Saunders Civilbuild Pty Ltd v SafeWork New South Wales

1. [1]

   BEECH-JONES CJ at CL: On 10 November 2021, the appellant, Saunders Civilbuild Pty Ltd, was convicted of an offence under s 32 of the Work Health and Safety Act 2011 (“the WHS Act”) (SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605; (“Saunders Civilbuild (No 1)”). It appeals against that conviction pursuant to s 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW).

2. [2]

   The background facts and circumstances of the prosecution along with a summary of the primary judge’s reasons are set out in the judgment of Walton J. On appeal it was accepted that the elements of the offence were that the appellant: (1) conducted a business or undertaking; (2) owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of workers engaged by it or workers whose activities are influenced or directed by it while those workers were at work in the business or undertaking; (3) failed to comply with its health and safety duty; and (4) the failure exposed an individual to risk of death or serious injury.

3. [3]

   In this Court, only element (3) was in issue. The particular health and safety duty that was owed by the appellant and found to have been breached was that imposed by s 19(1) of the WHS Act, the relevant terms of which are reflected in element 2 (see [138]). Further, s 19(3) provides, inter alia, that, without limiting the duty imposed by s 19(1), a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the “provision and maintenance of safe systems of work.”

4. [4]

   One of the individuals who was found to have been exposed to a risk of death or serious injury by the appellant’s breach of duty was the late Mr Geoffrey Edwards. A labourer employed by the appellant, Mr Nathan Williams, was the other. On 16 February 2018, Mr Edwards was the driver of a truck which was contracted to deliver an excavator and timber piles to a residential building site on behalf of the appellant. When he arrived at the site, he was assisted by Mr Williams, and by a supervisor employed by the appellant, Mr Stephen Brown. While they were attempting to unload the first of three bundles of timber piles, Mr Edwards climbed onto the top of the load of timber piles and Mr Williams climbed onto the trailer. After the first bundle of timber piles was lifted, Mr Edwards fell from the truck and suffered a serious head injury that led to his death a few days later.

5. [5]

   The appellant clearly recognised the risks associated with persons such as Mr Edwards and Mr Williams loading and unloading materials from the trailers of trucks. The primary judge accepted that in 2017 the appellant “issued a verbal direction to its employees that they were not allowed to climb onto the back of trucks or trailers to load or unload them” and, at the same time, introduced a practice of attaching slings to bundles of piles before they were loaded onto trucks, so that they could be unloaded at their destination without the need for a person to climb onto the load or onto the back of a truck or trailer (“pre-slinging”). [1] However, these practices were not recorded in any of the versions of the appellant’s safety control documents known as “Safe Work Method Statements” (“SWMS”) that existed before the accident. The primary judge found that the evidence as to when the practice of giving a verbal direction commenced was “imprecise and inconsistent”. [2] His Honour also did not accept that verbal directions were systematically conveyed to contract drivers prior to the accident. [3] Critically, his Honour rejected evidence given by Mr Brown to the effect that when Mr Edwards attended the appellant’s business yard on the day before his accident to collect the excavator and the three bundles, Mr Brown told him that the “bundles of piles were pre-slung so they could be lifted off the truck from the ground because the [appellant] had a rule that no one was allowed to get up on the back of the trucks”. [4]

Ground 1 of the Appeal: Finding the offence proven

1. [6]

   Ground 1 of the notice of appeal contends that the primary judge “erred in law and fact” in concluding that it was established by the evidence that the charge was proved beyond reasonable doubt. Clearly this ground is far too widely expressed. However, some precision surrounding the ground emerged during oral argument.

2. [7]

   One aspect of the first ground of appeal is a challenge to the rejection by the primary judge of the part of Mr Brown’s evidence noted at [5]. This is addressed in detail by Walton J (at [233]-[235]). The essence of the complaint on appeal is that, in rejecting Mr Brown’s evidence partly on the basis that the supposed timing of the conversation was “far too convenient for my liking” (being the day before the accident), [5] the primary judge ignored the context that Mr Brown said the conversation occurred in, namely a discussion about why the piles had been tied in string (i.e. pre-slinging). [6] I am not satisfied that his Honour overlooked that context. An assessment of the credibility of this aspect of Mr Brown’s evidence is something that his Honour enjoyed a distinct advantage compared to this Court. Leaving aside the difference between an appeal in the strict sense and an appeal by way of rehearing, no basis for disturbing that finding has been established (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). I otherwise agree with Walton J’s reason for rejecting this challenge.

3. [8]

   As explained by Walton J, the primary judge upheld three of the four particulars set out in [17] of the Summons, each of which was sufficient to make out the charge.

4. [9]

   Particular [17(a)] was upheld by the primary judge. It provided:

5. [10]

   The primary judge dealt with sub-particulars [17(a)(i)] and [17(a)(ii)] together. His Honour noted that these particulars “encapsulated the verbal direction and the practice of pre-slinging loads” [7] which I understand to mean that, at the very least, a “safe work method or safe work procedure” encompassed conveying the direction and placing loads onto trucks in a way that they could be unloaded without needing to climb onto the trailer. His Honour noted that the appellant’s relevant SWMS did not contain any reference to either of those methods. His Honour then reasoned: [8]

6. [11]

   The essence of the criticism of this reasoning on appeal is that, in a context where the duty imposed by s 19(1) of the WHS Act is conditioned by the words “so far as is reasonably practicable”, there was “no evidence called to tend to prove … in the circumstances of this case, how [the measure identified in this passage] better minimised risk” compared to “Mr Brown [looking] Mr Edwards in the eye and [having] a one-to-one conversation with him telling him verbally that there is a prohibition on getting on the back of a truck”. [9] The obvious difficulty with this submission is that his Honour did not accept Mr Brown said that to Mr Edwards, and the balance of his Honour’s finding were to the effect that the practice of issuing verbal instructions was not systematic but was very much ad hoc. In those circumstances, his Honour considered that a documented practice that recorded the necessity to convey the direction, accompanied by having workers acknowledge in writing their receipt and understanding of such a direction, was necessary. With respect, that conclusion was simply a matter of common sense and his Honour did not need any further evidence to reach it. Otherwise, I agree with Walton J’s reasons for rejecting the challenge in relation to particulars [17(a)(i)] and [17(a)(ii)]. The findings in relation to those particulars are sufficient to uphold the conviction.

7. [12]

   In relation to sub-particulars [17(a)(iii)] and [17(a)(iv)], I agree with Walton J for the reasons his Honour gives that the primary judge’s finding in relation to those particulars cannot be sustained.

8. [13]

   The second particular that was established before the primary judge was as follows:

9. [14]

   The primary judge identified two aspects of the training that were inadequate, namely the training given to Mr Brown in that he gave evidence that he thought the practice of unloading adopted by Mr Edwards was safe, and the inadequate, i.e. non-existent, training given to Mr Edwards. [10] Having regard to the training measures that were introduced after the accident, his Honour found that the provision of appropriate training was a “reasonably practicable step that [the appellant] failed to take”. [11]

10. [15]

    The main complaint made in relation to this particular is the same as that made in relation to sub-particulars [17(a)(i)] and [17(a)(ii)], which has already been addressed (at [11]). Otherwise, it was submitted that the primary judge erred in reasoning that, because something was done after the accident to minimise risk in the form of training that reflected the direction and undertaking pre-slinging, it followed that those measures should have been done prior to the accident. I do not accept his Honour so reasoned. His Honour’s finding that such training should have been undertaken was made in the context of the ostensibly ad hoc verbal warning system that was in place prior to the accident. I otherwise agree with Walton J for rejecting the challenge to the primary judge’s finding in relation to this particular.

11. [16]

    Particular [17(c)] which the primary judge found was established was as follows:

12. [17]

    The primary judge’s reasons for upholding this particular, and the basis for the challenge to them, are set out in the judgment of Walton J (at [323]-[329]). I agree with his Honour’s reason rejecting that challenge.

Grounds 2 and 3 of the Notice of Appeal

1. [18]

   Ground 2 of the appeal contends that the primary judge erred in not applying his Honour’s reasoning for refusing a stay of the proceedings based on the presence of the word “and/or” between the words “loading” and “unloading” in the particulars by construing it as a reference to both. Ground 3 contends that the primary judge erred in concluding that the word “permitted” in par 16 of the summons was not an essential fact that had to be established by the prosecution. Paragraph 16 alleged that the appellant “permitted” Mr Williams and/or Mr Edwards to access to the trailer of Mr Edward’s truck when he arrived at the building site.

2. [19]

   I agree with Walton J’s reasons for rejecting these grounds. In relation to ground 2, it is evident from the above that the primary judge’s analysis of the evidence concerning the verbal direction and pre-slinging was referable to the loading and unloading of trucks generally and Mr Edward’s truck in particular. In relation to ground 3, given the control exerted by the appellant over Mr Edwards and Mr Williams at the site at which Mr Edwards attended, it clearly did “permit” him to climb onto the trailer attached to his truck when he attempted to unload the excavator and wood piles. In any event, that was not an “essential fact” that had to be proved by the prosecution to make out the charge.

Future progress

1. [20]

   Lastly, I note that at the hearing of the appeal there was some uncertainty about whether the appeal extended to include an appeal against sentence. The appeal concluded on the basis that the Court would publish its judgment in relation to the conviction appeal with the parties then having liberty to apply in respect of sentence. The parties should have liberty to apply to Walton J for directions in relation to sentence, although it should be noted that if a sentence appeal is to be pursued, a new Court will need to be constituted by the Chief Justice.

2. [21]

   I agree with the orders proposed by Walton J.

3. [22]

   WALTON J: By a Notice of Appeal filed 13 February 2023, Saunders Civilbuild Pty Ltd (“the appellant”) brought an appeal under s 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW) against a conviction for an offence contrary to ss 19(1) and 32 of the Workplace Health and Safety Act 2011 (NSW) (“WHS Act”).

4. [23]

   The conviction followed upon the judgment of Scotting DCJ (“the primary judge”) on 10 November 2021 in which his Honour found that the offence had been proven: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 (“Saunders Civilbuild (No 1)”).

5. [24]

   The conviction was formally entered at the conclusion of the sentence proceedings on 18 May 2022. In his Honour’s sentencing decision, Scotting DCJ ordered the appellant to pay a fine of $375,000 along with a series of adverse publication orders pursuant to s 236 of the WHS Act: SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163.

6. [25]

   Whilst the Notice of Appeal in these proceedings refers to an appeal on conviction and sentence, the sentencing judgment of Scotting DCJ was not formally put before the Court and no submissions were advanced with respect to that appeal.

7. [26]

   A submission was faintly advanced by Ms M Cunneen, senior counsel for the appellant, that a determination by this Court that the appeal was partially successful might result in a revisiting of the sentence imposed upon the appellant, conceivably because the establishment of a single particular of a charge is sufficient to sustain the conviction of the appellant: Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361; (1997) 98 A Crim R 481 at 365 (Gleeson CJ with whom Ireland and Bruce JJ agreed).

The Prosecution

1. [27]

   The charges arose from circumstances in which Mr Geoffrey Edwards fell from his truck during the course of unloading piles under contract with the appellant for the purposes of the appellant undertaking piling works on behalf of Beechwood Homes (NSW) Pty Ltd (“Beechwood”) at Lot 87, 4 Rigney Place Shoal Bay (“the site”). Mr Edwards suffered a blunt force head trauma and not withstanding hospital treatment, he died six days after his fall on 16 February 2018 (“the incident”).

2. [28]

   On 31 January 2020, SafeWork NSW (“the respondent”), brought a prosecution against the appellant by a Summons filed in the District Court of NSW on 31 January 2020 (“the Summons”), alleging, as mentioned, contraventions of ss 19(1) and 32 of the WHS Act (“the charge”).

3. [29]

   The charge alleged the following:

4. [30]

   The appellant entered a plea of not guilty to the charge and the proceedings were heard in a summary trial before Scotting DCJ on 20, 21 and 22 September 2021 and 5 and 7 October 2021. Relevantly, the particulars of the charge were:

5. [31]

   Scotting DCJ found particulars 17(a)(i)-(iv); (b) and (c) of the charge proven beyond reasonable doubt. His Honour found that the prosecution had not proved the final particular beyond a reasonable doubt (at [17](d)).

Factual Background

1. [32]

   The appellant operated a business involving construction work including bridge design and construction, wharf construction, major concrete and building works, pre-cast concrete manufacturing and piling works. The appellant's piling services operated from a yard in Redhead in New South Wales (“the yard”).

2. [33]

   On or about 31 March 2017, the appellant acquired Civilbuild Pty Ltd (“Civilbuild”) that operated the business of providing piling services and other construction activities. Thereafter, the appellant operated the business that was formerly conducted by Civilbuild.

3. [34]

   Prior to the acquisition of Civilbuild, Civilbuild had implemented two Safe Work Method Statements relating to the activities of loading and unloading trucks and pile driving. (In this judgment, the abbreviation “SWMS” will be used for both the singular and plural versions of “Safe Work Method Statement”).

4. [35]

   The first of the SWMS was entitled “Civilbuild Pty Ltd Safe Work Method Statement Loading and Unloading Trucks”. This SWMS was dated 25 February 2016.

5. [36]

   Typical of SWMS operating at industrial enterprises, the SWMS provided a hierarchy of control with respect to the risks which were rated both in terms of the potential hazards and the risk remaining after the introduction of the safety control.

6. [37]

   The second SWMS, which operated at the time of the accident giving rise to the charge, was the “Civilbuild Pty Ltd Safe Work Method Statement – Pile Driving SWMS (Number 6)” (“the Pile Driving SWMS”), dated 27 January 2016. (The Pile Driving SWMS, in evidence, concerned the work for Beechwood).

7. [38]

   The Pile Driving SWMS contained a risk assessment table which appeared in the form of a matrix, describing ‘severity’ on the horizontal bar and ‘likelihood’ on the vertical bar which provided an overall risk rating. There was a hierarchy of controls ranging from the most effective, ‘eliminate,’ to the least effective, ‘administrative’ and ‘personal protective equipment’. The Pile Driving SWMS then addressed the work process through a number of steps, identifying in each case a step-by-step procedure, possible hazards, a risk rating, safety controls, the residual risk rating and who was responsible.

8. [39]

   Step eight concerned a step-by-step procedure with respect to Pile Rig set up. The possible hazards identified were: loading and unloading equipment; routine pre-start (slip and fall hazards when walking around and inspecting equipment), unplanned movement of machinery during ground level inspection and access deck. The risk rating was high and after various safety controls were applied the residual risk rating was low. What step eight, in the Pile Driving SWMS, did not identify as a possible hazard was the unloading of piles from the truck. No other step in the procedure made provisions for that hazard and as a result, there were no safety controls within the SWMS addressing that hazard.

9. [40]

   Civilbuild also had in place a number of Safe Work Procedures (Safe Work Procedures, both the singular and the plural, will be referred to as “SWP” in this judgment) prior to acquisition, which included procedures concerning personal protection, the use of lifting equipment and the operation of plant vehicles. However, none of those SWP contained a particular reference to the unloading of piles from trucks (or a later practice of pre-slinging loads to be unloaded from trucks prior to the incident).

10. [41]

    After the acquisition of Civilbuild, the appellant identified that the risk of a fall from height could be controlled by prohibiting workers from accessing the back of trucks or trailers during the loading or unloading process.

11. [42]

    The appellant adopted an engineering control whereby slings would be attached to bundles of piles before they were loaded onto trucks so they could be unloaded at their destination without the need for a person to climb on to the load or onto the back of the truck or trailer. This practice was known as pre-slinging the load: Saunders Civilbuild (No 1) at [28].

12. [43]

    Inspector Bronwyn Halcroft’s (“Inspector Halcroft”) evidence was that the purpose of pre-slinging a load is to permit loads to be loaded onto and unloaded from trailers by workers working on the ground.

13. [44]

    Before turning to some further aspects of the factual background, it is convenient to recount various responses to notices issued by Inspector Halcroft pursuant to s 155 of the WHS Act, respectively Notices 7-333707; 7-337873; 7-342610 and 7-339642. These are adequately set out in (Saunders Civilbuild (No 1)) at [73]-[79] as follows:

14. [45]

    I interpose here to note that at the time of the incident, the Edwards Float Hire Safe Work Method Statement (“EFH SWMS”) did not deal with the accessing of piles or a trailer during loading or unloading and accordingly, pursuant to the Integrated Management System, the policies operated by the appellant applied.

15. [46]

    I also note the question and answer at Q45 in Notice 7-333707, reads as follows:

16. [47]

    Continuing with Scotting DCJ’s judgment with respect to the Notices:

17. [48]

    The appellant also gave a verbal direction to its employees soon after its acquisition of Civilbuild that they were not allowed to climb onto the back of trucks or trailers to load or unload them: Saunders Civilbuild (No 1) at [28] (“the verbal direction”).

18. [49]

    It will be observed that in his response to Notice 33942 Mr Benson indicated that the practice of pre-slinging commenced and the verbal direction was given in November 2017. Scotting DCJ found that the evidence of Mr Stephen Brown, a site supervisor of the appellant and the supervisor at the site where the incident occurred, should be accepted in that respect, namely, that the change in policy and procedure was introduced shortly after acquisition, on 31 March 2017. Mr Nathan Williams left Civilbuild to work for another company in 2017 and when he returned three to four months later, the appellant operated the business. (Mr Williams is one of the workers referred to in the charge and his position will be discussed further below). Mr Williams received the verbal direction at that time. There was no dispute in the appeal as to that finding and it may be accepted for the purposes of this appeal: Saunders Civilbuild (No 1) at [90].

19. [50]

    On 17 November 2017, the appellant issued a SWMS entitled “[Saunders Civilbuild] SWM Abutment Construction for Martins Creek Overbridge site”. That SWMS did not identify the risk of falls from heights associated with workers accessing the backs of “delivery trucks”. However, a handwritten amendment was made to the SWMS noting a risk assessment in relation to a risk of “falls from heights” associated with the “delivery of roof formwork” and “Safety Controls” in that respect, including that “all delivery trucks must have fall prevention in place if worker is to access the tray” and “avoid accessing the tray where possible – look to pre-sling loads.” The relevant safety controls were directed in the amendment to the delivery drivers, supervisors, and project managers.

20. [51]

    On 12 August 2017, the appellant adopted an Integrated Management System in the form of a written manual (“IMS”). (A revised IMS was issued on 18 June 2018).

21. [52]

    In this document, the appellant recognised that it used IMS processes as part of its risk management strategies to ensure appropriate planning of all its operations. This was demonstrated by the development of a Project Management Plan (“PMP”) for each individual project (cl 2).

22. [53]

    The appellant indicated that it was committed to ensuring a safe and healthy work environment and required “all its employees and sub-contractors to perform their duties in a manner which ensured their own safety as well as that of those around them” (cl 2.2). The IMS was designed, it was stated, to assist the appellant in ensuring that it was meeting its legal, moral, and social obligations in that respect.

23. [54]

    The appellant’s objective was the highlighting of safety policy and procedures to all personnel and the identification of hazards in the workplace. A further objective was to “develop appropriate work methods and procedures to ensure safe performance of all activities” (cl 2.2).

24. [55]

    The IMS document stated the scope and components of the IMS. The IMS defined the “processes and procedures which are required as a combined Quality Management System, Environmental Management System and Worker Health and Safety Management System.” It applied to all of the appellant’s “staff and sub-contractors.” Such persons were required to comply with the processes and controls specified in the IMS (cl 3). The IMS was made up of a system and process framework to provide the basis for the achievement of compliance to safety; procedures which outlined specific requirements required to be completed to achieve compliance and “project specific documents that describe any project specific controls to verify and provide evidence that the quality, environmental and safety aspects of the work as well as any client requirements are met” (cl 3.1). Work Health and Safety was defined in the IMS as, inter alia, “the health and safety of those at work or those who may be affected by the carrying out of the work, and, where the context permits, the preservation or protection of the health and safety of such people” (cl 3.1).

25. [56]

    The structure of IMS was described diagrammatically as follows at cl 3.2:

26. [57]

    The image depicts the pathway of the system structure of the IMS. The bottom of the ‘flow chart’ is labelled “records”; the ‘requirements’ (Clients, Legal and legislative, technical and others) lead to records; the ‘Guidelines and Historic Documents’ also lead to records. There is a two-directional flowchart in the middle of the diagram which connects requirements to the ‘Integrated Management System’ (Policy, System Procedures, Process Procedures & Controls) to Guidelines and documents ITP/SWMS/Risk assessments/Forms/Checklists. (“ITP” means “Inspection Test Plan”). The arrows go in both directions within the flowchart.

27. [58]

    It was identified in the IMS that the appellant’s policies included implementing safe workplace practices, providing an effective system of hazard identification and injury reporting.

28. [59]

    The appellant’s policy within the IMS was that it was committed to providing and maintaining “a safe and healthy work environment for all personnel involved in our operations.” It was further stated that the appellant required the same level of commitment from “our employees, sub-contractors, suppliers and visitors” (cl 4). It was stated that the appellant would endeavour to achieve these outcomes by, inter alia, the establishment of systems of work that ensured safe use, handling, storage and transport of plant equipment, material structures and hazardous substances and that there is a provision of any “information, training, instruction or supervision that is necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the business.” The appellant’s duty also extended to the monitoring of workplaces.

29. [60]

    Section 5 of the IMS dealt with “Our Organisation and People.” Clause 5.1 is entitled “Responsibilities.” In that clause, it is stated that “all staff and sub-contractors are inducted, and training is provided to ensure they understand their responsibilities for the effective implementation and operation of the IMS.” It was stated in cl 5.1.2 that, if “someone is engaged solely as a worker or an officer, and is only responsible for implementing decisions made by the PCBU, that person is not a PCBU” (PCBU means ‘person conducting a business or undertaking’). A worker is defined in that context to include “employees, volunteers, contractors, sub-contractors, apprentices, work-experience students and outworkers.” As to sub-contractors and consultants, cl 5.2 of the IMS emphasised that such entities must be selected based on their ability to deliver products and services including with client requirements and that:

    1. (1)

       The sub-contractors are to be inducted into the IMS, with particular emphasis on WHS and environmental control (this did not happen for Mr Edwards);

    2. (2)

       Where relevant, they must be required to submit a project specific, quality, WHS and environmental document. In the absence of suitable documentation of their own, the sub-contractors were required to implement the controls and be monitored in accordance with the Saunders Civilbuild IMS requirements.

30. [61]

    Clause 5.1.4 states that the appellant must ensure “duties of care.” These are to be fulfilled by the appellant ensuring as far as reasonably practicable the safety of workers of the appellant and workers whose activities in carrying out work are influenced and directed by the appellant. In the second dot point of the clause, it is stated as the fulfilment of the duty that “the health and safety of other persons is not put at risk from work carried out.” Likewise, the duty is met by “provisions for and maintenance of safe systems of work.” The clause also states that the appellant must ensure its duty of care is fulfilled by ensuring, so far as practicable, there are “provisions of any information, training, instruction or supervision that is necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the business.” The appellant must ensure suitable monitoring of workplaces under its control to identify “hazards and risks, to prevent workers from becoming ill or sustaining injuries” and “consults, cooperates and coordinates activities with other duty holders where more than one duty holder is responsible for the same work, health and safety matter to ensure that duty holders work together.” As to induction, clause 5.3, the IMS states that “all sub-contractors engaged to work on site must comply with the IMS and to be inducted in to ensure they understand their obligations. Performance is monitored and records are to be kept.” The appellant is the principal contractor who conducts site inductions for all workers including sub-contractors as to “WHS issues” and, in that respect, “especially hazard identification and risk management.”

31. [62]

    Clause 6 was concerned with ‘System Processes’. In cl 6.1 it is stated that “all documents required for the successful and effective operation of the IMS must be stored…” The documents and templates must be “maintained and periodically reviewed…” The review includes the IMS itself as well as PMPs.

32. [63]

    After dealing with reporting incidents, preventative action, compliance, internal and external communications, cl 6 of the IMS document turns to hazard and risk management. It was stated that “hazard and risk management/aspects and impacts” was a “proactive process aimed at identifying and developing strategies to mitigate potential risks/impacts of [the appellant’s] activities” (cl 6.13).

33. [64]

    Table 1 outlined the methodology to identify hazards. Under ‘Develop Controls’ it is stated that ‘Hazard and Risk controls must be identified and documented, assuming no existing controls are to be in place.”

34. [65]

    Under PMP’s, the IMS recorded that, when preparing a program, the activities in the quality process, ITPs, SWMS and EMPs are considered. Also, in relation to Project Management, it was emphasised that “this will also incorporate relevant project controls such as ITPs and SWMS to provide activity specific detail on how to carry out activities that the project manager believes is necessary.”

35. [66]

    I agree with the submission of the respondent (which was consistent with the primary judge’s findings) that through the IMS, the importance of having written safety procedures was exposed, even though Mr Brown was ignorant of the content of the appellant’s IMS.

36. [67]

    Mr Brown had been employed by Civilbuild from about 1988 and his employment was transferred to the appellant at the time of the acquisition in 2017. He was employed by the appellant as a Plant and Piling supervisor. Mr Brown worked in the yard as well as at building sites, undertaking piling works. He had a number of High-Risk Work Licenses allowing him to drive a forklift, undertake advanced rigging, act as a dogman and slew a mobile crane (up to 100 tonnes).

37. [68]

    Another employee of Civilbuild had his employment transferred to the appellant at the time of the acquisition of Civilbuild by the appellant, Mr Nathan Williams. Mr Williams was employed by the appellant as a labourer at the yard. He was a qualified dogman. He also assisted in piling work on small jobs from time to time.

38. [69]

    Mr William’s evidence as to pre-slinging was as follows:

39. [70]

    Mr Edwards worked as a truck driver for about 15 years, for a company contracted to Civilbuild to move plant, equipment, and materials to its sites. After the merger in 2017, Mr Edwards continued to be contracted to the appellant to move plant, equipment and materials to sites using his own vehicle.

40. [71]

    Mr Edwards operated a heavy combination vehicle consisting of a Mack prime mover attached to a Lusty brand low loader trailer (“the truck”) and traded under the name Edwards Float Hire (“EFH”). The trailer consisted of a gooseneck that attached the prime mover to a low loader part of the trailer. Over the top of the gooseneck and at the beginning of the low loader part of the trailer, were two U-shaped frames mounted onto a trailer that was used to carry long freight such as timber piles. The uprights of the U frame were described as “Bollards” in the evidence. At the rear of the trailer there were two ramps that could be lowered to drive plant onto the low loader part of the trailer.

41. [72]

    Mr Edwards and Mr Brown had worked closely together in their work for Civilbuild for about 20 years. Mr Brown had assisted Mr Edwards to load and unload his truck on many occasions.

42. [73]

    Prior to the incident, invoices disclose the appellant contracted Mr Edwards to provide transport services on at least six occasions (although the invoices may suggest a greater number of transport services performed by Mr Edwards). On two of those occasions, 18 December 2017 and 9 February 2018, the appellant contracted Mr Edwards to transport piles to sites.

43. [74]

    On 8 December 2017, Mr Brown attended the site and assisted Mr Edwards in unloading the piles from Mr Edwards’ trailer without providing Mr Edwards that verbal direction when the work performed was unloading piles from Mr Edwards’ trailer.

44. [75]

    Mr Brown’s evidence that he did not give the verbal direction on 8 December was as follows:

45. [76]

    As to unloading at other times prior to the incident, Mr Brown’s evidence as to the usual practice adopted in unloading piles was:

46. [77]

    Mr Brown also stated:

47. [78]

    By reference to the events on the day of the incident, which I shall turn to shortly, Mr Brown gave the following evidence:

48. [79]

    In light of this evidence (which the trial judge accepted and has not been the subject of challenge, as such), the respondent’s submissions that, prior to and as at the date of the incident climbing “on top of a load of piles during an unloading process to hook up the bundles formed part of a well-established practice followed by Mr Brown and Mr Edwards”, may be accepted. So too may the contention that Mr Brown did not provide Mr Edwards with the verbal direction on any day prior to 15 February 2018.

49. [80]

    Mr Brown’s evidence-in-chief was that he had conveyed the verbal direction to Mr Edwards or had a conversation with him about it on the day prior to the incident. This evidence was as follows:

50. [81]

    In cross-examination, Mr Brown gave the following evidence in that respect:

51. [82]

    Scotting DCJ did not accept Mr Brown’s evidence that he had issued the verbal direction to Mr Edwards on 15 February 2018, even though he accepted all other parts of his evidence (at [91] of Saunders Civilbuild (No 1)). His Honour’s reasons in that respect were as follows:

52. [83]

    His Honour’s conclusion rejecting Mr Brown’s evidence as to the conversation regarding a verbal direction on 15 February 2018 was the subject of challenge in the appeal under Ground 1. It will be convenient to deal with that issue later in this judgment, in that context.

53. [84]

    The primary judge was not satisfied that Mr Edwards knew anything about the content of the appellant’s Pile Driving SWMS or any other safety document of the appellant. That conclusion was not in dispute. Mr Edwards did, in fact, have in place a SWMS entitled the “Loading and Unloading Plant” issued on 1 November 2015 (“the EFH SWMS”) which was located in the glove box of his truck after the incident. However, the SWMS did not contain a written equivalent to the verbal direction.

54. [85]

    I will deal with the immediately preceding circumstances to the incident, the incident itself and the aftermath of the incident.

55. [86]

    The appellant was contracted to Beechwood to undertake piling works at various sites. On 15 February 2018, the appellant received a purchase order from Beechwood to supply and install timber ‘mini piles’ at the site. The timber mini piles were cylindrical timber logs about 16,000mm long and about 200mm in diameter.

56. [87]

    The appellant contracted with Mr Edwards that day to transport a 16-tonne Zaxis brand Model 160LC excavator, and three bundles of piles from the yard to the site. Each bundle contained about 11 piles and they were strapped together with steel straps.

57. [88]

    On the afternoon of 15 February 2018, Mr Edwards attended the yard to pick up the excavator and the three bundles of piles. Mr Brown was present at the yard and assisted Mr Edwards to load the truck.

58. [89]

    On the day of the incident at least one of the bundles of piles was pre-slung with two green coloured lifting slings that had been fitted during the loading process at the yard. This was consistent with the procedure put in place by the appellant soon after the acquisition of the business.

59. [90]

    At approximately 8.00am on 16 February 2018, Mr Brown and Mr Williams arrived at the site and conducted an informal pre-site inspection for the purposes of undertaking the piling work at the site. About ten minutes later, Mr Edwards arrived and parked the truck in the centre of the road outside the site.

60. [91]

    Mr Brown asked Mr Edwards to move his truck closer to the site to a position where it was further off the road and, therefore, safer for passing traffic. Mr Edwards repositioned the truck with the back of the trailer to the south of the access gate of the site, so that the excavator could be driven off the truck into the access gate of the site.

61. [92]

    Mr Edwards lowered the ramps on the trailer and Mr Williams assisted him to remove the chains that were securing the excavator to the trailer. Mr Brown entered the cabin of the excavator and drove it off the trailer and into the access gate of the site. Mr Brown positioned the excavator so that he could use the arm to lift the bundles of piles off the trailer using a chain and hook attached to the arm.

62. [93]

    Mr Williams and Mr Edwards packed away the chains that had secured the excavator to the trailer. Mr Edwards then raised the ramps, so that he could move the truck in a way that would position the piles adjacent to where Mr Brown had positioned the excavator. After Mr Edwards had moved the truck into this position, Mr Williams and Mr Edwards removed the ratchet straps restraining the piles.

63. [94]

    Mr Brown positioned the arm of the excavator above the centre of the piles. Mr Williams attached the end of the two slings attached to the first bundle of piles to the hook attached by a chain to the arm of the excavator. He accessed the end of the slings from the ground and attached them to the hook, while standing on the ground. Mr Williams then stepped up onto the low loader part of the trailer to get a better line of sight on where the chain was attached to the slings to observe the lift.

64. [95]

    According to Mr Brown’s evidence, Mr Edwards “all of a sudden”, climbed up onto the piles from the area between the chamber of the truck and the end of the piles.

65. [96]

    Mr Edwards made his way to where the hook was attached to the slings and unhooked the slings from the hook and then proceeded to reattach the front sling to the hook, followed by the back sling. He then grabbed the chain attached to the hook and nodded to Mr Brown as the signal to lift the first bundle of piles. Mr Brown indicated that what happened next was that “Geoff gave me a nod to lift – lift the – take away the piles away, I – I pulled them up and away from him.”

66. [97]

    When Mr Brown lifted the load, it swung in an anticlockwise direction. Mr Edwards put his hands on the load to steady it.

67. [98]

    As the piles were lifted, Mr Edwards fell backwards. He tried to grab the bollard at the front passenger side of the truck but fell off the truck onto the road on the passenger side of the truck. Mr Edwards had no fall protection. As earlier mentioned, the fall was fatal.

68. [99]

    Some intermediate factual conclusions may be made about the work arrangements for the loading and unloading of piles and the incident, at this juncture, (which correspond to uncontested findings by Scotting DCJ) subject to issues raised on appeal as to the relevance of the findings:

    1. (1)

       Save for the contested conversation between Mr Brown and Mr Edwards on 15 February 2018, the change in the work practice of pre-slinging and the verbal direction was not, on the evidence, otherwise communicated to Mr Edwards (or other contract drivers). Whilst the instructions were apparently issued to “employees” (Saunders Civilbuild (No 1)) at [82]), there was not a systematic conveyance of the verbal direction to contract drivers prior to the incident: (Saunders Civilbuild (No 1) at [83]), even though contractors were required to perform work consistent with the applicable SWMS: (Saunders Civilbuild (No 1) at [84]) (in the absence of an applicable SWMS by the contractor dealing with the safe work procedures).

    2. (2)

       The well-established practice by Mr Brown and Mr Edwards was, in fact, to climb on the top of piles whilst unloading.

    3. (3)

       The appellant did not make any amendments to the SWMS or safe working procedures to reflect the verbal direction or pre-slinging before the incident: (Saunders Civilbuild (No 1) at [22]).

    4. (4)

       The applicable SWMS for the site at the time of the incident was the Pile Driving SWMS: (Saunders Civilbuild (No 1) at [21] and [74]). No SWMS was gone through or signed on to at the site of the incident before work commenced. Mr Brown had the Pile Driving SWMS with him at the site (in his vehicle) (Saunders Civilbuild (No 1) at [38]) but it did not contain the equivalent of the verbal direction. No site induction was conducted on that day.

    5. (5)

       Scotting DCJ found that, on the day of the incident, Mr Brown did not say anything to Mr Edwards about him standing on the top of the piles because he thought it was a safe practice: (Saunders Civilbuild (No 1) at [47]).

    6. (6)

       The appellant’s practice was to have a SWMS for each site that it worked on, signed by each worker engaged at that site: Saunders Civilbuild (No 1) at [31].

69. [100]

    The appellant contended that the considerations in (1) and (2) above were irrelevant and had “nothing to do with what the respondent was required to prove at trial because merely establishing the existence of a practice at or during a period of time was irrelevant.” I reject that submission.

70. [101]

    The evidence establishes that the safe work systems of the appellant including the verbal direction and the pre-slinging control were either not communicated to Mr Edwards (if Scotting DCJ’s rejection of Mr Brown’s evidence as to him issuing the verbal direction on 15 February 2018 stands) or, if those safety directions were issued on 15 February, were the subject of wholesale non-compliance (as evidenced by the practices of Mr Edwards and Mr Brown over the whole period of Mr Edwards’ engagement in one form or another with the appellant, up to and including the day of the incident), and Mr Edwards was thereby exposed to a risk of fall by undertaking work contrary to the safety procedures, in either of the circumstances described above.

71. [102]

    Those circumstances were relevant to the proof of the particularised measures because the measures need to be considered in the context of the operations extant at the time of the appellant’s alleged failure to discharge its duty under the WHS Act.

72. [103]

    Further, that the appellant may have had a defective safety system operating at the time of the alleged offence was relevant to determining whether the measures particularised in particular 17, would have eliminated or mitigated the risk to which those safety measures were addressed.

73. [104]

    The appellant submitted that simply putting in writing that which otherwise operated by a verbal direction does not of itself prove that a substantial change has been introduced which constituted a measure that the appellant should have taken for the purposes of particular 17(a)(i)-(ii). I will return to that issue in considering Ground 1, but it should be observed that the submission is premised, in part, upon the verbal direction having been communicated to Mr Edwards or, if communicated, the verbal direction was an effective measure in eliminating or mitigating the pleaded risk. The significance of a written direction needs to be assessed in the light of any lacuna in the appellant’s system of work.

74. [105]

    On 16 February 2018, in the aftermath of the incident, Inspector Kauter, a first response inspector who attended the site with Inspector McKay, issued a prohibition notice to the appellant. The Prohibition Notice directed that a person with control over the “…unloading of timber piles from the truck… to stop the carrying on of the activity… by a person accessing/standing on the load… until an inspector is satisfied that the following matters that give or will give rise to the risk have been remedied.” In that respect, the Inspector indicated that workers are at risk of falls from height when “accessing”, it would appear, timber piles.

75. [106]

    The directions issued in the Prohibition Notice as to the measures to be taken to remedy the risk were:

    1. (1)

       “You must prevent workers from working at height on the load.”

    2. (2)

       “You must develop a safe system of work for unloading the timber piles from the truck.”

76. [107]

    Following the issuing of the Prohibition Notice, the appellant’s representatives and a representative of Beechwood held a toolbox meeting. A decision was made to amend the Pile Driving SWMS.

77. [108]

    Handwritten amendments were made to step eight of the Pile Driving SWMS. Under “possible hazards”, a handwritten amendment was made as follows:

78. [109]

    Under “safety controls”, the following handwritten entry was made:

    1. (1)

       Do not access to back of truck at any stage.

    2. (2)

       Load to be slung from ground.

79. [110]

    The handwritten amendments (“the amendments”) were made by Mr Bromilow. Mr Matthew Brough, the appellant’s Health Environment and Safety Manager, Mr Brown and Mr Williams all signed the amended Pile Driving SWMS as “workers on site.” Mr Bromilow also signed the amended Pile Driving SWMS as the person from the appellant responsible for supervising the work and the content of the SWMS.

80. [111]

    In the light of the handwritten amendment to the Pile Driving SWMS, Inspector Smith treated the Prohibition Notice as having been satisfied.

81. [112]

    At trial, Mr Bromilow gave the following evidence in relation to these events:

82. [113]

    The appellant submitted that this amendment to the Pile Driving SWMS after the accident was not a substantive change to the appellant’s system of work, but merely a written statement of verbal direction and implemented the engineering measure. In this sense, it was submitted, Mr Bromilow’s answer was not determinative of the issues raised by the particulars 17 (a)(i) and (ii).

83. [114]

    It was also contended that, at this point in Mr Bromilow’s evidence, questions could have been put to him about the extent to which the additions themselves could further minimise the risk, if at all. It was also submitted that Mr Bromilow could have been asked whether writing the instruction was a better way of minimising the risk to workers than verbally instructing workers and implementing an engineering control, and if so, why. It was submitted that no evidence was given in this respect.

84. [115]

    Reference was made by the appellant to another piece of Mr Bromilow’s evidence about the use of the Pile Driving SWMS on the morning of the incident. That evidence was as follows:

85. [116]

    It was submitted, in that respect, that Mr Bromilow was not asked whether completing this SWMS on the morning of the incident, before work commenced, would have led workers to make the “Additions to the SWMS.” It was submitted that the evidence went no further.

86. [117]

    These contentions, however, overlook the context in which Mr Bromilow gave his evidence. He was the General Manager of the appellant. He made the handwritten amendments to the SWMS after the incident. He was a person who was familiar with the safe systems of the appellant effected by means of written procedures and policies including SWMS. He had a principal role in not only the maintenance of safe systems of work but the maintenance of the written procedures of the appellant with respect to the same. As noted below, Mr Bromilow issued the Safety Alert after the incident. Further evidence may have been elicited but in many respects the evidence given would have represented mere speculation.

87. [118]

    What is important is that a manager responsible for the maintenance of such safety procedures confirmed the steps taken were appropriate to be taken in the aftermath of the incident. The appellant misunderstands, by its submission, that a significant further consideration was whether the amendment of the SWMS by Mr Bromilow represented a step by which the Pile Driving SWMS and more broadly the appellant’s safe systems for unloading piles may be brought into conformity with the appellant’s overall safety work system because that system was predicated upon the making and disseminating of detailed written procedures and various other measures to ensure compliance such as ‘signing on’ and training. The omission in the SWMS of the content of the verbal direction represented a departure from that system and, in turn, a flaw in instructions given by the appellant. Again, I will return to whether the omission constituted a breach of the statutory duty when considering Ground 1 of the appeal.

88. [119]

    Further, it may be noted at this juncture that Scotting DCJ rejected Mr Bromilow’s evidence that, in preparing the amended Pile Driving SWMS, he followed the direction of SafeWork Inspectors to insert the handwritten words into the document. His Honour rejected that evidence for a number of reasons, including:

    1. (1)

       It was not put to the Inspectors that either one of them gave a direction in those terms. In the context of the system of self-regulation imposed by the Act, his Honour considered that it was very unlikely that such a direction was given.

    2. (2)

       Mr Bromilow was a poor witness.

89. [120]

    That finding was not challenged. In any event, in my view, there is no proper basis on appeal to disturb a finding in those terms involving issues of credit arising from the trial judge’s assessment of the witness at trial. The significance of the finding is that Mr Bromilow recognised the omission in the appellant’s system of work and rectified it. In doing so, he recognised the defect in the system.

90. [121]

    On 20 February 2018, Mr Benson sent an email to Mr Bromilow and Mr Jeremy Stevenson, the Group Health Safety and Environment Manager of the appellant’s parent company concerning a video produced by SafeWork (“the video”). One of those videos was titled “Falls from Flatbed Trucks And Trailers, Safety Alert” which was in evidence before the Court. In an email sent from Mr Benson to Mr Bromilow and Mr Stevenson, Mr Benson stated; “I have watched both videos and are relevant” and further, “Please make sure that we state that all employees must watch this video tomorrow and all JSA [Job Safety Analyses] involving loading and unloading must be reviewed and forwarded to the safety Department for approval. This must be completed before any further unloading of vehicles.”

91. [122]

    Later, on 20 February 2018, both Mr Bromilow and Mr Stevenson distributed by email a document entitled “Saunders Safety Alert” (“the Safety Alert”) that had been prepared in relation to the incident, a meeting attendance register and the video. The emails directed that the Safety Alert be given to all employees, including labour hire employees and sub-contractors currently working for the appellant. The emails also required the Safety Alert to be addressed at a toolbox meeting to be held by close of business on 21 February 2018.

92. [123]

    The Safety Alert was prepared in the immediate aftermath of the incident while Mr Edwards was still in a critical condition in hospital. The document began with a description and details of the incident with photographs of Mr Edwards’ truck at the site being provided as a visual aid. The document, under the heading “Immediate Action/Recommendations/Lessons”, indicated that the Safety Alert was to be ‘toolboxed’ with all employees and that all current and future SWMS were to be reviewed and updated, including with mandatory changes to be made to control the risk of falling from heights and setting out the procedure by which this would have occurred. The third item under that heading reinforced working from the ground as the safest option and specified the need for appropriate fall protection and other measures where workers were required to work from a height.

93. [124]

    Scotting DCJ made the following observations regarding the video which was not the subject of challenge (at [63]):

94. [125]

    On 1 March 2013, the appellant introduced a Driver Induction Package in relation to the induction of its sub-contract drivers (such as Mr Edwards). The Driver Induction Package sets out the appellant’s “Golden Rules” of safety. The document states, inter alia, by way of instruction:

95. [126]

    Drivers were required to watch the video. Pages six and eight of the Driver Induction Package were reproduced at [65] of the judgment below. It is convenient to take the same course in this judgment. Those extracts appear below:

96. [127]

    It is evident from the Driver Induction Package that the appellant was conscious of the fact that circumstances may arise which precluded the use of its engineering procedure, that is, pre-slinging, and that, a practice inconsistent with the verbal direction may be required in which case fall protection was necessary.

97. [128]

    On 17 April 2018, the appellant introduced the Saunders Civilbuild Truck Operations SWMS (“the Truck Operation SWMS”). In that SWMS, the following provisions appeared:

    1. (1)

       At Step 1, all truck drivers were required to complete the Saunders Truck Driver’s Induction and were required to hold an MMR drivers’ licence.

    2. (2)

       At Step 4, which related to accessing the back of the truck during loading and unloading, the hazard of a fall from height was identified. The safety control measures were stated as follows:

98. [129]

    The Truck Operations SWMS also incorporated at Step 5 the control measure: “Do not access truck deck while being loaded and unloaded” albeit in the context of risk of crush injuries, contact with loading plant and contact with Overhead Obstacles.

99. [130]

    Saunders International issued a Pile Driving SWMS on 4 June 2018. By that SWMS, it was stated that the appellant must conduct inductions for all workers prior to work commencing on site and that a record of site inductions and toolbox meetings must be kept by the appellant. The following control measures were identified:

    1. (1)

       For the delivery of plant and materials: “Accompany the driver ensuring that the driver adheres to site requirement.”

    2. (2)

       Further in Step 9, there is a repetition of the appellant’s truck operations SWMS of 17 April 2018, emphasising that work was to be undertaken on the ground or on a solid construction and that trucks and trailers were not to be accessed without appropriate fall protection. It was stated that if work must be undertaken from a height, fall protection must be in place to prevent the risk of a fall.

100. [131]

     On 1 July 2019, the appellant issued a Loading and Unloading Trucks SWMS (“Loading and Unloading Trucks SWMS”). The SWMS contained the words inserted in Step 4 of the Truck Operation SWMS.

101. [132]

     The primary judge noted two aspects of the evidence of Mr Brown and Mr Williams which correctly stated the effect of their evidence as follows:

     1. (1)

        Mr Brown was not aware of the amendments to the appellant’s SWMS after the incident. He was required to do a course online to go through what to do and what not to do in the loading and unloading of trucks.

     2. (2)

        Mr Williams gave evidence that the rules for unloading trucks were more rigorously enforced after the incident. He was made aware of the changes to the Pile Driving SWMS after the incident. He stated that most of the practices referred to in the amendments were being applied before the incident although he was provided with training on the content of the amended version of the Pile Driving SWMS produced by Saunders International.

102. [133]

     Mr Williams’ evidence in this respect was as follows:

103. [134]

     The respondent submitted (at [61]) as follows:

104. [135]

     The appellant submitted in reply as follows (at [40]):

105. [136]

     However, the appellant’s submissions overlook the primary point of the respondent’s contentions in this respect. It is not the bare demonstration that something may have been done that was pertinent, but that the evidence revealed that the appellant itself recognised the significance of written procedures as means of mitigation risk and did so, not in an ad hoc way or incidentally to other procedures, but as a core component of its operating conditions. This was evidence of the appellant’s own assessment of the importance of written procedures and their significance in avoiding risk materialising.

The WHS Act and Relevant Legal Principles

1. [137]

   Part 2 of the WHS Act places health and safety duties upon duty holders, namely, persons conducting a business or undertaking.

2. [138]

   The primary duty of care is specified in Div 2 of Pt 2 of the WHS Act. Section 19 of the WHS Act provides as follows:

3. [139]

   The health and safety duty under s 19(1) is directed to ensuring, so far as is reasonably practicable, that workers are not exposed to risk to their health and safety. So much is reinforced by the objects of the WHS Act in s 3(1)(a) and the provisions of s 17 of the WHS Act. The duty imposed by s 19(1) is qualified by reference to what is “reasonably practicable”, a phrase which is defined in s 18 as discussed below: Nash v Silvercity Drilling NSW Pty Ltd; Attorney-General for NSW v Silvercity Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [7].

4. [140]

   Section 3(1)(a) provides:

5. [141]

   Section 17 of the WHS Act provides as follows:

6. [142]

   A person is a ‘worker’ for the purposes of s 19 of the WHS Act if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor, or sub-contractor or employee of a contractor or sub-contractor (s 7 of the WHS Act).

7. [143]

   As was observed by the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) in Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 at [2] (“Outback Ballooning”) with respect to a piece of legislation within the harmonised system of laws, operating nationally, namely, the Work Health and Safety (National Uniform legislation) Act 2011 (NT), s 19(2) requires that a person conducting a business or undertaking must ensure, so far as reasonably practicable, that the health and safety of persons “is not put at risk from work carried out as part of the conduct of the business or undertaking.”

8. [144]

   Further, as was observed in Outback Ballooning at [2], s 19(3) provides that, without limiting ss (1) and (2), a person conducting a business or undertaking must ensure, so far as reasonably practicable, a number of things which are directed to the protection of all persons from risks to their health and safety from work carried out as part of the conduct of the business or undertaking.

9. [145]

   The primary judge observed that the “inclusive list of specific obligations set out in s 19(3) of the WHS Act have each been identified at common law”: Saunders Civilbuild (No 1) at [103]. That observation is correct, but it must be borne steadily in mind that the non-delegable duty under the WHS Act (see s 14 of the Act) is not expressed in terms of the standard recognised by the common law to take reasonable care. As identified by the plurality in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [10], it is higher. In Outback Ballooning, Edelman J made the following observations as to the scope of the WHS harmonised legislation, and the subject matter of the equivalent of s 19(2) of the WHS Act when compared to common law obligations and principles as follows at [151]:

10. [146]

    Edelman J was in dissent. However, the observations made at [151] of his judgment were not the subject of contrary view by the plurality.

11. [147]

    Section 16 of the WHS Act provides that more than one person can concurrently have the same duty. Section 16 is in the following terms:

12. [148]

    The ways in which a duty holder can contravene the WHS Act are set out in Div 5 Pt 2 of the Act. In the present matter the relevant provision, in that respect, is s 32 of the WHS Act. That section provides that, if a person who has a health and safety duty fails to comply with that duty, and the failure exposes an individual to risk of death or serious injury or illness, that person commits a Category 2 offence, for which substantial penalties may be imposed. Section 32 of the WHS Act is in the following terms:

13. [149]

    In order to prove that the appellant has committed an offence under the WHS Act, by failing to discharge its health and safety duty under s 19(1), the prosecution must prove each of the elements in s 32 beyond reasonable doubt.

14. [150]

    The elements of the s 32 offence involving a breach of s 19(1) duty are:

15. [151]

    In the trial, the appellant admitted that the evidence was capable of satisfying the Court beyond reasonable doubt of elements one, two and four: Saunders Civilbuild (No 1) at [3]. That position was maintained on this appeal.

16. [152]

    It was element 3 that essentially attracted the issues at trial and here, on appeal.

17. [153]

    The first two issues remain active in the grounds of the appeal. However, the third issue does not arise in the appeal. The primary judge found that particular [17](d) was not bad in law. However, the primary judge held that the particular was not proven beyond reasonable doubt.

18. [154]

    I return to some relevant general principles concerning s 19(1) of the WHS Act.

19. [155]

    As a matter of general principle, s 19(1) (and s 19(2)) of the WHS Act is contravened where there has been a failure, on the part of a person conducting a business or undertaking to take particular measures to prevent an identifiable risk eventuating: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”) at [12] and [13] (the plurality); Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338; [2016] NSWCCA 37 (“Bulga”) at [111] and [123] (Bathurst CJ, Hidden and Davies JJ). [12]

20. [156]

    Thus, it is necessary for the prosecution to identify the measure which should be taken “if a risk was or is present.” The prosecutor must prove that the worker was exposed to a risk to his or her health or safety by addressing the question – “which action on the part of the employer was or is required to address it?”: Kirk at [34]. In The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150 at [15] (Meagher JA, with whom Beazley and Whealey JJA agreed) explained the correct approach as being:

21. [157]

    An offence pursuant to s 32 of the WHS Act for a breach of a s 19 duty is directed to the risk to health and safety and is not dependent upon the manifestation of the risk: Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676: [2016] VSCA 55 at [682]. As the High Court noted in Kirk at [13], it is not necessary that the worker has suffered injury or illness for there to have been a breach of the duty.

22. [158]

    A breach of s 19(1) of the WHS Act may occur in consequence of a failure to take a measure which would have managed or mitigated a risk to the health, safety and welfare of a person not in the employ of the employer, even if the measure does not entirely eliminate risks: Bulga at [118]. However, exposure to risk must be real and not theoretical.

23. [159]

    The duty created is directed to obviating risks to safety at the workplace, even absent an actual incident causing injury. The duty is both preventative and remedial in nature: Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297 (“Morrison”) at [97(3)] and [97(4)] and WorkCover Authority (NSW) (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 (“Coffey Engineering”) at [16] approving WorkCover Authority (NSW) v Police Service (NSW) (No 2) [2001] NSWIRComm 90; (2001) 104 IR 268 at [20]; Abigroup at [316]. In Bulga, the Court of Criminal Appeal found (at [124]):

24. [160]

    Thus, it is wrong, in considering whether a breach has occurred, to reason from the actual incident causing injury "as such an approach may lead to a misunderstanding of the real facts on which a charge is based": Morrison at [97(5)].

25. [161]

    Further, the observations of the Court of Criminal Appeal in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [55], (Basten JA with whom Beazley P (as her Honour then was) and Wilson J agreed) are apposite in this respect (and also address the meaning of ‘risk’):

26. [162]

    In response to a contention by the respondent that the appellant had failed to adopt a detailed systemic approach to the provision and implementation of the relevant safe work method which involved a proactive approach to safety, (even if Mr Brown had issued an instruction to Mr Edwards the day before the incident), the appellant contended that whether a duty holder’s approach to safety can be described as proactive or systematic is irrelevant to the question of liability. It was submitted that, while those expressions have a purpose in describing an aspiration when it comes to the implementation of a safety system, whether the system can be characterised in that way, is irrelevant to the question of guilt.

27. [163]

    There is, in my view, merit in the appellant’s submission in this respect.

28. [164]

    Where the manner in which a defendant is alleged to have committed the offence is by an omission – the omission needs to be proved to have been something the defendant had a duty to do: Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43 (“Poniatowska”) at [29] (French CJ, Gummow, Kiefel and Bell JJ)). As a majority of the High Court said in Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 at [97]:

29. [165]

    I note further the observations of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27 (“Bennett”) at 420 as follows:

30. [166]

    It is true that consideration as to whether the appellant had been proactive in ensuring safety or had a systematic approach to safety are issues applicable to the consideration in sentencing of the objective seriousness of a proven offence. [14] The use of those concepts in relation to the question of liability may distract from the real question arising in relation to proof of a pleaded measure. Nonetheless, two further considerations arise.

31. [167]

    First, it is important to recall that the question is not, did the duty holder envisage a particular danger, but rather, should it have: WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

32. [168]

    Secondly, notions such as a proactive or systematic approach to safety tend to emphasise that when evaluating whether an omission amounts to a breach by that duty holder, the assessment must be made in the context of the strident obligations reposing in duty holders under the WHS Act to ensure safety. Thus, a duty holder will be required to consider whether, as in this case, a verbal direction issued to arrest a recognised risk of fall is sufficient to meet the duty by eliminating or mitigating that risk. In circumstances when the appellant had accepted the importance of written safety procedure by its IMS or otherwise by its system of work it was incumbent upon the appellant to evaluate whether the management of the risk would be enhanced by written directions, appropriate training, or supervision.

33. [169]

    Thus, if there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties, then this factor must be taken into account by the duty holder: Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. However, it does not follow that liability is dependent upon the establishment of reasonable foreseeability under the WHS Act and it is not confined merely to duties to act as a reasonable and prudent person would in the same circumstances: see as discussed at [117] above and Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 at 452 (“Drake”). However, there can be no failure in not taking steps to preclude risk which is impossible to anticipate: Drake at 452.

34. [170]

    That discussion leads to the principle that the duty under s 19 of the WHS Act extends not only for an ideal worker but also one who is careless, inattentive, inadvertent, disregards personal safety, or has engaged in deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; [2006] VSCA 181 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd [2019] VSCA 50 at [51]. (See also Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; [1952] HCA 72 at [320] (Dixon CJ).

35. [171]

    For the purposes of the WHS Act, causation raises the question whether an act or omission of the duty holder was a significant or substantial cause of the worker being exposed to a risk of injury: Bulga at [127].

36. [172]

    Thus, the relevant question is not whether the particularised failures of the duty holder were the cause of the death, the serious injury or illness of a worker but rather whether there was a causal relationship between the failure to comply with the duty by the taking of reasonably practicable measures and the risk to which the worker was exposed: Bulga at [130].

37. [173]

    Causation is to be viewed in a common sense and a practical way, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Bulga at [128]; Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 at [17] (Mason CJ), [19] (Deane and Dawson JJ) and [15] and [21] (Toohey and Gaudron JJ) (“Royall”). As Allsop P stated in Whelan v The Queen (2012) 228 A Crim R 1; [2012] NSWCCA 147 at [2], whilst causation is an issue that has been the subject of much debate in some legislation in the civil sphere, in crime, it remains, in many contexts, a jury question and is governed by the test in Royall. Hence, the causal connection must be sufficiently substantial to permit a conclusion of criminal responsibility.

38. [174]

    One further observation may be made with respect to causation. The question of causation will necessarily be impacted by the manner in which the charges are framed but, as a foundational proposition, the question excited by causation is whether the duty holder’s acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when a person is exposed to the risk: New South Wales v O’Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198 at [45].

39. [175]

    Further, as was stated in Bulga at [129], regard must be had to the purpose to which the question is directed, which involves considering it in light of the scope and objects of the Act: Allianz Australia Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26at [41]-[42], [95]-[101]; see also Simpson Design and Associates Pty Ltd v Industrial Court of NSW (2011) 213 A Crim R 340; [2011] NSWCA 316 (“Simpson Design”) at [79]-[102] and the cases there cited.

40. [176]

    Section 12A of the WHS Act provides that strict liability applies to each physical element of each offence under the WHS Act unless otherwise stated in the section containing the offence.

41. [177]

    By overview then, the WHS Act is contravened where there is a failure, on the part of the person conducting a business or undertaking, to take particularised measures to prevent an identifiable risk eventuating: Kirk at [12] and [13]; Bulga at [11] and [12] (Bathurst CJ, Hidden and Davies JJ), albeit with respect to predecessor legislation.

42. [178]

    There must be evidence satisfying the Court beyond reasonable doubt that, assuming the state of affairs is a detriment to safety as particularised, relevantly that, on the date charged, first, the defendant failed to take a measure which would have ensured that state of affairs did not exist (that is, eliminated or minimised the risk to which a nominated person was exposed) And, secondly, that act and omission of the employer must be a significant or substantial cause of the employee being exposed to the risk of injury: Bulga (at [127]) (see also Simpson Design at [104]-[105]).

43. [179]

    I agree with the submission advanced on behalf of the appellant that when a person is charged with an alleged failing of a duty under the WHS Act (in this case s 19), ss 17 and 18 form part of the necessary considerations when determining whether or not the essential element, being element 3, is proved.

44. [180]

    Section 18 sets out what is reasonably practicable in ensuring health and safety. That section provides as follows:

45. [181]

    The test is an objective one: Shannon v Camalco Aluminium Ltd (1986) 19 IR 358 at 362. The requisite knowledge is that of persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of the specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33] (“Kirwin”).

46. [182]

    Thus, the question remains whether the employer has, so far as reasonably practicable, provided and maintained a safe working environment.

47. [183]

    In Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6 (“Slivak”) the High Court considered the words “so far as reasonably practicable” for the purposes of s 24(1)(a) of the SA Act (it might be noted that attention was also given to s 24(2a)(a) which the Court found was “appendant” to s 24(1)(a) (at [27])).

48. [184]

    Slivak concerned the liability of a designer in circumstances where the duty imposed by those provisions was that the designer of any structure to be erected in the course of work must ensure, so far as reasonably practicable, that the structure was designed so that persons who were required to erect it were safe from injury and risk to health.

49. [185]

    The majority in Slivak (Gleeson CJ, Gummow and Hayne JJ) expressed the following view as to the meaning of the expression “so far as reasonably practicable” (at [37]):

50. [186]

    Gaudron J was in the minority in Slivak but her Honour’s opinion as to the meaning of that expression is often quoted in decisions on that subject. Her Honour stated at [53] as follows:

51. [187]

    The second bullet point proposition was supported by three authorities:

52. [188]

    The National Coal Board concerned an action for damages pursuant to, inter alia, s 49 of the Coal Mines Act 1911 (UK) for breach of a statutory duty by the owners and occupiers of a mine to make the side of a travelling road secure. A defence was available under s 102(8) of that Act which provided that the owners of a mine shall not be liable for damages for a breach of a statutory duty if it was shown that it was not reasonably practicable to avoid or prove the breach.

53. [189]

    A colliery timber man, while walking along a travelling road in a South Wales coal mine in the course of his duties, was killed by the fall of a considerable proportion of the side of the road.

54. [190]

    That judgment was reversed by the Court of Appeal. It is the judgment of Asquith LJ which is often referred to in the context of defences available under Occupational Health and Safety laws and which was the subject of reference of citation by Gaudron J in Slivak. However, I propose to first turn to the judgment of Tucker LJ.

55. [191]

    Tucker LJ stated (at 709-710):

56. [192]

    His Lordship found (at 711):

57. [193]

    Asquith LJ agreed with those observations and made the following additional findings as follows (at 712-713):

58. [194]

    In Marshall v Gotham, the House of Lords considered that the respondent company was not guilty of the breach of statutory duty because the death of an employee due to fall of the roof in a gypsum mine was not caused by any failure by the respondent company to take “reasonably practicable” steps to secure the roof. The Court found the duty was imposed by Regulation 7(3) of the Metalliferous Mines General Regulations 1938 (UK) which required that the roof and sides of every travelling road and working place be made secure and that the duty was fulfilled if “everything had been done” which was “reasonably practicable” to do to make them secure.

59. [195]

    The fall of the roof in a gypsum mine was caused by “slickenside” which was a rare geological fault due to air getting into the roof and causing it to fall. The ordinary means of testing for soundness of the mine roof did not detect “slickenside”.

60. [196]

    Lord Oaksey made the following observations as to the question of reasonable practicability in that context as follows (at 370):

61. [197]

    Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 (“Buchanans Foundry”) concerned an appeal from a conviction pursuant to s 55(a) and (d) of the Health and Safety in Employment Act 1992 (NZ) for a failure to comply with s 6 of that Act in so far as the appellant corporation failed to take all practicable steps to ensure all employees near its furnace were wearing adequate protective clothing. The Act required the employer to take all reasonable steps to guard against potential hazards. Section 2 of that Act contained a definition of “all practicable steps” which incorporated, inter alia, all steps to achieve the result that it was reasonably practicable to take in the circumstances having regard to various factors. The passage referred to by Gaudron J in Slivak concerned the observations of Hansen J of the High Court of New Zealand as follows (at 118):

62. [198]

    Reference might also be made to the following observations (at 119):

63. [199]

    Kirwin concerned appeals from a decision of Murray J of the Supreme Court of Western Australia setting aside acquittals and entering judgments of conviction with respect to two charges of failing to provide and maintain a working environment in which the employees of the employer were alleged to be exposed to hazards contrary to s 19(1) of the Occupational Safety and Health Act 1984 (WA) (‘the OHS WA Act’). The charges concerned injury to certain workers at a rail campsite during the passage of cyclone George across the Pilbara coast in March 2007.

64. [200]

    Section 19 of the OHS WA Act provided that, inter alia, an employer shall, so far as practicable, maintain a working environment in which the employees of the employer are not exposed to hazards.

65. [201]

    Murphy JA (with whom Martin CJ and Mazza J (as his Honour then was) agreed) stated the duty was not an absolute one because s 19(1) is qualified by the words “so far as practicable”. At [31], his Honour made the following observations regarding the expression “reasonably practicable”:

66. [202]

    Murphy JA made further observations at [34]-[35]:

67. [203]

    His Honour also made some observations about hindsight and the notion of the inquiry to be undertaken in the statutory context under consideration (at [69]-[70]):

68. [204]

    I will return to Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 (“Baiada”) later in this judgment.

The Nature of the Appeal

1. [205]

   Section 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW) provides:

2. [206]

   Section 5AA(7) further provides:

3. [207]

   An appeal under s 5AA is an appeal in the strict sense, in that error must be shown: Bulga at [96].

GROUNDS OF APPEAL

1. [208]

   There are three grounds of appeal expressed as follows:

   1. (1)

      The learned trial judge erred in law and fact in concluding that it was established by the evidence that the charge was proved beyond a reasonable doubt.

   2. (2)

      The learned trial judge erred in not applying his own reasoning, from his interlocutory decision at trial on the construct of the charge, to the judgment.

   3. (3)

      The learned trial judge erred in law and fact in concluding that the word ‘permitted’ in paragraph [16] of the charge was not an essential fact that must be established by the prosecution.

GROUND 1 - Whether the trial judge erred in law and fact in concluding that it was established by the evidence that the charge was proved beyond reasonable doubt.

1. [209]

   The trial judge found that the measures in particulars 17(a)(i-iv), (b) and (c) were proven beyond reasonable doubt thereby satisfying element 3 of the charge to the requisite standard, and accordingly, finding that the charge against the appellant was proved.

2. [210]

   His Honour made those findings by considering seriatim the particulars in particular 17 of the charges in three groups wherein the offence was found proven: particulars 17(a)(i)-(iv); [15] 17(b) [16] and 17(c). [17]

3. [211]

   It is convenient to approach Ground 1 with a similar delineation between the particulars, adapted to the approach adopted by the parties who made separate submissions as between particulars 17(a)(i)-(ii) and 17(iii)-(iv) and 17(b) and (c). It is convenient to consider the trial judge’s reasons in that context, but it is important to recall that particular 17(a) pleads a failure to provide and implement “a safe work method” or “safe work procedure” which failure included the omissions in particular 17(a)(i)-(iv).

4. [212]

   Further, before turning to those considerations, it is convenient to mention two further introductory matters.

5. [213]

   His Honour made some broader findings regarding element 3 of the charge as follows:

   1. (1)

      The pleaded risk was the risk of workers falling from a height whilst loading or unloading materials from the back of the truck. [18]

   2. (2)

      The likelihood of the risk occurring was moderate to high if a worker stood on top of the piles. The piles were rounded and did not provide a firm foothold. In that section of the trailer there was no flat surface where a worker could stand to undertake the work. Standing on the piles posed an unacceptable risk that the worker could trip or lose their footing. [19] The likelihood of the risk occurring was low if a worker stood on the low loader part of the trailer.

   3. (3)

      If the worker climbed on the trailer to unload the piles, it was necessary to access the part of the trailer over the gooseneck because the piles had to be slung in two places to make the load stable when it was lifted off. If this method was adopted the worker would stand on top of the piles or on the cross brace of the U frame where there was no solid footing. [20]

   4. (4)

      The degree of harm that might eventuate if a person fell off the trailer was significant and included a risk of death. The top of the load of timber piles was 2400mm above the ground and the low loader part of the trailer was 1000mm above the ground. [21]

   5. (5)

      The risk was obvious and had been identified by the defendant as the basis for the issue of the verbal direction. The risk was well known in the industry and was the subject of objective guidance material, including the video. In April 2016, SafeWork NSW published the “Managing the Risk of Falls at Workplaces” Code of Practice (“the Falls Code”), which is an approved code of practice under s 274 of the Act.. [22]

   6. (6)

      The introductory part of the Falls Code recognises that “falls are a major cause of death and serious injury in Australian workplaces” and that “hazards are found in many workplaces where work is carried out at a height.” [23] The Falls Code reiterates the obligation of duty holders under s 46 of the WHS Act to consult, cooperate and coordinate activities with other duty holders in order to eliminate or minimise all risk.

   7. (7)

      The defendant had identified that the risk of a fall from height could be controlled by prohibiting workers from accessing the backs of trucks or trailers during the loading or unloading practice. The defendant adopted an engineering control in the practice of pre-slinging loads so as to make it unnecessary for workers to access the back of trucks or trailers to unload piles. The verbal direction and the engineering control were implemented by the defendant without any inconvenience to loading and unloading.

   8. (8)

      Returning to the Falls Code, his Honour identified that control measures available could be varied. Working on the ground, or otherwise, a solid construction, were stated to be the two highest order controls. Working from the ground is most effective way of protecting workers from the risk of falls. [24]

   9. (9)

      His Honour then turned to various sections of the Falls Code by reference to the hierarchy of controls. Those controls include full protection devices, working position systems, fall arrest systems and administrative controls, the last control being found in s 8 of the Falls Code.

   10. (10)

       With respect to s 8 of the Falls Code, his Honour made the following observations:

   11. (11)

       His Honour observed that all the above considerations were relevant to the issue of whether the pleaded measures in particulars 17 were reasonably practicable.

6. [214]

   As earlier mentioned, his Honour found particular 17(d) not to be proven. It is appropriate however to consider his Honour’s reasoning with respect to particular 17(d) as it casts some light on other aspects of his Honour’s reasoning as to particular 17. The relevant passage of his Honour’s judgment in that respect is as follows:

7. [215]

   The third preliminary observation is to note the overarching submission made by the appellant in support of Ground 1. It was submitted that, in considering the evidence at trial, the trial judge did not have proper regard to the criminal standard of proof when finding the measures in particulars 17(a), (b) and (c) of the charge proved beyond reasonable doubt. It was contended that the trial judge’s findings with respect to those measures were not open to the requisite standard.

8. [216]

   In this light, the appellant submitted that, in finding particulars 17(a), (b) and (c) of the charge proven, to the requisite standard, the primary judge erred by;

   1. (1)

      Failing to have regard to unchallenged evidence at trial, capable of establishing a reasonable doubt as to the appellant’s guilt;

   2. (2)

      Had regard to evidence at trial that did not prove beyond reasonable doubt the appellant’s guilt;

   3. (3)

      Misdirecting himself with respect to the drawing of inferences leading to a finding of guilt.

Particulars 17(a)(i)-(ii)

1. [217]

   Scotting DCJ expressed the view that the measures in these particulars were encapsulated by the verbal direction and the pre-slinging engineering controls. He further opined that neither the Pile Driving SWMS nor the Loading and Unloading Trucks SWMS contained any reference to those measures.

2. [218]

   The bases for Scotting DCJ’s conclusion that the respondent had proven the particulars were twofold, as follows:

   1. (1)

      The incorporation in the measures in the Pile Driving SWMS and a requirement that workers on site be required to sign the SWMS before commencing work would have “clearly stated” the prohibition against accessing the back of the truck. This was a reasonably practicable step to convey the verbal direction which was necessary to control the risk.

   2. (2)

      Notwithstanding Mr Brown having a responsibility to supervise Mr Edwards and to enforce the measures in the Pile Driving SWMS and the verbal direction, he did not enforce the verbal direction when he saw Mr Edwards climb onto the load. The inclusion of the content of the verbal direction into a SWP such as the Pile Driving SWMS would have had a demonstrable impact on safety. The signing on to a safe work procedure would have ensured the requirements of the appellant which were introduced by the verbal direction and the pre-slinging practice were “systematically communicated to the contract drivers.”

3. [219]

   In summary, the appellant made the following submissions with respect to this aspect of Ground 1:

   1. (1)

      The reasoning of the primary judge, with respect to this issue is confined to those paragraphs directed to these particulars at paragraphs [165]-[176] of Saunders Civilbuild (No 1). As to that submission, it can be noted at this point that it does not appreciate the way that his Honour systematically structured the judgment to the ultimate conclusion with respect to those particulars. Nor does it sit comfortably with the principle that, in considering error, an appellate Court should properly look to the whole of the judgment.

   2. (2)

      The only material difference between the appellant’s “safe work method for the works before the incident and the appellant’s safe work method for the works after the incident” was the act of writing “the amendments” into the SWMS after the incident. The issue at trial in this respect was whether this was a reasonably practicable measure in and of itself. The primary judge’s reasoning was that the act alone of writing the amendments into the SWMS was an act that established beyond reasonable doubt that the measures in particulars 17(a)(i) and (ii) were reasonable, reasonably practicable measures.

   3. (3)

      By reliance upon the judgment of the High Court of Baiada at [15] and [33], the appellant argued that the words ‘reasonably practicable’ indicate that a duty does not require a defendant to take every possible step that could be taken and the bare demonstration that a step “could” have been taken and that, if taken, it “might” have an effect on the safety of a work environment, does not “without more”, demonstrate that the defendant has failed to fulfil the duty to take steps as was reasonably practicable.

   4. (4)

      It was not enough to identify and rely upon a post incident step by the appellant that could have been taken as proof positive of the existence of a reasonably practicable measure.

   5. (5)

      It was necessary for the primary judge to have regard to the evidence given at trial in order to determine whether the additions made after the incident proved, beyond reasonable doubt, that they were reasonably practicable measures within the meaning of s 18 of the WHS Act to achieve the aim of minimising the pleaded risk, so far as is reasonably practicable.

   6. (6)

      The appellant did not submit, as a general proposition that a documented system, reflecting an operational reality at a workplace, is not a system that better minimises risk to workers over and above an identical, but undocumented system. It was acknowledged that decided cases have favoured “the former approach.”

   7. (7)

      Rather, the appellant's submission is that it was necessary for the evidence of the trial to prove how the documented system achieved that outcome.

   8. (8)

      The evidence of the trial went no further than to prove something was done by the appellant after the incident, and this was not, of itself, evidence that it was a reasonably practicable measure with respect to achieving objective of s 17 under the WHS Act. If all that was needed for a prosecutor to prove a part of element 3 was to prove a step was taken by the defendant after the incident, without having to lead evidence to prove beyond reasonable doubt that such a step had the effect of further minimising the risk to the health and safety of workers, then no defendant could put the prosecutor to strict proof. In that event, defendants would be required to mount a positive defence. Neither of these outcomes was the intention of the WHS Act which operates to the same evidentiary standards as any criminal trial.

   9. (9)

      As to the evidentiary position, the appellant made reference to the following:

   10. (10)

       The appellant was critical of the primary judge’s observation that the written amendment to the Pile Driving SWMS was a simple measure contending that the step was reasonably practicable, merely because it was simple to do so. A step is capable of being considered reasonably practicable only after taking into account and weighing up all relevant matters in s 18 of the WHS Act.

   11. (11)

       Next, it was submitted that there was no evidence to support the primary judge's conclusion that signing on before the commencement of work to the SWMS would have resulted in the obligation being clearly stated and acknowledged by workers. It was further submitted that the conclusion was not relevant. However, the conveying of a verbal direction was not, of itself a reasonably practicable step. Rather, the Court was required to assess whether the conveying of the verbal direction by the written amendment to the Pile Driving SWMS was a reasonably practicable measure, as such.

   12. (12)

       His Honour's assessment that Mr Brown had not enforced the control measure was not relevant to this aspect of the particulars.

   13. (13)

       Overall, there was no evidence to support a conclusion that the written additions to the Pile Driving SWMS would have had a demonstrable impact on safety. His Honour's conclusions were speculative. It was not open to his Honour to infer that, as Mr Brown was required to enforce the control measures, signing on to the control measures would have ensured the requirements were conveyed to contract drivers such as Mr Edward.

   14. (14)

       The appellant advanced two propositions as to the evidence in this respect as follows:

   15. (15)

       I shall pause with the summary of the appellant’s submissions to deal with the first of those propositions in 14(a) above. In my view, the evidence relied upon by the appellant to support the first proposition does not do so. Mr Brown gave evidence that his role was to “make sure the jobs were done right, and the jobs done safely” and with respect to the unloading to “do it safely” (T107.17-20 and T107.39–44). The evidence given by Mr Brown at those passages reflected no more than a broad understanding by him that the role of supervisors was to effect the work to be done safely, but he was directed by those superior to him, principally by written communications, but also by verbal directions as to what a safe system of work constituted. It is too much of a reach from the evidence relied upon by the appellant to infer that Mr Brown understood that he had some wider remit to engage in safety supervision generally. After all, Mr Brown gave evidence that the practices adopted by Mr Edwards on the day of the incident, including standing on the top of the piles and having his hands on the pack of piles that were in the process of being lifted, was in accordance with the practice done many times before and “was safe” (T103.1-18). Further, the evidence revealed that SWMS were to be signed on to by workers and that inductions were to be undertaken with respect to the SWMS as required by the IMS. This reflected the practices adopted after the incident, with respect to the amendments to the Pile Driving SWMS and the creation of other relevant SWMS.

   16. (16)

       The appellant further contended that the primary judge could not have been satisfied beyond a reasonable doubt that the amendments would have had a demonstrable impact on safety and ensured communication of the verbal direction. Nor could it be inferred that Mr Brown would have been more likely to enforce a written direction expressed in the same terms as the verbal direction. There was no evidence to this effect. Mr Brown's evidence was that he was not confined to enforcing the Pile Driving SWMS but was concerned with safety generally. I note in that respect that the appellant also relied upon [189] of Saunders Civilbuild (No 1) as his Honour confirming that view, but I do not consider this aspect of His Honour's judgment conforms with the appellant's submission accordingly. I do not accept the appellant’s submission that there is an inconsistency between the findings of the primary judge at [169] and [189] of his judgment. His Honour's conclusion was that Mr Brown understood well that his role was to enforce the control measures contained within the Pile Driving SWMS. The appellant submitted that the primary judge found that on the one hand, Mr Brown understood his role was to ensure safety, including where the relevant control measures were not reduced to writing but on the other hand was more likely to enforce the amendments if they were reduced to their written form. However, his Honour's finding was in fact entirely consistent. When properly analysed, his conclusion was that Mr Brown well understood and applied control measures contained within the Pile Driving SWMS but that, by contrast, he did not perceive or at least did not act upon, the verbal directions, which had not been stipulated in that written form.

   17. (17)

       On proper enquiry into the evidence, it was not open to the primary judge to find that the prosecution proved beyond reasonable doubt the measures, in particulars 17(1)(i) and (ii), were reasonably practical measures such that the prosecution had proved beyond reasonable doubt the appellants contravention of s 19.

4. [220]

   As stated earlier, the appellant challenged the finding by Scotting DCJ rejecting Mr Brown's evidence that he had issued a verbal direction to Mr Edwards on 15 February 2018, although there was no separate ground of appeal in that respect. Further, it was submitted that this Court should not accept his Honour's conclusion that the pre-slinging measures to ensure that employees stayed on the ground when unloading had not been conveyed to Mr Edward. Those submissions were advanced in support of the proposition by the appellant challenging the primary judge's conclusion that particulars 17(a)(i) and (ii) had been made out.

5. [221]

   As earlier identified, the appellant accepted that a documented system, reflecting an operational reality at a workplace may be a system that “better minimises risk to workers” over and above an identical but undocumented system, but that it was necessary at trial for there to be evidence which proved how the documented system achieved this. The appellant also advanced a slightly different proposition, namely, that the prosecutor had failed to prove the measures in 17(a)(i) and (ii) (and the remaining particulars in (iii), (iv), (b) and (c)) minimised the risk to a greater extent than the measures in place “before the incident.”

6. [222]

   During the course of argument, the Court enquired of Ms Cunneen SC as to whether the appellant's contentions in that respect, at least as to particulars 17(a)(i) and (ii), were predicated upon Mr Brown, in fact, having given the verbal direction to Mr Edwards the evening before the incident. Senior counsel accepted that that must be the case, but slightly later qualified the answer by submitting that not only was there an absence of proof that adding the amendment would be a more effective measure to minimise the risk, but also that “both might mean that Mr Edwards never hears about it…” (it may be extrapolated from the context of the submission that when senior counsel used the word “both” she was referring in that respect to the amendments and the verbal direction).

7. [223]

   Ms Cunneen SC's point in that latter respect may be accepted to the extent that it is theoretically possible that, whether the verbal direction was issued in writing or orally, Mr Edwards may not have been provided with the instruction. However, there are three fundamental flaws with this contention.

8. [224]

   First, the evidence does not support that there is an equal probability that the verbal direction or the equivalent of the verbal direction in a written instruction such as a SWMS may not be delivered to workers. There was no systematic conveyance of the verbal direction or the engineering control to contract drivers prior to the incident. Even aside from that consideration, Mr Edwards had not received the verbal direction prior to the disputed communication on 15 February 2018. As I will discuss below, it was also open to Scotting DCJ to conclude that the verbal direction had not been issued on the 15 February, notwithstanding Mr Brown’s evidence to the contrary.

9. [225]

   It is true that, contrary to the IMS, no SWMS was read or signed by the workers on 16 February 2018. But the presence of the EFH SWMS in Mr Edward’s glovebox would indicate the better reach of written communications. The evidence makes clear that the appellant emphasised the importance of having written safety procedures, and in particular, detailed safe work method statements in its IMS. In question 43 of Notice 7-333707, Mr Benson indicated, in answer to a question as to what steps the appellant took to eliminate or minimise the risk of health or safety associated with the delivery of plant and materials at construction sites prior to the incident, that the systems of work included policies and procedures relevant to the companies undertaking, such as SWMS containing relevant information regarding the delivery of plant, risks and controls that contractors were required to implement. The IMS provided for inductions and toolbox meetings and SWMS to be read through and signed off by workers at a site. The overwhelming preponderance of the appellant’s safety system was by written safe work procedures, methods and policies.

10. [226]

    Secondly, the absence of the communication of the verbal direction to Mr Edwards must mean that the appellant had not taken an available measure (per particulars 17(a)(i) and (ii)) to minimise the risk. Whatever the means of stipulating the terms of the verbal direction, it is important to recall that the communication was designed to prevent falls by preventing access to heights, in this case the back of a truck or trailer, as a means of minimising the risk of falling. The creation of a SWP as reflected in the measures in particulars 17(a)(i)-(ii) which was simply never communicated to a worker or workers axiomatically cannot constitute provision and implementation of a safe work method or SWP for the loading and unloading of material to minimise the pleaded risk. The issuing of a verbal direction and creating an engineering control not in a written form or without subsequent amendment to relevant documents such as SWMS, for the purposes of managing a significant risk in the appellant’s operations, represented a fundamental shift from the appellant’s work, health and safety policy, which relied upon a systematic process of written policies directions and instructions (and related training and induction arrangements) as reflected in the IMS.

11. [227]

    Thirdly, as the matter of logic, the appellant’s argument in this respect cannot stand in the light of a conclusion that the verbal direction was never issued to Mr Edwards on the evening before the incident. A written system must better minimise the pleaded risk than a system which is devoid of instructions regarding that risk.

12. [228]

    In substance, the circumstances of this matter concern an omission by the appellant to adopt the procedures which generally underpin its safety systems vis-à-vis written directions and engineering controls incorporated within written procedures. The amendments after the incident represented a temporary adjustment which was later overtaken by formalised arrangements and updated SWMS reflecting the written safety procedure. It should be recalled that the EFH SWMS contained the same deficiency as the Pile Driving SWMS. The failure by the appellant was effectively that it had omitted to issue written instructions controlling what it knew to be a risk. The appellant engaged a safety procedure by means of verbal directions and an unarticulated engineering control in a manner inconsistent with its overall extant work safe procedures and methods which the appellant itself had identified as fundamental to the maintenance of safety or, more appropriately, the minimisation of risks at workplaces operated by the appellant.

13. [229]

    In the light of that preamble, it is appropriate then to commence the consideration of Ground 1, and in particular particulars 17(a)(i) and (ii) by addressing the appellant's challenge to the primary judge’s rejection of Mr Brown's evidence as to the giving of the verbal direction to Mr Edwards.

14. [230]

    The submissions of the appellant challenging the ruling of Scotting DCJ as to Mr Brown's evidence concerning the giving of a verbal direction to Mr Edwards were as follows:

    1. (1)

       Mr Brown's evidence in this respect was clear and unchallenged. He gave evidence that he had expressly communicated the content of the direction to Mr Edwards the day prior to the incident.

    2. (2)

       However, his Honour dismissed this evidence on the basis that “the timing was far too convenient” for his Honour’s liking. His Honour’s reasoning for rejecting this evidence, beyond its perceived “convenience”, was general and limited. His Honour referred to Mr Brown having some interest in giving this evidence as well as the evidence being “imprecise” and not subject to independent corroboration.

    3. (3)

       The primary judge's reasons for rejecting Mr Brown's evidence were insufficient. Mr Brown was a witness who the primary judge on every occasion found to be a reliable witness. A sound basis was not demonstrated as to why, on this occasion, his Honour decided not to accept an otherwise truthful witness.

    4. (4)

       Nextly, the primary judge could not have been satisfied beyond reasonable doubt that the amendments would have had a demonstrable impact on safety and ensured communication of the verbal direction in circumstances where the only evidence available to the primary judge, which was incorrectly rejected, supported the finding that the verbal direction was communicated to Mr Edwards.

    5. (5)

       Mr Brown's evidence was not that he gave the instruction “out of the blue" but that there was a “physical reason which precipitated an explanation of the change in the way that things had been done.” Messer’s Edwards and Brown had worked together for decades and there was a reason why it was likely that such conversation occurred because there was a difference in what physically had to be done and how it was to be done.

    6. (6)

       The issue regarding Mr Brown's evidence was raised late in the trial by the primary judge. Even at that stage, the respondent accepted that the state of the evidence was that the instruction had been given to Mr Edwards in the course of the loading the night before the incident.

    7. (7)

       The reference by his Honour to “dead men not being able to give an account” should be balanced against the fact that there was practical support as to why the conversation took place and the instruction arising incidentally out of that conversation.

    8. (8)

       His Honour did not mention anything about pre-slinging in the context of him ruling on the acceptance or otherwise of Mr Brown's evidence.

15. [231]

    Before turning to Mr Brown's evidence, it is useful to briefly recap the factual background bearing upon this issue.

16. [232]

    The appellant acquired the Civilbuild business slightly less than 11 months prior to the incident. Mr Edwards provided transport services on at least 6 occasions during that period. On at least two of those occasions, 18 February 2017 and 9 February 2018, the appellant contracted Mr Edwards to transport piles to site. Mr Brown did not provide Mr Edwards a verbal direction not to access the trailer during the unloading process and to work only from the ground on any of those occasions, including those immediately proximate to the incident. On 8 December 2017, Mr Brown attended on site and assisted Mr Edwards in the unloading of the piles for Mr Edwards’ trailer without providing Mr Edwards the verbal direction. There were, therefore, numerous occasions after the appellant took over the operations to the date of the incident in which Mr Edwards was contracted by the appellant to transport piles without the appellant providing to Mr Edwards or confirming with him that he had been informed of the appellant’s changed work practices which were designed to avert the risk of a fall. Mr Brown's evidence was that the exception was the evening before the fall.

17. [233]

    Mr Brown's evidence on this issue occurred twice in evidence-in-chief and once in cross-examination. In evidence in chief, Mr Brown stated that on the day prior to the incident, he and Mr Edwards were loading piles on Mr Edwards’ truck. They slung up the piles with some string to lift the piles off and he explained that that process adopted was “we’re not allowed to get on the back of trucks.” He stated that the rules were that they were not allowed to get on the back of trucks, so the piles were pre-slung (see [59] of this judgment).

18. [234]

    It was during cross-examination that two leading questions were put to Mr Brown in which it was proposed that, on the afternoon before the incident, Mr Edwards asked why the bundle was being pre-slung and that he was told in answer that the pre-slinging was because of the rule that no one was allowed to go on the back of trucks. Mr Brown affirmed both propositions (see [60] of this judgment).

19. [235]

    On the fifth day of the trial, the primary judge raised with Mr Cahill (who then appeared for the prosecutor at the trial) his concerns regarding Mr Brown's evidence as to the communication of the verbal direction to Mr Edwards. Based upon the decision in Landmark Roofing Pty Ltd v Safe Work NSW [2021] NSWCCA 95 (“Landmark Roofing”) the prosecutor submitted that the Court was not bound to accept Mr Brown's evidence on that point, and it was a matter for the Court as to whether the Court accepted the evidence. The prosecutor submitted that for the purposes of the prosecution, it did not matter whether the primary judge accepted Mr Brown's evidence on that point or not.

20. [236]

    Before turning to Scotting DCJ’s judgment it is also useful to refer to two further factual matters. It was contended by the appellant that the first occasion that Mr Edwards had worked on pre-slung piles, was on 15 February 2018. However, I agree with the submission of Mr J Agius SC who appeared with M Cahill for the respondent that there was no evidence to that effect in the trial. There was, however, evidence that on at least two occasions after the appellant had introduced the engineering control of pre-slinging that Mr Brown and Mr Edwards had worked together in unloading piles. The balance of probability is that Mr Edwards had encountered pre-slinging before the incident. Mr Edwards showed no lack of familiarity with unloading using a slung load of piles in the events immediately preceding the incident (T102.24-28).

21. [237]

    Secondly, on the morning of the next day before undertaking the unloading task, no toolbox meeting was conducted as required by the IMS. Not only was there no confirmation of the instructions and procedures, but Mr Brown was content to not only allow Mr Edwards to act in breach of the instruction but took his advice or direction by a “nod”, when undertaking the lift. This was a matter of hours after the instructions had apparently been given under enquiry by Mr Edwards himself.

22. [238]

    Scotting DCJ's reasons for rejecting Mr Brown's evidence in this respect are extracted at [61] of this judgment. However, I do not consider that the reasoning of the primary judge may be quarantined to that section of his judgment, as was submitted by the appellant. At [180] of Saunders Civilbuild (No 1), albeit in relation to particular 17(b) and the question of training, the primary judge stated that he did not accept “that Mr Edwards was told about the verbal direction or the practice of pre-slinging the load.” In my view, his Honour is there referring to the evidence of Mr Brown that he told Mr Edwards of the verbal direction in the context of a discussion about pre-slinging on the day before the incident. I do not consider that it may be properly concluded that the primary judge reached his decision absent consideration of the practice of pre-slinging and its connection to the verbal direction vis-à-vis working from the ground.

23. [239]

    Whilst the appellant sought to distinguish the judgment of the Court of Criminal Appeal in Landmark Roofing, in my view, the authority is applicable in the present case. True it is that in Landmark Roofing there was conflicting evidence from a witness as between his police statement and a later statement to SafeWork in the Court, resulting in that witness’s evidence not being accepted in any respect. The appellant correctly submitted that Mr Brown was accepted as a witness of truth save for the disputed evidence and that his impugned evidence remained unchallenged.

24. [240]

    However, in Landmark Roofing it was held that legal error is not necessarily demonstrated because a trial judge made findings which were contrary to evidence not specifically challenged in cross-examination (at [41]). The acceptance or rejection of evidence of a particular witness is a matter for the trial judge, particularly where the evidence is illogical, inherently unreliable or contradicted by a credible body of substantial evidence (at [41]).

25. [241]

    Here, the trial judge was entitled to treat Mr Brown's evidence as to the giving of the verbal direction on the evening before the incident as implausible, if not inherently unreliable. Mr Brown had not seen fit to give a verbal direction on any prior occasion when working with Mr Edwards including occasions where Mr Edwards had worked contrary to the terms of the verbal direction. Those occasions were much closer in time to the issuing of the verbal direction than the day before the incident. In any event, Mr Brown did not consider that the climbing on to a pack of piles during the loading process was unsafe. No doubt this corresponded to him accepting Mr Edwards’ advice or direction via “a nod” as to when to commence the lifting process, whilst Mr Edwards was standing on the piles.

26. [242]

    As noted above, there was no evidence that Mr Edwards had not been involved in pre-slinging of piles in loading and unloading of operations prior to 15 February 2017. If he had, it follows that there would have been no reason for him to raise the issue with Mr Brown on 15 February so as to attract, apparently, Mr Brown’s conveyance of the verbal direction. Scotting DCJ, in my view, was cognisant of the connection with pre-slinging when he reached his conclusion that no verbal direction had been given. In the context of a substantial body of evidence that a significant number of jobs had been undertaken by Mr Edwards with Mr Brown which, on at least two occasions, involved the loading and unloading of piles with no verbal direction being given by Mr Brown (on those occasions), it follows that it is implausible that, absent any other factor, the discussion regarding the practice of pre-slinging would emerge, as the trial judge found, ‘conveniently’, on the evening before the incident.

27. [243]

    In referring to the evidence as ‘convenient’ it should be understood, in my view, that the primary judge was making an assessment of the reliability of Mr Brown’s evidence. Mr Brown had an interest in protecting his own interests and that of his employer. Further, Mr Brown did not give evidence-in-chief that Mr Edwards inquired as to the purposes of pre-slinging. The evidence obtained in that respect was derived from leading questions in which a simple affirmation was obtained.

28. [244]

    In any event, as Scotting DCJ correctly found, claims based on communications with deceased persons must be treated with considerable caution, particularly where there is a lack of corroborative evidence which was or could have been available: Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14; Hunt v Barlow [2000] NSWSC 324 at [5]-[8] (Bryson J).

29. [245]

    It follows that it was open to Scotting DCJ to find, on the evidence, that Mr Brown was unreliable as to his account of giving a verbal direction the day prior to the incident. It was open to the primary judge to accept part of Mr Brown’s evidence and reject other parts: R v Mulcahy [2010] ACTSC 98 (Nield AJ) as cited in Nguyen v R (2012) 267 FLR 344; [2012] ACTCA 24 at [11] (see also Hamilton v State of New South Wales [2020] NSWSC 700 at 468-472 (Walton J)). Overall, it was available for Scotting DCJ to find the evidence was implausible. That implausibility is enhanced by a credible body of substantial evidence which contradicted the propositions advanced by Mr Brown.

30. [246]

    Having rejected the appellant's challenge to Scotting DCJ’s rejection of Mr Brown's evidence regarding the giving of the verbal direction to Mr Edwards on 15 February 2023, then it follows that the primary judge's finding that particular 17(a)(i)-(ii) was proven must be sustained on appeal, having regard to the earlier analysis in this section of my judgment as to the significance and consequence of no verbal direction having been given to Mr Edwards prior to the incident (as opposed to the verbal direction otherwise given to employees of the appellant after it took over from Civilbuild).

31. [247]

    This must also entail the rejection of Ground 1 because a particular resulting in conviction has been sustained on appeal. I will nonetheless, having regard to the parties’ extensive arguments, resolve the balance of the issues on appeal, commencing with the remainder of the challenge to the primary judge's findings as to particular 17(a)(i)-(ii). This analysis proceeds upon the assumption that the verbal direction was given by Mr Brown to Mr Edwards on 15 February 2018. I will commence with Baiada.

32. [248]

    The appellant’s reliance upon Baiada either focused upon [15] and [33] of the judgment of the plurality, as follows:

33. [249]

    It was in this light that the appellant presented the arguments set out at [197(3)] of this judgment. From this, it was submitted that it is not enough for the primary judge to identify and rely upon post-incident steps by the appellant that could have been taken as proof positive of the existence of a reasonably practicable measure.

34. [250]

    It was not entirely clear whether the appellant also relied upon the decision of the plurality in Baiada that the trial judge had erred in directing the jury that the prosecution had to prove beyond reasonable doubt that the defendant's engagement of apparently skilled contractors did not discharge its obligation to maintain, so far as was reasonably practicable, a safe work environment. However, there are some relevant points of distinction between this matter and Baiada which also have a bearing on the disposition of the balance of this aspect of Ground 1 of the appeal.

35. [251]

    The appellant in Baiada was convicted of an offence under s 21(1) of the Occupational Health & Safety Act 2004 (Vic) (“the Victorian Act”). That conviction was overturned on appeal.

36. [252]

    The appellant carried on the business of processing broiler chickens at its plant in North Victoria. The appellant agreed with Mr and Mrs Houben who raised chickens. The Houbens agreed to raise chickens until they were about 32 days old, at which time the appellant agreed with the Houbens that it would round up the chickens and transport them to the plant. The Houbens provided empty crates into which the chickens were placed. The appellant engaged two independent contractors. One was to round up and pack the chickens into crates and the other was engaged to carry the crates to its plant.

37. [253]

    The factual background is summarised at [6] and [7] of the judgment in Baiada as follows:

38. [254]

    Two issues of relevance in the Victorian Act were raised in the trial. The first issue concerned whether the operations at the farm were matters over which the appellant had control. The second was whether the appellant was entitled to rely upon the engagement of competent and experienced sub-contractors to carry out the work they could not do themselves, to meet the obligations of s 21(1) and (2) of the Victorian Act, to take reasonably practicable measures in satisfaction of the duty under that section. The plurality observed at [14] that a contravention of s 21(1) invited the question as to whether the employer had so far as reasonably practicable provided to maintain a safe working environment.

39. [255]

    The majority of the Victorian Court of Appeal held that the trial judge had erred in failing to direct the jury that they had to be satisfied that the appellant’s engagement of two sub-contractors was not sufficient to discharge the appellant’s obligation under s 21(1). However, a majority of the Court of Appeal applied the proviso to s 568(1) of the Crimes Act 1958 (Vic). That is, although the conclusions reached with respect to the jury direction pointed in favour of upholding the appeal, the Court of Appeal dismissed the application for leave to appeal because it considered that no substantial miscarriage of justice had occurred.

40. [256]

    Ultimately, in dealing with whether the Victorian Court of Appeal properly engaged the proviso in dismissing the appeal, it was held that the jury were not sufficiently directed about the need to be satisfied about an element of the offence rather than a defence (at [32]). The appellant had put in issue that, even if the appellant had the right to control what its sub-contractors did at the farm, the contractor was in charge of the use of the forklift. It had not been proved beyond reasonable doubt that it was reasonably practicable for the appellant to have taken steps that would result in the contractor going about his task of operating the forklift in a way that provided and maintained a safe system in a safe working environment (at [32]). It is from this point that the High Court gave the reasons in [33] extracted above.

41. [257]

    It may be noted that in the judgment of Heydon J, his Honour emphasised that the case for the appellant was not that it did not constitute an offence but rather was a denial of an essential legal ingredient in the prosecutor’s case, upon which the prosecution bore a legal burden of proof beyond reasonable doubt (at [55]). No different position applies in this case.

42. [258]

    At [36] and [37] of the judgment the plurality stated:

43. [259]

    Reference should also be made to two passages from the judgment of Heydon J, bearing upon the question of whether the engagement of independent contractors may or may not be the only reasonably practicable way of maintaining a safe working environment.

44. [260]

    At [65] and [66] of his Honour’s judgment he stated:

45. [261]

    I also refer to his Honour’s observations in part of [70] of his judgment:

46. [262]

    Baiada may be distinguished from the circumstances of this matter in a number of important respects:

    1. (1)

       As is evident from the IMS, the appellant sought to control the work of sub-contractors. This was recognised by the primary judge. The IMS was the management system for worker health and safety applying to all employees and sub-contractors. It made provision for the assessment of risk including hazard identification and for systems to monitor and control the work of the sub-contractors in workplaces operated by the appellant. Particular projects were monitored under the control of the appellant to identify hazards and risks and to prevent workers from becoming ill or sustaining injuries. There were detailed processes of training, site induction and auditing.

    2. (2)

       The SWMS and SWP were an integral part of those systems. Mr Brown had significant obligations under those arrangements to ensure the Work Health & Safety of, inter alia, sub-contractors in accordance with the IMS, SWMS and other instructions including the verbal direction.

    3. (3)

       The appellant actually controlled the work at the project site where the work was being undertaken. In this case, that supervision was undertaken by Mr Brown. Mr Brown's conduct in that respect was the conduct of the appellant: see s 244(1) of the WHS Act. In stark contrast to the questions raised for consideration in [33] of Baiada, the appellant did give safety instructions to sub-contractors; did make arrangements to check the instructions were followed or complied with (albeit ineffectively).

    4. (4)

       The appellant, by its supervisor, was aware that Mr Edwards was not complying with the appellant’s safety system, albeit one issued verbally. I agree with the submission of the appellant that Mr Brown was complicit in Mr Edwards disobedience (if Mr Edwards had actually received the verbal direction). Mr Brown saw Mr Edwards in position on the top of the logs or piles where he was not supposed to be, and actually took advice or instructions from him as to the lifting of the piles while he was on them or next to them. No contrary instructions were given by Mr Brown to Mr Edwards. He did not query the practice being adopted by Mr Edwards.

    5. (5)

       This is not a case where the appellant may contend that it had satisfied its obligation by retaining a skilled contractor.

47. [263]

    I note by reference to particulars 17(b) and (c) that Mr Brown gave evidence that it was part of his job to do site specific risk assessments and that a SWMS was required for every job. He gave evidence that he was the supervisor for the purposes of the pre-incident SWMS and that he signed the pre-incident SWMS as supervisor when that SWMS was revised on the day of the incident and modified to include safety measures as a result of the incident.

48. [264]

    Overall, these assessments are applicable to the balance of the issues raised with respect to particulars 17(a)(i) and (ii) as well as particulars 17(b) and (c).

49. [265]

    The appellant's contentions as to a particular 17(a)(i) and (ii) take too narrow a view of the evidence in its attack upon the decision of the primary judge, as to the implications of written instructions corresponding to the content of verbal instructions minimising risk. In my view, the primary judge was cognisant of and properly took into account the entirety of the evidence which provided proof that the measures in 17(a)(i) and (ii) were not only possible steps (as being simple measures to implement) which might have had some effect on safety but measures which were reasonably practicable to maintain a safe working environment. The evidence discloses that the enhancement to written safe work procedures did greatly minimise risk as compared to the counterpart verbal direction procedure adopted by the appellant. In my view, and for the reasons given below, the appellant has not demonstrated error in Scotting DCJ’s conclusion, that, in substance, the failure to incorporate the terms of the verbal direction into a SWP such as the Pile Driving SWMS which operated at the time of the incident, would have had a demonstrable impact on safety.

50. [266]

    As a starting point, I consider that the primary judge’s reasons for reaching those conclusions with respect to these particulars is sound. However, given the arguments developed on appeal, those reasons may be supplemented by the following which also accounts for my analysis above:

    1. (1)

       The starting point is that the appellant, by the IMS, recognised that written safety systems were integral to its safe work methods for all workers, including sub-contractors and were essential to the attainment of a safe and healthy working environment. The systems implemented provided for hazard identification, measurable objectives, health and safety measures and audits. The SWMS and SWP were employed in that system, although in this case, as is evident in this appeal ground, the SWMS was deficient in that it did not provide steps to prevent employees working above the ground and in particular on piles whilst unloading. By the safe work procedures and methods adopted by the appellant both prior to and after the incident, the appellant recognised that the written procedures (with corresponding inductions, training and supervision), were a necessary condition for the maintenance of safety.

    2. (2)

       The senior management of the appellant actually recognised and acknowledged the introduction of the amendments as improving its safe work system. Mr Benson referred to the amendments (together with induction procedures and review of SWMS) as “enhancement.” [26] I have earlier dealt with the evidence of Mr Bromilow where he described the changes made and the procedures adopted after the incident as adequate and appropriate. [27] On 20 February 2018, Mr Benson and Mr Stevenson issued the Saunders Safety Alert that had been prepared specifically in relation to the incident and was distributed to all workers. [28]

    3. (3)

       The written procedures of the appellant were adjusted to reflect the measures including the Pile Driving SWMS, the Driver Induction package, [29] the Truck Operation SWMS, [30] and the Loading and Unloading SWMS. [31] All of those changes should have been made prior to the incident. There is no basis for Mr Bromilow to assert that he was directed to vary the Pile Driving SWMS by an inspector on the day. The primary judge did not accept his evidence and there was no cross-examination of the inspectors on that point.

    4. (4)

       The SWMS were introduced as an administrative control as part of the hierarchy of control at the appellant’s workplaces. The SWMS identified hazards, the gravity of the risk and controls with respect to specific projects and operations. References in the SWMS (as was done after the accident) to possible hazards, any corresponding adjustment to the risk rating, safety controls and any corresponding change to the residual risk rating were not merely a matter of converting what might have been a verbal direction to something in writing. The change represented a shift in the component of the overall control measures that needed to be correlated with other components of the safety procedure.

    5. (5)

       Thus, a written SWMS dealing with the risks of falls from trucks placed the verbal direction in the context of a detailed written safety procedure which correlated the fall hazard and the risk of death or serious injury associated with the hazard. Those written safety procedures were required to be read, discussed and acknowledged by workers in writing. The documented procedure provided for induction prior to the commencement of work and a written acknowledgement by all of the workers and the relevant supervisor. It was, as the primary judge found, a systematic method of communication. It was clear that the primary judge was alive to these issues and properly understood the question to be determined was whether the steps particularised in particular 17 were reasonably practicable.

51. [267]

    These assessments are not confined to conclusions which may be derived from post-incident steps taken by the appellant as they concern pre-incident arrangements and the appellant’s overall approach to managing safety at the workplace. However, to the extent that the considerations here (and also as undertaken by the primary judge) depend upon steps taken after the incident, they are properly available, in this case, in examining whether there has been a breach in the statutory duty, by a failure to take the measures in the particulars 17(a)(i)-(ii) (and later particulars 17(b) and (c)).

52. [268]

    It is well-established that changes made by a duty holder after the incident are capable of establishing that there existed at the time of the incident a practical measure which, if adopted, would have reduced or eliminated the subject risk: Davis v Langdon [1911] 11 SR (NSW) 149; Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201 at 215 (Gibbs J with whom Steven and Mason JJ agreed).

53. [269]

    Ms Cunneen submitted that Nelson may be distinguished upon the basis that the change introduced after the incident referred to in Nelson was such a “higher order measure” than what occurred before. That confines when it is appropriate to take the post-incident steps into account. Thus, it was submitted that, in Nelson, there had been a change in measures from the manual system, which resulted to the injury to the worker, to a completely hydraulic system (avoiding workers having to walk across a slippery ramp). Here, it was contended that the measures that were particularised as to be put in place, have not been proven to minimise the risk to a greater degree than what was already in place with the appellant.

54. [270]

    However, that submission misunderstands the basis upon which Nelson was decided and the comparable circumstances in fact arising from that case.

55. [271]

    It is true that the circumstances operating at the workplace at the time of the accident in Nelson involved the worker controlling the positioning of the tail of coils by a bar resulting in the workmen walking backwards across a slippery surface of the ramp on which the ramp was being manoeuvred (at 212). It is also true that that system of work was replaced by a bar that was hydraulicly moved by the use of a lever thereby preventing the need to walk across the slippery surface (at 212-213).

56. [272]

    However, the decision of the New South Wales Court of Appeal, setting aside the verdict given by the jury in favour of the appellant had been predicated upon a view that the hydraulic system was a completely new system or whole new plant, used in the operation, such that it was inappropriate to have regard to the post-incident circumstances in determining negligence. In reversing the decision of the Court of Appeal, Gibbs J took the view that the evidence did not suggest the change in procedure represented a change to the whole process operated in Nelson. The only innovation was in relation to a bar and the plant used to operate it. Ultimately, his Honour concluded that the trial judge was correct to leave to the jury the question of the steps taken after the accident, because, even if it could be assumed that the bar was installed as part of a much wider remodelling of the plant, the appellant had shown that it was practicable to provide a new method of doing the work that would eliminate or minimise risk because a new method was found to be put in operation (at 214). Thus, it was found that it was practicable to eliminate or minimise the risk by the adoption of a different method.

57. [273]

    Thus, Gibbs J found in Nelson that the post-incident steps taken by the appellant were applicable, even if they represented a modification to an existing system, rather than a wholesale remodelling of a system of work. In this case, the description of the particular being a mere documentation of a system, not only misapprehends the significance of those documentary systems in providing for a safe system of work adopted by the appellant (and recognised for its significance by the appellant) but also that the verbal direction and engineering control, when introduced by the appellant, represented a significant change in its safe work procedures, in recognition of a risk of falling from trucks which may have catastrophic consequences.

58. [274]

    Finally, written instructions often play an important role in ensuring that duty holders meet their duties under the WHS Act, provided the written safety procedures actually address risks rather than simply constitute a global policy statement as to work health and safety. However, these safe work procedures may sometimes be deficient in and of themselves due to, for example, omissions in the management of a risk. This is not a reason to neglect such safety procedures but rather an indication of the appropriateness of their adoption to a standard commensurate with the obligations reposing on a duty holder under the WHS Act. Whether for that reason or more generally to satisfy the duties under the WHS Act, a duty holder may be required to supplement written procedures with verbal directions and reinforcements such as toolbox meetings, training, and direct management by supervisors. Most significantly, nothing in this judgment should be taken as indicating the verbal directions issued by the appellant in this case were sufficient to satisfy the primary duty under s 19(1) of the WHS Act.

59. [275]

    I thereby reject that aspect of Ground 1 of the appeal challenging the primary judges’ decision regarding particulars 17(a)(i) and (ii).

Particulars 17(a)(iii) and (iv)

1. [276]

   Scotting DCJ accepted that the fall protection measures set out were not reasonably practicable to be implemented at the site as they were only to be contemplated if access to the back of trucks or trailers during the process of unloading was “required”. As the unloading of the piles on the day of the incident was capable of being undertaken in a way that obviated the need for a person to climb on the load, the work could have been done from the ground and, therefore, it followed that the fall protection measures specified did not need to be considered or implemented.

2. [277]

   However, those control measures were only introduced after the incident. His Honour thereby inferred that “it was necessary to do so in contemplation of other work that it undertook or to cover off on the possibility that, in a particular loading or unloading situation, access to the back of a truck or trailer might be ‘required'”.

3. [278]

   The amendment of the appellant's existing safety documents to incorporate the matters in particulars 17(a) were simple and inexpensive. They were not grossly disproportionate to the risk.

4. [279]

   The appellant’s submissions in this respect placed significant reliance upon the component of particular 17(a) which defined fall protection (or appropriate fall protection) as including a purpose-built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or scaffolding.

5. [280]

   As to the first measure, Inspector Halcroft stated that he did not “know that a work platform would really be practicable.”

6. [281]

   As to the second measure, Inspector Halcroft agreed that there were a number of different types of temporary work platform, it thereby being unclear (as it was not clarified by the prosecutor), what temporary work platform was required as a reasonably practicable measure.

7. [282]

   As to the third and fourth fall protection measures, Inspector Halcroft agreed that welding handrails onto someone else's truck might be impracticable both because of that step and because a design engineer or manufacturer approval would be required and that wider loads represent a further problem as to practicability.

8. [283]

   As to the fifth fall protection measure, Inspector Halcroft agreed that, given the height to the lower level of the trailer or the “upper deck” there might not be sufficient height for an “inertia reel” to work properly.

9. [284]

   As to the sixth fall protection measure, Inspector Halcroft agreed that the practicability of erecting scaffolding would depend upon the terrain where the truck was situated to unload the pile.

10. [285]

    In the result, the appellant submitted that Inspector Halcroft gave direct evidence that these measures, by reference to the definition of fall prevention, were not reasonably practicable. No other fall protection measures were advanced by the respondent during the course of the trial. The respondent’s case went no further than to conclude that because the fall prevention measures were added to the defendant's SWMS after the incident, they were reasonably practicable matters.

11. [286]

    The primary judge's reasoning accepted that the measures in particulars 17(a)(iii) and (iv) were not reasonably practicable measures to be implemented at the site on the day of the incident. His Honour reached a conclusion on the basis of an inference being drawn as to what may be required because of the measures implemented after the incident. There was not a proper basis upon which his Honour could make a finding in those terms.

12. [287]

    The appellant contended that there was no evidence from any witnesses which established when, if at all, the appellant would be required to contemplate the measures; whether the appellant had used such measures in the past; whether it operated any other trucks capable of using these measures; whether any of its contractors operated any other trucks capable of using those measures or whether the appellant even had any of these measures at site. The primary judge could not have drawn an inference of the kind that he did without any evidentiary basis with respect to other circumstances in which measures, in particulars 17(a)(iii) and (iv) could have applied to the appellant’s undertaking.

13. [288]

    The respondent submitted that inter alia, particulars 17(a)(iii) and (iv) reflected the approach outlined in cll 78 and 79 of the Work Health and Safety Regulation 2017, and the Falls Code which was the appellant’s pre-incident policy on climbing onto the backs of trucks and trailers during unloading operations and the approach adopted by the appellant in its post incident safety documentation.

14. [289]

    In regard to the appellant's answer to question 28, to Notice 7-333707 (see at [23] of this judgment) and the Driver Induction Package issued after the incident (see [103]-[105] of this judgment), it was submitted that the appellant was aware that circumstances may arise which precluded the use of its preferred engineering alternative and that consideration would need to be given to the use of fall protection.

15. [290]

    The respondent also emphasised terms of the Driver Induction Package produced after the incident (see [104]-[105] of this judgment) and Mr Williams’ evidence regarding the enforcement of rules concerning the unloading of trucks after the incident (see [111] of this judgment).

16. [291]

    It was contended by the appellant that Mr Williams gave evidence that, after the incident, he used the appellant’s post incident Loading and Unloading SWMS (see [109] of this judgment), and the appellant’s post incident Pile Driving SWMS (see [108] of this judgment). I have earlier accepted that this was the evidence (see [101] of this judgment).

17. [292]

    It is from these bases that the respondent submitted that it was open to the primary judge to infer that the appellant included a reference to fall protection in its post incident safety documentation in contemplation of other transport work which the appellant did or “to cover off on the possibility that a particular loading or unloading situation access might be required to the back of the trailer.”

18. [293]

    The respondent accepted that given Mr Edwards had been able to sling from the ground, that it was possible to do the assigned work at the time of the incident from the ground. Further, the work was done from the ground later and the SWMS was modified to permit that to happen. Accordingly, fall protection was not a necessary measure that would come into play in relation to the way the risk worked out in the circumstances of the incident. However, this is not to say that, in terms of an overall policy of safe working procedures dealing with all manner of trucks, there is not a need for those measures and they would provide a safer workplace in which risk was mitigated.

19. [294]

    It is plain that the measures identified in particulars 17(a)(iii) and (iv) were not reasonably practicable measures when regard was had to the circumstances of the incident. However, as has been pointed out earlier in the discussion of principles, it is erroneous to reason from the incident in order to determine whether there has been a failure to discharge the duty under s 19 of the WHS Act.

20. [295]

    Nonetheless, to find such a failure, as was accepted by both parties, his Honour would need to reach a conclusion of a general character that the measures were required to avoid or reduce risk on the basis of an inference being drawn as to what may be required because of the measures implemented after the incident.

21. [296]

    It is true that the post incident measures did contemplate the use of fall protection equipment where the loading and unloading processes could not be conducted from the ground. However, there was no proper basis in the present case, upon which his Honour could draw an inference of the kind that he did. This is because there was no evidentiary foundation to draw the inference.

22. [297]

    There was no evidence from any witnesses establishing when, if at all, the appellant would have been required to contemplate the measures; whether the appellant had used such measures in the past; whether it operated any other trucks capable of using these measures; whether any of its contractors operated any other trucks capable of using those measures or whether the appellant ever had any of these measures at site. In the result, I consider the appellant has established error in the judgment below with respect to particular 17(a)(iii)-(iv). The primary judge was in error in finding that the measures in particular 17(a)(iii) and (iv) constituted reasonably practicable steps that the defendant should have taken prior to the incident. The prosecutor did not establish a failure in the provision and implementation of a safe work method or safe work procedures with respect to the measures pleaded in particulars 17(a)(iii) and (iv). The decision below was erroneous to find otherwise.

Particular 17(b)

1. [298]

   Scotting DCJ was satisfied beyond reasonable doubt that the defendant should have trained its workers on the content of the safe work method or safe work procedures as referred to in particular 17(a) and that such training was a reasonably practicable step to take. In coming to that conclusion, the primary judge had regard to the following:

   1. (1)

      The requirement for pre-slinging loads had been followed on the day of the incident with respect to the first bundle of piles.

   2. (2)

      However, the training was inadequate in two major respects. First, it did not convey to Mr Brown that climbing onto the back of piles was unsafe. Mr Brown's evidence was that he thought it was safe when it clearly was not. Secondly, the training did not cause Mr Brown to stop work and enforce the rules.

   3. (3)

      His Honour was not satisfied on the evidence that contract drivers such as Mr Edwards had been systematically trained on the verbal direction or the practice of pre-slinging the load. As earlier mentioned, his Honour found that Mr Edwards had not been told about the verbal direction or the practice of pre-slinging the load. The defendant admitted that it did not provide regular training to Mr Edwards.

   4. (4)

      Mr Edwards was not trained on the content of the Pile Driving SWMS that required him to stay clear of the excavator arm and the load during the unloading process (per step seven).

   5. (5)

      The primary judge did not consider that the Safety Alert issued after the incident was a measure to be taken by the appellant as it would have required “perfect hindsight based as it was on the incident itself.”

   6. (6)

      However, the training given after the incident at toolbox talks was systematic and documented. The video provided a visual documentation of concepts that may not have been as easily understood from the reading of the relevant safety documents. The Driving Induction training package conveyed information required by particular 17(a). That package included an assessment of competency on the training to demonstrate that the training had been delivered and understood by the drivers and could be relied upon by the appellant to prove the same. The appellant’s workers were also trained on the amendments to the SWMS when they were introduced.

   7. (7)

      None of the toolbox talks, video, Induction Training Package or training on the SWMS involved steps grossly disproportionate to the risk. The primary judge was satisfied that the defendant was not significantly inconvenienced providing the training on the amendments.

2. [299]

   The appellant contended that the findings of the primary judge as to the inadequacy of the appellant’s training were not open on the evidence.

3. [300]

   As to the first finding, it was submitted that notwithstanding Mr Brown's evidence with respect to Mr Edwards standing on the pile as being safe (“I would have said it was safe”: T103.16-18), the appellant contended that this was Mr Brown's personal view. He was not asked why he held this view or what role, training or instruction he would have played with respect to it. It was emphasised that the appellant did not share this view because of the verbal direction Mr Brown had received.

4. [301]

   As to the second finding as to why the training was inadequate, the appellant contended that Mr Brown was not asked why he did not enforce the verbal direction or what role the appellant’s training or instruction may have played in the steps he took, given that he knew workers were not to access the back of trucks and understood that he had a role in maintaining safety. Reliance was also placed on the verbal direction having been conveyed to Mr Edwards although I have rejected the appellant’s challenge in that respect.

5. [302]

   Nextly, the appellant contended that there was insufficient evidence to prove beyond reasonable doubt that the instruction and/or training of workers on the amendments was a reasonably practicable measure within the meaning of s 18 of the WHS Act. There was no evidence “whatsoever” to the criminal standard that proved instruction and/or training of workers on the amendments “did minimise” the pleaded risk, more so than the verbal instruction and training given to workers before the incident. Nor was there evidence that other forms of post-incident training were capable of proving to the criminal standard that the amendments did otherwise minimise the pleaded risk, more so than the verbal direction and training given before the incident.

6. [303]

   It was contended that evidence as to the Driver Induction and the video were insufficient to make good the appellant’s contention.

7. [304]

   It was contended that Mr Bromilow was not asked whether he considered training of the contractor on the Driver Induction document meant drivers better understood the amendment. Mr Bromilow was merely asked whether contract drivers were required to read the Driver Induction and acknowledge that they had received it and read it (see T 163.22-27). As to the video, the evidence showed no more than the video was shown to workers. It was not demonstrated that having been shown the video, workers better understood concepts relating to the loading and unloading of trailers. It was accepted that one aspect of the video concerned the appellant’s safe work methods before and after the incident regarding getting onto the back of trucks, but this merely “mimicked” the requirement already in place with respect to the verbal direction. It was not demonstrated that the showing of the video minimised the pleaded risk to a greater extent than not showing it. No witness was asked about the video or its content.

8. [305]

   The appellant did acknowledge the following passage from Mr Bromilow’s evidence. Mr Bromilow was asked:

9. [306]

   In a somewhat strained submission, the appellant contended that Mr Bromilow was not asked in this passage what part of the video was relevant to the appellant’s undertaking, how its content related to training and instruction of workers (noting many factual differences in the video) or what view the appellant took about the video in relation to training and instruction of its workers about the amendments. Similar to other aspects of the submissions regarding Mr Bromilow’s evidence which I have earlier discussed, it was submitted that the defendant could have asked Mr Bromilow various questions such as whether the appellant sought any feedback from workers following its screening relating to its requirements in better understanding the amendments.

10. [307]

    Similar to my earlier observations, the questions posed by the appellant as to what the prosecutor should have asked Mr Bromilow invite speculation as to what evidence Mr Bromilow might have given, in circumstances where his evidence on the question of training in the subject area was itself unclear. He considered that the video reinforced the importance of the engineering control of pre-slinging. It may also be interpolated that Mr Bromilow had expressed the same view about the verbal direction. His full answer to the question “when you showed it to them, what was the purpose of showing them that video?” was not transcribed but he does refer to requiring work to be performed from the ground to prevent any incidents. He considered the video to be definitely of some significance and also relevance. It might be further observed that Mr Bromilow was found to be an unsatisfactory witness.

11. [308]

    A submission was developed by the appellant that the video was lacking to such a degree that even matters identified by his Honour as to the relevance of the video over the objection of the appellant were not properly addressed in the evidence. This was derived from various questions posed by the Court in dealing with an objection by the appellant as to the receipt of the video evidence; each question representing a counterpoint to the appellant’s objection, so as to demonstrate why the video might be relevant. The appellant extracted those as follows:

12. [309]

    There is no appeal before the Court as to the admission of the video in evidence. It might be noted that the objection by the appellant as to the receipt of the video complained that the video concerned a factually different incident and a different site location such as an indorsed site even though the video was incorporated as part of the appellant’s induction package (see T75). The appellant acknowledged that the questions formulated with respect to the issue of relevance as stated above did not concern matters which the prosecution must prove in order to satisfy beyond reasonable doubt that training for the purposes of particular 17(b) was a reasonably practicable measure within the meaning of s 18.

13. [310]

    It is difficult to see how this submission assists the appellant when the questions posed by his Honour were plainly relevant to his assessment of the particular and in fact were answered by him in dealing with particular 17(b).

14. [311]

    Lastly, it was submitted that the video was shown to workers but the Court is left to speculate “as to the degree to which the video may have meant workers better understood a ‘concept'”.

15. [312]

    Particular 17(b) concerned a failure to adequately instruct or train in a safe work method or procedure for loading or unloading, inter alia, piles. The instruction or training required by the particular is described in the particular as a “step-by-step requirement to be followed in preparation for or during loading and/or unloading of materials.”

16. [313]

    Employing work health and safety parlance, his Honour considered the failure referred to in this particular by reference to whether the appellant had systematically trained contractors on the verbal direction and the practice of pre-slinging. There is no relevant difference in that respect as between the step-by-step approach referred to in the particular and the concept employed by his Honour.

17. [314]

    The provision of adequate instruction and training which was systematic in nature would involve consideration of the nature and extent of the risk to safety; the nomination of relevant control measures; and the step-by-step basis by which the control measures are applied, including toolbox talks and inductions. So much is evident from the IMS (see cll 5.3 and 6.13; the Truck Operator SWMS and the Pile Driving SWMS post incident).

18. [315]

    In the absence of the communication of the verbal direction to Mr Edwards it may not be suggested that Mr Edwards received any training, let alone systematic training. But even aside from that consideration, the evidence to which the primary judge referred established that the appellant did not provide any training to Mr Edwards as such, and the appellant was unaware of what training Mr Edwards had in fact received as to the risk of falls associated with accessing the back of trucks and trailers.

19. [316]

    It follows that the primary judge was correct to find that Mr Edwards had not been systematically trained on the verbal direction or the practice of pre-slinging so as to obviate the need to access the backs of trucks and trailers during unloading.

20. [317]

    These considerations were underscored by the fact that the appellant had introduced a significant change to a long-established practice whereby the verbal direction and engineering control replaced a void in instructions, directions or training associated with the risk of accessing the backs of trucks or trailers.

21. [318]

    The question further raised by the appellant on the appeal is whether there was evidence which established that the provision of instruction and training would have had an impact on safety so as to minimise the pleaded risk.

22. [319]

    In my view, it was open to his Honour to make a finding that the provision of such instruction and training would have minimised risk in that fashion. In some respects, this consideration overlaps with the discussion as to particulars 17(a)(i)-(ii) as the post incident steps taken by the appellant provide evidence of the impact upon safety. The post incident changes in relation to training were both systematic and documented and included the video which reinforced the nature and extent of the risk in the context of a fall from the back of an unprotected truck that is a truck without fall prevention or protection; a visual demonstration and reinforcement of both the primary methods of working from the ground or from solid construction fitted with barriers and a visual and audible dot-point summary of the risk and the primary control measures.

23. [320]

    The evidence given by Mr Benson at question 45 of Notice 37-333707 specifically referred to that video in referring to enhancements made to the appellant's existing WHS system. He also referred to the review and adjustment of SWMS (see [25] of this judgment). Further, his Honour was entitled in finding satisfaction of this particular to have regard to the evidence of Mr Brown as dramatically demonstrating the basis for finding that the particular had been established. I accept the submission of the respondent, that Mr Brown's evidence that he thought climbing onto the back of the piles by Mr Edwards was not unsafe was a clear indication of a failure of training or instruction.

24. [321]

    The appellant’s rejoinder in this respect that Mr Brown was expressing a personal view was, in my view, weak and cannot be accepted. Finally, it was not put to Mr Brown that this was only his personal view. Mr Brown was giving evidence as a supervisor of the appellant at the time of the incident. His evidence was given in a context of him expressing a view as to the circumstances of work being performed at the time of the incident in a context where he had been asked many questions about his experience in the Loading and Unloading of trucks. He accepted the responsibility for providing safe work. When asked in an earlier question what he understood to be safe and proper practice his answer was “we had done that many times before.” It may be inferred that Mr Brown understood it was safe because the practice had been undertaken without incident previously. This is a clearest indication as to why the verbal direction was insufficient to convey the safety hazards that had been identified by the appellant, with respect to falls and why training as to the terms of the verbal direction (and the controls with respect to falls) was required. It is plain that, for whatever reason, the appellant’s supervisor did not understand or sufficiently understand this fact and its connection to the verbal direction). Training was one means of rectifying that deficiency as demonstrated by the post-incident procedures adopted by the appellant and, in particular, the video and the appellant’s own assessments of the value of that step in providing a safe work method.

25. [322]

    These conclusions are reinforced by the second aspect of the primary judge's finding, namely that the safe work methods adopted by the appellant were inadequate because the training, such as it was, did not cause Mr Brown to stop work when Mr Edwards was observed acting contrary to the verbal direction so as to enforce the rule. This illustrated that the verbal direction was insufficient, whether by instruction or training to ensure the appellant’s desired regulation of falls introduced after it took over from Civilbuild was given effect to by its workers, including its supervisors, who like Mr Brown, stood in the stead of the appellant.

Particulars 17(c)

1. [323]

   Scotting DCJ’s reasons for finding particular 17(c) proven beyond reasonable doubt are stated succinctly in his Honour's judgment at [188]-[194] as follows:

2. [324]

   The appellant submitted that the primary judge’s reasoning at [188]–[194] led to the finding of guilt with respect to this measure but were unrelated to the matters identified at [188].

3. [325]

   The appellant accepted that, whilst the failures by Mr Brown as identified at [190] and [191] were relevant to the question of whether it was proved beyond reasonable doubt that the appellant failed to provide adequate supervision, it is incorrect to conclude that because Mr Brown failed to do those things it is proved beyond reasonable doubt that the appellant failed to provide adequate supervision on the date of the incident.

4. [326]

   Thus, the existence of the failure alone is insufficient to prove a contravention by the appellate. Rather it is necessary to examine the evidence behind any such apparent failure by a supervisor.

5. [327]

   That evidence was explained by the appellant as follows:

6. [328]

   In oral submissions, Ms Cunneen contended that Mr Edwards climbed onto the piles at the time of the incident unexpectedly. It was submitted that Mr Williams was "non-plussed”. It followed that there was only a momentary failure by Mr Brown to say anything and that this did not detract from the appellant having provided adequate supervision. Further, the Court should have regard to the experience of Mr Brown and Mr Edwards. Mr Brown had an excellent history of supervision over a long period of time. Mr Edwards had never failed to follow an instruction.

7. [329]

   Having regard to those matters, the appellant submitted that there was no proper evidentiary basis for his Honour to conclude that the measure at 17(c) was proved beyond reasonable doubt.

8. [330]

   The respondent's submissions with respect to this particular are compelling and consist of the following propositions:

   1. (1)

      Messers Brown, Williams and Edwards had experience of working for the appellant’s predecessor and for the appellant under a work system which did not recognise or address the subject hazard (or pleaded risk). The pre-incident safety documents did not identify or seek to address the risk. The existing work practice tolerated workers (both employees and contractors) accessing the backs of trucks without protection against falls.

   2. (2)

      At the time of the incident, Mr Brown and Mr Edwards were, therefore, continuing to operate under the misapprehension that it was safe for Mr Edwards to access the back of his truck (Mr Brown said as much and the holding of the same view by Mr Edwards may be inferred from his work practices). In the absence of a SWMS that dealt with the subject risk supported by systematic instruction, training, and supervision in relation to a significant change in the appellant’s safe work practices for the loading and unloading of trucks, Mr Brown and Mr Edwards adopted what had been their standard procedure in relation to the unloading of piles from Mr Edwards’ trailer. Those failures lay at the centre of the appellant's failure under the particulars 17.

   3. (3)

      Mr Brown's failure to discuss safety procedures with Mr Williams and Mr Edwards on the day of the incident before work commenced, and Mr Brown's failure to stop work and force the change in procedure when he saw Mr Williams on the lower deck of the trailer or Mr Edwards standing on the top of the load, was informed by the failure of the appellant to provide Mr Brown with a SWMS that identified the subject hazard, identify the subject risk and nominate both the relevant controls together with the relevant procedures to be adopted in the application of those controls, together with a systematic instruction and training in relation to the change of that procedure and his responsibilities as a supervisor to enforce the change in the work practice.

9. [331]

   Whilst Mr Edwards climbing on to the piles may have happened “all of a sudden” and Mr Williams was in the result “non-plussed” as Ms Cunneen SC submitted, the approach Mr Edwards adopted on that day was no different to any procedure he had adopted beforehand, after the issuing of the verbal direction and the pre-slinging arrangements. Mr Brown responded to Mr Edwards’ “nod” to undertake the process of unloading whilst Mr Edwards was situated on the piles.

10. [332]

    As to the appellant’s reliance upon Mr Brown's long experience as a supervisor and in working with the appellant, and, Mr Edward’s experience of working with the appellant, I accept the respondent's answer in that respect as follows:

    1. (1)

       Mr Brown was not the person who was highly trained or a specialist;

    2. (2)

       As has been found, Mr Brown was not adequately trained and there was a deficiency in the documentary instructions that he was provided to undertake the work, in particular, the Pile Driving SWMS. As was stated in Work Cover Authority (NSW) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIR Comm 316 at [82]: “the method of work, as one component of a safe system of work, is a foundational element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend, for their effective operation.” Similarly, whilst the extent and standard of training will depend on the nature of and circumstances under which work is performed, there will be many cases, particularly in larger enterprises spread over many sites, in which more detailed, comprehensive and systematic training and instruction will be required: Genner Constructions Pty Ltd v Work Cover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57 at [57]-[58]. [32]

    3. (3)

       The proof of Mr Brown's insufficiency as a supervisor was the very procedure adopted on the day of the incident in which he failed to take any step preventing Mr Edwards climbing onto the piles or standing down the work and he took advice or instructions from Mr Edwards. Mr Edwards may have followed instructions historically, but he was engaged in a work practice, well familiar to him with Mr Brown which involved climbing onto the pile on the back of the truck.

11. [333]

    In the circumstances, the primary judge's conclusions with respect to particular 17(c), in my view, are not erroneous and this aspect of Ground 1 of the appeal should be rejected.

Conclusion re Ground 1

1. [334]

   The appellant has failed to establish an appealable error with respect to Ground 1 so far as that ground concerns particulars 17(a)(i)-(ii), (b) and (c). The establishment of any one of those particulars would be sufficient to sustain the conviction. It follows that Ground 1 of the appeal must fail.

Ground 2 – the learned trial judge erred in not applying his own reasoning from his interlocutory decision at trial on the construct of the charge, to the judgment

1. [335]

   During the course of the trial, the appellant brought an interlocutory application that the prosecution be permanently stayed on the basis of the use of a conjunction, as the appellant described it an “and/or conjunction”, throughout the charge made it duplicitous and uncertain such that it occasioned unfairness or prejudice on the appellant.

2. [336]

   The primary judge delivered an interlocutory judgement on 5 October 2021 in which his Honour refused the appellant's application for a permanent stay: Safe Work (NSW) v Saunders Civilbuild Pty Ltd [2021] NSWDC 526 (“the interlocutory judgment”).

3. [337]

   In the interlocutory judgment, after considering the background circumstances of the matter and legal principles, his Honour referred to s 223 of the WHS Act, regarding multiple contraventions of the health and safety duty and various provisions concerning the power to amend the Summons (at [21]-[29] and [30]-36]).

4. [338]

   His Honour then referred to the relevant part of the pleading being paragraphs [15]-[17] of the particulars and the parties’ written submissions. The considerations of the appellant's primary submissions as to the application for a permanent stay were dealt with in paragraphs [46]-[50] of the interlocutory judgment as follows:

5. [339]

   In this appeal, the appellant fixed upon the primary judge’s reasoning at [48(2)] of the interlocutory judgment. It was submitted by this aspect of the interlocutory judgment, that by this provision his Honour had determined that the conjunction with respect to “loading and/or loading” in the charge must be read as “and” meaning the term in “loading and/or unloading” was to be read as “loading and unloading.” The appellant gave an illustration as to how the pleaded risk and particular 17 (and particular 18) would be as affected by that determination.

6. [340]

   It was then submitted that as a consequence of the ruling so understood, that the primary judge needed to determine whether the prosecution had proved beyond reasonable doubt that:

   1. (1)

      The pleaded risk arose in respect of both the loading and unloading of materials from the back of a truck and/or the trailer of a heavy combination vehicle;

   2. (2)

      The appellant failed to ensure, so far as reasonably practicable, the health and safety of workers, in particular Mr Williams and/or Mr Edwards, by failing to take one or more of the pleaded measures to eliminate, or if that was not reasonably practicable, minimise the pleaded risk in respect of both loading and unloading; and

   3. (3)

      Mr Edwards and/or Mr Williams were exposed to the pleaded risk as a result of the appellant’s failures in respect of both loading and unloading.

7. [341]

   It was also noted that the first safe work method referred to in [50] of the interlocutory judgment was akin to the content of the verbal direction and the practice of pre-slinging which the appellant contended were most relevant to the risks associated with unloading. Evidence as to loading was minimal.

8. [342]

   The appellant referred to the submissions of the prosecutor at the trial where it was said that, on the day before the incident, at least one of the three packs of piles of delivery of the site was pre-slung for unloading of the site and Mr Brown told Mr Edwards that the pack of piles was being pre-slung so that when the piles were being unloaded there was no need to climb on the truck.

9. [343]

   The appellant then referred to several passages from Mr Brown's evidence, some of which have been set out earlier in this judgment but for convenience and to capture the content the appellants argument, they are set out here.

10. [344]

    Reference was also made to the evidence of Mr Williams. The appellant emphasised in the following extract:

11. [345]

    There was also reference to Mr Bromilow’s evidence in which Mr Bromilow stated that he considered the video relevant to safe loading and unloading of trucks by contract drivers.

12. [346]

    In this light, it was submitted that there was very little evidence as to how Mr Edwards's truck was loaded on 15 February, or whether Mr Edwards actively participated in the loading. Mr Brown's evidence was that he loaded the truck and there was no evidence to suggest that this was done other than from the ground.

13. [347]

    The appellant then submitted that despite his Honour’s findings in the interlocutory judgment on the conjunction, and the appellant’s closing submissions applying those findings to the evidence led against it, the findings in the judgment were inconsistent with the reasoning in the interlocutory judgment.

14. [348]

    The judgment of the primary judge made various findings with respect to the particulars that were inconsistent with his Honour’s position of the loading and/or unloading conjunction in the interlocutory judgment, in that his Honour referred to loading or unloading practices. The appellant relied upon the findings in paragraphs [145], [155], [157], [172], [173], [177] and [192] of Saunders Civilbuild (No 1) in order to sustain this proposition. In summary, the appellant contended that, from the charge, the interlocutory judgment and Saunders Civilbuild (No 1), the appellant adopted the following approach:

    1. (1)

       His Honour found in the interlocutory judgment that the ‘and/or’ conjunction should be interpreted as an ‘and’ in respect of the concept of ‘loading and/or unloading.’ This was also the case put by the prosecutor.

    2. (2)

       In the judgment, his Honour interpreted the ‘and/or’ conjunction with respect to ‘loading and/or unloading’ as an ‘or’ on many occasions; and

    3. (3)

       His Honour subsequently made findings in respect of the appellant’s guilt in respect of failures that occurred in relation to the ‘unloading’ process only.

15. [349]

    The appellant then submitted that, on the basis of the primary judge’s finding in the interlocutory judgment with respect to the construction of the conjunction in the charge, the primary judge should have proceeded to determine the issue on the basis of whether it was proved beyond reasonable doubt that:

    1. (1)

       The pleaded risk arose in respect of both the loading and unloading of materials from the back of a truck and/or the trailer of a heavy combination vehicle;

    2. (2)

       The appellant failed to ensure, so far as reasonably practicable, the health and safety of workers, in particular Mr Williams and/or Mr Edwards, by failing to take one or more of the pleaded measures to eliminate, or if that was not reasonably practicable, minimise the pleaded risk in respect of both loading and unloading; and

    3. (3)

       Mr Edwards and/or Mr Williams were exposed to the pleaded risk as a result of the defendant’s failures in respect of both loading and unloading.

16. [350]

    The appellant submitted that the only evidence as to what occurred during the loading of Mr Edwards’ truck was that of Mr Brown. However, his Honour rejected that evidence given by Mr Brown of their interactions on that day. In addition, there was a paucity of evidence at trial in respect of loading (for example, height measurements were discussed in the context of the truck when already loaded) and there was no direct evidence that Mr Edwards or anyone climbed on the load (or had ever climbed on the load) during the loading process.

17. [351]

    It was submitted that Mr Brown’s evidence was that Mr Edwards was not an active participant in the loading process and that the primary judge had found that the piles were capable of being loaded on to the trucks and trailers in a way that obviated the need for a person to climb onto the truck. Had his Honour applied his own reasoning from the interlocutory judgment in making findings with respect to the pleaded particulars and risk, “it was clear that there was no evidence to prove beyond reasonable doubt both the appellants loading and unloading practice.”

18. [352]

    As a result of this error, the appellant submitted the following should be concluded by the Court:

    1. (1)

       The appellant was denied the opportunity to make closing submissions in a manner that addressed the reasoning of the conjunction that his Honour ultimately applied, which was in contrast to his Honour’s applied reasoning in the interlocutory judgment; and

    2. (2)

       In applying his own reasoning to the ‘and/or’ conjunction in the charge, being reasoning to which the appellant put the prosecution to proof, his Honour ought to have found that the prosecution had not proved beyond reasonable doubt the alleged failings in the charge, being failings in relation to loading and unloading.

19. [353]

    I agree with the submission advanced by the respondent that the appellant’s submissions in this respect are based on a mischaracterisation of the approach adopted by the primary judge as to issues associated with the loading and unloading of trucks and trailers.

20. [354]

    After noting that the primary judge identified the pleaded risk as the risk of workers falling from height whilst loading or unloading (see [145] of Saunders Civilbuild (No 1)), the primary judge approached the risk as the risk of workers falling from a height whilst loading and unloading piles. This is illustrated by the following examples:

    1. (1)

       With respect to particular 17(a), his Honour referred to SWMS and SWP which related to tasks regularly undertaken by the appellant’s workers in the yard and on site. The processes undertaken in the yard were primarily loading and those on site unloading (at [165] of Saunders Civilbuild (No 1)).

    2. (2)

       At [167] of Saunders Civilbuild (No 1), the primary judge referred to the pre-incident Pile Driving SWMS and Loading and Unloading Trucks SWMS (and other documents to which it referred at [20] and [24] of his judgment concerning safe work method statements and safe work procedures). His Honour referred in that respect to both the verbal direction and the practice of pre-slinging the load.

    3. (3)

       Again with respect to particular 17(a) (in this case with respect to sub-particular (iii)-(iv)), the primary judge referred to the appellant’s adoption of the measures in sub-paragraphs (iii) and (iv) and inferred that it was necessary to do so in contemplation of other work that the appellant undertook to cover off on the possibility that in a particular “loading or unloading” situation access to the back of a truck or trailer might be required. His Honour, in that context, clearly considered both loading and unloading.

    4. (4)

       In dealing with particular 17(b), his Honour referred to the particular alleging an omission by the appellant to have trained its workers on the content of the safe work method or safe work procedure for the loading or unloading of material. At [177] of Saunders Civilbuild (No 1) the primary judge refers to particular 17(b) alleging that the defendant should have trained its workers on the content of the safe work method and safe work procedures for the loading or unloading of material. By nature of his earlier rulings, his Honour must therefore be referring to loading and unloading.

    5. (5)

       When dealing with the same particular his Honour referred to the appellant’s workers being trained on the amendments to the SWMS when they were introduced which, as the respondent correctly pointed out included the post incident SWMS of Loading and Unloading trucks.

    6. (6)

       As to the ultimate conclusion regarding particular 17(b), the primary judge concluded that the appellant should have trained it workers on the content of the safe work method or the safe work procedures referred to in particular 17(a) and in doing so referred to the appellant’s amended safety documents which included the SWMS Loading and Unloading trucks and the Contractor Induction Package. Both of those documents address the full risk associated with accessing the back of trucks and trailers during both loading and unloading.

21. [355]

    Further, Mr Williams gave evidence regarding the changes introduced by the appellant which related to both loading and unloading of trucks and trailers. The evidence concerned pre-slinging as well as the post incident SWP in the form of the Loading and Unloading Trucks SWMS (see T130.8-16 and T131.46 to T132).

22. [356]

    I reject Ground 2 of the appeal.

Ground 3 – the learned trial judge erred in law and fact in concluding that the word ‘permitted’ in paragraph [16] of the charge was not an essential fact that must be established by the prosecution

1. [357]

   This ground centred upon the use of the word “permitted” in particular 16 of the charge which, together with particulars 17-20 fell under the heading “particulars of the defendant's failure to comply with the duty under s 19(1) of the Act.”

2. [358]

   At trial, the appellant submitted that the insertion of the word “permitted” (particular [16] of the charge) should have resulted in the following:

   1. (1)

      An essential fact to be established by the prosecution was “permitting workers to access the trailer during the loading and unloading of piles.”

   2. (2)

      The prosecution did not prove that fact to the requisite standard.

   3. (3)

      The failure to prove the fact resulted in the offence not having been made out.

3. [359]

   The appellant correctly contended that the primary judge had found the following with respect to those submissions:

   1. (1)

      The appellant’s reliance on authorities relating to the meaning of ‘permit’ in criminal cases was misplaced (at [134]);

   2. (2)

      The relevant permission [paragraph 16 of the charge] was not an essential fact that must be established by the prosecution (at [135]);

   3. (3)

      In construing [16] of the charge in context, it is necessary to have regard to the allegation of the omissions set out in [17] of the [charge]. In doing so, it is apparent that [16] is a factual allegation that a circumstance (accessing the back of the truck) was allowed to occur by the [appellant] because it failed to take one or more of the steps set out in [17] of the [charge]. In other words, the factual scenario was allowed to come into existence as a result of the [appellant’s] omission or omissions (at [138]);

   4. (4)

      The appellant’s argument, with respect to the use of the word ‘permitted’ at [16] of the charge, if correct, gives [17] of the [charge] no work to do (at [139]; and (alternatively)

   5. (5)

      Because permission was not an essential legal element of the offence or an essential fact to be established, [16] of the [charge] is surplusage and can be ignored or deleted by amendment’ (at [140]).

4. [360]

   Had his Honour correctly approached the word ‘permitted’ in particular 16, it was submitted, as an essential fact, then having regard to the relevant evidence at trial, it was not open to his Honour to find the offence proven beyond reasonable doubt.

5. [361]

   The appellant then turned to what constituted an essential fact and distinguished that concept from an essential element on the one hand and mere fact on the other.

6. [362]

   The appellant relied upon the judgment of Button J in Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745 wherein his Honour stated at [36], [54], [64] and [75] as follows:

7. [363]

   In support of the contention that the allegation in particular 16 was an essential fact the prosecution had to prove in order to prove the contravention, the appellant advanced the following arguments:

   1. (1)

      The most common form of prosecution under the WHS Act alleges an omission by a duty holder. That is, an allegation that a duty holder failed to do certain things in circumstances where there were reasonably practicable measures it should have taken. That is the form of the charge in these proceedings.

   2. (2)

      The omissions in the charge alleged to be the reasonably practicable measures the appellant should have taken in order to discharge its health and safety duty are those set out at paragraph 17(a)-(d) of the Summons.

   3. (3)

      The preceding paragraph [16], under heading, ‘Particulars of the defendant’s failure to comply with the duty’, alleges the appellant permitted workers to access the trailer of the heavy combination vehicle during preparation and unloading of packs of piles.

   4. (4)

      However, the measures in [17], said to make good the alleged contravention of s 19(1), pleaded after [16], that the appellant ‘permitted’ workers to access the trailer during the unloading of packs’ (both under heading ‘particulars of the defendant’s failure to comply with the duty’), logically places the alleged omissions in [17] as the concomitant of the factual context said to have existed in [16].

   5. (5)

      Because of the existence of the alleged factual context in [16] (workers having been permitted by the appellant to access the trailer to unload piles), the omissions at [17] were enlivened, resulting in the alleged exposure to workers of a risk of death or serious injury or illness.

   6. (6)

      Prior to any unloading of piles from the trailer by workers, the mere existence of the omissions in the system of work said to exist at [17] could not, of themselves, have exposed workers to a risk of health and safety, because no worker was performing the task of unloading piles (see s 32(c) of the WHS Act).

   7. (7)

      The event that led to enlivening the alleged omissions in [17] was the placement of workers on the trailer unloading piles. How workers accessed the trailer was said to have occurred because the appellant ‘permitted’ those workers to do so.

   8. (8)

      It was not the case that the prosecution alleged the appellant failed to instruct workers to disembark the trailer after they got on it. Nor was this a case of an allegation of a failure to direct workers not to get up onto the trailer to unload piles.

   9. (9)

      It was the act of permitting workers which was said to have placed workers on the trailer to unload piles which, logically understood, enlivened reliance on a system of work said to contain the omissions pleaded at 17(a)-(d), leading to the allegation that the appellant contravened its duty as a result of those omissions.

8. [364]

   The appellant contended that the introduction of the word ‘permitting’ in particular 16 as an essential fact resulted in the notion that the appellant permitting workers onto the trailer was a positive act the prosecution was required to prove beyond a reasonable doubt.

9. [365]

   From that proposition, it was submitted that it was for the prosecution to prove beyond a reasonable doubt that the appellant failed to comply with its duty under s 19 by permitting Mr Williams and/or Mr Edwards to access the trailer of the heavy combination vehicle. An analysis shows that at trial there was no evidence to establish this essential fact or no direct evidence to the contrary.

10. [366]

    The distinction between cases alleging an act or omission, and what a court must have regard to when considering either, was discussed in Bennett, where Gaudron J said, at [12]:

11. [367]

    In Leyshon v The State of Western Australia [2007] WASCA 223 (“Leyshon”), the West Australian Court of Appeal noted the critical importance of proof in criminal cases alleging an act. At [30] the Court said:

12. [368]

    The Court of Appeal’s observation in Leyshon is particularly relevant here. First, because the prosecution elected to plead an act which it must prove, rather than proving a negative – an omission. Secondly, the Court of Appeal rightly emphasised the importance of what regard a Court must have to the evidence when an act, as opposed to an omission, is alleged.

13. [369]

    It is not submitted that the word ‘permitted’ has a single application. Rather, the question is one of fact, which necessarily requires an examination of the evidence at trial.

14. [370]

    In Broad v Parish (1941) 64 CLR 588 at [595] Starke J said the word ‘permit’ means ‘intentionally allow and ‘permission’ may be given expressly, or it may be inferred from circumstances which carry with them a reasonable implication of a discretion or liberty to use.’

15. [371]

    In Adelaide Corporation v Australasian Performing Right Association (1928) 40 CLR 481 at 490, Gavan Duffy and Starke JJ said of ‘permitting’:

16. [372]

    In R v Leonie [1999] NSWCCA 319, the Court of Criminal Appeal concluded (at [100]) that after close examination of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the defendant ‘permitted’ another to do something.

17. [373]

    It is important to note that the appellant emphasised that the Court of Criminal Appeal made such a finding even in circumstances where it took the view that the evidence disclosed ‘very suspicious circumstances.’ Such an approach was right because mere suspicion of (in this case) a criminal act is not enough for a court to proceed to a finding of guilt.

18. [374]

    The appellant submitted that in R v Jasper [2003] NSWSC 285 (“Jasper”), the Court considered when a police officer had a power to do something (within the meaning of ‘permitted’) along a series of events. Reference was made to the Court’s judgment at [15] and [16]:

19. [375]

    The analogy between Jasper and this case, it was contended, is a question of whether ‘permission’ can be given for others to perform an act, after those others have commenced the act on their own motion.

20. [376]

    The appellant contended that the Court’s reasoning in Jasper is apposite here. First, it related to considerations of criminal wrongdoing. Second, despite that case relating to events treated as abhorrent by the community, the Court correctly confined its consideration to the issue of proof to the criminal standard of ‘permission.’

21. [377]

    The appellant then turned attention to the evidence at the trial with respect to particulars involving “permitted.” In that respect, the following was emphasised:

    1. (1)

       There was no direct evidence that the appellant permitted either Mr Edwards or Mr Williams to get on the load or trailer before they did so.

    2. (2)

       There was no evidence to prove that the appellant, or any of its workers, were empowered or authorised to permit Mr Edwards or Mr Williams to access the trailer of the heavy combination vehicle before Mr Edwards or Mr Williams did so.

    3. (3)

       Mr Bromilow was not asked whether or not the appellant permitted Mr Williams or Mr Edwards to access the trailer of the heavy combination’s vehicle. Nor was Mr Brown or Mr Williams asked that question.

    4. (4)

       There was no documentary evidence which could be read as proving the appellant permitted workers to access the trailer of the heavy vehicle compilation.

    5. (5)

       Mr Brown was asked in evidence whether he told Mr Edwards to climb on top of the piles on the trailer. His response was no. He gave the same answer with respect to Mr Williams. [33] Mr Williams said that he did not tell Mr Edwards to climb up onto the load, nor was Mr Williams told that at the site meeting at the start of the day. [34]

22. [378]

    The appellant contended that despite the deliberate way the prosecution pleaded the failing, no evidence was elicited from any witness in support of that allegation. Messer’s Brown and Williams gave direct and unchallenged evidence contradicting that assertion.

23. [379]

    The appellant contended that his Honour erred in failing to have proper regard to the evidence at trial which, correctly viewed:

    1. (1)

       Established the act of ‘permitted’ at [16] as an essential fact; and

    2. (2)

       Did not prove to the requisite standard the existence of this essential fact.

24. [380]

    In my view, even if particular 16 of the Summons was found to be an essential fact the prosecution had to prove in order to prove the contravention, the appellant has not demonstrated that the respondent failed to the requisite standard to prove the same.

25. [381]

    Whilst the appellant contended that the respondent had elected, by particular 16, to plead an act it must prove, rather than prove an omission, and in that context, the respondent must prove what the appellant did, [35] senior counsel for the appellant properly accepted that the word “permitted” does not have a single application and involved a question of fact. [36]

26. [382]

    The appellant’s submission proceeded upon the basis that the word ‘permit’ means “intentionally allow”, even though permission may be given expressly or inferred from “the circumstances which carry with them a reasonable implication of a discretion or liberty to use.” [37]

27. [383]

    When seen in the light of the appellant’s primary submission, and the challenges to the findings of the primary judge, in substance, the appellant contended that the prosecution has not demonstrated anything more than mere inactivity or a failure to take some step to prevent the performance of work. It was contended that that was not enough to establish permission. [38]

28. [384]

    It was from this foundation that the appellant, as earlier mentioned, contended that the respondent had not established on the evidence that the requisite permission for the purposes of particular 16 was given because:

    1. (1)

       There is no “direct” evidence that Mr Edwards or Mr Williams were permitted to get on the load or the trailer;

    2. (2)

       There was no question asked by the respondent of Mr Brown or Mr Williams as to whether they had permitted access to the trailer or the load. Mr Brown did not tell Mr Edwards to climb into the collars on the piles. Nor did Mr Williams.

29. [385]

    However, the flaw in the appellant’s argument in this respect, even allowing for particular 16 to be an essential fact, was that the respondent did establish, to the requisite standard, the appellant had permitted Mr Edwards to access the trailer of his truck, the frames on the trailer, and the load on the frames during the unloading of the piles from the truck (to paraphrase the words of particular 16).

30. [386]

    My reasons for this conclusion correspond with the discussion of the evidence at the outset of this judgment:

    1. (1)

       Mr Edwards was contracted to convey the load of piles to the site of the incident and, in that capacity, as he had done many times before, to assist in the unloading of the piles.

    2. (2)

       Mr Brown became aware of Mr Edwards presence on or about the piles before Mr Edwards had changed the hook on the slings. Mr Brown observed Mr Edwards changing the hooking arrangements on the pre-slung piles, from the top of the load.

    3. (3)

       Notwithstanding that observation, Mr Brown allowed Mr Edwards to continue with the process of re-slinging the piles. At the time, Mr Brown had manoeuvred the excavator above the pile for the purpose of moving the piles that had been slung together. It may be inferred from the combination of these two circumstances that Mr Brown gave liberty to or accepted Mr Edwards would proceed in the process of unloading from the top of the pile. Once this assessment of the evidence is made, then the conclusion is a fortiori, that permission had been given to Mr Edwards to operate in the way that he did on the top of the piles.

    4. (4)

       It is unnecessary in coming to this conclusion to make an evaluation of the “nod” given by Mr Edwards to Mr Brown. However, the nod did not represent mere acquiescence. Mr Brown and Mr Edwards had worked together over a considerable period of time. They plainly had established a working relationship in the unloading of piles. On Mr Brown's evidence, the nod from Mr Edwards was plainly an indication for him to undertake the lift with the excavator. Once this conclusion is reached, then a fortiori permission had been given to Mr Edwards to operate in a manner that he did upon the top of the piles.

31. [387]

    A further submission advanced by the appellant was that the evidence disclosed no proof that the appellant or any one of its workers were empowered or authorised to permit Mr Edwards to access the trailer of the heavy combination vehicle before Mr Edwards did so. This proposition may not be accepted on the evidence. Mr Brown had oversight of the site. He said that historically when he would work with Mr Brown in loading and unloading operations, he drove the operating excavator and Mr Edwards would hook up the load. He thereby worked in unison with Mr Edwards. But at all times he was the supervisor. He had been piling supervisor for 20 years. He and Mr Edwards worked at sites away from other management so that Mr Brown provided local management, albeit under the control of the appellant’s detailed procedures so that by that means Mr Brown was under the control of the appellant and its senior management.

32. [388]

    In fact, Mr Brown executed the period sub-contract agreement with Beechwood Homes in July 2017 and executed various SWMS. He signed the amended Pile Driving SWMS after the accident. In parallel with an earlier judgment Cullen v State Rail Authority (NSW) (1989) 31 IR 207; [1989] AR (NSW) 588 and by distinction with the facts and circumstances in State Rail Authority (NSW) v Dawson (1990) 37 IR 110 (at 124-125), Mr Brown’s supervisory activities were undertaken in a context where there was not a safe system of work operation because of flawed working methods, and flawed work procedures.

33. [389]

    I turn to the question of whether the allegation in particular 16 is an essential fact.

34. [390]

    The primary judge found that, in construing particular 16 of the charges, it is necessary to examine the context in which the particular appeared and in the context, the allegation of omissions in particular 17. His Honour’s view was that it is apparent that particular 16 is a factual allegation that a circumstance (accessing the back of the truck) was allowed to occur by the appellant because it failed to take one or more of the steps set out in particular 17. Accordingly, the relevant permission in particular 16 was not an essential factor to be established by the prosecution.

35. [391]

    The appellant disputed that construction of the charges and contended that the measures in particular 17 which were said to make good the alleged contravention of s 19(1) were pleaded after the particular 16 and provided that the appellant permitted workers to access the trailer during the unloading of the pack. Both particulars appeared under the heading “particulars of the defendant’s failure to comply with a duty” and the positioning of particular 16 and its content logically placed, it was contended, the alleged omissions in particular 17 as the concomitant of the factual context said to have existed in particular 16. Thus, it was contended that because of the existence of the alleged factual context in particular 16, the omissions in particular 17 were enlivened, resulting in the alleged exposure to workers of a risk of death or serious injury or illness.

36. [392]

    In R v VHP (Unreported, NSWCCA, 7 July 1997) Button J stated at [54] that there was “no touchtone or litmus test to determine what is an element, an essential fact or a mere fact.” By an essential fact, the prosecutor must prove the fact beyond reasonable doubt (at [75]).

37. [393]

    When attention is directed to the elements of the offence (see [128] of this judgment), it is plain that the Summons did not allege that particular 16 was an essential fact to be proved in a prosecution for a breach of duty under s 19(1) of the WHS Act. Further, the risk as pleaded in paragraph 15 is the risk to workers such as Mr Edwards suffering injury or death as a result of falling from a height whilst loading and unloading materials from the back of a truck or trailer. It follows in my view that particular 16 is an allegation that access to the back of the truck was allowed to occur by the appellant because of the omissions in particulars 17.

38. [394]

    The primary judge was correct to construe particular 16 in the context of the whole of the Summons and in particular the charge (and the elements thereof) and particular 17.

39. [395]

    I reject Ground 3 of appeal.

CONCLUSIONS

1. [396]

   The appellant has failed to establish any of the grounds of appeal. In the circumstances, I would dismiss the appeal with costs.

ORDERS

1. [397]

   I would propose the following orders:

   1. (1)

      The appeal is dismissed.

   2. (2)

      The parties have liberty to apply to Walton J within 21 days for directions in relation to any proposed appeal against sentence.

2. [398]

   McNAUGHTON J: I have had the benefit of reading the draft judgments of Beech-Jones CJ at CL and Walton J.

3. [399]

   I agree with their judgments, and with the orders proposed by Walton J.