Solicitors: Department of Customer Service (for the Prosecutor)
Ms Carnell, Norton Rose Fulbright (for the Defendant)
File Number(s): 2018/00046892
[2]
Judgment
During the course of the trial which commenced on 3 May 2021, an issue arose as to the admissibility of certain evidence. A voir dire was heard to determine the issue.
[3]
BACKGROUND
SafeWork NSW issued a Summons filed on 26 March 2018 alleging that Southern Meats Pty Ltd ('the defendant'), being a person conducting a business or undertaking, who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('the WH&S Act') to ensure so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed Mr Alan Doocey ('Mr Doocey') to a risk of death or serious injury contrary to s 32 of the WH&S Act.
Mr Doocey was injured when he was run over by a forklift in the load out area of the defendant's premises.
The defendant entered a plea of not guilty. The trial commenced before me on 3 May 2021 and the evidence of a number of witnesses was taken. The issue of admissibility of certain evidence arose and a voir dire occurred to determine that issue.
The particulars of the defendant's failure to comply with the duty under s 19(1) of the WH&S Act are found at paragraph 9 of Annexure A to the Summons.
On the voir dire, the prosecutor tendered a folder of documents which became Exhibit VD1 on the application, Safety Guideline 21: Traffic Management; Traffic Management Plan, which became Exhibit VD2 and a WorkCover Authority (NSW) Bulletin 08.08.12: Working with Forklifts, which became Exhibit VD3.
[4]
ADMISSABILITY OF EVIDENCE
The defendant objects to the admission of all evidence concerning changes to its systems of work after the incident on 12 July 2016. The basis of the objection is that the evidence is not relevant. The touchstone for admissibility is relevance to a fact in issue in the proceedings.
That test is set out in s 55(1) of the Evidence Act 1995 (NSW) ('the Evidence Act') which provides:
'(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.'
The facts in issue, to which the evidence of post-incident change is relevant, is the issue of 'reasonable practicability' with respect to one or more of the steps which the prosecutor alleges the defendant could have taken to eliminate, and where eliminating the risk may not be possible, minimising the risk to which workers were exposed: s 18 of the WH&S Act: SafeWork v McConnell Dowell Constructors (Aust) Pty Limited (No. 3) [2021] NSWDC 105 (Russell SC DCJ).
To determine whether a particular measure was 'reasonably practicable' it must be on the basis of what was known by the duty holder at the relevant time anterior to the accident.
In Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 Harper J said of an equivalent Victorian provision at 123-124:
'The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The Courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them; not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.'
The prosecutor submits that evidence of the steps taken after the event is not evidence in itself, that it was reasonably practicable to take those steps before the subject incident. In support of that proposition, my attention is drawn to the following passage from Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [38] (French CJ, Gummow, Hayne and Crennan JJ):
'… demonstration that some step could have been taken does not, without more, demonstrate that to fail to take that step was a breach of the obligation so far as was reasonably practicable to provide and maintain a safe working environment. The circumstances to which the majority pointed did not require the conclusion that not taking the identified steps was a breach of Baiada's duty.' (emphasis in original)
The prosecutor submits that nonetheless, evidence of the steps taken after the event are directly relevant to the question of practicability: Davis v Langdon (1911) 115R (NSW) 149. Whilst the ultimate question to be determined is whether any one or more of the steps particularised were 'reasonably practicable, the evidence which is the subject of this application goes legitimately to the proof of practicability - that is whether the defendant 'could' have taken any one or more of the steps nominated by the prosecutor.
In Poletti Corporation Pty Ltd v SafeWork NSW (2020) 300 IR 167 MacFarlan JA (Fullerton and Button JJ agreeing) stated as follows:
'35. The trial judge's reasoning in respect of Particular 10(a) was however not erroneous. His Honour recognised, and very clearly stated, that the ultimate question to be determined was whether this particularised step was one that was "reasonably practicable" for Poletti to take. It was permissible, and indeed virtually inevitable, that in reasoning towards that conclusion, his Honour would consider whether Poletti "could" have taken the step. Clearly, a step that it is not possible to take cannot be a "reasonably practicable" step. On the other hand, one cannot reason, and his Honour did not reason, that because a step was possible it must have been reasonably practicable. His Honour separately and distinctly referred to both the possibility and reasonable practicability of the step (see [16]-[18] above).'
His Honour further observed:
'36. The correctness of these observations is confirmed by reference to the definition in s 18 of the WHS Act of what is "reasonably practicable" (see [6] above). That section recognises that a variety of different considerations will be relevant to a conclusion as to whether a measure is "reasonably practicable". Most importantly for present purposes, paragraph (d) of that section expressly states that "the availability and suitability of ways to eliminate or minimise the risk" are relevant in that context. The word "availability" embraces the concept of "possibility" to which Poletti asserts the trial judge should not have had regard.
37. Likewise, the decision in Baiada Poultry does not suggest that the possibility of a step being taken is not relevant to its reasonable practicability. That case simply emphasised that the fact that "some step could have been taken does not, without more, demonstrate that to fail to take that step was a breach of the obligation so far as was reasonably practicable to provide and maintain a safe working environment" ([38] quoted at [29] above). The primary judge was clearly aware of the import of Baiada Poultry, as he expressly referred to it and the principles to be drawn from it in his judgment when summarising the relevant law (at [83]).'
At [38] his Honour dealt with the issue of risk assessment, saying:
'38. Poletti's further submission that the primary judge neglected to consider whether Poletti's duty "obliged [it] to conduct and document a risk assessment" is also flawed (see [34] above). The primary judge did consider this. By concluding that there was a relevant risk and that the undertaking of a risk assessment by Poletti was a reasonably practicable means of eliminating or reducing that risk, his Honour necessarily found that Poletti was obliged by the legislation to take that step (see s 17 of the WHS Act). Section 19(2) had the effect that it was Poletti's duty to take a step in certain circumstances. His Honour found that these circumstances existed and that Poletti was therefore obliged to take the step.'
Further, the prosecutor submits that the ultimate question is whether any one or more of the steps particularised were 'reasonably practicable', the evidence which is the subject of the application goes legitimately to proof of practicability - that is, whether the defendant 'could' have taken any one or more of the steps nominated by the prosecutor in paragraph 9 of Annexure A to the Summons.
The defendant objects to the admission of all evidence concerning changes to its systems of work after the incident on the basis that it is not relevant, and that it ought be excluded pursuant to s 137 of the Evidence Act. In support of that objection, the defendant points to the following:
The question of whether a particular measure was 'reasonably practicable' ought be determined on the basis of what was known by the duty holder at the relevant time, that is before the incident occurred. The issue is to be determined by looking at the facts of a particular case prospectively and not with the benefit of hindsight after an incident: Silvak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [53] (Gaudron J).
To establish that evidence is relevant, it is necessary to point to a process of reasoning by which the information in question could rationally affect the assessment of the probability of the existence of a fact in issue: Washer v Western Australia (2007) 234 CLR 492 at [5] (Gleeson CJ, Heydon and Crennan JJ).
Evidence of modifications to a system of work post-incident are not capable of directly or indirectly affecting a fact in issue in the proceedings. An issue in these proceedings is whether the measures particularised in the Amended Summons were 'reasonably practicable' within the meaning of the WH&S Act. The evidence does not have a logical connection to a fact in issue in these proceedings as the Court must assess what was 'reasonably practicable' prospectively and not with the benefit of hindsight or by reference to post-incident system changes.
Section 18 of the WH&S Act defines what is 'reasonably practicable' in relation to a duty to ensure health and safety. The evidence sought to be admitted is not relevant to any of the mandatory considerations set out in the definition of 'reasonably practicable' in s 18(a)-(e) of the WH&S Act. Nor can the evidence be a "relevant matter" that ought to be "weighed up" when determining what a duty holder was reasonably able to have done to ensure the health and safety prior to an incident.
The post-incident documents in this case were created by the defendant in response to the Improvement Notices issued by the prosecutor. Given the documents were created under compulsion and to comply with statutory notices, they cannot be evidence of what was "reasonably practicable" prior to the incident.
I accept that for the evidence of post-incident changes to be admissible, it must have a logical connection to a fact in issue. The relevant fact in issue is whether the defendant, up until the incident, had the availability and suitability of ways to eliminate, and if not eliminate minimise the risk.
Given that the ultimate question to be determined is whether the particularised steps were ones that it would have been reasonably practical for the defendant to take, it is inevitable that I have to consider whether the defendant could have taken that step. There is a distinction between the possibility of a step being taken, and the reasonable practicably of such a step being taken.
This involves a mandatory consideration of the definition 'reasonably practicable' under s 18 of the WH&S Act, as the 'relevant matters to be weighed up' are used to determine what the duty holder could have reasonably done. However, if there is some step, or steps that could have been taken and the defendant did not do so, without more evidence, that does not demonstrate the failure to take that step was a breach of the obligation.
I accept that evidence of steps taken after the incident is directly relevant to the question of reasonable practicability, and thus the evidence is as such admissible.
[5]
UNFAIR PREJUDICE
Section 137 of the Evidence Act provides as follows:
'Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.'
Having heard the submissions of the parties, I accept that the risk of unfair prejudice is the risk of misuse of the evidence by the tribunal of fact: Vitale v The Queen [2020] VSCA 237 at [89] (Priest JA, Beach and Forrest JJA agreeing). Whilst the defendant submits that the probative value must be extremely low, I believe that I can give myself an appropriate direction as to the weight that I should place on that evidence.
I am not satisfied that the evidence, which I have determined to be admissible under s 55 of the Evidence Act, should not be allowed into evidence, the question of the weight that I may place on it is a matter for further submissions in the course of the resumed trial. That simple expedient can adequately deal with the risk of unfair prejudice to the defendant occasioned by allowing the material into evidence.
[6]
DECISION
I find that evidence as to steps taken by the defendant after the incident is admissible and I allow the prosecutor to adduce such evidence.
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Decision last updated: 21 May 2021