SafeWork NSW v Aussie Skips Recycling Pty Ltd; SafeWork NSW v Emmanuel Roussakis - [2022] NSWDC 276 - NSWDC 2022 case summary — Zoe

NSWNSWDC

SafeWork NSW v Aussie Skips Recycling Pty Ltd; SafeWork NSW v Emmanuel Roussakis

[2022] NSWDC 276

District Court of NSW|2022-07-08

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-07-08

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
(2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39
(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71(2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty LimitedAttorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242

Judgment (30 paragraphs)

[1]

Safe Work Australia, General Guide for Workplace Traffic Management, July 2014 Safe Work Australia, Workplace Traffic Management Information Sheet, July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Emmanuel Roussakis (Defendant) Aussie Skips Recycling Pty Ltd (Defendant) Representation: Counsel: N Read (Prosecutor) B Hodgkinson SC (Defendant)

[2]

[5]

Reasonably Practicable Measures

Paragraph 10 of the Aussie Skips Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "10. The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Singarajah and Mr Mahalingam, in that it failed to take the following measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively to minimise if not reasonably practicable to eliminate) the risk: a. Conduct a risk assessment in relation to the task which: i. identified the risks associated with the task, including but not limited to, the risk of pedestrian workers undertaking work in the vicinity of operational mobile plant and/or heavy vehicles; and ii. identified a control measure (or measures) that provided the most adequate protection against the identified risks, in particular the measures set out in paragraphs (b) - (h) below. b. Provide physical separation between pedestrian workers and operational mobile plant and/or heavy vehicles at the site by: i. putting in place clearly delineated exclusion zones using signage, barricades, bunting, gates, bollards or other similar equipment; and ii. maintaining a designated and accessible pedestrian walkway protected by physical barriers such as a safety rail; and iii. using interlocking or hinged gates to stop pedestrian movement into areas where mobile plant and/or heavy vehicles are operating. c. Provide and implement a safe work procedure for the task which included but was not limited to the following: i. prohibiting workers from being in the vicinity of operational mobile plant and/or heavy vehicles when undertaking the task; and ii requiring delineated exclusion zones to be in place when the task was undertaken; and/or iii requiring the front-end loader to be stopped before workers entered the exclusion zone; and iv engaging a supervisor, or designating a person as a supervisor, who was responsible for enforcing the exclusion zone. d. Provide adequate means of communication between pedestrian workers and operators of mobile plant by providing workers with a radio for communication and requiring communication between pedestrian workers and mobile plant operators before the mobile plant is operated. e. Develop, implement and enforce a safe system of work for the operation of the front-end loader at the site, including but not limited to the following: i. developing and implementing and enforcing a documented pre-start inspection for the front-end loader incorporating a start-up and walk around inspection to ensure that the safety features and attachments are not defective and are operational; and ii. Directing operators of the front-end loader to: 1. Follow a site-specific traffic management plan; 2. Before reversing, always check for vehicles, people and structures and be aware of blind spots, use operational safety features that assist with reversing safely including a flashing light or reverse beeper; 3. Stop the operation of the front-end loader immediately if pedestrians are located within the operational area and wait for them to leave the area before recommencing operation; and iii. Enforcing the use of spotter if the operator's visibility is obstructed. f. Developing and implementing a site-specific traffic management control system, such as a site-specific traffic management plan which was formulated taking into consideration a sketch or blueprint of the workplace layout, and identified, addressed and evaluated hazards in the workplace. g. Provide adequate information, instruction and training to workers at the site including but not limited to: i. Training workers in the safe work procedure for the task; ii. Training workers in the safe system of work for the operation of the front-end loader; iii. Training workers in the traffic management system; iv. Training and instructing workers in a way that was readily understandable by them, including in a language and a format they could understand. h. Prohibit sorting and picking by hand in any section of the yard where there is mobile plant in operation."

[7]

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Aussie Skips conducted a waste recycling business at its waste transfer station which involved receiving construction and other waste, sorting it into what could or could not be recycled, and processing and arranging for it to be transported for further processing or landfill.
Aussie Skips conducted its business from an industrial estate at 5/84-108 Madeline Street, South Strathfield in New South Wales (the site).
Aussie Skips' related body corporate, Aussie Skips Bin Services Pty Ltd, operated a fleet of 25 skip trucks which serviced residential, building and commercial clients. Aussie Skips Bin Services had access to over 950 skip bins ranging from 2m2 to 25m2.
At the time of the incident, Aussie Skips employed 13 people. Between 20 and 25 people worked at the site each day, including Mr Emmanuel Roussakis, Mr Leon Roussakis and Mr Ravi Chauhan.
Mr Emmanuel Roussakis performed the role of the General Manager of Aussie Skips. Mr Emmanuel Roussakis was an "officer" within the meaning of s 4 of the Act. He was in a position to take reasonable steps to ensure that Aussie Skips had, and implemented, appropriate resources and processes to eliminate or minimise risks to safety from the work carried out by it.
Mr Emmanuel Roussakis was on site each day and was present when the incident occurred. He had overall responsibility for the management and business operations of the company, including responsibility for overseeing the operations at the site and financial control over the business, including authority for expenditure, invoicing and pricing.
Mr Leon Roussakis performed the role of the Site Operations Manager of Aussie Skips. Mr Leon Roussakis generally managed the weighbridge which included managing the flow of traffic in and out of the site and directing trucks where to unload. Persons other than Mr Leon Roussakis manned the weighbridge from time to time, such as Mr Ravi Chauhan. Mr Leon Roussakis was also responsible for supervising the work activities in the recycling yard.
Aussie Skips employed Mr Khaled Obeid as a plant operator. Mr Obeid operated heavy plant at the site including an excavator, bobcat and a front-end loader. At the time of the incident, Mr Obeid had 18 years experience in plant operation. He had worked at the site for approximately 14 years.
Mr Chauhan worked for Aussie Skips as a Business Sales Manager. Mr Chauhan worked primarily in the site office. At the time of the incident, Mr Chauhan had previously monitored the weighbridge at the site between 10-15 times. Mr Chauhan also had weighbridge experience at previous employment.
Mr George Roussakis provided services to Aussie Skips as an excavator operator through his company ELG Transport Pty Ltd. Mr George Roussakis was remunerated for his services through the Roussakis Group Trust. He had undertaken work as an operator at the site since November 2016.
Aussie Skips employed at least six yardmen/labourers who performed the role of "pickers". This involved picking different waste material by hand from piles of waste tipped at the site and placing the material in designated areas to be moved by heavy plant for further processing or removal (the task). The pickers included Mr Singarajah, Mr Nicholas Moye, and Mr Mahalingam.
Mr Singarajah was a Sri Lankan national of Tamil descent who was in Australia as a refugee. Mr Singarajah commenced employment with Aussie Skips on 12 June 2017 and ceased employment on 9 September 2017. Mr Singarajah commenced a second period of employment with Aussie Skips on 21 May 2018, three days prior to the incident. Aussie Skips described Mr Singarajah's ability to speak English as being low level conversational.
On commencement of Mr Singarajah's employment Mr Leon Roussakis walked around the site with Mr Singarajah. He showed him the facilities, plant and equipment, gave him a uniform and PPE and explained to him how traffic flowed through the site. Mr Leon Roussakis said in his Record of Interview with SafeWork NSW that he told Mr Singarajah to stay away from heavy machinery. Mr Leon Roussakis provided Mr Singarajah with similar information when he recommenced employment on 21 May 2018.

[8]

Operations at the Site

The site, which was accessible via a common entry and exit point at Madeline Street and a common driveway within the wider industrial estate, comprised: 1. A front gated driveway at the entrance to Aussie Skips' part (unit 5) of the industrial estate, where vehicles queued to access the weighbridge. 2. A weighbridge and a weighbridge/site office. 3. A storage shed/maintenance area adjacent to the front driveway and weighbridge/site office. 4. The recycling yard (beyond the weighbridge), which consisted of a side yard and a rear yard.
The side yard contained: 1. A tip-off and waste sorting area. 2. A sheltered waste sorting area which consisted of different bays for housing sorted waste materials, eg a brick bay and a scrap metal bay. 3. A trommel plant, which screened materials. 4. An outgoing waste area, where non-recyclable waste was loaded by a Komatsu excavator into a B-double semi trailer for transportation to licensed landfill facilities.
The rear yard and the side yard contained designated stockpiles of sorted waste material, including a pile of outgoing waste to be loaded on to the semi trailer, a pile of general waste and piles of dirt and soil. The rear yard also contained heavy mobile plant.
A noise protective wall ran along the southern side of the recycling yard. A yellow fabricated steel fence was erected approximately one metre from the noise protective wall and ran from opposite the weighbridge to the rear yard. Several of the upright beams of the fence had sustained impact damage and were misaligned. Prior to and at the time of the incident the access point to the fence at the weighbridge end was obstructed by waste material.
Aussie Skips managed and controlled heavy mobile plant at the site including a front-end loader, three excavators, a bobcat and a forklift. The mobile plant was equipped with 2-way radios which enabled communication with the weighbridge.
Aussie Skips' waste receiving and handling process was as follows: 1. Waste loads arrived onto the weighbridge and were visually inspected to ensure they were acceptable to be received. 2. Each load was "docketed in" and the driver directed to proceed to the tipping area. 3. The load was tipped and the trucks then turned and exited the recycling yard. 4. The loads were sorted to remove recyclable materials by machine and hand. A bobcat with a grab attachment was used to remove large recyclable material from the piles. The piles were then hand-picked by the pickers to remove recyclable materials. After the picking and sorting, the load would generally have little non-recyclable material other than soil and masonry. Metals were removed and placed into wheelbarrows for placement into metal bins. 5. The hand-sorted light waste was pushed by the loader into the sheltered waste sorting area and the heavy fraction was pushed or dragged by the loader to a different area for processing. 6. Non-recyclable material was loaded into semi trailers and transported to licensed landfill facilities. 7. Mixed heavy material (brick, soil, concrete) was put through a series of trommels which are cylindrical machines that spin and sort material by size. Larger material that was not passed through the trommel was fed onto a conveyor belt and taken through to a picking station. A picker removed any non-recyclable material from the conveyor, which was subsequently stored and transported off-site to licensed facilities for sorting and crushing to make recycled aggregates.
The person nominated to man the weighbridge was responsible for directing customers in and out of the yard, supervising pedestrians and smooth traffic flow through the site, and communicating with drivers and any workers in the yard as appropriate.
Prior to and at the time of the incident one picker was allocated to pick material from the conveyor and the remaining pickers undertook picking work from the piles tipped in the side yard by incoming vehicles.
At the time of the incident, Aussie Skips and its related bodies corporate, tipped 30 to 40 bins of waste per day. Other trucks also tipped material at the site ranging from small tipper trucks to semi trailers and B-doubles. The waste receiving and handling process went on throughout the working day.
Records kept by Aussie Skips showed that on the day prior to the incident, 155 vehicles entered the site, tipped their loads, and exited the site. This was, on average, a vehicle every three to four minutes.

[10]

The Day of the Incident

On 24 May 2018 Mr Obeid conducted a pre-start check of the loader, however he did not check whether the reverse camera was functional.
At 7.00am Mr Singarajah arrived at the site and commenced work.
From 7.00am until around midday Mr Leon Roussakis was managing the weighbridge and controlling the traffic entering and exiting the site. From around midday until shortly before the incident Mr Emmanuel Roussakis was managing the weighbridge. Shortly before the incident, Mr Chauhan replaced Mr Roussakis on the weighbridge.
CCTV footage produced by Aussie Skips shows the following: 1. At 12:05:22pm the loader is driven in close proximity to a driver of an Aussie Skips truck to push waste material into the covered area. At 12:05:30pm the loader reverses past the truck and driver. 2. At different times in the hour leading up to the incident, up to five workers are shown walking in the rear yard in proximity to moving plant and light and heavy vehicles, including the loader, B-double and tip trucks. At no stage does any worker use the yellow fence as a means of access or a protective barrier. 3. At 12:15:35pm workers are picking waste from a tipped load in the side yard. The loader collects material from the output end of the trommel and reverses in proximity to the workers working on the pile. 4. At 13:05:48pm the loader, carrying a full raised bucket, drives in close proximity to pickers (Mr Singarajah and Mr Mahalingam). The workers, who were wearing high visibility clothing, move out of the way and the loader drives over the top of the waste pile and into the sheltered area to dump a load into a bay. The loader reverses and moves to collect a load from the output end of the trommel. 5. At 13:07:08pm the loader moved to the area where Mr Singarajah and Mr Mahalingam had placed materials into a pile on the ground. Mr Obeid dropped the bucket of the loader and reversed, dragging the material towards the rear yard. 6. At 13:07:31pm Mr Singarajah and Mr Mahalingam walked away from the pile of waste materials in an easterly direction towards the rear yard. Mr Obeid drove the loader forward to push material into a sheltered bay. As the loader moved forward a worker walked behind it. 7. Mr Singarajah and Mr Mahalingam continued to walk around the back of the loader. The loader started reversing (13:07:42pm). Mr Singarajah appears to observe the loader moving towards him and starts to jog to his left. Mr Mahalingham, who was next to Mr Singarajah, commenced walking in a southerly direction towards the site office. 8. Mr Singarajah was struck by the loader. The loader fully reversed over the top of Mr Singarajah and came to a stop (13:07:48pm).
Mr Moye was standing approximately five metres away from the location where the loader struck Mr Singarajah. Mr Moye had moved to that location to pick up a piece of steel from a pile.
An emergency telephone call was made and at 1.20pm the NSW Ambulance arrived. The ambulance officers checked for signs of life but Mr Singarajah was declared deceased. The direct cause of death was a blunt force traumatic injury of the pelvis.
On 28 May 2018 the loader was inspected and it was found that the reverse camera was fitted but it was non-functional.
After the incident Mr Obeid stated that he checked for people in his vicinity prior to reversing but did not see anyone. Mr Obeid stated that he was unable to see the back of both sides of the front-end loader when reversing because it had blind spots.

[11]

Guidance Material

Clause 214 of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) provides that a person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1 of the Regulation manage risks to health and safety associated with the plant colliding with any person or thing. Part 3.1 of the Regulation required duty holders to manage safety risks by eliminating the risk, and if not reasonably practicable, by minimising the risk by applying a hierarchy of controls.
Prior to and at the time of the incident the SafeWork NSW Code of Practice How to Manage Work Health and Safety Risks, dated December 2011 (the Code), was available to Aussie Skips. The Code provided practical guidance for persons who have duties under the Act and the Regulation. The Code provided information on identifying and managing hazards in accordance with the hierarchy of controls. The Code provided as an example of a common hazard "being hit by moving vehicles" (p 7).
Prior to and at the time of the incident the Safe Work Australia General Guide for Workplace Traffic Management dated July 2014 (the General Guide) was published and available to Aussie Skips. The General Guide applied to all businesses or undertakings where there is a risk of traffic colliding with people in the workplace. The General Guide provided information on identifying, assessing and controlling risks, including the following information: 1. Most vehicle incidents at the workplace are from collisions between pedestrians and vehicles reversing, loading and unloading. People who work with or near vehicles are most at risk (p 3). 2. The first thing to consider is whether hazards can be completely removed from the workplace, for example, whether the risk can be eliminated by physically separating pedestrian routes from vehicle areas. This could be done by conducting activities at times when pedestrians are not present, using physical barriers or overhead walkways. 3. If it is not reasonably practicable to completely eliminate the risk then consider one or more of the following options in the order they appear below to minimise risks, so far as is reasonably practicable: 1. Substitute the hazard for something safer eg replace forklifts with other load shifting equipment; 2. Isolate the hazard, eg by creating a delivery area away from other pedestrians and a work activity; 3. Use engineering controls, eg speed limiters on forklifts, presence sensing devices or interlocked gates; 4. Use administrative controls, eg warning signs; and 5. Use personal protective equipment (PPE), eg high visibility clothing. 1. If you have a large workplace with a high volume of traffic, a traffic management plan can help you communicate how you are managing traffic risks in the workplace. A traffic management plan may include details of the desired flow of pedestrians and vehicle movements, the expected frequency of interaction of vehicles and pedestrians, illustration of layout of barriers, walkways, signs and general arrangements to warn and guide traffic around, past, or through a worksite, and how short-term mobile work and complex traffic situations will be managed (p 4). 2. The best way to protect pedestrians is to make sure people and vehicles cannot interact. When powered mobile plant is used at a workplace, you must ensure it does not collide with pedestrians or other powered mobile plant. This can be achieved by not allowing vehicles in pedestrian spaces or not allowing pedestrians in vehicle operating areas. If people and vehicles cannot be separated you should consider using barriers or guardrails. Examples of different types of barriers include guardrails, high-impact barriers and temporary physical barriers (pp 5-6). 3. If reasonably practicable, eliminate the need for reversing by using drive through loading and unloading systems, multidirectional mobile plant or rotating cabins. Where this is not possible consider: 1. Using devices like reversing sensors, reversing cameras, mirrors, rotating lights or audible reversing alarms; 2. Using a person to direct the reversing vehicle if they cannot see clearly behind - this person should be in visual contact with the driver at all times and wear high visibility clothing; 3. Providing designated clearly marked and signposted reversing areas; and 4. Excluding non-essential workers from the area (p 8).
Prior to and at the time of the incident the Safe Work Australia Workplace Traffic Management Information Sheet dated July 2014 was published and available to Aussie Skips. This Information Sheet included the following: 1. Businesses must manage the risk of vehicles colliding with people at their workplace. They should start by identifying hazards and potential points of collision between people and vehicles. You must then put in place control measures to eliminate or minimise the risks so far as is reasonably practicable. 2. The best way to protect people is to keep them physically separated from vehicles. Consider the layout of your workplace and see whether this can be achieved, for example by excluding people from vehicle operating areas. If this cannot be achieved, minimise the risks by providing gates or temporary barriers to separate vehicles from people. 3. Reversing vehicles are a significant hazard to pedestrians. If there is no alternative and vehicles need to reverse, think about: whether vehicles can be fitted with devices like reversing cameras, rotating lights and audible reversing alarms; using a person to direct the reversing vehicle - this person should be in visual contact with the driver at all times and wear high visibility clothing; and keeping non-essential workers away from reversing vehicles.

[12]

Systems of Work Prior to the Incident

Prior to the incident Aussie Skips had developed a Plan of Management, which provided an overview of its operations. The Plan of Management had been acquired from the previous owner of the business by Aussie Skips on purchase of the business in November 2016 and was updated by Aussie Skips in February 2018.
Mr Emmanuel Roussakis was listed as a Site Operations Manager under the Plan of Management and as a person responsible for implementing it.
The Plan of Management included information on PPE requirements and managing the flow of vehicles entering and exiting the site.
The Site Environmental Controls section of the Plan of Management contained information about controlling the build-up of traffic from the public road however it did not contain information on how the risks arising from the movement of plant and pedestrians in the side and rear yards were to be managed. The Plan of Management included a Plan and Site Location Maps (Appendices A, C and D).
Prior to the incident Aussie Skips had a Staff Handbook for Yard Staff. The Handbook was prepared by Aussie Skips on 10 March 2017. The Handbook included the following: 1. A Safe Work Method Statement (SWMS) for On-Site Work which provided that: 1. Required a daily pre-start check of vehicles, plant and equipment was to be completed and recorded; 2. Identified traffic safety and personal safety as a hazard in relation to plant and equipment. The SWMS identified the controls for the hazards as "Carry out all pre-start checks before plant and equipment; wear high-visibility garment; enclosed footwear to be worn"; 3. Identified a job step of "Exit from Site". The SWMS classed the step as having a high-level risk rating and identified the controls as: "Be aware of vehicles entering or exiting the site... Drivers must be alert at all times to watch for pedestrians and other personnel ...Yard personnel must be aware of trucks entering and exiting at all times. High visibility garment to be worn at all times". 1. The Safe Work Procedure for Trucks and Heavy Vehicles identified the hazard of "traffic safety" as a general precaution and specified the processes to be followed as: "Persons working in areas where vehicles, forklifts or mobile plant are present are to take care when alighting from, or entering or loading or unloading. Traffic control measures should be employed if passing traffic will pose a risk to persons working on or from roadside worksites." 1. The 10 Commandments of Workplace Safety which included "Do not stand in front of, behind or under moving vehicles or machinery".
Aussie Skips had a person manning the weighbridge who was responsible for directing customers in and out of the yard and traffic, inspecting loads, the safety of pedestrians and smooth traffic flow through the site, and communicating with truck drivers and any workers in the yard. Mr Leon Roussakis said he supervised the pickers from the weighbridge and when he walked around the site. However, the location of the weighbridge/site office meant that it was not possible to observe all of the work undertaken in the rear and side yards from the weighbridge.
Aussie Skips did not undertake a risk assessment that identified the risk of workers being struck or run over by mobile plant. An appropriate risk assessment would have also set out adequate controls in relation to that risk.
In order to manage the risks of a collision between plant and pedestrians, Aussie Skips relied on its plant operators to be vigilant of pedestrians in and around the yard, to keep a safe distance and to communicate with pedestrians where appropriate. Aussie Skips also relied upon the workers in the yard being vigilant of the presence of, and keeping a safe distance from, vehicles and plant in the yard.
Mr Leon Roussakis said there was a rule to stand out of the way and to the side of moving heavy plant. Mr Leon Roussakis said the workers were verbally told to stay away from heavy vehicles.
Mr George Roussakis, a plant operator, could not recall being provided with any specific information about the need to separate plant and pedestrians but commented that it was "common knowledge" for pedestrians to keep a distance from machinery. He understood the site rule was that pedestrians should stay at least five metres away from machinery.
Mr Mahalingam said he was told to stay on the "safe side" of moving heavy vehicles in the yard and that the loader operator would tell him when it was "safe to go".
Mr Moye said he was told about safe zones through the yard to stand in and never to stand too close to the loader and how to navigate around it. Mr Moye said he was told that when the loader was operating he should move to a different section of the yard and work in a different area. Mr Moye said he was instructed that when the yard was heavy with traffic he should stand behind the yellow barrier and let it clear out a bit before resuming his work duties.
Mr Evangelos Gregoriou, the screening plant/trommel operator, said he was told not to go too close to the piles when the machines were operating.
Mr Obeid said that when people saw a moving vehicle in the yard, they were required to stay away from it. In his Record of Interview with SafeWork NSW Mr Obeid said that if he saw persons in proximity to his machine, he would stop the machine and signal for them to move away.
Mr Dimitri Perdikaris, excavator operator, said there was a general rule to watch out for machines. He said the interaction between plant and pedestrians was managed by communication and common sense.
Aussie Skips did not provide any sufficient means of separating pedestrians (including the pickers) from mobile plant and other vehicles in the recycling yard, such as the measures specified in par 10(b)(i) of the Aussie Skips Amended Summons.
Prior to the incident a yellow safety barrier was erected along the southern curved wall of the site, however the barrier was obstructed by waste material. The CCTV footage did not show the barrier being used by any workers in the hour immediately preceding the incident. In that hour there were multiple instances of yard workers walking or working in proximity to heavy vehicles and mobile plant.
The barrier was positioned along the curved southern wall of the site and was not capable of providing protection to workers while undertaking the task involving piles tipped in the side yard.
Aussie Skips did not provide and implement a safe work procedure for the task that required the establishment of a delineated exclusion zone and the stopping of the loader before workers entered the exclusion zone to commence the task.
Workers were verbally informed not to stand too close to any operating mobile plant. Mr Moye said he would use his personal judgement to determine whether it was safe to enter into an area of the yard to pick and sort materials.
Prior to the incident the weighbridge operator and machine operators were able to communicate and direct mobile plant via 2-way radios that had been provided to them, however the pickers were not provided with radios. Communication with the pickers was via a loudspeaker in the weighbridge office, verbally when Mr Leon Roussakis was in the yard, or verbally or by signals from mobile plant operators and other yard workers.
Prior to the incident Aussie Skips had an informal pre-start check for plant and equipment. Each operator would check the vehicle and report any operational problems to management. However, prior to and at the time of the incident the requirement to undertake a daily pre-start check of vehicles, plant and equipment was not adequately implemented or documented.
Prior to the incident Aussie Skips had not developed and implemented a safe system of work for the operation of the front-end loader which included: a direction for drivers to follow a site-specific traffic management plan; a requirement for a spotter to spot the movement of the plant if the operator's visibility was obstructed; and a requirement to stop the loader immediately if pedestrians were located within its zone of operation.
Aussie Skips did not have, prior to and at the time of the incident, an adequate or documented Traffic Management Plan that addressed how the risk of plant and pedestrian collisions was to be managed.

[13]

Systems of Work Following the Incident

After the incident Aussie Skips changed its method of work so that hand picking from tipped piles in the yard is no longer done. The picking and sorting process in the yard is carried out by mobile plant such as a bobcat with a grab attachment. The revised systems of work eliminate the risk of a worker being struck by a mobile plant whilst undertaking the task.
After the incident Aussie Skips took the following steps to manage the risk of mobile plant and pedestrian collision in the yards: 1. Aussie Skips developed and implemented a Traffic Management Plan (TMP). The TMP incorporates a Site Map which identifies stop points, speed limits and pedestrian access points. The Site Map specifies the following rules: all vehicles are to have an operational flashing beacon when travelling around the site; the Tip Inspector and Weighbridge Operator are to coordinate heavy vehicle, mobile plant and pedestrian movements in operational areas, and all vehicles are to have reversing/tracking beepers fitted and operational. The TMP includes a Communication Map which specifies the following rules: workers are to have access to or be accompanied by a person with a UHF radio before entering operational areas; and before approaching within 10 metres of heavy vehicles or mobile plant or pedestrians, workers are to communicate with each other until acknowledgement is obtained. 2. The number of pedestrians permitted to be on foot in the yard is restricted to two. Workers on foot to be provided with radios. 3. The existing yellow rail was cleared from obstructions and extended towards the weighbridge. 4. Two "safe zones" have been created within the existing pedestrian walkway for workers on foot to stand in when mobile plant or heavy vehicles are moving in the yard. 5. All workers were trained in the documented site traffic management and communication plans.
Aussie Skips developed a WHS Management System Manual dated July 2018 to replace the Plan of Management, which amongst other things defined the responsibilities, authorities and duties of workers in relation to work health and safety. The document was translated and made available in Tamil.
Aussie Skips implemented its policy to record daily pre-start checks of plant and equipment.
Aussie Skips developed and implemented a safe work procedure in relation to the operation of the front-end loader. The procedure requires the operator to undertake a pre-start check and to report any defective equipment immediately to the supervisor. In relation to the tasks of "driving front end loader" and "stockpiling material" the procedure specifies the controls as: 1. Always look before you move. Check around and above front-end loader for obstructions, vehicles and people. 2. Ensure to communicate visually or via UHF radio when approaching within 10 metres of pedestrians, vehicles and mobile plant. 3. Before reversing, always check for vehicles, people and structures. 4. If pedestrians are found to be within working area, operators are to stop operation and wait for pedestrians to leave the area before recommencing.
Aussie Skips updated the Staff Handbook for Yard Staff and made it available in the native languages of the workers (English, Tamil and Arabic).
Aussie Skips provided information and training to its workers in the new systems of work. Mr Emmanuel Roussakis provided training to workers in relation to "Site Map", "Traffic Management", "Communications Protocols" and "PPE Map".

[17]

Systems of Work Prior to the Incident

Aussie Skips prides itself on a culture of "we are family". The safety and wellbeing of its workers is, and has always been, paramount.
After the Aussie Skips acquisition, Mr Roussakis commenced a process to improve the existing WHS systems and other systems of work. Aussie Skips was committed to incurring significant costs and utilising significant resources as part of the process.
Mr Roussakis set out in his affidavit the risks and hazards identified by him and Aussie Skips' management in the 18 month period between the acquisition and the incident, together with the steps authorised by him and taken by Aussie Skips and the Group to address the risks and hazards.
Mr Roussakis and Aussie Skips took a number steps to ensure that control measures were in place to reduce the risk of interaction between plant and pedestrians and to ensure that workers received training and instruction relevant to performing their job safely. These steps included: 1. Requiring new workers to undertake site and job inductions which were generally run by Mr Leon Roussakis. 2. Developing a new yard procedures handbook and providing it to Aussie Skips workers. This included the "10 commandments of workplace safety" and a SWMS for on-site work. 3. Requiring machinery operators to carry out daily pre-start checks on machinery before operating them and to report any issues to management. 4. Implementing a system which ensured that: 1. the weighbridge was always manned when trucks were entering or present in the yard; and 2. the driveway entrance to the site was manned to monitor and assist with managing traffic flow if customer truck traffic backed up past the entrance. 1. Requiring the person manning the weighbridge to supervise the movement of trucks and workers in the yard, through verbal communication, hand signals and, in relation to machinery operators and truck drivers, the use of 2-way radios.
Mr Emmanuel Roussakis was told by Mr Leon Roussakis that Mr Singarajah received a site and job induction on commencement of his first period of employment with Aussie Skips and refresher training on commencement of his second period of employment, a few days before the incident.
Mr Emmanuel Roussakis observed Mr Singarajah attend toolbox talks up to and including the day of the incident.

[20]

Steps Taken by Aussie Skips After the Incident

Aussie Skips management provided financial, administrative and emotional support to Mr Singarajah's family after the incident. This included visiting Mr Singarajah's family in Sri Lanka and offering to make a contribution to Mr Singarajah's community.
Aussie Skips provided workers with onsite counselling and paid time off work. Aussie Skips also held a memorial ceremony in the yard.
Aussie Skips cooperated with SafeWork NSW's investigation of the incident.
Mr Emmanuel Roussakis improved Aussie Skips' WHS systems and management by: 1. Developing and implementing a WHS Management System to replace the Plan of Management that was in place at the time of the incident. This included the WHS Management System Manual which was further updated in January 2019. 2. Updating the existing SWMSs and implementing new SWMSs. 3. Ensuring that all Aussie Skips employees receive training on Aussie Skips' WHS systems. A Tamil translator was engaged to assist in the training sessions and Mr George Asaad, who speaks English and Arabic, was on hand in case any Arabic translation was needed. 4. Translating the WHS induction booklet into Tamil and Arabic. 5. Engaging a Tamil translator to assist with inducting a new Tamil employee in June 2021. 6. Implementing the work method of using operator-controlled machines to sort recyclable material from other material. This replaced the work method of hand picking in the yard. 7. Implementing a front-end loader operating procedure with a daily pre-start check form. 8. Requiring visitors, as well as workers, to wear hi-vis clothing at all times in the yard. 9. Appointing a dedicated WHS/HR officer and environmental compliance officer. 10. Undertaking random drug and alcohol testing.
Mr Emmanuel Roussakis acknowledged at par 19 of DX 1 that improvements in safety at Aussie Skips will only occur if it is committed to enforce its WHS systems, implement and communicate its safety policies and systems and continuously review its systems and practices.

[23]

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. Mr Emmanuel Roussakis and Aussie Skips knew of the risk. In any event the risk was obvious and foreseeable as there was guidance material directed to this particular risk. 2. Not only was the risk obvious and foreseeable, but in 2017 a very similar case came before this court and was the subject of a published judgment: SafeWork NSW v Harris Holdings NSW Pty Ltd [2017] NSWDC 299. The defendant in that 2017 case employed manual pickers (who were also Tamil-speaking migrants from Sri Lanka) at a waste disposal and recycling business at Croydon. There was no separation between machinery and workers. On 26 November 2015 an excavator reversed over a worker and killed him. 3. The likelihood of the risk occurring was high. The pickers had to work in a space where up to 150 heavy vehicles a day were entering the site, dumping waste, and leaving the site. In addition, heavy machinery, including the front-end loader involved in the incident, operated continuously in the yard where the pickers worked on foot. 4. The potential consequences of the risk were death or serious injury. 5. Simple and well-known steps were readily available to eliminate or minimise the risk. 6. There was no great burden or inconvenience in these steps being implemented. Mr Emmanuel Roussakis, on behalf of Aussie Skips, took remedial measures quickly after the incident. While there may have been an additional financial cost to do mechanical picking, there was no evidence of the actual cost, or the savings from such a measure such as decreased wages. 7. Mr Singarajah suffered fatal injuries. 8. The maximum penalties for these Category 2 offences are $300,000 for Mr Emmanuel Roussakis and $1,500,000 for Aussie Skips, which reflects the legislature's view of the seriousness of the offence. 9. Senior counsel for the defendants submitted that this was not a case where there were no safety systems, pointing out that the safety systems inherited from the vendor of the business were improved after Aussie Skips took over. I accept that submission. However, there was no explanation as to why there were no adequate precautions in place, by the time of the incident, in relation to readily foreseeable collisions between pedestrians and heavy machinery. 10. As both defendants recognised by their pleas of guilty, it was never enough to say to workers, in effect: "Watch out for yourself". The CCTV shows that Mr Singarajah saw the front-end loader reversing towards him and he tried to get out of its way. There was only six seconds between the loader starting to reverse and it running over the victim.
Counsel for the prosecutor submitted that the court should find that the offences committed by both defendants fell into the upper end of the mid range of objective seriousness. Senior counsel for the defendants submitted that Aussie Skips fell into the mid range "but not at the top end" and that Mr Emmanuel Roussakis fell into the low range.
I find that the level of culpability of Aussie Skips is in the upper end of the mid range.
I find that the level of culpability of Mr Emmanuel Roussakis is in the mid range.

[26]

Mitigating Factors

Neither Mr Emmanuel Roussakis nor Aussie Skips have a prior record of conviction: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Mr Emmanuel Roussakis and Aussie Skips are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps taken after the incident demonstrate this. Mr Emmanuel Roussakis outlined in his affidavit the donations and contributions which Aussie Skips has made to the community and various charities.
Mr Emmanuel Roussakis and Aussie Skips are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Mr Emmanuel Roussakis and Aussie Skips have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Aussie Skips, has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
Mr Emmanuel Roussakis and Aussie Skips have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Emmanuel Roussakis has provided evidence that both he and Aussie Skips have accepted responsibility for their actions and have acknowledged that the death of Mr Singarajah was caused by their actions.
Mr Emmanuel Roussakis and Aussie Skips entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give both Mr Emmanuel Roussakis and Aussie Skips a 25% discount for an early plea.
Mr Emmanuel Roussakis, on behalf of Aussie Skips, gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. He cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

SafeWork NSW v Aussie Skips Recycling Pty Ltd; SafeWork NSW v Emmanuel Roussakis

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Cases Cited (18)