WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited

Evidence Act 1995 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health, Safety and Welfare Act 1986 (SA)

Adler and anor v Australian Securities and Investments Commission (2003) 46 ACSR 504 Carrington Slipways v Callaghan (1985) 11 IR 467 Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 Genner Constructions Pty Limited v Workcover Authority of New South Wales [2001] 110 IR 57 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Morrison v Powercoal Pty Limited and anor (2004) 137 IR 253 Powercoal Pty Limited v Industrial Relations Commission (New South Wales) (2005) 145 IR 327 CASES CITED: Riley v Australian Grader Hire Pty Limited (2001) NSWIRComm 31 Shannon v Comalco Aluminium Limited (1986) 19 IR 358 Slivak v Luigi (Aust) Pty Limited (2001) 205 CLR 304 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354 WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 WorkCover Authority of New South Wales v Fletcher Constructions Australia Pty Limited (2002) 123 IR 121 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 WorkCover Authority of New South Wales v Maine Lighting Pty Limited (1995) 100 IR 248

HEARING DATES: 6/2/2006, 7/2/2006, 8/2/2006, 9/2/2006, 10/2/2006, 13/2/2006, 14/2/2006, 15/2/2006, 16/2/2006, 17/2/2006, 20/2/2006, 21/2/2006, 22/2/2006, 23/2/2006, 24/2/2006, 10/4/2006, 11/4/2006, 12/4/2006, 21/4/2006, 26/6/2006, 27/6/2006, 7/7/2006, 22/11/2006, 29/1/2007, 30/1/2007, 31/1/2007 and 1/2/2007.

PROSECUTION: Mr D Buchanan SC Mr D Jordan of counsel

SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr L King SC Mr R Royal of counsel

SOLICITORS: Leitch Hasson & Dent

JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM : Staunton J DATE: 8/3/2007

Matter No IRC 3335 of 2004 WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited Prosecution arising under s8(1) of the Occupational Health and Safety Act 2000

1 The defendant has pleaded not guilty to an offence charged pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 The relevant facts will be fully canvassed in due course. Suffice to note at this point that the alleged offence has its genesis in an accident that occurred on 8 December 2003. On that day, while operating a combine harvester machine, Mr Rodney Langfield was required to enter the grain bin component of the machine in order to clean it out. When he did, the horizontal rotating augers on the floor of the grain bin were running. While Mr Langfield was in the grain bin, he slipped and his right foot came into contact with the rotating horizontal augers. 3 As a consequence of that accident, Mr Langfield suffered the traumatic amputation of his right foot and serious damage to his right lower leg necessitating a below knee amputation. 4 At the time he was operating the combine harvester, Mr Langfield was employed by the defendant Raynjune Pty Limited (Raynjune). 5 Following Mr Langfield's accident and investigations by WorkCover, the defendant was charged with the offence now before the Court. Relevant principles

6 The legislative provisions grounding the offence charged against the defendant have long been established as ones imposing an absolute liability on an employer, subject to the statutory defences available: See Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 449 reaffirming the conclusion of Watson J in Carrington Slipways v Callaghan (1985) 11 IR 467 at 470 where his Honour said: I am satisfied that the legislative intention contained in the new Occupational Health and Safety Act 1983, is quite clear. Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the Industrial Safety, Health and Welfare Act 1972 (SA) , where in reg 4 the phraseology used is `shall take all reasonable precautions to ensure' (see Smith v Elliott Bros Pty Ltd (1980) 26 SASR 138) ...

In their context and purpose, there would appear to be no reason to make any implication that the words `to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. 7 The absolute nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the identified failure beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated in relation to s15(1) of the 1983 Act: Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v Broken Hill Proprietary Co Ltd (1988) (unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. 8 As the above extract emphasises, not only is the prosecution put to proof of the offence and all its elements but it must establish a causal connection between the conduct of the defendant giving rise to the breach and the alleged risk to safety arising. 9 In relation to the offence alleged with respect to Raynjune under s 8(1) of the Act, the elements of the offence are: (i) the defendant was an employer at the time of the alleged breach;

(ii) there was a risk to employees' health or safety; (iii) there was a causal nexus between the defendant's breach and the risk to employees' safety; (iv) the risk was to employees at work. 10 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecution to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt. 11 What is required is a risk to safety, not an actual incident causing an injury: See Drake Personnel Limited t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 at 452 where it is stated: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

12 The Occupational Health and Safety Act 1983 does not define what is meant by risk. Section 7 of the Occupational Health and Safety Act 2000 (the 2000 Act) provides some assistance in that, in relation to that Act, risks arising out of the activities of persons at work includes risks attributable to: (a) the manner of conducting an undertaking, or (b) the plant or substances used for the purposes of an undertaking, or (c) the condition of premises (or any part of premises) used for the purposes of an undertaking.

13 The above provisions would seem to do little except state what authorities of this Court have long established, that is, for risk to be established, it must arise out of or be attributable to the overall conduct, including plant and equipment, of the employer's undertaking. Relevant background to these proceedings

14 Case Corporation (USA) manufactured the subject combine harvester identified in these proceedings. It shipped it to CNH Australia Pty Limited. CNH Australia distributes such machines on a wholesale basis to combine harvester dealers or distributors around Australia. The dealers and distributors then sell the combine harvesters to farmers who use them for harvesting various crops. 15 In or about November 1999, CNH Australia Pty Limited supplied a combine harvester machine specifically identified as a CASE IH2388 Axial Flow Combine to the Farm Implement Tractor and Motor Company Pty Limited. In November 1999, that company, in turn, sold the machine to a Mr and Mrs Whitty. The Whitty's subsequently sold the machine in or about early November 2001 to Davibray Pty Limited. On or about 19 November 2001, Davibray, in turn, sold the machine to the defendant Raynjune Pty Limited (Raynjune). 16 Davibray trades as Carruthers Machinery Co and is based in Cowra. Once Davibray acquired the machine from the Whitty's, it undertook a mechanical overhaul of it before selling it to Raynjune. In delivering the machine to Raynjune, the manufacturer's Operator's Manual was provided. 17 Raynjune is the corporate entity under which Mr Noel McKay, his wife Dianne McKay and Mr McKay's parents operate their farming properties 'Glencoe' and 'Greenslopes' outside Canowindra and Cowra in New South Wales. The shareholders of Raynjune are the members of the McKay family. Mr Noel McKay is a director of Raynjune. The machine purchased by Raynjune was for use on their properties. 18 The offence alleged with respect to Raynjune arises from it's operation of the machine by its employee at it's place of work. At the time of his accident, Mr Langfield was employed by Raynjune and was operating the machine at the property 'Greenslopes', owned and operated by Raynjune.

19 When these proceedings first commenced before me, there were three defendants. All were facing charges arising from the accident to Mr Langfield on 8 December 2003. In addition to Raynjune, the other defendants were CNH Australia Pty Limited (formerly Case Corporation Pty Limited) and Davibray Pty Limited as Trustee for B & S Carruthers Trust trading as Carruthers Machinery Co. As earlier indicated, both of those parties had a role to play in the ultimate supply of the combine harvester to Raynjune. CNH imported and on-sold the machine in or about November 1999. Davibray accepted the machine as a trade-in on a sale in or about November 2001 and, later in November 2001, sold the machine to Raynjune. 20 CNH and Davibray were both charged with 'supply' offences under the relevant sections of the Occupational Health and Safety Act then prevailing. In relation to CNH, it was charged with an offence arising under s 18(1) of the Occupational Health and Safety Act 1983 whereas Davibray's alleged offence, in identical terms, arose under the counterpart provisions in s 11(1) of the Occupational Health and Safety Act 2000. 21 In relation to all three defendants, the prosecutor alleged each of the defendants had breached the respective Act with a specific failure particularised going to unsafe aspects in the operation of the machine, in particular that of access to the unguarded augers in the grain bin. In relation to CNH and Davibray, this was particularised as follows: Access was possible to the grain tank or bin of the machine whilst the augers were in operation. The augers were not guarded and were easily accessible enabling a person to become entangled or caught in the auger if the person entered the grain tank or bin.

The use of the machine in accordance with the operator's manual was inadequate to protect the user of the machine. 22 In relation to Raynjune, the offence charged particularised two failures. The one dealing with the alleged unsafe operation of the machine was particularised slightly differently to that with respect to CNH and Davibray but with similar effect as follows: Further, the defendant failed to ensure that plant, to wit one (1) CASE IH2388 Axial Flow Combine Harvester which was provided for use by employees (namely Langfield), at work was safe and without risk to health when properly used. The machine was not safe in that access was possible to dangerous moving parts of the machine whilst the machine was in operation or powered. The augers were not guarded so as to prevent employees such as Langfield coming into contact with them whilst they were in operation. 23 For the purposes of this aspect of the judgment, I will refer to the above particularised failure with respect to each of the three defendants as the unsafe plant particular. 24 In addition to the unsafe plant particular above, Raynjune's offence was further particularised with respect to an alleged unsafe system of work. I will come to that in due course. 25 Because of the issues raised by the prosecution surrounding the unsafe plant particular, a considerable amount of court time was taken up particularly involving expert witness evidence. By the time the prosecution closed it's case on 7 July 2006, the hearing involving all three defendants had occupied some 22 days of court time (including a site inspection of the combine harvester in question). The majority of that time was devoted to evidence relating to the alleged unsafe plant as particularised. 26 In July 2006, all three matters were set down for further hearing for a period of six weeks extending from December 2006 into March 2007. Again, the bulk of that time was anticipated to be expert witness evidence to be called by the defendants, particularly CNH, in relation to the alleged unsafe plant particular. 27 It would be fair to characterise Davibray and Raynjune as riding on the coat- tails of CNH in relation to expert evidence on the unsafe plant particular. 28 On 14 November 2006, counsel for the prosecutor sought leave to withdraw the charges against CNH and Davibray with no order as to costs. That application was not opposed by counsel for CNH and Davibray and, the Court being satisfied as to the implied power to grant such leave, did so. The prosecutor then formally withdrew the charges. 29 The basis on which such charges were withdrawn were expressed by counsel for the prosecutor as follows: In the matter against CNH Australia Pty Ltd, the defendant has agreed to design, test and, on an ongoing basis, install on Case IH 2388 Model combine harvesters in New South Wales a device which will cut off power to the unloading augers in the grain tank when a person pulls down the rear access ladder. Once activated, the device will need to be reset from the operator's position in the cabin.

The prosecutor is, with respect, of the view that the proposed program will be in the public interest and achieves the objects of the occupational health and safety legislation. In those circumstances, and having regard to the interest in not unnecessarily expending public funds on continuing legal proceedings, the prosecutor believes it is appropriate to discontinue proceedings against CNH Australia Pty Ltd and, accordingly, applies for leave to do so.

In the case against Davibray Pty Ltd, Davibray has agreed to cooperate in the project on which CNH Australia will embark. 30 Following the above proceedings, a similar application for leave to withdraw with respect to Raynjune was made on 22 November last. That application was made on the basis that any leave to withdraw must be unconditional with no order as to costs. 31 Counsel for Raynjune agreed as to the Court's implied power to grant leave to the prosecutor to withdraw but opposed unconditional leave being granted. If leave to withdraw was to be granted, counsel for Raynjune submitted that it should be on condition that the prosecutor pay Raynjune's costs thrown away to date. Such an application was opposed by the prosecutor. 32 After hearing brief submissions from both parties and in an ex tempore decision, I refused the prosecutor's application for unconditional leave to withdraw. Accordingly, the proceedings with respect to Raynjune were listed to continue. 33 In pressing ahead with the charge with respect to Raynjune, the prosecutor no longer relied on the particular of unsafe plant but proceeded only with respect to the particular as to an alleged unsafe system of work.

34 In addition to Inspector Simpson, those persons called for the prosecution were as follows: (i) Mr Brian Ritchie Carruthers A director and shareholder of Davibray Pty Limited. It was Davibray trading as Carruthers Machinery Co who sold the combine harvester to Mr McKay on behalf of Raynjune.

(ii) Mr Vernon Cogswell Mr Cogswell was employed by Davibray Pty Limited from 1999 as a service technician and mechanic and then as Service Manager from 2004. He was involved in the delivery of the combine harvester from Davibray to Raynjune.

(iii) Professor Stephen Frederick Johnston An expert witness for the prosecution. Professor Johnston is a consulting engineer, academic and adjunct Professor of Engineering in the Faculty of Engineering at the University of Technology, Sydney. I have already dealt with the admissibility of Professor Johnston's statements in my judgment WorkCover Authority of New South Wales (Inspector Simpson) v CNH Australia Pty Limited (formerly Case Corporation Pty Limited), Davibray Pty Limited as Trustee for B & S Carruthers Trust trading as Carruthers Machinery Co. and Raynjune Pty Limited [2006] NSWIRComm 220 given on 5 July 2006.

(iv) Mr Rodney Langfield Employed by Raynjune Pty Limited to work as a farmhand on the properties 'Glencoe' and 'Greenslopes' during the relevant period. It was Mr Langfield who was injured in the events giving rise to the offence now before the Court. (v) Mr Noel Douglas McKay A farmer by occupation and a director and shareholder of Raynjune Pty Limited, the corporate defendant in these proceedings. (vi) Geoffrey Ian Rendell Employed by CNH Australia Pty Limited as Product Manager during the relevant period. (vii) Inspector Stephen Swadling Senior Inspector with the WorkCover Authority of New South Wales. As well as Inspector Simpson, Inspector Swadling was involved in the investigation of the offence alleged in these proceedings. 35 On behalf of the defendant, evidence was adduced from Mr John Collins. 36 Mr Collins is a risk management consultant and the managing director of JNJ Collins and Associates Pty Limited which trades under the name of Risk Chase. The curriculum vitae attached to his report stated that Mr Collins has an M.Sc in Occupational Health and Safety from the University of Aston in Birmingham, United Kingdom and a B.Sc Hons 2.1 in Chemistry from Birmingham University. As well, Mr Collins described his professional background as follows: I have over 30 years in the safety industry initially with the UK Factory Inspectorate and the Health & Safety Executive where my responsibility included representing HM Government in cases of breaches of the Health & Safety at Work Act. In this period I had experience in (the) manufacturing and process industry in the north of England.

Subsequently I was employed by Shell Exploration & Production (UK) Ltd and Esso Australia Ltd where I managed loss prevention services in an offshore environment. In the UK I represented Shell in enquiries relating to onshore drilling and in Australia represented Esso on the Safety Committee of the Australian Institute of Petroleum (AIP).

I have been employed as a risk management consultant for the past 16 years assisting clients in the manufacturing, service and process industry implement Occupational Health & Safety Management Systems and meet compliance and 'best practice' issues. 37 No objection was taken by the prosecution to the tendering of Mr Collins' report on behalf of Raynjune. However, in not opposing the admission of his report, counsel for the prosecutor stated, in large part, the report was irrelevant and that a number of opinions expressed by Mr Collins were not supported by a factual basis or otherwise complied with the reception of opinion evidence as required by s 79 of the Evidence Act 1995 and the relevant authorities. Ultimately, it was submitted, the most expeditious way of dealing with the issues flagged was in cross examination and submissions as to ultimate weight the Court should give to the opinions expressed. I will deal with the issues arising from Mr Collins' report later in this judgment. The combine harvester

38 The machine is one model of combine harvester known as a Case IH 2388 Axial Flow combine harvester. As described by counsel for the prosecutor: A combine harvester is a grain harvesting machine which simultaneously performs three basic functions: reaping the crop plant concerned (with a header at the front of the machine), threshing it to separate seed and, using amongst other things a fan, cleaning it by winnowing out the chaff and debris. The chaff and other debris is then disposed of by the machine and the grain thus harvested is collected in a hopper or tank or bin which is part of the combine. The grain can then be fed out from the grain bin into another container, either fixed or mobile, and transported to a bulk handling facility. 39 The critical part of the machine, for the purposes of the offence charged, is the grain tank or bin. It's function is to hold the cleaned grain after it has been reaped, threshed and cleaned by the other component parts of the machine. The cleaned grain is fed into the grain bin via an infeed auger. 40 Once the above process is undertaken and the cleaned grain is in the grain bin, it is moved out of the grain bin by a series of discharge augers. 41 An auger is a metal shaft with metal flights in the shape of a large screw. In a machine such as the combine harvester, the auger acts as an Archimedes screw to lift or move grain from one position to another. 42 The infeed auger enters the grain bin at an angle pointing upwards and is positioned above the centre of the bin in order to facilitate the even flow of grain into the bin. The end metal flights of the infeed auger are exposed some distance beyond the shaft of the auger in order to direct the cleaned grain into the grain bin. There is a curved metal frame around the end flight of the infeed auger that acts as a partial guard of that auger. 43 Once the grain is emptied into the bin it is, via a process involving a number of discharge augers, moved out of the bin. It is ultimately deposited in what is described as a chaser bin located outside the machine. Once in the chaser bin, the grain is then generally transferred to a bulk handling facility for storage. 44 In order to move the grain out of the bin, four discharge augers operate. That is, two horizontal augers running parallel across the floor of the bin, one vertical auger and one auger in the unloader tube that empties the grain into the chaser bin. Standing at the rear of the machine and facing the front of it, the vertical auger is located in the bin between the horizontal augers and to the left hand side of the bin. 45 In order to assist in understanding the layout of the grain bin, a plan sketch, (not to scale) of a birds eye view of the bin is annexed to this judgment (annexure A). That sketch was done by Professor Johnston in the course of his evidence in these proceedings and, to the extent it reflects the layout of the grain bin, it is not disputed. 46 The role of the horizontal discharge augers on the floor of the bin is to move the grain across to the base of the vertical discharge auger. That auger then lifts the grain up and into the unloader tube. Inside the unloader tube is the fourth discharge auger that moves the grain to the end of the unloader tube which empties the grain into the chaser bin. 47 The vertical discharge auger and the unloader tube auger are both completely guarded. Both of the horizontal discharge augers are partially guarded with a longitudinal steel cover. The guards extend part of the way over the sides of the augers for most but not all of their length, are adjustable and can be removed altogether. 48 The particular design feature of the guards over the horizontal discharge augers is twofold. The first is the adjustable feature of the guards that allows them to be widened or narrowed, depending on the texture and/or size of the grain being harvested. That is, for example, wheat versus canola, barley or lupins. When wheat was being harvested on the day of Mr Langfield's accident, the gap between the guard and the floor of the bin was approximately 65mm in height. 49 Once grain enters the gap between the guard over the horizontal discharge augers and the floor of the bin, it quickly comes into contact with the metal auger flights which push it along the floor of the bin towards the vertical discharge auger. 50 When operating, the discharge augers of the machine rotate at approximately 580rpm (revolutions per minute) whereas the infeed auger, when operating, rotates at approximately 453rpm. 51 The second feature of the horizontal auger guards is that the guards do not completely cover the whole of the augers. There is a section of the horizontal augers, about 100mm in length, where they feed into the vertical discharge auger that is completely unguarded and the metal flights exposed. 52 The main reasons for the particular features of the horizontal auger guards being as described is not only to accommodate divergent grain size but also to stop the horizontal discharge augers being overloaded by the volume of grain on top of them as the grain bin fills. In short, their design is such as to enhance the functionality of the machine in question with particular regard to the speed and effectiveness of the loading and unloading of the grain bin. 53 Given the speed at which the metal flights on the augers rotate when operating, it is self evident that the partial or unguarded parts of the infeed and horizontal discharge augers represent real and foreseeable risks to safety in their operation. In other words, it is critical that steps are taken to ensure the safe operation of the machine so that individuals not come into contact with the augers when they are rotating. 54 That is not a conclusion that is in dispute. It is clearly recognised by the manufacturers of the machine with appropriate warning decals on the machine at different locations. As well, the manufacturer's Operator's Manual emphasises such dangers on more than one occasion. For example, in the Operator's Manual in relation to the unloading operation, the following entry appears: WARNING: DO NOT enter the grain tank when the combine is running. The rotating augers in the bottom of the grain tank can cause severe injury including possible loss of limbs.

55 There is also no dispute that, from time to time, it is necessary for a person to get inside the grain bin. Reasons for entering the grain bin are diverse. For example, in order to clean it at the end of the season or after a load of grain has been unloaded, for maintenance purposes or if the guards on the horizontal discharge augers have to be adjusted. In such circumstances, it is imperative, before entering the bin, the discharge augers and the infeed auger are not operating. 56 The operation of the infeed and discharge augers come from different power sources within the machine. In order for the infeed auger to operate, the feed drive has to be engaged. The feed drive operates the machine's functions of threshing, separating, cleaning and then feeding the grain into the grain bin. 57 As part of the machine's functions, an 'operator's presence interlock system' is in place that stops the feeder and header drive after seven seconds if the operator of the machine leaves the control seat in the cabin. 58 The discharge or unloader augers are driven by a chain drive that is separate to the feed drive. The unloader auger drive is operated by a switch on the control lever in the operator's cabin. On the same control lever is a switch that swings the unloader tube into the unloading position, perpendicular to the machine. The unloader tube is a long cylindrical shaped tube that, standing at the rear and facing the front of the machine, is located on the left hand side of the machine. When operating, it is swung outwards on a fulcrum and, when operating, is positioned above a bin or container and discharges the grain into it. 59 When it is not being used, the unloader tube is swung in parallel to the machine and rests in a saddle or bracket. 60 There is also an interlock switch connected to the unloader tube function. That switch operates so that the discharge augers cannot operate while the unloader tube is retracted in it's saddle parallel to the side of the harvester. In other words, the discharge augers can only operate when the unloader tube is extended away from the side of the harvester in the 'out' position. That point is stated twice in the Operator's Manual at pp 27 and 134. 61 The instrument panel in the operator's cabin relevant to the unloader tube makes provision for an unloader out indicator and an unloader on indicator. 62 The purpose and function of those indicator lights appears on p27 of the Operator's Manual as follows: 12. UNLOADER OUT INDICATOR - This indicator will illuminate when the unloader tube is swung out. It will remain illuminated until the unloader tube is returned to the saddle. 13. UNLOADER ON INDICATOR - This indicator will illuminate when the UNLOADER SWITCH is pressed and released to unload the grain tank. If the unloader tube is returned to the saddle while the grain tank is being unloaded, the auger will shut off but the UNLOADER ON INDICATOR will remain illuminated until the UNLOADER ON/OFF switch is cycled. The auger will not engage while the tube is in the saddle. If the unloader tube is swung outward from the saddle while the UNLOADER ON indicator is illuminated, the UNLOADER ON/OFF switch must be cycled once to shut off the UNLOADER ON indicator and once again to engage the auger. If the engine is shut off while the grain tank is being unloaded, the UNLOADER ON INDICATOR will be illuminated but the auger will not function when the engine is restarted. The UNLOADER ON/OFF switch must then be cycled once to shut off the UNLOADER ON indicator and once again to engage the auger.

Whenever the UNLOADER ON indicator is illuminated the lower tachometer display will alternately show "unld" and GROUND SPEED or ROTOR SPEED. 63 The control lever is situated to the right of the operator's seat. It is diagrammatically illustrated in the Operator's Manual at p36. That page is annexed to this judgment as annexure B. 64 As the Operator's Manual makes clear, the grain bin unloader drive switch (switch No 4 in the annexure B diagram) operates relatively simply and quickly. That is, as it states: To start the unloader, press the switch and then release it. To stop the unloader press the switch. 65 The use or otherwise by Mr Langfield of the grain bin unloader drive switch at the time of his accident became a relevant consideration in these proceedings and will be referred to later in this judgment. Facts and considerations relevant to the offence

66 The offence with which I am concerned alleges that on 8 December 2003 the defendant, being an employer did fail, contrary to s 8(1) of the Occupational Health and Safety Act 2000, to ensure the health, safety and welfare at work of all of it's employees and in particular Mr Rodney Langfield in that: The defendant failed to provide or maintain a system of work that was safe and without risk to health in relation to the undertaking of duties requiring the cleaning of the grain tank or bin which was attached to the machine. The defendant failed to provide and maintain systems of work that required that the power be isolated from the augers prior to employees such as Langfield entering the grain tank or bin. 67 It is not disputed that on 8 December 2003 Mr Langfield was Raynjune's employee or that the accident relevant to this offence occurred at Raynjune's place of work. 68 The failure particularised by the prosecution as grounding the offence against the defendant was characterised as the 'unsafe system of work' failure to distinguish it from the 'unsafe plant' failure that was ultimately not pressed. 69 At the outset, counsel for Raynjune contended that the offence as originally charged and particularised, asserting failures going to an unsafe system of work and unsafe plant, involved two component parts of the defendant's overall system of work - the 'engineering' component being the unsafe plant particular and the 'administrative' component being the unsafe system of work particular. 70 In adopting such an approach, he submitted the engineering component of the defendant's system of work required there be adequate guarding or appropriate cut-out switches capable of independently isolating the augers, whereas the administrative component of the defendant's system of work embraced the need for instruction, training and supervision of employees in relation to cleaning the grain bin of the machine. 71 Further, he contended, by not pressing the unsafe plant particular as a component of the defendant's overall system of work, the prosecution had abandoned any reliance on the most important part of the overall system of work given that the requirement for adequate guarding and appropriate cut-out switches being integrated into the machine went closest to guaranteeing safety. As a consequence, he said, the prosecution was endeavouring to dress up a system of work offence by reference to what was nothing more than a rump of the defendant's overall system of work. 72 I do not agree the alleged offence can be characterised in that way. The alleged offence charged cites an offence pursuant to s 8(1) of the Act. That section provides that an employer 'must ensure the health, safety and welfare at work of all the employees of the employer'. That duty is not only absolute but is wide and general in its scope. That much is clear by the further provisions of s 8(1) that provides: That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (emphasis added) (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 73 The duty imposed by s 8(1) is a duty to provide a safe system of work in all its aspects. However, that does not preclude a situation arising where, for example, contained within the overall system of work, there are discrete tasks or specific plant and equipment that, by themselves, pose risks to safety. Each particular task or item of plant requires a safe system of work be devised in order to address the risk to safety the particular task or item of plant may represent. That much is evident in the provisions of s 8(1)(c) that requires employers to ensure 'systems of work ...' are safe and without risks to safety. 74 In other words, in the performance of work overall, it would be possible to have multiple 'systems of work' situations depending on the job at hand. For example, it may well be that within an employer's overall system of work, there are some aspects going to plant and equipment, that are in themselves safe and without risks to health but the way in which the plant is operated is unsafe because of inadequate instruction, training or supervision. The employer will, nevertheless, be in breach of it's obligation under s 8(1) because it has failed to provide a workplace free of risks to safety in one or more relevant respects.

75 In relation to the work being performed by Mr Langfield on the day of his accident, the job he was performing was that of a farmhand. One of the tasks he had to perform as part of that job was to drive the combine harvester. Within the overall task of driving the combine harvester he was required to clean out the grain bin. That job required Mr Langfield to climb into the grain bin. The interior of the grain bin contained a number of augers that, when they were operating, represented real and foreseeable risks to safety to any employee if they were to enter the grain bin at that time. 76 As a consequence, it was a paramount safety consideration that whatever system of work was devised in order to clean the grain bin took account of that fact and ensured that no employee, and in this case Mr Langfield, was required to enter the grain bin to clean it unless and until the power to the augers in the grain bin was isolated. In short, it was necessary for the employer to devise a system of work to address that task, mindful of it's obligations under s 8(1) of the Act to 'ensure the health, safety and welfare at work' of Mr Langfield. 77 The nub of the offence alleged by the prosecutor is that the defendant failed to have a system of work in place in relation to cleaning the grain bin of the machine that ensured the augers were isolated. 78 In submitting there was an inadequate system of work for the task under consideration, counsel for the prosecutor submitted the word 'system' in the term 'systems of work' in s 8(1)(c) of the Act did not have a technical meaning and pointed to the ordinary meaning of 'system' in the Macquarie Dictionary, 4th ed, 2005, p1430 which states the ordinary meaning of 'system' is: a co-ordinated body of methods, or a complex scheme or plan of procedure: a system of marking; a system of numbering; a measuring system.

79 That may be so but, in my view, for the purposes of my considerations here, the proper approach to adopt is that the system of work is, as a matter of fact, the way the work is performed. 80 Can it be said the defendant had a system of work in relation to cleaning the grain bin that ensured power to the augers was isolated before an employee entered the bin? 81 The defendant says it did because, it submitted, Mr Langfield knew of the danger of the augers and that he should turn the engine off before he entered the grain bin. That approach, as I understand it, was to apply regardless of the reason Mr Langfield entered the bin because, as the evidence disclosed, there were a number of valid reasons why a person may have to enter the grain bin of the machine other than to clean it.

82 Accordingly, the defendant says, if Mr Langfield had followed that general rule of thumb, he would have been able to safely clean the bin in the manner he had been shown. In other words, the defendant submitted, it's system of work for cleaning the grain bin consisted of observing the general dictum of turning off the engine before getting into the grain bin to clean it in the manner Mr Langfield had been shown. 83 On first considerations, I accept such an approach may appear to address the issue as to what constitutes a system of work. That is, a general dictum to turn off the engine combined with the specific instructions as to how to clean the grain bin. But what is required is not just that a system of work exists but that it is a system that is adequate in ensuring a workplace free of risks to safety. That obligation requires more detailed consideration given the facts and circumstances relevant to the task being undertaken at the time of Mr Langfield's accident. 84 That task involved cleaning the grain bin. Generally speaking, that was done in one of two circumstances. First, at the end of the harvesting season preparatory to putting the harvester away until required for the next season. Second, during the harvesting season in between harvesting different crops or different varieties of a crop. At the time of his accident on 8 December 2003, Mr Langfield was engaged in cleaning the bin in between harvesting two paddocks containing different varieties of wheat. 85 As I understand the evidence, when cleaning the grain bin at the end of the season, the machine was not operational. As Mr Langfield described, on the two occasions he was involved in cleaning the bin prior to his accident, the machine was parked 'under a shady tree' in a paddock. On those occasions, he had used an air hose and an air compressor - the latter was 'sitting on a truck located alongside the header'. 86 As described, using an air hose and compressor, the person cleaning the bin blows the residue grain to the bottom of the bin and it is then blown out the clean out door. The clean out door is located externally below the vertical discharge auger. 87 Regardless of the operational circumstances in which the grain bin was to be cleaned, it was essential the defendant put in place a system of work to cover all contingencies involving risks to safety in cleaning the grain bin. 88 The defendant submitted that a general direction to turn off the engine before anyone entered the grain bin, for whatever reason, was a foolproof way to ensure the augers were isolated at all times. Support for that contention came from Mr Collins, the expert witness called on behalf of the defendant. 89 As earlier stated, counsel for the prosecutor did not object to the admission of Mr Collins' report but, in so doing, he raised significant reservations as to it's relevance, Mr Collins' specialised knowledge underpinning the opinions expressed and, ultimately, any weight that could be attached to those opinions.

90 Having considered his report and the evidence he gave, I am not persuaded I can ultimately place any significant weight on the opinions expressed by Mr Collins and his ultimate conclusions. I say that not to suggest, as a general proposition, Mr Collins does not have some specialised knowledge in occupational health and safety. His curriculum vitae, which was largely unchallenged, points to that although it does not disclose the extent of Mr Collins' specialised knowledge in occupational health and safety in any specific detail. 91 The difficulty I have in placing little weight on the opinions expressed by Mr Collins are, in part, because of the absence of any reference as to what material he took into account in expressing the opinions he did. For that reason, it is difficult to be confident he has drawn his opinion from known or assumed facts by reference, wholly or substantially, to his specialised knowledge as required by s 79 of the Evidence Act 1995 and the relevant authorities: see Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at [85]; Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354 at [87] where Makita was further considered and Adler and anor v Australian Securities and Investments Commission (2003) 46 ACSR 504 at [631]. 92 For example, Mr Collins stated his report was prepared from: ...materials supplied to me by the defence solicitors. The range of materials appear to cover the issues noted in the report. However, I have had no opportunity to interview witnesses or visit the site. Despite these limitations, I believe the report reflects the best possible analysis of the information provided and, subject to additional information becoming available, complies with the code of conduct for expert witnesses.

and further: From the transcripts of the Court proceedings and associated reports I have read, the circumstances of the accident can be distilled as follows...

93 Mr Collins stated he had read all of the transcript of the Court proceedings to date but conceded he may have skimmed some parts. That may be so but, in expressing the opinions he does, he does not support the assertions he has made by reference to any particular or precise aspect of the evidence received. Further, what he means by reference to 'associated reports' is not identified in his report except by that bare reference. Again, assuming it is reference to any of the four reports prepared by Professor Johnston, there is no cross-referencing in Mr Collins' report to indicate what part of Professor Johnston's reports, if any, he relied upon in expressing the opinions he does. 94 Mr Collins also acknowledged in cross-examination that, while he had not mentioned it in his report, he had in mind and was aware of AS/NZS 4024.1:1996, Safeguarding of Machinery Part 1: General Principles. His report, however, made no reference to the principles contained in that Standard and the extent, if any, he applied them in expressing the opinions that he does. 95 Finally, and, to me, most concerning as to the weight I may attach to Mr Collins' evidence, was the impression I gained that he understood little, if anything, about the workings of the machine in question and the operation of the augers relevant to the grain bin. Such knowledge is, in my view, critical in being able to sensibly appraise the system of work that was asserted by the defendant to be in place in relation to the cleaning of the grain bin that was safe and adequate in addressing the risk to safety. For example, in examination in chief, Mr Collins was asked by counsel for the defendant: Q. For the purposes of this question, there are four augers which are the standard feature and are partially exposed, and then there is an upright or vertical auger which is also exposed? A. Correct.

Q. Either of those, if running, quite obviously could cause injury to a person who came into contact with them, and when the arm is pushed back, if it's in working order, it would shut down - to use that expression - the floor augers but not the upright auger. It would keep running. Is that a matter of any relevance to risk management, in your opinion? A. I didn't understand at the time that I wrote this report that only one of the types of augers was prevented from operating, so it would be another reason why I believe that that particular process of swinging the boom in to the saddle would not necessarily be an improvement in terms of safety.

96 Putting aside for the moment any other aspect of the evidence given in the above passage, Mr Collins' answer of 'Correct' to the proposition put to him by counsel for Raynjune that 'there are four augers which are the standard feature and are partially exposed and then there is an upright or vertical auger which is also exposed', is totally incorrect. It is a matter of fact, not opinion, that of the four discharge augers, two are totally guarded and two are partially exposed. Of the four discharge augers, the vertical discharge auger is totally guarded.

97 Counsel for the defendant attempted to correct the above factual error in re-examination by suggesting it was he who was in error in putting the proposition as he had to Mr Collins in those terms. He was, he contended, referring to the infeed auger when he referred to the 'upright or vertical auger'. That may be so, but it does not explain how Mr Collins was able to so readily agree with him about what was, on any view, a significant factual matter. The infeed auger is quite separate from the four discharge augers, both in it's function and it's power source. That latter fact is relevant as far as isolating the infeed auger prior to anyone entering the grain bin and being aware that isolating the infeed auger by itself does not isolate the discharge augers.

98 The reality was, when pressed, Mr Collins was unsure how many discharge augers there were, which were totally covered and which were partially covered. In fact, Mr Collins was relatively unfamiliar with most operational aspects of the machine in question and, it has to be said, he did not consider his lack of knowledge in such matters in any way detracted from the weight of the opinions he ultimately expressed. That is not a view I share. I believe, in order to properly assess and address the risks to safety the task of cleaning the grain bin represented, it was essential to understand how the machine operated, particularly, in practical terms, what must be done in order to perform the task safely. 99 The paucity of knowledge Mr Collins had about such matters, as well as the other matters to which I have referred, renders Mr Collins' opinions on critical matters of negligible weight in my ultimate considerations.

100 The reason why Mr Collins did not consider operational aspects of the machine as being of such relevance as to warrant his detailed knowledge of them was because of the question his report was asked to address. That was, as he said: I have been asked to review the causation of this incident particularly from the point of view of the precautions that could have been or were taken by Raynjune Pty Limited. 101 In addressing that task, what Mr Collins did, quite simply, was to analyse the causes of the accident involving Mr Langfield and assess how it could have been prevented relevant to the causes identified. He then assessed the preventive steps identified against the defendant's actions he said were in place to prevent the accident in the first instance.

102 Mr Collins analysed the primary causes of the accident as threefold, they being, he said: (i) the auger was exposed;

(iii) the machinery was not isolated before Mr Langfield accessed the bin.

103 In Mr Collins' opinion, of the three primary causes identified above, (i) and (ii) could not be held to be the responsibility of the defendant. The responsibility for those causes, he opined, lay with the manufacturers or suppliers of the machine. In his opinion, the only responsibility Raynjune had as far as the accident was concerned, was to ensure the isolation of the augers before Mr Langfield entered the bin. 104 On that issue, it was Mr Collins' opinion, the defendant's general instruction that Mr Langfield was not to enter the grain bin unless the engine was turned off was the best and surest way of isolating the augers. The defendant, he said, had issued such an instruction and Mr Langfield knew that. Accordingly, the defendant had a safe system in place for cleaning the bin that ensured the augers were isolated. 105 Before moving to consider the opinion expressed by Mr Collins as to the defendant's obligations under the Act, let me say now, in expressing the opinions he did and in addressing the issues in the way he did, Mr Collins demonstrated a misunderstanding as to the duties of employers under s 8(1) of the Act. Namely, that the duty imposed is centred around identifying and addressing risks to safety in the workplace. 106 Identifying causes of an accident may, after the event, be one way of addressing risk management for the future but, it is of limited assistance in addressing an employer's fundamental obligation at the outset. Having said that, I do accept, to a considerable degree, the views expressed by Mr Collins were more as a result of the question he was asked to address rather than a genuine misunderstanding on his part as to the operation of the Act and s 8(1) in particular. 107 In considering the task of cleaning the grain bin, the defendant's obligations under the Act required it to risk assess that task and determine how the risks identified should be addressed in order to eliminate or control them within the system of work adopted for the task. 108 In making reference to the need to risk assess the task of cleaning the grain bin, I do not mean, nor was it said on behalf of the prosecutor, the defendant should have undertaken a documented risk assessment. What the defendant was required to do, as a relatively simple task, was to assess all aspects of the task under consideration in order to identify risks to safety and how they may be eliminated or, if that was not reasonably practicable, how such risks were to be controlled.

109 In relation to cleaning the grain bin, the defendant knew it was necessary for a person to enter the bin. While there was evidence it was possible to clean the grain bin from outside it using an air compressor and air hose, the generally accepted practice adopted by the defendant up to the time of Mr Langfield's accident was that, at some point in the process, the person had to get into the bin. 110 Further, the defendant also knew, if it was necessary for Mr Langfield to enter the grain bin to clean it, then it was essential the defendant took steps to ensure the exposed part of the horizontal discharge augers and the infeed auger were not operating at the time. 111 In Mr Collins' opinion, the defendant had taken appropriate steps to ensure Mr Langfield had sufficient experience, information, training and supervision such as to ensure a safe system of work existed in relation to the known risks to safety involved in cleaning out the grain bin. In the first instance, reliance was placed on Mr Langfield's prior experience in working with machines such as combine harvesters. Given that prior experience, Mr Collins stated Mr Langfield would, therefore, be generally familiar with 'grain handling machines such as augers'. He expressed his opinion on this point in the following terms: It is understood that the injured person has had considerable experience of farming on his father's farm between 1985 and 1995. As a grain farmer he would be expected to have considerable experience of farm machinery and in particular grain harvesters and grain handling machinery such as augers.

Specific experience on the Raynjune Pty Ltd farm was noted between 2002 and 2003. It is inconceivable that these 20 years of farm experience did not include rules and procedures relating to the isolation of farm equipment prior to entry or maintenance.

112 Such an opinion, without more, is purely speculative. To the best of my knowledge, Mr Collins had never met Mr Langfield. The only thing that is not speculation in Mr Collins' opinion on this point is that Mr Langfield worked on his father's farm. In that sense, I would accept, by the time he came to be employed by Raynjune, Mr Langfield had accumulated experience of a general nature as a farmhand. Beyond that, it is not possible to be certain as to any aspect of his experience. Accordingly, no probative weight can be attached to any expression of opinion by Mr Collins seeking to extend Mr Langfield's knowledge and experience beyond that generality.

113 The evidence of Mr Langfield was that he started with Raynjune in 2000 but he had had prior experience both as a farmhand and in driving a combine harvester on his father's farm between 1985 and 1995. The combine he drove on that occasion was a 711 Case Header. What resemblance that has to the machine that I am concerned about was never explained.

114 Mr Collins next addressed the information on isolation procedure and hazards in relation to the machine that, he said, had been given to Mr Langfield by the defendant. On this issue he stated: I have sighted the Case 2388 Header Manual and this identified the particular area involved in the accident and provides a method of isolating the grain bin prior to access. I understand from the Court transcripts that Mr Langfield was asked to read this manual and he indicated that he had read 70% particularly the safety sections. If this was the case then Mr Langfield would have had sufficient information on both the isolation procedures and the hazards associated with the auger. Additional warnings were also available at the grain tank in the form of decals. The decals were in the immediate vicinity of the grain tank and would have been obvious to anyone commencing the cleaning process. In addition to this written information Mr Langfield was informed by Mr McKay of the need to isolate the augers by turning off the engine before entering the grain tank. Mr Langfield acknowledged this in his evidence and it was clear from the evidence that he knew of the risk and the method of achieving safety by turning off the engine of the unit. 115 There is no dispute Mr Langfield understood the danger of entering the grain tank when the augers were running. He also confirmed he was aware of the danger signs (decals) located at various places on the machine warning of the dangers of certain aspects of the machine, particularly the dangers of the augers, when they were operating. Nevertheless, to unequivocally assert Mr Langfield knew all he needed to know about the isolation procedures and hazards associated with the machine and the augers simply by reading approximately 70 per cent of the Operator's Manual is another thing altogether. 116 For example, despite his years of prior experience as a farmhand before commencing with the defendant, as well as being given the Operator's Manual of the 2388 combine harvester to read, Mr Langfield was unsure as to whether the machine could unload when the unloader tube was not extended. For example, when he was shown a photograph of the rear left side of the harvester illustrating the rear access ladder raised and the unloader tube in the 'in' position, his evidence was as follows: Q. Page 4, what does that photograph show? A. The rear of the combine harvester with the access ladder up and with the spinning disks on the bottom, on the bottom of the photo, is to spread the straw that comes out the back of the header.

Q. When you say out of the header, do you mean the combine harvester? A. Yes.

Q. What about the tube shown in the top of the photograph? A. That's the unloading arm in the operation position when you are harvesting.

Q. In that position can it unload? A. Not sure.

Q. Have you ever unloaded with it in that position? A. No.

117 The photograph shown to Mr Langfield was the photograph (Fig 6) on p4 of Appendix A in exhibit 49.

118 What Mr Langfield's answer demonstrates, in my view, is that despite his understanding of certain aspects of the machine in question, there were some important aspects of it's operation he was unsure of, particularly as to the operation of the unloader tube together with the discharge augers. The unchallenged evidence is that when the unloader tube is in the 'in' position, as is shown in the photograph identified above, the discharge augers will not operate. 119 If Mr Langfield is as readily conversant with all the relevant operational and isolation procedures relating to the discharge augers as Mr Collins suggested, it would be expected he would know, when the unloader tube is in the 'in' position as the photograph above illustrates, the unloader tube and the discharge augers cannot operate. That would be an important piece of information for anyone operating the machine to know. Mr Langfield's uncertainty suggests a real deficit in his information relevant to the failure particularised. That is, one of the circumstances in which he could be certain the power to the discharge augers could be isolated before entering the grain bin.

120 It should be noted, at the time of Mr Langfield's accident, the unloader tube was in the extended position.

121 All in all, I do not accept, Mr Collins can assert with the certainty he does, that Mr Langfield 'would have had sufficient information on both the isolation procedures and the hazards associated with the auger'. As earlier stated, Mr Langfield was aware of the hazards associated with the augers, particularly when they were operational, but not, in my view, the isolation procedures relevant to the operation of the augers, and the discharge augers in particular. 122 According to Mr Collins, Mr Langfield received relevant training in what he (Mr Collins) referred to as 'the isolation process' in two ways. The first was Mr Langfield accompanying Mr McKay into the cabin of the harvester for some periods during the 2002 year. Exactly for what period and what training he specifically received in 'the isolation process' was never elaborated upon by Mr Collins by reference to any evidence received. Secondly, according to Mr Collins, Mr Langfield had the 'isolation procedure' relating to any entry into the grain bin demonstrated to him on at least two occasions.

123 Before I deal with the evidence given both by Mr Langfield and Mr McKay on the extent of training given in relation to 'isolation procedures' so called, it is necessary to comment on the expressions 'isolation process' and 'isolation procedures', as used by Mr Collins. 124 It is my understanding that what Mr Collins is referring to when he uses the expressions 'isolation process' and 'isolation procedure' in his report is the act of turning off the engine of the machine. In his opinion, that was the way to safely isolate the augers when cleaning the bin. 125 I make that point because, once the engine of the machine is turned on, as earlier explained, the infeed auger that empties the cleaned grain into the bin is operated by the feed drive. The feed drive operates the machine functions of threshing, separating, cleaning and then feeding the grain into the grain bin. The discharge augers are driven by a chain drive that is separate to the feed drive and is operated by a switch on the control lever in the operator's cabin. 126 It is obvious, when consideration is given to the way the machine functions overall, the infeed auger is operating when the machine is being driven up and down a paddock harvesting the grain. The discharge augers together with the unloader tube are only operated when the grain bin is full and/or requires emptying at intervals during the harvesting process. As well, the feed drive is connected to the operator's presence detector interlock mechanism that will stop the forward drive of the machine seven seconds after the operator leaves the drive seat in the cabin of the machine. The chain drive operating the discharge augers is independent of that process. 127 In other words, with the engine on, the mechanism to isolate the infeed and discharge augers of the machine are different. Different information, instruction and training would be required in order to ensure the operator of the machine understood the differences. I am not persuaded Mr Collins understood those differences. In any event, Mr Collins did not consider such differences were particularly relevant because, in his opinion, the only instruction Mr Langfield needed to receive in isolating the augers in the grain bin was to turn off the engine. I will deal with that issue in more detail later in this judgment. 128 Having regard to what he identified were two instances of 'training in the isolation process', Mr Collins expressed the following opinion: In view of the previous experience of Mr Langfield in farm machinery this would in my opinion be an acceptable level of training when associated with the previous experience of farm machinery demonstrated in 6.2 and the direct supervision of Mr McKay indicated in 6.3.

129 Such an opinion can only be termed highly speculative at best, and of no weight or probative value in my considerations.

130 The evidence of Mr Langfield as to the training he received from Mr McKay was somewhat equivocal. In the first instance, in examination in chief, he said as follows: Q. Mr Langfield, when you started work for Raynjune Pty Ltd did you receive any induction training or training as to how to do your work? A. No.

Q. How did you learn what duties you needed to perform and how they should be performed? A. Well, I actually was working on me (sic) father's farm before I went to Raynjune and learnt out there.

Q. Were there times when you needed information in order to do what you needed to do for Raynjune? A. Yes.

A. Well, if I needed any manuals and stuff on machinery I'd get them, get them off the boss's mother, Nora McKay.

131 In relation to learning to drive the machine in question, he further said: Q. And so you drove the tractor pulling the chaser bin in 2001, in the season 2001/2002; is that right? A. Yes. Q. You eventually did drive the new combine; is that right? A. Yes.

Q. And before you did that the first time did you learn how to do that? A. Yes.

Q. What did you learn that from? A. By watching the boss, Noel McKay, drive the header, the combine harvester.

Q. Did you ever see a manual? A. Yes.

Q. What were the circumstances in which you saw a manual? A. Well, Noel McKay gave it to me to read so I'd know how the combine harvester operated. 132 In cross examination Mr Langfield's evidence was a little more expansive, as follows: Q. Let me see if you agree with these things. Do you mean by that that on the day you started work for them, they didn't conduct some sort of a class or a seminar with you, giving you papers in writing or using a blackboard or a video? They didn't do anything formal like that? A. Yes.

Q. But you did get on-the-job training from Mr McKay, didn't you?

Q. And I think you mentioned yesterday that if anything cropped up where you needed to look at a book or a manual, or something, you might get in touch with Mr McKay's mother; remember giving that evidence? A. Yes.

Q. Again, just tell me whether you agree with this: when you first started off, as you have said, you were given on-the-job training. For quite some time you worked a lot with Mr McKay himself, didn't you? A. Yes.

Q. If he wanted you to do something, he would tell you what it was and explain it? ... Q. Could I put this to you as a question: when you started off and you were getting this on-the-job training that you speak of and were working with Mr Noel McKay, if he wanted you to do something, he would tell you; is that right? A. Yes.

Q. He would explain it to you? A. Yes.

Q. And you would be familiarised with it; is that fair enough?

Q. When you say you contacted his mother, is this the situation that if you were out in a field by yourself and you were troubled by something, the chances were that she would be in the house easily contactable by mobile phone? A. Yes, and UHF.

Q. And it would be easier to raise her and have her speak to Mr McKay, if need be, than to try and track him down somewhere? A. Yes. Q. I think you made this clear yesterday, Mr Langfield, but just let me be sure about it: you were well aware, weren't you, that it was dangerous for anybody to enter the bin while the augers were turning?

Q. You were well aware, were you not, that if, for any reason, you personally had to get into the bin you should turn the engine off in the cabin? A. Yes.

133 On balance, it is apparent Mr Langfield did receive some training from Mr McKay in driving the machine. The training seemingly consisted of Mr Langfield accompanying Mr McKay in the cabin of the machine on a few occasions in order to observe. Additionally, Mr Langfield was given the Operator's Manual to read, with the understanding that, if there was anything he did not understand, he could raise it with Mr McKay or his mother. 134 There is no evidence to enable me to know how often Mr Langfield needed to do that and exactly how competent he was in operating the machine after observing Mr McKay on a few occasions. The only inference arising from the evidence I have is that Mr Langfield's previous experience working on his father's farm, the somewhat rudimentary training and instruction he received from Mr McKay and his mother together with what he was able to glean from the Operator's Manual, was considered sufficient to enable him to operate the machine. 135 Considering Mr Langfield competent to operate the machine, necessarily, in my view, requires him to be given sufficient information, instruction and training to ensure he is competent in all aspects of the machine's operations. That would be expected as part of the system of work the defendant would have in place in order to ensure the safe operation of the machine in all it's aspects. 136 In Genner Constructions Pty Limited v Workcover Authority of New South Wales [2001] 110 IR 57 at [57] it was stated: The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character . Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education). (emphasis added)

137 Cleaning out the grain bin of the machine in question was a contingency arising out of the work performed by Mr Langfield for the defendant when operating the machine. It was not, as I understand it, a frequent or repetitive task but one that was done from time to time, as circumstances required it. For example, at the end of the harvesting season and, as occurred on the day of Mr Langfield's accident, in between harvesting different varieties of wheat. It was important, therefore, the defendant educate Mr Langfield sufficiently to enable him to deal with the 'full range of circumstances' that could arise in performing the task.

138 In his evidence in chief, Mr Langfield said he had never been given any instructions by Mr McKay, or anyone else, as to how to get into the grain bin and how to clean it out. He also said, in reading the Operator's Manual, he could not recall seeing anything in it about how to go about cleaning out the grain bin. That recollection was correct. There is nothing in the Operator's Manual as to how to go about cleaning the grain bin.

139 When cross examined on this issue, Mr Langfield equivocated somewhat as follows: Q. Do you see on that subject of whether you were shown how to clean out the grain bin, the question you were asked there at 21 was: "Q. Were you shown by your employer how and when to clean out the grain bin?" What you told the Inspector back then was: "I can't quite remember if he did or not." Now, let me put these things to you and see whether you agree with them: that you were told by Mr McKay how to do it, and on a couple of occasions you were with him when he cleaned it out himself, demonstrating how it was done. Do you have any recollection of those occasions? Just say if you can't recall. A. Yes, I'm not sure.

Q. There was not just the compressed air hose with the air gun at the end of it, there was a hand brush for cleaning out, wasn't there? A. Yes.

Q. And is this not the situation that by the time the day of your accident came around, you knew that to clean out the bin you had to brush it down and then use the air gun to get rid of the bits and direct them into the bottom area that went out? A. Yes.

Q. You knew that that was the way to do it? A. Yes. 140 What is interesting in the above evidence is, even accepting Mr Langfield was shown how to clean out the bin by brushing it down and so on, there was no evidence elicited from him that, as part of the cleaning process, he was to turn off the engine to ensure the augers in the bin were not operating. It would seem, even on Mr McKay's evidence, his instructions to Mr Langfield as to how to clean the grain bin concentrated more on how to brush down the sides of the bin or use the air hose rather than emphasising turning off the augers or the engine. 141 Rather than stating Mr Langfield knew not to get into the bin when the augers were operating and to turn off the engine before doing so, it was essential the defendant incorporated into the system of work for cleaning the bin a clear step by step process that ensured the augers were not operating. I am not persuaded there was such a process in place with the certainty and clarity the defendant contends. 142 According to Mr Langfield, when he had cleaned out the grain bin on two to three occasions prior to his accident, it had always been at the end of the harvesting season when the machine was being cleaned. As he explained: Q. Before the accident had you ever been in the grain bin? A. Yes.

Q. How many times had you been inside the grain bin before the accident? A. Two or three times.

Q. Do you remember which season? Was it 2002 and 2003 or one or the other?

A. It would have been January 2000 and then January 2003 when we cleaned the header out, the combine harvester out. At the end of the season. Q. So the time before the accident in 2003 on the occasions you had been inside the grain bin why had you been in there?

Q. And at what stage of the season was it on each occasion?

A. Well, before the accident the time that I've cleaned it out was at the end of the season.

Q. And where was the machine located on those occasions? A. Under a shady tree.

Q. And what did you use to clean out the machine on those occasions? A. Air compressor.

Q. And where did the air compressor come from to do that? A. It was sitting on a truck located alongside the header.

Q. And did you clean out the grain bin on those occasions with anyone's help or by yourself? A. By myself.

143 In his evidence, Mr McKay contradicted Mr Langfield to some extent on this issue, as follows: Q. In your use of the combine between the time it arrived in November 2001 and December 2003, thinking of you sir, how frequently was the grain bin cleaned out in field operations, that is to say, other than at the end of the season? A. Basically four times during the season. Q. Had you been present when Rodney had cleaned out the grain bin as part of field operations to avoid cross contamination of varieties rather than cleaning it out at the end of the season? A. Yes.

Q. How many times had you been present when Rodney had done that? A. I demonstrated for Rodney - I can't remember clearly, but at least twice.

Q. Was Rodney present on those four occasions where you had been involved in cleaning out the bin to avoid cross contamination of crop varieties?

A. Yes. 144 As Mr Langfield had already given his evidence in relation to his recollection about cleaning the grain bin prior to the accident before Mr McKay's evidence on the same issue, the inconsistencies remain as to when and how Mr Langfield did clean the grain bin as distinct from him observing Mr McKay do it. 145 Evidence as to any instruction that Mr McKay gave to Mr Langfield in relation to cleaning the grain bin on the day of the accident appears, in the first instance, in the statement he gave to Inspector Simpson on 4 May 2004. In that interview, relevantly, he was asked and replied as follows: Q37. What can Raynjune Pty Ltd tell me about the accident to Rodney Langfield on the 8th December 2003?

A. On the date of the accident Rodney was operating a combine. He had nearly completed a paddock. I instructed him to just brush down the grain bin when he had finished the paddock . I moved a chaser bin up to the end of the paddock where the combine was stopped then my mother took me back to the other end of the paddock to collect the comb trailer, which I also took up the other end of the paddock where the combine was. I climbed the cab steps of the header to see where Rodney was and climbed the steps to look in the bin. I noticed he was in the bin and the auger was running. I warned Rodney about it that it should not be running and was getting down to turn it off and I heard him yell out. I rushed to the cab to stop the auger. My mother rang '000' on my mobile and I helped get Rodney out of the bin and applied a tourniquet to his leg. And we were not sure whether the ambulance had the correct location, so I started taking Rodney to hospital and met the ambulance half way into Cowra. (emphasis added)

Q38. Had any concerns from Rodney Langfield been given to Raynjune Pty Ltd at any time prior to the date of the accident regarding the unguarded auger in the grain bin?

A. No. Because he understood that it should be turned off if he ever entered the grain bin . (emphasis added)

146 In the proceedings before me, Mr McKay was called on behalf of the prosecution. In chief, his evidence as to his recollection on the day of the accident was somewhat more explicit than the statement he gave to Inspector Simpson in May 2004 as follows: A. ... I commenced harvesting the paddock which was nearly complete and I arrived there while he was still finishing that paddock. I moved a chaser bin up to the end of the paddock near the next paddock to be harvested and I contacted Rodney on the radio and asked him would he finish the paddock, it was nearly complete ... Q. You need to keep your voice up? A. Sorry. I asked Rodney that when he completed the paddock to unload the combine into the chaser bin and when he had unloaded it to turn it off and to just sweep down the grain bin because the next paddock had a different variety of wheat and I didn't want to get it contaminated . I then went - my mother was there also, took me down the other end of the paddock to bring up the comb trailer, which is the trailer you put the front of the header on. You have to unhook it and move it to the next paddock and I took it up to where the header was parked. Rodney emptied it and that's where - then I climbed up the steps at the front and I climbed sort of up, there's a little ladder inside a door at the front, and I climbed up there to look in and see what Rodney was doing and that's when I sort of looked in there after, I don't know a few seconds or what, I noticed the augers were still running and he was in there in the front of the bin and I started to get down to turn it off and that's when he, when the accident happened. He yelled out and I went into the cab to turn it off and that's... (emphasis added)

Q. Thank you. A. And then - do you want me to go on further?

Q. If you would like to? A. Well, my mother, she was sitting in a ute nearby. I gave her the mobile phone to ring triple O and I helped Rodney out of the back. ...

Q. Now, you say you contacted Rodney on the radio; is that right? A. Yes.

Q. And you contacted him on a receiver he had inside the operator's cabin? A. Yes.

Q. And you asked him when he had completed the paddock; is that right? A. Yes.

Q. You then said something about turning something off? A. Well, yeah. Just ...

Q. What did you say to him? A. To remember to turn off the auger and the machine and brush it down . (emphasis added) 147 As is evident, when first spoken to by Inspector Simpson, Mr McKay made no mention of giving any instruction to Mr Langfield about turning off anything to do with the machine. He said he had 'instructed him to just brush down the grain bin when he had finished the paddock' and that, in relation to any concerns Mr Langfield may have had regarding the unguarded auger in the grain bin, Mr McKay said Mr Langfield 'understood that it should be turned off if he ever entered the grain bin'. 148 The reference to 'it' in Mr McKay's answer to Inspector Simpson on 4 May 2004 strongly suggests he is referring to the auger in the grain bin, not the engine of the machine. In his evidence in chief, he said he had asked Mr Langfield to 'unload the chaser bin and when he had unloaded it to turn it off…'. He did not clarify what was meant by reference to 'it'. Later he said, he told Mr Langfield to 'turn off the auger and the machine and brush it down'. 149 Because of the inconsistency of his evidence as to what instructions he did give to Mr Langfield immediately prior to the accident or what instructions may have been received, leave was granted to counsel for the prosecutor to cross examine Mr McKay on that issue to the following effect: Q. My question to you is: apart from what you told Inspector Simpson in that interview when she asked you those questions, was there any other system of work that you had that was designed to ensure that if Mr Langfield got into the bin during field operations that he did so only when the unloader augers were not operating?

A. The system of works is included in the job training. The system of work is - the system of work is the training. The training included - the training included pointing out the hazards, pointing out the warning signs, telling him not to, you know, go into the bin when it's running, turn off the augers, turn off the engine. As I said yesterday, about demonstrating to him about cleaning the bin out. It's included in that on-the-job training, and the requiring to read the manual.

Q. If he had a rule of thumb that "Unloader arm out, don't get in grain bin", then the accident would not have happened; is that right?

A. The rule of thumb is that you turn off the operations and you turn off the engine for any adjustment or for any maintenance. That is the one rule for all the maintenance and all the adjustments. And I feel it's better to have one rule for the hole (sic) thing than trying different rules for different tasks, because I think that is only confusing. 150 On the above issue, Mr Langfield has no real recollection of any conversation he may have had with Mr McKay immediately prior to his accident. Overall, his recollection was scant and, in many respects unclear, in that he could not remember. The best evidence he gave as to his recollection immediately prior to the accident was as follows: Q. So just tell us what you can picture now in your head as what actually happened. What is your memory? Can you remember sitting in your driver's seat?

Q. What can you remember happening? What else can you remember happening?

A. Turning, unloading the last box, the last grain bin full of wheat and then turning the incline augers off, the floor auger off, and preparing to clean out the bin to move into the next paddock. That's all I can remember of that day.

Q. What was it you did to turn the unloader augers off? A. Pushed the button on the hand control. 151 He later modified his recollection in relation to turning off the augers as follows: Q. Do you remember unloading the grain bin at all on this day? A. Yes.

Q. Tell us about your memory of that? A. Well, I pulled up alongside the stationary bin and put the auger out and turned it on and unloaded it, and then I'm not sure after that.

Q. Just stop there, when you say put the auger out, you mean the unloader arm or tube? A. Yes.

Q. Do you have a memory of how the stationary bin got to be where it was, a memory as against what someone has told you? A. No.

Q. Do you remember the unloading finishing? A. No.

Q. What is your next memory after putting the unloader arm out and the grain unloading into the fixed bin?

Q. Yes, certainly. Can you remember the unloader arm being out and unloading taking place? A. Yes, partly.

Q. What happened next? A. I think I turned it, went to turn it off, turned it off, and then, well, I'm not sure.

Q. What do you think you turned off? A. The actual auger.

Q. I showed you a photograph before - I directed your attention to a photograph on the manual? A. Yes.

Q. And you told us about a button? A. Yes.

Q. Yes? A. Getting put in the ambulance halfway to town.

152 Apart from the above, Mr Langfield has no recollection of being in the grain bin on the day of the accident. He could not, of his own independent recollection, remember why he got into the grain bin except for being told by others he had climbed in to clean the bin. 153 One thing in particular was consistent in his limited recollection. That is, he said he turned off the incline auger and the floor auger and later that he thought he turned 'it' off. When asked, he said 'it' referred to 'the actual auger'.

154 In relation to Mr McKay's evidence as to the instruction he says he gave to Mr Langfield to the effect he was to turn 'it' off, it was said by counsel for Raynjune, that reference by Mr McKay to 'it' meant the machine. That is, Mr McKay instructed Mr Langfield to turn off the machine. Given that specific issue was not explored further with Mr McKay, it is simply not possible, in my view, to make such an unequivocal assertion given the totality of Mr McKay's evidence on this issue and in light of Mr Langfield's evidence above as to what he meant when he said he turned 'it' off. 155 Further, when asked as to whether a safe system of work for cleaning the grain bin should have incorporated Mr Langfield not entering the bin if the unloader tube was in the 'out' position, Mr McKay's evidence was as follows: Q. It is fair to say this, isn't it, that as a safe system of work for cleaning out the grain tank would you have required that Mr Langfield not enter the grain bin while the unloader arm or unloader tube was in the extended position; is that the case? A. I don't believe that that is required. Q. Do you say that would not have been a way of ensuring Mr Langfield's safety, vis-à-vis the rotating auger in the grain bin?

A. I think an instruction to turn off the auger and coming behind is an adequate instruction to make it a safe system of work. (emphasis added) 156 In re-examination, Mr Langfield was asked as to the source of his information regarding the need to turn off the main engine before getting into the grain bin. His evidence was as follows: Q. Mr King asked you that you were well aware you had to turn off the main engine before getting into the bin? A. Yes.

Q. Where did you get that knowledge from that you had to do that?

Q. Do you say that there's something in the handbook that says you have to turn off the engine itself as against the unloader augers? A. No, it says in the book to turn them both off. 157 Mr Langfield was never asked to identify which part of the Operator's Manual he was referring to for that information. It was certainly not an instruction or information relevant to cleaning the grain bin because there were no instructions in the Operator's Manual about how to clean out the grain bin.

158 As is evident, Mr Langfield did not turn off the engine of the machine on the day of the accident. The engine was still running but the feed drive was not engaged and the infeed auger was not running. 159 In assessing the evidence of Mr Langfield on this point, it would appear that, preparatory to entering the bin to clean it, he intended to turn off the unloader drive by pressing the relevant switch on the control lever in the cabin. That action would have turned off the discharge augers. He left the unloader tube out. The evidence is that had he returned the unloader tube to it's saddle, the interlock switch connected to that action would have ensured the discharge augers would not have operated. 160 As best as I can determine, while he intended to press the unloader drive switch, Mr Langfield inadvertently failed to do so. It is difficult to come to any other conclusion because it is inconceivable Mr Langfield, knowing the clear and present dangers of doing so, would have deliberately entered the grain bin with the augers on. 161 Further, the action of Mr Langfield in intending to turn off the unloader drive and thereby the discharge augers would appear to belie Mr McKay's evidence that he had instructed Mr Langfield to turn off the engine on the day in question. I accept Mr Langfield's recollection on this point because I believe it was, to him, in all the circumstances, the most expeditious way to isolate the discharge augers in between harvesting two paddocks of wheat. That is a matter I will elaborate upon in more detail later in this judgment. 162 Overall, I am not satisfied to the requisite standard Mr McKay did specifically instruct Mr Langfield to turn off the engine prior to entering the bin on the day of his accident with the clarity and certainty counsel for the defendant contended. His evidence on that point, starting with his statement to Inspector Simpson, together with his initial evidence before me on this issue, leads me to conclude that such an instruction was either not given in those terms or was relevantly unclear as to whether it referred to the discharge augers or the machine. 163 On behalf of the defendant, Mr Collins expressed his opinion that Mr McKay's actions on the day of the accident 'demonstrated a high level of supervision' by him of Mr Langfield's activities. This is evidenced, he said, by : s Directing the method by which Mr Langfield entered the grain tank; s Reinforcing the isolation procedure by radio just prior to entry; s Being close to the harvester during the cleaning process; s Checking on the cleaning process and ultimately stopping the motor after he realised that Mr Langfield was trapped. 164 According to Mr Collins, the above activities demonstrate that 'Mr McKay understood the risks of injury in the grain bin cleaning process and showed a commitment to directly supervise the process'. 165 I do not agree the evidence supports such a sweeping conclusion on the issue of supervision on the part of the defendant. 166 To start with, the evidence does not support any conclusion Mr McKay was supervising Mr Langfield. The evidence is that Mr Langfield and Mr McKay were working together to harvest the defendant's wheat. Mr Langfield drove the combine harvester and Mr McKay drove the tractor pulling the chaser bin collecting the grain as it was being unloaded. On prior occasions, Mr Langfield had driven the tractor with the chaser bin and Mr McKay had driven the machine. It is apparent that, all in all, the harvesting process required at least two people. On the day of Mr Langfield's accident, Mr McKay was also assisted by his mother. 167 At the time Mr Langfield was preparing to enter the grain bin, Mr McKay was not directly supervising him in any way. As he said in his evidence, on 8 December 2003, Mr Langfield had: A. Commenced harvesting the paddock which was nearly complete and I arrived there while he was still finishing that paddock. I moved a chaser bin up to the end of the paddock near the next paddock to be harvested and I contacted Rodney on the radio and asked him would he finish the paddock, it was nearly complete--

A. Sorry. I asked Rodney that when he completed the paddock to unload the combine into the chaser bin and when he had unloaded it to turn it off and to just sweep down the grain bin because the next paddock had a different variety of wheat and I didn't want to get it contaminated. I then went - my mother was there also, took me down the other end of the paddock to bring up the comb trailer, which is the trailer you put the front of the header on. You have to unhook it and move it to the next paddock and I took it up to where the header was parked. Rodney emptied it and that's where - then I climbed up the steps at the front and I climbed sort of up, there's a little ladder inside a door at the front, and I climbed up there to look in and see what Rodney was doing and that's when I sort of looked in there after, I don't know a few seconds or what, I noticed the augers were still running and he was in there in the front of the bin and I started to get down to turn it off and that's when he, when the accident happened. ... 168 Given the evidence I have, the conclusion is that, by and large, Mr Langfield was not, on 8 December 2003, being supervised by Mr McKay in any direct sense. If anything, the evidence points to Mr McKay and Mr Langfield, and to a lesser extent, Mr McKay's mother, working in tandem to harvest the defendant's wheat. Each had a particular job to do. To the extent that Mr McKay gave Mr Langfield an instruction, it was not, in my view, an instruction centred in any supervisory sense on the task to be undertaken by Mr Langfield as to how to go about cleaning the grain bin. 169 The nub of the defendant's case was that Mr Langfield knew he had to turn the engine of the machine off prior to getting into the grain bin. Mr Langfield acknowledged as much. That fact, it was said, established quite clearly the defendant had put in place a system of work that ensured the augers were isolated when the grain bin was being cleaned. 170 Despite knowing that however, Mr Langfield did not turn the machine off but was content to turn off the unloader drive and isolate the discharge augers prior to entering the grain bin to clean it. Given the circumstances prevailing, that fact, I believe, highlights the inadequacy in the defendant's system of work in relation to cleaning the grain bin. 171 What I mean is that turning off the unloader drive would be a quicker way of isolating the discharge augers than turning off the engine entirely. Turning off the engine of the machine was a process that took a little time, as was emphasised by Professor Johnston in his first report in relation to the machine and it's operation:

5.10 The Operating Instructions [5, 1984] specify that:

"The throttle lever must be in the full throttle position when threshing".

"IMPORTANT: When stopping the engine after operating under a heavy load, run the engine at low idle speed (1000 to 1200 RPM) for 3 to 5 minutes. This will permit the engine and turbocharger temperature to decrease gradually." [5, 1953]

Taken together, these instructions indicate that it is not good practice simply to turn off the engine if there is a problem during the harvesting process. If an operator became aware of a problem in the grain tank area while harvesting, these instructions raise the possibility that the operator, perceiving some urgency, might leave the cabin to check the grain tank, while leaving the engine still running at low idle to cool down. 172 The step by step process of turning off the engine was also confirmed in evidence by Mr Rendell. 173 As well, according to Mr McKay, the process of turning the engine off required the operator to 'pull the throttle back and then press the stop at the bottom and then back further to stop the engine'. 174 According to the Operator's Manual, the process of turning the engine off entailed: (a) stopping the combine and engaging the parking brake switch;

(c) removing the key (the key could only be removed in the off position); (d) putting the throttle control lever in the 'engine stop' position.

175 At the time Mr Langfield was about to clean the grain bin, he had just finished harvesting a full field of wheat and had unloaded the last of the grain from that paddock into the chaser bin. He had at least a further paddock of wheat to harvest that day. If he was to turn the engine of the machine off, as Mr McKay says he was told to do, he should have followed the operating instructions and left the engine running at low idle speed for some few minutes. Whether he did or intended to do it was never put to him. On his evidence, which I accept, his intention was to turn off the augers. In such circumstances, the engine would still be running. 176 The other reason why turning off the unloader drive to isolate the discharge augers in the way Mr Langfield chose to do it was the most expeditious way to do it in the circumstances, is further supported by the fact, when Mr McKay approached the machine and looked into the grain bin, saw Mr Langfield and that the augers were on, his immediate and instinctive reaction was to press the unloader drive switch in order to isolate the augers. Counsel for Raynjune said that was simply a reaction to an emergency situation. Such a submission is speculative but I accept the good sense of such an action. What it does also point to is that Mr McKay instinctively pressed the unloader drive switch in order to isolate the augers prior to entering the grain bin. When he was asked why, he said: Q. …. Are you able to say why you turned the unloader auger on/off switch off rather than turn off the engine? A. Well, I think it's just a response. The augers were going and that's the switch that stops the augers, the first thing I turn off. 177 Quite apart from the emergency response, Mr McKay's evidence emphasises that when working in the field and being required to clean out a grain tank between paddocks, there was a real possibility that, to save time but still turn off the floor augers, the employee would naturally just turn off the unloading system and leave the engine running at idle speed. 178 What the evidence strongly points to is that Mr Langfield, in going about the task of cleaning the grain bin on the day of his accident, saw it as appropriate to do as he intended to do, that is, to isolate the augers in the grain bin. In doing so he acted, as best as I can determine, carelessly or inadvertently, in that he failed to properly depress the unloader drive switch. While such an eventuality would be unusual, it is a possibility that could and did occur in the circumstances in which Mr Langfield was operating. 179 The defendant's obligations to ensure a safe system of work required it to put in place a system of work that would override such inadvertence. On this point, I refer to the observations of Bauer J in WorkCover Authority of New South Wales v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 as follows: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

180 That approach was endorsed by the Full Bench in Riley v Australian Grader Hire Pty Limited (2001) NSWIRComm 31 at [15]. 181 The question arises therefore - what options did the defendant have at it's disposal to put in place a system of work for cleaning the grain bin that would ensure the augers were isolated? On the evidence, the defendant had two things it could do to ensure a safe system and eliminate the risk from the augers. It could turn off the engine and return the unloader tube to it's saddle. The defendant says it chose the former as the safest option. I do not agree. Given the circumstances in which Mr Langfield was cleaning the grain bin and the potential for serious injury if he was to come into contact with the rotating augers, it had to consider all steps available to it in order to ensure safety. I believe the only safe system the defendant could, and should have adopted was to incorporate into the system of work for cleaning the grain bin all steps available and able to be implemented in order to ensure workplace safety. 182 Notwithstanding the defendant's asserted instruction he was to turn off the engine, the evidence clearly establishes Mr Langfield did not do that on the day of his accident. As he said himself, to the extent he can remember, he thought he had and intended to turn off the unloader drive preparatory to entering the grain bin. That step, if it had been achieved, would have isolated the discharge augers. If, as the defendant suggests, Mr Langfield was told to turn off the engine prior to entering the grain bin as part of the system of work for cleaning the bin, then he clearly failed to observe that system. 183 Mr Langfield said he could not remember turning off the engine of the machine before getting into the grain bin. Based on the evidence, however, he did not do so but intended to turn off the discharge augers instead. In assessing the operation of the machine and the evidence referred to, the inference is clear that he intended to do so because it was the most direct and expeditious way to do so. To turn the machine off completely took time whereas pressing the unloader drive switch to turn off the discharge augers was a quick and simple task. It was, in other words, a short cut to isolating the discharge augers. As is evident, Mr McKay did it on the day of the accident. 184 The evidence of Mr Collins, with which I would agree, was quite emphatic as to what an employer should do in devising a safe system of work where mistakes and short cuts might be a factor. As he said: Q. Should an employer, in devising a safe system of work, take into account the risk that the employee might make a mistake? A. Absolutely.

Q. Should the employer take into account the risk that the employee might seek to take a short cut or to save time? A. Absolutely.

Q. By avoiding a complex procedure and instead adopting a quicker procedure? A. Absolutely. 185 Notwithstanding the above, Mr Collins believed that an instruction to turn off the engine was 'the simplest and easiest for individuals to understand'. It may be that such an instruction is simple and easy to understand but that does not mean, given the facts and circumstances, when cleaning the grain bin, it was the safest way of ensuring the risk to safety in relation to the augers was eliminated or adequately controlled. 186 As the evidence established, there were a number of factors operating against ensuring Mr Langfield followed the procedure of turning off the engine before getting into the grain bin to clean it out of residue before moving to another paddock. These were: (a) a time imperative, not to wait for the engine to cool down;

(b) a time and labour imperative - turning off the engine was a relatively complicated process;

(c) that switching off the unloader drive was a more natural way of stopping the floor augers than was turning off the engine. 187 Taking the above factors into account, the defendant's general direction that before entering the grain bin the engine be turned off was inadequate, in that it failed to take account of the likelihood that, when cleaning out the grain bin during field operations such as those being undertaken on 8 December 2003, an employee such as Mr Langfield would be minded to isolate the discharge augers by simply turning off the unloader drive switch. In order to address that propensity and to ensure the augers were isolated before he entered the bin, the system of work should have included an instruction that the unloader tube be returned to the saddle. 188 Returning the unloader tube to it's saddle would have acted as a visible indicator, readily observable to the operator of the machine, that the discharge augers were isolated and would not operate. It is also an important adjunct to the instruction to turn off the engine in order to nullify the actions of an employee who, through inadvertence or haste, intended to turn off the unloader drive rather than the engine and failed to do so, as exemplified by Mr Langfield on the day of his accident. 189 I should add on this point that Mr Collins expressed his disagreement as to the need for this step as an additional safeguard. It is worthwhile, I believe, to set out the entirety of his opinion on this issue which was as follows: I have been asked if, in my professional opinion, there were other safe work issues that could have prevented this accident from occurring. In particular if the issue of using the auger boom as an interlock switch would have increased the level of safety. It would appear to me that almost any additional safe work activity could be said to reduce the risk however since the safe guards that were taken failed the question can more appropriately be stated as 'Does the additional safeguard add significantly to the reliability of the controls already provided?' I understand from the transcripts that the auger boom has on it a process interlock so that when the boom is in the saddle position and not in a position to deliver grain to the external vehicle then the grain tank augers are isolated and stationary. I believe the suggestion here is that this can be used as an additional safeguard that will ensure that the augers are isolated. In my opinion this simplistic assumption has a number of issues that I feel may reduce the reliability of the additional safeguard so that it has little impact on the safety of the process. These are: 7.1 The switch involved in the auger boom may not have been designed to a safety specification and would have a relatively low level of reliability since in its design specification the result of failure would only be wasted grain. 7.2 The operator would have to remember to move the boom back onto the saddle. If he remembered this he would probably have remembered to turn off the engine as required. 7.3 The manual makes no reference to this additional safeguard and therefore the farmer would have to consider his lack of skill in machinery design in implementing a different additional process. 190 It is difficult to know the basis for Mr Collins' above opinion given he provides no basis or reference point to ground the opinions he has expressed on this issue. I can only say that not only do I dismiss his opinion as being of no or negligible weight, it is an opinion with which I disagree and which is contrary to the evidence. To start with, Mr Collins assertion as expressed at 7.1 in para [189] above is pure speculation and without any evidentiary foundation. In cross examination, Mr Collins agreed it was. 191 Next, as counsel for the prosecutor contended, if the dominant design purpose was to save grain rather than to save limbs, having regard to the purpose and lengthy antecedents of the design of the machine, there would be a greater likelihood that the position of the unloading tube would be a reliable indicator as to the status of the unloading augers. I would agree. 192 Further, the evidence from the Operator's Manual (exhibit 15 at pp 27 and 134) as well as that of Mr Rendell was that it was only possible for the discharge augers to operate when the unloading tube was in the 'out' or extended position. None of that evidence was challenged. 193 The opinion expressed by Mr Collins at 7.2 in para [189] above is not sustained when the evidence as to how those aspects of the machine operate is considered. 194 First, the procedure of sending the unloader arm back to its saddle was accomplished with the operation of only one switch. It did not have any delays or multiple step processes involved in it like shutting down the engine. Second, checking where the unloading tube was before entering the grain bin was a task achieved by a simple act of visibly checking. Contrary to Mr Collins' opinion, it did not require the performance of any mechanical task. It would, on any view, have been a relatively straightforward instruction to have incorporated into a system of work for cleaning the grain bin in order to ensure the augers would not operate and, at the same time, address any propensity for an employee, in the operational circumstances of Mr Langfield, to turn off the unloader drive rather than the engine. 195 Finally, as to the opinion expressed by Mr Collins at 7.3 in para [189] above, I accept, as counsel for the prosecutor contended, that there are a number of difficulties with this observation. One is that the skill the farmer would be required to have would have been a skill in the operation of the machine rather than it's design. Second, the manual made no reference to cleaning the grain tank. Nor did it provide any method to do it. Third, the farmer did not need to be an expert in machinery design in order to design a safe system of work because the manual told him, twice [ex 15, pp 27, 134], that the unloading augers would not work if the unloading tube was in its saddle. 196 Given all the above, I am satisfied there was a clear and easy system of work that could have been implemented in order to ensure workplace safety in relation to the task of cleaning the grain bin or any task requiring entry into the bin. That was a system that involved: (i) checking to see the unloading tube was in it's saddle; (ii) not entering the grain bin if it was in the extended position; and (iii) turning off the engine. 197 The above system of work, if implemented, would have ensured the augers in the grain bin were isolated and would address the real possibility of an employee failing to turn off the engine in field operations and, for reasons of expediency, choosing instead to isolate the discharge augers in the manner exemplified by Mr Langfield on the day of his accident. 198 Given the conclusions I have come to, I am of the view the defendant's system of work in relation to cleaning the grain bin, encompassing as it did an obligation to ensure the augers were not operating was, in all the circumstances, inadequate. 199 Further, I am satisfied there was a causal nexus between the defendant's failure to provide a safe system of work as particularised and the risk to Mr Langfield's safety exemplified by his accident at work on 8 December 2003. Accordingly, I find the offence proved. Defences arising under s 28 of the Act

200 Section 28 of the Act provides: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 201 In raising the statutory defences available, the defendant has the onus of establishing, to the civil standard of proof, both or one of them in order to displace the absolute obligation s 8(1) imposes. 202 In relation to s 28(a) the defendant submitted, on the evidence, it 'must be concluded the defendant did all that it could. Mr Langfield clearly acknowledged that he knew what the safe procedure was, and he was reminded of it immediately before his accident'. (emphasis added) 203 I have already concluded, on the evidence, I am not satisfied beyond reasonable doubt Mr Langfield was reminded immediately before his accident to 'turn the engine off' in such explicit terms as contended. The only direction I can be sure Mr Langfield was given is that he was directed to clean the grain bin. Even if Mr McKay did give an instruction as to turning off, I am not satisfied any instruction in the terms in which it was asserted to have been said could be said, without considerable doubt, to be referring to the machine as distinct from the discharge augers. 204 The defendant also submitted, the alleged system of work failure went to what was characterised as the 'fallible human or administrative component.' Accordingly, it was not reasonably practicable to comply with the absolute obligation s 8(1) requires. Human conduct, it was submitted, could not be a substitute for permanent engineering solutions which, the defendant argued, was what was needed to make the machine safe. 205 The above submission would appear to centre on the belief that the defendant could not be held responsible for Mr Langfield's conduct. That is, he (Mr Langfield) knew not to get into the grain bin when the augers were running and he had been instructed to turn off the machine before doing so. He did not do so and it was his conduct that caused the accident. In short, the defendant had done all that was reasonably practicable in the circumstances. 206 I have to say I do not agree. Apart from the findings I have made as to the inadequacies in the defendant's system of work in relation to cleaning the grain bin, what is 'reasonably practicable' for the purposes of s 28(a) of the Act has been the subject of extensive judicial consideration. 207 In the first instance, what is 'reasonably practicable' for the defendant to have done to comply with the Act must be an objective determination based on the facts and circumstances of the case. See Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 362 and WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 at [80]. 208 In Slivak v Luigi (Aust) Pty Limited (2001) 205 CLR 304 the High Court (Gleeson CJ, Gummow and Hayne JJ) said at [37] concerning the phrase 'so far as is reasonably practicable' in s 24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA): The requirement applies to matters which are within the power of the designer to perform or check… 209 In her dissenting judgment in Slivak v Luigi, Gaudron J commented on the phrase 'reasonably practicable' in the following terms: The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

· the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible"; · what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time (38); · to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk. 210 In WorkCover Authority of New South Wales v Fletcher Constructions Australia Pty Limited (2002) 123 IR 121 the Full Bench reviewed the proper approach to be taken to the phrase 'reasonably practicable' by reference to relevant authorities and endorsed, by majority, the conclusion expressed by Walton V-P in WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 at [88] as follows: As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 211 A system of work that involved entering the grain bin with the attendant risk to safety represented by the augers was not only known to the defendant. It was also a risk that entailed the potential for serious injury. 212 The statement by Gaudron J above that '... the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts' was applied by the Court of Appeal in Powercoal Pty Limited v Industrial Relations Commission (New South Wales) (2005) 145 IR 327 at [84]. 213 Finally, on the application of foreseeability to the statutory defence of reasonable practicability: See Genner Constructions Pty Limited v WorkCover Authority (New South Wales) (Inspector Guillarte) (2001) 110 IR 57 where the Full Bench (at 74-5 [67]) said: … it would not generally be practicable to take measures to guard against a detriment to safety that was not reasonably foreseeable. 214 Also, on the issue of foreseeability it is relevant to a defence under s 28(a) if the inadvertence, inattention, disobedience or unreasonableness on the part of an employee was not reasonably foreseeable: See WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 at [129] where Walton V-P said: I note that the statement of principle in Arbor Products appears to qualify the extent of the duty to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee to only that conduct which is "reasonably foreseeable". The use of the words "reasonably foreseeable" in that context should not be construed as introducing an element of foreseeability to the duty owed under s 15, or to limit the risks to safety contemplated by s 15 to only those that are foreseeable (as was proscribed by the majority in Drake Personnel Ltd ). Rather, to the extent that the behaviour of careless or disobedient employees may not be reasonably foreseen, that is a matter which may properly be raised in relation to a defence under s 53 of the Act. That is, the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against. 215 See also on this point, the Full Bench decision: Morrison v Powercoal Pty Limited and anor (2004) 137 IR 253 at [121]. 216 Given the above principles and having regard to the facts and evidence in this matter, I am satisfied the relevant risk to safety that the rotating augers represented was clearly foreseeable. I am equally satisfied that the action of Mr Langfield of intending to switch off the unloader drive rather than the engine was, given the prevailing work circumstances together with the operation of the machine and the action required to isolate the augers in the grain bin by switching off the unloader drive, readily foreseeable. 217 In order to address that, the defendant had within it's administrative control, a simple, expedient and by any measure, a reasonably practicable step to take. It could have incorporated into it's system of work for cleaning the grain bin a direction that the unloader tube should be returned to the saddle in order to engage the relevant interlock switch that would be a visible checking mechanism to the operator that the augers in the grain bin were isolated before any attempt was made to climb in. 218 Such a direction required no cost, time or trouble to the defendant. 219 In all the circumstances, I am not satisfied the defendant has discharged the onus that a defence under s 28(a) requires. 220 In relation to the defence arising under s 28(b). Given the findings of fact I have made and the relevant circumstances prevailing, I am satisfied that, at all times, the defendant had it within it's control, the ability to make provision for the system of work I have already detailed. The failure of the defendant, grounding the offence under s 8(1), was a failure to provide a system of work for the cleaning of the grain bin that ensured the augers were not running at the time. The defendant's system of work failure encompassed a failure to adequately risk assess the task of cleaning the grain bin relating to the isolation of the augers prior to entering the grain bin in the work circumstances prevailing and then determine how to eliminate that risk by clear and comprehensive instructions, training and information designed to do so or to minimise the risk to the lowest level reasonably practicable. The defendant failed to do that and the commission of the offence was due to circumstances over which the defendant had control and which it was practicable for it to prevent. 221 Accordingly, I am not satisfied the defendant has discharged the onus that a defence under s 28(b) requires. 222 Having regard to all of the above, I am satisfied beyond reasonable doubt that on 8 December 2003 the defendant failed, as particularised, to ensure the health, safety and welfare at work of all it's employees, in particular Mr Rodney Langfield. I find the offence proved. 223 I will hear further from the parties on the question of penalty and costs.

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