SafeWork NSW v Cosentino Australia Pty Limited

THE ELEMENTS OF THE OFFENCE

1. The prosecution bears the onus of proving beyond reasonable doubt the elements of the offence.
2. Section 32 of the Act provides: A person commits a Category 2 offence if: the person has a health and safety duty, and (a) the person fails to comply with that duty, and (b) the failure exposes an individual to a risk of death or serious injury or illness.
3. The elements of the offence are:
4. Element 1 The defendant owed Mr Orkzai a duty under s 19(1) of the Act;
5. Element 2 The defendant failed to comply with that duty; and
6. Element 3 The failure exposed Mr Orkzai to a risk of death or serious injury.

THE RELEVANT LAW

1. The objects clause in s 3 of the Act provides: "(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, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection 19(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."
2. The offence is one of strict liability: s 12A of the Act.
3. The content of the duty is set out in s 19 of the Act that relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (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 … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances; 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. The meaning of "worker" is dealt with by s 7(1) of the Act which provides: "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 sub-contractor, or (c) an employee of a contractor or sub-contractor, or (d) …"
5. Section 16 of the 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."
6. Section 17 of the Act deals with management of risks and provides: "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."
7. 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, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
8. "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 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."
9. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
10. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
11. 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).
12. 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.
13. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
14. 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.
15. The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
16. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
17. A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
18. Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate."
19. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the deceased being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
20. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.
21. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant 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 Underground at [130].

THE AMENDED SUMMONS

1. The first page of the Amended Summons particularises the date of the offence as 11 November 2014 and the place of offence as 10 Lyn Parade at Prestons NSW 2170. The particulars of the offence are set out in Annexure "A" as follows: "Particulars of the defendant's duty under section 19(1) of the Act At all relevant times: 1. The defendant was a person conducting a business or undertaking within the meaning of the Act. 2. The defendant's business or undertaking involved importing and distribution of stone slabs. 3. The worker was a courier driver, Shahab Ali Orkzai, who was engaged by the defendant or caused to be engaged by the defendant in that he was carrying out work in any capacity for the defendant, including work as a subcontractor driver. 4. Mr Orkzai was a worker whose activities in carrying out work were influenced or directed by the defendant in that he was working under the direction and requirements of the defendant. 5. On 11 November 2014, Mr Orkzai was at work in the business or undertaking of the defendant at 10 Lyn Parade, Prestons, NSW (premises) in that he was delivering a load of stone slabs at the premises. 6. The premises were a workplace for the purposes of section 8 of the Act. Particulars of the risk 7. There was a risk of workers, in particular Shahab Ali Orkzai, suffering serious injury or death as a result of being struck by the stone slabs falling from an A-frame when restraints were removed and the slabs had not been evenly loaded on the A-frame. Particulars of the defendant's failure to comply with the duty under section 19(1) of the Act 8. The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Orkzai, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to workers: (a) Maintain a safe system for the loading and transport of stone slabs on A-frames on trucks by ensuring that the defendant's workers loaded stone slabs evenly on both sides of the A-frame so that the load was balanced and did not create instability when any part of the load restraints were to be removed (safe loading system); (b) Instruct its workers who loaded A-frames on trucks with stone slabs that they were to always load stone slabs in accordance with the safe loading system; (c) Instruct its workers they were not to load stone slabs on A-frames on trucks in a manner directed or requested by the truck driver which was contrary to the safe loading system. 9. As a result of the defendant's failures Mr Orkzai was exposed to a risk of death or serious injury. 10. The serious injuries sustained by Mr Orkzai on 11 November 2014 were a manifestation of the risk."

EVIDENCE OF MR DUVNJAK

1. At the time of the incident Mr Duvnjak was the State Manager for New South Wales of the company Transport Contract Services Pty Limited (TCS). TCS engaged drivers, including Mr Orkzai, to drive in New South Wales for two separate companies - Century Couriers (NSW) Pty Limited and Civic Transport.
2. The business of both Century Couriers and Civic Couriers was same-day urgent courier and taxi trucks. A customer would ring up to book a job which had to be delivered from point A to point B. The radio room supervisor of the courier company would find the driver who was best suited to do the job and then allocate the job to that driver. At least 150 jobs per day were allocated in Sydney.
3. Mr Duvnjak could not specifically remember Mr Orkzai, but was shown documents to indicate that he inducted Mr Orkzai as a driver for TCS. He gave evidence about a standardised national process which included occupational health and safety, how to use the mobile phone app which contained details of jobs, what to do at pick up, what to do at drop-off, how to restrain loads and all other matters the drivers needed to know. There was a load restraint manual and an information guide for taxi trucks which he said were part of the induction process. He had signed off as having inducted Mr Orkzai.
4. Mr Duvnjak said that part of the induction was to observe the driver physically strap up a load on the truck. He would not let anyone drive unless the driver demonstrated competence in strapping loads.
5. The evidence of Mr Duvnjak was unchallenged and I accept it.

EVIDENCE OF MR ORKZAI

1. Mr Orkzai was born in 1980 in Pakistan. He came to Australia in November 2012. He gave evidence through an interpreter in the Pashtu language.
2. Mr Orkzai suffered serious injuries in the accident including a head injury. He appeared to me to have a noticeable indentation and defect in his skull. He now suffers from cognitive impairment. For that reason I have to regard his evidence with some caution.
3. Mr Orkzai came to be driving the truck through contact with a Mr Tauseef, who was also of Pakistani background. Mr Orkzai went to the office of a taxi truck company which he called Civic Couriers and met a man named Michael. He signed documents and the company gave him a jacket and uploaded an app onto his mobile phone. The app was used to receive jobs. Michael introduced Mr Orkzai to Anthony at the Civic Couriers office. The truck which Mr Orkzai was given to drive was equipped with a radio and Anthony was the person who gave instructions to the drivers over the radio.
4. Mr Orkzai filled out an Application for Sub-Contract Owner/Driver position. He signed it. Mr Orkzai said that his ability in English before the accident was better than his present standard. He said he did not get a copy of the Information Guide for Taxi Trucks issued by Civic Couriers.
5. Mr Orkzai understood that the owner of the truck was Mr Tauseef. Mr Tauseef paid in him cash for his work at the end of each week. He received $750. The jobs allocated to him by the app were largely same day deliveries in the Sydney metropolitan area.
6. On the day of the incident Mr Orkzai drove the truck to the premises of the defendant at Villawood. The truck carried the logo Century Couriers. His evidence was that there he was given an A-frame which was put onto the tray of the truck. A crane was used to load slabs onto the A-frame which was on the tray of his truck. He remembered that it was a lady operator of the crane. Mr Orkzai said that he had received a message through the app to pick up goods from the defendant to deliver to Marino Stone at Yennora, and also to pick up goods to be delivered to PMG Stone at Prestons.
7. Mr Orkzai said that he did not recall having any discussion with the lady who operated the crane, about the slabs being loaded onto the truck. He could not remember any discussion with that lady before he left the premises of the defendant. He did recall tying down the slabs after they were loaded onto the A-frame. He could not recall how many slabs he collected for delivery to Yennora and how many for Prestons.
8. Mr Orkzai arranged to pick up a friend Mr Abbas on the way to Yennora. He picked up Mr Abbas and drove to Yennora. There he undid the straps and removed the rear gate of the truck. The company at Yennora offloaded their slabs using a forklift. He could not recall how many slabs were then left on the A-frame or how those slabs were positioned. He left Yennora and started to drive to Prestons for his second delivery. At one point he stopped the truck and retied the load. He did not recall if there was anything about the movement of the truck that caused him to stop and tighten the load. He did not remember having any concerns about the way in which the truck was travelling along a road with the load of slabs. He did not recall the load of slabs affecting the driving of the truck in any way.
9. At Prestons he parked close to the warehouse and showed them the app. He removed the rear gate of the truck and undid the straps on the load. He was told by a person who worked at Prestons to get onto the tray of the truck, as that person was intending to use a forklift with a clamp to lift the slabs off the tray. The forklift driver told Mr Abbas to get back into the cabin of the truck.
10. After Mr Orkzai got onto the tray of the truck, having already undone the straps, he said the slabs just slid over him and pushed him. He did not remember anything after that. He said that the forklift operator had asked him to help fix the clamp to the slabs, but he could not recall actually fixing the clamp to a slab. He remembered the clamp being above the slabs but then the slabs fell on him and he could not recall anything else after that point.
11. In cross-examination Mr Orkzai said that he could not remember which side of the truck he was standing on when the slabs fell and he could not remember whether he was towards the front near the driver's cabin. He was shown a photo of a forklift but he could not recognize the vehicle in that photo.
12. Mr Orkzai was cross-examined about statements he had made to SafeWork inspectors. He was read a passage from one interview, in which he said to the inspector that he picked up the load for Yennora and started off on his journey but then received a message to go back and pick up the second load for Prestons. He said that he could not remember saying that. As that cross-examination continued he seemed to agree that he did enter the defendant's premises twice and take on two separate loads, which he intended to deliver by one trip firstly to Yennora and then on to Prestons.
13. In cross-examination Mr Orkzai repeated that he had discussions with a lady at the defendant's premises but he could not remember a man being present or speaking with a man.
14. He was again taken to the contents of an interview with an inspector. He was asked whether he told the inspector that he didn't have time for the load to be unloaded from the left-hand side of the A-frame and reloaded onto the truck with the Prestons load and said that he couldn't remember saying that. It was suggested that he had told the inspector that he said to the lady at the defendant's premises: "It's fine, just put on the load for Prestons". He said he couldn't remember saying that. He did say that when the goods were loaded he could not remember whether the truck was stable or not stable. He repeated that he could not remember what side of the truck the slabs were on and he did not remember whether they were on one side or both sides. He could not remember telling the inspector that when he delivered the first load, the truck was "bent" on the other side because the load was unbalanced. He could not remember telling the inspector that he was concerned about the load being on one side and that was why he stopped to tighten the load in between the two deliveries.
15. As I have already said, I have to exercise great caution in dealing with the evidence of Mr Orkzai. His head injury and his cognitive impairment mean that I cannot accept any evidence he gave unless it is corroborated by other people. Further, he had clearly given a different account of events to SafeWork inspectors, compared to the version he gave in the witness box. None of this is to suggest that Mr Orkzai was doing anything other than his best in giving his evidence. The problem with his evidence was not credibility but reliability.

EVIDENCE OF MR HYATT

1. At the time of the incident at Prestons Mr Hyatt was the warehouse manager for New South Wales of the defendant. He had been in that position for about 18 months. His résumé showed that he had had experience in warehousing operations from 2011 onwards.
2. The employment contract between the defendant and Mr Hyatt was put into evidence. It is dated 4 March 2014. A schedule to the contract set out Mr Hyatt's duties in his position as warehouse manager. Those duties were:

• Prepare documentation and merchandise for serving customer orders
• Responsible for loading and unloading trucks and containers
• Responsible for warehouse maintenance
• In charge of ensuring health and safety processes and procedures are met
• Responsible for the effective distribution of Cosentino products through efficient route planning
• Responsible for stock taking and control
• In charge of order processing and handing returns
• Responsible for supervising warehouse labourer(s) and driver(s)

1. In his role as warehouse manager he reported to Ms Donna Ciric who was New South Wales General Manager. The defendant's warehouse at Villawood was where the slabs were kept. They were handled by three overhead cranes. There was one delivery truck. Customers sometimes sent their own vehicles to collect slabs.
2. It was part of Mr Hyatt's role to load customer trucks as well as the defendant's own truck. Most of the loading was done with the overhead gantry cranes. In the warehouse there were A-frames for storage of slabs. These came in the containers of slabs which the defendant imported from Spain. Those A-frames were used not only to store slabs in the defendant's warehouse but were also available to be put on the back of trucks for delivery purposes. It was possible to lift up the frames and slide them onto the back of the tray and move them into position by hand. One person could do this task.
3. When trucks were loaded there was a crane operator and there was normally someone at the side of the slabs guiding them against the frame. This was often the driver of the truck. Once the clamp underneath the gantry crane released the slabs and they are resting against the frame the driver then strapped up each load.
4. On the day of the incident Mr Hyatt was the most senior person involved in day-to-day operations of the warehouse.
5. Customers placed orders with the defendant and Mr Hyatt created the necessary paperwork on the defendant's system. Either Mr Hyatt or the warehouse operative Ms Dowson would then pick the material using the cranes and move it to a pick-up area to make it ready for collection or delivery. Ms Dowson was the warehouse operative and she reported to Mr Hyatt. Mr Hyatt was the person who organised deliveries either using the defendant's truck or external transport companies.
6. Outside companies, including Century Couriers, were used to deliver slabs. The defendant used a couple of different external delivery companies. It was the job of Mr Hyatt to call the transport company, advise them what the order was and the transport company let him know what date it could be picked up and delivered to the customer. This is the way he operated with Century Couriers, with whom the defendant had an account.
7. Mr Hyatt had been provided with training and instruction in the loading of trucks. He had been trained in the safety procedures of the defendant. This included how to put material on the frame. In relation to loading procedures he said at T 308/18: "So we would always try to balance the load as best we can and then also have the slabs positioned on the frame on the truck so that it was evenly placed on the frame itself, so you didn't have too much on one side or another, so support the frame, it is always at the back, the material."
8. Mr Hyatt was shown the defendant's Occupational Risk Prevention Plan (the Plan) which stated: "The objective is to control the risks related to the operations of handling and storage of slabs. This safety instruction is part of Cosentino Cardinal Rules; failure to comply can result immediately in a very serious injury."
9. The Plan also stated: "Big natural stone slabs (granite, jumbo) cannot be moved alone, another person must assist (eg. driver)."
10. The "General Rules" in the Plan included the following:

• When loading the A-Frame, the weight will be distributed on both sides so it is compensated. Never load only one part of the A-Frame. During the loading/unloading operation of the A-Frame, the packages will be simultaneously placed on both sides to balance the load and stability (sic).
• Do not manipulate the slabs inside the truck unless safety bars are put (sic). Always balance loads in the loading/unloading, so to avoid the slope of the truck and possible overturn of the slabs.

1. Mr Hyatt acknowledged that in his role as warehouse manager, it was part of his duties to see that these rules were followed in the warehouse.
2. Mr Hyatt was also shown a document entitled "General Rules for Unloading/Loading Trucks". This took the form of a sign which had been affixed to the wall of the warehouse. The one page list of General Rules included the following: "Always ensure that the weight distribution on the vehicle is always even. It is forbidden to remove a whole bundle of material from one side of the vehicle creating unbalance (sic) on the back of the truck."
3. Mr Hyatt said that he had also been trained in relation to that rule. It was part of his duties as warehouse manager to see that these general rules were followed in the warehouse.
4. Mr Hyatt was asked to give an example of how the rules about balancing the load worked in practice. He said at T 316/11: "Depending on if there was any other material on the vehicle already we would talk to the driver and see what balance to do but typically it would be six slabs on one side and six on the other."
5. Mr Hyatt was taken to the order placed by PMG Stone for the slabs. It was dated 10 November 2014. He prepared a delivery note to the customer. The total weight recorded for the slabs to be delivered was 1.586 tonnes. At the time this documentation was prepared the customer had ordered eight slabs. There was a further order by the customer for an additional slab, which was a telephone order. This was to be added to the PMG order so that there was then to be a total of nine slabs. The weight was then approximately 1.818 tonnes. Each slab weighed about 200 kilograms.
6. Mr Hyatt said that he remembered Mr Orkzai pulling his truck up in front of the warehouse. Mr Orkzai came into the warehouse and Mr Hyatt recognised him because he had been to the warehouse before, collecting stone slabs. Mr Orkzai was talking to Ms Dowson who was the warehouse operative. Ms Dowson came to Mr Hyatt and said that the driver was from Century Couriers and was there to pick up the stone for Yennora. This was an order for three slabs.
7. Mr Hyatt saw that the truck already had an A-frame on it which Mr Orkzai had put onto the tray. Mr Hyatt saw Mr Orkzai back the truck into the bay in the warehouse so that Ms Dowson could load the Yennora order for three slabs using the overhead crane. All three slabs were loaded on one side of the A-frame. Mr Hyatt saw Mr Orkzai strap the load up and the truck left the warehouse. Ms Dowson then came over to help Mr Hyatt with another customer.
8. Mr Hyatt said that a couple of minutes later the driver drove back into the warehouse. Mr Orkzai said that he had come to pick up an order for PMG Stone. Mr Hyatt said that the PMG Stone order was ready to go and Mr Hyatt told Ms Dowson to load the material onto the truck. Ms Dowson went to take the Marino Stone (Yennora) order off the truck but the driver told her to stop and asked her why she was taking that material off the vehicle.
9. Ms Dowson told Mr Orkzai that she was going to take the Marino Stone order off so that she could load the PMG Stone order first onto the A-frame. Mr Hyatt said that the driver said he wasn't happy about the material being taken off as this would involve taking the Marino Stone off, loading the PMG stone and then loading the Marino Stone order again. Mr Hyatt said that Mr Orkzai seemed to get quite upset and said it was going to take too long, so Mr Orkzai said just put the PMG Stone order on the other side (meaning the other side of the A-frame).

EVIDENCE OF MS DOWSON

1. Ms Dowson started with the defendant in October 2014 as an employed warehouse operative. She had had experience working in factories, including driving forklifts, before she came to the defendant, but she had no experience regarding the handling of stone slabs.
2. She was initially employed on a probationary period with the defendant. She was inducted into the job by Ms Ciric and was then trained on-the-job to follow and observe the handling skills of Ms Ciric and Mr Hyatt, and the loading and unloading of trucks. She was taught about the fall shadow of the slabs, and she was taught to keep a lean on the slabs towards the frames. She started to move slabs herself at about the end of the first week on the job although she was supervised in doing so. Ms Dowson gave evidence about using the overhead crane and the clamp to move slabs from the factory to the area where slabs were to be loaded onto the truck from the pick bay area. She said that sometimes slabs were put onto trucks by the overhead crane and the clamp, and sometimes they were put on by the overhead crane and a sling. Ms Dowson observed Mr Hyatt moving slabs and observed him loading trucks.
3. Ms Dowson recalled the day of the incident and said that when Mr Orkzai arrived she recognised that he had been to the factory once or twice before. Ms Dowson saw Mr Orkzai place two A-frames onto the tray of the truck and then back the truck into the factory. Ms Dowson got the paperwork from Mr Hyatt. She checked the order and checked the slabs and then asked the truck driver where he wanted the slabs placed. At this stage she was only loading the three slabs for the Marino Stone order for Yennora. The three slabs were lifted with the crane and the clamp and were placed on the passenger side of the A-frame, leaving the driver's side of the A-frame with no weight upon it. Mr Hyatt observed Ms Dowson as she performed this task. She said that he was observing because she was new at the time.
4. Ms Dowson said that the driver then strapped up the three slabs and drove out of the warehouse. She then went about other duties. About a minute or so later the driver reversed back into the warehouse and said that he wanted the PMG Stone slabs loaded. To that point, Ms Dowson had understood that there were going to be two trips done with the slabs. The PMG paperwork was fetched including the delivery note.
5. Ms Dowson said that there was then a discussion between the three people about the weight of the truck. Mr Hyatt referred to the weight of the slabs on the paperwork. Ms Dowson indicated that she was going to take the three slabs off, and then load the PMG Stone slabs, and then put the three stones back on. She said that this was to evenly put weight on both sides of the frame because that led to "a safer balanced load". She knew this because of her training and the defendant's written policies about loading and handling slabs.
6. Ms Dowson said that when she proposed to take the three slabs off, the driver told her not to. She looked towards Mr Hyatt to deal with this issue. After a conversation with Mr Hyatt, she was instructed by Mr Hyatt to load the PMG Stone slabs on the other side of the A-frame, without first having removed the Marino Stone slabs. She thought that she used the sling to load the slabs onto the other side of the A-frame. She said that this took about three minutes. Ms Dowson said that it would have taken an extra 10-15 minutes to do what she proposed to do i.e. take the three Marino slabs off, put the PMG slabs on either side of the A-frame and then reload the three Marino slabs.
7. After Ms Dowson removed the crane and the sling the driver strapped up the truck and drove away.
8. Ms Dowson was taken to the same safety documentation of the defendant which had been shown to Mr Hyatt, and she acknowledged that she understood that balancing the load was a requirement of the defendant. When the truck left the premises she thought that there was nothing tilting, otherwise they would have stopped the driver leaving. There was very brief cross-examination of Ms Dowson by senior counsel for the defendant.
9. I accept the evidence of Ms Dowson. She struck me as a very careful person, both in the way she gave her evidence, but also in the steps she took on the day of the incident to follow the correct procedure which she had been taught, and to refer the matter to her manager Mr Hyatt, before taking steps which were clearly in defiance of the defendant's written safety plan. I find that her evidence was truthful and accurate.

EVIDENCE OF MR ABBAS

1. Mr Abbas was the friend of Mr Orkzai who was collected on the journey to Yennora and Prestons. He too came from Pakistan but he gave his evidence in English. He received a call from his friend and about 15 minutes later was picked up at a bus stop in Villawood. Mr Abbas said that when he first got into the truck he observed that the tray was "like bent down". He recalled that there were slabs situated on both sides of the A-frame but he thought they were roughly evenly distributed.
2. He recalled that at Yennora the slabs for that customer were removed from one side of the A-frame. He thought there might have been seven or eight slabs removed. After the Yennora slabs were taken off the only slabs on the A-frame were all on the driver's side.
3. Mr Abbas said that the truck left Yennora and after five minutes it stopped. Mr Orkzai got out and tightened the straps because "the truck is bent on one side". Mr Abbas expressed some concern to Mr Orkzai about the need to drive carefully because the truck was tilted to one side.
4. Mr Abbas gave evidence that when the truck got to Prestons Mr Orkzai got out and handed a paper to a lady who signed it. Mr Abbas got out of the truck. He saw a forklift come towards the driver's side of the truck and the forklift driver told Mr Orkzai to remove the gate. Mr Abbas said that the forklift driver told him (Mr Abbas) to go and sit in the cabin of the truck because he did not have a high-vis shirt on.
5. Mr Abbas went and sat in the cabin. He recalled the forklift coming close to the side of the truck. He heard the forklift operator tell Mr Orkzai to get onto the tray of the truck. Mr Orkzai untied the load and was helping to attach the forklift clamp to the slabs. Mr Abbas said that he then starting eating some food which he had brought to share with Mr Orkzai and he felt a jerk and heard a shout. He looked around behind the cabin and saw Mr Orkzai "stuck in the middle of load and fence". The load was resting on Mr Orkzai's chin.
6. Mr Abbas jumped down and the forklift driver tried to help Mr Orkzai by pushing the load off him with the forklift. This caused the A-frame to slide to the passenger side of the tray. Mr Abbas tried to push the slabs off Mr Orkzai by hand but they were too heavy. The forklift driver became "confused" and he was shaking his head and holding up his hands. Mr Abbas called out for help and many people from the factory came running. The slabs were removed from Mr Orkzai and when the last slab was removed Mr Orkzai fell onto the tray of the truck, from where he had been pinned against the gate. He was bleeding. A lady from the factory called the ambulance which came in about 15 minutes.
7. Mr Abbas was cross-examined but remained consistent in his version of events. He was re-examined about the appearance of the forklift driver. He said he was a tall man who tied his hair at the back. He was a bit taller than Mr Abbas who is 5 feet 11 inches tall. He had a strong body structure, was European, and spoke in a deep voice. He thought that the forklift driver was about 35 or 36.
8. I formed the impression that Mr Abbas was doing his best to recount his memory of what happened. While his English was not perfect, it was quite good. He understood the questions and he gave answers which could be understood.
9. For reasons which I will discuss below, I think that his version of the events at the scene of the accident is largely correct. In particular, I accept his evidence as to the sequence of events at the scene of the incident, including the presence of a forklift and a forklift driver about to engage in the process of unloading the stone; the removing of the straps by Mr Orkzai; the direction by the forklift driver for Mr Orkzai to get on the tray of the truck; and the slabs then toppling onto Mr Orkzai.

EVIDENCE OF MS SHERRY

1. Ms Sherry was the admin-office assistant at PMG Stone on the day of the incident. She started work there in January 2014 and worked in an upstairs office. The proprietors of the business, to whom she reported, were Mr Piero and Ms Angela Provenzano.
2. Ms Sherry had been in touch with a lady whom she knew as Donna at the defendant, to order stone slabs for the business of PMG Stone. Evidence in the form of emails showed that nine slabs in total were ordered, and Donna, at the request of Ms Sherry, said that the defendant would deliver the slabs as part of the price. Ms Sherry had conveyed to Donna that there was some urgency as the delivery of the nine slabs was necessary in order to keep production going at PMG Stone.
3. Ms Sherry said that Mr Orkzai's truck arrived at the factory at about 1.00pm to deliver the nine slabs. Mr Orkzai got out of the truck and gave her paperwork. She checked the details on the paperwork and signed that they were correct.
4. Ms Sherry said that she then asked one of the PMG workers named Riccardo if he could get the "lifter" and help the driver with the delivery of the slabs. The reference to a lifter was a reference to a forklift, to the tines of which there was an attachment with a clamp, which could be used to lift stone slabs.
5. The reference to the man Riccardo was a reference to a person who later gave evidence, Mr Riccardo Albertini.
6. After asking Riccardo to help, Ms Sherry returned to her office. She heard what she described as a "commotion" and she ran outside to investigate. When she got to the scene the slabs had already fallen on Mr Orkzai. The forklift was next to the driver's side of the truck at an angle of 90 degrees facing the truck. It was situated near the middle of the tray. She recognised the forklift as the PMG forklift. Ms Sherry recalled that the slabs were being held off Mr Orkzai by the forklift. The forklift remained in that position until the ambulance came. It was Ms Sherry who got on the phone and called the ambulance.
7. Ms Sherry in cross-examination could not say who was driving the forklift at the time she saw it sitting next to the truck. By that stage she was focussed on getting medical help for the injured driver.
8. I formed the impression that Ms Sherry was a truthful and accurate witness. Her version of events is basically similar to that of Mr Abbas.

EVIDENCE OF MR VONG

1. Mr Danny Vong was a mechanic who ran a business known as Platinum Garage, in one of the factory units next to the business of PMG Stone. From time to time he serviced the PMG forklift.
2. Mr Vong was a most unsatisfactory witness who could not remember anything. He did indicate to the court that he had had some problems in recent times with anxiety and depression. In any event, nothing turned on his evidence, since I was impressed by Ms Sherry and accept her evidence that the PMG forklift was next to the truck and being used to assist in the lifting of the stone off Mr Orkzai, shortly after the slabs had fallen. I reject the notion that the PMG forklift was sitting in Mr Vong's workshop all of that afternoon, out of commission, and therefore could not have been used in the unloading of the slabs.

EVIDENCE OF MR ALBERTINI

1. At the time of the accident Mr Albertini was employed by PMG Stone, but he has since become employed by the defendant. He gave his evidence through an Italian interpreter. He recalled Ms Sherry coming into the lunch room and asking someone to help the driver unload the truck. He recalled going out towards the truck. He heard a noise and saw the slabs on top of Mr Orkzai. He was pinned between the gate and the slabs. Mr Albertini gave evidence that he ran towards the truck and tried to free Mr Orkzai from the slabs, by pushing them away with his hands.
2. He denied driving or using the forklift. He denied being involved in the unloading operation, or being involved in using the forklift to lift the slabs off Mr Orkzai.
3. Mr Albertini physically matched the description of the forklift driver given by Mr Abbas. Further, I accept Ms Sherry who gave evidence that she specifically asked Mr Albertini to use the forklift to assist the driver to unload.
4. I therefore reject the assertion by Mr Albertini that he was not driving the forklift at any point. However, there was no evidence that anything he did as the forklift driver caused the slabs to fall upon Mr Orkzai. I do not know why Mr Albertini did not give accurate evidence about his involvement with the forklift. Perhaps the shock of the accident affected his memory or perhaps he thought that he may be in some sort of trouble and be blamed for the accident. In any event, his evidence was unreliable and I do not accept it.

FINDINGS OF FACT

1. I find each of the following facts to be established.
2. Mr Orkzai applied to Transport Contract Services Pty Limited (TCS) to obtain work as a sub-contract owner/driver.
3. Mr Orkzai filled out an application for a sub-contract owner/driver position.
4. TCS provided sub-contract drivers, who in turn provided their own trucks, to the courier company Century Couriers (NSW) Pty Limited (Century).
5. The business of Century was same day urgent courier and taxi truck delivery.
6. Mr Duvnjak, the State Manager for TCS, inducted Mr Orkzai as a driver for TCS.
7. A mobile phone app was uploaded to Mr Orkzai's mobile phone and this app told Mr Orkzai, inter alia, what jobs to do at a particular time on a particular day.
8. Mr Duvnjak carried out an assessment of the knowledge and competence of Mr Orkzai in relation to strapping a load for taxi truck purposes.
9. Mr Orkzai passed the assessment.
10. The truck driven by Mr Orkzai was owned by Mr Tauseef, or his father.
11. At the end of each week Mr Tauseef paid Mr Orkzai in cash for his work.
12. The truck which Mr Orkzai drove was a four tonne tray truck branded with the logo of Century.
13. The defendant regularly used Century as one of the courier companies which it contacted to have stone slabs picked up from the defendant's Villawood premises for delivery to customers.
14. The business of the defendant conducted at Villawood was the importation of stone slabs; the sale of stone slabs; the loading of trucks with stone slabs at Villawood and engaging third parties (such as Century) to deliver stone slabs to customers of the defendant, where the cost of such delivery was borne by the defendant.
15. On or about 11 November 2014 the defendant contacted Century and engaged it to perform two delivery jobs.
16. The defendant engaged Century to deliver three stone slabs to Marino Stone, a customer of the defendant, at Yennora.
17. The defendant engaged Century to deliver nine stone slabs to PMG Stone, a customer of the defendant, at Prestons.
18. On 11 November 2014 Mr Orkzai drove the Century truck which had been allocated to him to the premises of the defendant at Villawood.
19. Mr Orkzai placed either one or two A-frames, the property of the defendant, onto the tray of his truck.
20. Mr Orkzai backed the truck into the factory to a point where an overhead crane could obtain access.
21. Ms Dowson, under the supervision of Mr Hyatt, loaded three stone slabs, bound for Marino Stone at Yennora, onto the passenger side of the A-frame sitting on the tray of the truck.
22. Mr Orkzai strapped up that load and left the defendant's factory.
23. A very short time later Mr Orkzai drove back into the factory and requested the loading of nine stone slabs for PMG Stone at Prestons.
24. Ms Dowson told Mr Orkzai that she proposed to use the overhead crane to remove the three Yennora slabs from the truck, load the nine Prestons slabs by splitting that load evenly across the A-frame, and then re-load the three Yennora slabs.
25. Mr Orkzai objected to this proposal. He said that he was in a hurry. He said that he wanted the nine Prestons slabs to be loaded onto the driver's side of the A-frame.
26. Mr Hyatt was involved in the discussions concerning doing the Prestons delivery; loading the truck with the Prestons material; the proposal to remove the Yennora stone, then load the Prestons stone and then reload the Yennora stone; the insistence by the truck driver that the Yennora stone not be removed from the truck; and the Prestons stone being placed only on the driver's side of the A-frame.
27. After such discussions Mr Hyatt instructed Ms Dowson to use the overhead crane to load the nine slabs to be sent to Prestons onto the driver's side of the A-frame.
28. Mr Hyatt at that stage knew that the three Yennora slabs were to be delivered first and that once they were, there would be nine slabs on one side of the A-frame and none on the other.
29. When Mr Hyatt gave this instruction he was the warehouse manager, and also the senior person in charge of warehouse operations that day.
30. Ms Dowson was a trainee who was on probation and she carried out Mr Hyatt's instructions.
31. Ms Dowson then loaded the nine Preston slabs onto the driver's side of the A-frame, leaving the three Yennora slabs on the passenger side of the A-frame.
32. At the time that Mr Hyatt gave his instruction, the defendant had a written safety plan with the following "cardinal rules": (a) When loading the A-frame, the weight had to be distributed on both sides; (b) Workers should never load only one side of the A-frame; (c) Loads on the A-frame always had to be balanced, so as to avoid, inter alia, the possible overturn of the slabs; (d) It was forbidden to remove a whole bundle of material from one side of the A-frame thus creating imbalance.
33. Mr Hyatt knew of these rules and had been trained that they had to be followed.
34. Ms Dowson knew of these rules and had been trained that they had to be followed.
35. Mr Hyatt said that an example of carrying out those rules was that if there were 12 slabs, 6 had to be loaded on one side of the A-frame and six on the other.
36. The nine slabs destined for Prestons weighed approximately 1.8 tonnes.
37. Mr Orkzai left the premises of the defendant and a short time later picked up his friend Mr Abbas who travelled with him for company, but not to assist in any way.
38. Mr Orkzai drove the Century truck to the premises of Marino Stone at Yennora where the three slabs were unloaded from the passenger side of the A-frame, leaving all nine PMG Stone slabs on the driver's side of the A-frame.
39. Mr Orkzai strapped up the load again and drove away from Yennora.
40. Somewhere in between Yennora and Prestons Mr Orkzai stopped and checked and tightened the straps on the load.
41. At this stage the tray of the truck was visibly tilted downwards to the right, and this was caused by the weight of all nine slabs being on one side of the tray.
42. Mr Orkzai drove the truck and arrived at the premises of PMG Stone at Prestons.
43. He got out of the truck and spoke to Ms Sherry and gave her the paperwork relating to the delivery of nine slabs.
44. Ms Sherry checked the paperwork, then she went inside the factory and asked Mr Albertini to assist the driver to unload the slabs.
45. Mr Albertini drove the PMG Stone forklift to a point where it was at 90 degrees to the tray of the truck, adjacent to and facing the middle of the driver's side of the tray.
46. Mr Albertini instructed Mr Abbas to get back into the cabin of the truck as Mr Abbas did not have a high-vis shirt on. Mr Abbas got back into the cab.
47. Mr Orkzai unstrapped the load of nine slabs.
48. Mr Albertini then told Mr Orkzai to get onto the tray of the truck to assist in attaching the clamp device, which in turn was attached to the tines of the forklift, to the top of the slabs.
49. Mr Orkzai got onto the tray of the truck and was on the driver's side of the tray in the fall zone of the slabs.
50. Before any attachment of the clamp to the slabs could take place, all nine slabs tipped towards Mr Orkzai and fell upon him.
51. The slabs pinned Mr Orkzai against the gate on the driver's side of the tray.
52. Mr Albertini attempted to use the forklift to lift the slabs off Mr Orkzai.
53. Mr Abbas got out of the cab and came to try to manually lift the slabs off Mr Orkzai. He called for help and workers from PMG Stone came out to assist him.
54. Eventually the slabs were lifted off Mr Orkzai who then fell from his position pinned against the gate, onto the tray of the truck.
55. By this time Mr Orkzai was very severely injured. An ambulance was called which arrived in 15 minutes.
56. When the ambulance arrived the forklift was still adjacent to the driver's side of the tray of the truck at an angle of about 90 degrees.
57. Mr Orkzai was conveyed by ambulance to hospital and Mr Abbas drove to the hospital to see his friend there.
58. It is necessary to make some additional factual findings about the fall of the slabs.
59. I find that the slabs were adequately strapped by Mr Orkzai and remained adequately strapped until he arrived at Prestons.
60. I find that the use of the forklift played no part in the fall of the slabs and nor did any action on the part of Mr Albertini.
61. I find that when Mr Orkzai unstrapped the nine slabs they did not fall straight away.
62. I find that the slabs must have been standing almost at an upright position and were ready to topple over at the slightest provocation.
63. I find that when Mr Orkzai stepped onto the driver's side of the tray, this relatively small movement in weight was enough to tip the slabs from their vertical position onto him.
64. I find that Mr Orkzai was not the cause of the slabs falling, in that he did not try to pull the slabs toward him nor did he try to separate the slabs for the purpose of attaching the clamp.
65. I find that if the slabs had been spread evenly on the A-frame, then they would have remained resting on the A-frame and would not have toppled onto Mr Orkzai, providing that they were unloaded in a balanced fashion i.e. one from the left, one from the right, one from the left etc.

CONSIDERATION OF ELEMENT 1 - WHETHER THE DEFENDANT HAD A HEALTH AND SAFETY DUTY

1. To establish a breach of s 19(1) of the Act, the prosecution has to establish firstly that the defendant was conducting a business or undertaking. That it was doing so was not in dispute. I have already set out above the findings of fact concerning the nature of the business or undertaking of the defendant. Contrary to the submissions of senior counsel for the defendant, I find that the business or undertaking included the delivery of stone slabs to customers, by third party taxi trucks.
2. The prosecution must prove that Mr Orkzai was a "worker". Pursuant to s 7(1) of the Act Mr Orkzai would be a worker if he carried out work in any capacity for the defendant. This includes, pursuant to s 7(1)(b), work as a contractor or sub-contractor.
3. I have already found that the defendant engaged Century to cart the stone slabs on the day of the incident. The defendant had an account with Century and used it for taxi truck purposes. It also used other unnamed carriers from time to time. Thus between the defendant and Century there was a direct contractual relationship. The evidence shows that Century sub-contracted the performance of the work, by TCS supplying a truck and a driver. Thus between the defendant and TCS, TCS was a sub-contractor. Mr Orkzai was a contractor with TCS and thus he was a sub-contractor to Century.
4. It is to be noted that s 7(1) provides that a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work in any of the capacities set out in paragraphs (a) to (i).
5. Mr Orkzai was a sub-sub-contractor in relation to the defendant. He was performing his work as a contractor to TCS.
6. I find that Mr Orkzai is a worker within the meaning of s 7(1), because he was carrying out work in the capacity of a sub-sub-contractor for the defendant which was conducting a business or undertaking. The only reason that Mr Orkzai attended at the Villawood premises of the defendant was because the defendant requested taxi truck services from Century, which in turn requested such services to be provided by TCS, which in turn requested such services to be provided on the day by Mr Orkzai. The defendant thus was the cause of Mr Orkzai being at the premises and in effect required and caused him to attend there. At the Villawood premises of the defendant, employees of the defendant loaded stone slabs onto his truck. Those slabs were delivered to two customers of the defendant. At the conclusion of the second delivery, the arrangement was that Mr Orkzai would return the A-frames to the defendant. In effect, Mr Orkzai was permitted to use the defendant's equipment, being the A-frames, to carry out work for the defendant.
7. In the ordinary course Mr Orkzai would have been paid for the delivery to PMG Stone through receiving cash at the end of each week from the owner of the truck Mr Tauseef (or his father). In turn Mr Tauseef would have been paid by TCS. In turn TCS would have been paid by Century. In turn Century would have rendered an invoice to the defendant and been paid for the job by the defendant. The money which Mr Orkzai would normally earn for such a delivery would have ultimately come from the defendant, because the defendant obtained the benefit of his services in conducting its business or undertaking.
8. Once there is a finding that the defendant was conducting a business or undertaking and that Mr Orkzai was a worker, the question then becomes whether the defendant has carried out its primary duty of care imposed by s 19(1) of the Act which provides: "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."
9. Senior counsel for the defendant submitted that because paragraph (a) and (b) in s 19(1) are joined by the word "and", the prosecution must prove that Mr Orkzai was both a person engaged or caused to be engaged by the defendant and was a worker whose activities in carrying out work were influenced or directed by the defendant.
10. While that submission is certainly arguable, I reject it. Section 33 of the Interpretation Act 1987 provides: "In the interpretation of a provision of an Act… a construction that would promote the purpose or object underlying the Act… (whether or not that purpose or object is expressly stated in the Act…) shall be preferred to a construction that would not promote that purpose or object."
11. I have already recited the objects of the Act contained in s 3. The main object of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks.
12. Section 3(2) provides that in furthering this object, 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… as is reasonably practicable".
13. Having regard to the objects of the Act, to regard paragraphs (a) and (b) in s 19(1) as truly cumulative, would limit the categories of workers who would obtain protection under the Act.
14. In plain English the word "and" is used conjunctively and the word "or" is used disjunctively. The courts are prepared to modify the usual meaning of these words if a case falls into one of two categories. Firstly the court may be persuaded the legislature has made a mistake in the Act and the wrong conjunction has been used - Pearce and Geddes, Statutory Interpretation in Australia, 8th Edition para 2.29.
15. The second category was explained in the decision of Blackburn J in Re The Licensing Ordinance (1968) 13 FLR 143. His Honour spoke of those cases: "…In which there was a list of items, the items being joined by 'and' and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word 'and', which is used to join the items in the list, is truly cumulative: it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorise the class, as a whole, as a class of alternatives… The word 'and' inside the class does not have dispersive or alternative force; its force is wholly cumulative; it is the words outside the class which given the dispersive effect."
16. In my view the word "and" which joins paragraph (a) and paragraph (b) in s 19(1), is there to indicate that both classes of workers are owed a primary health and safety duty. Thus a worker can be a person engaged or caused to be engaged by the person, or a worker whose activities in carrying out work are influenced or directed by the person, or of course the worker could fall into both categories.
17. I enquired of senior counsel for the defendant whether there was any authority for his submission and quite properly he indicated that he had not been able to find such an authority.
18. If the singular word "worker" had been used, there may be an argument that the word "and" was intended to be cumulative. But the use of the plural "workers" twice is another indication that the legislation is intended to cover anyone within the two classes in (a) or (b).
19. There is another reason why the word "and" is not to be read as cumulative. I have already referred to the objects clause in s 3 of the Act, which refers to a "balanced and nationally consistent framework to secure the health and safety of workers". This nationally consistent framework was referred to by the Minister for Finance and Services in the Second Reading Speech of the Work Health and Safety Bill 2011. The Minister said in that speech: "The Work Health and Safety Bill 2011 illustrates the commitment of the New South Wales Government to participate fully in a nationally harmonised system of occupational health and safety. The Bill enacts the nationally agreed Model Work Health and Safety Act, with appropriate jurisdictional modifications."
20. The Minister also referred in his speech to Safe Work Australia commencing the development of the Model Work Health and Safety Act. He said that the resulting national consultation process concluded with the finalisation of the Model Act: "The Work Health and Safety Bill 2011 will enact the model Act developed by Safe Work Australia - and as agreed by the Workplace Relations Ministerial Council - in New South Wales to enable this State to meet the agreed national start date of 1 January 2012."
21. In submissions the prosecutor provided a copy of the SafeWork Australia Explanatory Memorandum - Model Work Health and Safety Bill. That Bill was said to underpin the new harmonised work health and safety framework in Australia.
22. The Explanatory Memorandum stated in paragraph 74: "The changing nature of work organisation and relationships means that many who perform work activities do so under the effective direction or influence of someone other than a person employing them under an employment contract. The person carrying out the work:

• may not be in an employment relationship with any person (eg. share farming or share fishing or as a contractor working under a contract for services), or
• may work under the directions and requirements of a person other than their employer (as may be found in some transport arrangements with the requirements of the consignor)."

1. Paragraphs 76 to 88 of the Explanatory Memorandum dealt with the primary duty of care in clause 19 of the Bill. The Explanatory Memorandum said: "77. The PCBU has a duty to ensure, so far as is reasonably practicable, the health and safety of workers that are: * directly engaged to carry out work for their business or undertaking * placed with another person to carry out work for that person, or * influenced or directed in carrying out their work activities by the person, while the workers are at work in the business or undertaking. 78. Duties of care are imposed on duty holders because they influence one or more of the elements in the performance of work and in doing so may affect the health and safety of themselves or others. Duties of care require duty holders - in the capacity of their role and by their conduct - to ensure, so far as is reasonably practicable, the health and safety of any workers that they have the capacity to influence or direct in carrying out work."
2. Section 34 of the Interpretation Act 1987 deals with the use of extrinsic material in the interpretation of Acts. Section 34(1) provides: "In the interpretation of a provision of an Act… if any material not forming part of the Act… is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act… and the purpose or object underlying the Act…), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act… and the person or object underlying the Act…) leads to a result that is manifestly absurd or is unreasonable."
3. One piece of extrinsic material which may be taken into account is the Second Reading Speech - s 34(2)(f).
4. Pursuant to s 34(1)(a) I take into account the Second Reading Speech and the Explanatory Memorandum to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, as set out in my analysis above.
5. While to my mind the provision is not ambiguous or obscure, to a non-lawyer the notion that the word "and" should be read as "or" is to say the least unusual. I therefore take into account that material also under s 34(1)(b)(i) of the Interpretation Act 1987. It confirms my interpretation of s 19(1).
6. Section 19(1)(a) speaks of the duty being owed to workers engaged or caused to be engaged by the person. Senior counsel for the defendant accepted that the word "engaged" is to be understood as a broader concept than employment, but submitted that the word "engaged" in s 19(1)(a) contemplates privity of contract. I asked senior counsel whether there was any authority for that proposition and very properly he informed me that he could find none.
7. The leading decision in relation to the meaning of this word is R v ACR Roofing Pty Limited (2004) 11 VR 187. At paragraph 54 Justice Nettle said: "Those being the facts, I consider that it would make little sense to interpret 'engaged by' so as to restrict the operation of the section to contractors with whom the employer is in contractual relations. It does, however, make evident sense, and in my view it was intended that the expression include the engagement of any contractor in relation to matters over which the employer has control, either (a) under a contract entered into between the contractor and the employer; or (b) under a contract entered into between the contractor and some other person. Thus in my opinion a contractor could just as well be regarded as engaged by the employer in relation to matters over which the employer has control if the contractor were engaged directly by the employer under a contract with the employer, or by another contractor under a sub-contract, or by a sub-contractor under a sub-sub-contract, or under a sub-sub-sub contract or some remoter species of sub-contract; regardless of the layers of contractual relations that might separate the contractor from the employer."

ELEMENT 2 - WHETHER THE DEFENDANT FAILED TO COMPLY WITH THE HEALTH AND SAFETY DUTY

1. The prosecution submitted that the offence lies in exposure to risk of injury not in the doing of actual injury and that causation of the injury is not an ingredient of the offence - Tangerine Confectionary Limited v R [2011] EWCA Crim 2015. That case also said that what is reasonably practicable depends on all the circumstances, including principally the degree of foreseeable risk, the gravity of injury and the implications of suggested methods of avoiding it.
2. As previously recited, s 18 of the Act provides that in relation to a duty to ensure health and safety, the phrase "reasonably practicable" 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 those set out in paragraphs (a) to (e) of s 18.
3. Section 18(a) is the likelihood of the hazard or the risk concerned occurring. The defendant's Occupational Risk Prevention Plan (the Plan) stated that failure to comply with the Cosentino Cardinal Rules "can result immediately in a very serious injury". That such harm was likely to occur was foreseen in the Plan when it said that workers were to "never" load only one part of the A-frame. They were also told to "always balance loads". Given the weight of each stone slab, the likelihood of the hazard or risk concerned occurring was significant.
4. Section 18(b) refers to the degree of harm that might result from the hazard or the risk. As already recited, the Plan noted that failure to comply with the Cosentino Cardinal Rules could result immediately in a very serious injury. Just to say that the risk was of even one slab weighing 200 kilograms falling on a worker, is to say that there was a high degree of harm that might result from that hazard or risk.
5. Section 18(c) provides that it is relevant to know what the defendant knew or ought to have known about the hazard or the risk, and the ways of eliminating or minimising the risk. As previously recited, the Plan set out what the hazard was, and thus the hazard or risk was actually known to the defendant. Further, the Cosentino Cardinal Rules for loading the A-frame and balancing loads showed that there were readily available ways of eliminating or minimising the risk.
6. This last matter is relevant to s 18(d) which refers to the availability and suitability of ways to eliminate or minimise the risk. The defendant had equipped itself with overhead cranes and had trained workers to use them. Those workers were instructed to load the slabs in an even distribution on the A-frames. Thus there were people available to do the job and machinery available to do the job. The defendant already had both available and suitable ways to eliminate or minimise the risk.
7. Section 18(e) refers to whether the cost associated with available ways of eliminating or minimising the risk is grossly disproportionate to the risk. One immediate response is that since the risk is of serious injury or death, it would be hard to argue that the cost of eliminating or minimising such a large and serious risk was disproportionate. However, the evidence shows that the defendant already had the equipment and the trained workers to eliminate or minimise the risk. There was no further cost to the defendant in eliminating or minimising the risk to Mr Orkzai on the day of the incident. It would have taken a little bit more time, but there was no evidence that the defendant's workers did not have that time, or that their time was so valuable and expensive that it would mean that loading the slabs in the approved way would have been a disproportionate cost.
8. The very fact that two employees of the defendant, including the person responsible for overall management of the warehouse on the day of the incident, disobeyed the Cosentino Cardinal Rules, is a telling and important factor in this prosecution. By s 244 of the Act, those two employees were acting within the actual or apparent scope of their employment and were acting with the actual or apparent authority of the defendant, and thus their conduct is imputed to the corporate defendant.
9. Ms Dowson was very forthright about her involvement on the day. It is clear that she wanted to follow the Cosentino Cardinal Rules, but was directed to do the loading of the PMG Stone slabs in breach of those rules, at least in relation to the PMG Stone, by Mr Hyatt, the senior manager in the warehouse on the day of the incident. Mr Hyatt was equally frank and indeed blunt in acknowledging that he had told Ms Dowson to load the stone so that nine PMG Stone slabs were only on one side of the A-frame. There was no explanation of why he did that.
10. The fact that he did it could show that the Cosentino Cardinal Rules were regarded as being optional, or unimportant, by trained employees. In the alternative, the fact that Mr Hyatt acceded to the demands of Mr Orkzai to load the slabs on one side of the A-frame could demonstrate that while he was the warehouse manager on the day, his training was inadequate and unsatisfactory.
11. One telling point made by the prosecutor was that the three slabs bound for Marino Stone were loaded on one side of the A-frame, at a time when both Mr Hyatt and Ms Dowson thought that the truck was only going to carry out one delivery on its run, that being the three slabs bound for Yagoona. Even this preliminary loading was in breach of the Cosentino Cardinal Rules and the Plan. There was no explanation provided by Mr Hyatt or Ms Dowson why this initial loading of three slabs was done in breach of safe practices. Mr Orkzai made no request for the slabs to be loaded like this.
12. Paragraph 8 of the Amended Summons deals with the allegation of the defendant failing to comply with the duty by setting out what is said to be three reasonably practicable measures to eliminate or minimise the risks to the health and safety of workers.
13. Paragraph 8(a) is an allegation that the defendant should have maintained a safe system for the loading and transport of stone slabs on A-frames on trucks by ensuring that the defendant's workers loaded stone slabs evenly on both sides of the A-frame so that the load was balanced and did not create instability when any part of the load restraints were to be removed.
14. True it is that the defendant had a written Plan which specified a safe system for the loading and transporting of stone slabs, in that they were to be loaded evenly and the load was to be balanced. However, the very fact that the senior person in the warehouse (Mr Hyatt) instructed a trainee (Ms Dowson) to load the PMG Stone slabs all on one side of the A-frame, knowing that there would be nothing on the other side after the Yennora delivery, shows that the defendant did not maintain a safe system for loading and transport in accordance with paragraph 8(a) of the Amended Summons. The actions of Mr Hyatt in particular, but also of Ms Dowson (on the instruction of Mr Hyatt) are to be imputed to the defendant under s 244 of the Act. Thus the defendant, through the egregious failure of Mr Hyatt, did not maintain a safe system for the loading and transporting of slabs.
15. Paragraph 8(b) of the Amended Summons alleges that the defendant failed to instruct its workers who loaded A-frames on trucks with stone slabs that they were to always load stone slabs in accordance with the safe loading system. Once again, it is correct to say that in writing that was the very instruction which was given. However, the instruction given on the day by Mr Hyatt as warehouse manager to Ms Dowson as the trainee operative, was to load the A-frame with the PMG Stone otherwise than in accordance with a safe loading system. The instruction of Mr Hyatt to Ms Dowson is the instruction of the defendant - s 244 of the Act.
16. Section 8(c) of the Amended Summons alleges that the defendant failed to instruct its workers that they were not to load stone slabs on A-frames on trucks in a manner directed or requested by the truck driver which was contrary to the safe loading system. The written Plan told workers never to load otherwise than in accordance with the Plan and to always load in accordance with the Plan. This was broad enough to cover, to my mind, not listening to any truck driver who was proposing a system of loading which was not in accordance with the safe loading system mandated by the Plan. However, when Mr Hyatt capitulated to the less than strident demands of Mr Orkzai on the day of the incident, for no reason which was ever explained, his action was that of the corporate defendant and thus he failed to instruct Ms Dowson not to load the slabs in the manner directed by the truck driver.
17. For those reasons I am satisfied beyond reasonable doubt that the defendant failed to comply its health and safety duty, within the meaning of s 32(b) of the Act.

ELEMENT 3 - WHETHER THE FAILURE EXPOSED MR ORKZAI TO A RISK OF DEATH OR SERIOUS INJURY

1. The prosecution submitted that the relevant question on causation is not whether the failures of the defendant were the cause of the injury to Mr Orkzai, but whether the act or omission of the defendant was a substantial or significant cause of Mr Orkzai being exposed to the risk of injury - Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127], [130].
2. That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health, safety and welfare of workers - Bulga Underground Operations v Nash at [129-130].
3. The fact that a third party missed an opportunity to eliminate the risk in question does not mean the court is precluded from finding that the defendant's failure substantially contributed to the risk - Simpson Design & Associates Pty Limited v Industrial Court of NSW [2011] NSWCA 316 at [117].
4. The submission of the prosecutor was that Mr Orkzai was exposed to the risk at Prestons when the strap restraints on the slabs were removed, and the nine slabs were sitting almost vertically on the A-frame, because they had all been loaded on one side of the A-frame, and because that weight caused the tray of the truck to bend downwards towards the driver's side. As I have put it earlier, the slabs were basically just waiting to fall at that point.
5. I find that Mr Orkzai was exposed to a risk of death or serious injury from the time when the nine slabs bound for Prestons were loaded onto one side of the A-frame at the defendant's premises at Villawood. From that point onwards there was a risk of death or serious injury.
6. The risk came home at Prestons when the nine slabs toppled onto Mr Orkzai, but the injury could have occurred earlier, for example at Yennora when the load was unstrapped for the first time, or between Yennora and Prestons when Mr Orkzai re-strapped the load. Further, the driving of the truck could have been so affected by the unbalanced load that there could have been an accident between Yennora and Prestons.
7. The risk would not have been caused if the stone slabs had been loaded evenly on both sides of the A-frame so that the load was balanced. Reference to the defendant's Plan alone confirms this.
8. I have already made findings of fact to the effect that nothing done by the forklift driver caused the slabs to fall and that there was no fault of Mr Orkzai in the way in which he strapped and restrained the load in the first place.
9. The fact that the slabs did not fall immediately upon being unstrapped, but only fell when Mr Orkzai stepped into the fall zone on the driver's side of the tray, indicates that they were likely to fall as they were almost upright at that point.
10. Senior counsel for the defendant submitted that any failure on the part of the defendant did not constitute a significant or substantial cause of the risk that was alleged. He pointed out that the evidence demonstrated possible contributions by other parties. Those are irrelevant as a matter of law, and I have already found that the failures by the defendant to comply with the health and safety duty owed by Mr Orkzai were a substantial or significant cause of the risk.
11. I am satisfied beyond reasonable doubt that the failure by the defendant to comply with its duty to Mr Orkzai exposed Mr Orkzai to a risk of death or serious injury.

CONCLUSION

1. I find that the defendant committed a Category 2 offence pursuant to s 32 of the Work Health and Safety Act 2011 because: 1. the defendant had a health and safety duty to Mr Orkzai, and 2. the defendant failed to comply with that duty, and 3. the failure exposed Mr Orkzai to a risk of death or serious injury.
2. I find the offence set out in the Amended Summons proved beyond reasonable doubt.
3. I will hear the parties on sentence.
4. My orders are: 1. The elements of the offence set out in the Amended Summons filed on 6 November 2017 have been proved beyond a reasonable doubt. 2. I find Cosentino Australia Pty Limited guilty of the offence. 3. I will list the matter for a sentence hearing on a date convenient to the parties.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2018