Safe Work NSW v Wollongong Glass P/L

Preliminary point

1. At the conclusion of final submissions, the prosecutor asked me to refer a number of questions of law to the Court of Criminal Appeal pursuant to section 5AE Criminal Appeal Act 1912.
2. After hearing further argument on this point, the parties agreed: 1. on the elements of the offence; 2. that the proper formulation of some of the proposed questions of law depended on the factual findings that I would be required to make; and 3. that it was appropriate for me to state the law in my judgment and to make the necessary findings of fact, on the basis that I would hand down judgment but not enter final orders until I had given the prosecutor the opportunity to renew its application, if it chose to do so.

The elements of the offence

1. The prosecution bears the onus of proving beyond reasonable doubt the elements of the offence.
2. Section 32 of the Act provides: A person commits a Category 2 offence if: 1. the person has a health and safety duty, and 2. the person fails to comply with that duty, and 3. the failure exposes an individual to a risk of death or serious injury or illness.
3. It was agreed that the elements of the offence are:
4. Element 1 The defendant was conducting a business or undertaking;
5. Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; 1. workers engaged by it; 2. (ii) while the workers were at work in the business or undertaking;
6. Element 3 The defendant failed to comply with its health and safety duty; and
7. Element 4 The failure exposed an individual to a risk of death or serious injury.
8. The defendant conceded that Elements 1 and 2 were established.

The relevant law

1. The offence is one of strict liability: section 12A of the Act.
2. The content of the duty is set out in section 19 of the Act that relevantly provides: 1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: 1. workers engaged, or caused to be engaged by the person, and 2. workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. 1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. 2. Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: 1. the provision and maintenance of a work environment without risks to health and safety, and 2. the provision and maintenance of safe systems of work, and 3. … 4. (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and 5. (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
3. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law.
4. The prosecution bears the onus of proving as an element of the offence that at the time of the offence that it was reasonably practical to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practical to eliminate the risk, or if not, if it was reasonably practical to minimise it. In this way the application of reasonable practicability may arise more than once. [1]
5. "Reasonably practicable" is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about; 1. the risk, and 2. ways of eliminating or minimising the risk, and 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options is grossly disproportionate to the risk.
6. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
7. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
8. The word "risk" is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of section 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the section 32 offence is a risk of death or serious injury.
9. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.
10. The phrase "exposed to risks" contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94.
11. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
12. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
13. The words reasonably practicable indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
14. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
15. A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
16. The unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
17. In some cases, it will not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. There are limits to the degree of instruction which can be expected to be provided to an experienced employee: Genner Constructions at [68].
18. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.
19. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the deceased being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
20. The question is to be determined by the application of commonsense 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.
21. 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 was the cause of the death of the deceased, but rather whether there was a causal relationship between the act or omission and the risk to which he was exposed: Bulga Underground at [130].

The risk particularised

1. The prosecution particularised the risk in [5] of the Summons as: The risk was the risk of glass sheets falling and crushing persons whilst those persons were attempting to remove one or more of the glass sheets stacked in an 'A-frame' trolley.
2. Inherent in the risk identified was that the glass sheets needed to be of a size and/or weight that were capable of causing a crush injury. The evidence demonstrated that not every piece of glass handled or lifted in the factory presented the risk of a crush injury. [2]
3. The storage of glass sheets on their edges in A-frames presented an obvious risk of a crush injury if a worker was physically present in front of the glass sheets when they were being lifted or handled, ie in the fall zone. It was necessary for the defendant to eliminate or, if that was not possible, minimise that risk by taking reasonably practical steps to prevent workers from being present in the fall zone while lifting or handling glass sheets, including during the loading or unloading of delivery vehicles. Simply put, the workers needed to be instructed when lifting or handling glass sheets capable of causing a crush injury, not to stand in the fall zone.
4. These were the matters that had been identified by the prosecutor in the Glass and Glass Product Manufacturing Compliance Project undertaken by it in 2012 (the Glass Project). The crush injury risk was particularly relevant to the defendant's business because the defendant purchased and received from manufacturers and importers large glass sheets, that were cut down to various sizes at the factory to create end products including, window panes, glass doors, splashbacks and shower screens.
5. These risks were the subject of a visit by Inspector Stothard on 19 December 2012 as part of the Glass Project.
6. The prosecution opened its case with the contention that the way glass was moved in the factory was left to the discretion of individual workers based on their experience and that one of the methods adopted was to lean sheets of glass onto a worker in the manner involved in the incident. The prosecution anticipated that the evidence of Mr Foye, Mr Heaton and Mr Spencer, former employees of the defendant would establish the use of that method.

Mr Pham's evidence

1. Mr Pham was the only witness to the incident. He was a careful and thoughtful witness who appeared to be doing his best to tell the truth. Some of his evidence was imprecise, but that was because English was not his first language and his difficulty with communication in English was apparent when he gave evidence. By reason of both the content of his evidence and his demeanour I am satisfied that Mr Pham's evidence should be accepted. I am satisfied that the incident occurred as described by Mr Pham and his evidence can be summarised as follows.
2. On 6 March 2013, Mr Pham was employed by the defendant as a laminate cutter, with approximately 6-7 years' experience in this role. His normal hours of work were from 7am to 3.30pm, Monday to Friday.
3. Mr Pham had 20 years' experience in the glass industry; having worked for Mant Glass and Graphic Glass prior to working for the defendant. He had received on the job training as to how to safely handle glass in that period.
4. Mr Pham was cutting glass sheets for an order which was required to be loaded onto a truck that day for delivery to a customer the following morning (the order). He had been asked by Mr Chamoun, the owner of the defendant, if he had started cutting the glass sheets required for the order that morning shortly after starting work. At that time he told Mr Chamoun that he would start cutting the order shortly. I infer that he had been working on cutting the glass sheets for the order, progressively throughout the day. It was suggested by the prosecution that Mr Pham was under time pressure to complete the order so that it could be loaded onto the truck. Mr Pham did not adopt that suggestion in the course of his evidence and I am not satisfied that there was any urgency required on the part of Mr Pham.
5. At about 2.30pm, in order to complete the order he required access to a glass sheet which was stacked on an A-Frame trolley behind other glass sheets, because the customer had revised the original dimensions required. Mr Pham was in the process of using the crane, which was fitted with a pinch grab to move the glass sheets stacked in front of the required glass sheet onto a second A-frame trolley in order to allow him access to the required glass sheet that he needed to cut.
6. There were three overhead travelling cranes in the premises; two on the cutting side of the factory, where Mr Pham worked and one on the other side. Each crane was fitted with a pinch grab. On the day of the incident one of the pinch grabs was not working with the result that only one crane was available for use on the cutting side of the factory.
7. The deceased also worked on the cutting side of the factory as a float glass cutter, with his supervisor, Mr Mastroianni.
8. The deceased approached Mr Pham and asked to use the crane that Mr Pham was using. Mr Pham told the deceased to wait for five minutes because he only had one more glass sheet to cut to complete his order. The deceased said to Mr Pham, "No. I need it" referring to the crane. Mr Pham's experience of the deceased was that "he was always in a rush". The deceased said to Mr Pham, "I will give you a hand". To which Mr Pham replied, "No". The deceased then said (in Mr Pham's words), "I give you a hand to hold your glass for you". To which Mr Pham replied, "We need more people". The deceased then said, "No, no, no we can do it. I'm okay I can do it". Mr Pham replied, "You need more people" and called out "Ralph", trying to get the attention of his supervisor, Mr Mastroianni.
9. The deceased placed his right leg between the bars of the A-frame trolley [3] so that his right foot was on the factory floor and held up one or two hands at about a 45 degree angle from his shoulders. Mr Pham flipped over a glass sheet with his left hand away from the centre of the A-frame trolley leaving it to rest on the hands of the deceased. Mr Pham also held out his right hand, in which he held the crane controller, so that the controller touched the glass panels in an effort to assist the deceased in supporting the glass. From this description, I infer that Mr Pham was supporting a very small amount of the weight of the glass sheet.
10. After Mr Pham flipped the first glass sheet onto the deceased, he told the deceased, "We need more people", to which the deceased replied "I'm okay". Mr Pham continued to call out "Ralph" on a number of occasions. Mr Pham gave evidence that he did so because he knew that they needed more men, because the glass was too heavy.
11. Mr Pham then flipped the second glass sheet in the same manner and it was supported by the deceased and partially by Mr Pham with the crane controller in his right hand. After the second glass sheet was flipped, Mr Pham continued to call out "Ralph".
12. Mr Pham then flipped the third and fourth glass sheet towards the deceased in the same manner. Mr Pham continued to call out to Ralph because he thought he needed help.
13. The deceased complained to Mr Pham that the glass was becoming too heavy and Mr Pham told him to run. The deceased still had his foot through the bottom of the A-frame trolley. The glass sheets that the deceased had been supporting fell onto him.
14. A number of employees, including Mr Mastroianni, came and assisted in removing glass from the deceased.
15. When Mr Pham was asked why he did not refuse the offer of assistance from the deceased, he said, "I'm not his supervisor, so I can't stop him".
16. Mr Pham gave evidence that prior to the date of the incident he had never moved glass by leaning it against another person who was standing in front of the glass, and had never seen other employees adopt such a practice. If the glass was less than about 750mm high (a height Mr Pham described as "shorter than my belly"), glass could be flipped on an A-Frame trolley by two people with one person at either end of the glass panel.
17. Mr Pham had not tried to move glass previously by way of the procedure adopted on day of the incident was because it was unsafe and he usually worked alone. Mr Pham gave evidence that the reasons he said "no" to the deceased on the day of the incident was because he knew the procedure being adopted was unsafe. At the time of the incident Mr Pham described the deceased as impatient and he gave evidence that he had agreed to do what the deceased suggested, so as not to upset him.

Other evidence relating to the presentation of the deceased on the day of the incident

1. On the morning of the incident the deceased assisted Mr Clarke, the production planner, to load a truck. The deceased told Mr Clarke that he had a headache and that he intended to go out at lunchtime to buy some painkillers. Mr Clarke gave evidence that the deceased seemed agitated at the time when they worked together.
2. On autopsy, a sample of the deceased's femoral blood was collected and a quantitative toxicology analysis was performed. Those test results were referred to Dr Perl, who was asked to provide an opinion to the prosecutor as to their significance. On 23 September 2015 Dr Perl provided a report to the prosecutor [4] that contained the following salient points: 1. the deceased's femoral blood contained delta-9-tetrahyrdrocannibinol (THC) which is considered to be the major psychoactive drug in cannabis; 2. in 2013 there were no legal substances or medications containing THC available in Australia; 3. the presence of THC indicated that the deceased had used cannabis, probably by smoking it; 4. the concentration of the THC indicated that it was probable that the deceased had smoked the cannabis within one hour of his death; and 5. the deceased's cannabis use would have impaired his ability to safely undertake the task of moving glass sheets.
3. Dr Perl concluded her report with the observations set out in paragraph 3 above which I will not repeat. Dr Perl was not required for cross-examination.

Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [6] of the Summons? (Element 3)

1. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) (2010) 239 CLR 531 at [37].
2. In order to find the defendant guilty of the offence I must be satisfied beyond reasonable doubt that it failed to comply with its health and safety duty in that it failed to take the reasonably practicable steps set out in the particulars of breach in 6(a)-(e) of the Summons.
3. The alleged failures were not pleaded in the alternative. What was alleged by the prosecution was that the defendant failed to ensure safety by not taking all of the steps referred to. On that basis if the prosecution failed to prove that any one of the alleged failures was reasonably practicable, then the defendant was entitled to an acquittal. This view of the pleading was raised after I invited the parties to make submissions on Bulga Underground. In response the prosecution sought leave to amend the summons to plead that the defendant failed to take "one or more" of the relevant steps. The defendant has not had the opportunity to make submissions on the amendment application. My preliminary view is that the case was conducted on the basis that the proof of one of the failures was sufficient to ground a conviction. However, it is inappropriate to decide the amendment application without hearing from the defendant.
4. It was common ground that the defendant had in place a system of work at the date of the incident. It was not reduced to writing. It was implemented through verbal direction and on the job training and enforced by supervision. There were mechanical means available to workers for use in handling and lifting glass sheets, ie the crane.
5. The prosecution case is that the defendant's system of work was inadequate in the respects particularised in [6] of the Summons. In submissions, the prosecutor described the defendant's system of work as "informal", "ad hoc" and involving the exercise of a worker's discretion, based on their experience, to determine how to move a piece of glass.
6. The prosecution submits that the particulars of breach set out in 6(a)-(d) were reasonably practicable because they were adopted in writing by the defendant in the Safe Work Method Statement (SWMS) on 14 March 2013. The adoption of a written SWMS seemed to be an integral part of the prosecution case, notwithstanding that such a measure was not specifically pleaded.
7. I will now turn to deal with each of the particulars of breach.

6(a) Ensuring the use of an overhead crane and pinch grab to lift, carry or move any glass sheets so heavy enough that they were likely to cause risk of injury.

6(d) Informing and training workers in the relevant prescribed size and thickness of those glass sheets which necessitate the use of an overhead crane and a pinch grab in order to safely lift, carry or move them.

1. These particulars can be conveniently dealt with together.
2. The deceased was employed on 8 November 2012. He told Mr Dileo in his interview that he had worked at High Tech Aluminium (HTA) and had experience in the glass industry. HTA was a local business operated by members of the deceased's family. It manufactured aluminium glass windows and doors. It received pieces of glass cut to size for installation in window and door frames. The deceased worked in the assembly of windows and doors. Mr Dileo could not recall how long the deceased told him that he worked for HTA, but he believed the deceased undertook his apprenticeship with HTA.
3. The defendant held toolbox talks at which safety matters were discussed. These were conducted by Mr Dileo, the factory manager, between July 2011 and December 2012 about once per fortnight. Mr Dileo instructed the workers as to the approximate weights of glass sheets according to their size and thickness, that panels of up to 30kg could be lifted by one person or 60kg by two persons and that panels that were too large or heavy were not to be lifted manually.
4. Mr Spencer gave evidence that from his experience, a glass sheet that could be safely manually lifted by two people was no bigger than 2.4m long by 1.2m high. His experience was consistent with his observations of the workers at the factory.
5. Cranes were used in the factory to lift large and/or heavy sheets of glass. There were three cranes installed in the factory. Mr Pham usually worked alone and would often refuse to move glass manually.
6. The defendant's practice was to place new workers with more experienced workers to receive on the job training in the defendant's system and to be shown how to perform tasks safely (the buddy system). Inspector McDonald agreed that the buddy system was an accepted method of training and that persons could be considered "competent" within the meaning of clause 5 Work Health and Safety Regulation 2011 (the Regulations) as a result of receiving on the job training.
7. Mr Chamoun told Inspector McDonald in an interview on the day of the incident that it was the usual practice of the defendant to use the buddy system to show new workers how to lift and manoeuvre glass.
8. Mr Dileo gave evidence that Mr Smith was allocated as the deceased's buddy. At the end of the evidence the prosecution tendered the personnel file of Mr Smith that demonstrated he was terminated on 9 November 2012, the day after the deceased was employed. The contents of the file corroborate Mr Dileo's recollection to the extent that the deceased and Mr Smith were working together on the day Mr Smith was terminated.
9. Mr Foot, the factory manager from January 2013 onwards, said that the training of new workers usually involved providing them with safety gear, a tour of the factory and then placing them with an experienced worker. Mr Foot could not recall the identity of the deceased's buddy.
10. In submissions the prosecution questioned the experience of the deceased at the time that he began working for the defendant and whether or not he had a buddy after 9 November 2012. There were gaps in the evidence on these topics. The prosecutor had the power to investigate these matters [5] , but did not do so. The prosecution could have called evidence from the operators of HTA about his experience at the end of his employment with HTA, but did not do so. I am not permitted to speculate about the evidence or draw inferences to fill in gaps in the prosecution case.
11. The lacuna in the evidence was insufficient for me to conclude that the defendant departed from its usual practice when it came to training the deceased. I am satisfied that even if he was not present at the training provided by Mr Dileo that the deceased received training through the buddy system in how to determine if a glass sheet could be safely lifted or moved manually.
12. In any event from about February 2013, the deceased worked closely with Mr Mastroianni. They both worked in the factory cutting float glass in a dedicated area. Mr Mastrioanni had studied occupational health and safety modules at TAFE as part of his apprenticeship. He was experienced in the glass industry and was employed as a supervisor at the time of the incident.
13. I infer that Mr Mastrioanni had considerable opportunity to supervise the deceased performing his everyday work. The deceased was considered to be a safe worker based on the observations of him by the supervisors, Mr Dileo, Mr Foot and Mr Mastrioanni.
14. There was no evidence that before the incident workers were required to manually lift or handle glass sheets that were of such as size or weight that constituted a risk of injury, or in fact that they did so.
15. At the time of the incident, Mr Pham knew that the safe way to access the required glass sheet was to use the crane to transfer the obstructing glass sheets to another A-frame trolley. He was involved in that process when approached by the deceased. He knew that the way that the deceased approached the task was unsafe, because the glass was too heavy and the procedure involved the deceased standing in the fall zone. He said no to the deceased on a number of occasions and he sought to dissuade the deceased from the procedure. He called out to the supervisor on multiple occasions to get help and/or I infer to have the supervisor intervene.
16. Mr Pham's participation was necessary for the incident to occur. He failed to use the crane to lift and move the glass sheets that presented the risk of a crush injury, but he knew that the crane was required. He had commenced the work with that state of mind and sought to convince the deceased to allow him to continue using the crane.
17. The prosecution relies on section 244(1) of the Act to argue that Mr Pham's failure to use the crane was the conduct of the defendant, and that this conduct was thereby condoned by the defendant. [6] Section 244(1) provides: For the purposes of this Act, any conduct engaged in or on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.
18. Section 244(1) is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38 per Lockhart J. In order to invoke the deeming provision the employee engaging in conduct must be acting within the actual or apparent scope of his or her employment.
19. It was common ground that Mr Pham was not a supervisor and had no responsibility for training other workers. Accordingly, the prosecution cannot establish that it was within the apparent or actual scope of his employment to prohibit, warn, direct, train or supervise the defendant's workers as contemplated by the particulars of breach in sub-paragraphs 6(b)-(e) of the Summons.
20. As to sub-paragraph 6(a) of the Summons, Mr Pham was not acting within the scope of his employment when he failed to use the crane because he knew what he was doing was unsafe and thereby he exposed the deceased to a very grave risk. Mr Pham's actions were not in accordance with his training and experience, they were inconsistent the duty imposed on him by section 28 of the Act and the express terms of his employment.
21. In February 2013, the defendant had its employees, including Mr Pham sign a document entitled "Wollongong Glass Policies - February 2013". That document provided at [14] under the heading "Occupational Health & Safety: It is the responsibility of each employee to; 1. Take reasonable care of the health and safety of others in the workplace; 2. Co-operate with the employer in their efforts to comply with OHS requirements such as following procedures and participating in hazard identification and reporting. 3. Use equipment properly in order to provide for the health and safety of other people in the workplace. Serious breaches in the OHS procedures may result in instant dismissal.
22. The use of the crane by Mr Pham in order to provide for the health and safety of the deceased was at the time of the incident was an express term of Mr Pham's employment and carried with it the threat of dismissal if it was not complied with.
23. For these reasons, I am satisfied that Mr Pham was not acting within the scope of his employment and accordingly the deeming provision does not operate.
24. The requirement to use equipment properly also applied to the deceased.
25. I am satisfied that the defendant's system of work ensured by adequate training that was enforced by supervision, that the crane was used in the factory on pieces of glass that could not be manually lifted by two people, being panels weighing more than 60kg or bigger than 2.4m long by 1.2m high.
26. I am satisfied that the defendant's system of work provided training to its workers on the weight of a glass sheet by reference to its dimensions.
27. It was not reasonably practicable for the defendant to provide the training required by sub-paragraphs 6(a) and 6(d) in a written SWMS for the following reasons.
28. First, a SWMS is only required by the regulations for "high risk construction work", which the work in the factory was not: clause 299 of the Regulations.
29. Second, a person is competent within the meaning of clause 3 of the Regulations if they have acquired the knowledge and skills to carry out a task through training, qualification or experience.
30. Third, whilst a SWMS may provide evidence that a defendant has in place a safe work procedure, it does not necessarily follow that its workers have been adequately trained in the content of a SWMS or that they will comply with it. Both Mr Pham and Mr Heaton were considered to be good workers. Neither of them could read the SWMS that was adopted on 14 March 2013. I have also found Mr Pham and the deceased failed to comply with the terms of the written policy contained in the February 2013 document relating to the use of the crane. The deceased failed to comply with the terms of the written policy relating to drug use set out in [13] of the February 2013 document, by being in the factory whilst under the influence of cannabis.
31. Finally, for the reasons expressed the defendant trained the workers by oral instruction and on the job training in the matters required by the particulars of breach in 6(a) and 6(d) and those matters were enforced by adequate supervision.

6(b) Prohibiting workers from attempting to support by hand multiple glass sheets in order to extract a sheet of glass from behind those sheets stacked in an 'A-frame' trolley.

6(c) Warning and directing workers against standing in front of multiple glass sheets while those glass sheets are being removed from an 'A-frame' trolley

1. It is convenient to deal with these particulars together.
2. Sub-paragraph 6(b) was derived from the mechanism of the incident. Such a prohibition would only have prevented the risk of a crush injury if it also included a prohibition on standing in the fall zone. Sub-paragraph 6(c) required the workers to be trained not to access the fall zone while lifting or handling glass sheets of a sufficient size or weight to constitute a risk of crush injury.
3. On 19 December 2012 Inspector Stothard made contemporaneous notes that he was told by Mr Chamoun during his Glass Project compliance visit to the factory that the workers were instructed not to stand in the fall zone when unloading timber crates and loading or unloading delivery vehicles. [7]
4. Mr Pham knew that it was unsafe for the deceased to stand in the fall zone at the time of the incident. Mr Dileo considered that standing in the fall zone of a glass panel taller than 650mm high was unsafe and he would have intervened if he saw that happen. Mr Foot observed that if two people were moving a glass panel they would stand at each end of it and not in front of it, ie in the fall zone. Mr Mastrioanni described leaning glass sheets against a worker as "too dangerous" and that he knew not to stand in the fall zone, presumably from his training and experience. Mr Spencer gave evidence that it was dangerous for workers to be present in the fall zone and that he had not seen workers at the factory do so when handling or lifting glass sheets of a size that could be lifted by two people which he described as no bigger than 2.4m long and 1.2m high.
5. None of the witness called had ever seen a worker at the factory attempt to do what the deceased did at the time of the incident, ie to support multiple glass sheets by hand whilst standing in the fall zone. Each of the supervisors gave evidence that they would have intervened to stop such conduct because it was unsafe.
6. The evidence of all of the witnesses, except Mr Heaton, was that workers did not stand in the fall zone when involved in the process of leaning out large and/or heavy glass sheets on an A-frame trolley to gain access to sheets behind them. In other words, only the evidence of Mr Heaton supported the prosecution's contention made in opening the case that one of the methods adopted in the manual handling of glass in the factory was to lean large and/or heavy glass sheets onto a worker as occurred in the incident.
7. Mr Heaton's evidence was that glass sheets up to 920mm high were often leaned against the hips or shoulders of workers standing in the fall zone. He said that he would have considered it unsafe to adopt the procedure with a glass sheet that was higher than his shoulder when sitting on the base of an A-frame trolley. I do not accept Mr Heaton's evidence for the following reasons.
8. First, Mr Heaton could not provide the names of the other workers that assisted him in this task and it could not therefore be tested. Second, Mr Heaton had preconceived opinions to the effect that the procedures in place at the defendant were not safe. Mr Heaton did not provide any basis for that opinion. Third, Mr Heaton had discussed his views with many of his co-workers particularly after the incident. Mr Heaton was called as a witness at the suggestion of Mr Foye, another ex-employee of the defendant. Mr Heaton and Mr Foye discussed the case within a very short time of them both giving evidence. His evidence about the content of those discussions was so vague as to lead me to the conclusion that he was not trying to assist the Court. Fourth, Mr Heaton was terminated by the defendant for failing to attend work for an extended period. He described his termination as "the happiest day of my life". Overall, there was a significant risk that Mr Heaton's evidence was contaminated by his discussions with Mr Foye and/or was otherwise unreliable by reason of his unexplained attitude towards the defendant.
9. I am satisfied on the evidence that workers did not stand in the fall zone when lifting or handling large and/or heavy glass sheets because they were instructed not to.
10. It was not reasonably practicable to prohibit the workers from attempting to support multiple glass sheets by hand, because it was not a practice adopted in the factory, it was contrary to the instructions given to the workers by the defendant and thereby it was not reasonably foreseeable. The precise mechanism of the incident occurred by reason of the deceased acting irrationally and by both the deceased and Mr Pham acting against instructions and with a significant disregard for safety. That set of circumstances was also not reasonably foreseeable.
11. It was not reasonably practicable for the defendant to provide the training required by sub-paragraphs 6(c) in a written SWMS for the reasons expressed in [92]-[94] above and by reason of the fact that the defendant trained the workers by oral instruction and on the job training in the matters required by the particulars of breach in 6(c).

6(e) Providing a system of supervision in which the removal of the said glass sheets from an 'A-frame' trolley is under the direct control and instruction of a leading hand or supervisor.

1. At the time of the incident, Mr Foot was in the lunch room and Mr Mastrioanni was in the office of the factory attending to paperwork. There was no evidence as to how long they had been away from the factory floor or how often that usually occurred.
2. The prosecution's ultimate submission was there was no system in place by which the removal of the glass sheets from the A-frame trolley was under the instruction of a supervisor.
3. In my view, the action required of the defendant by sub-paragraph (e) is unclear. It would seem to require that a supervisor or leading hand be present or be close enough to provide "instruction" during the unloading of every A-frame trolley at the factory.
4. There was very little, if any, evidence led by the prosecution on this point. There was no evidence as to how often an A-frame trolley was unloaded at the factory.
5. The evidence was clear that Mr Pham did not require supervision to unload an A-frame trolley. Immediately before the incident he was completing that work safely with the use of the crane.
6. Mr Mastrioanni gave evidence that the deceased could do certain tasks unsupervised. Those tasks were not identified in the evidence. There was no evidence as to what the deceased was doing immediately before the incident or whether he required supervision to complete that task.
7. The evidence did not identify the facts that I would need to consider to determine if the supervision of the unloading of every A-frame trolley at the factory was reasonably practicable. It follows that I cannot be satisfied beyond reasonable doubt that it was.

Conclusion as to Element 3

1. I have decided that the prosecution have failed to prove that any of the failures pleaded were reasonably practicable. It follows that I am not satisfied beyond reasonable doubt that the prosecution has proved that all of the alleged failures were reasonably practicable.
2. For these reasons I am not satisfied beyond reasonable doubt that the defendant breached its health and safety duty by failing to take the steps particularised in [6] of the Summons.

Did the defendant's breach of duty expose the deceased to a risk of death or serious injury? (Element 4)

1. The deceased was exposed to a risk of crush injury when handling or moving large and or heavy glass sheets in the factory. That risk was a risk of death or serious injury.
2. For the reasons I have given I am satisfied that the defendant took appropriate steps to eliminate or minimise that risk by training the deceased: 1. not to try to manually handle glass sheets that were too large or heavy; and 2. to remain clear of the fall zone.
3. Regrettably, the deceased did not adhere to that training on the day of the incident and behaved in a way that was out of character. He did not listen to Mr Pham, a more experienced worker. The time saving that would have been achieved if he was successful in the procedure adopted would have been minimal. I find that he behaved irrationally and without any regard for his own safety because he was under the influence of cannabis.
4. By reason of my finding on element 3, that there was no breach of the health and safety duty owed by the defendant, I cannot be satisfied beyond reasonable doubt of element 4.

Conclusion

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
2. I will not enter final orders until the prosecution has had an opportunity to consider the application pursuant to section 5AE Criminal Appeal Act 1912.
3. I will fix a date for further argument. On that date I will deal with the amendment application referred to in [60] above, the section 5AE application if pressed and any application for costs.

Orders

1. Since delivering reasons on 31 March 2016 I have been advised that the prosecution does not wish to make an application to the Court of Criminal Appeal and that the parties have not asked me to resolve the amendment application.
2. I find the defendant not guilty.
3. The Summons is dismissed.
4. The parties have agreed that the prosecution is to pay the defendant's costs as agreed or assessed on the ordinary basis.

Endnotes

1. Section 17 of the Act.
2. including for example glass louvres for windows and glass splashbacks.
3. Depicted in photograph 16 of Exhibit 1 at page 18 at reference I-J 19-28.
4. Exhibit 1 Tab 27 pp 268-279
5. For example pursuant to section 155 of the Act.
6. "engage in conduct" is defined to include an omission: section 4 of the Act.
7. Exhibit 1 pp 114-115 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2016