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[2026] NSWDC 89
General information, not legal advice.
District Court of NSW
2026-04-08
Russell SC DCJ
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SafeWork NSW v ANJ Container Services & Bond Stores Pty Ltd [2026] NSWDC 89
Hearing dates: 1 – 5, 8 – 12 December 2025, 26-27 February 2026
Date of orders: 8 April 2026
Decision date: 08 April 2026
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision: (1) The elements of s 19(2) of the Work Health and Safety Act 2011 (NSW) set out in the Further Amended Summons dated 3 December 2025 have been proved beyond reasonable doubt.
(2) I find the defendant ANJ Container Services & Bond Stores Pty Ltd guilty.
(3) The matter will be listed for mention on 13 April 2026 at 9-30am to set a date for a sentence hearing and any costs issues.
(4) Order that exhibits PX 2 Tab 17(b) and PX 18 be returned to the solicitor for SafeWork NSW, to be retained pending conclusion of the proceedings.
Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – other persons
OTHER – person struck by moving plant – person walking on walkway struck by a reversing reach stacker – failure to conduct adequate risk assessment – failure to develop, implement, and enforce a traffic management plan – whether the defendant’s failures were a significant and substantial cause of exposing the person to the risk – no novus actus interveniens
OTHER – whether person is a worker or other person – whether an alternative charge must be considered – if primary charge succeeds the court need not consider alternative charge
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), s 165
Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 16, 17, 18, 19, 32, 39, 154, 155, 171, 274, 275
Work Health and Safety Regulation 2017 (NSW), cll 39, 106, 107, 108, 109, 110, 111, 112, 214, 215
Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37
Bunnings Forrest Products Pty Ltd v Shepherd (Full Court of the Supreme Court (WA), Franklin, Ipp and Anderson JJ, 5 May 1998, unrep)
Constantanidis v R [2022] NSWCA 4
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288
Henry Walker Contracting Pty Ltd v Farnworth [2002] WASCA 167
Herne Investments (NSW) Pty Limited v Don Watson Pty Limited [2016] NSWCA 72
Inspector Davies v Prospect Electricity, unreported, 9 November 1992
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6
Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337
State Rail Authority v Dawson [1990] 37 IR 110
State Rail Authority v Dawson [1990] 37 IR 110
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
Texts Cited: Safe Work Australia, Workplace Traffic Management Guidance Material, April 2021
Safe Work Australia, Workplace Traffic Management Information Sheet, July 2014
SafeWork NSW, Code of Practice – Managing the Risks of Plant in the Workplace, August 2019
SafeWork NSW, Fatal Telehandler Incident (13 October 2020), undated
SafeWork NSW, Moving around safely during loading and unloading, 28 April 2015
SafeWork NSW, Worker struck by a forklift (16 August 2021), undated
SafeWork NSW, Working with or around mobile plant safety alert, 30 January 2014
Category: Principal judgment
Parties: SafeWork NSW (Prosecutor)
ANJ Container Services & Bond Stores Pty Ltd (Defendant)
Representation: Counsel:
J Agius SC / N Evans (1 – 5, 8 – 12 December 2025) / S Tasneem (26-27 February 2026) / M Malaney (Prosecutor)
A Moses SC / P Gow (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Lawpoint (Defendant)
File Number(s): 2024/76453
In 2022 the defendant ANJ Container Services and Bond Stores Pty Ltd (ANJ) was a person conducting a business or undertaking (PCBU) at 3 Coal Pier Road at Banksmeadow. On 21 April 2022 Mr Darren Spinks drove a heavy vehicle into the ANJ site. While walking away from his vehicle, Mr Spinks was struck by a reversing reach stacker operated by an employee of ANJ. Mr Spinks died from injuries received.
SafeWork NSW (SafeWork) filed a Summons in this Court on 27 February 2024 (later superseded by a Further Amended Summons filed in court on 3 December 2025) alleging that on 21 April 2022 ANJ was a person who had a health and safety duty under either s 19(1) or s 19(2) of the Work Health and Safety Act 2011 (NSW) (the WHS Act), to ensure so far as is reasonably practicable the health and safety of workers, or in the alternative the health and safety of other persons. The Summons alleges that ANJ failed to comply with its duty and exposed Mr Spinks to a risk of death or a serious injury contrary to s 32 of the WHS Act.
ANJ pleaded not guilty.
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt.
The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.
I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.
My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).
I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4.
“a. Conducting an adequate risk assessment to identify the hazards and risk of vehicles and moving plant, including reach stackers, at the site, taking into consideration the shared zone at the site, and to enable the development and implementation of adequate control measures;
b. Isolating pedestrians from mobile plant through establishing and implementing exclusion zones around the areas of mobile plant operation by any combination of physical barriers or rails and signage;
c. Developing, implementing and enforcing a Traffic Management Plan which included:
i. Control measures to separate pedestrians from vehicles and powered mobile plant;
ii. Exclusion zones around the areas of mobile plant operation by any combination of physical barriers or rails and warning signs;
iii. A clear procedure, including signage, for establishing who had right of way at pedestrian crossings or walkways; and
iv. Control measures to address blind spots for reach stacker operations.
d. Providing information and instruction to all visitors attending the site on the traffic management system, such as the one set out in paragraph 11(c) above;
e. Confirming that all workers and visitors who attend the site are inducted into the defendant's traffic management system, such as the one set out in paragraph 11(c) above;
f. Installing adequate lighting in areas of mobile plant operation and traffic routes where pedestrians are required to walk or cross such traffic routes;
g. Installing presence sensing devices, such as a 'rear radar object detection system', or integrated motion senor to restrict operation of the reach stacker when an object is detected within proximity of the reach stacker.”
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.
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person, and
(b) 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.
(2) 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.
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
(a) the provision and maintenance of a work environment without risks to health and safety, and
(b) the provision and maintenance of safe plant and structures, and
(c) the provision and maintenance of safe systems of work, and
(d) the safe use, handling, and storage of plant, structures and substances, and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and
(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
(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.
(4) If—
(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and
(b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available,
the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.
Element 1 The defendant was a person conducting a business or undertaking (PCBU).
Element 2 The defendant owed workers a duty under s 19(1) of the Act, or in the alternative owed other persons a duty under s 19(2) of the Act.
Element 3 The defendant failed to comply with that duty.
Element 4 The failure exposed the workers or other persons to a risk of death or serious injury.
(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by —
(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant…
(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.
The offence is one of strict liability: s 12A of the WHS Act.
The content of the “primary duty of care” is found in s 19 of the WHS Act, which is set out above.
The meaning of “worker” is dealt with by s 7 of the WHS Act.
Section 16 of the WHS Act provides that more than one person can have a duty, and says:
(1) More than one person can concurrently have the same duty.
(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
(3) If more than one person has a duty for the same matter, each person—
(a) retains responsibility for the person’s duty in relation to the matter, and
(b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
A duty imposed on a person to ensure health and safety requires the person—
(a) to eliminate risks to health and safety, so far as is reasonably practicable, and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
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 s 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 s 32 offence is a risk of death or serious injury: s 32(c) of the Act.
An incident causing injury may be evidence of the presence of a risk and may be relevant in due course 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.
The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable 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 practicable to eliminate the risk, or if not, it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
“Reasonably practicable” is defined in s 18 of the Act which provides:
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including—
(a) the likelihood of the risk concerned occurring, and
(b) the degree of harm that might result from the risk, and
(c) what the defendant knows, or ought reasonably to know, about;
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke *(*BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi *(*Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. 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; (2001) 110 IR 57 at [68].
The reasonable foreseeability of an incident is relevant to whether the pleaded measures were reasonably practicable, but is not necessarily determinative: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.
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.
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 the 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 Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
Evidence of actions taken by a defendant after the incident is admissible on the question of whether the steps particularised in the Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA at [9] and [35].
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 *(* [1999] NSWIRComm 453.
SafeWork handed up four lever arch folders of documents which were marked as PX 1, PX 2, PX 3 and PX 4. Some of the documents in the folders were not tendered and some of the documents were rejected after objection was taken. An exhibit list was provided to the parties recording these matters. Both parties agreed with the exhibit list maintained by the Court. After such agreement was indicated, the documents which were not pressed or which were rejected were removed from the four lever arch folders.
SafeWork tendered additional documents which were marked as PX 5 to PX 8 inclusive, and PX 15 to PX 22 inclusive. Documents which were marked PX 9 to PX 14 inclusive were tendered on a voir dire but were not then admitted as evidence in the proceedings.
ANJ tendered documents which were marked as DX 3 to DX 42 inclusive. Documents which were marked DX 1 and DX 2 were tendered on a voir dire but did not become evidence in the proceedings.
SafeWork called evidence from the following witnesses:
SafeWork Inspectors: Preston, Hession, Whatman, Davidson, Jelley, Chionchio and Morris
Mr Edward Spinks, the father of Mr Darren Spinks
Police Officers: Witts, Devescovi, Nasr
Employees of MKD Transcorp Pty Ltd (MKD): Pak Chan, Dante Luna and Zico Hasan
ANJ personnel: Kerry Edington, James Tran, Michelle Robertson, Steven Robertson, John Robertson, Bradley Robertson. These last two witnesses were employed by a related company.
Mr Stephen Mercer from Hyster-Yale Asia-Pacific Pty Ltd (Hyster-Yale), the manufacturer and supplier of the reach stacker.
Ms Deborah Donald, expert traffic engineer
Dr Judith Perl, expert forensic pharmacologist
SafeWork made application to tender statements by two witnesses who were said to be unavailable, being Mr Jacob Coughlin and Mr Manawa Kruger. The applications to tender this material were rejected.
SafeWork also called Mr Nicholas Brown, the driver of the reach stacker. He was not required to give evidence, after he had received independent legal advice and maintained his privilege against self-incrimination.
No oral evidence was called by ANJ.
The plant involved in the incident was a Hyster Reach Stacker, model RS 46 – 33 CH which was manufactured in May 2018 by Hyster-Yale. The reach stacker weighed approximately 72 tonnes and had the capacity to lift a load of 46 tonnes. It was designed to handle and transport shipping containers over a short distance.
The maximum speed of an unloaded reach stacker was 22 kilometres per hour. The maximum speed for a loaded reach stacker was 20 kilometres per hour. ANJ had two reach stackers in operation, which were regularly serviced and maintained.
The reach stackers were fitted with warning devices which included a flashing light and an audible reverse alarm. ANJ installed reversing cameras on both reach stackers in February 2020.
ANJ had a process for inducting workers onto the site. This included a “Safety Induction Checklist” which stipulated that “Visitors must walk within the designated walkways while in the warehouse”. There was no instruction in the checklist as to walkways on the site or yard, no traffic management rules, and no stipulation as to who should give way – pedestrians or plant operators.
The site had a “Site Safety and Traffic Management Plan” (the TMP). This contained a map of the site and identified the marked pedestrian walkways.
ANJ also had the following in place to manage the risk associated with plant:
Licence checks and verification of competency for items of plant, including reach stackers.
Safety signage such as “SHARED ZONE” and “BEWARE WATCH OUT FOR FORKLIFTS”.
Road markings regulating the conduct of drivers and pedestrians.
A speed limit of 10 kilometres per hour.
ANJ installed reversing cameras on the two reach stackers in February 2020. Each reversing camera was installed on the rear of the reach stacker boom and provided additional visibility to an operator, without the need to turn around in their seat. A screen was installed in the cabin allowing the operator to obtain a view behind the reach stacker from the reversing camera.
An understanding of the layout of the ANJ site can be obtained from consideration of the factual inspection report of Inspector Preston dated 25 August 2022 (PX 1, Tab 3), read together with the TMP (PX 1, Tab 4). The TMP indicated the compass points, which are referred to below.
The site was triangular in shape, and could be entered by a driveway off Coal Pier Road at Banksmeadow. Drivers entered the driveway and passed a centrally located gatehouse which was set back from the road.
The gatehouse is shown in photographs 68, 70, 71 and 72 (PX 1, Tab 6, p 58-61). The evidence was that the gatehouse was staffed until 3.30pm each day so that drivers who came to the site had to stop at the gatehouse and present their paperwork to be allowed onto the site. After 3.30pm the gatehouse was unstaffed, and drivers had to park their truck and walk to the office to present their paperwork.
On the window of the gatehouse after 3.30pm was a sign which read:
“GATEHOUSE CLOSED UNTIL FURTHER NOTICE
PLEASE PROCEED TO MAIN OFFICE WE WILL PROCESS YOU THERE!!!”
“KEEP GOING DO NOT STOP NOBODY IN THE GATEHOUSE TO TAKE YOUR GATE PASS
THANK YOU”
“All pedestrians shall stay within marked walkways.”
The asphalt road surface was marked with arrows directing traffic to the north of the gatehouse and around the premises in a clockwise direction in between sections of stacked shipping containers. The road surface in the north-western area was divided into three separate lanes marked by unbroken parallel lines and identified by directional arrows pointing to the north. At the end of each lane was an unbroken line and the word “STOP” marked on the ground in white. Drivers who were picking up or delivering a shipping container had to drive into a lane and stop at the stop line.
After the incident, Inspector Preston observed in the lane furthest to the right, a white coloured Volvo truck which was marked as a vehicle of MKD. It had a trailer attached to rear. The front tyres were situated immediately above the unbroken line and adjacent to the word “STOP” marked on the ground in white. This was the truck driven to the site by Mr Spinks.
From the “STOP” sign on the ground, a zebra striped pedestrian crossing marked in yellow extended to the east, towards the direction of the office, which drivers were required to attend. While the TMP showed a zebra crossing all the way from the truck parking area to the office, that was not accurate. The yellow zebra markings ran for 11.05 metres in a west-east direction from the Volvo truck. At the eastern end of those markings, there were two yellow unbroken parallel lines approximately 1.2 metres apart, with multiple yellow painted pictograms of walking stick persons and footprints. This was later described in the evidence as a walkway. The walkway was 21.75 metres long and ran diagonally across an open area of asphalt towards the office building. There was no fixed lighting in the area. This was a shared area in which reach stackers operated.
Consideration of the TMP shows there were two crossings from the western boundary of the site towards the office. Both ran west to east. The lower or southern crossing was the one taken by Mr Spinks on the night. This comprised the yellow zebra crossing which changed to a marked pedestrian walkway. The northern crossing was marked entirely as a zebra crossing and ran directly west-east on the northern side of a large number of stacked containers.
Inspector Preston took photographs of the reach stacker (PX 1, Tab 5) and photographs of the ANJ site (PX 1, Tab 6). The reach stacker photographs were taken on the night of 21 April 2022 and the site photographs were taken in the early hours of 22 April 2022.
Photograph 11 (p 41) and photograph 13 (p 42) show a blue gazebo placed on the open asphalt area to the south of the walkway. This was where Mr Spinks was found on the ground after the reach stacker reversed over him. In photograph 13 the two parallel lines being the walkway from the eastern edge of the zebra crossing can be seen. This photograph is taken from the office looking towards the truck parking area. The front of Mr Spinks’ truck can be seen just past four stacked shipping containers. There is a closer view of the truck, zebra crossing and the start of the walkway in photograph 16 (p 43).
“Designated Walkways:
Visitors must walk within the designated walkways at all times while in the warehouse.”
“Acknowledge that this checklist is provided to me as written guidance material and to ANJ as proof of induction. I have received and understood the above information regarding the site safety rules of ANJ Container Services.”
“REACHSTACKERS / WALKWAYS – WALKING BEHIND OR IN FRONT OF REACHSTACKERS IS PROHIBITED!!!!
- Last year , Death at Visa
- We have just installed reverse cameras on the reach stackers to give the guys more vision.
- We do not need anyone jeopardising their own safety.
- Please use walkways and do not approach these machines unless you have contacted the operator via a two way radio. If you see the reach stackers or big fork approaching, please move to the nearest walkway until they have moved away.”
“WARNING
FAILURE TO FOLLOW THESE INSTRUCTIONS CAN CAUSE SERIOUS INJURY OR DEATH!
AUTHORIZED TRAINED OPERATOR ONLY !
…
LOOK WHERE YOU ARE GOING:
- IF YOU CAN’T SEE DON’T GO
- TRAVEL in reverse if load blocks forward vision.
…
- OBEY traffic rules. Yield right of way to pedestrians.”
“DO NOT move ReachStacker if anyone is between ReachStacker and stationary object.”
“The rear view camera is a viewing aid while making the transition from forward to reverse driving. Objects in the monitor are closer than they appear. The field of vision of the camera may not reveal persons or objects in every situation. Always look in the direction of travel.”
Two versions of the CCTV footage of the incident were tendered (PX 2, Tab 17B and PX 18). PX 18 was the longer version. It spanned from timestamp 18:54:49 to 19:01:45. My own observations of the events visible on the CCTV footage, set out below, come from PX 18.
I keep in mind the many warnings given by appellate courts concerning the caution which must be exercised by a court which is relying in part upon CCTV footage. For example, in Herne Investments (NSW) Pty Limited v Don Watson Pty Limited [2016] NSWCA 72, Sackville AJ said at [42]:
“The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.”
The CCTV in this case is contemporaneous. It is relatively clear and crisp, even though taken at night. It contains a timestamp on each frame, which assists in describing what can be seen in the sequence of events. Several witnesses gave evidence of their perception of the events shown on the CCTV. The summary of events recorded below is my summary, not that of the witnesses. Having said that, there was really no dispute on all the evidence about what can be seen in the footage.
At 18:56:20 the truck that Mr Spinks drove is first visible on the CCTV footage when he drove into and parked in the designated area. Only the very front of the cabin of the truck was visible in the CCTV footage. The remainder of the truck and trailer is obstructed by a stack of containers.
At 18:56:27 Mr Spinks turned the truck’s headlights off.
At 18:59:47 the driver’s side door of the truck opened. The container stack and driver’s door formed an obstruction so that it was not possible to see Mr Spinks climb out of the truck.
At 18:59:54 the driver’s door of the truck is closed and Mr Spinks comes into view from behind the container stack on the CCTV footage. When Mr Spinks was exiting the truck the reach stacker was moving a brown container to a nearby area.
Mr Spinks was dressed in a yellow high-vis shirt. He walked along the southern painted yellow zebra crossing. The zebra crossing was some metres behind the reach stacker. Mr Spinks did not turn his head to the left or look at the reach stacker.
At 18:59:59 Mr Spinks was walking on the zebra crossing, directly behind the reach stacker. He was some metres away from the rear of the mobile plant. The yellow flashing light on top of the reach stacker was illuminated. The headlights were on. The rear red lights were on. These red rear lights illuminated the stack of containers alongside which Mr Spinks was walking.
At 19:00:01 Mr Spinks had already walked past the Reach Stacker on his left when the red brake lights turned off and the white the reversing lights turned on (later evidence showed that this was the point where reverse gear was engaged on the reach stacker). The containers on the right of Mr Spinks were now illuminated by the white reversing lights. There was no sound on the CCTV footage, but later evidence established that when reverse was engaged a loud warning beeper would have continuously sounded.
At 19:00:03 Mr Spinks reached the end of the zebra crossing. The reach stacker moved in reverse. Mr Spinks walked on an angle to his left, staying within the painted lines of the walkway between the end of the zebra crossing and the office. Mr Spinks did not look to the left or right before he stepped onto the walkway.
At 19:00:05 Mr Spinks had taken a few steps on the walkway. The reach stacker was then travelling backwards and to its right, ie towards Mr Spinks on the walkway. The reach stacker was over Mr Spinks’ left shoulder and was approaching him, having picked up speed.
SafeWork Inspectors Whatman and Davidson attended the home of Mr Brown on 27 April 2022. The purpose of their visit was to serve a notice suspending the licence of Mr Brown to operate a reach stacker. Inspector Davidson made notes of the conversation between Inspector Davidson and Mr Brown.
The notes are as follows (I have inserted “Q” and “A” to indicate the questions which were asked by Inspector Whatman and the answers given by Mr Brown):
“Q. What happened?
A. Images still there (took time). All I remember, moving boxes, all remember reversing out of stack and I didn’t see anyone, I just didn’t see anyone.
Q. Do you remember truck driving stop near hyster?
A. No.
Q. Do you remember seeing anyone in the yard when moving boxes?
A. No.
Q. When you selected reverse do you remember looking in case?
A. I look everywhere. I didn’t look long enough – I am just trying to think. I have been thinking and I don’t know how I missed him.
Q. When reversed – do you remember seeing anyone?
A. It’s a huge container – it’s so big – looking at sides. When you reverse you look. That’s my process that’s what I do.
Q. Reversed – how far back go?
A. To right out of stack, miss another – like an S bend.
Q. Do you remember driving over pedestrian walkway?
A. Not sure what mean – we do it 100 times a week, when we come out of that stack – problem is there are two walkways. I don’t know – just reversed out of stack – I didn’t notice him until.
Q. Did you feel/notice anything/ out of ordinary?
A. No, at first didn’t know what happened. Didn’t know what looking at then I realised, and I grabbed the radio and said call the fucking ambulance. Radio is mounted to machine. Repeated three times might have just kept repeating. It was like a movie – oh my god.”
SafeWork Inspector Preston conducted a record of interview with Mr Brown on 16 June 2022, pursuant to s 171 of the WHS Act. Extracts from the record of interview were received into evidence (PX 1, Tab 11), limited to being evidence of the questions asked by Inspector Preston and the answers given by Mr Brown (Tcpt 128/10).
The questions and answers on how the incident happened are at PX 1, Tab 11, pp 227- 228 as follows:
“Q382 Take your time.
A So I was, I was sorting out the boxes. Fuck. So I was sorting out the boxes and then so I came, so I think I'm grabbing another box, another unpack box to bring back around and put it back into the stack. Fuck. It's already in my head. Sorry. Fuck.
Q 383 We're going at your pace. If you'd like to stop we can pause here.
A No, I'm, I'm all right. I just - - -
Q384 O,K.
A - - - if I stop then I've got to, then I've, then it will all come back again. And then I, so I, I went into the stack and as I was coming around I, I, I went up to the stack. Oh, man, oh. So, O.K. so, so I was sorting out the containers and when I'd done it I've come around the corner. There was no one there. So when I've grabbed it, I, I had done my checks but this is where I, I, when you do your checks you quickly look left and, and that's so that you give a half a second and then I start reversing. I don't know how he got there, aye. I didn't see him. I didn't see him exit his truck, nothing. And then I've come - oh, my God. Sorry. I'm reversing. The, it's weird, it's not like a straight reverse. You have to do a, like, a, an S - - -
Q385 Ah hmm.
A - - - is that what you call it, like, when you go like that?
Q386 Mmm.
A S or a Z. And we're pretty full at the time so I've entered here. I've done my checks, looked, and now it's tight so I have to reverse while I'm looking forward. And then I'm turning. I don't want to hit this stack so I've got to turn, like, like this so I don't - - -
Q387 Ah hmm.
A - - - because I'm, like I was saying, I'm always constantly thinking about ---
Q388 Yep.
A - - - pushing a stack on me, and then I've got to, and it's not just this way, then I've got to concentrate I'm not going to knock it coming back down the middle. And this was, so I'm, I've done my S turn and then I'm, I'm starting to go down the middle reversing and then I, I look up to my right, because that's where the containers are going, or this specific container is going in the right stack. Oh, fuck. Um, and, um, I don't know what happens. And I think I'm looking up and then I've got the container and I start, do I start going up? I think I start going up and looking, so I'm looking - - -
Q389 Ah hmm.
A - - - and I make sure and then I look straight ahead, I look up and then I look straight. At first I don't know what I'm looking at. At first I, I, my, I don't know what it is. Oh, my God. First I look. I don't know how long it takes me. This, this period in it seems, it seems like it lasts forever. It probably doesn't. It probably lasted ten seconds or twenty seconds but it felt like time just stood still when I realised what it was. Sorry, I don't really mean to call him it, but what - - -
Q390 No, no, no, no, that's - - -
A - - - what, what I was looking at. So after however long it took me to realise what it was I put down the container - - -
Q391 Ah hmm.
A - - - and I don't know how many times I screamed down the radio. It was just like three or four. I don't know how many times I screamed in the radio but we need to fucking ring an ambulance. I don't even know if I swore. I probably did swear.”
A person is required to hold a reach stacker High-Risk Work Licence when operating a reach stacker (DX 12, p 2). To obtain a reach stacker High-Risk Work Licence a person must achieve competence in the TLILIC0011 – Licence to operate a reach stacker (greater than 3 tonnes capacity) (“Licence to operate a reach stacker unit guide”) (DX 12) unit of study and pass the mandated National Assessment Instrument.
The Licence to operate a reach stacker unit guide (DX 12) provided elements that are essential work outcomes of operating a reach stacker and performance criteria which described the performance needed to demonstrate achievement of each element.
Performance criteria related to the “Plan work/task” element included (DX 12, p 3):
“1.4 Appropriate paths for operating the reach stacker and moving and placing container/s in work area are assessed and determined in accordance with workplace procedures
1.5 Relevant hazard identification and risk elimination/control measures are applied and advised to relevant person/s in accordance with workplace procedures
1.6 Traffic management plan implementation is confirmed and understood in accordance with workplace procedures”
“3.5 Containers are mobiled [sic] safely using best mobile practice and relevant reach stacker movements in accordance with safe work procedures
3.6 Container and reach stacker movement is monitored constantly and operated in accordance with safe work procedures and manufacturer specifications”
Performance evidence that demonstrated competence in the unit included “confirming and following traffic management plan procedures relevant to their role in the work area” (DX 12, p 9). Knowledge evidence that demonstrated competence in the unit included knowledge of “hazards including: traffic including pedestrians, vehicles and other plant” (DX 12, p 11).
A Reach Stacker Study Guide created (DX 17) by Kallibr Training, a Registered Training Organisation which provided training and assessment for people seeking to obtain a reach stacker high risk work licence provided the following:
“When operating a reach stacker you need to protect the safety of pedestrians, other workers, vehicles or plant. These are the control measures you would use. (study 2)
- Flashing hazard lights/alarms or horns
- Hoardings, gantries or scaffolding
- Speed limit signs
- Safety/Warning signs
- Safety Barriers
- Boom Gates
- Traffic management plan
- Pedestrian or vehicle exclusion zones
When using a reach stacker, ‘rear end’ swing is dangerous because of the hazard to persons close by… created by the rapid sideways movement of the reach stacker.” (DX 17, p 3)
Clauses 106-112 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) deal with the suspension and cancellation of a high risk work licence.
Clause 106 provides that the regulator may suspend or cancel a high risk work licence if satisfied that, inter alia, the licence holder has failed to take reasonable care to carry out the high risk work safely and competently, or the licence holder has failed to comply with a condition of the licence.
Clause 107 deals with matters to be taken into account in making a decision. Clause 108 deals with notice to and submissions by the licence holder. Clause 109 deals with notice of the decision. Clause 110 gives the regulator certain rights to immediately suspend a licence without giving notice. Clause 111 requires a licence holder to return the licence document in accordance with the notice given. Clause 112 enables the regulator to return the licence to the licence holder when the period of suspension ends.
On 27 April 2022 Mr Brown was issued with a Notice of Immediate Suspension of High Risk Work Licence (DX 5) by Inspector Whatman under cl 110 of the WHS Regulation. The effect of the Notice was that Mr Brown’s licence was immediately suspended for reach stacker and forklift truck classes of work until 11 May 2022.
The Notice provided the following reasons for the immediate suspension:
“I am satisfied that the work being carried out under your high risk work licence should cease as it may involve an imminent serious risk to the health and safety of a person.
I am satisfied that
- you failed to take reasonable care to carry out the high risk work safely and competently
- you failed to comply with a condition of the licence”
The Notice included particulars of the failures outlined. This included reversing over a pedestrian walkway and colliding with Mr Spinks, running over the top and dragging Mr Spinks under the reach stacker, and driving off unaware of the incident.
On 4 May 2022 Mr Brown was sent a Notice of Proposed Cancellation of his High Risk Work Licence (“Notice of Proposed Cancellation”) (DX 6) by Inspector Jelley. The Notice provided that SafeWork was “satisfied that you have failed to take reasonable care to carry out the high risk work safely and competently”. SafeWork provided the following reasons for this finding:
Mr Brown reversed the Reach Stacker across a marked pedestrian walkway with the boom still raised.
The left rear steer tyre of the Reach Stacker struck a person who was using the walkway causing a fatality.
At the time the Reach Stacker was fitted with surround lighting, reverse lighting, reverse camera and mirrors.
The pedestrian was complying with the conditions of entry including using the marked walkway and wearing high vis clothing.
On 26 May 2022 Mr Brown submitted written submissions to SafeWork about why his licence should not be cancelled (DX 7). The submission related to his experience, training, daily work practices and safety record.
Mr Brown was served with a Notice of Cancellation of his High Risk Work Licence – Reach Stacker dated 20 June 2022 (DX 8). The effect of the Notice was that Mr Brown’s Reach Stacker Licence was cancelled and he was disqualified from applying for another licence of the same class for a period of 6 months. The reasons for SafeWork’s finding that Mr Brown had failed to take reasonable care to carry out the high risk work safely and competently in the Notice of Proposed Cancellation (DX 6) were reproduced in the Notice of Cancellation (DX 8) as reasons for the cancellation of Mr Brown’s licence.
Mr Tran has worked for ANJ since September 2021 as an administrator on the night shift. He first worked in the main office alongside Ms Kerry Edington. When he first started, nobody was stationed in the gatehouse after 3pm but after the incident the system changed. Mr Tran then started working his shift from the gatehouse.
Since working in the gatehouse Mr Tran has been required to give new drivers a site induction form if they had not been to the yard before. He notifies the reach stackers by two-way radio that a driver has entered the yard. He processes the driver's paperwork at the gatehouse. If a driver was picking up a Full Container Load (FCL) they go to one of the three long parking bays. Mr Tran then notifies the reach stackers by two-way radio. The truck drivers arriving at ANJ do not have any means of contacting the reach stackers by themselves. There is no need for the driver of a truck who is coming to collect a container to leave his truck and go to the office to have paperwork processed. The driver stays in the truck and the container is loaded onto the trailer. The truck is then driven back to the set up area near the gatehouse, where the driver does leave the truck to pin the container to the trailer.
On the night of the incident Mr Tran was working in the office with Ms Edington. He did not see the incident. He did not see Mr Spinks before the incident. He did not see the reach stacker involved in the incident in the 20 minutes or so before the incident. He came back from a cigarette break, heard some screaming in the yard and was told through the two-way radio that there had been an incident in the yard. The police and ambulance were then called.
In cross-examination Mr Tran said that if a large number of trucks come to the gatehouse at night, the overflow would still park and then walk to the main office where Ms Edington worked. Mr Tran also said that the gatehouse is not staffed between 5am and 6am. In that hour the truck drivers resume the process of going to the office for signing and processing of paperwork. A staff member commences at the gatehouse at 6am.
Mr Tran agreed that sometimes drivers have to wait for a couple of hours in the yard, and it was common for some of those drivers to get out of their truck to go to the toilet or move around the yard. The toilets are next to the office. Prior to the incident Mr Tran had seen Mr Steven Robertson and Mr Bradley Robertson walking around the yard.
Ms Robertson is a director of ANJ and has worked in the accounts department for 25 years. She had already left work to go home before the incident occurred. Ms Robertson worked upstairs above the warehouse. Ms Robertson was instrumental in answering a notice which came from SafeWork asking questions.
Ms Robertson was asked a number of questions about the pedestrian crossings and walkways and about signage. She could not answer these questions as that was not part of her job working in the accounts department. She played no part in any discussion that led to the introduction of the diagonal walkway that led to the office from the southern zebra crossing.
Mr John Robertson is a director of J&J Robertson and Sons Pty Ltd (J&J Robertson). He is charge of the maintenance of ANJ equipment at Banksmeadow. He worked at Banksmeadow about three days a week and the other days he worked at a workshop at Mulgrave doing repairs.
Mr Robertson was asked about the walkway upon which Mr Spinks was walking at the time of the incident. He said that this walkway was there “from day 1”, meaning from the first day that ANJ occupied the site. When he was shown some photographs from the report of Ms Donald which cast doubt upon this, he said that he really could not recall.
Mr Robertson agreed that truck drivers used the southern zebra crossing and walkway because “they take the easiest way out” i.e. take the shortest route. Mr Robertson said that the southern walkway was also used by office staff to take paperwork to the reach stackers.
Mr Robertson was taken to the pre-incident TMP and acknowledged that it was wrong, in that it showed a zebra crossing running all the way from the truck parking area to the office, but really it was a zebra crossing plus a painted walkway.
Mr Robertson could give no evidence about the system of induction for truck drivers, saying this was a responsibility of Mr Bradley Robertson.
In cross-examination Mr Robertson said that he had a reach stacker licence and he had driven the reach stacker which was involved in the incident. He said that it had a loud diesel engine, headlights, rear spotlights, a rotating orange beacon, reverse lights which came on when reverse is selected, and a reversing beeper which came on when reverse is selected. Mr Robertson said that the reach stacker was fitted with rear view mirrors on the sides, rear view mirrors inside the cabin, a two-way radio and a reverse camera with a screen in the cabin.
In cross-examination Mr Robertson said that the reverse camera screen would have shown Mr Spinks, prior to him being struck. Mr Robertson said that before a reach stacker driver reversed, they should look in both side mirrors, look in the rear view mirror, look at the reverse camera screen and turn their head to look over both shoulders. He said that the cameras were fitted to eliminate blind spots.
Mr Robertson said that there were always people walking around the ANJ yard checking what workers were doing. He said that one of the reasons why people needed to be aware of what they were doing in the yard was because there were reach stackers, 25 smaller machines, and up to 200 trucks a day moving around the yard for 24 hours of the day. It was a busy yard.
In re-examination Mr Robertson accepted that if the reach stacker operator had been looking on the right as he reversed, or if he was looking forwards to check that that the lifting mechanism was clear of adjacent containers, then it was possible that the operator would not have seen Mr Spinks. Mr Robertson said that a person would have to be within seven metres of the machine to be picked up on the camera, if the boom was down, and would have to be closer than three and a half metres if the boom was up. Ultimately Mr Robertson accepted that if Mr Spinks was walking close to the right hand edge of the reach stacker it was possible that there would be a blind spot which blanked him out (Tcpt 373/30).
Mr Robertson has been the yard manager at ANJ for the last five years. Sometimes he was out in the yard area, but his main place of work was in the site office.
Mr Robertson was shown a copy of the pre-incident TMP. He said that a copy was kept on the wall of the office.
Mr Robertson recalled that when he was working at the site a new zebra crossing was marked out (he was speaking about the southern crossing). He was not part of any discussion which led to that new crossing being installed. He observed it being used from time to time by drivers, who walked along it from the truck parking area to the office.
Mr Bradley Robertson is the operations manager for J&J Robertson. He worked on Level 1 of the head office which was towards the rear of the site. He spent time outside the office everyday, walking all over the site. He delivered paperwork, met drivers, saw customers, and did yard inspections. Mr Robertson played no part in the placement of the two parallel lines which form the diagonal walkway to the office. He said that the purpose of the crossing was to inform the drivers of which way to walk.
In cross-examination Mr Robertson said that he obtained a reach stacker licence after the incident. He was asked what process he undertook to reverse a reach stacker. He said (Tcpt 491/26-30):
“A. Sure. Left foot on the brake, put the - engage reverse, so the siren - reverse siren is going off, so everyone's aware that the machine is going to reverse, look over left shoulder, right shoulder, check all mirrors, check reverse camera, check over left and right shoulder again, and then if it is clear and safe to reverse, foot off the brake and proceed to reverse.”
Mr Robertson said that that was the process he was taught in order to get his licence. He said it was the best way to make sure that there is nothing behind you. Mr Robertson said if you check the mirrors, look over your shoulder and check the camera “then there are no blind spots”.
Mr Robertson had gone home on the day of the incident but was called back. He said that around 3.30am on 22 April 2022 the site was handed back to ANJ by Inspector Hession, except for an exclusion zone where the forklift was parked. Apart from that the yard was fully operational.
Mr Robertson said that having seen the CCTV footage, the reverse camera screen would have shown Mr Spinks at the point where he was struck. Mr Robertson said he had not received any complaints about the walkways at the site and there were no complaints made by reach stacker operators about the lighting in the yard.
In re-examination Mr Robertson agreed that depending upon the height of the boom, the scope of the camera varies. In relation to the site being handed back, Mr Robertson said that this happened after ANJ took all of the precautions directed by SafeWork inspectors on the night of the incident.
Mr Chan was employed by MKD as a heavy truck driver. As part of that job he sometimes collected shipping containers from ANJ and sometimes delivered shipping containers to ANJ. He drove a truck and trailer owned by MKD.
Mr Chan was shown his run sheet for the night of 21 April 2022. It showed three trips which he made to the ANJ site. On the first trip he arrived at ANJ at 18.12pm and departed at 18.30pm. He delivered a container to MKD at Banksmeadow and 18.33pm and left MKD at 18.43pm. He did not see Mr Spinks.
His second trip was also to ANJ where he arrived at 18.47pm and left at 18.53pm. He took the container to MKD arriving at 18.57pm and he left MKD at 19.05pm.
The third trip to ANJ was one which involved arriving at ANJ at 19.10pm. The run sheet shows that he left ANJ at 19.20. On this third trip he parked behind the truck of Mr Spinks and waited for about ten minutes. He was stuck there. He did not see Mr Spinks when he was parked behind his truck. He stayed in the cabin of his truck all the time. After about 15 minutes someone from ANJ came over from the office and told him there had been an accident. He had to back his truck up and drive the long way around to leave the site. He went back to MKD.
On the night of the incident there was no one working at the gatehouse when he drove in. For his first two visits he stopped his truck at the stop sign and walked to the office to have the paperwork processed. He said that there was a sort of zebra crossing that was the footpath that he walked on. When he got back to his truck he waited until the reach stacker driver blew the horn which indicated that the container was ready. He stayed inside the truck until the reach stacker loaded the container onto his trailer. He then drove the truck to an area near the gatehouse where he pinned the container to the trailer.
Mr Chan said that he was given the short induction sheet the first time he went to ANJ. This was pre-incident. After the incident he went back to ANJ and was given a different and longer induction document.
Mr Hasan is the general manager of MKD. He has been in the business for 14 years. Prior to becoming general manager two months ago he was the general manager for operations for about two years and prior to that he was the operations manager. At the time of the incident MKD employed approximately 100 drivers.
Through Mr Hasan, ANJ tendered the following documents:
DX 19 Pre-employment Medical Assessment for Mr Spinks
DX 20 Casual Driver Employment Contract for Mr Spinks
DX 21 New Employee Checklist for Mr Spinks
DX 22 Induction Record for Mr Spinks
DX 23 HV Driver Assessment for Mr Spinks
DX 24 Driver Runsheet for Mr Spinks dated 21 April 2022
DX 25 MKD Work Health & Safety Policy
DX 26 MKD Work Health & Safety Policy attaching record of Toolbox meetings
Mr Hasan said that Mr Spinks was an employee of MKD and that he had started on 7 September 2020. The run sheet for Mr Spinks showed that on 21 April 2022 he signed on for work at 17.30pm. He did one job at a different site, before he drove to ANJ.
Mr Luna was a truck driver employed at the time of the incident by MKD. He did some trips to the ANJ depot on the night of the incident but was eventually stopped from doing another trip by the police.
I will not summarise the evidence of Mr Luna because I obtained no assistance from it. Mr Luna said that he was very badly affected by the death of Mr Spinks and he left the job. He was a very voluble witness and gave answers inconsistent with a prior interview he had with SafeWork. I formed the view that this was in no way deliberate. The answers he gave in the witness box and the answers he gave in the record of interview, which resulted in a successful application by SafeWork to cross-examine Mr Luna, were expressed in language which was difficult to understand. He was clearly wrong about the presence of pedestrian walkways at different times and about which walkway he had used from time to time to get from the truck parking area to the office. His evidence did not assist either party.
Detective Senior Constable Marcus Witts gave evidence via audio visual link from Albury Police Station. The connection was strong and clear. He attended the scene of the incident shortly after it occurred. A search was made of the truck of Mr Spinks. Personal belongings were located including two pairs of glasses, a mobile phone with headphones attached and a further pair of ear plugs.
A video interview conducted at ANJ by SC Witts with Mr Brown was played to the Court. The officer said that Mr Brown was distraught and emotional. SC Witts came to the view that the conversation was not really progressing the matter any further, over and above the information which the police already had.
Through SC Witts a police sketch and four police photographs were tendered (PX 16) to establish the presence of remnants of high vis clothing near the point of impact.
In cross-examination SC Witts gave evidence that he spoke to the mother and father of Mr Spinks. They told him that on the night of the incident, Darren woke at approximately 4.45pm, but he would usually wake earlier, prior to leaving for work.
Inspector Michael Preston created a factual inspection report which went into evidence (PX1, Tab 3). He attended the scene of the incident at 9.38pm. There he met with Mr Barry Robertson (director of ANJ), Mr Bradley Robertson (manager of J&J Robertson) and Mr Steven Robertson (manager of ANJ). He took the photographs which are reproduced at PX1, Tab 5 and PX1, Tab 6.
Inspector Preston interviewed various ANJ personnel at the site and recorded notes of those interviews in his notebook. One of the matters he recorded, was Mr John Robertson discussing the fact that there were two marked walkways from the truck parking area to the office. On that topic, Inspector Preston recorded the conversation as follows:
“And his answer was:
‘A. But, mate, truck drivers. I shouldn’t say this because I’m a truck driver myself, but take the shortest way, mate, you know. Unfortunately, most of them are overweight, elderly, and they want to make the shortest route to where they’ve got to go. So, yeah. So, anyway.
Q. So were there any signs or saying suggesting a preferred path to take?
A. To be honest, no. No.’”
(Tcpt 47/44 - 48/2)
In cross-examination Inspector Preston said he was the lead inspector in relation to the incident. His role was to conduct the investigation and gather evidence associated with the matter.
Senior Counsel for ANJ drew to the attention of Inspector Preston the fact that SafeWork had subsequently cancelled the reach stacker licence of Mr Brown. Inspector Preston was asked whether certain statements made by Mr Brown to other inspectors should have been followed up in Inspector Preston’s investigation. Inspector Preston accepted that he did not raise these further matters with Mr Brown. Much of the cross examination of Inspector Preston was concerned with the later steps taken by SafeWork inspectors to suspend and then cancel the reach stacker licence of Mr Brown. While this evidence served to introduce the contentious topic of the significance of the suspension then cancellation of the licence, Inspector Preston had played no part in making that decision, it being handled by other officers of SafeWork.
In cross-examination, Senior Counsel for ANJ was critical of Inspector Preston for not taking Mr Brown through the CCTV footage, to “conduct a proper investigation”. Inspector Preston did not accept that proposition (Tcpt 120/14). Inspector Preston did not show the CCTV footage to Mr Brown (Tcpt 122/38). Inspector Preston accepted that he did not ask Mr Brown about the steps he took to check for the presence of pedestrians before reversing a reach stacker (Tcpt 124/48-125/12).
The record of interview between Inspector Preston and Mr Brown was admitted into evidence, limited to being evidence of questions asked and the answers given, rather than the truth of what was said by Mr Brown (Tcpt 128/10).
Inspector Aaron Hession attended the ANJ site on 1 June 2022. He spoke to Mr Bradley Robertson, who told him that the hours of operation of the gatehouse had changed since the incident, and the gatehouse would now operate at all hours. Mr Robertson handed over a number of ANJ documents, which were received into evidence and are discussed below. Inspector Hession took a number of photographs which were received into evidence (PX2, Tab 24). These were described as “compliance photographs” and they record the steps taken by ANJ subsequent to the incident which satisfied Inspector Hession that there had been compliance with Improvement Notices.
In cross-examination, Inspector Hession agreed that the Improvement Notices had not required a physical barrier to be installed between where pedestrians were walking and where plant was operating. All the notices had said was that consideration needed to be given to such a barrier (Tcpt 162/1-11).
Inspector Hession was shown a SafeWork video concerning safety in the workplace where there was interaction between plant and pedestrians. He acknowledged that the video did not show a physical barrier between where pedestrians were walking and plant was operating.
Inspector Hession acknowledged that there was no prohibition notice issued on the evening of the incident (Tcpt 168/29). He agreed that by issuing the Improvement Notices, he had not stopped ANJ from continuing to operate until such time as the Improvement Notices had been complied with (Tcpt 168/35).
In re-examination, Inspector Hession said that he formed the view that the lighting in the area where the incident occurred was inadequate, there was not enough light and it was dark. He formed that view from his in-person inspection and also from the CCTV footage.
Inspector John Whatman held the position of Assistant State Inspector at the time of the incident. He visited the ANJ site the day after the incident ie 22 April 2022. He went there with Inspector Morris. Inspector Whatman said that he was told by Mr Barry Robertson that there were “design limitations on the machine”. The reach stacker monitor did not provide a full view of all pedestrians walking behind the machine when it reversed. This arose from the angle of the camera (Tcpt 188/50-189/2).
Mr Barry Robertson also told Inspector Whatman that there was no record of any induction having been conducted for Mr Spinks, and that any induction would have been done by “the truck company”, meaning the employer of Mr Spinks (Tcpt 189/34).
In cross-examination, Inspector Whatman accepted that in his view there was direct evidence that for Mr Brown to continue holding his high risk work licence, there would have been an imminent risk to others. The Inspector came to the view that Mr Brown failed to comply with a condition of the licence, being a reference to driving machinery safely (Tcpt 204/5-21).
On 27 April 2022 Inspector Whatman attended the home of Mr Brown, along with Inspector Davidson. He found Mr Brown in a distressed condition. He did make inquiries with Mr Brown about the incident and his questions and Mr Brown’s answers were recorded by Inspector Davidson in her notebook. One of the things recorded was a response to a question, as to whether Mr Brown remembered driving over a pedestrian walkway. His answer was: “We do it a hundred times a week when we come out of that stack. Problem is there are two walkways” (Tcpt 229/38).
Inspector Whatman accepted that he held the belief that Mr Brown’s conduct as the driver of the reach stacker had been a contributing factor to the incident, along with other factors (Tcpt 230/47).
Inspector Krispian Jelley held the position in April 2021 of an Inspector with the Third Party Verification Team.
In cross-examination, Inspector Jelley said that this team deals with the issue of high risk work licences. They verify that the assessors are undertaking high risk work licences assessments in accordance with a national assessment instrument. The team also looks at imposing sanctions on licence holders (Tcpt 387/5-15).
In cross-examination Inspector Jelley said that to obtain a reach stacker licence greater than three tonnes, an operator has to undergo a vocational education and training course (Tcpt 387/49). The Inspector was taken through the documentation leading up to the cancellation of Mr Brown’s reach stacker licence. This cancellation was based upon the viewing of the CCTV footage, the notebook entry of Inspector Davidson, and the summary of events contained in a letter dated 4 May 2022. This summary was as follows:
“About 7pm on 21 April, you were operating a Heister reach stacker in the north container yard at 3 Coal Pier Road, Banksmeadow, performing container movement operations. You drove the reach stacker with the 40-foot container into the area, crossing a marked pedestrian walkway. The container was placed on top another container. You then proceeded to reverse out along the way you came, with the boom still raised, back across the pedestrian walkway, where a person was walking at the time. The left rear steer tyre of the reach stacker has struck the person, who was using the walkway, causing serious injuries that resulted in the person's death.” (Tcpt 395/36-46)
Inspector Matthew Chionchio accompanied Inspector Jelley to Mr Brown’s home on 5 May 2022 to serve him with a Notice of Proposed Cancellation of the high risk work licence.
In cross-examination Inspector Chionchio said that he did not play any role in relation to the decision to cancel the high risk work licence (Tcpt 443/30). He did keep a notebook entry of his visit (Tcpt 445/30).
Inspector Maree Davidson gave evidence by AVL. The connection was clear and reliable.
Inspector Davidson attended the premises of Mr Brown on 27 April 2022 to accompany Inspector Whatman. Inspector Whatman was there to ask some questions in regard to issuing a Suspension Notice.
In cross-examination Inspector Davidson was taken to her notebook and confirmed the recording she made of questions and answers. This included a question of Mr Brown, as to whether he looked after he selected reverse. Mr Brown said:
“I look everywhere. I didn’t look long enough. I’m just trying to think – I have been thinking and I don’t know how I missed him.” (Tcpt 526/20-25).
Shortly after that statement was recorded Inspector Davidson stopped the interview as she observed Mr Brown to be very, very upset.
In re-examination Inspector Davidson was taken to that part of the notebook referred to above, where Mr Brown had said that reach stackers reversed over the pedestrian walkway “a hundred times a week” and “problem is there are two walkways” (Tcpt 528/8-14).
Mr Edward Spinks is the father of Mr Spinks. Edward Spinks gave evidence about his son’s activity in the hours before the incident.
Edward Spinks had an early dinner with his wife and Mr Spinks at about 12pm on the day of the incident. This was the usual time that Mr Spinks would stir (Tcpt 21/34–43).
In cross-examination Edward Spinks was challenged about the times that Mr Spinks woke up and left for work on the day of the incident. Edward Spinks said that Mr Spinks woke up at 3:30pm. He had a shower, got dressed, went downstairs and left for work at 4:30pm (Tcpt 26/38–41).
In re-examination Edward Spinks clarified that Mr Spinks followed his usual routine of waking up at 3:30pm and leaving home for work at 4:30pm.
I formed the view that Mr Edward Spinks was doing his best to recall the events. He has suffered a terrible tragedy. In relation to the time when his son woke up to go to work on the day of the incident, I find that the time he told SC Witts (4.45pm) is more reliable than his recollection in the witness box over three years after the event.
Clause 214(d) of the WHS Regulation, in force as at 21 April 2022, provided that “the person with management or control of powered mobile plant at a workplace must in accordance with Pt 3.1, manage risks to health and safety associated with… the plant colliding with any person or thing”.
Clause 215(4) provides that the PCBU “must ensure that the plant does not collide with pedestrians”. This creates a separate criminal offence.
275 Use of codes of practice in proceedings
(1) This section applies in a proceeding for an offence against this Act.
(2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.
(3) The court may—
(a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates, and
(b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.
Note.
See section 18 for the meaning of reasonably practicable.
(4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.
SafeWork tendered the Code of Practice entitled “Managing the Risks of Plant in the Workplace” (PX 3, Tab 25) dated August 2019. This code has been approved by the Minister.
The foreword to the Code (p 740) says that it provides practical guidance on how to achieve the standards of work, health and safety required under the WHS Act and Regulation, and effective ways to identify and manage risks.
Section 2 of the Code deals with the risk management process (p 749). Section 2.1 says that the first step in the risk management process is to identify all hazards associated with plant in the workplace. This involves finding things and situations that could potentially cause harm to people. An example of a typical hazard found in managing risks in the workplace is:
“Traffic movement in the workplace. For example, vehicles including powered mobile plant moving in and around a workplace, reversing, loading and unloading are frequently linked with death and injuries to workers and members of the public.”
The Code says (p 750) that further information on identifying these types of hazards is to be found in the SafeWork Australia Workplace Traffic Management Guidance Material. This material was tendered by the prosecutor at PX 3, Tab 26 and is considered below.
The Code says that information about hazards, risks and control measures relating to plant in the workplace can be obtained from manufacturers or suppliers of the plant (p 751).
Section 2.2 of the Code deals with assessing the risks (p 751). A risk assessment involves considering what could happen if someone is exposed to a hazard and the likelihood of it happening. A risk assessment can help determine: how severe a risk is; whether existing control measures are effective; what action should be taken to control the risk; and how urgently the action needs to be taken.
In assessing how likely is the hazard to cause harm, the PCBU must take into account: how frequently workers are exposed to the hazards; whether the plant is operating in a confined space; whether there are other people in the vicinity; whether there is pedestrian and vehicular traffic around the plant.
SafeWork tendered the SafeWork Australia Workplace Traffic Management Guidance Material dated April 2021 (PX 3, Tab 26).
Section 2.5.3 deals with isolation control measures (p 814). The document says that isolation involves physically separating the source of harm from people by distance or using barriers. It says, “a good way to minimise risk to pedestrians is to make sure people and vehicles cannot interact”. The document also says “where powered mobile plant is used at a workplace, you must ensure it does not collide with pedestrians or other powered mobile plant (p 851).
The document provides examples of how to isolate pedestrians from vehicles (p 815). These included: providing barriers or guard rails at building entrances and exits to stop pedestrians walking in front of vehicles; creating exclusion zones; and installing delineation devices.
The document refers to traffic management plans (p 815D). These must be available to workers on site. A traffic management plan should include details of the duties and responsibilities of the people involved: risks and relevant controls that are to be implemented; the desired flow of pedestrian and vehicle movements; and the expected frequency of interaction of vehicles and pedestrians.
The document says that examples of administrative control measures for vehicle and pedestrian routes include: providing separate, clearly marked footpaths or walkways (for example using lines painted on the ground or different coloured surfacing); and not allowing vehicles in pedestrian spaces or not allowing pedestrians in areas where vehicles operate (p 815F).
The document contains in Appendix ‘A’, a Traffic Hazard Checklist (p 815M).
SafeWork tendered the SafeWork Australia Workplace Traffic Management Information Sheet (PX 3, Tab 27). This said: “You must manage the risk of vehicles colliding with people at your workplace”. The document also said: “The best way to protect people is to keep them physically separated from vehicles”. The document acknowledged that it may not always be possible to separate people from vehicle operating areas, but that risks could be minimised in other ways, for example, by: providing gates or temporary barriers to separate vehicles from people; clearly marking vehicle areas with signs to warn pedestrians; clearly marking pedestrian walkways and crossings; and ensuring traffic areas are well lit.
The document said that “reversing vehicles are a significant hazard to pedestrians.”
This document (PX 6) was a Bulletin issued by SafeWork concerning the death of a farm worker who was run over by a reversing telehandler. The document says to “Keep people and vehicles apart”. If it is not reasonably practicable to separate people and vehicles, additional controls suggested were: using devices like reversing sensors, reversing cameras, mirrors, rotating lights or audible reversing alarms; having a spotter direct reversing vehicle; providing clearly identified designated reversing areas; and restricting the use of mobile phones by drivers and pedestrians.
The document said that businesses should develop a traffic management plan for the site which covers controls and procedures. There also had to be training, instruction and supervision for the workers on the traffic management plan.
The document concluded by saying: “Being hit by a moving object is one of the leading causes of fatalities in the manufacturing industry”.
This document (PX 7) issued by SafeWork concerned a worker who died as a result of being struck by a forklift. The document said that reasonably practicable control measures included: separating people from moving forklifts; using barriers or guardrails; if it were not possible to physically separate forklifts from people, designating exclusion zones; retrofitting warning devices like proximity senses; and talking to all workers about how to work safely around forklifts.
The document said that people working near forklifts must: always keep a safe distance; not work between the path of the forklift and a fixed object; stay on pedestrian pathways and/or exclusion zones and be aware that a forklifts operator’s field of vision is obscured.
This video was referred to in PX 6, but was separately tendered by ANJ (DX 29). It says that workers on foot should: obey all signage, wear correct PPE, listen for warning devices; stay alert for moving vehicles; remain within exclusion zones; and use marked pedestrian walkways.
The video also says that operators of mobile plant should: obey all signage; wear correct PPE; observe speed limits; use warning devices; cross pedestrian walkways with care; and stay alert for unexpected pedestrians.
SafeWork issued four Improvement Notices dated 22 April 2022 (PX 2, Tabs 19, 20, 21 and 22).
In summary, these Improvement Notices required ANJ to:
Conduct a review of the traffic management plan
Implement speed limits
Implement warning signage concerning pedestrian crossing, mobile plant and directions to safe areas and the site office
Provide isolation and exclusion zones where mobile plant is in operation
Provide physical barriers and protected access ways for pedestrians
Provide controlled crossing areas, for example gates at crossing points
Provide adequate lighting systems to illuminate access ways and work areas
Ensure that site induction procedures are developed, implemented and maintained by ANJ to ensure that all workers (drivers) who attend the ANJ site have been provided with an adequate induction in relation to the ANJ Traffic Management Plan and the safety procedures to be followed when attending the ANJ site.
The physical changes introduced at the ANJ site are best understood by reference to a “walk through” video showing the path now taken by drivers to get to the office (PX 2, Tab 23). This video showed the following:
A worker standing at the front of a parked truck and walking to the west.
The worker passes a large sign placed on the side of a container. This sign includes a large picture of the new TMP, as well as safety signs including one which says “BEWARE WATCH OUT FOR FORKLIFTS” and one which indicates that there is a “shared zone” with a pictogram of a forklift and a person on foot.
The worker then walks north along a narrow pathway between the western fence and containers. This pathway is marked by painted footsteps (not a zebra crossing as per the new TMP), and includes new lighting.
The worker then gets to the end of the northern pathway and turns right onto a marked zebra crossing which runs between stacks of containers. There is extra signage where the worker joins this zebra crossing. The zebra crossing proceeds to the end of the stack of containers, and at that point the worker has to cross a shared asphalt area which is used by mobile plant.
There is a push-pull gate blocking access to the shared area. The worker pauses at the closed gate and looks right and left for mobile plant and then opens the gate.
The worker then walks across the zebra crossing on the shared area and comes to another gate.
The worker pushes the gate open and is then on a north-south zebra crossing which runs between the wall of the office and some containers.
The worker is then at the door of the office.
There are photographs of some of the new features implemented. The push-pull gates are shown in photographs at PX 2, Tab 23, pp 699 and 701. The new signage is shown in photographs at pp 699, 700 and 709. The improved lighting is shown in photographs at pp 705, 706, 707, 708, 709, 710.
Later improvements to the push-pull gates consists of a large sign affixed to the gate which faces a pedestrian approaching the area shared with mobile plant. At p 725 is a photograph of the sign on the push-pull gate. A larger photograph of the sign is at p 700. The sign says against a red background “STOP”. Below that it says “LOOK RIGHT/LEFT WATCH OUT FOR FORKLIFTS”. There is a pictogram of a forklift and a pictogram representation of eyes on either side of the word “LOOK”. It is certainly a sign which could not be missed.
The eastern half of the southern pedestrian walkway has been eliminated by painting over the eastern edge of the southern zebra crossing with black paint, and painting over the southern diagonal walkway where Mr Spinks was struck by the reach stacker. This is shown best in the photograph at PX 2, Tab 24, p 736.
39 Provision of information, training and instruction
(1) This clause applies for the purposes of section 19 of the Act to a person conducting a business or undertaking.
(2) The person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to—
(a) the nature of the work carried out by the worker, and
(b) the nature of the risks associated with the work at the time the information, training or instruction is provided, and
(c) the control measures implemented.
Maximum penalty—
(a) in the case of an individual—70 penalty units, or
(b) in the case of a body corporate—345 penalty units.
(3) The person must ensure, so far as is reasonably practicable, that the information, training and instruction provided under this clause is provided in a way that is readily understandable by any person to whom it is provided.
Maximum penalty—
(a) in the case of an individual—70 penalty units, or
(b) in the case of a body corporate—345 penalty units.
The new induction document is at PX 2, Tab 23, pp 688-695. It includes a copy of the new TMP (at p 694).
Topic 3 in the new induction refers to “pedestrians”. It starts with a reproduction of three safety signs emphasising the need for pedestrians to follow the pedestrian walkways, look both ways, and watch out for forklifts. It says:
“All visitors to site MUST walk within the designated walkways wherever possible while on site, this includes yard and warehouse.
Mobile plant and equipment such as forklifts, stackers and other equipment have RIGHT OF WAY at all times**.** Remember, mobile plant drivers may have reduced visibility. You MUST give way to mobile plant and make sure that it is safe to do so before crossing any open areas.
Please remember that ANJ is a working yard with mobile plant moving at all times. You must ensure you are aware of your surroundings and be sure to look for mobile plant.
DO NOT walk behind or approach any mobile plant or vehicle from behind. Only approach a vehicle or mobile plant once the driver has sighted you and acknowledged that you are present.
LISTEN for vehicle and mobile plant reversing alarms and horns and WATCH for flashing lights.
DO NOT walk between stacked rows of containers.”
“All persons / vehicles MUST report to the ANJ Gatehouse upon entry and exit. From there you will be directed as to where to go. Before entry, all visitors will be asked to conduct a site induction. All visitors to site must be signed in and out at the entry / exit gatehouse.”
SafeWork issued a Notice under s 154 of the WHS Act to Hyster-Yale (PX 3, Tab 29). Questions 21 and 22 were answered by Hyster-Yale to the following effect:
Manufacturer presence sensing technology is not fitted as standard to the Hyster reach stacker.
The selection of an optionally available rear radar object detection system from Hyster’s special products engineering department is dependent on application and customer specific requirements.
The answers to questions 27 and 28 were to the effect that it is not common industry practice to fit reverse viewing cameras to reach stackers or to fit presence sensing technology to reach stackers.
Mr Mercer provided a statement which was tendered by SafeWork (PX 3, Tab 30). Mr Mercer is the director of products, applications and solutions with Hyster-Yale. He has been employed by Hyster-Yale for 27 years. He holds a Diploma in Mechanical Manufacturing and Design, and a Master of Business Administration and Management.
Mr Mercer confirmed that the reach stacker involved in the incident was fitted with a non-adjustable 112 decibel audible back up alarm, which emits a louder alarm when the reach stacker is shifted into reverse, than the standard alarm of 102 decibels.
Mr Mercer noted that the rear-view camera had been installed by ANJ on the boom of the reach stacker. Hyster-Yale does not install cameras on the boom of reach stackers. If the rear camera was installed by Hyster-Yale, it would be fitted to the counterweight at the rear of the reach stacker. Mounting a camera on the boom means that the view obtained by the camera varies with the boom raising and lowering. This would not happen if the camera was mounted on the body of a reach stacker. Mr Mercer said that an operator should not rely solely on the camera and should always look in the direction of travel.
Mr Mercer was shown the CCTV of the incident. He observed at time stamp 19:00:01 that the two reverse lights on the reach stacker, which were white, came on. The audible alarm should have gone off at that same time. Mr Mercer commented that “the deceased pedestrian had walked past the reach stacker before its reversing lights came on and that the reversing lights are activated when reverse gear is engaged in the cabin”.
In his oral evidence Mr Mercer said that the Hyster operating manual stated that the reach stacker should yield right of way to pedestrians, because “in the event that pedestrians are in the proximity of the vehicle, it’s common practice or normal practice for the operator to give to pedestrians.” Mr Mercer said that this came from his experience as a trained forklift driver (Tcpt 582/45-50).
In cross-examination Mr Mercer agreed that the operator of a forklift had to be aware of the possibility that there would be pedestrians in the area where the forklift was operating. The operator either had to give pedestrians the opportunity to pass, or the pedestrians had to give the forklift the opportunity to pass. There should be communication between the pedestrian and the forklift by making eye contact and signalling (Tcpt 586/45-587/10).
Mr Mercer acknowledged in cross-examination that the Australian Standard applicable to reach stackers did not mention reversing cameras (Tcpt 589/10) and did not recommend a rear presence sensing device (Tcpt 591/5).
In cross-examination Mr Mercer agreed that an operator of a reach stacker should look in the direction of travel and that the mirrors should be used as an aid. The mirrors were there to provide additional support when reversing (Tcpt 589/18-50).
Inspector Jacob Morris, who holds a Bachelor of Mechanical Engineering, provided a written report dated 12 May 2025 (PX 3, Tab 31). Inspector Morris has frequently conducted inspections and incident investigations involving a large variety of mobile plant. He came to the view that the general condition and function of the reach stacker was satisfactory. He said that the rear view camera had “blind spots” and the efficacy of this device in mitigating the risk of a collision was reliant on the actions of the operator. The report of Inspector Morris contained photographs to demonstrate the blind spots in the reversing camera, which emerged once the boom of the reach stacker was raised to about 45 degrees. A worker who was in close proximity to the rear of the reach stacker could not be seen when the boom was raised. As the boom angle changed through operation of the reach stacker, the angle of the camera would change which would limit its functionality.
In par 38 of his report, Inspector Morris said:
“A higher order control measure, such as an engineering control measure, would be effective in managing the hazard without the operator’s intervention, such as a proximity sensor that can apply the brakes in the event that a hazard is detected.”
“Depending upon the specifics of the detection system, these control measures may audibly alert the operator should an object be detected (ie not rely on the operator’s ability to identify an obstruction in the mirrors, or the camera screen) and may also be configured to automatically brake the mobile plant when an object is detected, without the need for the operator’s interaction (ie an engineering control that does not rely upon human behaviour).”
Inspector Morris was called to give oral evidence. In cross examination he agreed that the cameras and the mirrors are only effective if the operator looks at them and responds accordingly. The operator must look and remain vigilant (Tcpt 613/49-614/6).
Inspector Morris accepted that after the incident next door at Visa, SafeWork did not issue any alerts to industry mandating that reach stackers needed to have a reversing camera fitted (Tcpt 616/3-5).
Inspector Morris accepted that in preparing his report he did not obtain any evidence as to the availability or cost of rear sensors with automatic braking, nor did he obtain any information as to whether such a system could be fitted to a Hyster reach stacker (Tcpt 624/3-6).
I pause to note that while there was evidence that Hyster could supply a “rear presence sensing device” there was no evidence that such a device would automatically brake the reach stacker if a person was detected.
Ms Deborah Donald holds the degrees of Bachelor of Engineering (Civil) and Master of Engineering Science (Research). Ms Donald has had over 40 years of experience in road planning, road construction, road design, road safety and traffic engineering. In the past 27 years Ms Donald has particularly dealt with operational traffic engineering, covering all areas of traffic engineering including substantial road safety related work, including road safety audits and road safety reviews. SafeWork tendered her report dated 19 May 2025 (PX 4, Tab 42). Ms Donald was provided with a large amount of documentary material and a statement of assumptions to be made about the facts (PX 4, Tabs 40 and 41).
Ms Donald summarised her conclusions at par 33 of the report as follows:
“In my opinion the system in place was inadequate given the specifics of the site. These specifics include the type of vehicles and the way they operated, the design of the site requiring pedestrians to cross an active roadway, the angled walkway, the lack of clear guidance to all users about who had right of way and the lack of fencing, gates etc to manage pedestrian movements. The method of operation of the site had the clear potential to place a pedestrian and a vehicle in the same space at the same time, with fatal consequences at the time of the incident.”
Ms Donald noted at par 36 of her report that the pre-incident TMP did not include any information about whether pedestrians or the reach stacker had right of way. Nor was this made clear in any written procedural policy, traffic management plan or signage at the site.
Ms Donald also considered the pre-incident induction document, and noted that it only mentioned pedestrians and walkways in the context of the warehouse, rather than the site as a whole.
Ms Donald was provided with the post-incident induction document. She said at par 46:
“In my opinion the later document provides clearer guidance in relation to right of way than the Induction Checklist. However, even if the Health and Safety Induction was in use at the time of the incident I believe the incident would still have occurred given the specifics of the incident, where it is clear that the pedestrian did not see reach stacker reversing, and the reach stacker driver had no idea there was a pedestrian behind the reach stacker.”
“This type of painted walkway has no legal meaning and applies no right of way to either pedestrians or vehicles. It is merely a suggested pedestrian path.”
“In my opinion this is another indication that there was confusion about who had right of way in this area.”
In par 64 of her report Ms Donald set out her view as to the most suitable steps which could have been taken at the ANJ site. They were:
A zebra crossing which imposed a legal requirement on vehicles to give way to the pedestrian.
The reach stacker should only have been driven in a forward direction across any pedestrian crossing.
Pedestrian activated signals would have been an option, with push buttons on both ends of the pedestrian walkway that showed a red light to the vehicles when the button was pressed.
Physical pedestrian facilities such as pedestrian fencing and kerb extensions would have minimised the risk to pedestrians.
Some form of active warning signs or lights activated by a pedestrian could have made the reach stacker driver aware there was a pedestrian present in the area.
Ms Donald had access to a software program called Nearmap, which provides aerial photograph of sites from time to time. Using the Nearmap photograph, Ms Donald concluded (par 73) that the southern pedestrian crossing and walkway were painted on the asphalt of the yard sometime between 22 January 2020 and 12 April 2020. An aerial photograph taken on 22 January 2020 (figure 15) clearly shows only the northern zebra crossing and shows no crossing of any sort to the south ie running from the truck parking area east towards the office. An aerial photograph dated 12 April 2020 (figure 14) shows the zebra crossing running to the east from the truck stopping area, and shows the painted pedestrian walkway from the eastern end of the southern zebra crossing to the office.
Ms Donald was called to give oral evidence. Ms Donald acknowledged that she did not always recommend pedestrian gates, particularly when considering Traffic Management Plans for customer carparks and supermarkets. Pedestrian gates would just not be practicable. Ms Donald agreed that the safety precautions to be taken depend on the site and the purpose of the precautions (Tcpt 633/20).
Ms Donald explained the process of obtaining Nearmap aerial photographs. Ms Donald was cross examined about the steps which she said in her reports should have been taken to improve pedestrian safety at the ANJ site.
The medical records that were considered by the experts (in reports and in oral evidence) were:
Autopsy Report for the Coroner on the death of Darren Spinks, Department of Forensic Medicine, Sydney, NSW Forensic 7 Analytical Science Service, NSW Health Pathology, dated 18 April 2023 (PX 4, Tab 33A, p 1159)
Certificate of Analysis, NSW Forensic & Analytical Science Service, NSW Health Pathology, dated 12 May 2022 (PX 4, Tab 33B, p 1168)
Certificate of Analysis – Supplementary Certificate, dated 30 June 2022 (PX 4, Tab 33C, p 1173)
Radiology Report, NSW Forensic & Analytical Science Service, NSW Health Pathology, dated 11 May 2022 (PX 4, Tab 33D, p 1174)
Documents from Services Australia in relation to Mr Spinks:
(a) Medicare Patient History Report for the period of 1 March 2010 to 21 April 2022 (PX 4, Tab 33A(I), p 1209) (b) Individual Prescribing History for the period of 1 March 2010 to 21 April 2022 (PX 4, Tab 33A(II), p 1221)
Diazepam (Valium) and metabolites of diazepam were identified in the blood samples. Dr Perl said that the concentration of diazepam was in the therapeutic range. There was evidence of Mr Spinks using daily prescribed doses.
Dr Perl opined that there may have been an impairment due to diazepam, however due to Mr Spinks’ chronic use of prescribed doses there may also have been no appreciable impairment due to the diazepam. Dr Perl said that the diazepam “in combination with other drugs which can impair the central nervous system (eg pregabalin), the diazepam may have been an additive factor, exacerbating the impairment due to the pregabalin” (PX 4, Tab 34, p 1182).
“10.1 Pregabalin is used as an anticonvulsant in the treatment of epilepsy or in the treatment of neuropathic pain. It is available under the brand name Lyrica, Lypralin, Lyzalon and various generics.
…
10.3 Pregabalin is predominantly excreted unchanged in the urine ie. It is eliminated via the kidneys, therefore, renal dysfunction can alter the clearance of pregabalin from the body. Pregabalin undergoes negligible metabolism by the liver in humans, therefore, there is unlikely to be pharmacokinetic interaction with other drugs. However, pregabalin can exacerbate the impairment of other central nervous system depressant drugs such as alcohol, benzodiazepines etc.”
“10.10 At a pregabalin concentration of 36 mg/L in the Deceased, it is more likely than not that there would have been some impairment of psychomotor functions due to drowsiness and there may have been reduced awareness of his surroundings, ataxia (unsteadiness) and blurred vision, especially in combination with diazepam. However as indicated above tolerance does occur to both pregabalin and diazepam and the Deceased may have been minimally impaired.”
Dr Perl said that telmisartan does not appear to have adverse psychomotor effects which would impair driving ability.
Dr Perl concluded that only the pregabalin (with possible additive effects from diazepam) is likely to have impaired Mr Spinks’ capacity to be aware of his surroundings. However, the degree or level of Mr Spinks’ impairment cannot be determined from the blood concentration alone.
Dr Perl provided the second report (PX 4, Tab 37) and the third report (PX 4, Tab 39) in response to being provided with additional medical records of Mr Spinks. After considering the additional material Dr Perl’s opinion about the impairment of Mr Spinks did not change.
Dr Perl was called to give oral evidence. Dr Perl acknowledged in cross-examination that she was not in a position to conclude what the extent of the impairment of Mr Spinks may have been on 21 April 2022. Dr Perl could not say there would have been impairment but did say it was likely there would have been some impairment (Tcpt 571/4-25).
Dr Perl said that she was aware from the medical records that Mr Spinks had suffered from sleep apnoea. This can affect a person’s functioning. The use of diazepam with sleep apnoea can make things worse “in terms of the individual’s situational awareness” (Tcpt 574/38-50).
Dr Robertson said that he generally concurred with the comments and opinions of Dr Perl.
Dr Robinson said:
“4.5.1 With respect to pregabalin, the blood concentration was higher than expected when used therapeutically. The concentration is consistent with concentrations associated with impairment and would likely have resulted in an amount of drowsiness and associated impairment of attention, awareness, judgement and decision making together with a likely increase in reaction time. When it is assumed Mr Spinks drove a truck to the site and was following directions to attend the site office etc., there is no evidence of confusion at or about the time of the incident.”
Dr Robertson said that some impairment is likely but the magnitude of impairment cannot be determined with accuracy given unknown variables such as the time of last dose and Mr Spinks’ level of tolerance to pregabalin.
Dr Robertson opined that the blood concentrations of diazepam and nordiazepam were relatively low. Dr Robertson said that if the drug was last used the evening prior to the incident any impairment or adverse effects may have been minimal at the time of the incident. However any impairment would have been additive to any pregabalin-related sedation and associated impairment.
Dr Robertson said that it was not likely that there would have been a material impairment to Mr Spinks’ ability to see or hear.
Subject to the reservations expressed above concerning the evidence of Mr Edward Spinks and Mr Luna, I found all witnesses to be reliable. There really is no dispute about what happened.
I make the following findings of fact:
As per the Agreed Facts in pars 45-57 above
As to the ANJ site and the ANJ system – as per pars 58-76 and pars 114-139 above
As to what can be seen on the CCTV footage – as per pars 78-91 above
As to what Mr Brown said about the incident – as per pars 92-97 above
As to the suspension and cancellation of Mr Brown’s licence – as per pars 98-113 above
As to the time when Mr Spinks woke up to go to work on the day of the incident – as per par 188 above.
As to the relevant guidance material – as per pars 189-214 above
As to systems of work adopted by ANJ after the incident – as per pars 215-227 above
As to additional devices for the reach stacker – as per pars 228-229 above
As to the possible level of impairment of Mr Spinks on the night of the incident – as per pars 264, 266 and 270-273 above.
As to the appropriate steps to be taken by an operator reversing a reach stacker – as per pars 235 and 237 above.
SafeWork supplied written submissions (MFI 53). SafeWork submitted as follows:
ANJ had a duty to the category of persons to which Mr Spinks belonged because it was reasonably foreseeable that mobile plant might have a collision with a pedestrian walking on foot on the site, whether on a marked walkway or otherwise.
Having a marked walkway did not mitigate the possibility of a collision where the area in question was designated as “shared use” and where there was ambiguity as to whether a vehicle or pedestrian had right of way.
Other factors such as poor lighting, lack of plant reversing sensors, and the possibility of blind spots during complex loading and plant manoeuvres, exacerbated these risks and added to their foreseeability.
The presence of markings similar to zebra crossings were depicting a walkway that may have led a pedestrian to believe that he or she had right of way as is the case on public roads.
ANJ failed to comply with its duty in the following respects:
(a) There was no safe work statement or policy in place (b) The site safety plan was inadequate (c) There were no instructions for right of way in a shared zone (d) The diagonal walkway resembled a zebra or pedestrian crossing (e) There were no instructions for using the original rear walkway (f) There was no safety induction for visiting truck drivers (g) There were blind spots for the drivers of reach stackers
On the issue of causation, SafeWork submitted as follows:
ANJ has submitted that the incident was caused by a combination of improper operation of the reach stacker by Mr Brown and Mr Spinks keeping an insufficient lookout for mobile plant. Establishing the cause of the incident is not the prosecution’s task in establishing the element of causation.
SafeWork must establish whether or not the reasonably practicable measures pleaded are causally related to the risk: Bulga at [130]. If the measures pleaded had been implemented, then the risk would have been significantly mitigated.
A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313 at [320] per Dixon CJ.
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.
The argument that Mr Spinks should have been alerted to the presence of the approaching reach stacker fails to take account of the likelihood that Mr Spinks believed that he had right of way over the reach stacker or that his presence would have been observed by the reach stacker driver.
Senior Counsel for SafeWork made the following additional oral submissions:
The defendant has focused on what caused the incident, which is not the proper test in relation to element 4 of causation. The defendant points to the failings of Mr Brown and Mr Spinks. This directs attention away from the fact that regardless of what Mr Spinks or Mr Brown did or did not do, the defendant had a duty to ensure health and safety, so far as reasonably practicable, to Mr Spinks.
There was no safe work system for visitors who were coming to collect containers, in particular to avoid collision with reach stackers.
ANJ was the creator of the risk and new of the risk. After 3.30pm the gatehouse was closed and the driver would have to drive in and walk on foot to the office. ANJ was aware of what the truck drivers would have to do. ANJ were also aware that there were two possible pathways which would take the truck driver to the office. The existence of two pathways assisted in creating the risk.
Even if Mr Spinks had been inducted onto the site and given the form of induction in use by ANJ at the time, that document said nothing about whether a pedestrian or a reach stacker had right of way. The induction said nothing about the risks of being struck by mobile plant.
The risk of someone being struck while walking in the shared area must have been an obvious risk at the time of the incident. There had been a similar incident at Visa, the neighbouring business, where a worker had been run over by a reach stacker.
“If the Crown has proved the guilt of the accused for the offence charged in that count, then your verdict would be guilty and you would not be required to consider whether the Crown had proved the guilt of the accused for the offence charged in the alternate count.”
“The offender is only convicted on the principal offence and generally no proceeding can be taken or continued in relation to the further offences.”
ANJ provided written submissions dated 16 February 2026 (MFI 54).
In relation to causation, ANJ referred to the principle of novus actus interveniens. In the written submissions ANJ cited the unreported decision of Fisher CJ in Inspector Davies v Prospect Electricity, unreported, 9 November 1992. At pp 7-8 Fisher CJ said:
“My conclusion is that the sole cause of the accident was that through some inexplicable inadvertence the two men did not attend to a safe system of work which they had undoubtedly been thoroughly taught and for many years had consistently followed, which failure led directly to a fatal accident which in the full sense of the word [was] an accident. No other explanation would appear to be available.”
ANJ submitted that the reasoning of Fisher CJ was “equally applicable to the facts in this case”. I do not accept that submission. For reasons set out below, the system of work, in particular the system of traffic management, at the ANJ site was not “a safe system of work”. Nor was it a system that workers had been “thoroughly taught” or which they had “consistently followed” for many years. The reasoning for this conclusion is dealt with below.
ANJ submitted that the Court should find the account of Mr Edwards Spinks given to police just 19 days after the accident is the most reliable one. This included Mr Spinks saying to Senior Constable Witts that his son had woken at 4.45pm which was “unusual”. I have already indicated above my finding that the account Mr Spinks gave to the police is the most probable and accurate recollection of the time at which the deceased woke up on the day of the incident.
ANJ submitted that on the night of the incident Mr Brown failed to operate the reach stacker with reasonable care and competence. ANJ further submitted that the failures of Mr Brown “rose to a level of dangerousness which put Mr Spinks at a real risk of being struck by the machine”. I accept this submission for reasons set out below.
I also accept the submission made for ANJ that the failures of Mr Brown were a significant or substantial cause of Mr Spinks being exposed to the risk of death or serious injury. My reasoning is set out below.
ANJ submitted that there was only one reason why Mr Spinks behaved as though the machine was not there. This was because he was so impaired by the combination of Valium and Pregabalin that he failed to appreciate his surroundings and the presence of the reach stacker. I deal below with the impairment, and degree of impairment, of Mr Spinks. I note at this stage that Dr Robertson, the expert called by ANJ, took account of the fact that Mr Spinks was able to drive a heavy vehicle into the ANJ site, along the parking bay for his vehicle, park it between the yellow lines, stop on the stop line, and head towards the office as he was required to do. These facts suggest that there was not a great degree of impairment present on the night of the incident.
ANJ submitted that it had a legitimate expectation that an experienced driver of a semi-trailer on a public road who attended its site to collect heavy freight would not be so impaired so as to be prepared to walk behind an enormous machine in operation.
ANJ submitted that even with the steps which Ms Donald said should have been taken to make the site safer, there would still have been areas which were shared between reach stackers and pedestrians. I accept this is so. However, all this means, that a general level, is that while it was not possible to eliminate the risk, consideration must be given to whether or not steps could or should have been taken to minimise the risk, if reasonably practicable.
“Where it is obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus on the prosecution to prove the employer’s failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt.”
ANJ did not dispute that it was a PCBU which owed health and safety duties under the WHS Act. The only matter put in dispute in relation to Element 2 was whether Mr Spinks was a “worker” within the meaning of the WHS Act, or whether he was to be categorised as an “other person”.
Section 7(1) of the WHS Act provides as follows:
7 Meaning of “worker”
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—
(a) an employee, or
(b) a contractor or subcontractor, or
(c) an employee of a contractor or subcontractor, or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or
(e) an outworker, or
(f) an apprentice or trainee, or
(g) a student gaining work experience, or
(h) a volunteer, or
(i) a person of a prescribed class.
Mr Spinks did not fall into any of these categories. He was an employee of MKD, not of ANJ. MKD was not a contractor to ANJ. Rather the evidence showed that MKD was engaged by the owners of containers to pick up containers from the ANJ site or to drop them off there. Mr Spinks was not a labour hire worker to ANJ. Nor did he fall into any of the other categories.
Given those findings, I find that the duty which the WHS Act imposed upon ANJ in relation to Mr Spinks was the duty prescribed by s 19(2) of the WHS Act, which provides as follows:
19 Primary duty of care
(2) 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.
19 Primary duty of care
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
(a) the provision and maintenance of a work environment without risks to health and safety, and
(b) the provision and maintenance of safe plant and structures, and
(c) the provision and maintenance of safe systems of work, and
(d) the safe use, handling, and storage of plant, structures and substances, and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and
(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
(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.
“The risk was of persons, particularly Mr Spinks, suffering serious injury or death, as result of being struck and/or runover and/or dragged by and/or otherwise coming into contact with mobile plant at the site.”
18 What is “reasonably practicable” in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
I find that given the large number of potential interactions between mobile plant and pedestrians at the site, particularly drivers, there was a significant likelihood that a reach stacker might come into contact with a driver walking to the office. This was particularly so at night when lighting and visibility was reduced. The risk was heightened by the illusion of safety created by ANJ providing the southern zebra crossing and the diagonal walkway.
To put it another way, the risk that there would be a collision between mobile plant and a driver was reasonably foreseeable. Mr Brown said that the reach stacker was reversed across the pedestrian walkway a hundred times a week, including movement at night. Besides the two reach stackers, there were 25 smaller vehicles and 200 trucks a day travelling through the ANJ yard. In making this finding, I assess the likelihood of the risk prospectively and not retrospectively.
ANJ had direct knowledge of the serious risk posed by a possible collision between a reach stacker and a worker on foot. It knew of the death at the adjacent site Visa. It held toolbox talks with its workers spelling out the risk of death or serious injury.
ANJ knew or ought reasonably to have known about the risk and the ways of eliminating or minimising the risk, through the available guidance material.
I will now deal with the more specific question of whether ANJ failed to comply with its health and safety duty to ensure, so far as is reasonably practicable, that the health and safety of other persons, particularly Mr Spinks, was not put at risk from work carried out as part of the conduct of the business or undertaking. I have set out my findings of fact in relation to the factors to be taken into account on the issue of reasonable practicability. In summary, those facts support the following propositions:
There was a significant likelihood that the pleaded risk would occur. The risk was reasonably foreseeable.
The degree of harm that might result from the risk was significant.
ANJ had actual knowledge of the risk, and further, it ought reasonably to have known of the risk.
ANJ ought reasonably to have known about ways of eliminating or minimising the risk.
There were available suitable ways to eliminate or minimise the risk.
The costs to ANJ of the available ways of eliminating or minimising the risk were not great and were not grossly disproportionate to the risk.
I now consider each of the reasonably practicable measures which were pleaded in the Further Amended Summons.
At this point I repeat that the duty under s 19(2) of the WHS Act is to “ensure, so far as is reasonable 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.” Section 17 of the WHS Act says that a duty to ensure health and safety requires the person to eliminate risks to health and safety, so far as is reasonably practicable. In the case of ANJ, the elimination of the risk of a collision between a reach stacker and a pedestrian could not be eliminated. There were necessarily areas at the ANJ site which were shared spaces. In those circumstances the duty to ensure health and safety required ANJ to minimise the risk as far as is reasonably practicable.
“Conducting an adequate risk assessment to identify the hazards and risk of vehicles and moving plant, including reach stackers, at the site, taking into consideration the shared zone at the site, and to enable the development and implementation of adequate control measures”.
No risk assessment was ever undertaken by ANJ. As previously recited, the Code of Practice entitled “Managing the Risks of Plant in the Workplace” (PX 3, Tab 25) dated August 2019 says that a risk assessment involves considering what could happen if someone is exposed to a hazard and the likelihood of it happening. A risk assessment can help determine: how severe a risk is; whether existing control measures are effective; what action should be taken to control the risk; and how urgently the action needs to be taken. In assessing how likely is the hazard to cause harm, the PCBU must take into account: how frequently workers are exposed to the hazards; whether the plant is operating in a confined space; whether there are other people in the vicinity; whether there is pedestrian and vehicular traffic around the plant.
A risk assessment would have taken into account that: there was regular movement of many pieces of plant about the site; about 200 trucks a day attended the site; many of those drivers would have traversed the southern crossing to get to the office or the toilets; drivers were never told who had right of way; by contrast, ANJ employees were told that plant had right of way. A risk assessment would have identified the measures to minimise the risk and come to the conclusion that it was urgent that action be taken
I find that SafeWork has established that the measure pleaded in par 11(a) of the Further Amended Summons was one which ANJ should have taken.
“Isolating pedestrians from mobile plant through establishing and implementing exclusion zones around the areas of mobile plant operation by any combination of physical barriers or rails and signage”.
The guidance material establishes as a basic principle that pedestrians and plant should be separated, to the extent which is reasonably practicable. After the incident ANJ abolished the use of the southern crossing, and directed all drivers to the northern crossing, where there was much less chance of a collision. Further, the spring loaded gates meant that a pedestrian could not just walk straight past a large container, straight into the path of a moving reach stacker, but had to pause and look. ANJ introduced signage and a give way to mobile plant rule. By these means, which could and should have been in place before the incident, ANJ isolated pedestrians from mobile plant to a much greater degree than had been the case. Isolation could not be absolute, but the risk was minimised by taking obvious and reasonably practicable measures.
I find that SafeWork has established that the measure pleaded in par 11(b) of the Further Amended Summons was one which ANJ should have taken.
“Developing, implementing and enforcing a Traffic Management Plan which included:
(i) Control measures to separate pedestrians from vehicles and powered mobile plant; (ii) Exclusion zones around the areas of mobile plant operation by any combination of physical barriers or rails and warning signs; (iii) A clear procedure, including signage, for establishing who had right of way at pedestrian crossings or walkways; and (iv) Control measures to address blind spots for reach stacker operations”.
The old TMP was grossly deficient, and indeed put drivers in harm’s way. The elimination of the southern crossing, and the mandating use of the northern crossing, were essential aspects of the improved safety at the site.
I find that SafeWork has established that the measure pleaded in par 11(c) of the Further Amended Summons was one which ANJ should have taken.
“Providing information and instruction to all visitors attending the site on the traffic management system, such as the one set out in paragraph 11(c) above”.
The new TMP was displayed so that drivers could see it, unlike the pre-incident situation. This was a commonsense measure to bring the new TMP to the attention of drivers, including those who had been to the site before under the old abandoned system. The old TMP was on the wall of the office, hardly a good place to bring it to the attention of those drivers who just wanted to present their paperwork after hours and be on their way.
I find that SafeWork has established that the measure pleaded in par 11(d) of the Further Amended Summons was one which ANJ should have taken.
“Confirming that all workers and visitors who attend the site are inducted into the defendant's traffic management system, such as the one set out in paragraph 11(c) above”.
Drivers were inducted into the new system and the new TMP. This was a commonsense measure to bring the new TMP to the attention of drivers, including those who had been to the site before under the old abandoned system.
I find that SafeWork has established that the measure pleaded in par 11(e) of the Further Amended Summons was one which ANJ should have taken.
“Installing adequate lighting in areas of mobile plant operation and traffic routes where pedestrians are required to walk or cross such traffic routes”.
The lighting in the area of the incident was dull, and was improved after the incident. Any improvement is better than none. Better lighting gave a plant operator more chance of seeing a pedestrian at night. The ANJ site was in an industrial area, so there was no restriction on having bright lights.
I find that SafeWork has established that the measure pleaded in par 11(f) of the Further Amended Summons was one which ANJ should have taken.
“Installing presence sensing devices, such as a 'rear radar object detection system', or integrated motion senor to restrict operation of the reach stacker when an object is detected within proximity of the reach stacker”.
The evidence was that presence sensing devices could be supplied by Hyster for this reach stacker, just as reversing cameras were. There was no evidence from Mr Mercer that this after market safety feature also automatically braked the reach stacker. The evidence was also that it was not common practice to fit presence sensing devices to reach stackers. One wonders why not. I take judicial notice of the fact that modestly priced sedan cars now come with this safety feature as standard. The evidence showed that a reach stacker which delivers a container to a stack, or which picks up a container from a stack, reverses away from the stack. The driver of a reach stacker which is reversing, as Mr Brown did on the night, is carrying out a complex manoeuvre, not only reversing but also driving backwards in an arc because of the confines of the site. Anything which gives the driver more chance of avoiding a collision with a pedestrian is a worthwhile reasonably practicable measure to take.
I find that SafeWork has established that the measure pleaded in par 11(g) of the Further Amended Summons was one which ANJ should have taken.
The relevant question on causation is not whether the failures of the defendant were the cause of the injuries to Mr Spinks, but whether the acts or omissions of ANJ were a substantial or significant cause of other persons being exposed to the risk of injury: Bulga at [127], [130].
That question must be considered in the light of the objects of the WHS Act and the provision contained in s 19(2), namely to ensure the health and safety of other persons: Bulga at [129]-[130].
The Court of Criminal Appeal considered the issue of causation in Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwritten calculations only and did not run a computer model, which was available, to check its calculations. The trial judge found that the element of causation was established.
The Court of Criminal Appeal allowed the appeal in relation to causation and quashed the conviction. The basis upon which the Court did so is best expressed by Simpson AJA at [2] as follows:
“I agree, for the reasons given by Cavanagh J, that each appeal succeeds on the issue of causation. Grasso Consulting Engineers Pty Ltd (‘GCE’) gave relevant advice, specifically in the certificates of 11 February 2016 and 9 March 2016. Had that advice been acted upon and had the roof collapsed, GCE and Mr Grasso may have been held liable for the exposure of individuals to risk of injury, those individuals including Messrs McClutchie and Hayward. However, as the advice given by GCE was not acted upon and different instructions were given to the demolition workers, the chain of causation was severed. It was not any failure on the part of GCE or Mr Grasso that exposed the demolition workers to the risk of injury; it was the decision to demolish in accordance with the plan prepared by Mr Arnold. I agree, therefore, that grounds 4 and 5 must be upheld.”
“I further agree with his Honour that grounds 4 and 5 of the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised.”
“229 In this matter the question of causation arises for the purposes of attributing blame in the criminal context. The Court is assessing causation for the purposes of assessing whether a criminal sanction should be imposed on a person.
230 As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed.
231 It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause.
232 Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause.
233 This is not a theoretical exercise. There must be a sufficient connection between the conduct and the individual actually being exposed to a risk.
234 Further, it is necessary to establish a causal connection between the failure/conduct and the employee (person) being exposed to the risk at the time the work was being performed (in this matter whilst the demolition workers were demolishing the roof).
235 In addressing causation, it is necessary to consider the events which actually occurred. The Court is not considering the conduct from the perspective of the duty holder when that person performed the work, that is, prospectively. The Court does that when assessing breach, i.e. whether the other persons were put at risk.”
“241 The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work.
242 It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown.
243 In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work.”
The submission for ANJ was that:
The way in which Mr Brown operated the reach stacker was a substantial or significant cause of Mr Spinks being exposed to the risk of serious injury or death.
The medication-induced impairment of Mr Spinks was a substantial or significant cause of Mr Spinks himself being exposed to the risk of serious injury or death.
Even if the court found that Elements 1, 2 and 3 of the charge had been established, any acts or omissions of ANJ did not constitute a substantial or significant cause of Mr Spinks being exposed to the risk of serious injury or death.
For reasons set out below I accept submission (1) but I do not accept submissions (2) and (3).
The regulator SafeWork came to view that the way in which Mr Brown operated the reach stacker was so unsatisfactory that it cancelled his licence. At this hearing SafeWork submitted that this was just irrelevant.
It was unsatisfactory that the prosecutor wished to approbate and reprobate. Putting that to one side, I find (as did SafeWork) as a fact that Mr Brown failed to take reasonable care to carry out the high risk work safely and competently. I acknowledge that Mr Brown had many steps to take to reverse his reach stacker safely, and conditions provided by ANJ were less than ideal. However he just did not take enough care in the few seconds he had to check whether a pedestrian was on the diagonal walkway before he reversed across it.
I find that the acts and omissions of Mr Brown were a substantial or significant cause of Mr Spinks being exposed to the risk of serious injury or death.
The highest the evidence rose was that the level of prescription medicines in Mr Spinks’s blood sample was consistent with concentrations associated with impairment and would likely have resulted in an amount of drowsiness and associated impairment of attention, awareness, judgement and decision making together with a likely increase in reaction time.
The evidence of the actions of Mr Spinks on the night was that:
Mr Spinks woke later than usual to go to work.
Mr Spinks drove his vehicle onto the ANJ site and parked it wholly within the two parallel lines and stopped it on the stop line.
The CCTV shows no sign that Mr Spinks was unsteady on his feet or walking in any fashion suggesting drowsiness.
He remained within the bounds of the zebra crossing and then the diagonal walkway.
Mr Spinks walked past the rear of the operating reach stacker and did not look at it at any point.
I am unwilling to find that the effect of prescription medication upon Mr Spinks was a substantial or significant cause of him being exposed to the risk of serious injury or death.
It must be remembered that:
The drivers who attended the site had never been told that they must give way to plant.
A zebra crossing suggests to pedestrians as part of everyday life that a vehicle is obliged to stop and give way.
The diagonal walkway was a physical extension of the zebra crossing and contained markings suggestive of a safe place to walk.
Mr Spinks was a regular user of these prescription medications and would have built up some tolerance to the doses.
People can be distracted for all sorts of reasons (family problems, work issues, how their football team is going) and yet they carry out their activities of daily living (walking, driving, talking) adequately.
I decline to find that the effect of prescription medication upon Mr Spinks was a substantial or significant cause of him being exposed to the risk of serious injury or death.
I find that Mr Spinks was put at risk of being struck by the reach stacker because he was walking across the ANJ site at night when:
No risk assessment had been undertaken by ANJ.
No appropriate steps had been taken by ANJ to isolate pedestrians from plant, to the degree possible in a shared space.
There was no appropriate TMP in existence, and so there was no information or induction provided as to who had right of way at the site.
No add to the danger, plant operators had been trained that they had right of way, but drivers visiting the site were told nothing.
The lighting in the area required improvement.
The reach stacker had not been retro-fitted with a presence sensing device.
The painted zebra crossing was known to ANJ to be the primary route taken by drivers to walk to the office.
Both the painted zebra crossing and the diagonal walkway gave the appearance of being zones where it was safe for pedestrians to walk.
ANJ had control of the site for years prior to the incident, but never turned its mind to the obvious and foreseeable risk present. By contrast, Mr Brown had only a matter of seconds to safely reverse the reach stacker across an area known to be traversed by pedestrians, and designated by ANJ for the movement of foot traffic.
I find that the acts and omissions of ANJ were a substantial or significant cause of Mr Spinks being exposed to the risk of serious injury or death.
I find that the defendant ANJ committed a Category 2 offence pursuant to s 32 of the WHS Act because:
ANJ was a person conducting a business or undertaking.
ANJ owed other persons a duty under s 19(2) of the WHS Act.
ANJ failed to comply with that duty.
The failure exposed other persons, including Mr Spinks, to a risk of death or serious injury.
I find the offence under s 19(2) set out in the Further Amended Summons dated 3 December 2025 proved beyond a reasonable doubt.
There is no need to make any order concerning the alternate charge under s 19(1) of the WHS Act.
I will hear the parties on sentence and costs.
The orders are:
The elements of s 19(2) of the Work Health and Safety Act 2011 (NSW) set out in the Further Amended Summons dated 3 December 2025 have been proved beyond reasonable doubt.
I find the defendant ANJ Container Services & Bond Stores Pty Ltd guilty.
The matter will be listed for mention on 13 April 2026 at 9-30am to set a date for a sentence hearing and any costs issues.
Order that exhibits PX 2 Tab 17(b) and PX 18 be returned to the solicitor for SafeWork NSW, to be retained pending conclusion of the proceedings.
**********
SafeWork NSW
ANJ Container Services & Bond Stores Pty Ltd [2026] NSWDC 89
(2012) 246 CLR 92
(1989) 31 IR 207
(1952) 87 CLR 313
(2001) 110 IR 57
(1991) 172 CLR 378
(1957) 97 CLR 337
(2001) 205 CLR 304
A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ (Dunlop). 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] HCA 34; (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.
The prosecution must prove that the act or omission of the defendant 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].
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] HCA 27; (1991) 172 CLR 378.
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 death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga at [130].
The reach stacker continued backwards and to its right, approaching Mr Spinks, who was still walking along the walkway between the painted parallel lines. Mr Spinks was walking away from the reversing reach stacker.
At 19:00:09 Mr Spinks had taken about 11 steps along the walkway. The reach stacker continued travelling backwards while turning to its right. The left hand side of the reach stacker struck Mr Spinks and reversed over him.
The reach stacker performed an S-shaped manoeuvre (turning to its right then to its left) and continued to reverse. At 19:00:17 the reach stacker disappeared to the left, between stacks of containers. Hi-vis clothing can be seen on the ground.
The toolbox meeting held at ANJ after the Visa incident was conducted for employees but not truck drivers. No similar instructions were given to truck drivers.
The particulars which are pleaded are measures which would have, in the least, minimised the risk. A direction to take the northern walkway to the office would have minimised the risk.
The defendant complains that such a measure is not completely safe, because the truck drivers would still have to cross an area occupied by mobile plant. However, that risk could in turn be minimised by forcing truck drivers to stop when they reach a gate, open the gate, and then walk across the open area to the gate on the other side. This was done within a few days of the incident.
There is no complaint made that there was a financial problem in taking appropriate steps.
The prosecutor does not dispute that Mr Spinks must have been able to hear the reach stacker as it is a very loud machine.
Mr Spinks was walking at a normal speed, in a straight line, and was not attempting to dart across in the path of the reach stacker. Walking in the shared area made a physical contribution to the incident.
Mr John Robertson accepted in re-examination that depending on where the driver of the reach stacker was looking, it was possible that Mr Brown did not see Mr Spinks. This could happen if Mr Brown had been looking to the right, or he had been looking up towards the lifting mechanism (tcpt 370/1-18)
The prosecutor accepts that a judgment was made by Mr Spinks to keep walking.
The prosecutor accepts that given that Mr Brown had a number of things he needed to look at while he was reversing, he may have missed seeing Mr Spinks.
However, those factors do not reduce the statutory obligation on the defendant to ensure the health and safety of Mr Spinks. The matters pleaded as reasonably practicable measures were all available to ANJ before the incident.
The first such measure is conducting an adequate risk assessment. There was no assessment done. The Site and Traffic Safety Plan was not a safety document. There were no instructions about right of way. Nothing was said about who should use which walkway.
As to the second pleaded measure, isolating pedestrian from mobile plant, that is what was done after the incident. When the second (southern) walkway was put in, there was no effort made to separate mobile plant from the pedestrians who ANJ knew would have been using the crossing.
If ANJ had looked at the guidance material they would have had guidance concerning the steps which should have been taken. Had those steps been taken, most of the risks associated with Mr Spinks walking down the walkway would have been minimised, if not eradicated.
The defendant has continued to point to what caused the incident. It says that Mr Spinks was not taking sufficient care himself and Mr Brown did not look. Even if these matters are made out, the defendant had done nothing to protect Mr Spinks. They did not have an appropriate safe work method in place.
The induction document created after the incident acknowledged that “mobile plant drivers have reduced visibility”. It also pointed out that “ANJ is a working yard with mobile plant moving at all times”.
There is no evidence that Mr Spinks was in fact impaired, let alone that his death was caused by any impairment. The two experts went no further than saying that it was possible that he was impaired, but it could not be stated whether or not Mr Spinks was adversely impaired.
The defendant referred to the decision in State Rail Authority v Dawson [1990] 37 IR 110. That case can be distinguished, because: it was common ground that the defendant had laid down a safe system of work, but the allegation was that the defendant had not supervised its system. The prosecution failed on the facts. The fundamental difference between Dawson and this case is that at ANJ there was no safe system of work.
If the prosecution succeeds on the s 19(2) charge, then the court does not go on to consider the alternative charge under s 19(1). I accept this submission.
The Judicial Commission Criminal Trials Bench Book par [1-490] contains the following suggested oral direction for the opening of a jury trial:
ANJ made the following submissions in relation to Element 3 and steps particularised in par 11 of Annexure A of the Further Amended Summons (paragraph numbers are in square brackets):
11(b) does not assert that ANJ ought to have installed inward opening pedestrian gates because an inward opening pedestrian gate that can be opened at will is not a physical barrier, a rail or a sign. [240]
In relation to 11(d) substantial safety warning signage appeared around the site prior to the incident. [270]
In relation to 11(e) there was some evidence of site inductions occurring prior to the incident. [269]
11(f) ignores the lighting on the reach stacker which illuminated the area both in front and behind it. There was no evidence that the additional lighting measures that were implemented after incident made things better or worse in respect of what was there on the day of the incident. [267-268]
11(g) relating to the installation of presence sensing devices on the reach stacker does not appear in any of the Improvement Notices issued by SafeWork after the incident. [263]
ANJ submitted that this is a case where the court cannot exclude the reasonable possibility that it was the impairment of Mr Spinks and/or the misconduct of Mr Brown, that were the actual causes of Mr Spinks being exposed to the risk pleaded at par 11 of the Further Amended Summons. That submission is dealt with below.
Finally, ANJ submitted that it should be found not guilty and the Further Amended Summons should be dismissed. In any event, ANJ wishes to be heard on the question of costs, as it will seek a special cost order in relation to the conduct of proceedings including, but not limited to, numerous disclosure issues by the prosecutor.
Senior Counsel for ANJ made the following additional oral submissions:
The risk which is pleaded in the further Amended Summons is confined solely to the risk of Mr Spinks, and Mr Spinks alone, suffering injury or death on 21 April 2022.
The court cannot exclude the possibility that it was the impairment of Mr Spinks and/or the illegal conduct of Mr Brown that were the real factors that exposed Mr Spinks to the risk pleaded.
The regulator formed the view that Mr Brown had failed to comply with his licencing requirements, and it was Mr Brown’s failures, on their own or together with the impairment of Mr Spinks, which was the real reason for the incident.
SafeWork ignores the substantial evidence before the court that the actions of Mr Spinks may have been explained by the fact that he was impaired because of medication he was taking.
The prosecutor’s submissions tend to conflate Element 3 and Element 4 by introducing into the mix of element 4 the issue of the unforeseeable behaviour of a worker. That is an issue that is relevant to Element 3, but not Element 4.
The charge under s 19(1) of the WHS Act should be dismissed. Mr Spinks was “another person” and not a worker.
The s 19(1) charge cannot just remain on the record, it has to be dismissed.
In relation to causation, the court must consider if the measures pleaded in par 11 had been in place, is the court satisfied beyond reasonable doubt that they would have resulted in Mr Spinks not being exposed to the risk pleaded in par 10.
The defendant cannot be legally responsible for the occurrence of an event if a chain of causation is broken between the accused’s alleged unlawful conduct and the pleaded risk.
The administrative controls pleaded in par 11(a), (c), (d) and (e), would not have made a difference in relation to the matter.
Reference was made to two Western Australia cases (Bunnings Forrest Products Pty Ltd v Shepherd (Full Court of the Supreme Court (WA), Franklin, Ipp and Anderson JJ, 5 May 1998, unrep); Henry Walker Contracting Pty Ltd v Farnworth [2002] WASCA 167), including the following quote from Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 210: