management to the best advantage of the State", "to provide adequate supplies of timber from Crown-timber lands and land owned by the commission or otherwise under its control or management for building, commercial, industrial, agricultural, mining and domestic purposes" and "to encourage the use of timber derived from trees grown in the State". b. The defendant under section 11 of the Forestry Act 1916 had powers and duties that included "shall have the control and management of State forests, timber reserves and flora reserves" and "may take any timber or products on any Crown-timber lands …" c. The defendant issued a timber licence to Davis & Herbert Pty Ltd (BTU) for the harvesting of a quantity of hardwood logs from Compartment 207 and the licensee then contracted Colebrook & Sons Pty Ltd ("the contractor") to carry out the harvesting and haulage operations. d. The defendant had a role in deciding which contractor would log which compartment according to a Plan of Operations and an Order of Working. e. The defendant issued the Harvesting Plan that applied to Compartment 207. f. The defendant required a Site Safety Plan to be completed by the harvesting and haulage contractor that documented the specific safety management system that was to be applied to an individual worksite. g. The defendant had employees on site in Compartment 207 to supervise the contractor, the harvesting event and to ensure compliance with the "Forest Workplace Safety Standards (FWSS)". 3. Aspects of the defendant's unsafe systems of work and work environment were any of the following:

[16]

Preliminary issue: alternative pleading under the Act 9 Two alternative charges are particularised against the defendant, one under s10, the other s8(2). The right of the prosecution to lay charges in the alternative under the Act had been upheld by the NSW Court of Appeal in Rockdale Beef Pty v NSW Industrial Relations Commission (2007) 165 IR 7. In that case it was held: (6) Use of alternative charges [96] The next issue concerned the validity of the inclusion of two separate offences, expressed to be in the alternative, in the one charge. This complaint was dealt with by the Full Bench but was said to have been effectively determined by an earlier decision of the Full Bench in WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd (2006) 151 IR 90. [97] The propriety of commencing proceedings in the form adopted by the prosecutor must commence with a consideration of the statutory provisions under which the charge was laid. The application for an order was made by the prosecutor in a document filed on 23 October 2003, after the repeal of the Supreme Court (Summary Jurisdiction) Act 1967 NSW. Accordingly, Pt 5 of Ch 4 of the Criminal Procedure Act 1986 NSW applied in relation to proceedings for offences taken before the Commission. The order sought by the prosecutor was thus an order pursuant to s 246 of the Criminal Procedure Act, as that section applied in relation to an offence committed before its commencement, where no proceedings had then been commenced: Criminal Procedure Act, Sch 2, cl 32. [98] Chapter 2, Pt 2 of the Criminal Procedure Act applies "to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with": s 15(1). In that Part, the term "indictment" is defined to include any process by which criminal proceedings are commenced: s 15(2). Section 23 provides: 23 Indictment may contain up to 3 similar counts (1) Up to 3 counts may be inserted in the same indictment, against the same person, for distinct offences of the same kind committed against the same person. (2) This section does not apply if more than 6 months have elapsed between the first and last of the offences. (3) Nothing in this section affects the right of the Crown to insert alternative counts in any indictment. [99] Subject to any contrary indication in the OH&S Act, that provision would appear to dispose of the present complaint. . . .

[20]

The defence under section 28 of the Act provides: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or... 12 Dealing firstly with the charge under s10(1) of the Act, the duty cast by s10 is absolute and is subject only to the defences provided by s28 of the Act (WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383; WorkCover Authority of New South Wales v Rowson [1994] NSWIR 76). The duty applies only if the premises are controlled in the course of a trade, business or other undertaking (whether for profit or not) by the person. The elements of a charge for a breach of s10(1) of the Act are therefore: (1) that the defendant has control of premises; (2) premises are used by people as a place of work; (3) that the premises were not safe and not free from risks to health; and (4) that there was a causal connection between the breach of statutory duty and the premises being unsafe and a risk to health. 13 The defendant concedes it has control of the premises which relevantly was Compartment 207 of Clyde State Forest (s8A, s8(1)(a), (b) & (c), s11 of the Forestry Act 1916). Control by the defendant is also reflected in the issuing of licences by the defendant to Davis and Herbert Pty Ltd and its sub- contractor, Colebrook and Sons Pty Ltd. Further, the defendant oversees with the contractor the preparation of the Site Safety Plan. The defendant also had on site a State Forest Officer (SFO) whose role was, amongst other duties, to supervise the logging contractor, check safety procedures defined under the contract, oversight of harvesting plan and perform tree marking (for example, trees to be retained, trees acknowledging fauna occupation). Even if the control held by the defendant on site was limited, and that is arguable, the Act covers such a defendant under s10 (see s10 (4)(a) as cited above). It was also conceded the premises, namely, Compartment 207, were being used as a place of work by people. 14 I am satisfied the defendant was a controller of this worksite. Therefore, two elements of the charge laid under s10 of the Act have been established. 15 As to the other two elements of the s10(1) charge, the prosecutor asserts there was a causal connection between the risk to safety and the breach of the Act by the defendant. It is asserted by the prosecutor the risk to safety arose from the failure of the defendant to ensure its place of work (the premises over which it had control) was safe and without risk to health and safety.

[59]

(The "snigging" is the moving of the felled trees along a track up to the log dump after the tree is harvested and its head is removed). 33 While waiting for Mr Colebrook (who was waiting to load a truck at the log dump), Mr Heycox went into the uncleared area and began work some 300 metres below the log dump but not down to the area which had been cleared. He felled three trees. Mr Colebrook, his employer, was not aware where Mr Heycox was working when the incident occurred. 34 The second relevant conversation that may have affected Mr Heycox's choice of the area to harvest occurred on the day before the incident between Mr Davis, the SFO, and Mr Heycox. Mr Davis gave evidence he and Mr Heycox had gone into an area part of which was the area in which Mr Heycox was found deceased and Mr Davis had marked habitat trees and trees for retention and had recorded in his notes that they had determined the logging of the area of the compartment could be concluded by the end of the week, namely, the Friday. This was the second conversation which may have affected Mr Heycox's choice of area to harvest on the relevant date. It is mere speculation, and perhaps a worrying coincidence, that while waiting for Mr Colebrook to clear some trees from the filter strip (the strip that was used to separate the harvesting compartment from the forest area), Mr Heycox began logging in the area into which Mr Davis had taken him the day before which was some 300m up from the cleared area prepared for harvesting. 35 In the circumstances, there was, therefore, harvesting work conducted in an area of the Compartment 207 without the established procedures of safe working allowing for the elimination of dangerous trees. A risk was thereby created. 36 In accepting Mr Colebrook Snr's evidence that Mr Heycox was not working in the area in which there had been the clearing procedure, it is a question of conjecture why Mr Heycox chose the particular uncleared site (of dangerous trees) to conduct his felling task. 37 A preliminary accident investigation report outlines how the fatality occurred: ACCIDENT DESCRIPTION It appears that the deceased faller may have been in the process of heading or had just headed the top of a 26 cm diameter (at stump), spotted gum tree when he was struck and buried under a large dead and rotted out spar/stag approximately 11.80 metres in total length and 1.40 metre diameter at butt end. - The deceased faller's chainsaw was found laying across a headed (cross cut) 26cm diameter at (stump) spotted gum tree. - It was reported by Adam Colebrook, who was the first to arrive at the accident scene, that the deceased faller's chainsaw was still running and he observed fumes/smoke coming from its exhaust. - There were no witnesses to the accident . . .

[65]

Inspector Wolf agreed the felled 32 metre spotted gum which hit the dead tree did so with considerable impact. It was Inspector Wolf's view the dead tree became an obviously "very dangerous tree" after it was hit. 39 I am satisfied the standing, dead tree (stag) was struck by a 32 metre spotted gum which Mr Heycox had felled. I am further satisfied the "stag", for a period, remained standing before it fell. It appears as the dead tree remained standing, Mr Heycox proceeded to go forward to cut off the heads of the live trees he had already felled. It was while performing this normal task that the dead tree (stag), which had been struck at its base by the 32 meter spotted gum, fell upon him causing the fatal injury. Mr Heycox was therefore in breach of the safety area defined as two metres required to be kept clear until felled trees have fallen. 40 There was a dispute as to when the relevant dead tree became "dangerous." Some of the criteria which allows for a tree to be viewed as "dangerous" are outlined in the Workplace Manual. The tree was dead. It also had fire marks upon it. There was a further dispute as to whether, before it fell, the dead tree could be seen as "rotten". I am satisfied although the tree, after it fell, revealed itself as "rotten" inside, it has not been established on the evidence the tree could be seen, before it fell, to be rotten. However, I am satisfied the one particular tree which struck Mr Heycox was dead and it could be observed, when looking at it, that it had fire marks upon it. I am also not satisfied that the tree before it fell had an "excessive lean on it" as asserted by Mr Beetles who saw it on the ground after it was struck. Inspector Wolf was of the view he could not tell which way the tree leaned before its fall. Mr Davis expressed the view any lean had to be excessive for a dead tree to fall and dead trees without branches would not have such a lean. 41 The defendant contends there is an onus on the prosecution to establish, given the prosecutor's identification of the risk, that the relevant dead tree (stag) was "dangerous" prior to work beginning in the uncleared area. 42 There was much evidence given as to the nature of a forest. Inspector Wolf agreed, on his investigation of the incident, most forest employees said to him "just about every tree in a forest is dangerous". In the dynamics of the forest, Mr Davis, the SFO, and Mr Davidson, the Harvesting Forester, expressed the view all trees in the forests are potentially dangerous. Mr Dodds, the Regional Manager, expressed the view trees fall in the forest all the time. Mr Dodds and Mr Beetles (an expert also relied upon by the prosecution) concurred you would expect there to be thousands of dead trees in a native forest compartment such as Compartment 207 (386 hectares). Mr Davis, Mr Colebrook Snr and Mr Beetles agreed not all standing, dead trees are dangerous and Mr Dodds expressed the view not all live trees are not dangerous. Mr Davis was of the view only a very small proportion of dead trees are dangerous. 43 Mr Docking of counsel in meeting these expressed views urged the court to be cautious in considering such views which were (particularly) the views of officers of the defendant, and which, he asserts, were subjective beliefs. By inference, Mr Docking calls into question the motivation of the defendant's employees in expressing such views. However, they were also the views adopted by the independent experts and most of these views are recorded in documentation outlining the system of work. There was no attack on the integrity of the defendant's employees and the prosecutor relied upon much of the evidence given by them to establish the prosecutor's case. I am satisfied the forest is a dynamic, ever changing, environment where, under identifiable criteria (see 3.4.6 Safety Standard Manual), a subjective decision is to be taken to identify a "dangerous tree" or an "obviously dangerous tree" and, under the system of work in place, if such a tree has the potential to cause harm to persons working within a forest workplace (see 3.4.6 Safety Standard Manual) it is then removed by the contractor (Site Safety Plan). I am satisfied, in accordance with the system of work in place, this was the system of work implemented at this workplace.

[66]

The Prosecutor's Submissions 44 The prosecutor in opening submissions, contended there was an obligation on the defendant to mark every dead tree in the forest to ensure safety. However, as the particulars of the asserted offence were developed in the hearing, there was a re-focus to the prosecutor's case and the charge was framed, through a reading of the particulars, to narrow the proposition originally advanced by the WorkCover Inspector Wolf that every dead tree was dangerous and to assert the defendant had an obligation to identify, document and risk assess, the "one to five dangerous trees" in the area in which Mr Heycox was working (Particulars 1-4) and there was a particular breach by the defendant in its failure to order the cessation of harvesting near "one dangerous tree" (which fell on Mr Heycox) and its failure to order that the "one dangerous tree" be removed (Particulars 5-6). The prosecutor asserts the defendant had an obligation to identify the "one to five dangerous trees" standing in the area where Mr Heycox was felling trees and asserts such an identification would have prevented, or minimised or reduced the risk. 45 The prosecutor submits there was a failure by the defendant to provide a safe system for work. It asserts "the defendant has not established, maintained and promulgated a relatively detailed system of work practice in respect of the specific five dangerous trees in the area in which Mr Heycox was harvesting timber." The defendant, the prosecution contends "left Mr Heycox with a discretion as to where he harvested timber . . . and this discretion rendered the system of the defendant unsafe". 46 As to the conduct of Mr Heycox, the prosecutor submits the focus must be on the actual risk and not the incident (see Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 (at 156-157)); the prosecution need only prove a causal nexus between any failure and the risk; the statutory obligation of the defendant cannot be diminished because of the error or negligence of an employee (WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 (at 257); Riley v Australian Hire Pty Ltd [2001] NSWIRComm 31 at [15]). The defendant in leaving a discretion to the tree feller rendered the system of work unsafe (WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121) and the defendant knowing the work was inherently dangerous had to ensure "layers of safety" were established, maintained and promulgated (WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited [No 2] (2000) 100 IR 23). 47 Further, the defendant submitted notwithstanding industry practices, a further precaution was reasonably practicable (Inspector Paul Jorgensen v Christopher John O'Keeffe and CJ & SJ O'Keeffe Building Pty Ltd [2004] NSWIRComm 397). 48 The prosecutor contends as to causation, the failures to act or the omissions by the defendant, in accordance with the Particulars (a) to (f), were a substantial and significant cause of the risk when viewed in a commonsense and practical way (Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 at [46]-[49]). 49 The prosecution restated the importance of the absolute duty imposed by the Act in relation to the question of penal liability and submitting the knowledge or belief of the defendant's employees was irrelevant. Further, as to causation, the prosecution submitted: . . . the activity of manual harvesting operations was taking place in the vicinity of the dead tree. The evidence discloses that Mr Heycox fell one or more trees in the direction of the dead standing stag that ultimately fell upon him. At least one of those trees hit that stag. Mr Heycox then worked in the drop zone of that stag removing the crowns of fallen trees . . . Nevertheless, this manual harvesting activity carried out in the forest and the factor that "Trees fall in the forest all the time" do not break the requisite causal nexus between any of the alleged failures and the risk. This is because of settled causation principles.

[67]

The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198 ("O'Sullivan") per Wright J (P), Kavanagh and Boland JJ at [41] - [50] said: 41 It must be kept squarely in mind that the risk here pleaded was the risk of employees, in particular Mrs Griffiths, being assaulted on 9 February 1999 by students demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. This was the relevant risk identified by Walton J and the appellant accepted that this was the risk but not one created by, or under the control of, the appellant. 42 The fact that a risk was not created by, or under the control of, a defendant is not to the point. Many prosecutions under the Occupational Health and Safety Act involve risks not created by the defendant. The defendant's obligation under s 15(1) of the Act is to ensure the safety of employees. That may be done by eliminating, or preventing or minimising exposure to, any risk however it may have come about or, given the defence of reasonable practicability, by taking all reasonably practicable steps to ensure employees are not exposed to the risk. … 45 Causation has to be viewed in a common sense and practical way. What has to be considered in this case, given the way the charges are framed, is whether the appellant's acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when the employee or employees were exposed to the risk. A risk might be quiescent and the measures in place to prevent exposure to the risk may be adequate but that may change because the acts or omissions of the defendant caused this to be so; the risk to health and safety may increase or become more serious as a consequence of the appellant's acts or omissions. 46 It is an untenable proposition that although a defendant was aware of a risk to health and safety it had not itself created and had taken steps to avoid employees being exposed to that risk that it, nevertheless, should not be held liable if the risk increases and the defendant did not take steps commensurate with that heightened risk to prevent harm to employees. Prior to 9 February 1999 the appellant was aware of the risk of assault and of the need to take measures to protect staff from unpredictable and violent students and did so. It cannot be successfully contended by the appellant that in circumstances where its acts or omissions led to a heightened risk of assault on a particular day in particular circumstances (if that be the case), it is not liable because the risk of assault by violent and unpredictable students was pre-existing and not of its making. … 49 In our opinion, if on an assessment of the objective facts a defendant is shown beyond reasonable doubt to have failed to ensure the health and safety of employees, and that failure was a substantial or significant cause of the risk of assault, such risk to be assessed at the time of exposure to it, or the failure materially contributed to that risk, then the causal connection is made out. 50 In Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33, Boland J found that in considering whether a causal nexus exists it is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way": see Cahill at [46]-[49]. We consider his Honour was correct in that view. . . . In the vicinity in which Mr Heycox was working, the evidence discloses there were one to five dangerous trees that were standing rotten and/or dead trees.

[70]

The Defendant's Submissions 50 Given the stated identified risk, the defendant contends the premise therein, that a standing, dead tree is, per se, "dangerous" thus constituting a detriment to safety, is a flawed premise. The defendant asserts the prosecutor has failed to establish the dead tree (stag) which fell on the deceased was a "dangerous tree" prior to the harvesting. The defendant submits the court would find there is reasonable doubt the stag which fell on the deceased was "dangerous" prior to it being hit by the 32 metre spotted gum felled that morning by the deceased. Without establishing the dead tree was dangerous the prosecutor, the defendant contends, has not met the requirements given the risk it identified, namely, the risk of injury from a standing, dangerous dead tree. 51 Further, the defendant challenges the prosecution's assertion that there were another four standing, dead trees within the harvesting area and that they were, therefore, dangerous. This, the defendant asserts, is a proposition asserted without any supporting evidence. 52 The defendant submits generally there was a comprehensive system of work in place; it was site specific; the relevant workforce was informed, instructed, trained and appropriately licensed. There was an allocation of roles within the system of work, which allocation was appropriate in the circumstance. 53 The risk was identified, known and acknowledged in the safe system of work. The defendant, as a controller on site, had a defined role to play and, through the presence of the SFO, carried out its obligation to ensure safety. Consequently, no evidence establishes a causal link between the risk identified and the Particulars (a) to (f) as pleaded. 54 The defendant submits none of the identified omissions as particularised by the prosecutor in the proceedings has been linked as a causal nexus to the risk. Any risk which arose did not arise from the defendant's omissions as pleaded. The defendant contends the following: There are three particular circumstances which, when one approaches causation, as one must from a common sense perspective, must be seen as being the principal causes of the fatal incident: a. Mr Heycox felled trees on the morning of 3 February 2005 worked in an area where the principal contractor, Paul Colebrook, did not expect him to be, such that Mr Colebrook had not completed his own assessment of dangerous trees. b. Mr Heycox felled three trees in the direction of the stag and at least one of those trees - a 32 metre spotted gum hit the stag - and hit it with considerable force c. Mr Heycox worked in the drop zone of the stag, heading the trees which he had felled after the stag had been hit and in circumstances where the likelihood that it had been hit must have been apparent to an experienced faller because of the position of the heads of the fallen trees. While the deceased, was, on all accounts, considered to be a competent, reliable and experienced operator, these events cannot be shied away from on the question of causation. The reality is that Mr Heycox was not expected to take any of these three steps and he chose to take them in circumstances where nobody else could have supervised him. . . . whether one focuses on the single stag or 1-5 of them, the prosecutor has failed to prove beyond reasonable doubt that the defendant's failures, as pleaded, were a substantial or significant cause of the risk which is alleged to have materialised when the stag fell upon Mr Heycox.

[71]

Nature of the duty 55 The submissions of both the prosecutor and defendant require the court to turn its attention to the nature of the absolute obligation imposed by the Act on a defendant to ensure safety. The burden is on the prosecutor to establish the acts or omissions, as particularised against the defendant, had a casual connection to the identified risk. 56 The absolute nature of the duty cast upon employers and others in control of the premises by the Act has most recently been emphasised by Boland J, President, in Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123. He considered the term "must ensure" safety (see s10 and s8(2)) as language indicative of Parliament's intention to impose an absolute liability offence [at 211], confirming the long line of authority of this court since Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467. Significantly, a statutory offence which imposes absolute liability is one which excludes the requirement of mens rea and the defence of honest and reasonable mistake (Jiminez v The Queen (1992) 173 CLR 572 (at 581)). 57 In Cahill, Boland J discussed the elements of causal nexus required to be proven by the prosecutor to establish an absolute liability offence under the Act as follows at [311]: 311 ... A causal nexus between each of the acts or omissions and the risk has to be proven to the criminal standard. In Newcastle Wallsend Coal Company Pty Ltd v WorkCover (Inspector McMartin) the majority ( Walton J, Vice President and Boland J; Marks J not dissenting on this point) stated in relation to causation: [301] As foreshadowed at the beginning of our discussion of failures, the parties made submissions concerning the relevant principles governing causation. The principles relating to causation in this jurisdiction are well settled: WorkCover v Kellogg (Aust) at 253; The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 at [41]-[51]; and State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [25]-[33]. In summary: (a) As we noted above at [213], the Court held in WorkCover v Kellogg (Aust) (No 1) at 253 that it is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees. It is not necessary to demonstrate a causal connection between the conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. (b) It is inappropriate to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation ( WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited and Anor at [133]; see, for example, Haynes v C I & D Manufacturing Pty Ltd at 156-7). See also The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [32]-[40]. (c) The fact that a risk was not created by, or under the control of, a defendant is not to the point: The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [42] and [44]. An employer cannot escape liability by contending simply that it did not create the risk. (d) Causation has to be viewed in a common sense and practical way and is not decided as a philosophical or scientific question; see State of New South Wales (NSW Police) v Inspector Covi at [25] and The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [45]. (e) It is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way" see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]-[50]. (f) A risk to safety that exists independently of the defendant (such as a violent criminal) may increase or become more serious as a consequence of the employer's acts or omissions. In that way, the defendant's failure may materially contribute to the risk: see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]. 58 A charge under s10(1) like s8(2) requires the controller "must ensure" safety. Both are charges of an absolute liability nature. The absolute nature of the duty also means the defendant is not entitled to rely solely upon the discretion accorded a skilled or trained employee in undertaking their work. (Cullen v State Rail Authority (NSW) (1989) 31 IR 207 and Inspector Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] 155 IR 416 at [60]). 59 In accordance therefore with these authorities, to establish an offence under the Act, the Court must firstly be satisfied as to the identification of the relevant risk to safety and, secondly, establish that the risk (as identified) was caused by the asserted actions or omissions (the conduct) of the defendant. The significance of correctly identifying the relevant risk to safety and the error in focusing on the specifics of the incident has long been cautioned against (Inspector Haynes v CI&D Manufacturing Pty and Anor (1994) 60 IR 149 (at 157-159)). 60 As Boland J in Cahill held at [311], there are categories of risk (see [58] above re reasoning in Newcastle Wallsend Coal Company Pty Ltd v McMartin (2006) 159 IR 121. However, it was also warned in Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57, that it does not assist to categorise the risk into "general" and "specific" categories as this can lead to confusion regarding just what is the relevant risk. 61 Causation has been considered by Schmidt J in WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370 at [150-151], where her Honour referred to Royall v R (1991) 172 CLR 378, Regina v Andrew [2000] NSWCCA 310 at [58] and HLA Hart and Honore, Causation in the Law. The consideration of causation as pronounced by the High Court in Royall has been discussed by the NSWCCA in Gillett v R [2006] 166 A Crim R 419 where McClellan CJ, with whom Sully and Hislop JJ agreed, said at [19]-[20]: ... the application of principles of causation in a criminal context was discussed by the High Court in Royall v The Queen [1991] HCA 27; (1990) 172 CLR 378, in which Toohey and Gaudron JJ stated at 423: "In Campbell v The Queen , Burt CJ with whom Jones and Smith JJ concurred) expressed reservations about attempting to explain causation in the context of a charge of dangerous driving causing death. His Honour said: 'It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.' Burt CJ's comments have much to commend them. In particular, there is little to be gained, but there is a risk of confusion, if the members of the jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: Regina v Butcher ; Regina v McKinnon . In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death." 20 Mason CJ (at 387), Deane and Dawson JJ (at 411-412) and McHugh J (at 440-441) also expressed the view in Royall that causation in criminal cases is to be approached by attributing legal responsibility for the relevant acts which were committed. It would follow that the mere fact of driving may be the real and practical cause of a fatal accident for which legal responsibility should be attributed to the driver. 62 That causation requires establishing a "substantial or significant" contribution to the risk is not open to question. What is meant by causation has been considered by HLA Hart and Honore in their book Causation and the Law [(2nd Edition) 1985 Oxford Clarendon Press]. In that text, the authors adopt a simple commonsense analysis of causation (at 29): ... and the cause is our action in bringing about the primary change in the things manipulated ... and: ... cause is essentially something which interferes with or intervenes in the course of events ...

[72]

I accept the term "causation" means establishing a logically necessary explanation of the connection between specific actions or omissions of the defendant that substantially caused the effect. The cause of "risk" must be found in the conduct of the defendant and distinguished from other factors which could have contributed, but not substantially caused, that effect. The required causal connection between actions and the risk is to be approached from a commonsense perspective ( Cahill at [311]; Campbell v The Queen (1981) WAR 286; (1980) 2 ACrimR 157 ) . Causation, when viewed in this way, is consistent with the explanation given by Hungerford J in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 (at 53) who saw causal nexus as requiring the court identify and specify the conduct of the defendant that caused the risk to safety but does not require identifying precisely the measures which are required of the defendant ( WorkCover Authority of NSW (Insp Keelty) v Crown in Right of the State of NSW (Police Service of NSW) (No. 2) (2001) 104 IR 268 at [18]). The particulars, as pleaded, must establish that the asserted acts or omissions create a causal nexus to the risk. Causation is satisfied when the defendant's acts or omissions, viewed in the commonsense and practical way, caused the risk as pleaded in the particular circumstances at the particular time when the employee was exposed to the risk ( O'Sullivan ). 63 Taking guidance from these authorities, the immediate cause of the incident, a tree falling, a gust of wind on a wall (Kirkby) or an armed offender (Crown in Right of the State of NSW (Police Service of NSW) or other unforseen series of contingencies which culminated in the realisation of the risk in an incident, is not the risk the court examines. In this case, the prosecution proceeded to identify the risk as the risk of persons being injured or killed as a result of being struck by "falling", standing, dangerous, dead trees. Risk, as asserted, is that a controller of a forest worksite, which forest was known to be a risky environment, failed (in the asserted ways) to prescribe correct procedures to ensure safety in such a risky environment (namely, the premises over which it had control). In a forest the ever present risk posed by dangerous trees was one clearly identifiable and well-known to the defendant, especially in considering the work performed in the forest by a tree feller. The Act imposes an obligation upon the controllers of a worksite to put in place suitable safety precautions to control or eliminate, in this case, a known risk. That is consequent upon the absolute duty imposed by the Act.

[73]

Risk 64 The dangers associated with conducting logging operations in a State forest were extensively canvassed and are acknowledged in the defendant's many safety policies and manuals. I accept it has been established the forest is a dynamic and changing environment and any tree, live or dead, has the potential to be a risk to human life and therein becomes "dangerous". Not all dead trees, however, are dangerous and some live trees can be dangerous. The level of risk posed by a tree is often defined, or even created, by the presence of, and type of, human activity conducted in the immediate vicinity of the tree. Identification of dangerous trees, before logging, is part of the system of work and there is recorded in the system criteria to assist in making that assessment. It is a subjective assessment. It was, in this case, given to the contractor who, as a matter of practice, co-ordinated with the forest tree feller - the person daily on the job and daily exposed to the risk. Against a background of an inherently risky, wild and natural environment the prosecutor asserts a tree feller is accorded too wide a discretion to risk assess his own working environment. This discretion, held by the tree feller is one which acknowledges he is the one who chooses the trees to be harvested and who determines the fall line of the tree to be logged. However, the system of work in place had a check on the tree feller in that the contractor, the employer of the tree feller, was also involved in the identify and removal procedure. Mr Colebrook told of going into an area and preparing for harvesting by removing trees and undergrowth and making snigging tracks. The evidence revealed in the harvesting operation, except for the trees marked H (habitat) or R (retention), the tree feller can choose to take most of the other trees. 65 In submissions the defendant has contended that the one particular dead tree was not "dangerous" until after it was struck by a 32 metre spotted gum felled by Mr Heycox. Much of the evidence turned upon proving how and when the standing, dead tree which struck Mr Heycox became "dangerous". 66 It is the defendant's submission that the premise, which underlines the prosecutor's articulation of the risk, is that all standing, dead trees are necessarily dangerous: that is, it is a dangerous tree by virtue of the fact that it is standing and dead. (Inspector Wolf opined that if there is a standing, dead tree, its a risk, and consideration should be given to having it removed). It is in the isolation of the concept that a standing, dead tree is dangerous that the defendant attacks the prosecution case and asserts that the prosecutor has not established that the stag which fell on the deceased was a dangerous tree prior to the morning of 3 February 2005 when it was struck by the very large spotted gum with great force. 67 I accept it is necessary, given the way the charge is framed, for the Court, in its consideration, to first determine if any, or all, of the one to five dead trees (as pleaded) identified in the harvesting area were "dangerous" (including the particular tree which struck Mr Heycox). 68 Mr Davis, the SFO, a forester with some 40 years experience, had been into the area where the dead tree (stag) stood the day before the incident with Mr Heycox, the tree feller. He did not take any particular notice of that stag : "because there were so many of them. They were just everywhere and we were used to seeing them everywhere".

[74]

It was his view, having been in the area (a wider area but which included the site where Mr Heycox was found), that the stag which struck Mr Heycox did not stand out in any way or look any different to any other standing, dead tree. He expressed the view that the stag became "quite dangerous" after it had been hit. Mr Colebrook said he recalled glimpsing the said dead tree as he drove past the area in the preceding week. He expressed the view that when he saw the tree he did not identify it as dangerous but it became dangerous when the other tree hit the bottom of it. 69 Inspector Wolf asserts, through the particulars, that there was the one particular dead tree and there were also four other trees in the area where Mr Heycox went to harvest that were dead and dangerous. Photographs were tendered. They show some other dead trees in the area. Mr Davis, the SFO, did not accept that those standing, dead trees were necessarily dangerous. Mr Beetles gave evidence that there were other trees in the vicinity which he thought should be removed but he did not identify which trees they were. Mr Colebrook Snr was never asked about other trees or whether they were dangerous. There is no evidence about what occurred in the area after the event which could be used to support the assertion. 70 The Forest Workplace Safety Standards (FWSS) Manual of the defendant directly warns of the risk to forest workers being struck by falling timber and that risk is greatly increased when the tree is dead. A tree in this condition, it is warned, can be classified as a "dangerous" tree. It is dangerous if it provides a threat to life and limb. A dangerous tree however can be any tree, alive or dead. A forest worker, identified as "the manual tree feller" and the harvesting machine operators are recognised as having the special expertise to make the requisite determination. A cautionary warning is included, namely: "if left standing, a dangerous tree poses an unacceptable risk to workers involved in a forest operation within the immediate area of the tree". 71 I find that the defendant, in its submissions, focuses too much on the particular incident (an error warned against in defending a prosecution under the Occupational Health and Safety Act) in asserting that the one standing, dead tree that struck Mr Heycox was not a dangerous tree until it was struck by a large spotted gum. From the various manuals outlining the system of work, if there is a dead tree with fire marks on it in an area where there is to be harvesting, such a tree must be assessed as to whether it is a dangerous tree given its location within the timber harvesting area and taking into account its "immediate vicinity" to trees proposed to be harvested. If it is identified as a dangerous tree, then it is to be grounded prior to the commencement of harvesting. If it is identified as a dangerous tree and it is to be retained for a specific reason (habitat, scar tree, etc.) then the harvesting operation should be relocated and, further, in accordance with the manual, if a standing, dead tree is determined to be a dangerous tree and is to be left standing, it is at this point, that it must be suitably identified and marked (the Harvesting Plan at 92 acknowledges some dead stags are to be retained). 72 Also in the manual, under "Assessment of Identified Risk", it is noted, although the word "obviously" is added to the descriptor "dangerous tree", there is referenced an acknowledgment that "risks associated with dangerous trees are directly proportional to the level of human activity conducted within the tree's immediate vicinity". The criteria is used to identify whether a tree is "imminently susceptible to fall over". There was no evidence to satisfy that the one tree, dead and fire marked, was imminently susceptible to fall over. The one tree standing dead was clearly dangerous after it was struck and then fell over. However, the fact that a tree is dead and standing is not the sole circumstance for identifying it as a dangerous tree. There is the further, and in this case critical, criteria for assessing whether a dead tree is a dangerous tree and that relates to the amount of human activity near such a tree. 73 I am persuaded that, given the size of the trees that were being felled (such as the 32 metre spotted gum) and the fact that the standing, dead tree was within the fall line of a tree to be harvested, the one particular standing, dead tree was a "dangerous" tree because of the harvesting activity conducted within the tree's immediate vicinity. I am therefore satisfied there was a risk to persons being injured or killed as a result of being struck by that one, dangerous tree that was standing dead. It was "dangerous" especially because it was dead, fire marked and stood in the "immediate vicinity" of the fall line of a tree being harvested. 74 However, I am not persuaded on the evidence that the other four trees photographed after the incident were also dangerous trees standing rotten or dead. No descriptive analysis of those trees has been given (for example, rotten, fire marked, etc.) as there was of the one particular tree. The prosecutor relies on some photographs taken after the event. Mr Beetles stated that when he went to the site after the incident he saw other dangerous trees in the vicinity which he considered should have been removed before harvesting. Inspector Wolf identified there were four other trees in the area which were standing and dead. But not all standing, dead trees are dangerous and much depends on the human activity in the area. Such would depend on where the other dead trees were standing in relation to the harvesting and the proposed fall line of the trees planned to be harvested. That is why the tree feller is given a discretion. He is the one who chooses which trees are to be harvested and who controls their fall line in the cutting, and that is why he, with the contractor with the machines on-site, is responsible for removing such trees. There is no evidence as to what other trees the tree feller planned to harvest in the area. As not all standing, dead trees are dangerous it is necessary for a dead tree to be assessed in the knowledge of what human activity is proposed in its immediate vicinity. 75 I am not satisfied, to the requisite standard of beyond reasonable doubt, that there is evidence such as to persuade there were four other standing, dead trees that were dangerous in the area where Mr Heycox was harvesting on the relevant date. Therefore, in not accepting the four other dead trees were dangerous, I find they could not have caused or contributed, by way of being a substantial cause, to the asserted risk. 76 Therefore, the "causation" element of the charge will be considered through reference to the particulars, but my consideration of the alleged failures as pleaded should only relate to the one identified standing, dead tree that was a dangerous tree due to the harvesting operation being conducted in its immediate vicinity. The consideration must proceed to determine whether the asserted acts or omissions of the defendant caused, or substantially or significantly caused or manifestly contributed to, the risk of death on injury created by that one dangerous, standing, dead tree. 77 The prosecutor, in the particulars, proposed a number of asserted failures by the defendant which, it asserted, had they been performed would have made the system of work a safer system and/or would have prevented or minimised the known risk to persons in a forest being killed or injured from one (to five) dangerous trees. 78 Any asserted failure must have a causal relationship or nexus between that failure and the risk to safety, in this case, of a tree feller (WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2)(2001) 104 IR 268 at [27]. As Walton J, Vice-President, observed in WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 (at 253): "the alleged failure must cause the detriment to the safety (the risk) of the person concerned".

[77]

These two particulars are considered together because, under the system of work in place, there is an interconnection in the preparation of the Harvesting Plan and the Site Safety Plan. 80 The prosecutor relies upon the provision in the Safety Manual in the section - "Pre Harvesting Planning" (at 3.4.6(i)) to assert when obviously dangerous trees are identified, for example, standing, dead trees, etc then those trees must be documented in the Harvesting Plan and then transferred to the contractor's Site Safety Plan. Mr Davidson, the Harvesting Planner, was asked whether it was possible for the defendant to have identified and marked all standing, dead trees in the Compartment 702. He expressed his view, as a very senior forestry officer and the relevant Harvesting Officer. He thought such a proposition was not feasible. He asserted, firstly, there are a very large number of dead trees in some areas of a forest; secondly, asking an employee (of the defendant), to spend a lot of time around such trees for the purpose of identification would, itself, be potentially dangerous. Further, the defendant's employees, he explained, do not have the equipment to remove such a hazard and if all dead trees were to be placed in a Harvesting Plan, such identification would be made a month or two ahead of the harvesting crew's actual harvesting of the forest. It was Mr Davidson's view that in the dynamics of a forest, such identification ("call") should be made by the tree feller in the field. It would be, he said, a judgement call and being in the harvesting field the tree feller was the best person, not the SFO, to make such a judgement call. The marking of a dead tree, he opined, was dependent on the type of activity in the forest and as not all dead trees were dangerous and not all live trees were safe, so again he expressed the view, the judgement is a subjective one related to activity. He gave the example of the activity which occurs over a number of weeks at a log dump. A dead tree was inherently more dangerous and more risky in that area where logs are brought after harvesting he opined. A dead tree, in an area where no such activity was to occur, could not be dangerous and, if dead, should not necessarily be removed. Further, he opined not all of the areas of a compartment were subject to the harvesting operation, therefore, a standing, dead tree would not necessarily be dangerous where there was to be no human activity presenting a risk. 81 Mr Davidson expressed concern that if an SFO took on the role of assessment and dictated to a logging crew as to which trees were dangerous, that could, in his view, "increase" the risk. Further, he pointed out SFOs have no machinery on site and they would have to contact the logging crew to instruct them to remove such trees. He expressed the view that, of all the persons associated with a harvesting operation, the only person who, by virtue of his role, could be expected to inspect each tree proposed for felling was the feller. It is important to note it is the feller who determines the fall line of each individual tree felled or proposed to be felled in the logging task. 82 Mr Dodds, the South Coast Regional Manager, denied that it was an SFO's role to identify all dangerous trees and opined the ultimate responsibility for determining whether a dead tree was dangerous and could fall (meaning as a noticeable consequence of being dead), or dangerous given work in the vicinity, was with the logging crew and was necessarily therefore a subjective decision at the relevant time. 83 I accept the relevant Harvesting Plan was a plan applying to the whole of the Compartment 207 with an area of 386 hectares and its purpose was to identify hazards which were generic to that particular Compartment rather than to identify every individual dangerous tree. 84 As the Harvesting Plan is the generic plan, I accept it is an inappropriate vehicle for the identification of individual dangerous trees given the time lag between the Harvesting Plan's preparation and the activity of harvesting, in an environment where the dynamics of a forest is ever-changing. I accept the view of the department who expressed concern that trying to identify a dangerous tree in the Harvesting Plan could create further risk given the changing dynamics of the forest. I therefore reject the proposition that the Forest Safety Standard 3.4.6 requires the specific identification of all dead trees as dangerous. It is noted that on this site the general hazard of "hang ups of limbs and branches from windstorms" was a generic hazard identified in the Harvesting Plan of the whole of Compartment 207 and that generic hazard was recorded in the Harvesting Plan and transferred from it to the Site Safety Plan as the system required. I am persuaded it would be difficult, if not impossible, for every dead tree or even every live tree to be inserted into the Harvesting Plan, without first knowing what activity was to be performed in each area of the compartment, for example, what logging activity was to be performed. 85 Alternatively, the prosecutor opined that the SFO's notes formed part of the Harvesting Plan and therefore the SFO could identify on site such trees and could record them in his notes as an amendment to the Harvesting plan. That way he could be made responsible for marking every dangerous tree. Mr Dodd gave evidence it is not feasible to amend the Harvesting Plan on this ongoing basis. An amendment to the Harvesting Plan under the system of work in place requires the signature of the Regional Manager and thousands of signatures would be required for such notations because there are thousands of dead trees in each Compartment. In that context Mr Dodd revealed he would be operating between 40 and 50 Harvesting Plans within the Southern region and such amendments would require of him thousands of signatures every year. 86 The prosecutor asserted, assuming one tree out of the one to five standing, dead trees was dangerous, "safety awareness" required each individual tree should properly have been identified in the Harvesting Plan. I find it is a misconception of the Harvesting Plan, which identifies particular generic risks, to require all specific dangerous trees, be they alive or dead, to be identified in the plan. I also accept the view of Mr Davidson that the task is best done on site at harvest and involving the SFO in the identification procedure could increase the risk especially given the time lag between the preparation of the Harvesting Plan and the active on-site harvesting operation. 87 I therefore find the assertion (Particular (a)) there was a failure by the defendant to identify and document in the Harvesting Plan the one dangerous tree that was standing dead was not a failure that caused or manifestly caused or materially contributed the identified risk to safety. 88 As to the assertion through Particular (b) that the Site Safety Plan should have recorded each of the asserted one (to five) dangerous trees in the particular area, the evidence reveals these plans were prepared with the defendant and the contractor after the Harvesting Plan was read out to the contractor and his crew by the defendant and prior to the commencement of logging in the Compartment. "Dangerous trees" were added as a hazard to the Site Safety Plan at the inspection on-site and the generic "hang-ups" were transferred from the Harvesting Plan. The Site Safety Plan then recorded it was the contractor's role to identify the particular dangerous trees and remove them. The identification of the particular dangerous tree which was hazardous in a particular harvesting area is the next step in the system and is conducted area by area as the harvesting task is performed. 89 Mr Davidson, in considering this aspect of the charge, noted it was necessary to look at the role of an SFO, namely, Mr Davis, and his work in Compartment 207. An SFO's role is outlined firstly in the Code. The Code dictates that after the Regional Manager draws up the Harvesting Plan, he arranges for an inspection of the harvest area with the licensees and distributes copies of the plan to the licensees and contractors. The Code notes the SFO may make "minor" variations to the plan in the field but only with the approval of the Forest Planner. A major variation to a Harvest Plan can only be issued with the approval of the Regional Manager. Therefore, under the Code, there is no role for the SFO to identify every dangerous tree in the Site Safety Plan. 90 Mr Dodds, the Regional Manager, gave evidence that a number of officers of the defendant marked trees and he agreed that a special mark could be prepared identifying a dangerous tree (for example, a circle with a cross marking). It was agreed by Mr Colebrook Snr that the SFO marked filter strips with orange and pink tape. (They are tracks which define the compartment area for harvesting). I have accepted it would have been difficult, if not impossible, for the other forest employees of the defendant who went into Compartment 207 to plan the harvesting operation much earlier than harvesting time, to mark every dead tree or to identify every dead tree as to whether it was dangerous. (It must also be said some live trees could be dangerous given harvesting activity). 91 The defendant therefore could not transfer identified, dangerous, dead trees into the Site Safety Plan as they are not identified at this stage of the harvesting operation, nor could they be in the Site Safety Plan, which although generic, is a more site-specific document. 92 For trees to be identified as "dangerous", be they dead or alive trees, there needs also be taken into account what activity is planned in the vicinity. The Site Safety Plan had transferred to it the hang-ups identified as hazards in the Harvesting Plan. Then on-site, the generic "dangerous trees" were identified as a further hazard. At this stage the harvesting operation is still at the planning level. There is, at this stage of the operation, no defined activity into the harvesting areas where on-site work is performed. All the authorities direct that causation is determined in the application of common sense. There is no evidence the one particular tree, which I have found to be dangerous, was even a hazard at the time of preparation of the Site Safety Plan. Could the particular tree at that stage be identified as dangerous? I do not believe there is sufficient evidence to establish the particular dead tree was falling over. Mr Beetle said the particular tree may have had a lean given where it fell, however, it had been struck with great force. If there was to be no human activity in the area such a dead tree may not have fallen over and even if it fell over would have been a dangerous tree but for the human activity on site. Therefore, until there is on-site activity, there is no way to determine whether a standing, dead tree is dangerous. There is no evidence it was about to fall simply because it was standing and dead. A number of dead trees are protected in every area and are needed for habitat. 93 I find the asserted failure of the defendant in not identifying the one (to five) dangerous, standing, dead trees and to record them in the Site Safety Plan was not a failure which caused or manifestly caused or materially contributed to the risk of injury or death to the present employee (Particular (b)).

[82]

100 Moreover, I have accepted the evidence that it is a subjective judgement made in the identification of a dangerous tree. It is a judgement made not only by taking into consideration the qualities of the particular tree (which particular tree was standing and dead with fire marks on it) but also allows for a consideration of the activity to be performed near or about that tree. It is the tree feller who chooses which trees to harvest. He cuts the tree and plans its fall line. I do not accept the proposition that it would decrease the risk if the SFO on site took on the role of identifying the dangerous trees on site or was jointly or separately responsible for that identification. Subjective judgements need to be made, generally, in the ever changing forest environment on site and particularly related to activity planned in the immediate vicinity of a dead tree. Not all dead trees are dangerous. Tree fellers have particular skills in determining which trees are to be harvested, how they could be cut and has control, through that cut, of the direction of the fall line of each tree. In the circumstance, where there was a rigorously defined role for on-site identification of dangerous trees within the system of work, I do not accept the SFO on-site, even one as qualified as Mr Davis who had been a tree feller, could have identified the dead tree as dangerous, not withstanding the defendant's concurrent responsibility with the contractor on-site for safety adding an extra level of responsibility for the identification of dangerous trees (to an SFO). I do not accept such an extra step would ensure site safety and even minimize risk. An SFO is not always at the tree harvesting site. His role is a supervisory one to ensure the contractor follows the system of work. He has no machinery to remove such trees. He does not identify what activity is planned in the immediate vicinity of a dead tree to determine if it would be in the circumstance "dangerous". He comes to the compartment each day but there is no evidence he is there all day, nor in the harvesting area each day. I do not accept this further proposed preventative step to ensure site safety is practicable nor that such a further intervention would ensure or maximise safety. 101 I find the prosecutor has failed to establish that the SFO on-site (and one who went into the harvesting area the day before the incident), in failing to identify the one (to five) dangerous trees that were standing, dead trees, caused or manifestly caused or substantially contributed to the risk to safety. 102 As to the asserted failure of the defendant to undertake an adequate risk assessment of the site, it was agreed in the performance of the system of work there was no risk assessment conducted on each individual tree in a logging compartment by the defendant or its SFO. The prosecutor asserts it was a systems failure in not requiring the defendant to routinely mark, or identify standing, dangerous, dead trees and leaving that assessment to the tree feller. The difficulty I have with this proposition is there was an alternative system in place. There was a three tier system in place for risk assessing dangerous trees on the site. The system required on-site (as a last step in the system), when an area was to be harvested, the contractor with the tree feller identify the dangerous trees in the context of their plan for the harvesting of trees in the area and then to ensure such trees, so identified, were removed with the contractor's machinery before logging is started. The task cannot be done off-site. Further, it must be done in a timetable relevant to the harvesting activity given the dynamics of a forest environment. The SFO said he was on site daily but he did not have responsibility to be there at the contractor's starting time. On the relevant date he arrived at 8.30am. The contractor's crew were working from 7.30am. The proposed insertion into the identification of dangerous trees of a third party, and a third subjective opinion from someone who is not always in the harvesting area and not a party to the planned activity on site, gives no assurance the system of work would be safer. The other two steps in the risk prevention strategy in place required generic identification of hazards in a compartment to be recorded in the Site Safety Plan. Further specific generic hazards are also identified in the Harvesting Plan. The steps for safety therefore which are integral to the system of work in place were firstly to identify generic hazards in the Harvesting Plan, then to transfer those to the Site Safety Plan and, as was done here, add further generic hazards, then go onto the site and identify particular dangerous trees, taking into account their qualities and any human activity in their immediate vicinity and, once identified, remove the trees. 103 It is not for the prosecution to re-design the system of work but rather to identify what failure of the defendant, within the system of work in place, caused or significantly caused or manifestly contributed to the risk. It was not a failure by the defendant within the system of work that there was no risk assessment of the one particular dangerous tree where logging was performed on the relevant date. It may well have been a failure in that system by the contractor who allowed his employee to enter an area not risk assessed and to begin harvesting without the identification and removal of dangerous trees in that particular area. That employer had a responsibility to ensure against the unsafe activity by even the distracted or careless employee. To assert that the defendant, through the SFO on site, whose duties do not require him to be on site at the start of work of the contractor's employees, and outside his defined role, but who also has a concurrent responsibility for on site safety, should have gone into the area, where he was simply checking when harvesting could be completed, and change the purpose of that visit to be, of its nature, a risk assessment of the area, is not an acceptable proposition. I reject the proposition that the SFO on the day before the incident, without a plan of the harvesting activity of the area, could have identified which dead trees were dangerous at this site within the wider area he inspected. I have not accepted that "the" standing, dead tree was dangerous until there was human activity in the area. I am of the view the proposition that together, the SFO and the tree feller, should have identified the dangerous trees, without the contractor, and without the tree feller actually going about his tree felling tasks of identification of trees he was going to harvest, then make a determination of the fall line of such trees for harvesting, could make the system safe and such a proposition is to invite a possible blurring of the line of responsibility. I do not accept the SFO could identify which of the dead trees in the area were dangerous, therefore he could not eliminate, prevent or minimise the exposure to the risk on the following day. 104 I reject Particulars (c) and (d), and the proposition that those asserted failures of the defendant therein, caused or significantly caused or manifestly contributed to the risk of injury or death to Mr Heycox.

[85]

The prosecutor identifies Particulars (e) and (f) as only relating to the one standing, dead tree which, when struck, was obviously dangerous and which caused the fatal injuries to Mr Heycox. The prosecutor, in closing addresses, asserted that Particulars (e) and (f) did not relate to any of the other four stags, the subject of the other particulars. The defendant asks if these two Particulars (e) and (f) are said to refer only to the particular stag that fell, this invites the question why, given that all of the five stags have allegedly constituted a detriment to safety. The question raised by the defendant is: Why would there be an obligation on the part of the defendant to require the contractor to remove the one dead tree or cease harvesting and the requirements be restricted only to one stag and not the other asserted dead and dangerous trees? If the obligation to insist upon the removal or cease harvesting relates only to one stag, the one which fell, and not the other four stags, how can the prosecutor maintain the position that the other stags constituted a detriment to safety? 106 However, these objections are overcome by my finding there is evidence only to establish that there was one tree which could be identified as a dangerous tree standing dead in the area where Mr Heycox was working. The prosecutor presses these particulars which relate only to the one dangerous, dead tree in the area so the asserted failures (Particulars (e) and (f)) are given consideration by the Court. 107 The nature of these pleadings (Particulars (e) and (f)) reveal they relate to the activities on site of the defendant's SFO at the relevant date. The defendant relies upon the evidence of Mr Davis, the SFO, who asserted he had a fairly good idea where Mr Heycox was working on his arrival at the log dump at approximately 8.30am because he could hear the noise of the chainsaw. Knowing that Mr Heycox was about 200-300 metres from where Mr Davis was working at the log dump, the prosecutor asserts Mr Davis had the power to stop work if such a work practice was unsafe. The prosecutor asserts the causal nexus to the breach arises from the defendant's conduct in failing to advise the contractor, or insist, that the harvesting operation cease (Particular (e)) in the immediate area of the dangerous dead tree and that it not proceed until the dangerous tree standing, dead was removed (Particular (f)). The SFO had been in the area where the incident occurred on the day before and had not identified the particular tree as dangerous. He did not remember the particular tree but did remember there were a considerable number of dead trees in the area. He was, therefore, unaware that there was a dangerous tree standing dead in the area. Even if it was proven that, in acknowledging from the sound of a chainsaw, the defendant knew where Mr Heycox was working, he did not know of the risk. There is no evidence he knew the area had not been cleared. While I accept the defendant, under the system of work in place, had the power to both order the contractor to cease and desist from harvesting and to order the removal of an identified dangerous tree, there is no evidence to persuade that the SFO on site knew the area had not been cleared of dangerous dead trees nor that Mr Heycox was harvesting in an area where there was a dangerous standing dead trees not removed. 108 It is asserted the defendant on site, the SFO, should have known of the standing, dead tree (risk assessed as dangerous) and have the contractor remove it or cease harvesting in the area. While the defendant could take the latter action, these allegations rely upon the knowledge of the defendant of the existence of the one particular dangerous, dead tree in the area, uncleared where Mr Heycox was harvesting. Identification is an on-site role for those who conduct the harvesting operation. Had the SFO been able to identify the one standing, dead tree at the on-site visit the day before as dangerous and marked it in that knowledge he should have ensured such a tree was removed before harvesting. But those are not the facts. This matter is distinguished from the facts considered in Kirkby where the particular risk was known: there was a braced wall which could fall. Here the circumstance is, whilst it is known dead trees can be dangerous, it was not known by the defendant that Mr Heycox was in an uncleared area and exposed to a dangerous, dead tree. 109 In the circumstances, I find while there was a failure on the part of the defendant to order a dangerous dead tree be removed and until the removal order harvesting cease, such failures did not cause or significantly cause or manifestly contribute, on the relevant date, to the risk suffered by Mr Heycox. 110 The prosecution made a further general assertion that under the system of work in place the discretion given to a tree feller is too wide. This was not particularised as an asserted failure but referred to in submissions. I do not accept this proposition. All of the evidence supports the fact that it is the tree feller who is the person with the most expertise on site, who controls the actual harvesting operation in the selection of the trees to be harvested (avoiding trees marked for habitat, etc.) who logs those trees, and is the person on site who, along with the contractor, identifies trees in the context of proposed activity then determines whether they (be they alive or dead) could be considered "dangerous". The tree feller, however, does not stand alone in making that decision. The contractor, his employer, is involved in the process of identifying and knocking over such trees. 111 The prosecutor properly conceded an employer cannot obtain "a shelter" from using an unsafe manual or one that permits dangerous work procedures. However, the prosecution adopted in its pleadings the relevant system of work and opines the asserted failures were failures to require further levels of activity by the defendant into the system but I find the prosecution has not established the work procedures in place were dangerous; nor that the manuals (on which it relies) outlined unsafe procedures; nor was it proven to the relevant onus that such proposed further activities would have made the system of work safer; nor that the proposed activities would have minimised or eliminated the recognised risk. 112 Further reliance was placed on the post incident activity of the defendant to assert there were established steps, measures and procedures to make the system safer. However, those activities were a reinforcement of the inherent safety procedures within the existing system of work, for example, further to Tool Box Talks, reintroducing 3.4.6 of the Forest Workplace Safety Manual (to the contractor), retraining of forest employees through ELITT. Such evidence is not sufficient to satisfy there were further steps available to the defendant to minimise the risk.

[86]

Conclusion 113 The prosecutor carries the onus to prove, beyond reasonable doubt, that by the asserted failures, that is, by not so acting, the defendant caused or significantly caused the risk. The prosecutor has asserted a number of failures, none of which, on the evidence, would have prevented or minimised the risk on the relevant day to a tree feller. In fact, from the evidence of a number of experienced foresters, those failures, if acted upon, could have made the task of harvesting more of a risk. Requiring there be inserted into a carefully designed and controlled system of work, a third subjective opinion from a third party, not always at the on-site harvesting area and not involved in the planned activity on site in the immediate vicinity of any particular tree to allow identification as to which tree was "dangerous", would not make the system of work the safer one. I do not find there is evidence sufficient to establish, beyond reasonable doubt, that in requiring the defendant to identify dangerous trees in the Harvesting Plan, the Site Safety Plan, on-site in the SFO's notes or by risk assessing dead trees without knowing the harvesting activity planned, the system of work would have been made safer. Further, on the relevant date, to assert a defendant who had no knowledge of the existence of a particular dangerous tree and no knowledge that harvesting was being performed in an uncleared area, should have ordered cessation of a harvesting operation and ordered the removal of an unknown dangerous tree, is to demand conduct that would be impractical. In the application of common sense to the circumstance related, I reject that the asserted failures relied upon by the prosecution on the relevant date caused or manifestly contributed to the risk of injury from a dangerous, dead tree. 114 While, as a controller of the site, the defendant does carry a concurrent obligation with its contractors on its worksite to ensure safety, the fact of an incident, even a tragic fatality, however, is not proof of a breach of the Act by a defendant. There may well have been a failure of the defendant to properly supervise the contractor. That is not a breach which has been asserted or pleaded, nor canvassed in the evidence. I find the asserted failures did not cause the risk to the safety on this worksite.

[87]

Alternative charge under s8(2) 115 Alternatively, it is alleged the defendant failed under s8(2) as an employer to ensure persons other than its employees (persons such as Mr Colebrook and Mr Heycox) were not at risk given the conduct of the defendant's undertakings (harvesting of its forest) while they were at its place of work (the forest). The particulars relied upon were those as asserted under the s10(1) charge. The elements of a charge under s8(2) require evidence to establish: 1. the defendant was an employer; 2. there were persons, not employees exposed to risks to their health and safety; 3. the risk arises from the defendant's undertaking; 4. the exposure to the risk was at the defendant's place of work. 116 However, the mere occurrence of an incident or a detriment to the safety of persons at a worksite does not establish an offence. The same asserted failures are relied upon to establish this asserted offence. Such failures must have a causal nexus to the risk. The defendant had recognised the risk and put in place procedures to detect and eliminate the risk. The proposition of the prosecutor is that the defendant should change that system to insert another person's subjective opinion, that of a defendant's employee, into the system in a concurrent role to identify and mark dangerous, dead trees in areas to be harvested, and that such failures caused or significantly caused the risk. For the reasons above, including the defendant's lack of knowledge of the activity to be performed in the immediate vicinity of each dead (or live) tree, I find none of the asserted failures by the defendant caused or contributed to the risk at its worksite of any person and there was, therefore, no breach of the Act under s8(2). 117 I am of the view the prosecution has failed to prove there was a place in the system of work for an added level of activity, by giving an employee of the defendant who is not always in the harvesting area a similar role to that given to the tree feller and contractor on site. The prosecutor's submission that an added level of activity should, in the circumstances of it carrying a concurrent responsibility for safety, be inserted into the system of work, is rejected. There is no evidence to satisfy such a step would make the system of work safer. Rather, I accept the evidence such an additional activity could cause a blurring of the responsibility of the most elemental, vital and essential step in the system of work for harvesting a forest, namely, the identification and removal of dangerous (dead) trees. 118 This circumstance is distinguished from that considered by Haylen J in Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIRComm 16, where a member of a contractor's crew entered a forestry site where a tree feller had harvested a tree which had not yet fallen to ground. The tree feller did not warn the crew member not to enter the harvested tree's drop area. The crew member was struck by the falling tree. It was found the system of work was not followed and the employer (contractor) failed to ensure instructions for safe working were carried out. The defendant here has not been charged with a failure of his obligation to supervise the contractor. Rather, the prosecutor has identified asserted failures by adopting the system of work in place and defining a new role for the defendant within that system. 119 There was no failure by the defendant through a breach of either s10(1) or s8(2) of the Act in not performing such new roles designed for it by the prosecutor under the system of work in place which roles it pleaded as asserted failures. I find no failure of the defendant as pleaded caused, or manifestly caused, or substantially caused, or significantly contributed to the risk to the safety of others on site or of the risk to Mr Heycox which risk became a tragic reality on 3 February 2005. 120 I dismiss the charges in Matter No. IRC 115 of 2007.

Inspector Wolf v The Forestry Commission of NSW t-as Forests NSW

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Judgment (89 paragraphs)

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Cases Cited (29)

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