SafeWork NSW v JBS Australia Pty Ltd - [2023] NSWDC 382 - NSWDC 2023 case summary — Zoe

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SafeWork NSW v JBS Australia Pty Ltd

[2023] NSWDC 382

District Court of NSW|2023-07-31

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Source facts

Court

District Court of NSW

Decision date

2023-07-31

Source

Original judgment source is linked above.

Judgment (61 paragraphs)

[1]

J Agius SC with N Read (Prosecutor) A Moses SC with P Sharp (Defendant)

[2]

Solicitors: Legal, Department of Customer Service (Prosecutor) Loupe Legal (Defendant) File Number(s): 2022/40927 Publication restriction: None

[3]

Table of Contents Introduction Facts Background The JBS Australia Safety System Induction JBS Feedlots Induction Team Member Handbook Code of Conduct and Ethics Risk assessment training Prerequisite Competency (PRCs) Task Training Toolbox talks (TBTs) Events prior to 19 February 2020 The first delivery of hay on a contract from O'Sullivans The near miss event of 1 November 2019 The weather Events of 19 February 2020 Evidence of Margaret Wippell Evidence of Belinda Fletcher Evidence of Bradley Keeys Evidence of Allan McKenna Evidence of Craig Pickering Evidence of Anthony Cottee Evidence of Nicole Radcliffe Findings on the evidence relating to the events of 19 February 2020 Steps taken by JBS after the incident The Elements of the Offence Relevant Law Causation Element 3 - Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [12] of the Summons? The pleaded risk The likelihood of the risk occurring The degree of harm The defendant's knowledge of the risk The defendant's knowledge of the ways of eliminating or minimising the risk Cost of the particularised measures Reasonably practical steps 12(a) - Failure to undertake an adequate risk assessment on the tasks of unloading hay bales, moisture testing hay bales and stacking hay bales 12(b) - Failure to develop, implement and enforce a safe work procedure for moisture testing 12(c) - Failure to develop, implement and enforce a safe work procedure for hay stacking 12(d) - Failure to provide information, training and instruction 12(e) - Failure to provide adequate supervision 12(f) - Failure to appoint a spotter Conclusion on Element 3 Element 4 - Did the defendant's breach of duty expose Ms Fletcher to a risk of death or serious injury? The defendant's submissions Conclusion on Element 4 Conclusion and Orders

[4]

Introduction

JBS Australia Pty Ltd (JBS or the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Belinda Fletcher to a risk of death or serious injury contrary to s 32 of the Act.
On 19 February 2020, Ms Fletcher, an administrative employee of JBS, was testing the moisture levels of hay bales that had been delivered to the JBS Feedlot at Caroona (the feedlot). Each bale measured 2,350mm long by 1,260mm wide and 820mm high and weighed approximately 700 kilograms. The bales were supplied by O'Sullivan Farms, a producer from Echuca in Victoria (O'Sullivans). The bales were in the process of being unloaded from a truck and placed into a stack using a frontend loader (FEL). Before they could be placed into the stack, bales needed to be moisture tested. Bales with a high moisture content posed a risk of spontaneous combustion and were of poor nutritional value for the livestock. Moisture testing was performed by a worker inserting a probe into the bale in three different locations and recording the highest reading. Bales with a moisture content of 14% or more were either rejected by the feedlot and sent back to the supplier, or put aside for immediate use, as opposed to being placed in a stack. On the morning of the incident, Ms Fletcher was working in close proximity to a partially constructed stack when two of the bales fell on her, trapping her underneath them and causing her serious injury.
JBS admitted Elements 1 and 2 of the charge, which are set out at [192] below. The legal issues in the case are: 1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [12] of the Summons? (Element 3) 2. Did the defendant's breach of duty expose Ms Fletcher to a risk of death or serious injury? (Element 4)
For the reasons that follow, I am satisfied beyond reasonable doubt that the defendant failed to take some of the reasonably practicable steps to ensure the health and safety of Ms Fletcher particularised in [12] of the Summons, and that those failures exposed Ms Fletcher to a risk of death or serious injury. It follows that I find the defendant guilty of the s 32 offence.

[5]

Background

The JBS Group is the largest meat processing company by sales in the world, producing factory-processed beef, chicken and pork and selling the by-products of processing.
JBS operates Australia's largest meat and food processing business and has a number of facilities, feedlots and distribution centres across Australia. JBS's Northern Division operates five beef processing facilities and five feedlots across Queensland and NSW, including the Caroona feedlot.
JBS employed the following workers at the feedlot: 1. Margaret Wippell, Livestock Supervisor; 2. Glenn McIntosh, HR & Compliance Officer; 3. Nicole Radcliffe, Feeding Supervisor. Ms Radcliffe was the supervisor of the mill department and responsible for bringing commodities into the feedlot, including hay. She was the JBS supervisor responsible for unloading the hay, moisture testing and stacking the hay. Ms Radcliffe was on leave on 19 February 2020; 4. Bradley Keeys, Feed Mill Hand (Intake). Mr Keeys was responsible for receiving commodities at the feedlot including hay, grain and silage and other tasks relating to feeding the livestock. Prior to the incident, Mr Keeys had approximately 9 years' experience stacking hay bales at the feedlot. Mr Keeys was the feedlot's nominated Health and Safety Representative (HSR); 5. Allan McKenna, Manure Leading Hand; 6. Ms Fletcher, Commodities Clerk and Weighbridge Attendant; 7. Anthony Cottee, Maintenance Supervisor; 8. Darrell Bridge, Feed Mill Hand (Intake). Mr Bridge was Mr Keey's counterpart on the opposing swing shift.
As part of its business, JBS received hay from various contractors that was used to feed stock at the feedlot.
Hay bales were delivered on trucks, unloaded and stacked on approximately 20 uncovered pads. The pads were constructed of compacted material that created a hard surface. They measured up to 30 metres in length and 2.3 metres wide, depending on the size of the bales. The pads were positioned in various places around the feedlot, approximately 30-40 metres apart. The pads had a slope in them from one end to the other. Stacks were constructed from the high side of the pad down the slope because that provided better visibility for the FEL operators. The pads were separated by contour banks that controlled the movement of water in the area where the stacks were located.
Bales were stacked up to 6 bales high. A stack was usually constructed using the following steps. First, 3 stacks of 3 bales would be placed side-by-side, making a base of 9 bales. Second, 2 stacks of 3 bales would be placed on top of the 3 x 3 stacks with the top stacks being placed in a brick pattern, i.e., with the weight of the top stacks being evenly distributed over the two bales underneath. This was known as "offset stacking". Third, as the stack progressed, the FEL would be used to push the stack from each side to pack the bales in tight and to provide extra stability. In the early stages of construction, stacks were very unstable and bales could, and did, fall from time to time. It was generally known at the feedlot that it was unsafe to approach a stack that was being constructed because the bales could fall.
JBS owned two FELs that were used to handle bales. They were equipped with hay fork attachments which enabled them to lift up to 3 bales at once.
Bales were moisture tested prior to being stacked for a number of reasons, including: 1. wet bales were a fire risk and provided poor nutritional value for the livestock; 2. if bales were rejected they could be returned to the supplier on the truck that delivered them; 3. it was impractical to remove a wet bale from a stack without compromising the structural integrity of the stack; and 4. wet bales could become unstable and compromise the structural integrity of a stack.
Bales were also assessed for their structural integrity before being placed into a stack. If a bale was loosely packed, or its strings had broken, it could collapse and compromise the structural integrity of a stack. Soft bales were identified by FEL operators and/or workers undertaking moisture testing. Bales were assessed visually and by their feel on the tynes of the FEL or with the moisture probe. Soft bales were set aside and sent to the mill for immediate use.
The task of hay stacking was the subject of a written Task Description at the feedlot (the Hay Stacking TD). The Hay Stacking TD contained the following relevant matters: 1. FEL operators were required to complete the pre-requisite competency training (PRC) for operating a FEL and to have been issued with the Hay Stacking TD; 2. FEL operators were required to remain aware of bystanders and other plant and machinery operating in the area as well as obstacles that could impede the safe operation of the FEL; 3. no more than 3 bales were to be lifted at once; 4. stacks were to be constructed on pads and in the dimensions directed by a supervisor; 5. bales were to be packed as tightly as possible to reduce the effect of the weather on the hay in a stack; 6. extra care was required when stacking the higher bales. Badly stacked bales were to be removed and re-stacked; 7. the Hay Stacking TD required workers to follow all WHS rules and requirements, to wear appropriate PPE and to notify any WHS issues of concern to a supervisor; 8. the final entry in the Hay Stacking TD provided (emphasis in the original) NEVER WORK WITHIN 1.5 METERS (sic) OF THE EDGE OF STACKS
The Hay Stacking TD made no mention of the task of moisture testing. There was no other Task Description relating to the task of moisture testing.
Moisture testing was performed by different workers at the feedlot, depending on the number of deliveries being received at any one time and the demand for mill workers to perform other tasks. Moisture testing was sometimes performed by the FEL operators, Ms Radcliffe and administrative staff such as Ms Fletcher and Tanya Green, Ms Fletcher's assistant.
A general practice for the tasks of unloading hay, moisture testing and stacking hay had developed over time at the feedlot, consisting of the following steps (the general practice): 1. Trucks were directed where to unload by Ms Radcliffe in consultation with Ms Fletcher. Trucks usually parked parallel to the pad where the hay was to be stacked. 2. A FEL operator would commence unloading the hay on the truck and placing it on the ground adjacent to the pad where it was to be stacked, but not on the pad. The hay would be placed in stacks of 2 or 3 bales high depending on how the truck had been loaded. If the truck was loaded 4 bales high, it was easier to remove 2 bales at a time. If a truck was loaded 3 bales high, it was easier to remove all 3 bales at once. The bales were placed a distance away from the truck, allowing sufficient room for the FEL to operate and to create separation between the operation of the FEL and the worker conducting moisture testing. 3. After a portion of the truck was unloaded, the worker conducting moisture testing would test the bales using the probe and record the results on a form. Wet and/or soft bales that were identified were sprayed with pink paint on each end of the bale to indicate that they were not to be stacked. If there was a large number of wet or soft bales, the worker conducting the moisture testing would contact a supervisor to reject the load. If a load was rejected, it would be returned to the supplier on the same truck it was delivered on. The rejection of an entire load was rare. If there were a small number of wet or soft bales, they would be taken to the hay grinder pad at the mill for immediate use. Trucks were not permitted to leave the feedlot until all of the bales had been moisture tested. 4. While the first portion of bales were moisture tested, the remainder of the bales would be unloaded to a different location adjacent to the pad, again allowing for the separation of the worker conducting the moisture testing and the FEL. 5. After the first portion of bales were moisture tested and passed, the bales placed in the first location were stacked on the pad by the FEL operator while the second portion of bales were moisture tested. 6. After the second portion of bales were moisture tested and passed, the bales placed in the second location were stacked on the pad by the FEL operator. 7. The general practice was not invariable. On occasion, an entire load was removed from a truck and placed on the ground adjacent to a pad and the FEL operator would attend to other duties while the moisture testing took place, returning later to stack the hay. Further, some FEL operators stacked the bales for moisture testing in stacks of 3, and others stacked bales for moisture testing in 2 x 2 stacks (4 bales).
The evidence was that the general practice was passed on at the feedlot through the buddy system of training, where a new worker was paired with an experienced worker to demonstrate how to undertake some tasks. The general practice was not the subject of more formal Task Training referred to at [35] to [40] below, which involved the buddy system concept.
The existence of the general practice as described, was supported by the evidence of all of the JBS workers called to give evidence in the case. I am satisfied that hay bales were usually unloaded from the truck, moisture tested and stacked in accordance with the general practice.

[13]

Task Training

Task Training related to specific tasks undertaken by workers. Workers were required to be assessed as competent by an authorised trainer or supervisor in a specific task before undertaking the task without supervision. Task information was contained in a Task Description or training manual. Safety information in a training manual was divided into 4 areas: 1. what are the hazards associated with the task; 2. what are the potential consequences of each hazard; 3. what are the controls (including PPE); and 4. what is the correct method/procedure to safely complete the task.
Before being assessed as competent to complete a task, a worker was required to demonstrate knowledge of all of the relevant safety information and that they could complete the task using the safe procedure set out in the training manual.
The assessment of a worker's competence to perform a task was formally recorded in an Assessment Form completed by the worker and a trained assessor.
By way of example, Ms Fletcher completed task training for "Commodity Receival/Weighbridge" and "Administrative Work". Ms Fletcher completed task assessments for both tasks on two occasions, 20 May 2016 and 12 March 2019 conducted by WHS personnel. Ms Fletcher was assessed as competent for both tasks on both occasions.
The "Commodity Receival/Weighbridge" task assessment required the worker to identify and describe the steps required when undertaking this task, including conducting an equipment check, weighing in accordance with the National Weighbridge Operators Manual and ensuring that the truck operator was following all WHS procedures. The worker was then required to provide written answers to a series of questions and a short case study.
The "Administrative Work" task assessment was structured in the same way and addressed matters such as workstation and set-up, communications, archiving procedures and biosecurity and safety procedures. In both task assessments, the worker was taught that they could "ROLL Up" to their direct supervisor any concerns for their own welfare and/or safety issues that arose.

[14]

Toolbox talks (TBTs)

TBTs were formal sessions within teams run by a supervisor. Workers were required to acknowledge their attendance at a TBT and that they understood it by signing a record of the TBT. Safety information covered in TBTs included: 1. updates to legislation; 2. communication about change; 3. process reminders; 4. recognition of excellence; and 5. notice of an incident.
At all material times, Ms Radcliffe conducted TBTs for the mill department and occasionally Mr Cottee would attend if there was additional technical information that needed to be communicated, for example if new machinery was being introduced. Mill department TBTs were held in the mill office and the whole feeding team was required to attend. Matters discussed at TBTs were recorded on a TBT Record Form. After a TBT was conducted, the Record Form was signed by the workers. Ms Radcliffe gave evidence that sometimes she would "roll" the point over to subsequent TBTs so that the whole team received the information. If a worker was not present on the day the TBT was conducted, they would sign the Record Form at a later date after having a conversation with the leading hand or Ms Radcliffe about the information discussed in the TBT.
A TBT was held at the feedlot by Ms Radcliffe on 12 August 2019, after the death of a farm worker in Queensland caused by a hay bale falling onto him when it was being unloaded from a truck. Ms Radcliffe prepared the Record Form after receiving an email from James Palfreeman, JBS's Manager of Feedlots, about the incident. The Record Form noted that the worker was unloading bales of hay using a FEL. He exited the FEL and approached a trailer to remove a strap when an unstable hay bale fell from the trailer, fatally crushing him. The TBT Record Form noted the following issues and safety instructions were discussed: 1. bales can move during a trip and fall when the straps are released. Therefore, if a truck had arrived and the bales looked unstable in any way, workers had to contact their supervisor to discuss a safety plan for unloading the truck; 2. workers were to instruct drivers to remain on the same side as the loader, within eyesight of the operator and away from the working area of the loader, or within their cab; 3. falling bales can roll away and this needs to be considered when determining everyone is at a safe distance from the loader; 4. drivers should not work around or walk along the "blind side" of trucks being unloaded; 5. if a worker does not know where a driver is, work is to stop immediately until the driver is located.
Ms Radcliffe gave evidence that these instructions had been provided to workers prior to the TBT on 12 August 2019. Ms Fletcher did not attend the TBT on 12 August 2019.
A JBS Safety Alert for the feedlot relating to the "Correct Movement of Hay" was created at about the same time as the TBT was delivered. The Safety Alert stated that movement of hay can only be undertaken with the correct vehicle, with the correct attachment and with a maximum of three bales. The Safety Alert also stated that "Only operators trained, assessed as competent and instructed to can move hay using a FEL, with hay fork attachment" and advised workers to contact Ms Radcliffe if they were in any doubt. The Safety Alert was displayed on the notice board at reception of the feedlot, near the bundy clock.

[16]

The near miss event of 1 November 2019

Overnight on 1 November 2019 there was a partial collapse of a haystack referred to as "Stack 1" at the feedlot. It was first noticed and reported by William Ezzy, a leading hand of the mill team. At about 6.30am on 1 November 2019, he completed an incident report form for the near miss event.
Mr Cottee took photographs of the partial collapse and sent them by email to Mr McIntosh and others at 7.24am on 1 November 2019.
Mr McIntosh completed another type of incident report form on 1 November 2019 and put the time of 7.24am on it, which was the time that he received the email from Mr Cottee. Mr McIntosh gave evidence that the information he included in the Incident Report Form came from others in discussions that occurred later in the day.
The near miss of 1 November 2019, the height of stacks and the quality of hay bales that were being received from O'Sullivans, was discussed at the site amongst Mr Nicholls, Ms Radcliffe, Mr McIntosh, Mr Ezzy, Mr Cottee and possibly Mr Palfreeman.
Ms Radcliffe's evidence was that the quality of the hay being received from O'Sullivans was low because the bales were soft and poorly constructed and she wanted the contract to be terminated, but Mr Nicholls did not agree. In those circumstances, she said that the only other alternative was to bring the height of the stacks down to 3-4 bales high and the other participants in the meeting agreed. Ms Radcliffe's evidence was that it was resolved to stack future deliveries of hay from O'Sullivans to no more than 3 bales high at the feedlot and a directive to that effect was given to the workers at the feedlot in a TBT.
No TBT Record Form was produced recording the directive allegedly given by Ms Radcliffe as to the height of hay stacks following the 1 November 2019 event.
Mr Cottee's evidence was that the height of stacks was discussed at the management meeting following the 1 November 2019 event, in which he suggested that stacks be formed in an offset pyramid configuration of 3 bales high. Mr Cottee's evidence was that Mr Palfreeman enquired of him if stacks could be 4 bales high in the pyramid configuration. Mr Cottee's evidence was that there was no resolution of the issue at the meeting and that stacks continued to be constructed to 6 bales high at the feedlot after the 1 November 2019 event.
Mr Bridge's evidence was that he was instructed by both Mr Ezzy and Ms Radcliffe to take the bales that had fallen to the ground in the partial collapse to the hay grinder pad and to restack the hay in Stack 1 to no more than 3 bales high until the hay in that delivery had been used up. Mr Bridge later restacked the hay to 3 bales high in Stack 1.
Mr Keeys gave evidence that he was not given a directive to stack hay from O'Sullivans, or hay generally, to stacks of no more than 3 or 4 bales high following the 1 November 2019 event. His evidence was that he would have welcomed such a directive because it would have been a lot easier and quicker to form stacks that were 3 or 4 bales high. Mr Keeys did not see stacks that were 3-4 bales high at the feedlot after 1 November 2019 or at any time. Bales were always stacked 6 high from 2011 when he started work at the feedlot until after the incident on 19 February 2020. Mr Keeys testified that there was discussion about the lack of offset stacking leading to the 1 November 2019 event but not as to the height of stacks. Mr Keeys denied that he had been given a directive by Ms Radcliffe to only stack hay 3-4 bales high.
Ms Wippell gave evidence that she was not aware of the directive or a TBT relating to it. Ms Fletcher gave similar evidence, but she was not usually included in TBTs conducted by the mill department. She had participated in a few TBTs that related to issues in the administration office.
Mr McIntosh used the information on the Incident Report Form to make entries on the WHS incident reporting system. The entries were later used in internal discussions of near misses with the HSR of the site, in weekly supervisor's meetings at the site and with the WHS officers of other JBS sites. The entry in the Near Miss Injury Events Log for the 1 November 2019 event provided: Hay stacks collapsed near mill. Hay was made wet by rain overnight and fell outside of work hours. The stacking in 6 high without offset was not idea (sic). Poor quality hay made wet and in less than ideal stacks was a set of factors that should have led to choices of offset / 3 and 4 height only stacks. No attempt was made to restack. Care will be used to remove as needed. Future stacking will occur using better techniques.
The entry in the Hazard Reporting Register for the 1 November 2019 event relevantly provided: Hay stack collapse - six stack high not offset wet from rain and lower quality hay Careful removal as needed. Height restricted on new hay on site.
The Hazard Reporting Register noted that the matter had been allocated to Ms Radcliffe and had been closed out on 1 November 2019.
There was some evidence in the end of month stocktakes that hay supplied by O'Sullivans were stacked 3 bales high after 1 November 2019 at the feedlot. The November 2019 stocktake recorded hay from O'Sullivans being stacked 3 bales high at Stack 1 and Stack 4. The December 2019 stocktake recorded hay from O'Sullivans being stacked 2 bales high at Stack 1, and 3 bales high at Stacks 4 and 5. The January 2019 stocktake recorded hay from O'Sullivans being stacked 3 bales high at Stacks 4 and 5 and no bales remaining at Stack 1.
The evidence that bales were stacked 3 bales high at Stack 1 at the end of November 2019, 2 bales high at the end of December 2019 and gone by the end of January 2019 is consistent with Mr Bridge's evidence that he was instructed to restack the hay in Stacks 1 to 3 bales high and that it was to remain at that height until the hay was used.

[19]

Evidence of Margaret Wippell

On 19 February 2020 Ms Radcliffe was on leave and Mr Nicholls was attending meetings in Queensland. Ms Wippell, as the Livestock Supervisor, was the second in charge of the feedlot and assumed responsibility for supervision of the operation of the feedlot on that day.
Mr Pickering drove his truck into the feedlot and parked adjacent to where he had last delivered a load of hay. Ms Wippell noticed the truck at some point before 6am when she was driving around the feedlot. She approached the truck and spoke to Mr Pickering. She decided that it was too wet to unload in that area and instructed Mr Pickering to move his truck to be unloaded on a pad known as Stack 9. The truck parked on the sealed road rather than trying to park between the pads because the ground was too wet to do so. There was some distance between where the truck was parked and the pad where the hay was to be stacked.
Ms Wippell returned to the office and spoke to Ms Fletcher who had just arrived at work. Ms Wippell asked Ms Fletcher if she had time to do the moisture testing of the hay and Ms Fletcher agreed that she did. Ms Wippell drove Ms Fletcher to where the truck was being unloaded.
When she arrived back at the truck, Ms Wippell believed there was one FEL operating, but she could not recall which one, or who was operating it. Ms Wippell was aware that Mr Keeys and Mr McKenna were involved in unloading the truck using FELs. She could not recall if she was involved in asking Mr Keeys to unload the truck.
Ms Wippell was called to a breakdown of a piece of machinery. By the time that she arrived at that location, she was told by Mr Cottee that there had been an accident.
When Ms Wippell arrived at Stack 9, she saw Ms Fletcher trapped under a bale of hay. That bale was removed by Mr McKenna using the FEL. Ms Wippell stayed with Ms Fletcher until she was airlifted from the feedlot.
In cross-examination, Ms Wippell gave evidence that she did not believe that she had asked Mr Keeys to unload the truck and that it was part of his job to do so. She denied telling Mr Keeys anything about how to unload the truck. Ms Wippell accepted that she asked Mr McKenna to relieve Mr Keeys in unloading the truck but could not recall what she said to him.
In re-examination, Ms Wippell gave evidence that she asked Mr McKenna to relieve Mr Keeys because she understood that Mr Keeys was required back at the mill to feed the cattle. She denied having a conversation with Mr Keeys about "double handling" the bales.
Ms Wippell came across as a knowledgeable witness with significant experience at the feedlot. At times she appeared tentative, but it was also apparent that the incident had a traumatic impact on her. Overall, I formed the view that she was a reliable witness whose evidence should be accepted.

[20]

Evidence of Belinda Fletcher

Ms Fletcher began working at the feedlot in 2009. She worked as a casual cleaner before applying for the role of Commodities Clerk. In that role, she was responsible for paperwork relating to the receipt of commodities at the feedlot and invoicing. She also performed the task of Weighbridge Attendant and was responsible for the reception and weighing of trucks delivering commodities to the feedlot.
Ms Fletcher was taught to perform moisture testing a few years after she commenced work at the feedlot by the Mill Supervisor, Kevin Griffith. She would be called on to undertake that work when it was busy, when there were multiple trucks coming in, or otherwise as required. Her assistant, Ms Green, also undertook moisture testing if required. Ms Fletcher had trained Ms Green on how to undertake moisture testing.
Ms Fletcher gave evidence that the usual procedure for moisture testing involved waiting for one side of the truck to be unloaded so that she could work on the opposite side of the truck to the FEL. The bales were placed randomly in stacks of about 2 bales high for moisture testing and would not be placed into a stack until they had been moisture tested.
On 19 February 2020 Ms Fletcher was asked by Ms Wippell to go to Stack 9 because there was a truck to be unloaded. Ms Fletcher had just arrived at work. She usually arrived at 7.00am. Ms Wippell drove her down to where the truck was being unloaded.
When she arrived, Mr Keeys was using a FEL to unload the truck. She saw a few bales in stacks of 2 placed alongside the pad that she could start moisture testing.
Ms Fletcher had a discussion with Mr Keeys. Her evidence was that Mr Keeys was needed back at the mill and that he had been instructed by Ms Wippell not to "double handle" the load and to get back to the mill as soon as possible. Ms Fletcher gave evidence that she understood this to mean that the bales would not be put on the ground to be moisture tested and then picked up again later and stacked on the pad.
At some point, Ms Fletcher noticed that Mr Keeys had begun to construct a stack on one end of the pad. The partially constructed stack at that time consisted of 9 bales placed in 3 stacks of 3 bales and one stack of 3 bales placed on top of the first 2 stacks of 3 bales in an offset stacking pattern.
Sometime later, another FEL driven by Mr McKenna arrived.
A stack of 2 bales that had not been moisture tested were placed next to the partially constructed stack. Ms Fletcher could not recall which FEL operator placed the 2 bales in that position.
Ms Fletcher approached the 2 bales to moisture test them. She tested the bottom bale first. She then tested the top bale. She could recall writing the result of the test but could not recall anything after that.
Ms Fletcher's evidence was that she proceeded to test the 2 bales next to the partially constructed stack because they needed to be tested, but she had never had to do that before. Her understanding from speaking to Mr Keeys was that he had been instructed to do the task that way by Ms Wippell.
Ms Fletcher testified that she had not been trained on the content of the Hay Stacking TD and that she had not seen the document before. She also had not been trained on the "Take 5" Procedure.
In cross-examination, Ms Fletcher agreed that she had been taught how to undertake moisture testing using the buddy system in about 2012.
At T134 line 34 - 135 line 48 Ms Fletcher was asked questions and answered as follows: Q. I want to ask you now about a different topic. You were taught that the task of moisture testing was not to be performed once hay bales had been stacked from a pad, correct? A. Well, it had never ever come up. Q. But listen to my question. You were taught that the task of moisture testing was not to be performed once hay bales had been stacked on the pad, correct? A. No. I'd only ever been shown that it was to be done, but it wasn't specified that you must never do that. Q. But you knew you should not be doing moisture testing once hay bales had been stacked on the pad, correct? A. Yes. Q. And that was because it was impractical to remove a high moisture bale from a stack after it had been formed, that was one of the reasons, correct? A. Yes. Q. And do you agree that it was also important and you were taught not to perform moisture testing of hay bales that were placed in, or were approximate to a six high stack? Do you agree? A. No. Q. You accept, don't you, and you knew prior to 19 February 2020, that it was important not to perform moisture testing of hay bales at the face of a stack that was being constructed at a pad. You knew do that. A. That had never come up, because we just don't do that. Q. No, you don't. And the reason you don't do that is because it would be dangerous to do that, correct? A. It would, yes. Q. And you knew that before 19 February, correct, ma'am? A. Yes. Q. If you saw someone conducting moisture testing at the face of a stack, you would tell them not to do it, correct? A. Yes. Q. And that's because of the risk that the top bales could fall and injure the worker conducting the moisture testing? A. Yes. Q. Now, can I ask you this. I asked you earlier that you trained other employees on how to do moisture testing, correct? A. Yes. Q. And that included Tanya Green who commenced employment with JBS in 2017? A. Yes. Q. And you trained Tanya as to how to undertake the procedure for moisture testing? A. Yes. Q. And you taught her to do it in a safe manner, correct? A. Yes. Q. You certainly didn't teach her to test hay bales at the face of a stack, correct? A. That's right. Q. Because that would be unsafe, correct? A. Yes.
Ms Fletcher agreed that it was rare for the unloading of the truck to occur at the same time as the moisture testing. It was more common for the truck to be entirely unloaded, the moisture testing to take place in the absence of the FEL and for Ms Fletcher to tell the FEL operator that she had finished, at which time the FEL operator would return and stack the hay on the pad.
Ms Fletcher agreed that the process that was followed on the day of the incident was different because of her understanding of what was occurring at the feedlot on that day. She agreed that she did not recall the conversation with Mr Keeys until she was asked about the events in a conference with the lawyers for the prosecution that took place on 15 May 2023. In re-examination, it was established that this topic was first raised by Ms Fletcher in an interview with Inspector Halcroft on 9 February 2022.
At T140 line 32 to T141 line 39, Ms Fletcher was asked questions and answered as follows: Q. On 19 February, you've told us that you were undertaking moisture testing of bales; correct? A. Yes. Q. I think you told us that you were undertaking moisture testing of bales that were already placed in the stack; correct? A. Yes. Q. You were asked a question by Mr Agius when you were conferenced with him on 15 May, "Did you think it was strange, that it is a strange that you were being asked to do the testing? Sorry, did you think it was strange that the bales being were put in the stack before the test?", and you said, "Yes, we had never done that before."? A. Yes. Q. It's correct, isn't it, you were not directed to do the testing that way by anybody; correct? On 19 February, nobody told you to undertake the moisture testing of bales that were put in the stack; correct? A. I was taken down to do the job, not specifically told how to do it, so. Q. But you had done the job previously; correct? A. Yes. Q. You had never previously A. No, that day was Q. Let me finish. I apologise. A. Sorry. Q. It's my fault, Ms Fletcher, I'm sorry. Prior to 19 February, you had never tested hay bales that were in a stack; correct? A. That's correct, yes. Q. That was contrary to your training, correct, of course, to test bales that were in a stack; correct? A. Yes. Q. It's correct, isn't it I don't mean to be disrespectful but you can't explain why you undertook the moisture testing at the face of the stack on 19 February, can you? You can't explain why you did it on that day? A. Because I was taken down there to do the job and that is how the job came together. So, to be taken down and yeah I was taken down to do the job, so, I just did the job. Q. You were taken down to do the job as you had always done the job; correct? A. But the the did the whole handling of the hay was different. So, it changed the dynamics completely. Q. When you say the whole handling of the hay was different A. Yep. Q. You are referring to, are you, what you told the lawyers for the prosecutor in relation to the issue of double handling; is that right? A. Yes, and the truck being further away. Everything, that day, was different. Q. You accept, don't you, that on 19 February, you made a mistake in testing the bales in the stack; correct? You accept that? A. In hindsight, yes.
I pause to note that the second question set out in the preceding paragraph could only have related to the 2 bales placed next to the partially constructed stack. Ms Fletcher gave evidence, which I accept, that the other bales in the partially constructed stack had already been tested and passed.
At T143 line 1 to T144 line 23, Ms Fletcher was asked questions and answered as follows: Q. You can't explain, can you, as to why you made the decision to test it that way, contrary to your training? A. Only that I was put there, as I said, to do the job and the - the only person to roll it up to was the person who took me down to do the job. Q. Who was that? A. Meg Wippell. Q. You didn't roll it up to her? A. No. In Richard's absence, she would be the one that I would have spoken to. Q. And you didn't roll it up to her, did you? A. No, because it was - it was sort of her - her organising that Q. She didn't tell you to do the moisture testing at the bales once they were in the stack; correct? Do you agree with that? A. Yes. Q. It was you who made that decision on that day; correct? A. Yep, based on where the where the bales were and I had to - I had to test them, so, yes. Q. But you accept, don't you, that was contrary to your training? As to how AGIUS: That's been asked and answered at least twice. MOSES: Can I ask the question? I press the question, your Honour. HIS HONOUR: Just finish the question. MOSES Q. Do you accept that what you did that day. By testing it once it was in the stack was contrary to how you had been taught to do moisture testing, correct? A. I had never been put in that position before, so I'm guessing yes. Q. Well, you had never been instructed ever to test bales once they were in stack, correct? A. Never been instructed not to either. Q. Well, you were taught - I withdraw that. You accepted, when I put the proposition to you earlier, that it would be dangerous to test for moisture testing in the face of a stack, correct? You accepted that. A. Yes. Q. And you knew that would be unsafe, correct? A. Yes. Q. But you did it on that day. A. Yes. Q. And you knew you shouldn't have done it on that day. A. Afterwards, when I thought back, yes. Q. Well A. Prior to that I was just following instructions. Q. You were not instructed to test the bales in the stack, correct? A. Just to do my job, and that's where the hay was. Q. And what I'm going to put to Ms Fletcher, respectfully if I can, is that on that day you did not act in accordance with a safe procedure to do the moisture testing, correct? A. Correct. Q. And you knew that it would be unsafe to do the moisture testing in the face of a stack before you did it that day, correct? A. Yes. Q. And you had taught Tanya Green to not do moisture testing in the face of a stack, correct? A. Well, that's again, I've not told her not to. We just leave that up to common sense, so yes.
Ms Fletcher was an impressive witness. She was careful and tried to do her best to answer the questions put to her. Clearly her recollection of some of the events was impacted by the head injury that she sustained in the incident and its after-effects, which included ongoing headaches and symptoms of post traumatic stress disorder (PTSD).
I do not accept Ms Fletcher's evidence of the conversation with Mr Keeys on the topic of "double handling" of the bales for reasons which I will return to.
Assessing Ms Fletcher's evidence in context, I do not accept that Ms Fletcher acted contrary to her training by testing the 2 bales placed next to the partially constructed stack. I accept her evidence that she had been trained in the general practice and that did not involve testing bales at the face of a stack. I accept her evidence that she had not been in a similar situation before the day of the incident where untested bales were placed at the face of a partially constructed stack. I accept her evidence that she had not been instructed that she was prohibited from testing bales at the face of the stack or that it was dangerous to do so.
Ms Fletcher was not trained on the Hay Stacking TD and did not know what safety measures the FEL operators were required to take. This included the direction not to work within 1.5m from the edge of a stack. She had not been involved in TBTs relating to tasks at the mill, including the August 2019 TBT relating to the dangers posed by falling bales.
I accept Ms Fletcher's evidence that the realisation that she made a mistake on the day of the incident was one made in hindsight, by reference to the bales falling on her. I am satisfied that Ms Fletcher's acceptance of the fact that it was dangerous to test bales at the face of a stack was also informed by hindsight.
I accept Ms Fletcher's evidence that she tested the 2 bales next to the partially constructed stack because they had not been tested and that was the job that she was there to do. I am satisfied that she did so without realising the danger posed by the partially constructed stack. I am satisfied that Ms Fletcher did not act in contravention of a known safe work procedure.
In all other respects, I accept her evidence.

[21]

Evidence of Bradley Keeys

Mr Keeys gave evidence that he became aware over the 2-way radio that there was a hay truck in the feedlot to be unloaded. At the time, he was in the mill processing the feed for the cattle. He sought clarification from Ms Wippell over where the truck was to be unloaded and there was some discussion about the suitability of different locations because the ground was wet. Ms Wippell said that the truck could remain on the road to be unloaded. Mr Keeys then told the driver where to park the truck.
Mr Keeys denied that he received any instructions from Ms Wippell on how fast he should unload the hay or how urgent the work was. Mr Keeys denied having a conversation with Ms Wippell where the term "double handling" was used on the day of the incident.
Mr Keeys estimated that from where the truck was parked to the pad was a couple of hundred metres.
Mr Keeys commenced unloading the truck by taking 3 bales off the truck at a time and driving them down to the vicinity of the pad where the hay was to be stacked. Ms Fletcher was not in the area at that time. Mr Keeys drove back to the truck and collected 3 more bales.
Sometime later, Ms Fletcher came to the area. Mr Keeys recalled her driving down to the unloading site in a company utility. Mr Keeys gave evidence that by that time, he had moisture tested some of the bales, recorded the results on a piece of paper and begun to construct a stack on the pad.
When Ms Fletcher arrived, Mr Keeys spoke to her. He could not recall the content of that conversation. When asked if he had used the term "double handling" in that conversation he gave the following evidence at T202 line 7 to line 41: Q. And was that expression ever used by you in conversation with Belinda Fletcher on the morning of 19 February 2020? A. Only in the fact that if she was testing, it would save me moving it while she'd test, she could mark, I can then move the bales around to wherever they've got to go as opposed to me getting out and doing it. But as for yeah, only in the fact that if she's there she's taking one step away from me, like, she's taking one process away. Q. So, having thought about that, can you tell us the expression how double handling, how that expression was used in your conversation with Belinda. A. The double handling would have meant that I don't have to if I if we've got a stack three high, and she was to mark the middle one with the pink paint means it's too wet. Instead of I'm still in the loader, I can just come alone and pick up that one and separate it without having to go through that, put the dry one on, and then proceed to build the stack with the dry ones. So, that was the context. It was not anything else, just taking that step away. HIS HONOUR: Sorry, it might be - I've jumped, Mr Agius. Q. Do you have a recollection of having a conversation with Ms Fletcher on the morning of the incident where you used the term "double handling"? A. Only in that context. Just, not having to move the bales two or three times as she's marked it, I can see which ones are marked. Q. Would you have any recollection of what you said to her? A. Not exactly, no. Q. Words to the effect of what you said to her? A. "It was good you were here to save me". I would have said double handling in in regards to if I come along and she's got, say, six bales by the end of it that have all got the pink paint, I can then take them straight up to the mill to be processed rather than me hopping out of the loader and having to move around the bales a lot. If they're marked, we can just take them straight up. So that's the double handling that I'd been referring to. Makes it a lot quicker.
Mr Keeys gave further evidence on this topic that did not clarify the position.
After that he took some bales to the far end of the pad about 50m away from the partially constructed stack to be moisture tested by Ms Fletcher. Mr Keeys thought he had put a few stacks of 3 bales in that area to be moisture tested. I pause to note that it was unclear from the photographs taken of the scene after the incident if there were one or 2 stacks of 3 bales in the area indicated by Mr Keeys, but there was at least one stack of 3 depicted in them.
Mr Keeys was aware that Ms Wippell had asked Mr McKenna over the two-way radio to come and relieve him from the task of unloading the truck because the FEL was required back at the mill to load the feed trucks to feed the cattle.
A short time later, Mr McKenna arrived in the second FEL. Mr Keeys saw Mr McKenna stop at the truck and unload some bales before driving to the pad where Mr Keeys was. Mr Keeys could not recall if Mr McKenna brought one or more loads of bales down to the pad.
Mr Keeys waited near the partially constructed stack for Mr McKenna to drive down the contour bank, because there was not enough room for the FELs to pass each other. As he was waiting for Mr McKenna, he saw the top 2 bales of the partially constructed stack fall off, bounce and then hit the ground.
Mr Keeys approached one of the fallen bales to "clean it up" while he was waiting for Mr McKenna to drive down. Mr Keeys looked for Ms Fletcher but could not see her. When he picked up the fallen bale, he saw her lying on the ground near the partially constructed stack with another bale on top of her.
Mr Keeys got out of the FEL and commenced first aid. Later, after others arrived, Mr McKenna used the FEL to move the other bale off Ms Fletcher.
Emergency services attended and Ms Fletcher was taken away. Mr Keeys could not recall having a discussion with Ms Radcliffe about the incident or the height of stacks at the feedlot. He denied that he had been told at any time that the height of stacks at the feedlot was to be limited to 3 or 4 bales.
In cross-examination, Mr Keeys gave evidence that he had a discussion with Mr McKenna about Ms Fletcher being present to undertake the moisture testing.
Mr Keeys was an unusual witness. He appeared to be more comfortable in cross-examination than he was in giving evidence-in-chief. He had trouble following some of the questions put to him. There were times when he was confused about what he was being asked.
Ms Radcliffe said in her evidence that he had a tendency to "babble", which was an apt description of some of Mr Keeys' evidence. Overall, I formed the impression that Mr Keeys was doing his best to tell the truth and that being called as a witness was a very foreign experience for him. He was understandably concerned that he could lose his job, and this was a further reason for him to be defensive. It was apparent from Mr Keeys' evidence that he took his role as the HSR very seriously and applied himself diligently to safety issues at the feedlot. There are some aspects of Mr Keeys' evidence that I do not accept, but I have not made those findings on the basis that Mr Keeys was an untruthful witness.
I do not accept Mr Keey's evidence that he had a conversation with Ms Fletcher on the topic of "double handling". I am satisfied that he accepted the suggestion that he had a conversation with Ms Fletcher on that topic rather than having a reliable recollection of doing so. He appeared confused when giving evidence on this topic. My understanding of his curious evidence was that anything done by someone else that saved him time would avoid "double handling" because he did not have to do it.

[22]

Evidence of Allan McKenna

On the morning of the incident, Mr McKenna was asked by his supervisor Mr Cottee to relieve Mr Keeys and to finish unloading the truck. Mr McKenna drove the maintenance department FEL to where the truck was parked. He had been cleaning the manure out of the pens with the FEL before being asked to relieve Mr Keeys.
When he arrived at the truck, Mr McKenna unloaded 3 bales using the FEL. The front wheel of the FEL sunk in new gravel next to the road and the bottom bale of the 3 began to rip. He put the bales down and picked up only the top 2 bales. Mr McKenna thought that the bottom bale ripped because the forks had gone in on an angle and that the top 2 bales were firm.
Mr McKenna then reversed the FEL to where the partially constructed stack was.
Mr McKenna placed the 2 bales from the truck against the partially constructed stack with a 6-8" gap between the stack of 2 bales and the stack of 3 bales next to them. He did not have in mind how those 2 bales would be moisture tested and it was possible that he would have to do it.
Mr McKenna gave evidence that he spoke to Mr Keeys about the location of the truck, because in his view it was not in a good location to unload. Mr Keeys told him that he had been instructed by Ms Wippell to unload the truck in that location. Mr McKenna then tried, without success, to contact Ms Wippell to have the truck moved to another location. Mr McKenna could not recall when that conversation with Mr Keeys took place and specifically, whether it was before or after he placed the stack of 2 bales next to the partially constructed stack.
He had not seen Ms Fletcher in the area at any time before the conversation. No one had told him that Ms Fletcher was in the area to undertake the moisture testing. He saw a white two door utility in the area, which he later assumed had been driven there by Ms Fletcher.
Mr McKenna gave evidence that he then returned to the truck, picked up the single bale, brought it to the vicinity of the pad and put it to one side.
He then returned to the truck to get more bales. As he was approaching the truck, he saw the truck driver waving his arms and pointing. He put the FEL in reverse and returned to the pad where the partially constructed stack was. He saw Mr Keeys standing next to Ms Fletcher, who was lying on the ground. He noticed that Ms Fletcher had a bale on her legs.
When others arrived, Mr McKenna used the FEL to lift the bale off Ms Fletcher. He put it down close to where she was lying.
He remained in the area while emergency services were in attendance.
In cross-examination, Mr McKenna gave evidence that he placed the stack of 2 bales next to the partially constructed stack to mark where he was taking over from. He knew that they would have to be tested before being placed into the stack.
After the incident, the truck was moved up to Stack 1 and unloaded there.
I found Mr McKenna to be a straightforward and honest witness. I have no reason to doubt any of his evidence and I accept it.

[23]

Evidence of Craig Pickering

Mr Pickering had been employed by O'Sullivans for about five years prior to the incident and had regularly delivered hay to JBS feedlots at Narrandera, Mungindi, Tabbita and Caroona in that period.
On the morning of the incident, Mr Pickering was admitted to the feedlot by Ms Wippell and he drove to where she told him the truck would be unloaded. He unstrapped the load and stood out of the way of the FELs. He recalled two FELs involved in the unloading of the truck; one was unloading the bales from the truck and taking them to the pad and the other was forming a stack.
He saw the bales in stacks of 3 being put to the side of the pad to be moisture tested before they were stacked.
Mr Pickering saw the partially constructed stack get to 6 bales high on the end closest to the truck. A short time later, he saw the top 3 bales start to lean towards Ms Fletcher. He started to walk towards the partially constructed stack and then began to run. He yelled out to Ms Fletcher. He then saw the top 2 bales fall on her.
He then saw a FEL operator approach one of the fallen bales to pick it up. Mr Pickering was yelling and screaming at the FEL operator because he believed that the FEL operator did not know Ms Fletcher was under the bales. Mr Pickering told the FEL operator that Ms Fletcher was underneath the bale. The FEL operator stopped and then removed the bale. Mr Pickering gave evidence that the FEL operator then removed the second bale from Ms Fletcher and put it to one side.
Mr Pickering used the FEL operator's phone to call "000" and emergency services attended.
The truck was taken to a different location and unloaded. Mr Pickering waited for the inspectors from SafeWork NSW to arrive, so that they could interview him before he returned to Victoria.
Mr Pickering estimated that he was about 50m from the partially constructed stack when he saw the bales lean towards Ms Fletcher. He could not recall which end of the truck he was closer to.
In cross-examination, Mr Pickering accepted that he told one of the Inspectors from SafeWork that he was about 70m away from the incident site. When he saw Ms Fletcher in danger, she was moisture testing the bales.
Mr Pickering could not recall having a discussion with either of the FEL operators. He denied that he drew the diagram in Inspector Shepherd's notebook (Exhibit 33). After his interview with Inspector Shepherd on the day of the incident, Mr Pickering did not have any contact with SafeWork until shortly before the hearing in 2023.
Mr Pickering was challenged on his recollection of the event and his ability to see what occurred. Mr Pickering maintained that from his position beside the truck, which was slightly elevated, he could see Ms Fletcher moisture testing the 2 bales placed at the front of the partially constructed stack and the FELs.
Mr Pickering presented as a good witness. I am unable to place any weight on Exhibit 33. There is a dispute over its provenance that is difficult to resolve and I am not satisfied that, by comparison to the photographs of the scene taken on the day of the incident, it was accurate or reliable. I am satisfied from the photographs taken on the day of the incident from where the truck had been parked, that Mr Pickering had a side-on view that would have allowed him to see Ms Fletcher in front of the stack, Mr McKenna's FEL approaching him and Mr Keeys' FEL, which was probably partially obstructed by the stack. I accept that the unusual incident stuck in Mr Pickering's mind and that his recall, although impacted by the effluxion of time, was reliable.

[25]

Evidence of Nicole Radcliffe

Ms Radcliffe was not at work on the day of the incident and had intended to go to an appointment in Newcastle. When she was notified of the incident she had not travelled far, and she decided to cancel her appointment, go home and get changed and go to the feedlot.
Ms Radcliffe gave evidence that she received a telephone call from Mr Keeys when she was at home. Her evidence on this topic was as follows (T366 lines 14-34 and T367 lines 3-12)): Q. Can you tell us to the best of your recollection what was the conversation you had with Mr Keeys? A. He was - he had told me about the incident. That the bales had collapsed as he was driving away. He couldn't see Belinda anywhere, so he though oh no, I better turn around and go and see if I can find her. He couldn't find her, he had a bad feeling that she was under the bales. He said he put the forks very gently in the bales to lift them, and Belinda was underneath them. Q. Did you say anything to him? A. I said, "Is she okay?". He said, "Yeah, yeah, she's okay. You know, she did everything that we've asked her to. The helicopter's here now. She's with the paramedics. You know, she's going to be okay". Then the conversation turned to the fact that he was concerned that he would lose his job, and I said, "Not to worry about that right now. Let's just worry about Belinda". I also said to him that I was concerned for his welfare, given that he'd just been through a traumatic experience, and I said, "If you are in any way compromised, do not return to work, and sit in the office". Q. Can you remember any more of the conversation? A. No, I - he babbled on forever as he does, and I just said, "Look, I'm gonna get changed and come out, and we can talk about it further there". … Q. I don't think I got an answer to my question as to whether you had exhausted your recollection? A. Yes, sorry, there was more. He said - when he said that the bales had collapsed, I said to him that - well, he said that they were six high, because I'd asked, "How high they were?", like, "How could three bales have collapsed?", was what I was thinking in my head. And he said that they - they were six high, and I said, "Why the hell were they six high?". And he said, "Because we always put them six high on that side of the road". I said, "No, we don't put this contract six high. Why did you have them six high?". And he said, "Yes, I suppose you're right. I shouldn't have done that".
This part of Ms Radcliffe's evidence follows on from her evidence relating to the height of hay stacks following the 1 November 2019 event that I have referred to in [54] to [55] above.
Ms Radcliffe was terminated from JBS for misconduct. She did not accept that her termination was justified. She presented as angry with JBS and as someone who had an interest in giving evidence adverse to JBS's interests. She appeared disgruntled by being called a witness. Her evidence about the response to the 1 November 2019 incident was not reflected in the contemporaneous documents. There was no evidence that she held the TBT she referred to. Mr McIntosh's entries into the near miss register coincided with Mr Bridge's evidence of what he was told to do. No witness supported Ms Radcliffe's version that the height of stacks was limited to 3-4 bales high following the 1 November 2019 event. I do not accept Ms Radcliffe's evidence because, on a number of issues, it was contrary to contemporaneous evidence or against the weight of the evidence, and because of her poor demeanour as a witness. I have not accepted her evidence unless stated otherwise.
To be clear, I do not accept Ms Radcliffe's evidence that she gave a general directive that hay from O'Sullivans (or suppliers) was only to be stacked 3-4 bales high at the feedlot after the 1 November 2019 event. It is more likely that following 1 November 2019 she instructed the FEL operators unloading hay from O'Sullivans at Stacks 4 and 5, to stack the hay 3 bales high. I also do not accept her version of the conversation with Mr Keeys on the day of the incident.

[26]

Findings on the evidence relating to the events of 19 February 2020

I am satisfied that, on the day of the incident, Mr Keeys commenced to unload the truck in accordance with the general practice. He put the bales in stacks of 3 in the vicinity of the pad where they were to be stacked, so that they could be moisture tested. Mr Keey's evidence to this effect was corroborated by Ms Fletcher, Mr Pickering and the photographs taken after the incident.
It is possible that Mr Keeys moisture tested some of the bales prior to Ms Fletcher's arrival. It is also possible that Ms Fletcher did all the moisture testing because the results were recorded in her handwriting. It is not necessary to decide this issue.
I do not accept Ms Fletcher's version of the conversation with Mr Keeys on the topic of "double handling" for the following reasons. First, Ms Wippell did not give evidence that she instructed Mr Keeys not to "double handle" the load. Second, whilst there was a need to get Mr Keeys and/or the FEL back to the mill, that did not mean that there was any urgency in getting the hay stacked. The only time-sensitive task was to moisture test the hay so that Mr Pickering could be released to return to Victoria. Stacking the hay could have waited until later. Third, the concept that there was a shortcut taken was inconsistent with other evidence. Both Mr Keeys and Mr Pickering gave evidence that the bales were placed at locations away from the pad to be moisture tested. Fourth, Ms Fletcher did not recall the alleged conversation until 9 February 2022, almost two years after it was alleged to have occurred. When she proffered her recollection of the conversation, it was in response to questioning as to why she thought the 2 bales were placed next to the partially constructed stack, which invited her to reconstruct the events to explain something done by someone else. I am satisfied that she reconstructed this part of her evidence in an attempt to provide information on events that was not within her knowledge.
When Mr McKenna arrived, there was a discussion between him and Mr Keeys. There is a dispute on the evidence as to whether Mr Keeys told Mr McKenna that Ms Fletcher was present to undertake the moisture testing.
I accept Mr McKenna's evidence that he did not know that Ms Fletcher was in the area, moisture testing the bales. At the time that he arrived at the unloading site, Mr McKenna was focussed on the unsuitability of the location by reference to the wet ground. He was trying to contact Ms Wippell and/or Mr Cottee to resolve that issue. It is likely that Mr McKenna did not comprehend that Ms Fletcher was in the area because he was preoccupied. It is also likely that Mr Keeys' evidence that he told Mr McKenna that Ms Fletcher was in the area was a reconstruction of what he believed had occurred.
I accept Mr McKenna's evidence that he placed the stack of 2 bales next to the partially constructed stack as a place marker for his own benefit. By doing so, he placed the stack of 2 bales in a dangerous position because they needed to be moisture tested and they were in close proximity to a partially constructed stack, which he knew or ought to have known was unstable and posed a risk of the top bales falling. The risk posed by placing the bales in that position was a risk to anyone who was required to moisture test those bales.
I accept Ms Fletcher's evidence that she went to moisture test the stack of 2 bales placed by Mr McKenna because they had not been moisture tested and that was why she was there. I am satisfied that, at the time that she approached the bales, she did not appreciate the risk that the top bales might fall on her. I find that her evidence that she knew that it was dangerous to test those bales "at the face of a stack" was informed by hindsight.
The cross-examination of Ms Fletcher demonstrated the unreality of dissecting into minute detail events that took place over a very short period of time, on the underlying assumption that, at the time of testing the bales, Ms Fletcher identified the hazard and appreciated the risk: R v Conlon (1993) 69 A Crim R 92 at 97 (Hunt CJ at CL).
I do not accept Ms Fletcher's evidence that testing the 2 bales was contrary to her training, notwithstanding that she accepted that proposition when it was put to her in cross-examination. Her evidence on the issue was equivocal. She maintained the position, consistent with the defendant's case, that she had been trained on the general practice and had not been required prior to the day of the incident to test bales at a face of a stack. What occurred on the day was inconsistent with how she had been trained to do the task, but not necessarily contrary to what she had been told in the course of her training.
I find that when she approached the stack of 2 bales to be moisture tested, Ms Fletcher did not act in contravention of an instruction not to test bales at the face of a stack.
The defendant submitted that Ms Fletcher had been trained not to moisture test hay bales at the face of a stack. I reject that submission. I find that Ms Fletcher had been trained to moisture test bales in accordance with the general practice, which did not involve testing bales at the face of a stack. However, that was not the same as instructing her not to test bales at the face because it was dangerous to do so.
I accept Ms Fletcher's evidence that she had not been trained on the Hay Stacking TD or the "Take 5" Procedure and did not attend TBTs in the mill department. I find that Ms Fletcher was unaware of the safety measures that the FEL operators were required to take when they were unloading bales from trucks and hay stacking, and it was reasonable for her to believe that that they were complying with those measures.
There was no documentary evidence that she had been trained how to undertake the task of moisture testing safely or that she had been warned of the risks associated with that task. She had been given Task Training on other parts of her role and assessed as understanding the safety risks and how to control them for those tasks. She did not receive similar Task Training for the task of moisture testing because the defendant had failed to identify it as a separate task prior to the incident.
I accept Ms Fletcher's evidence that she had not previously been presented with a similar situation when she had previously moisture tested bales at the feedlot. I accept her evidence that whilst she had been trained on the general practice, she had not been trained that it would be unsafe to moisture test the stack of 2 bales placed by Mr McKenna next to the partially constructed stack.
I accept Mr Pickering's evidence that he saw Ms Fletcher approach the stack of 2 bales to moisture test them when he noticed that the top 3 bales of the partially constructed stack had begun to lean. I accept his evidence that he ran towards the partially constructed stack, trying to raise the alarm, and that when he did so, he saw the 2 bales fall on Ms Fletcher.
I find that 2 bales fell from the top of the partially constructed stack because it was unstable as a result of the top 3 bales having no lateral support. I reject the proposition that the bales fell because the FEL driven by Mr Keeys collided with the partially constructed stack.
I am satisfied that Mr Keeys did not know where Ms Fletcher was when the bales fell and contrary to his evidence, he did not try to locate her before approaching the fallen bale. I find that when Mr Keeys was alerted by Mr Pickering that Ms Fletcher was underneath the bale and stopped the FEL, he then realised that he had come close to running over Ms Fletcher with the FEL. I find that Mr Keeys found this experience to be traumatic and upsetting, and this has affected his recollection of the events and led to him to reconstruct some of his evidence to avoid blame for failing to tell Mr McKenna that Ms Fletcher was present and for failing to ascertain where Ms Fletcher was before approaching the fallen bale.

[27]

Steps taken by JBS after the incident

JBS's Group Safety Department and the Feedlot Operation Senior Management reviewed the systems of work for the tasks of hay stacking and moisture testing.
JBS Group Workforce Capability Team developed documented procedures and training programs for both tasks.
The post-incident Hay Testing Training Manual 19 March 2020 (Hay Testing Manual) provided: 1. hay stacking and moisture testing were two separate tasks and because of the hazards involved they are not to be undertaken simultaneously; 2. moisture testing is only ever to take place when bales have been unloaded from a truck and placed on the ground to a maximum of three high; and 3. do not test at the face of a stack that is being built.
The risk of bales falling or collapsing on persons while testing them was identified in the Hay Testing Manual. The following control for the risk were specified: 1. only test bales when they have been unloaded from the truck; 2. never climb on bales or trucks to test; 3. ensure that bales are stacked on the ground, not in a stack, in a safe manner prior to testing; 4. ensure no machinery is in operation, particularly loaders, when moisture testing; and 5. other people must be visible by the loader operator.
Regarding "bystander safety", the manual acknowledged that workers may be exposed to risks from mobile plant and falling bales during loading and unloading operations, including being struck by a falling bale. The manual specified the following controls: 1. workers must not be in the vicinity of the loader while it is unloading or stacking hay; 2. if access is required to the loader area, you must get verbal approval from the loader operator before doing so. The loader must cease operation while others are in the area; 3. the loader must get approval from others that they are safe before resuming operation; 4. no pedestrians or bystanders are to be in attendance while a loader is operating.
Further, the following procedure for unloading bales was set out in the Hay Testing Manual: 1. the Mill Supervisor/Delegate is to determine where the hay should be unloaded and tested before being stacked; 2. the Weighbridge Clerk is to make a visual assessment of the truck and the firmness of bales, and communicate specific information to the truck driver and loader operator relevant to load, if required; 3. the person completing the moisture testing is to be determined prior to unloading so that all involved are aware of their responsibilities and hazards; 4. if the moisture tester is the loader operator, then testing is to occur after the truck has been fully unloaded, the loader has been parked and turned off and prior to any bales being placed into a stack; 5. if the moisture tester is not the loader operator, then no testing is to occur while the loader is operating in the area. It is critical that there are no pedestrians in the vicinity of an operating loader. The moisture tester is to leave the area before stacking commences; 6. the entire load is to be moisture tested prior to stacking; and 7. the moisture tester must have completed the Hay Moisture Testing Training prior to conducting testing.
The defendant also developed the Hay Stacking Training Manual 19 March 2020 (Hay Stacking Manual), which identified the risk of falling or collapsing bales and provided the following: 1. the controls for managing the risk of falling or collapsing hay bales include determining whether the load is stable and has not collapsed or moved during transport prior to unloading and ensuring that where possible, loading occurs on level ground to minimise the potential for a bale to come loose or a vehicle to tip over; 2. inappropriate configuration of bale stacking can lead to instability, stack collapse and injury. Controls for this include ensuring the lower bales are sound in construction and density and are able to provide stability for upper layers; and 3. in respect of "bystander safety", the Hay Stacking Manual repeats what was provided in the Hay Testing Manual.
The Hay Stacking Manual also outlined a procedure for the task of hay stacking which included the information in the Hay Testing Manual and also provided the following: 1. if bales are assessed as soft, unstable, loose or posing any type of safety risk, then the Weighbridge Operator must advise the loader operator and they are to be stacked no more than 3 bales high; 2. if the stack is located on the slope, start at the bottom of the slope and build the stack from the higher side of the slope. Bales are more likely to roll with gravity and away from the loader if they are unstable.
The Hay Stacking Manual set out an unloading procedure which specified the following: 1. no other employees or persons are to be in the area when bales are being unloaded. The loader operator will notify others when it is safe to enter the area for testing if another employee is tasked with this role. The loader must be parked or removed from the area if testing is to take place; 2. bales are to be removed in stacks of no more than 3 and placed on the ground in a 3 x 2 format with adequate space between the stacks to enable testing to take place; 3. the loader operator and all other operations must cease if the truck driver exits the cab or an unauthorised person (including a moisture tester) enters the area; and 4. entry to the unloading area may only be granted following acknowledgment from the loader operator and the ceasing of loader movements. It is critical that no pedestrians are in the vicinity of an operating loader. No other work is to be completed while the bales are unloaded.
In respect of the task of hay stacking, the Hay Stacking Manual provided that haystacks are to be a maximum of "6 x 8 x 4 x 3" bales in height, subject to onsite assessment of the condition of bales in each delivery.
JBS developed Hay Testing and Stacking Hazard Awareness training courses. Workers undertaking the tasks were required to be trained using the Hazard Awareness training documents.
Prior to the incident, there was no documented Safe Work Method Statement (SWMS) or safe work procedure (SWP) for stacking bales for the guidance of anyone required to moisture test them.

[29]

Relevant Law

The offence is one of strict liability: s 12A of the Act.
A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking (PCBU), including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: s 7 of the Act.
A duty provided for by the Act is not transferable: s 14 of the Act.
The content of the duty is set out in s 19 of the Act, which 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. … (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
The inclusive list of specific obligations set out in s 19(3) of the Act have each been identified at common law.
The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.
Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.
The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].
An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].
A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: s 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.
"Reasonably practicable" is defined in s 18 of the Act. The court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about; 4. the risk, and 5. ways of eliminating or minimising the risk, and 6. the availability and suitability of ways to eliminate or minimise the risk, and 7. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.
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 should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
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] (Gleeson CJ, Gummow and Hayne JJ).
The phrase "exposed to risks" contained in s 8(2) Occupational Health and Safety Act 2000 has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
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] (Gaudron J).
The words "reasonably practicable" indicate that the duty does not require a duty holder 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 duty holder to achieve the provision 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], [33] and [38] (French CJ, Gummow, Hayne and Crennan JJ).
A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 (Hill J) and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].
A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 (Dixon CJ). If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder 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 duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practicable to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].
Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice was observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.
The question of what is reasonably practicable is also a question of fact, determined by the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.
Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control the risk and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. Clause 3 of Schedule 4 of the Act provides that an industry code of practice approved and enforced under Part 4 of the Occupational Health and Safety Act 2000 immediately before the repeal of that Act is taken to be an approved code of practice under Part 14 of the Act.
Clause 54 Work Health and Safety Regulation 2017 (the Regulations) requires a PCBU at a workplace to manage risks to health and safety associated with an object falling on a person if the falling object is likely to injure the person.
Clause 214 of the Regulations requires a person with control or management of powered mobile plant to manage the risks to health and safety associated with the plant colliding with a person or thing.
Part 3.1 of the Regulations (clauses 32-38) applies to a PCBU who has a duty under the Regulations to manage risks to health and safety. Clause 34 requires a duty holder to identify foreseeable hazards that could give rise to risks to health and safety. Clause 35 of the Regulations requires a duty holder to eliminate risks to health and safety so far as is reasonably practicable and if it is not reasonably practicable to eliminate risks to minimise those risks so far as is reasonably practicable. Clause 36 of the Regulations sets out the hierarchy of control measures to be implemented to minimise risk as: substitution, isolation, engineering controls, administrative controls and provision of personal protective equipment (PPE). Clause 37 of the Regulations requires a duty holder who implements control measures to ensure they are maintained, fit for purpose, suitable for the nature and duration of the work and installed, set up and used correctly. Clause 38 of the Regulations requires a duty holder to revise its control measures to maintain, so far as is reasonably practicable, a work environment that it without risk to health or safety.
Post incident conduct is some evidence that the steps taken were reasonably practicable. However, when it comes to the application of s 18 of the Act, that evidence may not be determinative of the issue. The court must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve the provision of a safe working environment prior to the incident and not with the benefit of hindsight: SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295 at [76].

[39]

12(a) - Failure to undertake an adequate risk assessment on the tasks of unloading hay bales, moisture testing hay bales and stacking hay bales

Clause 18.09 of the HIRA Procedure provided that at each site it was a JBS requirement that there was a risk assessment completed for each task. The risks required to be assessed for a task included "contact with falling objects" and "injury by moving equipment".
The defendant also had obligations imposed by clauses 54 and 214 of the Regulations to manage risks to health and safety associated with falling objects and the use of powered mobile plant, in accordance with the process set out in Part 3.1 of the Regulations.
The task of moisture testing involved the risk of death or serious injury to a worker from a falling bale or being struck by a FEL. However, unlike the task of hay stacking and other tasks at the feedlot, the task of moisture testing had not been identified as a separate task and integrated into its WHS system.
The defendant did not produce any risk assessment for the task of moisture testing, notwithstanding that the HIRA Procedure required a risk assessment to be undertaken because the defendant knew that the task of moisture testing involved the risk of a worker being struck by a falling bale or hit by a FEL.
The HIRA Procedure provided that once a risk assessment was to be completed, it would then be forwarded to the training department to review and update the Task Description for the task. I infer that if a risk assessment had been conducted on the task of moisture testing, the training department would have identified the gap in the defendant's WHS system and developed a Task Description for the task of moisture testing.
By implementing the general practice, the defendant was already aware of the risks involved in the task of moisture testing and the control measures that could be deployed to eliminate or minimise them. The general practice included isolation controls intended to separate a worker undertaking moisture testing from the places where they could be struck by a falling bale or hit by a FEL, but these were made more stringent in the post-incident procedures.
The general practice, if followed, was effective in minimising the risks of falling bales and being struck by a FEL. However, it was not invariable. The general practice had been passed on through word of mouth and demonstration over a long period of time. The exact content of any worker's training on the general practice could not be easily ascertained.
Ms Fletcher's training was different to that of the FEL operators and Ms Radcliffe because she was not perceived to be a worker in the mill department.
Different FEL operators employed different methods of placing the bales in stacks to be moisture tested that could potentially give rise to the risk. Workers may have been warned of the risk posed by falling bales using different instructions. For example, some may have been prohibited from approaching a partially constructed stack or there could have been no instruction on the topic because the scenario did not arise if the general practice was followed.
The defendant was required to be proactive in reviewing its management of risks to health and safety through the implementation of systematic procedures, such as the HIRA Procedure.
The tasks of unloading hay, moisture testing and hay stacking had overlapping elements. This was reflected in the post incident procedures introduced by the defendant. Once allowance was made for the task of moisture testing in the post incident procedures, it became apparent that the Hay Stacking TD also had to change, because it did not provide for the bales to be unloaded in stacks to allow the moisture testing to occur safely.
I am satisfied that a risk assessment could have been undertaken by the defendant on the task of moisture testing before the incident at little cost and inconvenience.
The evidence demonstrated that the defendant knew the risks associated with the task of moisture testing and the relevant control measures. I am satisfied that had it conducted a risk assessment prior to the incident that it would have identified those matters in the risk assessment.
I am satisfied beyond reasonable doubt that the conduct of a risk assessment for the task of moisture testing was a reasonably practicable step that the defendant should have taken prior to the incident and that it would have had a positive impact on safety through the introduction of a safe work procedure as contemplated in the HIRA Procedure.

[41]

12(c) - Failure to develop, implement and enforce a safe work procedure for hay stacking

These particulars can be conveniently dealt with together.
Following the incident, the defendant developed and implemented the Hay Testing Manual and the Hay Stacking Manual. The requirements of each Manual overlapped to a significant extent because they were both directed at eliminating or minimising the same risks; that is, the risk of a worker being struck by falling bales or being stuck by a FEL.
The effect of the prosecution's pleaded case was that it was reasonably practicable for the defendant to have introduced the Hay Testing Manual and the Hay Stacking Manual prior to the incident.
For the reasons given, the general practice was not invariable. It was passed on through on-the-job training consisting of oral instruction and demonstration. In the absence of a safe work procedure, the defendant: 1. could not have known the content of each worker's training; and 2. knew or ought to have known that the training on the general practice may have varied and that it could be deficient in some respects.
The training provided on the general practice was deficient in that it did not: 1. include an instruction to Ms Fletcher not to test bales at the face of a stack or that it was dangerous to do so; 2. include training Ms Fletcher on the safety measures to be taken by the FEL operators such as those in the Hay Stacking TD; 3. prevent Mr McKenna putting the stack of 2 bales that had to be moisture tested in close proximity to a partially constructed stack that was unstable; and 4. prevent a worker from being placed in danger through being put in proximity to a partially constructed stack.
As was demonstrated by what occurred on occasions before the incident, it was reasonably practicable to separate the tasks of unloading hay bales from the truck, moisture testing and putting the bales into a stack. Truck drivers could not be released from the site until the moisture testing had been completed so that wet and/or soft bales could be returned to the supplier on the truck. The separation of the tasks extended the time it would have taken to moisture test the bales because no testing could take place until the truck was entirely unloaded. I infer that this delay was not thought to be unreasonable or impractical because: 1. the same delay was incurred if the FEL operator conducted the moisture testing; 2. there were occasions before the incident when the process was conducted in this way; and 3. this was the process adopted in the post-incident procedures.
By separating the tasks, the risk of a worker coming into contact with a falling bale was minimised. There may have been some remaining risk of a stack of 3 bales falling onto a worker while moisture testing was taking place, but it was very small. The risk of a worker conducting the moisture testing being struck by a FEL was eliminated. In other words, by separating the tasks, the process was made safer.
In circumstances where the defendant ought to have known that the general practice was inadequate to ensure the safety of workers such as Ms Fletcher, I am satisfied that it was appropriate to introduce new procedures through written safe work procedures such as the post-incident procedures, to convey that the on-the-job training relating to the general practice was being replaced by the new procedures.
Each of the matters pleaded as necessary content of the moisture testing safe work procedure in [12(b)(i)-(viii)] of the Summons were included in the Hay Testing Manual introduced by the defendant on 19 March 2020.
Each of the matters pleaded as necessary content of the hay stacking safe work procedure in [12(c)(i)-(ix)] of the Summons were included in the Hay Stacking Manual introduced by the defendant on 19 March 2020.
The introduction of the Hay Testing Manual and the Hay Stacking Manual were steps taken by the defendant to comply with its s 19(1) duty and can be regarded as some evidence that the introduction of those safe work procedures was reasonably practicable.
I will deal with each of the sub-particulars in turn.

[57]

Element 4 - Did the defendant's breach of duty expose Ms Fletcher to a risk of death or serious injury?

The relevant principles to be applied were not in dispute and are set out at [222]-[225] above.
I am satisfied beyond reasonable doubt that Ms Fletcher was exposed to a risk of serious injury or death and that the defendant's conduct by failing to undertake a risk assessment, failing to develop and implement a safe work procedure for the task of moisture testing and hay stacking and to train its workers on the safe work procedures was a significant or substantial cause of exposure to the risk for the reasons that follow.
First, the defendant knew that the risks associated with the task of moisture testing included a worker being struck by a falling bale or being stuck by a FEL. The defendant was required to undertake a risk assessment by the Regulations and the HIRA Procedure. It failed to do so because it did not identify moisture testing as a separate task posing those risks. The defendant knew what the relevant control measures were because they were incorporated to some extent in the general practice. I am satisfied that if the defendant had conducted a risk assessment on the task of moisture testing in accordance with the HIRA Procedure that it would have identified that there was no Task Description for the task and that it would have taken steps to develop and implement a safe work procedure for that that task.
Second, the defendant's failure to identify moisture testing as a separate task led to it not being incorporated into the defendant's Safety Training Program. It was not the subject of PRC training or any assessed Task Training, as other identified tasks, such as hay stacking, were.
Third, the post-incident SWPs addressed the ad hoc nature of the buddy system training on the general practice, by standardising that training. The post-incident procedures filled the gaps in Ms Fletcher's training that were identified in the evidence. They contained a clear prohibition against testing bales in a partially constructed stack and introduced stricter isolation controls that would have removed Ms Fletcher from the source of the pleaded risk as well as the risk of being struck by a FEL.
Fourth, the defendant failed to provide adequate training to Ms Fletcher. The evidence established that she was trained on the general practice but not that it was dangerous to conduct moisture testing close to a partially constructed stack. She was not trained on the Hay Stacking TD, the Take 5 Procedure or included in relevant TBTs conducted by the mill department. She was not assessed on her competence to conduct moisture testing safely in accordance with the Task Training procedures of the defendant's WHS system. She did not know what to do when faced with an unusual scenario and had not been trained on the risk that it posed.
Finally, the failures in Ms Fletcher's training led her to approach and moisture test the 2 bales placed next to the partially constructed stack by Mr McKenna. At that point she was exposed to the pleaded risk.

[58]

The defendant's submissions

For the sake of completeness, I will now deal with the defendant's submissions on causation.
The defendant submitted in its written outline of closing submissions that: 1. the cause of Ms Fletcher's exposure to a risk of serious injury or death was her deliberate decision to undertake the moisture testing in a manner that she knew to be unsafe; 2. the Court could not be satisfied beyond reasonable doubt as to why Ms Fletcher did what she did at the time she was injured; 3. the evidence disclosed that Ms Fletcher knew of the danger of testing bales at the face of a stack because: 1. even without training, it was a matter of common sense; 2. even if she had been inadequately trained, she knew of the risk and her deliberate decision was a more immediate cause of the risk to her health and safety and would displace a finding that any of the defendant's failures had a significant or substantial effect on the cause of the incident.
I reject the defendant's submissions for the reasons that follow.
I have rejected the central factual premise on which they are based. For the reasons given, I have rejected the proposition that Ms Fletcher made a deliberate decision to test the bales in a manner that she knew to be unsafe or that was contrary to her training. I have found that when presented with a novel situation, that she had not been properly trained. Ms Fletcher proceeded with the task she had been given without comprehending the danger that she was in.
I do not need to be satisfied beyond reasonable doubt when making a finding about why Ms Fletcher acted as she did, because it is not an element of the offence. I am not satisfied on any basis that Ms Fletcher's conduct severed the chain of causation or otherwise gives rise to a reasonable doubt on the issue of causation.
In the defendant's oral submissions, it contended that the prosecutor had cast its case on the evidence of Ms Fletcher and Mr Keeys that the general practice was not followed on the day of the incident due to result of labour shortages, leading to the 2 bales being placed on the pad for moisture testing to avoid "double handling" of the bales. For the reasons given, I rejected this evidence.
It is fair to say that the prosecutor sought to embrace the evidence of Ms Fletcher as to why she did what she did on the day of the incident and asked the Court to infer that Mr Keeys was not telling the truth in his evidence about the "double handling" conversation. However, the prosecution case outlined in its written opening was that the risk could have been avoided by placing the bales away from the stack for moisture testing and the incident was caused by gaps in Ms Fletcher's training and poor instruction and training of the FEL operators. At all times the prosecutor maintained that the general practice and the way in which it had been communicated to workers was insufficient and that the defendant should have adopted a "clear consistent and documented procedure" to comply with its s 19(1) duty. I am not satisfied that the prosecution case was limited, in the way contended for by the defendant, by the prosecutor seeking favourable factual findings on the "double handling issue", or that my factual findings on the issue are fatal to the prosecution's case.

SafeWork NSW v JBS Australia Pty Ltd

At a glance

Court

Decision date

Source

Judgment (61 paragraphs)

Parties

Cases Cited (22)

Cited By (2)