McColm (Department of Regional NSW) v Tucker

Texts Cited: The Law of Torts, 1957 Edition

Category: Principal judgment

Parties: Andrew McColm (Department of Regional NSW) (Prosecutor)
Robert John Tucker (Defendant)

Representation: Counsel:
M Cahill (Prosecutor)
P Barry (Defendant)
Solicitors:
Lander & Rogers (Prosecutor)
DWF (Australia) (Defendant)

File Number(s): 2023/157572

Publication restriction: None

Judgment

Introduction

1. Robert John Tucker (the defendant) has pleaded not guilty to an offence that as a person with a work health and safety duty imposed by s 28 Work Health and Safety Act 2011 (the Act), that he failed to comply with that duty and thereby exposed Matthew Richens to a risk of death or serious injury, contrary to s 32 of the Act.

2. On 24 May 2021 the defendant and Mr Richens were working at the West Wyalong Quarry operated by Regional Quarries Australia Pty Ltd (RQA) situated on Wargin Road, West Wyalong, New South Wales (the Quarry). On the morning of the incident, the defendant was the driver of a white Nissan 4WD Utility registration number BQ 77 YP (the vehicle) and was ferrying workers from the workshop near the front entrance of the Quarry to the area where a new crush plant (the NCP) was being constructed, which was opposite the existing or old crush plant (the OCP). At about 7.05am, the defendant drove Mr Richens to the NCP, where Mr Richens was going to perform welding work at the OCP. When they arrived at the NCP, Mr Richens alighted from the passenger seat of the vehicle and walked about 10m to the left towards the OCP before crouching down to pick up a number of items that had been left on the ground in the area between the OCP and the NCP. The defendant alighted from the driver’s seat of the vehicle and spoke to other workers about starting a forklift that was parked immediately under an overhead conveyor which was part of the NCP. The defendant got back into the vehicle to drive back to the workshop to retrieve a set of jumper leads. He performed a U-turn in the vehicle by turning to the left to head back in the opposite direction to that which the vehicle had been facing. After travelling about 10m, the vehicle collided with Mr Richens who was still in a crouching position with his back to the vehicle. The front of the vehicle hit Mr Richens in the back and continued to drive over Mr Richens who went under the vehicle. The defendant stopped the vehicle after a short distance. Mr Richens stood up and walked a few steps before hunching over and then collapsing to the ground. Emergency services attended, but Mr Richens died at the scene from his injuries.

Issues

3. The defendant admitted that he owed a duty pursuant to s 28 of the Act. The issues in the case are:

4. Did the defendant fail to comply with his health and safety duty by failing to take the steps particularised in [21] of the Summons? (Element 2)

5. Did the defendant’s failures expose Mr Richens to a risk of death or serious injury? (Element 3)

Summary of conclusion

4. For the reasons that follow, I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence. It follows that I will find the defendant guilty.

The Evidence

5. The evidence consisted of the tender of documents and oral evidence from the following witnesses:

6. Mitchell Cassidy, a welder employed by RQA who worked in the workshop at the Quarry and reported to the defendant.

7. Brett Hunter, an electrical contractor employed by JLE Electrical (JLE) to work on the construction of the NCP.

8. Belinda Wheatley, the OCP operator employed by RQA.

9. David Faul, an electrical contractor engaged by JLE to supervise the JLE workers at the Quarry.

10. Gary Connell, the statutory mine manager for the Quarry at the time of the incident.

11. Andrew Apolony, the Operations Manager of the Quarry.

12. Aiden English, an apprentice electrician employed by JLE.

13. Jason Gill, an investigator employed by the Resources Regulator.

Credit

6. Before turning to finding facts based on the evidence, it is necessary to make some findings about the credit of the witnesses called to give evidence.

Prosecution witnesses

7. Mr Cassidy gave evidence that he had a limited recollection of relevant events. On some occasions he was assisted by being shown contemporaneous documents, but not always. His lack of recall fluctuated. On a number of occasions he answered a question demonstrating some relevant knowledge, but then claimed a lack of recall to the follow-up questions. Mr Cassidy worked closely with the defendant in a small team of four or five at the Quarry and had done so for about two years prior to the incident. I formed the impression that in his evidence Mr Cassidy was trying his best not to give an answer that might implicate the defendant. I have some significant hesitation in accepting Mr Cassidy’s evidence, because I am satisfied that he was not doing his best to give truthful and complete evidence.

8. Mr Hunter commenced work on the NCP at the Quarry about eight days before the incident. He was in the vicinity when the incident occurred. Mr Hunter was a precise and careful witness and I have no hesitation in concluding that he was a witness who was trying to do his best to tell the truth, and I generally accept his evidence. By reference to the objective evidence provided by the video and the photographs of the scene taken after the incident, I am satisfied that Mr Hunter’s evidence was not entirely accurate as to his description of where Mr Richens was crouching by reference to the original position of the vehicle. To be fair to Mr Hunter, he stated in the course of giving his evidence that he was not confident about that aspect of his evidence-in-chief and when he was asked to draw the approximate locations of Mr Richens and the vehicle on a photograph of the scene taken after the incident.

9. Ms Wheatley was stationed in the control room of the OCP for each shift. She commenced work at the Quarry in March 2021. Ms Wheatley was a good witness and I accept her evidence.

10. Mr Faul commenced work at the Quarry in about April 2021. He was inducted to the site by Mr Connell. Mr Faul was a careful and considered witness and I accept his evidence.

11. Mr Connell was appointed as the production manager at the Quarry in about September 2020. In early 2021, he acted as the general manager at the Quarry and was nominated as the statutory mine manager. From about that time, he conducted a number of inductions at the Quarry. Mr Connell took issue with the fact that he was at a site safety meeting on 26 February 2021, because to his recollection, he was on holidays at Fingal Bay at that time. Not much turns on whether Mr Connell was at that meeting or not. The minutes of the meeting speak for themselves as to the safety issues that were being discussed relating to the construction of the NCP. I am satisfied that Mr Connell was trying to assist the Court and that I should accept his evidence.

12. Mr Apolony was the statutory mine manager for the Quarry from about late 2018 when it was acquired by RQA, until about February 2021 when Mr Connell took over that role. Mr Apolony conducted a number of inductions at the Quarry including those of Mr Richens and the defendant. Mr Apolony was also responsible for developing some of the safety policies in force at the time of the incident. Mr Apolony was a good witness who gave his evidence in a straightforward and candid manner and I accept his evidence.

13. Mr English was in the vicinity of the NCP at the time of the incident and made some limited observations of relevant events. Mr English gave his evidence by audio-visual link because he was travelling in Spain. I am satisfied that Mr English was trying to do his best to tell the truth and I accept his evidence.

14. Mr Gill was the lead investigator for the incident on behalf of the Resources Regulator from about October 2021, when he took over from another investigator. No issue was taken with Mr Gill’s credit and I accept his evidence.

Facts

15. The following paragraphs represent my findings of fact, unless stated otherwise. The facts are of relatively short compass. The parties tendered a substantial Agreed Statement of Facts, which I have taken into account. It is not necessary to set out the evidence in that document verbatim.

16. The incident was captured on surveillance video of reasonable quality which I will return to.

Background

17. The Quarry was a mine within the meaning of s 6 Work Health and Safety (Mines and Petroleum Sites) Act 2013 (the WHSMPS Act). RQA was the nominated mine operator pursuant to s 7A of the WHSMPS ACT. In May 2021, Mr Connell was the nominated mine manager.

18. The Quarry was an open cut hard rock mine extracting meta-basalt that was crushed into different sizes and sold for use as aggregate and road base.

19. The product was extracted from the pit at the Quarry by large articulated front-end loaders and transported by large articulated dump trucks to the OCP for processing, before being stored in stockpiles of different size product. The articulated dump trucks and front-end loaders were referred to as heavy mining equipment (HME) in the relevant safety documents at the Quarry. At the time of the incident, the OCP was being used for production while the NCP was being constructed.

20. The defendant was the workshop manager and responsible for supervising the welders including Mr Cassidy and Mr Richens and the work undertaken in the workshop. The defendant held a Heavy Vehicle Drivers Licence (HDVL), that qualified him to operate multi-combination vehicles such as road trains and B-doubles.

Construction of the NCP

21. Construction commenced on the NCP in about October 2020. The NCP was about 200m in length and it originated in the pit. The NCP consisted of a conveyor and elevator system that transported product directly from the pit to the crushers in the NCP, through a series of sieves and eventually to a number of overhead conveyors that could be used to load products directly into trucks.

22. Components of the NCP such as the new conveyors and the new screen plants were fabricated on site in the workshop of the Quarry and then transported to the construction site of the NCP for erection.

23. JLE Electrical was an electrical contractor engaged to carry out electrical work involved in the construction of the NCP and to perform maintenance work on the OCP. At the time of the incident there were six JLE workers at the Quarry, who were supervised by Mr Faul.

24. The OCP and part of the NCP ran parallel to each other over about 100m. There was a gap between the OCP and the NCP of about 25-35m.

25. The gap between the OCP and the NCP was used as a traffic thoroughfare by a number of vehicles including:

(a) light vehicles used by the workers to transport workers, tools and equipment to the construction site of the NCP. These workers drove from the front entry of the Quarry and the workshop and parked in the thoroughfare in the vicinity of the NCP; (b) light vehicles used by workers at the Quarry involved in sales and production; (c) Heavy Mining Equipment (HME) in particular a large articulated dump truck driven by Dave Flanagan to take product from the OCP to the stockpiles; and (d) other assorted vehicles and mobile plant used in the construction of the NCP including a service truck fitted with welding equipment, a mobile crane and a forklift.

26. The thoroughfare was marked as a designated route to the pit on the Quarry’s Traffic Management Plan (TMP).

27. Workers involved in the construction of the NCP, including the welders and the JLE workers, regularly worked on foot in the vicinity of the NCP and occasionally walked between the NCP and the OCP, traversing the thoroughfare, to undertake their allocated tasks.

28. The construction of the NCP was “high risk construction work” within the meaning of cl 291 Work Health and Safety Regulation 2017 (the Regulations) because the construction of the NCP was being carried out:

(a) adjacent to a traffic corridor used by traffic other than pedestrians; and (b) in an area of a workplace where there was movement of powered mobile plant, including HME and light vehicles.

Systems of work at the Quarry prior to the incident

Principal Hazard Management Plan

29. RQA had in place a safety system which included a Principal Mining Hazard Management Plan (HMP). The HMP identified the hazards arising from the interaction between vehicles, mobile plant and pedestrians on the Quarry.

Safe Work Method Statements (SWMS)

SWMS – New Plant Build No 104

30. On or about 13 October 2020, RQA developed a Safe Work Method Statement (SWMS) relating to the construction of the NCP that was prepared by Andrew Apolony, the Quarry Manager, and the defendant (the New Build SWMS).

31. The New Build SWMS identified the hazard posed by collisions between light vehicles, HME and pedestrians in steps 2 and 7 of the work method that related to the arrival and departure of workers from the NCP construction site.

32. The specified control measures were:

33. Pos Com UHF 10 (a reference to positive communications which is dealt with below)

34. Flashing lights

35. UHF

36. Call up when approaching HME

37. TMP

38. Emergency response plan

39. Escorted visitors

40. Exclusion zones

41. Park up areas.

42. On 13 October 2020, the defendant was trained on the New Build SWMS.

SWMS – Conduct light vehicle operation No 11

34. On 25 February 2021, RQA developed a SWMS relating to the operation of light vehicles at the Quarry (the LV SWMS).

35. The LV SWMS identified the hazard of light vehicles colliding with other vehicles, plant or pedestrians at the Quarry.

36. The specified control measures were:

37. All vehicles must have an operating amber flashing light

38. Always contact the foreman or supervisor before entering any unfamiliar work area

39. All vehicles must park at least 30m from any HME

40. All designated light vehicle parking on site is reverse parking only

41. Light vehicles must give way to all HME

42. Speed limit 40km/hr (or in line with site rules where appropriate)

43. Pedestrians must be vigilant of all mobile equipment at all times and use designated walkways where provided

44. Eyes and mind on task whilst on foot within operational areas.

45. The defendant reviewed and was trained on the LV SWMS on 25 February 2021. There was no evidence that Mr Richens was trained on the LV SWMS.

Induction training

38. Workers were required to undergo induction training when they first worked at the Quarry. Induction training consisted of workers being taken through an Induction Manual that was presented as a set of PowerPoint slides in printed form.

39. In early 2021 there were COVID-19 precautions being taken at the Quarry and this impacted how induction training was undertaken. For example, when Ms Wheatley commenced working at the Quarry in March 2021, the induction material was forwarded to her to read and it was not delivered orally. In contrast, oral inductions were presented to Mr Faul in April 2021 and Mr Hunter in May 2021. Those inductions were presented by Mr Connell.

40. The induction training identified the hazard to workers of being struck by mobile plant and/or light vehicles at the Quarry.

41. The induction training contained a set of Site Rules, that included the relevant rules:

42. You must wear personal protective equipment as directed by your site supervisor (minimum requirements include hard hat, high vis shirt/vest & safety boots).

43. Please be aware of mobile plant at all times (traffic will abide 40km/h site speed limit).

44. Seat belts must be worn in vehicles at all times; Positive communication protocols are required on site (UHF channel 10).

45. Please familiarise yourself with the site map including traffic flow, first aid kits and emergency assembly points.

46. The induction training material included the West Wyalong TMP. The TMP consisted of an aerial photograph of the Quarry as a site map marked with traffic flows and a set of dot points beside it. The top right hand corner of the photograph was marked with a 40km/hr speed limit for the site. The dot points stated:

47. UHF Channel 10

48. Light vehicles must have a flashing light and UHF

49. HME has right of way

50. Positive communication must be observed

51. A TMP will be issued on completion of the induction

52. If your vehicle is not equipped with flashing light or UHF, one will be issued by site, failure to return will be charged to you!!

53. The relevant control measures identified in the induction training related to the use of amber flashing lights on vehicles and mobile plant used at the Quarry and the use of UHF radios to engage in positive communications. I will deal with the evidence relating to these requirements in turn.

Flashing lights

44. It was a requirement that each light vehicle driven on the Quarry have installed amber flashing lights on its roof and that the flashing lights be activated while the vehicle was being driven on the Quarry.

45. On occasions, if a supervisor observed a light vehicle not to have the flashing lights activated, a call would be made over the radio to the driver of the light vehicle to activate its flashing lights.

46. If a vehicle being driven on the Quarry did not have flashing lights fitted to it, a portable flashing light was available at the front office that could be placed on the roof of a vehicle and was powered by connection to the 12-volt port in the vehicle.

Positive communications

47. There was no written procedure at the Quarry to define the meaning of positive communications. There was some divergence of understanding as to what was required by positive communications amongst the witnesses.

48. In the relevant period, Mr Connell and Mr Apolony were responsible for inducting workers at the Quarry. Some of the workers, such as Ms Wheatley and Mr Faul, may have gained their understanding of what was required by positive communications from other workplaces.

49. Mr Cassidy’s evidence was that positive communication required an announcement made over the radio when driving a vehicle, stating that he was going to drive from point A to point B. He did not think it was a requirement to remain stationary in the vehicle and to wait for a response. Mr Cassidy’s evidence was that he did not consistently practice positive communication while driving a vehicle at the Quarry.

50. Mr Hunter’s evidence was that his understanding of positive communication was that he used a two-way radio to tell other workers where he was about to go when driving a light vehicle. After those communications, he testified that he normally proceeded without remaining stationary or waiting to receive a response. He believed that positive communication was predominantly for vehicle-to-vehicle communications but also applied to pedestrians. Mr Hunter understood that if he was working on his own, he was required to carry a two-way radio to listen for positive communications of vehicle movements.

51. Ms Wheatley stated that positive communication involved making a radio call to announce where a person was going from one place to another and then waiting to receive a response. On some occasions she walked from the OCP control room back to the front entrance of the Quarry at the end of her shift. When she did so, her practice was to make a radio announcement from the control room and then to proceed without waiting for a response. Ms Wheatley knew that there were handheld radios available from the office but she did not use one if she was walking to or from the OCP control room to the front entrance of the Quarry or vice versa. She did not believe that there were enough handheld radios for her to take one for that purpose and for most of her shift she could use the radio in the OCP control room. Ms Wheatley believed that the positive communication procedure applied to the movements of pedestrians and vehicles.

52. Mr Faul believed that positive communication involved getting a response over the radio after making an announcement. His evidence was that this was particularly the case if you were approaching a piece of HME in a light vehicle. He did not think that positive communications applied to pedestrians.

53. Mr Connell gave evidence that positive communication was used to describe where a person was driving to over the radio. He did not think a response was required. During the inductions he conducted, he explained positive communication as a method of informing each other at the site where individuals were headed.

54. Mr Apolony stated that positive communication applied to both vehicles and pedestrians, requiring everyone at the site to notify others that they were leaving point A to go to point B. He did not give evidence that it was necessary to wait for a response. If someone did not comply with the positive communications procedure, Mr Apolony gave evidence that it was everyone’s job to make sure that the procedure was complied with.

55. Based on all of the evidence, I am satisfied that the Quarry had in place a positive communications procedure that required the driver of a vehicle on the Quarry to make a radio announcement that the person was driving from say for example, the NCP to the workshop. I am not satisfied that there was any requirement to wait for a driver to wait for a response before embarking on the intended journey. I am satisfied that there was a practice of waiting for a response where a light vehicle approached a piece of HME. The reason for this was that the HME used at the Quarry had limited visibility of light vehicles and in general, and it was a requirement that light vehicles give way to HME. It was rare for pedestrians to have a handheld UHF radio to use for the purpose of engaging in positive communications and I am not satisfied that if the workers understood the requirement to apply to pedestrians in this way.

Site safety meetings

56. Monthly site safety meetings were held for workers employed by RQA, that were presented by the statutory mine manager. The minutes for the three meetings immediately before the incident were in evidence. The minutes of the monthly safety meetings were posted on the noticeboard of the crib room. Some of the witnesses were taken to the minutes of those meetings, but they did not add much, if anything, to the content of the minutes.

57. On 26 February 2021 at a site safety meeting the minutes noted that the entry to the pit near the construction site of the NCP had been closed by the use of traffic cones and building an earth bund. The defendant was recorded in the minutes as present at this meeting.

58. On 26 March 2021 at a site safety meeting, the minutes contained the following relevant entries (as written):

We still have signs out for the construction of the new plant. Please keep in mind that there are a lot of people working in certain areas and to always be aware of your surroundings.

We have brought in more handheld UHF to help as well.

Please till be aware of the construction site, come and grab a hand held UHF for everyone safety. Also we don’t walk around the stockpiles without having someone call out over the radio. Big machine don’t see little people.

59. The defendant was recorded in the minutes as being present at the 26 March 2021 site safety meeting.

60. On 16 April 2021 at the site safety meeting, the minutes contained the following relevant entries (as written):

Construction site: The new crushing area is still a construction sites until further notice. Handheld UHF’s can be picked up from the office. One person in each working group should have one on them.

61. The minutes of the 16 April 2021 site safety meeting recorded the defendant as absent.

The incident

62. On 24 May 2021, the workers attended a pre-start meeting at the front office of the Quarry.

63. After the pre-start meeting, the defendant drove Mr Cassidy to the OCP in the vehicle. At the OCP, the defendant showed Mr Cassidy the maintenance task that was required to be undertaken at the OCP on that morning, before production could commence.

64. On his return to the front office, the defendant collected Mr Richens and drove him to the vicinity of the NCP. When the vehicle arrived in the vicinity of the NCP, the amber flashing flashing lights were not activated.

65. The thoroughfare ran roughly in a north-south direction. The video footage was taken from a fixed camera on a building to the north of the site where the incident happened. Looking south, the NCP was to the west (on the right) and the OCP was to the east (on the left).

66. The NCP at the northern end consisted of a raised white sieve from which a number of yellow overhead conveyors extended east and west, that were supported by steel frame work that also provided workers access to the components of the NCP.

67. A mobile crane was parked on about a 45 degree angle to the thoroughfare facing approximately south-west between the second and third eastern overhead conveyors of the NCP. The hook of the crane was attached to the third overhead conveyor to hold it up. Parked about 5m in front of the mobile crane was a forklift. The tynes of the forklift were facing approximately north and it was parked directly underneath the third overhead conveyor. The service truck that had the welding equipment mounted on it was situated under the western overhead conveyors of the NCP.

68. When the defendant arrived at the NCP he parked the vehicle on an angle to the thoroughfare, to the east of and approximately parallel to the mobile crane, so that the vehicle was facing approximately south-west.

69. Mr Richens exited the vehicle and retrieved something from the tray of the utility. He then walked in a straight line from the middle of the vehicle and almost perpendicular to the door where he alighted from, travelling in approximately an east-south-easterly direction. He walked about 10m, before crouching to pick up a container of nuts and bolts that had been left on the ground. When crouched down, Mr Richens was facing approximately east and predominantly had his back to the vehicle. Mr Richens did not have a handheld radio with him.

70. The defendant exited the vehicle and spoke to Mr English, who was having difficulty starting the forklift and asked him for a jumpstart. The defendant then went to the service truck to look for a set of jumper leads, where he was told by Mr Cassidy that they were in the workshop.

71. About 1–2 minutes after arriving at the scene, the defendant returned to the vehicle and got into the driver’s seat. He did not activate the vehicle’s amber flashing light and did not make an announcement over the radio as to where he was going. When the defendant got into the vehicle Mr Richens was still crouching in the same position.

72. The defendant told the police in a recorded interview with them that he looked in the rear view mirror and over his shoulder to see if there were any vehicles behind him before commencing to perform a U-turn. He also told the police that there were no impediments to his vision, including the sun. The defendant estimated that Mr Richens was crouched about 10-15 feet from the vehicle, but the video footage demonstrates he was further away than that.

73. The defendant drove the vehicle forwards and immediately turned the vehicle hard left to perform a U-turn and to travel north towards the workshop. The vehicle travelled in an arc, before the front of the vehicle hit Mr Richens in the back while he was crouched down. The impact knocked Mr Richens forward and the vehicle proceeded to drive over him. After driving a few metres after driving over Mr Richens, the defendant stopped and got out of the vehicle and went to Mr Richens' aid.

74. Mr Richens got up off the ground and walked a few steps in a westerly direction towards the NCP before hunching over and then collapsing on the ground where other workers came to his aid.

75. A short time after the incident, the vehicle was moved. It first travelled to the front office to retrieve a defibrillator and then it travelled again to the front entrance to escort the ambulance to where Mr Richens was. It was unclear from the evidence who drove the vehicle on those occasions, but it does not matter, except to say that the amber flashing lights were operating on those occasions.

Events after the incident

76. The defendant attended West Wyalong Hospital with Senior Constable Mealing to provide blood and urine samples, which returned negative results for alcohol and drugs.

77. Later on the day of the incident, the defendant participated in a recorded interview with Detective Senior Constable (DSC) Ferris and DSC Harrison at West Wyalong Police Station.

78. The defendant gave his account of the incident which I have already included in my findings of fact relating to the incident.

79. Police later made enquiries that confirmed that the defendant was not using his mobile phone at the time of the incident.

The Relevant Law

The offence

80. Section 32 of the Act provides:

A person commits a Category 2 offence if:

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

81. The elements of the s 32 offence for a breach of the s 28(b) duty are:

82. Element **(**a) - The defendant was a worker who engaged in conduct “while at work”.

83. Element **(**b) - The defendant failed to take reasonable care that his or her acts or omissions did not adversely affect the health and safety of other persons; and

84. Element **(**c) - The defendant’s breach of duty exposed an individual to a risk of death or serious injury.

The s 28(b) duty – duty of a worker to take reasonable care

82. Section 28 of the Act provides:

While at work, a worker must--

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

83. I determined the scope of the s 28(b) duty at length in Safework NSW v Scharfe [2021] NSWDC 260. The parties have not put in issue the consideration of that issue set out in [62]-[96] of that judgment. What follows are my conclusions set out in Scharfe on the scope of the s 28(b) duty.

84. A worker’s duty under s 28(b) of the Act is to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, is a duty not to expose those persons to a risk of injury as a result of the immediate conduct of the worker.

85. The primary duty owed by a PCBU pursuant to s 19 of the Act is to eliminate or minimise risks to a person’s health and safety if that is reasonably practicable to do so. The s 28(b) duty is intended to be complimentary to the s 19 duty, by imposing obligations on a worker to assist a PCBU to ensure safety, so far as that is reasonably practicable, by co-operating in the elimination or minimisation of risk.

86. The scheme of the Act is to ensure the health and safety of workers and other persons by the elimination or minimisation of risks to health and safety. It is clear from the scheme of the Act that it is intended to impose obligations on PCBUs, workers and others to act before a risk arises and well before a person could be injured or killed.

87. The extrinsic materials stated:

(a) that the worker’s duty would be to exercise reasonable care that his or her acts or omissions did not expose any person to a risk to their health and safety; (b) the scope of a worker’s responsibility is proportionate to the control that the worker is able to exercise over the work activities and the work environment; [1] and (c) a worker’s ability to take active measures for the health and safety is limited to their immediate conduct in acting in their role within the PCBU. [2]

88. It is clear that a PCBU’s duty to ensure safety by eliminating all risks, if that is reasonably practicable to do so, does not apply to a worker. The s 28 duty is not a duty “to ensure health and safety” and accordingly ss 17 and 18 do not apply to it. It follows that, a worker does not have to exercise reasonable care to eliminate or minimise all risks to another person at a workplace. The s 28 duty requires that a worker must not expose a person to a risk to their health and safety arising from their own acts or omissions.

89. The standard of the s 28 duty is to exercise reasonable care and is a lower standard than that owed by a PCBU to ensure the health and safety of a worker, in so far as that is reasonably practicable.

90. The standard of the s 28 duty to exercise reasonable care is also lower than that owed by an officer of a PCBU pursuant to s 27 of the Act, because it is a duty to “ensure” that the PCBU complies with its duty or obligation under the Act. Section 27 of the Act relevantly provides:

(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

…

(5) In this section,

"due diligence" includes taking reasonable steps--

(a) to acquire and keep up-to-date knowledge of work health and safety matters, and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example--: For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include--

• reporting notifiable incidents,

• consulting with workers,

• ensuring compliance with notices issued under this Act,

• ensuring the provision of training and instruction to workers about work health and safety,

• ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e).

91. An “officer” of a PCBU is defined in s 4 of the Act to mean an officer within the meaning of s 9 Corporations Act 2001, which includes:

…a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation… [3]

92. It follows that a worker’s duty does not include the duty to ensure that the PCBU complies with its duty or obligation under the Act or has in place the means to do so.

93. The lower standard of care reflects that a worker has less influence and control over the system of work than that of a PCBU, because a PCBU implements the system of work, provides the plant and determines the conditions in which the workers will work.

94. It also reflects that a worker has less authority over a PCBU than an officer of a PCBU and is usually not in a position to authorise the expenditure of funds on safety equipment or to devise and implement safe systems of work.

95. Section 28 of the Act recognises that a worker may put themselves or others at risk by their acts or omissions at work, and a worker whose conduct demonstrates a lack of care or attention or does not comply with a work safety rule or who does not cooperate in safety matters, will be in breach of the duty.

96. An element of the s 32 offence by a breach of s 28 is that the prosecution must prove that the worker has exposed the person to a risk of death or serious injury.

97. The phrase “reasonable care” is not defined in the Act but has an established meaning at common law. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 Mason J (as his Honour then was) stated:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man is response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

Reasonable foreseeability

98. In Shirt, Mason J went on to state at 48 that:

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.

99. Mason J cited with approval the comments of Glass JA in the Court of Appeal to the effect that the test was “undemanding” and that the risk may be described as “only a remote possibility”.

100. The correctness of Mason J’s description of the reasonable foreseeability test has been called into question, but not authoritatively determined. In State of New South Wales v Fahy (2007) 232 CLR 486, the High Court declined to reconsider Shirt.

101. In Tame v New South Wales (2002) 211 CLR 317 at [97] McHugh J approved the text of Professor Fleming in the 1957 edition of The Law of Torts, as follows:

What are the considerations upon which the law supposes the reasonable man will guide his conduct? Negligence consists in conduct involving an unreasonable risk of harm. Almost any activity is fraught with some degree of danger to others but, if the existence of a remote possibility of harm were sufficient to attract the quality of negligence, most human action would be inhibited. Inevitably therefore, a person is only required to guard against those risks which society recognises as sufficiently great to demand precaution. The risk must be unreasonable, before he can be expected to subordinate his own interests to the interests of the other.

102. McHugh J continued:

Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability… [98]

I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall…into public disrepute if it produces results that ordinary members of the public regard as unreasonable [101]

Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant’s position would think the risk sufficiently great to require preventive action. This is a matter of judgement after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge. [102]

When it is necessary to determine foreseeability in the duty context, the development of the law of negligence as a socially useful instrument now requires the rejection of the attenuated test of foreseeability propounded in The Wagon Mound (No 2) and adopted by this Court in Shirt. [104]

103. In Seltsam v McNeill [2006] NSWCA 158 Bryson JA said at [36]:

In my opinion questions of reasonable foreseeability and existence of a duty of care are not correctly decided by applying, as if they express a syllogism, Mason J’s references to a risk which is remote, and a risk which is not far-fetched or fanciful. The question of foreseeability must be looked at in the broad. The test of foreseeability is undemanding but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination, it must be approached as a test which exists in reality and operates within the limits of the reasonable.

104. Reasonable foreseeability of risk is a question of fact that must be determined in light of all of the circumstances prevailing at the time of the act or omission in question: Maloney v Commissioner for Railways (1978) 18 ALR 147 at 148.

The Shirt Calculus

105. The inquiry of what was reasonable to be done is not to be undertaken in hindsight: Vairy v Wyong Shire Council (2005) 223 CLR 426 at [126] (Hayne J); but must be answered prospectively before the incident occurred: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31].

106. The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is also necessary to ask would it have been reasonable for the defendant to take those measures: Neindorf v Junkovic (2005) 80 ALJR 341 at [93] (Hayne J). In other words, the knowledge of how a person actually came to be injured has to be excluded when considering if the defendant was obliged to take the particularised steps set out in the Summons.

107. The duty imposed is a positive one, to take reasonable care. The test is an objective one and the act or omission need not be deliberate. All relevant circumstances must be taken into account in determining if reasonable care was taken. For example, matters such as the worker’s state of knowledge, qualifications, expertise, experience and status as foreman, supervisor or manager are relevant. The question to be answered is whether or not the defendant in his or her capacity as a worker, was responsible for an act or omission which an informed objective observer, having regard to all of the circumstances, would reasonably have foreseen would affect the health and safety of another person: WorkCover Authority of New South Wales (inspector Gordon) v Gregory Ronald Wallis (unreported Full Bench of the Industrial Relations Commission in Court Session 1996).

108. The civil standard of negligence applies: R v Irvine [2009] VSCA 239 at [84]-[85] Neave JA and WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 at 475.

109. Examples of a breach by a worker of a similar duty include:

110. The release of a wiring train by a supervisor before ensuring that the track was clear of other workers: Inspector Game v Lucas (unreported Chief Industrial Magistrate’s Court of New South Wales 1991).

111. The driving of a train into another stationary train by a driver that failed to stop at a red signal: O’Grady v Fernandez (unreported Magistrate’s Court of Victoria 2002).

112. An apprentice mechanic set alight brake cleaner then sprayed it onto another apprentice: R v Matthew Lever (unreported Magistrate’s Court of Victoria 2010).

113. Failure to instruct an apprentice to wear a harness while working on a roof: Inspector Dowling v Farmer (unreported Chief Industrial Magistrate’s Court 2002).

114. Failure to stop skylarking: Inspector Maddaford v Pontelle (unreported Chief Industrial Magistrate’s Court 2003).

115. Hire by a project manager of a painting company of an elevated work platform (EWP) that was not suitable for the sloping site of the work and failure of the project manager to train the worker on the safe use of the EWP, where the worker told the manager that he was not licenced to operate it and was not comfortable in using it*: WorkCover Authority of New South Wales v Alameddine* [2014] NSWDC 303.

116. Examples of a breach of s 28 to which a worker pleaded guilty are:

117. Failure by a worker repairing a machine to set up an exclusion zone to keep other workers away from hot rubber that was under pressure and could escape: Safework NSW v Alejandro Bocaz [2017] NSWDC 271.

118. Failure by a worker to conduct testing of gas supply in a hospital, which he certified had been undertaken: SafeWork NSW v Turner [2020] NSWDC 180.

Causation

111. The relevant question on causation is whether the act or omission of the defendants was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

112. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

113. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

114. A finding of causation requires a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [226] (Cavanagh J).

Issue 1 Did the defendant breach the health and safety duty owed by him pursuant to s 28 of the Act by failing to take the steps particularised in [21] of the Summons? (Element (b))

115. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].

116. In order to find Element 2 established I must be satisfied beyond reasonable doubt that the defendant failed to exercise reasonable care by failing to take the steps set out in the particulars of breach in [21] of the Summons.

117. In final submissions, the prosecutor informed the Court that he no longer relied on the defendant’s failure to engage in positive communications as a particular of breach of duty, but that it should be taken into account as a background fact.

Background findings

118. The defendant knew or ought to have known that there were workers on foot in the vicinity of the NCP. He had just driven Mr Cassidy and Mr Richens to the area and they were both on foot. He also interacted with other workers in the area such as Mr English. It was also apparent from the video evidence that there were a number of other workers in the area, who came out to investigate what had occurred in the incident.

119. As an author of the New Build SWMS, the defendant knew that there was a risk of workers being struck by light vehicles in the vicinity of the NCP and the thoroughfare at the beginning and end of shift, when workers were arriving for work and leaving for the day.

120. The defendant had been trained on the LV SWMS that also identified the risk.

121. The defendant knew that the control measures had been implemented to avoid the risk arising from a collision between, amongst other things, light vehicles and pedestrians. In particular, the defendant knew of the requirements to activate the amber flashing lights on the vehicle and to engage in positive communications. The defendant was employed as a supervisor and had responsibility for enforcing safe work practices at the Quarry.

122. The defendant was present at the site safety meetings prior to the incident at which the risk of a collision between vehicles and pedestrians in the vicinity of the NCP was discussed.

123. The defendant, as a licensed driver in his early 60s, was aware of the need to keep a proper look out for vehicles, HME and pedestrians when operating a light vehicle at the Quarry and similarly on public roads.

124. The defendant held a HVDL and was licensed to operate multi-combination vehicles. As the holder of a HDVL, I infer that the defendant was aware that all vehicles have blind spots in which it can be difficult to see other vehicles and pedestrians.

125. The action of Mr Richens crouching down and staying in the one position to pick up the nuts and bolts on the ground was unusual. I accept that the defendant would not have expected Mr Richens to be where he was when the collision occurred.

126. I accept that the defendant did not see Mr Richens as he got into the vehicle, as he performed the U-turn to the left or before the vehicle struck Mr Richens.

127. Immediately prior to the incident, the defendant did not comply with the safety procedures at the Quarry. He did not activate the amber flashing lights on the vehicle on entering or leaving the vicinity of the NCP or make a radio announcement as to where he was going. I am satisfied that the defendant’s actions immediately prior to the incident demonstrated a lack of attention to the control measures that had been implemented to avoid collisions between light vehicles and pedestrians at the beginning of each shift, when workers on foot were present in the vicinity of the NCP.

128. I will now turn to consider the alleged breaches of duty.

Failure to keep a proper lookout for workers on foot

129. The particulars pleaded in [21](a), (b), (c) and (d) can be conveniently dealt with together.

130. The requirement to keep a proper lookout as the driver of a vehicle is informed by the circumstances existing at the time of driving and the manner in which the vehicle is driven. For example, the difficulty encountered in seeing obstacles when reversing a vehicle usually calls for a driver to take additional care to avoid a collision with such obstacles, including keeping a proper lookout and proceeding at a speed that would allow a collision to be avoided.

131. The defendant knew or ought to have known that there were workers on foot in the vicinity of the NCP and in the thoroughfare.

132. I am satisfied that Mr Richens walked about 10m away from the passenger door of the vehicle in a line almost perpendicular to the vehicle, and slightly towards the front of the vehicle before crouching down and remaining in that position.

133. I am satisfied that the defendant could have and should have seen Mr Richens where he was crouching, immediately before he got into the vehicle and from the driver’s seat of the vehicle before he put the vehicle in motion. I am satisfied that looking around for workers on foot before moving the vehicle was a reasonable step that the defendant could have taken but failed to take.

134. In executing the U-turn the defendant turned the vehicle hard left, simultaneously with moving the vehicle forwards and driving at a constant speed. The defendant told the police in his recorded interview that he looked in his rear view mirror and over his shoulder to look for vehicles behind him before starting the U-turn. I am satisfied by reference to the way that the defendant drove the vehicle that he assumed that there were no pedestrians or vehicles in his intended path and proceeded accordingly, without taking into account the possibility that there were workers on foot in the area and exercising care that there were no such workers in his path. I am also satisfied that the defendant knew or ought to have known that by performing the U-turn to the left and by turning the vehicle hard left that he would encounter a blind spot in the vicinity of the front left-hand corner of the vehicle.

135. I am satisfied that by turning the vehicle hard left that the defendant created a blind spot where Mr Richens could not be seen from the driver’s seat for a short time before the impact. However, I am satisfied that the defendant could have and should have seen Mr Richens again a short time before the impact and that he had time to avoid the collision if he had been driving at a speed at which he could avoid a pedestrian, if he encountered one.

136. Taking into account all of the evidence and the surrounding circumstances, I am satisfied beyond reasonable doubt that the defendant failed to keep a proper lookout for pedestrians in the thoroughfare and that he breached the s 28(b) duty that he owed.

Failure to activate the vehicle’s flashing lights

137. The video evidence demonstrates that the defendant did not have the amber flashing lights on the vehicle activated when it dropped Mr Richens off at the NCP and when it began to leave the area and collided with Mr Richens.

138. The requirement to have a vehicle’s amber flashing lights activated was a well communicated requirement at the Quarry. I am satisfied that the defendant knew of the requirement because:

(a) he had received the induction training; (b) he was an author of the New Build SWMS and had been trained on it; and (c) he had been trained on the content of the LV SWMS.

139. The activation of the vehicle’s flashing lights on the morning of the incident was a simple, convenient safety measure that could have and should have been taken by the defendant.

140. I am satisfied beyond reasonable doubt that the defendant was in breach of the duty he owed under s 28(b) of the Act by failing to active the amber flashing lights on the vehicle and thereby to follow a simple, convenient and well-known safety rule at the Quarry.

Conclusion on Issue 1

141. I am satisfied beyond reasonable doubt that the defendant breached his s 28(b) duty by failing to keep a proper lookout and by failing to activate the amber flashing lights on the vehicle.

Issue 2 Did the defendant’s breach of duty expose Mr Richens to a risk of death or serious injury?

142. I have found that the defendant was in breach of his s 28 duty by failing to keep a proper lookout and failing to activate the vehicle’s amber flashing lights.

143. I am satisfied beyond reasonable doubt that had the defendant kept a proper lookout that he should have seen Mr Richens before he drove the car forwards and just prior to impact. If the defendant had seen Mr Richens on the first of those occasions, he could have chosen a different path and avoided the collision. If the defendant had seen Mr Richens on the latter occasion, the taking of reasonable care required him to be driving slowly enough to stop the vehicle before the collision or take evasive action.

144. I am satisfied beyond reasonable doubt that the defendant’s failure to keep a proper lookout was a significant and substantial cause of the collision, in which Mr Richens was exposed to a risk of death or serious injury.

145. I am not satisfied beyond reasonable doubt that the defendant’s failure to activate the amber flashing lights on the vehicle was causative of the exposure of Mr Richens to the risk of death or serious injury. At all times, Mr Richens had his back to the vehicle and was not in a position to see the flashing lights on the vehicle. Even if the flashing lights had been activated, it was unlikely that the flashing lights would have alerted Mr Richens to the vehicle to allow him to take evasive action. Further, the defendant’s failure to keep a proper lookout was an overwhelming cause of the collision to the extent that the failure to activate the flashing lights was not a significant or substantial cause of Mr Richens' exposure to the risk.

Conclusion on Issue 2

146. I am satisfied beyond reasonable doubt that the defendant’s failure to keep a proper lookout was a significant or substantial cause of Mr Richens' exposure to the risk of death or serious injury.

Conclusion

147. I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the s 32 offence.

148. I find the defendant guilty.

149. I will list the matter for sentence at a mutually convenient date.

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Endnotes

First report – National Review into Model Occupational Health and Safety Laws – October 2008 at [9.20] (the First Review Report); Explanatory Memorandum for the Work Health and Safety Bill 2011 at [130].

Scharfe at [97] and the First review Report at [9.18].

S 9AD(1)(b)(i) Corporations Act 2001.

Amendments

05 June 2025

Representation - Correction to the spelling of Lander and Rogers