SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 505

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 505 Hearing dates: 21, 22 September 2021 Date of orders: 22 September 2021 Decision date: 22 September 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: The SafeWork NSW video entitled "Falls from Flatbed Trucks and Trailers Safety Alert" (the video) is admitted as Exhibit 5 in the proceedings. Catchwords: EVIDENCE — Relevance Legislation Cited: Evidence Act 1995 Work Health and Safety Act 2011 Category: Procedural rulings Parties: SafeWork NSW (Prosecutor) Saunders Civilbuild Pty Ltd (Defendant) Representation: Counsel: M Cahill (Prosecutor) P Barry (Defendant)

Solicitors: Legal, Department of Customer Service (Prosecutor) Moray & Agnew (Defendant) File Number(s): 2020/32219 Publication restriction: None

RULING 1. The defendant objects to the tender of a SafeWork video entitled "Falls from Flatbed Trucks and Trailers Safety Alert" (the video) on the basis of relevance. I indicated to the parties that the video would be admitted as Exhibit 5 in the proceedings for reasons that I would give later in the course of the trial. These are those reasons. 2. Section 55(1) Evidence Act 1995 provides: The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 1. On 16 February 2018 Geoffrey Edwards a truck driver contracted to deliver plant and materials for the defendant died when he fell from the trailer of his truck during the course of unloading a bundle of timber piles at a building site. 2. Prior to the incident the defendant had issued a verbal direction to its employees that they were not to access the back of trucks or trailers to load or unload plant and materials and that the work of loading or unloading trailers should be done from the ground. At the same time, the defendant introduced a practice of attaching slings to loads of timber piles before they were loaded onto trucks so that they could be unloaded without the need for a person to climb onto the load to attach a sling. This practice was known as "pre-slinging" the load. 3. On 20 February 2018 Mark Benson, the Chief Executive Officer of the defendant, directed Jonathon Bromilow, the General Manager of the defendant, to have all employees watch the video by close of business on 21 February 2018 and to review all safety documents before "any further unloading of vehicles" occurred. Later that day, Mr Bromilow issued a document entitled "Saunders Safety Alert" that had been prepared in relation to the incident (the Safety Alert). The Safety Alert identified the video and contained messages from it. Mr Bromilow directed that the Safety Alert be given to all employees, including labour hire employees and subcontractors currently working for the defendant (the workers) at a tool box meeting be held by close of business on 21 February 2018 and that the video be shown to the workers at that meeting. He requested that the attendance of the workers at those tool box meetings be documented. 4. By about March 2018 the defendant had amended a number of its Safe Work Method Statements (SWMS) to include the verbal direction, that is, the prohibition against accessing the back of trucks or trailers. 5. The video contains advice to the effect that where possible loading and unloading of trucks should be done from the ground and where that is not possible that other fall prevention and/or fall protection measures should be used, if it is safe to do so. The video also refers to the practice of pre-slinging loads. 6. The prosecution case, inter alia, is that the defendant's workers were inadequately trained on the verbal direction and that they were inadequately supervised to ensure that it was put into effect. The prosecution relies on the video to demonstrate that the delivery of the training package by the defendant to its workers was a reasonably practicable step that could have taken prior to the incident. 7. The defendant's complaints are that: 1. the video depicts activities that were not undertaken by the defendant at its yard or on site on the day of the incident; and 2. just because a step could be taken does not prove that it was a reasonably practicable step or that it would have had any meaningful effect on safety. 1. The question of what is a reasonably practicable step is a question of fact to be determined by application of the factors set out in s 18 Work Health and Safety Act 2011 (the Act). 2. Presumably the steps taken by the defendant after the incident were taken to comply with its obligations under the Act, to ensure the health and safety of its workers in so far as that was reasonably practicable. The defendant chose to take the particular steps that it did. It must have seen some relevance of the content of the video to the work carried out by its workers. Mr Benson, for example, stated in his email to Mr Bromilow on 20 February 2018 that the video was "relevant". That relevance is amply demonstrated by the content of the video that workers should not access the back of trucks or trailers, should work from the ground if that is possible and should practice "pre-slinging". Further, the content of the Safety Alert, when considered with the video, had the effect of making the content of the video more applicable to the day to day work conducted by the defendant. 3. The taking of the particular steps by the defendant is some evidence of the fact that those steps were reasonably practicable. 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 the provision of a safe working environment at the time leading up to the incident and not with the benefit of hindsight. 4. I am satisfied that the content of the video is relevant within the meaning of s 55 Evidence Act 1995 because it is capable of rationally affecting (directly or indirectly) the assessment of the probability of whether the defendant took all reasonably practicable steps to train its workers not to access the back of trucks or trailers and to work from the ground.