District Court New South Wales Medium Neutral Citation: SafeWork NSW v Assign Blue Pty Ltd [2020] NSWDC 756 Hearing dates: 16, 17, 18, 24 and 26 November 2020 Date of orders: 7 December 2020 Decision date: 07 December 2020 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2 I find the defendant not guilty. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury Legislation Cited: Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulations 2011 Cases Cited: Allen v United Carpet Mills Pty Ltd [1989] VLR 323 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bergin v Stack (1953) 88 CLR 248 Boucher v G J Coles Co Ltd (1974) 9 SASR 495 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) He Kaw Teh v R (1985) 157 CLR 523 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 Proudman v Dayman (1941) 67 CLR 536 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 Texts Cited: NSW WorkCover Code of Practice, Managing Risks of Plant in the Workplace, July 2014 NSW WorkCover Code of Practice, Work Health and Safety Consultation, Co-Operation and Co-Ordination, December 2011 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Assign Blue Pty Ltd (Defendant) Representation: Counsel: M Scott (Prosecutor) J Steele SC with S McIntosh (Defendant) Solicitors: NSW Department of Customer Service (Prosecutor) HWL Ebsworth (Defendant) File Number(s): 2019/260177 Publication restriction: None Judgment Introduction 1. Assign Blue Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Daniel William to a risk of death or serious injury contrary to section 32 of the Act. 2. On 31 August 2017 Mr William was operating a 40 tonne Wallbank Press (the Press) at the premises of Bullock MFG Pty Ltd (Bullock) in Rydalmere, where he had been placed as a labour hire worker by the defendant. During the course of operating the Press, Mr William suffered a partial amputation of three of the fingers on his right hand. Mr William cannot remember how the incident occurred and there were no witnesses to the incident. The Press was fitted with adjustable finger guards. It is apparent from the occurrence of the incident that the finger guards did not prevent Mr William from placing his hand into the working parts of the Press that were approximately 200mm past the finger guards. Photographs that were taken of the Press on the day of the incident by Inspector Bogue demonstrated that the finger guards, as they were configured at that time, did not prevent a worker from placing their hand into the working parts of the Press. Mr William had not operated the Press prior to the date of the incident. He had been shown how to operate the Press earlier in the day of the incident by a supervisor employed by Bullock. 3. The defendant admitted Elements 1 and 2 of the charge set out at [48] below. The defendant argued that its 19(1) duty was modified by s 16(3) of the Act, thereby making s 16(3) relevant to Element 2. Contrary to that argument, I am of the view that s 16(3) informs the standard of duty to be applied when assessing if there has been a breach of duty. Accordingly, I have dealt with the defendant's arguments relating to s 16(3) in Element 3. 4. The issues in the case are: 1. Did the defendant fail to comply with the health and safety duty by failing to take the steps pleaded at [11] of the Summons? (Element 3) 2. Did the defendant's breach of duty expose Mr William to a risk of death or serious injury? (Element 4) 3. Is the defence of honest and reasonable mistake of fact made out? Facts 1. The facts were not significantly in dispute. I am satisfied of the facts set out in [7] to [45] below on the evidence and make findings of facts in accordance with those paragraphs. 2. I am satisfied that each of the witnesses called were trying to do their best to give honest evidence and that I should accept their evidence. Background 1. Bullock conducted a business that manufactured sheet metal components for use in air conditioning systems out of a factory in Rydalmere (the premises). 2. The defendant conducted a business supplying the labour of its employees to businesses in Western Sydney, pursuant to labour hire agreements (labour hire workers). The defendant was paid a percentage uplift of about 16% applied to the wages and statutory entitlements that it paid to the labour hire workers. It only supplied unskilled labour and generally was paid about $5.00 per hour worked by each labour hire worker. 3. At the time of the incident, the defendant had about 30 client businesses to which it would supply labour hire workers. The defendant's clients conducted businesses in a number of industries. The defendant employed three consultants responsible for recruiting labour hire workers and placing them with clients. The consultants were required to develop relationships with clients and to take steps to expand the defendant's business. They were also expected to develop relationships with the labour hire workers and to keep in contact with them. One of the consultants, Karen Garcia, recruited Mr William and had contact with him during the course of his employment with the defendant. 4. At the time of the incident, there were six labour hire workers employed by the defendant who were assigned to Bullock at the premises. 5. On 12 March 2014 the defendant and Bullock entered into a written agreement relating to the supply of labour hire workers titled the "Assign Blue – Terms of Business". The agreement was signed on behalf of Bullock by Michael Langbridge, the operations manager. At that time, Mr Langbridge worked for Bullock for an extended period and was responsible for Bullock's operations at the premises. The agreement between Bullock and the defendant contained the following relevant terms: The client acknowledges that we are not performing the services required of our employees or independent contractors; but are instead the supplier of our employees and independent contractors, at the client's request, to perform the work that it has requested. From the time that our employees or independent contractors report to the client for their duties they are under the care, control and supervision of the client for the duration of the assignment. … Assign Blue Pty Ltd is to be notified if there is any change to the original job description or the type of work being completed by our temporary staff member. … GENERAL MATTERS AND OTHER RESPONSIBILITIES The client agrees to comply with its obligations to our employees pursuant to all relevant laws, including laws relating to workplace of occupational health and safety, discrimination and harassment. … OCCUPATIONAL HEALTH & SAFETY The client agrees that whilst an Assign Blue temporary employee is on their premises they are responsible for ensuring that the workplace environment during the period of the assignment, including any plant or equipment used, is safe. The client agrees to provide induction, training and safety consumables to our workers where appropriate. Without limiting the generality of this obligation the client agrees that they shall: Conduct risk assessments with respect to all workplace activities Establish and maintain safe work procedures addressing all risks Communicate safe work procedures to the temporary employee Comply with safety standards, and, Comply with all health and safety legislation and regulations The client agrees not to request our employees to perform or participate in any work or use any equipment with which they are unfamiliar or in respect of the use of which they are unqualified or have not received adequate training. Our employees may refuse work if it reasonably appears that the work environment is or has become unsafe for any reasons, including but not limited to you: not having established safe work procedures; not complying with safety standards; not maintaining plant and equipment; or not complying with any relevant health or safety legislation or regulations or other obligation which under these terms and conditions is for the protection of health and safety. The client agrees to comply with our reasonable requests to ensure the workplace health and safety of our employees and to rectify promptly any deficiency in the provision of a safe work environment or safe systems of work, that in our reasonable opinion would pose a threat to the safety of one of our employees or to any other person who may attend a place at which work is or may be performed by one of our employees under an assignment. If requested, the client agrees to provide us with access to the minutes of any committee that is or may be established for consultation, or to exercise any statutory function of responsibility, with respect to occupational health and safety in any workplace in which one of our employees is required to perform work, as we may request from you. You must allow us (or any of our employees) when we deem it appropriate, the opportunity to be included as a representative to, member or observer of, or to consult with, or to participate in, any of the committees referred to in the clause above. The client agrees that they will notify Assign Blue Pty Ltd of any variation of the services given to an employee or change of workplace. Acceptance of the services of our temporary staff shall be deemed acceptance of our terms of business. RELATIONSHIP WITH OUR WORKERS We reserve all other rights to control the employment relationship of our employees, who are placed with you, including the right to terminate the employee relationship for any reason that we think fit. 1. Prior to the incident, Danielle Stone, the business manager of the defendant, conducted inspections at the premises of the defendant's clients to gather information about a client's WHS system and to assess the work environment. These inspections formed part of the defendant's safety system and were conducted in partial discharge of the defendant's WHS obligations owed to the labour hire workers. The inspections consisted of Ms Stone asking a responsible person who represented the client a series of questions that were contained in a pro forma questionnaire and recording the answers that she was given on the document. Ms Stone would then inspect the areas in which the labour hire workers worked to assess the potential risks posed by the working environment and the system of work. 2. Ms Stone completed three inspections of the premises in the company of Mr Langbridge on 30 January 2013, 30 October 2014 and 18 October 2016. At each inspection, Ms Stone filled in the document titled "Client Workplace Safety Inspection Questionnaire" with the assistance of Mr Langbridge. She asked him questions relating to the matters detailed in the document and then filled it in to record his answers. Ms Stone was then taken on an inspection tour of the premises by Mr Langbridge to be shown where the defendant's employees were working, and she assessed the premises for herself. The premises comprised of three separate areas; an assembly area where workers assembled various manufactured components using hand tools, a warehouse, and a factory floor area where there were a number of machines used to manufacture components from sheet metal. On each of her inspections prior to the incident, Ms Stone was shown the assembly area and the warehouse areas of the premises, but not the factory floor. She was told by Mr Langbridge that the labour hire workers would be working in the assembly area or the warehouse area only. On the occasions of her inspections she observed the defendant's employees to be working in those two areas only. In 2011 Ms Stone had undertaken training in WHS auditing. She used that training to make enquiries of Mr Langbridge and to fill in the inspection questionnaires. 3. Mr Langbridge left the employ of Bullock in about May 2017. He was replaced by Christopher Mason as the operations manager. 4. Ms Stone had no knowledge of or experience relating to the operation of machines of the kind used by Bullock on the factory floor. Prior to the incident, Ms Stone was unaware of the content of the NSW WorkCover Code of Practice, Managing Risks of Plant in the Workplace, July 2014 (the Plant Code). Prior to the incident, she was unaware of the difference between an engineering control and an administrative control. 5. A request from Bullock to the defendant to supply a worker was usually made by telephone. Communications with clients and employees were recorded by the defendant in a computerised database. The defendant's database indicated that on occasions, Bullock requested the supply of "machine operators" from the defendant. Prior to the incident, Ms Stone did not know that Bullock made requests of the defendant for machine operators. 6. Ms Stone and the consultants also visited client sites from time to time to further relationships with the clients and to deal with issues raised by the labour hire workers. Mr William's employment and his placement with Bullock 1. Mr William was employed by the defendant on or about 17 May 2017. Mr William had experience in the security industry, customer service and car detailing. The defendant entered into a written agreement with Mr William titled "Temporary Employee Agreement" which was signed by him and Karen Garcia on behalf of the defendant on 17 May 2017. The Temporary Employee Agreement relevantly provided: I accept that I am under the care, control and supervision of Assign Blue Pty Ltd's client during the period of any assignment in regard to defined working arrangements and the manner and proficiency in which my work is performed. I undertake to perform a task required of me in a conscientious and competent manner. I acknowledge the right of Assign Blue Pty Ltd's client to direct my work activities. I agree to and adhere to all Occupational Health and Safety policies of Assign Blue Pty Ltd and Assign Blue Pty Ltd's client and to obey all lawful and reasonable orders of Assign Blue Pty Ltd's clients with respect to the use of safety equipment, the wearing of protective clothing and noise protection devices and with regard to methods of performing work tasks. 1. At the time when Mr William was employed it was the defendant's practice to require new labour hire employees to be shown a 15 minute WHS video presentation, unless the new employee held a construction industry white card. Mr William's evidence was that he held a white card and that he was not given an induction by the defendant or shown an induction video. 2. Mr William was first assigned to work for Australian Aluminium Finishing at Wetherill Park on 25 May 2017, where he remained until 30 June 2017. 3. Mr William was assigned to work at Bullock commencing on 5 July 2017. When he arrived at the premises he was met by Matthew Welch, the production manager of Bullock. Mr Welch introduced him to Glen Southwood, a team leader, and asked Mr Southwood to show Mr William what to do. 4. Mr Southwood showed Mr William how to operate a number of the machines on the factory floor, which were all types of presses used for cutting out shapes in sheet metal. Mr William's evidence was that Mr Southwood showed him the on/off switches for each machine and the guards. Mr Southwood would then install a die into the press and feed metal strips into it to cut out components. Mr Southwood would then watch Mr William operate the machine for a short time before leaving him to operate the machine on his own, sometimes for the whole day. 5. Mr William did not receive a site induction. He was not shown where the amenities were, given details of the emergency procedures or told when he was entitled to take a break. 6. Mr William told Ms Garcia on the afternoon of 5 July 2017 that he was very happy with the work at Bullock and that it was easy. 7. On 7 July 2017 Mr Mason told Ms Garcia that Mr William was performing well. 8. On or about 9 August 2017, Mr William commenced working in the warehouse driving a forklift. Mr William called Ms Garcia on 14 August 2017 to tell her that he was "now driving the forklift at Bullock" and that he had been doing so "since last Wednesday". 9. Sometime later, Mr William had an altercation with another worker in the warehouse. He spoke to Mr Welch about the issue, but did not report it to Ms Garcia or anyone else from the defendant. Mr Welch spoke to the other worker and things settled down for a while. Eventually, Mr William asked to be transferred out of the warehouse. The incident 1. On 31 August 2017 Mr William returned to work on the factory floor using the machines. At about 9.00am, Mr Southwood directed him to work on the Press. Prior to that he had used about six similar machines at the premises in the initial period of his assignment with the defendant. [1] 2. The Press was about 2,000mm tall, 1,200mm wide and about 1,500mm deep. It was an older style machine operated by a mechanical flywheel. The Press had been in operation at the premises for in excess of 20 years. The Press was fitted with adjustable finger guards at the front and the side of the Press. The finger guards were comprised of a series of metal grates about 50mm wide and about 400mm high. The metal grates were attached to the machine with bolts and could be moved up at the front or down at the side. The Press could be configured so that the metal could be fed in from the side or the front of the machine, depending on the die used and the shape of the component being manufactured. The finger guards were adjustable so that protection could be provided to the operator in the different configurations. The finger guards were interlocking in that the power to the machine was cut if they were pulled up. 3. A risk assessment of the Press had been conducted prior to the incident during Mr Langbridge's time as operations manager. It identified the risk of a crush injury to the operator's fingers from the moving parts of the Press in the die area. It specified the control measures that the Press should only be operated when the interlocked die guard is fitted and daily inspection of the condition of the Press. Mr Welch, Mr Southwood and Mr Mason were not familiar with the risk assessment prior to the incident. 4. A written work instruction (WI-6) dated 5 July 2004 had been prepared for the Press during Mr Langbridge's time as operations manager. It outlined who was able to operate the Press and contained a short summary of the process for using the Press. 5. WI-6 was as follows: 1. PROCESS OBJECTIVE To ensure safety when operating the press. 2. SCOPE All occasions when the machine is involved in production. 3. RESPONSIBILITY A. Only staff appropriately trained may use the press. B. Untrained staff may only use the press under the instruction of trained personnel. C. Any employee may raise changes to be made to this procedure but only the Factory Manager may authorise these changes. Associated Documents: Job Sheet. 4. ACTION 1. Set up dies ensuring they are correctly positioned. 2. Ensure all guards are in place and operating correctly. 3. Turn on press. 4. Place metal in the die from the side. 5. Pull down safety guard. 6. Press pedal with foot. 7. Remove off cut metal and put in scrap metal bin. 8. Repeat steps 3-8 until the job is completed. 9. Turn off the press when job is completed. 1. WI-6 was attached to a pole on the factory floor adjacent to the Press. Mr Welch and Mr Mason were not familiar with WI-6 prior to the incident. 2. At the time of the incident, the Press was configured for the metal strip to be fed in from the side of the Press until it hit a stop to indicate that it was in position and ready to be cut. The finger guards were protecting the front of the Press in this configuration. 3. Mr Southwood demonstrated how to use the Press by cutting a few strips of metal. Mr Southwood did not show Mr William WI-6 which was displayed nearby. Mr Southwood told Mr William to pull the guard down at the front, to feed the metal strip through and to then depress the pedal with his foot to operate the Press. After the metal was cut, Mr Southwood told Mr William to lift the guard and remove the cut piece out. He then told Mr William, "you know what to do" and left him to operate the Press. Mr William noticed that while operating the Press, offcuts were becoming caught and it was necessary to remove them from the die area with his hands. 4. The incident occurred just after the 9.00am break. Mr William has no memory of how it happened and there were no witnesses to the incident. Mr William was on the floor when he was first seen by witnesses after the incident. Events after the incident 1. First aid was administered to Mr William by workers from Bullock and an ambulance arrived and took him to hospital. 2. Bullock sent the workers in the factory home. The witnesses could not recall the Press being adjusted or cleaned after the incident. The machine was isolated and left for inspection by SafeWork NSW. 3. Inspector Bogue from SafeWork NSW attended the premises at about 12.30pm. 4. Bullock notified the defendant of the incident. Ms Stone attended the premises and met with Inspector Bogue and Mr Welch. Ms Stone recalled seeing blood on the floor near the Press but not on the Press itself. I am not satisfied on the evidence that the Press was cleaned, or its configuration altered, after the incident. I am satisfied that the Press was in the same condition as it was after the time of the incident when it was seen by Inspector Bogue. 5. Inspector Bogue took a number of photographs of the Press. Those photographs depicted that: 1. when the finger guards were pulled down, they did not align with the work bench of the Press; 2. the individual grates were adjusted at varying heights ranging from about 45mm to about 100mm above the work bench of the Press; 3. the metal grate in the middle of the Press was approximately 90mm above the work bench of the Press and a person's hand could easily fit through that gap; 4. it was about 190mm from the outside of the finger guard to the working parts of the Press as it was set up at the time that the photographs were taken. I infer that this distance would vary depending on the die used on the Press. 1. Mr Welch demonstrated how the machine operated for Inspector Bogue. Inspector Bogue observed that the Press would operate with the interlocking guard partially open with a gap under the individual grates of the finger guards of between 52mm x 35mm to 87mm x 80 mm. 2. Inspector Bogue issued a number of Improvement Notices to the defendant, requiring it to ensure the health and safety of the labour hire workers at Bullock's workplace by: 1. Conducting regular hazard identification at host sites, in particular with Bullock (Notice 7 – 313799); 2. Identifying reasonably foreseeable hazards with the plant at the workplace including but not limited to the Press (Notice 7-313782); 3. Providing information, training and instruction in the safe use of plant including but not limited to the Press (Notice 7-313783); and 4. Consulting, co-operating and co-ordinating activities with all other persons who have a duty including Bullock, with regard to workers who carry out work for the business or undertaking or who are likely to be directly affected by a matter relating to work, health and safety (Notice 7-313784). 1. Following the incident, Bullock retained a guarding expert, Leon Myers, to review all of the machines on the factory floor and to provide a report on the state of their guarding and whether they were safe to use. The Press was removed after the incident and not used by Bullock again. Bullock spent in the order of $500,000 replacing its older machines and upgrading the guarding on the machines that were retained. 2. The defendant retained an external WHS specialist to review its safety systems and to assess its client's workplaces at a cost of about $20,000. As a result of that review it implemented the following processes: * Developed an induction process for workers at Bullock * Conducted a workplace health and safety assessment of Bullock to identify hazards and implemented control measures and determine a risk profile of the business * Conducted workplace health and safety assessments to determine what information, training and instructions is required for agency staff at all Assign Blue client sites * Emailed all Assign Blue clients requesting copies of the information provided to agency staff including inductions and training records * Developed an internal register of qualifications (training matrix) * Conducted a workplace health and safety assessment of Bullock with the assistance of Bullock management * Conducted workplace health and safety assessments of all Assign Blue client sites to identify hazards and implement control measures * Emailed all Assign Blue clients requesting copies of the information, training and instructions provided to agency staff be provided to Assign Blue (both retrospectively and for future reference) * Strengthened the section on WHS in the Assign Blue Terms of Business * Developed a client pre-screening questionnaire * Requested all Assign Blue clients, where applicable, provide copies of WHS Committee meeting minutes for reference * Developed a client assessment tool to assess the risk profile of Assign Blue clients * Conducted workplace health and safety assessments to identify hazards and implement control measures at all Assign Blue client work sites * Developed a client site inspection checklist for regular WHS site inspections * Developed a schedule of ongoing site inspections based on the outcome of the WHS assessments for all Assign Blue clients (bi-annually for high risk and annually for medium to low risk workplaces) * File client assessment reports for future reference * Developed a pre-screening questionnaire to identify potential hazards and risks prior to the placement of agency staff or agreeing to take on the business as a new client. The elements of the offence 1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt. 2. Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. 1. The elements of the section 19(1) offence are: * Element 1 The defendant was conducting a business or undertaking; * Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 1. (ii) while the workers were at work in the business or undertaking; * Element 3 The defendant failed to comply with its health and safety duty; and * Element 4 The failure exposed an individual to a risk of death or serious injury. The relevant law 1. The offences are strict liability offences: section 12A of the Act. 2. A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act. 3. The content of the duty is set out in section 19(3) of the Act, which relevantly provides: (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. 1. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law. 2. The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 3. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury. 4. The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67]. 5. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6]. 6. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it. 7. "Reasonably practicable" is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows, or ought reasonably to know, about 1. the risk, and 2. ways of eliminating or minimising the risk, 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk. 1. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33]. 2. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ. 3. The phrase "exposed to risks" contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess. 4. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]. 5. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J. 6. The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ. 7. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather, should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 8. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32]. 9. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable. 10. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129]. 11. One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51]. 12. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E. 13. The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f. 14. Reliance on a person with specialist skills or knowledge is a relevant consideration: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. For example, where a contracting party relies on a specialist contractor to perform a task demonstrably within the contractor's area of expertise, it would not ordinarily be practicable for it to do more, provided that the task undertaken reasonably appeared to have been carefully and safely performed by the contractor: Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998). 15. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. 16. Section 244 of the Act provides: (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact. Causation 1. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]. 2. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378. 3. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130]. Honest and reasonable mistake of fact 1. It is a defence to an offence of strict liability that the accused honestly and reasonably but mistakenly believed in a set of facts, which if existed would have rendered his or her conduct innocent: Proudman v Dayman (1941) 67 CLR 536 at 540. The defence applies where if the facts as believed by the accused were true that the accused would have committed no offence and not some other offence than the one charged: Bergin v Stack (1953) 88 CLR 248 (Fullagar J). Once there is evidence on which the defence is raised, the prosecution must prove that the accused did not hold the belief honestly or that it was not reasonable to hold the belief: He Kaw Teh v R (1985) 157 CLR 523 at 534, 582 and 592. 2. The defence is a positive one. The accused must be labouring under a mistake of fact and the defence does not arise if the accused did not turn his or her mind to the question: Proudman and State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721. At common law, the defence is available to a company through the belief of one or more of its officers: Brambles Holdings Ltd v Carey (1976) 15 SASR 270. 3. To satisfy the reasonableness element of the offence the accused must demonstrate that he or she took reasonable care: Boucher v G J Coles Co Ltd (1974) 9 SASR 495 and Allen v United Carpet Mills Pty Ltd [1989] VR 323. consideration Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [11] of the Summons? 1. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37]. 2. In order to find Element 3 established I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [11] of the Summons and that the steps were reasonably practicable. 3. I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures in [11] of the Summons were reasonably practicable. The pleaded risk 1. The pleaded risk in [10] of the Summons is: …the risk of a worker, in particular Mr William, suffering serious injury, in particular having his fingers crushed and/or amputated, as a result of his fingers coming into contact with the moving parts of the Press. The likelihood of the risk occurring 1. The likelihood of the risk occurring was low to moderate. The Press had finger guards fitted to it, which if properly adjusted would have eliminated the pleaded risk. There is no evidence, other than the occurrence of the incident, to suggest that the finger guards were improperly adjusted on occasions prior to the incident. The degree of harm 1. The degree of harm that might eventuate if a worker's hands came into contact with the moving parts of the Press was significant and it was a risk of serious injury. The defendant's knowledge of the risk and the ways of eliminating or minimising the risk The defendant's knowledge of the pleaded risk and the ways of eliminating the risk 1. The fact that machines like the Press needed to be guarded to prevent the pleaded risk was known to the defendant. Part of its consultation with host employers, like Bullock, included asking if any machines at the workplace were guarded and documenting the answer to that question. 2. The defendant was not aware of the relevant Australian Standards relating to the guarding of machinery like the Press. The defendant did not have any expertise or experience in the operation of machinery like the Press. 3. Bullock only required unskilled workers to be supplied by the defendant. Bullock referred to these workers as "C13 process worker/machine operator, by reference to their classification in the relevant Award. In the three documented WHS site visits conducted by Ms Stone to assess the WHS systems of Bullock, she was led to believe by Mr Langbridge that the labour hire workers would only be required to work in the assembly area of the premises, in the warehouse and as delivery drivers. Mr Langbridge told her that and Ms Stone observed the defendant's labour hire workers to be working in those areas of the premises. The records of the defendant indicate that it had been asked by Bullock prior to the incident to supply machine operators, but the details of those requests were not communicated to Ms Stone and were not known to her at the time that she conducted the WHS site visits. 4. The defendant did not know that Mr William was going to be asked by Bullock to operate the Press on the day of the incident or at all. The recorded communications between the defendant's employees and Mr William indicated that he was working in Bullock's warehouse. Bullock did not notify the defendant that there was to be a change in the work performed by Mr William in accordance with its contractual obligation to do so. 5. Ms Stone's evidence was that the consultants were required to make inquiries of the labour hire workers as to the work being performed by them. There was no record made by Ms Garcia of the work that was being performed by Mr William in the initial period of his assignment. There was no evidence as to whether Ms Garcia made an inquiry or not. Ms Garcia was not called by the prosecution as a witness. It is inappropriate to speculate on the evidence that Ms Garcia could have given. 6. Mr William's payslip issued by the defendant for the first week of his assignment to Bullock identified that he was employed as a "Machine Operator/Assemble". Ms Stone gave evidence that the pay system had very broad employment classifications to accommodate the wide variety of work done by the labour hire workers for the defendant's clients. 7. The conduct of Mr William while he was performing work for Bullock was the conduct of the defendant: s 244 of the Act. 8. The pleaded risk was obvious if someone from the defendant had seen the Press as it was configured in the photographs taken by Inspector Bogue. 9. Taking into account all of the evidence, I am satisfied that the defendant should have known that the labour hire workers were occasionally required by Bullock to operate the machines on the factory floor and that they did know that the measures pleaded in [11] of the Summons were ways of eliminating the risk. The defendant's capacity to influence and control the work at the premises 1. Section 16 of the Act provides: (1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person-- (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 1. Both Bullock and the defendant owed a s 19(1) duty to the labour hire workers, including Mr William. Each of them was required to ensure the health and safety of the labour hire workers, so far as that was reasonably practicable. 2. However, the defendant's capacity to influence and control the work of the labour hire workers was different to that of Bullock because it: 1. did not have day-to-day supervision of the labour hire workers; 2. was not in control of the workplace; 3. did not have any experience in operating the machines on the factory floor; 4. did not have the expertise in operating the machines sufficient to identify the hazards posed by them or to identify and implement appropriate control measures; 5. did not have the knowledge required to formulate appropriate training and instruction to be provided to the operators of the machines; and 6. did not have access to the machines to ensure that they were configured in a way that was safe for use, by ensuring that the interlocking guarding was operating correctly. 1. The prosecution did not plead that the defendant had breached its duty by failing to evaluate Bullock's WHS system. 2. The prosecution alleged that the defendant breached its health and safety duty by failing to take a number of reasonably practicable steps relating to the Press. The evidence suggested that there were somewhere between 37 and 52 machines on the factory floor. Mr William had not used the Press previously and was first asked to do so a short time before the incident. 3. Whilst the defendant should have been aware that the labour hire workers had been asked to operate some of the machines, it does not follow that it was reasonably practicable for the defendant to have ensured that Bullock had in place a safe system of work relating to each machine on the factory floor. That task would have been particularly onerous for the reasons that follow. 4. First, the defendant had no requisite experience in operating machinery of the kind on the factory floor and had no experience with the actual machines operated by Bullock. The defendant would have required external assistance to do so and this would have incurred significant cost. Second, it would not have been reasonably practicable to embark on such an onerous task where Mr Langbridge represented, on behalf of Bullock, that: the labour hire workers would not be using the machines, the machines were adequately guarded, there were safe operating procedures in place and that adequate instruction, training and supervision would be provided. Third, the implementation of the system of work relating to each machine depended on matters over which the defendant had no practical or actual control. Fourth, if the prosecution's case is accepted, then the defendant would have been obliged to take the steps pleaded in [11] of the Summons for each machine on the factory floor and each machine on the premises of any of its clients. Steps taken by the defendant after the incident 1. The defendant took the steps set out at [45] in response to the incident and to satisfy the requirements of the Improvement Notices set out at [43]. As a recipient of the Improvement Notices, the defendant was legally compelled to do something. The Improvement Notices were couched in general terms, except that two of them referred specifically to the Press. The steps that the defendant took in response to the Improvement Notices were a matter for the defendant. The fact that steps were taken in response to the incident, is some evidence that those steps were reasonably practicable. 2. However, when the Court comes to apply s 18 of the Act, that evidence may not be determinative of the issue. At that point, I must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve a safe system of work in the period before the incident, and not with the benefit of hindsight. 3. At this point in the analysis I note that the steps taken by the defendant in response to the incident are not easily reconciled with the pleaded particulars of breach in [11] of the Summons, and for that reason may be of limited relevance. Costs of the measures taken after the incident 1. Ms Stone's evidence was that the defendant spent approximately $20,000 engaging an external consultant to take the steps set out at [45]. Whilst this level of cost appears to be uncommercial for the defendant in so far as it related to its agreement to supply labour hire workers to the defendant, it was not grossly disproportionate to the risk. The particulars of breach 1. I will now turn to each of the pleaded particulars set out in [11] of the Summons. (a) consult with Bullock on work health and safety matters including in relation to: (i) the task of operating the Press and the risks associated with the task; (ii) the procedures put in place by Bullock to prevent workers from coming into contact with moving parts of the Press. 1. The NSW WorkCover Code of Practice, Work Health and Safety Consultation, Co-Operation and Co-Ordination, December 2011 (the Consultation Code), sets out a guide of practices to meet the requirements for consultation on work health and safety matters and to achieve the standards required under the Act. 2. The objective of consultation with other duty holders is that there is a shared understanding of what the risks are, which workers are affected and how the risks will be controlled. This allows duty holders to work together to plan and manage health and safety. 3. The Consultation Code provides that the consultation between duty holders should include: 1. what each worker will be doing and what plant may be used; 2. who has control or influence over the work or environment where the work is being performed; 3. identifying the workers that will be involved in the activity; 4. what information may be needed by another duty holder for health and safety purposes; 5. what is known about the risks associated with the activity; and 6. what will be provided for health and safety, particularly controlling risks. 1. The defendant consulted with Bullock about the WHS system that it had in place at the premises through Ms Stone's meetings with Mr Langbridge, and the contractual arrangements between the defendant and Bullock that obliged Bullock to provide certain information in the time that labour hire workers were assigned to it. That consultation process was seriously compromised because Mr Langbridge told Ms Stone that the labour hire workers would not be required to operate the machines on the factory floor. It was clear that Ms Stone was seeking the information in the questionnaire for the purpose of the defendant complying with the duties it owed to the labour hire workers. Bullock, through Mr Langbridge, was required to consult, co-ordinate and co-operate with that process. What Ms Stone was told was confirmed by her observations of the premises. In all other respects, the defendant's consultation based on what it was told by Bullock was thorough and recognised the risks to which the labour hire workers were exposed. 2. The defendant did not specifically consult with Bullock about the Press because it was told that the labour hire workers would not be required to use the machines on the factory floor. Through its structured questionnaire, the defendant was provided with relevant information about Bullock's WHS system relating to the machines on the factory floor. It was told that the machines: 1. were guarded; 2. regularly maintained; and 3. had safe operating procedures in place. 1. In the circumstances, I am not satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to consult with Bullock on the operation of the Press. 2. I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty as alleged by this particular. (b) undertake, or require that Bullock undertake, a risk assessment for the task of operating the Press that identifies the risk of a worker's fingers and/or hands coming into contact with the unguarded components inside the machine and appropriate control measures to eliminate or minimise those risks such as those identified at (c) below. 1. The first point to note about this particular is that it is pleaded disjunctively, providing the defendant with a choice of how to satisfy it. 2. The defendant did not undertake a risk assessment of the Press prior to the incident because it was not told that any of the labour hire workers would be operating it, and it did not have the required expertise to do so. If it had been told that the labour hire workers would be using the machines, perhaps it would have been necessary to retain a suitably qualified contractor to assist. 3. Bullock did undertake a risk assessment for the Press prior to the incident. The risk assessment identified the risk of possible crush injuries to an operator's fingers in the die and specified the control measure that the press was not to be operated unless an interlocked die guard was fitted, which was required to be inspected daily. 4. "Require" is defined in the Macquarie Concise Dictionary to include "place under an obligation". 5. Bullock was contractually obliged to "conduct risk assessments with respect to all workplace activities" and I am satisfied that by securing this promise from Bullock that the defendant required it to conduct a risk assessment. 6. I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty as alleged by this particular. (c) require that Bullock adequately guard the Press so that workers are unable to access moving parts of the machine whilst it is in operation including by: (i) installing an effective interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk, and prevents access to that area at any other time; and/or (ii) installing an effective fixed physical barrier that can only be altered or removed with the aid of specialised tools. 1. The defendant did not ask Bullock to adequately guard the Press because it was told that the labour hire workers would not be required to use the machines on the factory floor. Mr Langbridge told Ms Stone that there were guards installed on all operating machines. Ms Stone did not have the required expertise to assess the state of the guarding that was installed on the machines and she did not do so based on what she was told. The defendant did not have control of the Press to ensure that it was adequately guarded. 2. At all relevant times, the Work Health and Safety Regulations 2011 (the Regulations) applied. Clause 208 of the Regulations relevantly provides: 208 Guarding (1) This clause applies if guarding is used as a control measure in relation to plant at a workplace. (2) The person with management or control of the plant must ensure that: … (b) if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time. (3) The person with management or control of the plant must ensure that the guarding: (a) is of solid construction and securely mounted so as to resist impact or shock, and (b) makes bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable, and (c) does not create a risk in itself, and (d) is properly maintained. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. … (5) Despite anything to the contrary in this clause, the person with management or control of the plant must ensure: (a) that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and (b) if guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced. 1. The finger guards on the Press were a control measure in place at Bullock's workplace. Accordingly, the finger guards on the Press were required to be of the standard required by the Regulations. 2. The evidence of the Bullock workers was that access to the die area was required in order to allow different dies to be installed according to what the Press was being used to make. I am not satisfied that it was practical to install a fixed physical barrier that could only be removed with specialised tools. The Press was fitted with an interlocked guard that, if properly adjusted, would have prevented access to the area where the risk arose. 3. Bullock was contractually obliged to: 1. ensure that any plant used by the labour hire workers was safe; 2. establish and maintain safe work procedures addressing all risks and to communicate those to the labour hire workers; 3. comply with all health and safety legislation, which clearly included clause 208 of the Regulations. 1. I am satisfied that by securing these promises from Bullock that the defendant required it to provide appropriate guarding of the Press. 2. I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty as alleged by this particular. (d) require that Bullock develop and implement a safe operating procedure for the task of operating the Press which includes a detailed description of the steps taken to safely operate the machine including a requirement to test the guarding mechanism prior to operating the machine and to not operate the machine if the guard is found to be ineffective. 1. The defendant did not have the requisite knowledge or experience with the Press to formulate an appropriate safe operating procedure for the Press. 2. Bullock did have in place WI-6 relating to the Press, but its content was fairly rudimentary and it did not identify the control measure specified in this particular. 3. I find that the defendant did not ask Bullock about the existence of a safe operating procedure for the Press because it was told that the labour hire workers would not be required to use the machines on the factory floor. 4. Clause 39 of the Regulations required Bullock to ensure that the information, training and instruction provided to a worker was adequate for the work, the nature of the risks associated with the work, and the control measures implemented. 5. Clause 206(3) of the Regulations required Bullock to take all reasonable steps to ensure that the guarding on the Press was used in accordance with the instructions and information provided by it under clause 39. 6. Bullock was contractually obliged to: 1. ensure that any plant used by the labour hire workers was safe; 2. establish and maintain safe work procedures addressing all risks and to communicate those to the labour hire workers; 3. provide induction and training; 4. not request a labour hire worker to perform work on equipment for which they were unqualified or had received inadequate training; 5. comply with all health and safety legislation, which clearly included clauses 39 and 206 of the Regulations. 1. I am satisfied that by securing these promises from Bullock that the defendant required it to have in place an appropriate safe operating procedure for the Press. 2. I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty as alleged by this particular. (e) require that Bullock provide for its inspection maintenance schedules for the Press. 1. The defendant did not ask Bullock to provide its maintenance schedules for inspection. Mr Langbridge informed Ms Stone that maintenance was performed monthly or as required. 2. The defendant did not ask Bullock to produce its maintenance inspection schedules for inspection because it was told that the labour hire workers would not be required to use the machines on the factory floor. 3. I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty as alleged by this particular. (f) require Bullock to provide supervision to employees operating the Press to ensure they are capable of operating the machine safely before they are left to operate the Press unsupervised. Additionally, require Bullock to demonstrate that the aforementioned system of supervision has been put in place. 1. I find that the defendant did not ask Bullock if it would adequately supervise the labour hire workers while using the Press because it was told that the labour hire workers would not be required to use the machines on the factory floor. 2. The defendant was not in a position to provide day-to-day supervision of the labour hire employees. It did not have the requisite knowledge or appropriate experience with the Press to know what supervision was necessary. Mr Langbridge told Ms Stone that the labour hire employees would be provided with constant supervision at the beginning of a task, followed by occasional supervision once it was established that they understood the task. 3. Mr Southwood did supervise Mr William when he was first shown to use the Press on the morning of the incident. 4. Bullock acknowledged in the agreement that it had the care, control and supervision of the labour hire employees once they were assigned to it and agreed, that whilst on the premises, it was responsible for ensuring that any plant used by the labour hire workers was safe. 5. Bullock was contractually obliged to provide supervision to the labour hire employees whilst on the premises. 6. I am satisfied that by securing the promise from Bullock that the defendant required it to supervise the employees whilst using the Press. 7. I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty as alleged by this particular. (g) provide, or require Bullock to provide, adequate information, instruction and training to workers to inform them of the risks, as identified in the risk assessment associated with operating the Press and the means by which the risks are to be controlled, eliminated or minimised as identified in the safe system of work detailed above, before commencing work. 1. This particular was also pleaded in a disjunctive form. 2. The defendant did not provide adequate information, instruction and training to the labour hire workers associated with operating the Press because it was told that the labour hire workers would not be required to use the machines on the factory floor. 3. The defendant did not have the requisite expertise or experience with operating the Press to understand what constituted "adequate" information, instruction and training to workers to control the risks associated with the Press. 4. I have already found at [111]–[113] that the defendant was not required to consult with the defendant on the operation of the Press because it was told that the labour hire workers would not be required to use the machines on the factory floor. 5. Bullock was contractually obliged to: 1. ensure that any plant used by the labour hire workers was safe; 2. establish and maintain safe work procedures addressing all risks and to communicate those to the labour hire workers; 3. provide induction and training; 4. not request a labour hire worker to perform work on equipment for which they were unqualified or had received inadequate training; 5. comply with all health and safety legislation, which clearly included clauses 39 and 206 of the Regulations. 1. I am satisfied that by securing these promises from Bullock that the defendant required it to provide adequate information, instruction and training to labour hire workers operating the Press. 2. I am not satisfied beyond reasonable doubt that the defendant breached its s 19(1) duty as alleged by this particular. Conclusion on Element 3 1. I am not satisfied beyond reasonable doubt that the prosecution has established Element 3. Element 4 - Did the defendant's breach of duty expose Mr William to a risk of death or serious injury? 1. The principles to be applied were not in dispute and are set out at [75] to [77] above. 2. The defendant contended that the WHS system that was in place at the time of the incident was sufficient to eliminate the pleaded risk. I do not accept that argument for the reasons that follow. 3. The Press was old and could be configured in a way that presented an opportunity for the operator's fingers to come into contact with the moving parts of the Press. The content of the risk assessment and the WI-6 were seriously lacking detail and were inadequate to eliminate the risk. The training provided on how to operate the Press by Mr Southwood did not involve reference to adequate risk assessments or safe work procedures. The supervision provided by Bullock to new users of the press was inadequate. 4. In the event that the defendant had involved itself more closely in ensuring the safe operation of the Press, I am satisfied that the risk to Mr William could have been eliminated or at least minimised. For example, if the consultation requirement pleaded in [11](a) or the guarding requirement pleaded in [11](c) of the Summons necessitated an inspection of the Press, it may have been arguable that the defendant knew or ought to have known that the Press posed the pleaded risk and that something needed to be done about it to protect the labour hire workers. 5. However, for the reasons given, the defendant either took the steps particularised and the risk was not eliminated or minimised, or the step was not a reasonably practicable step to take in the circumstances. 6. On occasions, the prosecutor's argument implied that the defendant was required to analyse Bullock's WHS system as it related to the Press, but this was not part of its pleaded case. 7. It was not apparent from the evidence how the inspection of maintenance schedules would have prevented Mr William being exposed to the pleaded risk. There was no allegation that the Press was inadequately maintained. Mr Southwood thought that it was operating properly on the day of the incident. The risk was posed by the fact that the finger guards were improperly adjusted and Mr William was inadequately trained on the use of the Press. Conclusion on Element 4 1. I am not satisfied beyond reasonable doubt that the prosecutor has proved Element 4. 2. Defence of Honest and Reasonable Mistake of Fact 3. The relevant principles are set out at [78]-[80]. 4. The defendant contends that Ms Stone was labouring an honest and reasonable mistake of fact that the labour hire workers would not be asked to operate the machines on the factory floor at the premises. By operation of s 244(3) of the Act, that was a mistake of fact of the defendant. Accordingly, the defendant was under no obligation to take any reasonably practicable steps relating to the operation of the machines at the premises. 5. The common law position is altered by s 244 of the Act in three important respects. First, the conduct of Mr William was the conduct of the defendant. Second, the knowledge of Mr William, the consultants and Ms Stone was the knowledge of the defendant. Third, the mistake of fact made by Ms Stone can be treated as a mistake of the defendant, irrespective of whether she is an officer or not. 6. Applying those matters to the facts demonstrates that the defendant knew that, from time to time, Bullock requested the provision of labour hire workers to work as machine operators and that Mr William and other labour hire workers were operating machines on the factory floor at the premises. 7. The defendant was under a duty to ensure the health and safety of the labour hire workers, in so far as that was reasonably practicable, and this informs the reasonableness of its conduct. An element of reasonable practicability provided for by s 18 of the Act, is what the defendant should have known. For the reasons given at [87]-[95], the defendant should have known that Mr William and other labour hire workers were operating the machines on the factory floor at the premises. 8. It is clear from the communications log that the defendant did not record the precise work that Mr William was performing during the course of his assignment with Bullock. Further, the defendant's system failed to alert Ms Stone to the fact that what she was being told by Mr Langbridge was wrong. The knowledge of the facts by the defendant was not limited to the knowledge of Ms Stone. 9. I accept that Ms Stone honestly believed what she was told by Mr Langbridge and that was a belief held by the defendant pursuant to s 244(3) of the Act. 10. When all of the facts are considered, I am satisfied beyond reasonable doubt that the prosecution has established that the defendant's belief of what Ms Stone was told by Mr Langbridge was not a reasonable mistake of fact. This is because it did not take into account all of the relevant information that was known to the defendant. 11. Accordingly, I am not satisfied that the defence of honest and reasonable fact has been made out. Conclusion and Orders 1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt. ********** Endnote 1. Between 5 July 2017 and when he was transferred to the warehouse. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2020