SafeWork NSW v Saunders Civilbuild Pty Ltd

General background

1. The defendant operated a business involving construction work, including bridge design and construction, wharf construction, major concrete and building works, pre-cast concrete manufacturing and piling works. The defendant's piling services operated from its yard in Redhead, New South Wales (the yard).
2. On or about 31 March 2017, the defendant acquired Civilbuild Pty Ltd (Civilbuild) that operated a business providing piling services and other construction activities. Thereafter the defendant operated the business formerly conducted by Civilbuild.
3. The defendant employed Stephen Brown as a Plant and Piling Supervisor. Mr Brown worked in the yard as well as at building sites undertaking piling works. Mr Brown held a number of High Risk Work Licences allowing him to drive a forklift, undertake advanced rigging, act as a dogman, and slew a mobile crane (up to 100 tonnes). Mr Brown was first employed by Civilbuild in about 1988 and his employment was transferred to the defendant at the time of the acquisition in 2017.
4. Mr Williams was employed by the defendant as a labourer at the yard. He was a qualified dogman. He also assisted in piling work on small jobs from time to time. Mr Williams was first employed by Civilbuild and his employment was transferred to the defendant at the time of the acquisition in 2017.
5. Mr Edwards operated a heavy combination vehicle consisting of a Mack prime mover attached to a Lusty low loader trailer (the truck) and traded under the name Edwards Float Hire (EFH). The trailer consisted of a gooseneck that attached the prime mover to the low loader part of the trailer. Over the top of the gooseneck and at the beginning of the low loader part of the trailer there were two U-shaped frames mounted on the trailer that were used for carrying long freight such as the timber piles (the U frame). The uprights of the U frame were described as "bollards" in the evidence. At the rear of the trailer there were two ramps that could be lowered to drive plant onto the low loader part of the trailer.
6. Prior to operating his own truck, Mr Edwards had worked as a truck driver for a company contracted to Civilbuild to move plant, equipment and materials to its sites. After the merger in 2017, Mr Edwards continued to be contracted to the defendant to move plant, equipment and materials to its sites. Mr Edwards and Mr Brown had worked closely together in their work for Civilbuild and the defendant for about 20 years. Mr Brown had assisted Mr Edwards to load and unload his truck on many occasions.

The Integrated Management System

1. On 12 August 2017 the defendant adopted a document entitled "Saunders Civilbuild Integrated Management System" (the IMS). The IMS stated that the processes in the IMS were to be used as part of the defendant's risk management process to ensure that all operations were appropriately planned.
2. The IMS stated that it applied to all of the defendant's employees and contractors and that those persons were required to comply with the processes and controls described in the IMS. The IMS consisted of the IMS document itself and the procedures referred to in it that outlined specific requirements to achieve compliance.
3. Section 4 of the IMS set out the defendant's policies, including its work health and safety policy (WHS policy). The overarching objective of the WHS policy was to provide and maintain a safe and healthy work environment for all personnel involved in the defendant's operations. This overarching objective was said to be promoted by, amongst other things, proper planning and commitment of resources, implementing safe work practices, consultation with all workers on all WHS procedures, safe operation and maintenance of all plant and equipment, promotion of safety through positive action of all workers to ensure the welfare of others, ensuring all workers were competent and suitably trained to perform the duties for which they were employed, and providing an effective system of hazard identification, injury prevention and incident reporting.
4. Section 5.1 of the IMS set out the responsibilities of employees and sub-contractors of the defendant. The IMS required all staff and sub-contractors to be inducted and trained to ensure they understood their responsibilities for the effective implementation and operation of the IMS. In a flowchart of responsibilities, sub-contractors appeared at the lowest level, and were shown as being under the supervision of a site/precast supervisor when performing work.
5. Section 5.1.4 of the IMS dealt with duties of care owed by the defendant. The IMS stated that the defendant was required to ensure in so far as was reasonably practicable: 1. the health and safety of Saunders Civilbuild workers and workers whose activities in carrying out work were influenced or directed by Saunders Civilbuild; 2. that there were systems of work that ensured the safe use, handling, storage and transport of plant, equipment, materials, structures, and hazardous substances; and 3. that information, training, instruction or supervision was provided that was necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the defendant's business.
6. Section 5.1.7 of the IMS established the responsibilities of the site/precast supervisor, who was selected for each project. These responsibilities included, amongst other things, WHS hazard identification and preparation of the analysis and control methods with the manager and relevant staff and/or sub-contractors, surveillance of sub-contractors' and suppliers' work, and implementation and monitoring of WHS requirements and controls in the workplace as set out in the IMS.
7. Section 5.2 of the IMS dealt with sub-contractors, consultants, and suppliers. Such persons were to be selected based on their ability to deliver products and services in accordance with the defendant's client requirements and any other relevant requirements. In addition, all sub-contractors engaged to work onsite were, amongst other things, required to be inducted into the IMS with particular emphasis on WHS and environmental controls, and, where relevant, required to submit project-specific quality, WHS and environmental documents. In the absence of suitable documentation of their own, sub-contractors were also required to implement the controls and be monitored in accordance with the requirements set out in the IMS.
8. Section 5.3 of the IMS dealt with training and site induction. Section 5.3 stated that all personnel engaged to work on a project were required to be inducted in their specific roles and responsibilities. This Section also set out the defendant's commitment to ensuring that activities conducted by sub-contractors and relevant other parties were conducted safely and without risk to themselves, co-workers, the environment and the public. Finally, the Section reiterated that all sub-contractors engaged to work onsite were required to comply with the IMS and were to be inducted to ensure that they understood their obligations, with performance to monitored and records to be kept.
9. Section 6.32 of the IMS noted that the defendant had in place standard Safe Work Procedures (SWPs) and guidance documents for inherently hazardous processes that were regularly encountered during typical construction projects. All standard SWPs were expressly stated to form part of the IMS.

Safe Work Method Statements

1. Prior to the incident the defendant had implemented a number of Safe Work Method Statements (SWMSs) related to its different activities. These included: 1. Civilbuild Pty Ltd "Pile Driving" SWMS No. 6, issued 27 January 2016 (the Pile Driving SWMS); 2. Civilbuild Pty Ltd "Loading and Unloading Trucks" SWMS, issued 25 February 2016 (the Loading and Unloading Trucks SWMS); and 3. Saunders Civilbuild "Abutment Construction - Rail Bridge" SWMS for Martins Creek Overbridge Site, issued 17 November 2017 (the Martins Creek SWMS).
2. Mr Brown's evidence was that the work to be done at the site on 16 February 2018 was governed by the Pile Driving SWMS. Jonathon Bromilow, the General Manager of the defendant, gave similar evidence.
3. None of the SWMSs in force at the time of the incident contained a reference to the verbal direction or the practice of pre-slinging loads, set out at [28] below.
4. Each SWMS had a place for workers to sign it. In so doing the workers were asked to acknowledge that all work would be carried out in accordance with the particular SWMS.

Safe Work Procedures

1. In addition to the SWMSs, the defendant also had a number of SWPs in place prior to the incident. These included: 1. Saunders Civilbuild "Personal Protection" SWP No. 2 Rev 6, issued 28 February 2016 (the Personal Protection SWP); 2. Civilbuild Pty Ltd "Use of Lifting Equipment" SWP No. 17 Rev 6, issued 28 February 2016 (the Use of Lifting Equipment SWP); and 3. Civilbuild Pty Ltd "Operation of Plant and Vehicles" SWP No. 4 Rev 6, issued 28 February 2016 (the Operation of Plant and Vehicles SWP).
2. None of the SWPs in force at the time of the incident contained a reference to the verbal direction or the practice of pre-slinging loads. [1]

EFH's Safe Work Method Statement

1. Prior to the incident, Mr Edwards had in place a SWMS entitled "Loading and Unloading Plant", issued 1 November 2015 (the EFH SWMS).
2. The EFH SWMS did not contain any prohibition similar to the verbal direction or make any reference to the practice of pre-slinging loads. [2]

The verbal direction and the practice of pre-slinging loads

1. In 2017 the defendant issued a verbal direction to its employees that they were not allowed to climb onto the back of trucks or trailers to load or unload them (the verbal direction). At the same time, the defendant introduced a practice of attaching slings to bundles of piles before they were loaded onto trucks so that they could be unloaded at their destination without the need for a person to climb onto the load or onto the back of a truck or trailer. This practice was known as "pre-slinging" the load.
2. Mr Brown's evidence was that the verbal direction was given shortly after the acquisition, which occurred on 31 March 2017. Mr Williams' evidence was that he left the employ of the defendant for 3 or 4 months in 2017 and was made aware of the verbal direction upon his return to work.
3. The defendant asserted in response to a s 155 Notice issued by Inspector Halcroft, set out at [79] below, that the verbal direction and the practice of pre-slinging loads was introduced in about November 2017. The defendant could not produce any document to prove when the verbal direction was given or when the practice of pre-slinging loads was introduced.

Events of 15 February 2018

1. The defendant was contracted to Beechwood Homes (NSW) Pty Ltd (Beechwood) to undertake piling works at its sites. The defendant was contractually obliged to conduct a site-specific risk assessment on any Beechwood site that it worked at. The risk assessment required the defendant to submit a SWMS for any high-risk construction work. The defendant's practice was to have a SWMS for each site that it worked on, that was signed by each of the workers engaged on that site.
2. On 15 February 2018 the defendant received a Purchase Order from Beechwood to supply and install timber mini piles at 4 Rigney Street, Shoal Bay (the site). The timber mini piles were cylindrical timber logs about 6000mm long and about 200mm in diameter (the piles).
3. On 15 February 2018 the defendant contracted with Mr Edwards to transport a 16 tonne Zaxis excavator (the excavator) and three bundles of piles from the yard to the site. Each bundle contained about 11 piles and they were strapped together with steel straps.
4. On the afternoon of 15 February 2018 Mr Edwards attended the yard to pick up the excavator and the three bundles of piles. Mr Brown was present at the yard and assisted Mr Edwards to load the truck.
5. Mr Brown gave evidence that he told Mr Edwards that the bundles of piles were pre-slung so they could be lifted off the truck from the ground because the defendant had a rule that no one was allowed to get up on the back of trucks. Mr Brown's evidence was that Mr Edwards replied "OK" and that he seemed to understand what he had been told.

The incident on 16 February 2018

1. At approximately 8.00am on 16 February 2018, Mr Brown and Mr Williams arrived at the site and conducted a pre-start inspection for the purpose of undertaking the piling work at the site. About 10 minutes later, Mr Edwards arrived and parked the truck in the centre of the road outside the site.
2. Mr Brown and Mr Edwards exchanged pleasantries. Mr Brown asked Mr Edwards to move his truck closer to the site to a position where it was further off the road and safer for passing traffic.
3. No SWMS was gone through or signed on to at the site before the work commenced. Mr Brown had the Pile Driving SWMS with him in his vehicle.
4. No site induction was conducted on the day of the incident. Mr Brown was not familiar with the requirements of the IMS at that time.
5. Mr Brown did not know if Mr Edwards had a SWMS relevant to the work at the site on the day of the incident.
6. Mr Edwards repositioned the truck with the back of the trailer to the south of the access gate of the site, so that the excavator could be driven off the truck and into the access gate of the site.
7. Mr Edwards lowered the ramps on the trailer and Mr Williams assisted him to remove the chains that were securing the excavator to the trailer. Mr Brown got into the cabin of the excavator and drove it off the trailer and into the access gate of the site. Mr Brown positioned the excavator so that he could use the arm to lift the bundles of piles off the trailer using a chain and hook attached to the arm.
8. Mr Williams and Mr Edwards packed away the chains that had secured the excavator to the trailer. Mr Edwards then raised the ramps so that he could move the truck in a way that would position the piles adjacent to where Mr Brown had positioned the excavator. After Mr Edwards had moved the truck to this position, Mr Williams and Mr Edwards removed the ratchet straps restraining the piles.
9. Mr Brown positioned the arm of the excavator above the centre of the piles. Mr Williams attached the end of the two slings attached to the first bundle of piles to the hook attached by a chain to the arm of the excavator. He accessed the end of the slings from the ground and attached them to the hook while standing on the ground. Mr Williams then stepped up onto the low loader part of the trailer to get a better line of sight on where the chain was attached to the slings to observe the lift.
10. At this time, Mr Williams saw Mr Edwards climbing up onto the piles from the area between the cabin of the truck and the end of the piles.
11. After Mr Williams attached the slings, Mr Brown next saw Mr Edwards to be standing on top of the piles over the gooseneck of the trailer.
12. Mr Brown gave evidence that it was not unusual for Mr Brown to climb onto the top of a load to attach slings to lifting equipment. Mr Brown had seen Mr Edwards do it many times before. On the day of the incident, Mr Brown did not say anything to Mr Edwards about him standing on top of the piles because he thought it was safe.
13. Mr Edwards made his way to where the hook was attached to the slings and unhooked the slings from the hook and then proceeded to attach the front sling to the hook followed by the back sling. He then grabbed the chain attached to the hook and nodded to Mr Brown as the signal to lift the first bundle of piles.
14. When Mr Brown lifted the load it swung in an anti-clockwise direction. Mr Edwards put his hands on the load to steady it. He was standing in close proximity to the bundle of piles. Mr Edwards then nodded to Mr Brown to lift the piles off. As the piles were lifted, Mr Brown saw Mr Edwards fall backwards and try to grab the bollard at the front passenger side of the truck before falling off the truck to the road on the passenger side of the truck.
15. Mr Williams could not say if Mr Edwards was hit by the piles or if he tripped. He described Mr Edwards as "diving" for the bollard at the front passenger side of the trailer and trying to "bear hug" it. Mr Williams described that Mr Edwards spun around 180 degrees before falling backwards and landing flat on his back on the road.
16. Mr Edwards suffered a severe blunt force head trauma. He was taken by ambulance to hospital and underwent emergency neurosurgery. Mr Edwards died 6 days later.

Events after the incident

1. Inspectors McKay and Kauter from SafeWork NSW attended the site as first responders to the incident to take photographs and measurements, get the details of witnesses, and ensure that the site was safe.
2. Inspector McKay located a copy of the EFH SWMS in the cabin of the truck and took photographs of it.
3. Mark Benson, the defendant's Chief Executive Officer, Matthew Brough, the defendant's Health Environment and Safety Manager, and Mr Bromilow, attended the site. Shaun Iogha of Beechwood also attended the site.
4. Inspector Kauter issued a Prohibition Notice preventing the remaining bundles of piles being removed from the truck until SafeWork NSW was provided with evidence that the workers involved in that task were prohibited from accessing the back of the truck or trailer or standing on the load to do so.
5. A toolbox talk was held at the site between the defendant's representatives and Mr Iogha. The method of unloading the piles from the truck was discussed and it was resolved to make a handwritten amendment to the Pile Driving SWMS, which would reiterate the importance of not climbing on the back of the truck.
6. Mr Bromilow made a handwritten amendment to a copy the Pile Driving SWMS, on which the details of the site had been completed. The handwritten amendment was made in the following terms, under Step 8 - "Pile Rig Set Up": Unload Piles from Truck DO NOT access the Back of truck at any stage. Load to be slung from the ground.
7. Mr Brough, Mr Brown and Mr Williams all signed onto the amended Pile Driving SWMS as "workers on site". Mr Bromilow signed the amended Pile Driving SWMS as the person from the defendant responsible for supervising the work and the content of the SWMS.
8. After a discussion about the handwritten amendment to the Pile Driving SWMS, Inspector Kauter considered that the Prohibition Notice had been satisfied and allowed the unloading of the remaining piles to take place.
9. Mr Bromilow's evidence was that in preparing the amended Pile Driving SWMS, he followed the direction of the SafeWork Inspectors to insert the handwritten words into the document. I do not accept that evidence for the following reasons. First, it was not put to the Inspectors that either one of them gave a direction in those terms. In the context of the system of self-regulation imposed by the Act, I think that it is very unlikely that such a direction was given. Second, Mr Bromilow was a poor witness. He came across as an advocate for the defendant. For example, he gave evidence on a number of occasions that the Pile Driving SWMS in force at the time of the incident prescribed adequate controls and identified the risks involved in the tasks that were being undertaken at the site on the day of the incident. That evidence was simply not true. In addition, it was directly inconsistent with the steps that the defendant took to amend its procedures and retrain its workers following the incident.

Changes to the system of work following the incident

Training of employees and contractors on 21 February 2018

1. On 20 February 2018 Mr Benson sent an email to Mr Bromilow directing him to have all employees watch a SafeWork NSW video entitled "Falls from Flatbed Trucks and Trailers Safety Alert" (the video) by the end of the following day.
2. Later on 20 February 2018, Mr Bromilow distributed by email a document entitled "Saunders Safety Alert" that had been prepared in relation to the incident (the Safety Alert). The Safety Alert referred to the video and contained a number of messages conveyed in it. Mr Bromilow directed that the Safety Alert be given to all employees, including labour hire employees and sub-contractors currently working for the defendant (the workers). He also directed for the Safety Alert to be discussed at a toolbox meeting to be held by close of business on 21 February 2018, and that the video be shown to the workers at that meeting. He requested that the attendance of the workers at those toolbox meetings be documented.
3. The video was 2 minutes and 40 seconds in duration and was narrated by a SafeWork Inspector. The footage throughout is of workers loading and unloading freight in a warehouse where various safety controls are being utilised. The video opens with a brief discussion of an incident which gave rise to the creation of the video. That incident involved a worker suffering fatal injuries as a result of tripping and falling off a truck whilst it was being unloaded by a forklift in a situation where no precautions had been taken to prevent the fall. The video then sets out some "simple steps" that businesses can take to keep workers safe. Staying on the ground is the primary recommendation, and measures such as using suitable equipment to load and unload, pre-configuring the load, pre-slinging the load where possible, and using load restraints, are proposed as ways of achieving this. The Inspector then stresses that, when working from the ground is not possible, there must be a safe means of accessing and, if necessary, working on, the tray or trailer. Measures such as guard rails and temporary work platforms, work positioning systems such as travel restraints, and retractable ladders with steps or handrails, are discussed. The Inspector then cautions that fall arrest systems should only be used where other effective controls are not practical. The video concludes with a dot point summary of the recommended measures and relevant considerations discussed in the video, and emphasises the importance of businesses working together to manage the risks and ensure the health and safety of those who work with flatbed trucks and trailers.
4. The Safety Alert was prepared in the immediate aftermath of the incident while Mr Edwards was still in a critical condition in hospital. The document began with a description and details of the incident, with photographs of Mr Edwards' truck at the site being provided as a visual aid. The document then listed 5 items under the heading "Immediate Actions/Recommendations/Lessons". Item 1 instructed readers to "toolbox" the Safety Alert with all employees, highlighting the importance of controlling the risk of a fall from height and requiring attendance at those meetings to be documented. Item 2 provided that all current and future SWMSs were to be reviewed and updated, including with mandatory changes to be made to control the risk of falling from heights and setting out the procedure by which this would occur. Item 3 reinforced working from the ground as the safest option and specified the need for appropriate fall protection and other measures where workers were required to work from a height. These precautions were required to be updated and detailed in all relevant SWMSs. Item 4 stated that where workers were required to work from a height, they should use a fall-prevention device such as a temporary work platform, handrails, guardrails, retractable handrails, or scaffolding. Those matters were also required to be updated and detailed in all relevant SWMSs. Item 5 required all company supervisors to show the video to all work crews to ensure awareness of safety risks and prevention measures associated with working at heights, with signed attendance sheets to be kept to verify compliance from all sites. Page 2 of the Safety Alert emphasised the role of all persons in preventing hazards from doing harm and the attendant duty of care, and reiterated the "S.T.A.R.T Right System" of "Stop, Think, Assess, Review, Talk".

Introduction of a Driver Induction Package

1. On 1 March 2018 the defendant introduced a Driver Induction Package providing information on the defendant's "Golden Rules" of safety, personal protective equipment (PPE) requirements, site traffic management, approved load restraints and the loading and unloading of trucks from the ground. As part of the Package, drivers were required to watch the video and then to complete an assessment which was to be kept on file by the defendant. Pages 6 and 8 of the Package are produced in Figure 1 below.

Changes to SWMSs

1. The Saunders Civilbuild Truck Operations SWMS was issued on 17 April 2018 (the Truck Operations SWMS). The Truck Operations SWMS included the following new provisions that did not appear in any of the documents referred to in [20] and [24] above: 1. At Step 1, all truck drivers were required to complete the Saunders Truck Drivers Induction and were required to hold a MR driver's licence. 2. At Step 4, which related to accessing the back of a truck during loading and unloading, the hazard of a fall from height was identified. The safety control measures were stated as follows and highlighted in yellow on the document; Work on ground or on solid construction - Rig loads from ground. DO NOT ACCESS trucks/trailers without appropriate fall protection. Pre sling loads, use load restraints. If you must work from height, fall prevention must be in place to prevent the risk of a fall. This may include temporary work platforms, handrails, guardrails, retractable handrails and or scaffolding.
2. The Saunders International Pile Driving SWMS, issued on 4 June 2018, included the following new provisions: 1. At Step 9, being the delivery of plant and materials, the safety control measures included: Accompany the driver ensuring that the driver adheres to site requirements… 1. In the same Section, the words quoted in [66(2)] above were included.
3. The Saunders Civilbuild Loading and Unloading of Trucks SWMS, issued on 1 July 2019, contained the words quoted in [66(2)] above under Step 1.
4. The Saunders Civilbuild Lifting Loads Using a Crane SWMS, issued on 2 September 2019, contained the words quoted in [66(2)] above under Step 9.
5. Mr Brown's evidence was that he became aware of the amendments to the defendant's SWMS after the incident and that he was required to do a course online to go through what to do and what not to do in the loading and unloading of trucks. He understood that his role as a supervisor for the defendant was to enforce the controls provided for in the SWMSs.
6. Mr Williams' evidence was that the rules for unloading trucks were more rigorously enforced after the incident. He was made aware of the changes made to the SWMSs after the incident. Mr Williams' evidence was that most of the practices referred to in the amendments were being applied before the incident. Mr Williams gave evidence that he was provided with training on the content of the amended version of the Pile Driving SWMS referred to in [67] above.

Responses to section 155 requests for information and documents

1. Inspector Halcroft issued a number of notices pursuant to s 155 of the Act to the defendant for the provision of information and documents. The following responses to those Notices are relevant.

Notice 7-333707

1. On 13 July 2018 Mr Benson provided information including the following answers to Notice 7-333707 to Inspector Halcroft. Q8 What information, training and instruction did Civilbuild provide to Mr Edwards in relation to the work? A8 Civilbuild provided job specific information and instructions to Edwards Float Hire, including regarding the location and timing of pick-ups and drop-offs, on a job by job basis as and when required. It also instructed Edwards Float Hire to perform the contracted work consistent with the applicable Safe Work Method Statement (SWMS). … Q25 When was Geoffrey Edwards inducted to the SWMS? A25 Geoffrey Edwards performed work subject to the Edwards Float Hire's (sic) SWMS. Q27 Did Civilbuild have a written procedure for unloading materials on site? A27 Yes Q28 What was Civilbuild's policy on climbing onto loads/trailers during unloading operations? A28 Engineered alternatives, such as the use of pre-slung loads, to be used wherever possible so that unloading work could be performed from ground level. Alternatively, fall prevention methods must be used. Q29 How was this communicated to workers, including contractors? A29 Distribution of applicable Civilbuild SWMS (defining tasks, risks and controls, including in relation to working at heights), site inductions and discussions at pre-start meetings. Contractors are required to have in place appropriate SWMS for works they are engaged to perform consistent with their specialist experience and qualifications. Consultation with contractors in relation to the use of engineered alternatives such as pre-slung loads. Q30 How did Civilbuild ensure that contractors adhered to the SWP? A30 Adherence to SWMS is monitored by the safety officer and supervisors (where applicable).

Notice 20182707-BH

1. On 3 August 2018 Mr Benson sent an email to Inspector Halcroft in response to Notice 20182707-BH identifying that the Pile Driving SWMS was the SWMS that governed the unloading of materials at the site on 16 February 2018. He stated that in Items 6 and 7, the Pile Driving SWMS incorporated, by reference, the following SWPs: the Manual Handling SWP SWP-01, the Personal Protection SWP, the Operation of Plant and Vehicles SWP, and the Use of Lifting Equipment SWP, referred to in [24] above. He stated that a copy of the Pile Driving SWMS had been produced in response to Notice 7-333707, issued earlier. Mr Benson further stated that the defendant could not locate a copy of the EFH SWMS in its records.

Notice 7-337873

1. On 19 September 2018 Mr Benson provided information including the following answers to Notice 7-337873 to Inspector Halcroft. Q2 Which Safe Work Method Statement was the "applicable" SWMS referred to in your response to question 8 (Notice 7-333707)? A2 Edwards Float Hire's SWMS. Q3 When were Geoffrey Edwards and Stephen Brown inducted to (sic) the applicable SWMS? A3 Neither Geoffrey Edwards nor Stephen Brown were inducted to (sic) the Edwards Float Hire SWMS by Civilbuild. Q4 How did Civilbuild ensure that Edwards Float Hire's SWMS was appropriate? A4 By employing senior employees, previously engaged in the business over a long period prior to Civilbuild's acquisition, who had experience dealing with transport contractors (including Edwards Float Hire), a history of consulting with contractors and knowledge of the applicable SWMS. Q5 How did Civilbuild enforce its policy on climbing onto loads/trailers during unloading operations? A5 Consultation with workers, including contractors. Q6 When did Civilbuild consult with Geoffrey Edwards in relation to the use of engineered alternatives such as pre-slung loads? A6 This information was discussed the day prior to the incident, between Steve Brown and Geoff Edwards. Q7 What records were kept of such consultation/s? Please provide a copy of such records. A7 There are no such records. Q8 Was the "regular training" provided to Geoffrey Edwards (Q 38 in Notice 7-333707)? A8 No.
2. Mr Benson also provided a copy of what he described as the "signed" EFH SWMS with his response. The version of the EFH SWMS provided had an issue date of 1 November 2015 and it was not signed by any person, including Mr Edwards.

Notice 7-342610

1. On an unknown date Mr Benson provided information including the following answer to Notice 7-342610 to Inspector Halcroft. Q1 How many times did Geoffrey Edwards transport timber piles for Saunders Civilbuild Pty Ltd? Please provide invoices to support your answer. A1 Our records show Edwards Float Hire transported piles for Saunders Civilbuild 4 times since 3 May 2017 18th Dec 2017 from Teralba to Fingal Bay 9th Feb 2018 Central Mangrove to Cessnock 15th Feb 2018 from redhead to Tomago 16th Feb 2018 Tomago to Shoal Bay (Date of incident) There were also a small number of other occasions on which Edwards Float Hire carried out similar work for the Company. However, there are no invoices or other business records held by the Company to confirm the dates on which that work was performed.
2. On this point, two invoices of EFH were tendered by the prosecutor. Those invoices proved that Mr Edwards performed cartage services for the defendant, in addition to the above dates, on 1, 8, 13 and 20 December 2017 and on 8 February 2018.

Notice 7-339642

1. On 9 October 2018 Mr Benson provided information including the following answers to Notice 7-339642 to Inspector Halcroft. Q1 When was the practice of pre-slinging loads introduced at Saunders Civilbuild? A1 The practice of pre-slinging bundles of piles was introduced in around November 2017. This was a part of the consultative process targeting working at heights operations in the business. … Q3 Why was the procedure changed? A3 The practice was changed to reduce the risk of fall from height. This change was part of the company's commitment to continuous improvement. Q4 How was the amended procedure communicated to all affected workers? Please provide supporting documentation. A4 The new practice was communicated to all affected workers as pre-start discussions and through face to face interactions in the yard. Q5 How many transport companies subcontract to Saunders Civilbuild to deliver plant and materials to construction sites? Q5 5. Q6 Of the above, how many transported packs of piles for Saunders Civilbuild up to and including the date of the incident? Q6 5.

Findings on the evidence

1. I accept the evidence of Mr Williams. I am satisfied by reference to what he said and to his demeanour that he was a witness trying to do his best to give truthful evidence.
2. I accept the evidence of Mr Brown, Mr Williams and Mr Bromilow that the verbal direction was given by the defendant to its employees and that the defendant introduced the practice of pre-slinging loads at the same time.
3. The evidence as to when the verbal direction was given to the defendant's employees was imprecise and inconsistent. Mr Brown thought it was given shortly after the acquisition on 31 March 2017. Mr Williams gave evidence that he left the employ of the defendant for 3 or 4 months in 2017 and that the verbal direction was in place when he returned. Mr Benson, on behalf of the defendant, asserted that the verbal direction was given in about November 2017, as set out in [79] above. The defendant could not produce any document recording when the verbal direction was given to anyone prior to the incident.
4. I do not accept the assertion that the defendant systematically conveyed the verbal direction to the contract drivers, prior to the incident, because the defendant's responses to the s 155 Notices were vague and inconsistent with the evidence, including the content of its own contemporaneous documents.
5. In its response to Notice 7-333707, set out at [73] above, the defendant asserted that at the time of the incident: 1. it required Mr Edwards to perform his work consistent with the applicable SWMS: see A8; 2. it used pre-slung loads so that unloading work could be performed from the ground or alternatively fall prevention methods were mandatory: see A28; 3. these requirements were communicated to workers, including contractors, through the defendant's applicable SWMS that set out the risks and controls involved with working at height, or the contractor's SWMS and through consultation with contractors: see A29; and 4. that adherence to the applicable SWMS was monitored by the defendant's safety officer and supervisors: see A30.
6. In its response to Notice 20182707-BH, set out at [74] above, the defendant asserted that the work at the site on the day of the incident was governed by the Pile Driving SWMS.
7. In its response to Notice 7-337873, set out at [75] above, the defendant asserted that: 1. the work at the site on the day of the incident was governed by the EFH SWMS: see A2; 2. the defendant had ensured that the EFH SWMS was appropriate by employing senior people with a history of consultation with contractors, which I infer was a reference to Mr Brown: see A4; 3. the defendant enforced the verbal direction by "consultation with workers, including contractors": see A5.
8. The following inconsistencies are apparent. First, neither the Pile Driving SWMS nor the EFH SWMS contained a reference to the verbal direction, the practice of pre-slinging loads, or the use of "fall prevention methods". Second, the policy asserted by the defendant in [84(b)] above, went further than the evidence of Mr Brown and Mr Williams as to the content of the verbal direction, in that neither of them gave any evidence about the mandatory requirement to use "fall prevention methods" or what those could have been. Third, the defendant contradicted itself on the applicable SWMS. Fourth, Mr Brown's evidence was that at the time of the incident he was unaware of the requirements of the IMS requiring him to analyse the appropriateness of the EFH SWMS, and that he was not familiar with the content of the EFH SWMS prior to the incident. Fifth, the assertions that the defendant's policy was contained in a SWMS and was enforced by supervision are, on the evidence of what occurred in the incident, untrue.
9. Further, the defendant's assertions that there was consultation with contractors on the verbal direction are vague as to when such consultations occurred. No record was produced of any such consultation occurring, including a record of the alleged conversation between Mr Brown and Mr Edwards. The defendant stated that it only contracted with 5 transport companies, so it would not have been an onerous task to create records of any consultation.
10. Finally, the inconsistencies demonstrated in the defendant's responses to the s 155 Notices were repeated in the assertions made by Mr Bromilow, which I have rejected.
11. I prefer the evidence of Mr Brown that the verbal direction was given shortly after the acquisition for the following reasons. First, I accept Mr Brown's evidence to that effect. Second, because Mr Williams could not say when he left the employ of the defendant in 2017, his evidence is not inconsistent with Mr Brown's evidence. Third, for the reasons given I find that the defendant's responses to the s 155 Notices are demonstrably unreliable. I do not accept the defendant's assertion that the verbal direction was given in about November 2017.
12. I accept the balance of Mr Brown's evidence, with one exception. I do not accept Mr Brown's evidence that he told Mr Edwards about the verbal direction on 15 February 2018 for the reasons that follow.
13. In the period between March 2017 and 15 February 2018, Mr Brown's evidence was that Mr Edwards was regularly engaged by the defendant to pick up and deliver loads. Mr Brown's evidence was that he was present on some of these occasions to assist Mr Edwards to load and unload his truck.
14. It is highly unlikely that the first time Mr Brown told Mr Edwards about the verbal direction was on the day before the incident when there were other occasions closer in time to when the verbal direction was first given by the defendant. The timing is far too convenient for my liking. Mr Brown had an interest in giving that evidence, both on his own behalf and in the interests of his employer. Mr Brown's evidence as to what he allegedly told Mr Edwards on 15 February 2018 was imprecise and there was no independent corroboration of it. Mr Edwards cannot now be called to give his version of the conversation.
15. Claims based on communications with deceased persons must be treated with considerable caution and the lack of corroborative evidence which was or could have been available is significant: Plunkett v Bull (1915) 19 CLR 544 and Hunt v Barlow [2000] NSWSC 324 at [5]-[8] (Bryson J). While the present context does not involve a claim, the reasoning in the Plunkett line of authority is apposite.

The elements of the offence

1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt.
2. Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
3. The elements of the s 32 offence involving a breach of the s 19(1) duty are:

• Element 1 The defendant was conducting a business or undertaking;
• Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 1. while the workers were at work in the business or undertaking;
• Element 3 The defendant failed to comply with its health and safety duty; and
• Element 4 The failure exposed an individual to a risk of death or serious injury.

The relevant law

1. The offence is one of strict liability: s 12A of the Act.
2. 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.
3. A duty provided for by the Act is not transferable: s 14 of the Act.
4. Section 16 of the Act provides: (1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person-- (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
5. 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.
6. The inclusive list of specific obligations set out in s 19(3) of the Act have each been identified at common law.
7. The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.
8. 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.
9. 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].
10. 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].
11. 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.
12. "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; 1. the risk, and 2. ways of eliminating or minimising the risk, and 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.
13. 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].
14. 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).
15. 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.
16. 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].
17. 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).
18. 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).
19. 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.
20. 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].
21. 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.
22. 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].
23. 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].
24. 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.
25. 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.
26. 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.
27. Clause 78 Work Health and Safety Regulation 2013 (the Regulation) requires a PCBU at a workplace to manage risks to health and safety associated with the fall of a person from one level to another that is reasonably likely to cause injury. The PCBU must ensure, so far as is reasonably practicable, that the work is carried out on the ground or on a solid construction. Solid construction means a surface that is structurally capable of supporting all persons and things that may be located on it.
28. If the risk of a fall cannot be eliminated, the PCBU must minimise the risk of a fall by providing adequate protection in accordance with clause 79 of the Regulation. Clause 79 requires the provision of a fall prevention device, or if that is not reasonably practicable, a work positioning system, or if neither a fall prevention device nor a work positioning system are reasonably practicable, a fall arrest system.

Issue 1 - Does the use of the word "permitted" by the prosecutor in [16] of the Summons alter the nature of the offence to be proven?

1. Paragraph 16 of the Summons provided: The defendant permitted Mr Williams and/or Mr Edwards to access the trailer of the heavy combination vehicle and/or the frames on the trailer and/or the load on the frames during preparation for and/or during the unloading of the packs of piles from the heavy combination vehicle. [3]
2. Paragraph 17 of the Summons then alleged that the defendant failed to comply with its s 19(1) duty by failing to take one or more of the reasonably practicable measures to eliminate, or minimise, the risk of a fall from the back of the truck. I have set out the particulars of breach in [17] of the Summons verbatim when dealing with Issue 2 and I will not repeat them here because it is not necessary to do so.

The defendant's submissions

1. The defendant contended that the allegation in [16] of the Summons that the defendant "permitted" Mr Edwards or Mr Williams to access the back of the truck was an allegation of a breach of the s 19(1) duty by an act, rather than by an omission or omissions. This was a deliberate choice on behalf of the prosecutor and in criminal proceedings it should be strictly held to that forensic decision. In other words, the prosecution had to prove that the defendant failed to comply with its s 19(1) duty by permitting, or in this context performing, an act authorising Mr Edwards or Mr Williams to access the back of the truck.
2. The defendant developed its submission by reference to the interpretation of the word "permit" in statutes, to the effect that to "permit" required some intentional allowance that could be inferred from circumstances which carry with them a reasonable implication of a discretion or liberty, but mere inactivity or failure to take some step does not necessarily establish permission: citing, Broad v Parish (1941) 64 CLR 588 at 595 (Starke J) and Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at 504 (Gavan Duffy and Starke JJ).
3. The defendant contended that there was no evidence that any of the defendant's employees authorised Mr Edwards or Mr Williams to access the back of the truck before either of them did so. In this regard, the defendant contended that counsel for the prosecutor failed to ask Mr Brown, Mr Williams or Mr Bromilow if such permission was given. The defendant pointed to the evidence of Mr Brown and Mr Williams that neither of them told Mr Edwards to climb onto the load, as evidence to the contrary, that is, that Mr Edwards had not been authorised by the defendant to do so.
4. The defendant contended that this was a threshold issue on Element 3 of the offence because there was no evidence of permission and there was evidence to the contrary, such that the Court could not be satisfied beyond reasonable doubt that the defendant had breached its s 19(1) duty by permitting Mr Edwards or Mr Williams to access the back of the truck.

The prosecutor's submissions

1. The prosecutor submitted that the meaning of the word "permit" in the cases referred to by the defendant did not exclude its ordinary meaning and that its use in the pleading should be construed accordingly: R v Jasper [2003] NSWCCA 186.

Consideration of Issue 1

1. The defendant's argument on Issue 1 is rejected for the reasons that follow.
2. The defendant's argument relied on the interpretation of the word "permit" by reference to cases where it was used in a statutory provision creating a criminal offence. Each meaning ascribed to the word in those cases depended on the context of its use and the particular mischief it was trying to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). "Permit" does not have an established meaning that must be applied in every criminal case in which it is used. The use of a word in a statute that is a defined term in another statute will not have the defined meaning unless that is required by the application of the rules of statutory construction: Certain Lloyds Underwriters v Cross and Thelander (2012) 87 ALJR 131. For these reasons, the defendant's reliance on the authorities relating to the meaning of "permit" in criminal cases is misplaced.
3. In the present case, the relevant permission is not an essential legal element of the offence, nor is it an essential fact that must be established by the prosecution. Accordingly, the word falls to be interpreted by reference to its ordinary and natural meaning, and in the context of the pleading as a whole: Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560 (Mahoney JA) and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46] (French CJ, Nettle and Gordon JJ).
4. "In Australian private law, context is best understood as referring to the entire text of the document being interpreted as well as any other document or statutory provision referred to in the document": Perry Herzfeld and Thomas Prince, Interpretation, Second Edition, Thomson Reuters, Sydney, 2020, [22.20], p 483-4. This principle requires effect to be given to each provision of the document, on the presumption that the provisions were intended to operate together to convey the meaning of the document: Herzfeld and Prince at [22.30] p 484 citing Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 at 560-1. Where possible, effect should be given to all the words of the document and no part should be treated as surplusage: Herzfeld and Prince at [22.30] p 485 citing Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99 at 109 (Gibbs J).
5. The online Macquarie Dictionary defines "permit" as: To allow (a person, etc) to do something… To let (something) be done or occur… To tolerate; agree to. To afford opportunity for… To grant permission; allow liberty to do something. To afford opportunity or possibility…
6. In construing [16] of the Summons in context, it is necessary to have regard to the allegation of the omissions set out in [17] of the Summons. In so doing it is apparent that [16] is a factual allegation that a circumstance (accessing the back of the truck) was allowed to occur by the defendant because it failed to take one or more of the steps set out in [17] of the Summons. In other words, the factual scenario was allowed to come into existence as a result of the defendant's omission or omissions.
7. I am fortified in this conclusion because the defendant's argument gives [17] of the Summons no work to do, and this is inconsistent with the applicable legal principles set out in [136] above.
8. Alternatively, in accordance with the authorities relating to the pleading of criminal cases, permission was not an essential legal element of the offence or an essential fact to be established by the prosecution. Accordingly, [16] of the Summons is surplusage that does not prejudice the defendant and it can be ignored or deleted by amendment: R v Johnson [1945] KB 419 and R v Madercine (1899) 15 WN (NSW) 235. In the present case, the defendant did not object to any of the evidence led capable of establishing the pleaded omissions. It had the opportunity to cross-examine on those matters and they were not significantly put in dispute. Ultimately, the defendant contends in relation to Issue 2 that, on the evidence, the Court cannot be satisfied to the requisite standard that the omissions have been proved beyond reasonable doubt.
9. Finally, whilst there is some force in the prosecutor's submission, I do not believe that it represents a principled approach to the issue.

Issue 2 - Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [17] of the Summons? (Element 3)

1. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].
2. In order to find Element 3 established, I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [17] of the Summons and that the steps were reasonably practicable.
3. I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures in [17] of the Summons were reasonably practicable.

The pleaded risk

1. The pleaded risk was the risk of workers falling from height whilst loading or unloading materials from the back of the truck.

The likelihood of the risk occurring

1. The likelihood of the risk occurring was moderate to high if a worker stood on top of the piles loaded in the U frame over the gooseneck of the trailer. The piles were rounded and did not provide a firm foothold. In that section of the trailer there was no flat surface where a worker could stand to undertake the work. Standing on the piles posed a substantial risk that a worker could trip or lose their footing.
2. The likelihood of the risk occurring was low if a worker stood on the low loader part of the trailer. The tray of the trailer in this area was flat and was of solid construction.
3. If a worker climbed on the trailer to unload the piles, it was necessary to access the part of the trailer over the gooseneck because the piles had to be slung in two places to make the load stable when it was lifted off. If this method was adopted, it was likely that a worker would stand on top of the piles or on the cross brace of the U frame where there was no solid footing.

The degree of harm

1. The degree of harm that might eventuate if a person fell off the trailer was significant and included a risk of death. The top of the load of timber piles was 2400mm above the ground and the low loader part of the trailer was 1000mm above the ground.

The defendant's knowledge of the risk

1. The risk was obvious and had been identified by the defendant as the basis for the issue of the verbal direction.
2. The risk was well known in the industry and was the subject of objective guidance material, including the video.
3. In April 2016, SafeWork NSW published the "Managing the Risk of Falls at Workplaces" Code of Practice (the Falls Code), which is an approved code of practice under s 274 of the Act. The purpose of the Falls Code is to provide practical guidance to persons conducting a business or undertaking on how to manage health and safety risks arising from falls. The Falls Code applies to all workplaces covered by the Act and Regulations where there is a risk of a fall by a person from one level to another that is reasonably likely to cause injury.
4. The introductory paragraph of the Falls Code recognises that "[f]alls are a major cause of death and serious injury in Australian workplaces" and that "[f]all hazards are found in many workplaces where work is carried out at height, for example stacking shelves, working on a roof, unloading a large truck or accessing silos." A risk of a fall is defined as a circumstance that exposes a worker to a risk of a fall and includes where a worker is on plant that is at an elevated level.
5. In the course of a discussion of what is required to manage the risk of falls, the Falls Code reiterates the obligation of duty holders under s 46 of the Act to consult, cooperate and coordinate activities with other duty holders in order to eliminate or otherwise minimise all risks, so far as is reasonably practicable. The Falls Code gives a specific example that owners of transport companies with large trucks should consult the businesses having the goods delivered about how the risk of falls will be controlled during loading and unloading. According to the Falls Code, this may include checking whether suitable equipment is available at each site so that workers do not have to climb on top of loads on the truck and be at risk of falling.

The defendant's knowledge of how to eliminate or minimise the risk

1. The defendant had identified that the risk of a fall from height could be controlled by prohibiting workers from accessing the backs of trucks or trailers during the loading or unloading practice.
2. The defendant adopted an engineering control in the practice of pre-slinging loads so as to make it unnecessary for workers to access the backs of trucks or trailers to unload the piles.
3. The verbal direction and the introduction of the practice of pre-slinging loads had been implemented by the defendant without any inconvenience to its loading or unloading activities.
4. The Falls Code set out the control measures that could be adopted according to the hierarchy of controls. Working on the ground, or otherwise on a solid construction, are stated to be the two highest order controls. In relation to working on the ground, the Falls Code expressly states that "[e]liminating the need to work at height is the most effective way of protecting workers from the risk of falls."
5. Sections 4-6 of the Falls Code deals with Level (3) of the hierarchy of control. The three control measures are to be implemented in the order that they are discussed and if it is reasonably practicable to do so.
6. A fall prevention device is any equipment that is designed to prevent a fall for temporary work at heights, and once in place does not require any further adjustment by workers using the device. These include temporary work platforms (such as scaffolds, elevating work platforms, mast climbers, and workboxes), perimeter guard rails, and safety mesh. The Falls Code discusses the nature, attendant safety requirements and considerations, and associated benefits of each of these fall prevention devices, as well as the obligations of PCBUs to workers in relation to information, instruction and training for each of these devices.
7. A work positioning system involves the use of equipment that enables a person to work supported in a harness in tension in such a way that a fall is prevented. The Falls Code discusses industrial rope access systems and restraint technique as two examples of work positioning systems, and considers the circumstances in which each of these systems may be appropriate, the need for users and supervisors to undergo competency training, and the safety requirements and considerations accompanying each system.
8. Fall-arrest systems are intended to safely stop a worker falling an uncontrolled distance and reduce the impact of the fall. These systems must only be used if it is not reasonably practicable to use higher level controls or if higher level controls might not be fully effective in preventing a fall on their own. Examples of fall-arrest systems include catch platforms, industrial safety nets, individual fall-arrest systems (possibly consisting of components such as anchorages, lifelines, inertia reels, rope grabs and harnesses), and anchorage lines or rails. The Falls Code provides a detailed discussion of the nature of each of these fall-arrest systems and the safety requirements and considerations and any potential hazards that accompany each system.
9. Section 8 of the Falls Code deals with administrative controls. The Falls Code states that administrative controls may be used to support other control measures and may include "no go" areas, permit systems, the sequencing of work and safe work procedures. The Falls Code recognises that "[a]n administrative control may be as simple as a safe work procedure that describes the steps involved in safely undertaking a task" and "may also include any particular training, instruction and the level of supervision required." The Falls Code is clear that using administrative controls exclusively to minimise the risk of falls is only appropriate when it is not reasonably practicable to use a higher order control.

The particulars of breach

1. I will now turn to each of the pleaded particulars set out in [17] of the Summons. (a) Providing and implementing a safe work method or safe work procedure for the loading and/or unloading of materials, such as packs of piles, from heavy combination vehicles, such as Mr Edwards' heavy combination vehicle, including the following steps and/or requirements: (i) access to loads on the back of trucks and/or trailers must be obtained from the ground; and/or (ii) preparation of materials for the loading and/or unloading of materials including the rigging of loads, must be performed from the ground; and/or (iii) where access to the backs of trucks and/or trailers and/or onto loads, including the rigging of loads, is required in preparing for and/or during the loading and/or unloading of materials, appropriate fall prevention must be in place before access is obtained; and/or (iv) where work in preparation for and/or in the course of loading and/or unloading must be performed at height, appropriate fall prevention must be in place to address the risk of a fall. For the purposes of fall prevention, appropriate fall protection may include a purpose built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or scaffolding.
2. The defendant had in force a number of SWMSs and SWPs relating to the tasks regularly undertaken by its workers in the yard and on site. The importance of having written safety procedures in force was recognised in the IMS.
3. The requirements in subparagraphs (i) and (ii) of particular (a) encapsulated the verbal direction and the practice of pre-slinging loads.
4. The Pile Driving SWMS referred to the activity of unloading plant and materials at site but did not contain any reference to the verbal direction or the practice of pre-slinging the load. Similarly, the Loading and Unloading Trucks SWMS did not contain any reference to the verbal direction or the practice of pre-slinging the load. This was also the case for the other documents referred to at [20] and [24] above.
5. The addition of sub-paragraphs (i) and (ii) to the Pile Driving SWMS or the Loading and Unloading Trucks SWMS was a simple measure that could have been undertaken prior to the incident. The ease with which those matters were incorporated in the Pile Driving SWMS is demonstrated by what occurred on the afternoon of the incident. Had these measures been included in the Pile Driving SWMS and the workers on site required to sign that SWMS before commencing work, the prohibition against accessing the back of the truck would have been clearly stated and acknowledged by the workers as the way in which the work was to be carried out. In this way the defendant would have taken a reasonably practicable step to convey the verbal direction, which it accepted was necessary to control the risk posed by a fall from height from the back of a truck.
6. Further, Mr Brown's evidence was that part of his role as the defendant's supervisor at the site was to enforce the control measures contained in the Pile Driving SWMS. By contrast, he did not step in to enforce the verbal direction when he saw Mr Edwards climb onto the load. For this additional reason, I am satisfied that the inclusion of subparagraphs (i) and (ii) of particular (a) into a safe work method or safe work procedure, such as the Pile Driving SWMS, would have had a demonstrable impact on safety.
7. The inclusion of sub-paragraphs (i) and (ii) in a SWMS that had to be signed onto was a way of ensuring that the requirements were systematically communicated to the contract drivers.
8. Sub-paragraphs (iii) and (iv) of particular (a) and the description of fall protection measures in the pleading were adopted by the defendant in the relevant safety documents after the incident. The defendant contended that those measures were not reasonably practicable to implement at sites such as the site where the incident occurred.
9. Whilst I accept that the fall protection measures set out were not reasonably practicable to be implemented at the site, they were only to be contemplated if access to the backs of trucks or trailers during the process of loading or unloading was "required". The unloading of plant and materials being done on site on the day of the incident was typical of the tasks required to be undertaken as a step in preparation for the pile driving work. The piles were capable of being loaded onto trucks and trailers in a way that obviated the need for a person to climb onto the load. The bundles of piles were loaded in that way on the day of the incident. Accordingly, the work could have been done from the ground and climbing onto the load was not required. It follows that the fall protection measures specified did not need to be considered or implemented. Another way of looking at it is that if the fall protection measures were not reasonably practicable then it would result in the workers formulating a method to do the work from the ground.
10. The defendant chose to adopt the matters specified in sub-paragraphs (iii) and (iv) of particular (a) and the description of fall protection measures in its safety documents following the incident. I infer that it was necessary to do so in contemplation of other work that it undertook or to cover off on the possibility that in a particular loading or unloading situation access to the back of a truck or trailer might be "required".
11. The amendment of the defendant's existing safety documents to incorporate the matters referred to in particular (a) was a simple, inexpensive step that could have been undertaken prior to the incident.
12. I am satisfied that the cost of devising and implementing a safe work method or safe work procedure in accordance with particular (a) was not grossly disproportionate to the risk.
13. I am satisfied beyond reasonable doubt that the provision and implementation of a safe work method or safe work procedure including the requirements in sub-paragraphs (i)-(iv) of particular (a) was a reasonably practicable step that the defendant should have taken prior to the incident. (b) Ensuring, as far as is reasonably practicable, that where its workers are engaged in the loading/unloading of materials from vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, those workers were adequately instructed and/or trained in a safe work method or procedure for the unloading of such materials, which set out the step by step requirements to be followed in preparation for and during the loading and/or unloading of materials.
14. Particular (b) alleges that the defendant should have trained its workers on the content of a safe work method or safe work procedure for the loading or unloading of materials. This required the workers to have been trained on the amended safety documents that were updated after the incident.
15. The evidence established that the defendant's employees were given the verbal direction and were required to pre-sling loads. The evidence also established that those procedures were being followed, in that on the day of the incident the first bundle of piles had been pre-slung and Mr Williams hooked it up to the excavator from the ground.
16. However, I am satisfied that the training was inadequate in two major respects. First, it did not convey to Mr Brown that climbing onto a pack of piles was unsafe. Mr Brown's evidence was that he thought it was safe, which it clearly was not, both prospectively and by reference to what happened in the incident. Second, the training did not cause Mr Brown to stop the work and enforce the rules.
17. I am not satisfied on the evidence that the contract drivers, such as Mr Edwards, had been systematically trained on the verbal direction or the practice of pre-slinging the load. For the reasons already given, I do not accept that Mr Edwards was told about the verbal direction or the practice of pre-slinging the load. The defendant admitted that it did not provide any "regular" training to Mr Edwards.
18. I am also not satisfied on the evidence that Mr Edwards was trained on the content of the Pile Driving SWMS that required him to stay clear of the excavator arm and the load during the unloading process, set out in Step 7.
19. After the incident, the defendant provided training to its employees and to the contract drivers by showing them the video and by reference to the Safety Alert. I note that the Safety Alert was directly referrable to the incident and to have required that type of document to have been provided to the workers requires perfect hindsight, and accordingly it should be put to one side.
20. The training given after the incident at the toolbox talks was systematic and documented. The video provided a visual demonstration of concepts that may not have been as easily understood from the reading of relevant safety documents.
21. A few weeks later, the defendant introduced the Driver Induction Training Package that conveyed the information required by particular (a). It included an assessment of competency on the training to demonstrate that the training had been delivered and understood by the drivers and could be relied on by the defendant to prove that.
22. The defendant's workers were also trained on the amendments to the SWMSs when they were introduced. I am satisfied that the defendant was not significantly inconvenienced by providing this training on the amended written safety procedures.
23. I am satisfied that the cost of the necessary training was not grossly disproportionate to the risk.
24. I am satisfied beyond reasonable doubt that the defendant should have trained its workers on the content of the safe work method or safe work procedure referred to in particular (a) and that such training was a reasonably practicable step that it failed to take.

(c) Providing adequate supervision for its workers engaged in the unloading of materials from heavy combination vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, so as to ensure as far as is reasonably practicable that its workers were not exposed to a risk of falling from height whilst engaged in loading and/or unloading of materials from vehicles.

1. Whether there has been a failure to provide adequate supervision is a question of fact in each case. The circumstances to be considered will ordinarily include, at least: 1. the nature of the work the worker is required to undertake; 2. the extent of the worker's training and prior experience in the performance of such work; 3. the identity of co-workers with whom the worker will be performing the work and the extent of the training and experience of those co-workers: Vibro-Pile at [149].
2. Mr Brown accepted in his evidence that he was the defendant's site supervisor for the work at the site on the day of the incident. He understood his role was to make sure that the job was done right and that the job was done safely. He accepted that his job was to make sure that the truck was unloaded safely and that included the enforcement of any safety controls identified in the relevant SWMS.
3. Mr Brown was in a position both as the defendant's supervisor at the site and as the operator of the excavator to stop the work and enforce the verbal direction when he saw Mr Edwards and/or Mr Williams access the back of the truck, but he failed to do so. Mr Brown also failed to stop the work when Mr Edwards was in close proximity to the load in contravention of the entry at Step 7 the Pile Driving SWMS. Mr Brown's conduct was the conduct of the defendant: s 244 of the Act.
4. Mr Brown's inadequate supervision permitted both Mr Williams and Mr Edwards to access the trailer during the unloading process.
5. The defendant submitted that it was not reasonably practicable to supervise Mr Edwards because there were times when he was expected to deliver plant and materials to site without assistance. However, that was not the factual scenario that presented itself on the day of the incident. Mr Brown was present on site, acting as the defendant's supervisor. He accepted that he was in charge of the unloading activity on behalf of the defendant. Mr Williams accepted that he was required to follow the directions of Mr Brown. Mr Brown had been given the verbal direction and for the reasons given was in the position as the supervisor of the work and as the operator of the excavator to stop the work and ask Mr Edwards to get down from the load and Mr Williams to get down from the trailer.
6. I am satisfied that there was no additional cost to the defendant in Mr Brown providing adequate supervision on the day of the incident and accordingly the cost was not grossly disproportionate to the risk.
7. I am satisfied beyond reasonable doubt that the defendant failed to provide adequate supervision of the unloading work at the site.

(d) Consulting, co-operating and co-ordinating with other duty holders at the site, in particular Mr Edwards, to ensure that the above measures and processes were implemented and enforced during loading and/or unloading of materials from heavy combination vehicles.

1. There are a number of problems in understanding the reasonably practicable steps that the defendant ought to have taken in the expression of particular (d).
2. The NSW WorkCover Code of Practice, Work Health and Safety Consultation, Co-Operation and Co-Ordination, December 2011 (the Consultation Code), sets out practices intended to meet the requirements for consultation on work health and safety matters and to achieve the standards required under the Act.
3. The objective of consultation with other duty holders is that there is a shared understanding of what the risks are, which workers are affected, and how the risks will be controlled. This allows duty holders to work together to plan and manage health and safety.
4. The Consultation Code provides that the consultation between duty holders should include: 1. what each worker will be doing and what plant may be used; 2. who has control or influence over the work or environment where the work is being performed; 3. identifying the workers that will be involved in the activity; 4. what information may be needed by another duty holder for health and safety purposes; 5. what is known about the risks associated with the activity; and 6. what will be provided for health and safety, particularly controlling risks.
5. It is not easy to understand what is required by the failure to ensure that the "above processes and measures were implemented and enforced". If particular (d) required only consultation on the content of the SWMS required by particular (a), I would have been satisfied beyond reasonable doubt that there should have been such consultation.
6. For the reasons already given, I am not satisfied that there was any discussion between the defendant and Mr Edwards about the prohibition that was the subject of the verbal direction.
7. I am not satisfied that Mr Edwards knew about the content of the Pile Driving SWMS or any other safety document of the defendant. At the time of the incident, Mr Brown did not know the content of the EFH SWMS or that the IMS required an assessment of the EFH SWMS to determine if it was suitable, and if not, whether one of the defendant's SWMSs should apply. The defendant impliedly admitted in response to Question 4 of Notice 7-337873 that this was part of Mr Brown's responsibility.
8. On the evidence, I am not satisfied that the defendant considered the contents of the EFH SWMS or communicated to Mr Edwards that his work would be governed by the Pile Driving SWMS.
9. Neither the Pile Driving SWMS nor the EFH SWMS contained the prohibition the subject of the verbal direction. In other words, those SWMSs did not prove that there had been consultation between the defendant and Mr Edwards that identified the risk of a fall from the trailer during unloading of plant or materials at a site or how the risk would be controlled, for example by doing the work from the ground.
10. However, I do not understand what was required for the satisfaction of particular (d) in so far as it relates to training or the provision of adequate supervision. In this instance the requirements were not pleaded as alternatives. The prosecutor's written closing submissions at [93]-[94] on this topic do not assist me to understand its case on particular (d).
11. Overall, I am left with a reasonable doubt and I am not satisfied to the requisite standard that particular (d) has been established.

Issue 3 - Is particular (d) in [17] of the Summons bad at law and liable to be struck out?

1. The defendant put forward Issue 3 as a sub-issue relating to particular (d). On the basis that the prosecutor has not established particular (d) to the requisite standard, Issue 3 can be disposed of quickly.
2. The defendant contended that particular (d) was a restatement of the statutory obligation provided for by s 46 of the Act, and that failure to comply with that obligation was a standalone offence, punishable by a smaller maximum fine than that provided for by s 32 of the Act (only $100,000 for corporations). The defendant contended that s 46 of the Act is not a health and safety duty within Divisions 2-4 of Part 2 of the Act, to which s 32 applies. In the defendant's submission, it would be unfair to allow the prosecutor to rely on the statutory obligation as a reasonably practicable step where it would expose the defendant to a maximum penalty far in excess of the maximum penalty provided for in s 46. The defendant's argument was based on the proposition that particular (d) could be established by a mere failure to consult. This was reflected in the further argument that particular (d) offended the principles in Kirk because it did no more than restate the words of the statute and failed to identify the particular steps that the defendant should have taken.
3. I reject the defendant's submission that particular (d) is bad at law for the following reasons.
4. First, the defendant's argument fails to grapple with what is alleged by particular (d). The pleaded measure required the defendant to consult with Mr Edwards on particular topics, which in the end were not pleaded with sufficient specificity.
5. Second, I can see no reason preventing a prosecutor pleading that a breach of the s 19(1) duty could be established by failing to take the reasonably practicable step of consulting on a topic or topics provided for in the Act or the Consultation Code, in an appropriate case.

Conclusion on Issue 2

1. I am satisfied beyond reasonable doubt that the prosecution has established Element 3 of the offence.

Conclusion and Orders

1. The prosecution has proved all of the elements of the offence beyond reasonable doubt.
2. I find the defendant guilty.

Endnotes

1. See [28] below.
2. See [28] below.
3. Underlining added.

Amendments 10 November 2021 - File Number corrected 05 April 2022 - paragraphs [97]-[213] - corrected paragraph numbering DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2022