District Court New South Wales Medium Neutral Citation: SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204 Hearing dates: 24 September 2020, 3, 4, 5, 6, 7, 10, 11 and 21 May 2021, 7, 8, 9, 10 and 17 March 2022, 24 September 2022 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Criminal Before: Strathdee DCJ Decision: 1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2 I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 3 I list the matter for further directions before me on 14 July 2023 to determine the appropriate course. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury PROCEDURAL-elements of the offence- whether the defendant owed a health and safety duty – whether there was a failure to comply with that duty- whether that failure exposed workers to the risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known WORK HEALTH AND SAFETY – whether pleaded measures reasonably practicable – safety management system-objective knowledge of defendant – reasonably foreseeable OTHER Legislation Cited: Criminal Appeal Act 1912 (NSW) Occupational Health and Safety Act 2000 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ching) [1999] NSWIRComm 341 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Edwards v National Coal Board [1949] 1 KB 704 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Hamersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99 Marshall v Gotham [1954] AC 360 Moore v R [2010] NSWCCA 185 Orr v Cobar Management Pty Ltd [2019] NSWDC 796 Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 Orr v Perilya Broken Hill Limited [2018] NSWDC 28 R v Australian Char Pty Ltd [1999] 3 V.R. 834 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 R v Nelson Group Services (Maintenance) Ltd [1998] 4 ER 331 Royall v The Queen (1991) 172 CLR 378 SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792 SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No 2) [2020] NSWDC 668 SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; 205 CLR 304; 177 ALR 585; 75 ALJR 481 (15 February 2001) State Rail Authority v Dawson (1990) 37 IR 110 at 120-121 Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 Texts Cited: Safety Guideline 21: Traffic Management Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Southern Meats Pty Ltd (Defendant) Representation: Counsel: Mr M Cahill (for the Prosecutor) Mr B Hodgkinson SC and Mr N Read (for the Defendant) Solicitors: Department of Customer Service (for the Prosecutor) Norton Rose Fulbright (for the Defendant) File Number(s): 2018/46892 Publication restriction: Nil Judgment Introduction 1. Southern Meats Pty Ltd ('the defendant') entered a plea of Not Guilty on 29 November 2019 to a charge that being a person conducting a business or undertaking ('PCBU') who had a health and safety duty under s 19(1) of Work Health and Safety Act 2011 (NSW) ('the WHS Act') to ensure so far as is reasonably practicable that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed other persons, specifically Alan Doocey ('Mr Doocey') to a risk of death or serious injury contrary to s 32 of the WHS Act. 2. The trial commenced before me on 3 May 2021 and due to limitations placed on the Court and the parties, concluded on 17 March 2022. Counsel provided very helpful and detailed written submissions and spoke to those on 24 September 2022. The Agreed Statement of Facts 1. The prosecutor tendered an Agreed Statement of Facts ('ASOF') which became Exhibit 1 and an Agreed Tender Bundle ('ATB') which became Exhibit 2, which forms the background as set out below. Background 1. The defendant operated a mutton and lamb abattoir, which included the supply of frozen meat products to domestic and export markets. The premises incorporated the Load Out where boxed products were prepared to be packed onto trucks for distribution to domestic and export markets. 2. The abattoir was located at Mazamet Rd, Goulburn, New South Wales. The abattoir was a workplace for the purposes of s 8 of the WHS Act ('the workplace'). The defendant was at all material times a 'person conducting a business or undertaking' for the purposes of the WHS Act. 3. The defendant's management personnel included: Danny Michael Groarke ('Mr Groarke'), Operations/Plant Manager; Claire Graham, WHS Manager; Kendall Conroy ('Mr Conroy'), HR Manager; and Brooke Evans, WHS Supervisor. Mr Groarke and Mr Conroy were licensed forklift drivers at the time of the incident. 4. Approximately 12 workers worked in the Load Out each day (exhibit EE). Keith Smith was the Load Out supervisor and a licensed forklift driver. In the period leading up to and on 12 July 2016 the workers in the Load Out included: Alan Doocey (leading hand); Heath Hogan (leading hand and licensed forklift driver); Greg Slater (licensed forklift driver, WHS Committee Member and Union representative); James Stewart (licensed forklift driver); Ian Reynolds (licensed forklift driver); Hayden Drysdale (labourer); and Kurt Jones (labourer). 5. Given the varying nature of the work in the Load Out and the space available, practically it had to be a shared zone, i.e. a zone where it was necessary for pedestrians and forklifts to work together in the same physical space. There is no evidence to suggest otherwise. 6. During an ordinary day shift up to three forklifts were operating in the Load Out at any one time, with one docked to charge. There would only be three forklifts operating for approximately 40% of the day, and no occasions when all four were used. One forklift was fitted with a 'slip sheet' attachment and was primarily used for loading trucks. 7. The workflow through the Load Out was as follows: 1. Sheep and lamb were slaughtered, butchered, separated, and packed into boxes; 2. The first task in the morning was to unpack the plate freezers. This involved workers manually picking and placing boxes from the rollers onto empty pallets. Between six (6) and ten (10) workers undertook this task depending upon the level of production. The boxes were placed onto empty pallets for collection and transportation to different freezer stores or to the marshalling area to be loaded onto trucks. Pallets of bones were removed from the various freezers and moved into the marshalling area; 3. Boxes were scanned and/or stamped prior to being loaded onto trucks. Pallets for domestic loading were wrapped in plastic protective wrap; 4. Once the boxes were scanned and/or stamped the person undertaking the scanning would mark the pallet (with a tick or using an orange card). This was a physical indication that the scanning/stamping was complete and the pallet was ready for collection by forklift so it could be loaded into a container; 5. The forklift would transport pallets into the container. The slip sheeter was used for this task, but not exclusively. 1. The Load Out supervisor would receive at least 24 hours' notice of the product that was required to be loaded, in order to coordinate the trucks and consignments. The scanning and stamping process commenced on the morning shift in accordance with the product subject to the notice. The Incident (summarised from [11]–[21] of ASOF) 1. On 12 July 2016, Mr Doocey commenced work at the workplace at approximately 4.00am. Keith Smith ('Mr Smith') was the supervisor for the Load Out area on 12 July 2016. Mr Doocey was the leading hand in the Load Out area for the shift. 2. The Load Out area is the section of the workplace where boxes of lamb and mutton product are bought to be either chilled or frozen. The boxed meat is frozen in the plate freezers or chilled and then palletised. The pallets are then stored in the storage freezers. To meet daily orders the labourers in the Load Out area pull out pallets and store them in the marshalling area for loading onto trucks at the loading dock for delivery. 3. The Load Out area: 1. is approximately 10 metres by 15 metres; 2. is kept at temperatures no higher than 6 degrees celsius all year round in order to preserve the quality of the product; 3. includes an office, a forklift charging bay, and a loading dock for trucks and a storage area; and 4. has access to the blast freezer. 1. At approximately 1:30pm Mr Doocey was performing duties as the leading hand in the Load Out area. At that time, Mr Doocey was assisting in the unloading, sorting and repacking of boxes of meat product from a delivery truck that was reversed against the loading dock in the Load Out area. 2. The truck was being unloaded in response to a part-cancelled order from a customer. This required all of the boxes to be unloaded from the truck and sorted, so that some of the boxes could go back into cold storage at the workplace, whilst others would need to be reloaded into the truck and remain as part of the delivery. 3. The method for the unloading process involved both the manual handling of boxes and the use of a forklift. During the unloading process, several pallets of meat were placed on the floor in the Load Out area while sorting, repacking and reloading process was being undertaken. 4. At the time of the incident, Mr Drysdale was operating the forklift. He did not hold the required high risk work licence to operate the forklift. The defendant was aware that he did not hold a valid high risk work licence. Mr Drysdale was being supervised by Mr Doocey and Mr Hogan. Mr Hogan was in the truck with Mr Drysdale. 5. CCTV footage from the load out area shows that at the time of the incident, Mr Drysdale was reversing the forklift from the container compartment of the truck that was being unloaded. Mr Drysdale had a full load and was not looking in the direction of travel whilst reversing. 6. At the time of the incident, Mr Doocey was located near the opening of the loading dock and was attempting to wrap a repacked pallet of meat with a hand-held plastic wrapping device. Mr Doocey was walking backwards in a clockwise direction away from the pallet and walked into the path of the reversing forklift being operated by Mr Drysdale. 7. As Mr Drysdale reversed the forklift down the loading ramp of the dock, the forklift collided with Mr Doocey, pushing him to the ground and crushing his right foot between the two tyres of the forklift and the concrete floor. 8. Mr Drysdale manoeuvred the forklift in a direction away from Mr Doocey, and workers at the workplace rendered first aid. Injuries 1. Mr Doocey suffered a sustained Lisfranc joint fracture in his foot which required internal fixation, and severe soft tissue injuries. Mr Doocey returned to work at Southern Meats 5 days per week, 5 hours per day, on restricted duties. He resigned from the defendant's employ on 8 June 2018 to pursue a career in food software in Brisbane and was certified as fit for pre-injuries on 18 February 2018. On 22 July 2019 he was certified as unfit for work after surgery on his foot and returned to work after this operation on 30 July 2019. He was again certified as fit for pre-injury duties on 9 October 2019. SafeWork NSW Targeted Compliance Visit 1. On 1 June 2016, six weeks prior to the incident, SafeWork NSW Inspector Crosbie visited the defendant's workplace to verify compliance with the Work Health and Safety Regulation 2011 (NSW) ('WHS Regulation') and provide advice on safe forklift use (exhibit 2, tab 2). The visit was not precipitated by an incident or report. 2. The purpose of the visit was to review the defendant's procedures and provide advice on matters including: separating people from moving forklifts, checking drivers had current and valid forklift licences, making sure people at the workplace stick to the traffic management plan and site safety rules and talking to workers about how to work safely around forklifts (exhibit 2 tab 3). 3. As part of his visit Inspector Crosbie was required to check that the drivers of forklifts held valid and current licenses for the work they were undertaking and that the PCBU had a register or a system of keeping track of all HRW licence holders (exhibit 2 tab 3). 4. Inspection Inspector Crosbie completed a 'Safe Forklift Use - Checklist and Discussion Guide' in which he recorded that: 1. The defendant had appropriate systems in place to manage their drivers High Risk Work (HRW) licence currency and validity; 2. HRW licences were made available upon request and drivers who produced them held current/valid HRW licences; 3. The defendant had adequate control systems in place to separate forklifts from pedestrians. The Checklist required Inspector Crosbie to take into consideration pedestrian separation controls and forklift driver behaviour including maintaining safe distances from pedestrians, looking in all directions before moving the forklift, looking in the direction of travel, obeying speed limits on traffic signs, slowing down and sounding all the intersections and blind spots etc.; 4. The defendant had adequate systems in place to encourage forklift safety behaviour. The Inspection Checklist required Inspector Crosbie to take into consideration whether the defendant had issues with driver behaviour on site (e.g., ignoring safe operating procedures), whether it encouraged and promoted a forklift safety culture and whether it dealt with unsafe behaviour. 1. Inspector Crosbie did not identify any issue that required the issuing of Improvement Notices. Inspector Crosbie did not form a reasonable belief that that there was a contravention of the WHS Act or WHS Regulation such that an Improvement Notice or Prohibition Notice ought to have been issued (T21 L45 and T43 L40–50). 2. There is no suggestion that the Inspector did not have enough time to properly investigate the systems in place. I accept that he did what needed to be done, and based his conclusions thereon, and as a result of the Inspector's visit, the defendant agreed to take appropriate action (exhibit 2 tab 6). 3. The agreed actions are as follows: Agreed Action Defendant's comment Conduct forklift operator competency checks on employment and every 12 to 24 months to ensure practices/behaviours are acceptable This relates to conducting competency checks on employment of a new licenced driver and future competency checks. The Inspector did not recommend the need for immediate competency checks. Increase frequency of High Risk Work License register checks to ensure renewal is achieved prior to expiry This relates to increasing the frequency of register checks. The action itself implies the Inspector was satisfied that register checks were taking place but that they could be undertaken on a more frequent basis. Further the basis for the making of the suggestion was to ensure that no one inadvertently let their licence expire by missing the renewal date. Modify procedures, training and instruction to include the need for pedestrians and forklift operators to make eye contact with each other when working in shared zones This relates to a need to modifying documented procedures to conform with the existing workplace practice of making eye contact when working in shared zones. The defendant amended its Forklift Driving SWP to include a reference to the requirement. Defendant's comment Agreed Action Investigate the possibility of limiting forklifts to 5kmph indoors This is an agreement to investigate a possibility of reducing the speed limit. There is no evidence as to what speed the forklifts travelled indoors. The prosecutor has not called any evidence to establish that a reduced speed limit would minimise the Risk. Develop/implement safe pallet stacking heights for in-service and damaged pallets Not relevant to Load Out or the Risk. A further procedure was developed. Make high visibility clothing mandatory for all staff within the skin shed (possibility for entire site) Not relevant to Load Out or the Risk. Prior to the incident the defendant required its workers to wear high visibility clothing in the Load Out. 1. I accept that the actions agreed to be taken by the defendant do not amount to any acknowledgement of deficiencies in the defendant's procedures for governing the operations of forklifts. I further accept that the inspection and report confirmed that there were no such deficiencies. The procedures that the defendant had in place only needed to be modified, not introduced (T43 L20). 2. As a result of the Inspector's visit there was no suggestion to alter in any way the shared zones as they operated in the Load Out or that there was a requirement for additional floor markings. In my view, the agreed actions were improvements to the existing system. The Inspector did not form a "reasonable belief" that the maintenance of the existing system constituted a breach of the defendant's duty. The Inspector did not state in evidence that the maintenance of the existing system resulted in the WHS Act being breached. Systems of work before the incident 1. Southern Meats had in place an induction system for new workers, which included a checklist to confirm the following matters were covered during induction: 1. The documented 'Safe Work Procedures' ('SWP'); and 2. The Traffic Management Plan. Forklift Operation – ASOF [24]–[26] 1. The SWP relevantly included procedures for work to be undertaken in the Load Out area. These SWP identify the hazards associated with forklift operation, and cite the following preventative actions: * Only licenced operators permitted to drive the forklift. * Awareness training provided. 1. Specifically, the 'Forklift driving' SWP for the Load Out area recommended the following safe procedure to minimise the identified possibility of striking employees/plant and equipment: * Only licenced operators permitted to drive the forklift. * Awareness training provided. * Signs erected in areas warning of high traffic area. * Use horn to warn pedestrians. 1. The 'Forklift driving' SWP did not include a direction that forklift operators travelling in reverse must look in the direction of travel, particularly where pedestrians or other workers were, or could be present. Nor did it include any suggested controls to prevent unlicenced operators from operating forklifts in the load out area, such as a forklift lockout system: (my emphasis). 2. Mr Doocey completed his induction on 19 June 2014. Mr Drysdale completed his induction on 29 July 2014. Southern Meats relied on its supervisors and leading hands to enforce the SWP. 3. Further Agreed Facts were tendered and became exhibit 13, and contain the following: '1. Prior to, and at the time of incident, the forklift which struck Mr Doocey was fitted with working brakes, brake lights, horn, flashing lights and reversing beepers. 2. There are no material differences between the 2016 version of the Employee Handbook and the 2014 version that was in place at the time that Mr Allan Doocey commenced working for Southern Meats.' Traffic Management Plan 1. At the time of the incident, Southern Meats had in place 'Safety Guideline 21: Traffic Management' ('the Guideline') dated June 2014, which considered the interaction or potential interaction between pedestrians and vehicles, including mobile plant, and outlined the risks. It also initiated certain controls to reduce the risks such as marked zones, daily maintenance and plant checks and training and licencing of operators. 2. Despite the Guideline, I accept that there was no specific TMP for the load out area of the abattoir, no exclusion zones had been established for pedestrian workers in the vicinity of the loading dock and/or blast freezers. Guidance Material 1. There was appropriate and easily accessible guidance material available to the defendant. Systems of Work after the incident 1. SafeWork issued a number of improvement notices that required the defendant to: 1. Produce a SWP for wrapping pallets in the load out area; 2. Conduct a risk assessment and produce a specific TMP for the load out area, which was developed in consultation with competent persons; 3. Issue to supervisors a list of workers who hold current forklift licences, and the defendant developed an electronic calendar to monitor the currency of licences; 4. Conduct an audiometric assessment of the load out area to ensure that any person wearing hearing protection in the load out area was still able to hear the beepers on the forklifts. As noise levels were found to be below the threshold level, hearing protection in the load out area was reduced; and 5. Implement permanent road/pedestrian markings on the floor of the load out area. SafeWork followed-up on the improvement notice requiring such action on 11 January 2017, and it was noted that the floor markings had been implemented. Further floor markings were implemented in about March 2017. 1. All of the improvements requested by SafeWork were complied with by the defendant. The Summons 1. The particulars of the offence are set out in Annexure A to the Amended Summons as follows: 'Particulars of the defendant's duty under s 19(1) of the Act: (1) The defendant, being a corporation, was at all material times a person conducting a business or undertaking within the meaning of the Act. (2) On 12 July 2016, the defendant's business or undertaking involved the operation of an abattoir, including the supply of frozen meat products to domestic and export markets. (3) The defendant operated its business or undertaking from an abattoir located at Mazamet Rd, Goulburn, New South Wales. The abattoir was a workplace for the purposes of s 8 of the Act ('the workplace'). (4) Mr Alan Doocey was a worker of the defendant pursuant to s 7 of the Act. (5) Mr Doocey was a leading hand in the Load Out area of the workplace ('the Load Out area') who was engaged by the defendant and whose activities in carrying out work at the workplace were influenced or directed by the defendant in that he was an employee of the defendant. (6) On 12 July 2016, Mr Alan Doocey was at work in the defendant's business in that he was undertaking his duties as a leading hand providing supervisory work and assistance in the unloading, sorting and repacking of the pallets of meat in the Load Out area.' Particulars of the risk 1. The risk as detailed at [7] of Annexure A to the Amended Summons is pleaded that the risk of workers, in particular Mr Doocey, suffering serious injury or death as a result of being struck by mobile plant, in particular by a forklift, whilst undertaking work in the Load Out area. 2. The content of the duty is contained within s 19 of the WHS Act, as follows: 'Primary Duty of Care 19 (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (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 and maintenance 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 (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, 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 a 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.' The elements of the offence 1. The elements of the offence are as follows: Element 1: The defendant was conducting a business or undertaking; Element 2: The defendant owed to the workers engaged by the defendant in its business or undertaking a duty under s 19(1) of the WHS Act while the workers were at work in the business or undertaking; Element 3: The defendant failed to comply with that work health and safety duty; and Element 4: The defendant's failure to comply with its work, health and safety duty exposed the workers — in particular, Mr Doocey — to a risk of death or serious injury. The Relevant Law 1. The prosecution bears the onus of proof on all matters, and the standard of proof is beyond reasonable doubt. 2. Proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the Crown case; Moore v R [2010] NSWCCA 185 at [43] per Basten JA: RA Hulme J generally agreed at [94] and see RA Hulme J at [125]. 3. The offence is one of strict liability: s 12A of the WHS Act. 4. 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 a sub-contractor or an employee of a contractor or subcontractor: s 7 of the WHS Act. 5. The duty provided for by the WHS Act is not transferrable: s 14 of the WHS Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: s 16 of the WHS Act. 6. If more than one person has a duty in relation to the same matter under the WHS Act, each duty holder must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other duty holders in relation to the same matter: s 46 of the WHS Act. 7. A duty holder must have a structured and systematic approach to risk management: Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 ('Bros Bins Systems') at [32] per Marks J. 8. It is not disputed that the defendant was a PCBU pursuant to s 5 of the WHS Act. As such the defendant had a duty to 'ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking': s 19(2) of the WHS Act. 9. The PCBU must, so far as is reasonably practicable, consult with the workers who are to carry out work for the business or who are likely to be affected by a health or safety matter: s 47 of the WHS Act. Consultation includes sharing relevant information with the workers, giving them a reasonable opportunity to express their views and to contribute to the decision-making process, taking into account the workers' views and advising them of the outcome of the consultation process in a timely manner: s 48 of the WHS Act. Consultation is required, inter alia, when identifying hazards and assessing risks to health and safety from the work and making decisions about ways to eliminate or minimise those risks: s 49 of the WHS Act. 10. The defendant disputes that it failed to comply with its health and safety duty, and that the failure(s) put persons, and in particular Mr Doocey, to a risk of death and serious injury. 11. The issue of breach of a duty under the WHS Act is to be addressed prospectively, and must not by engaging in a "hindsight" analysis of whether the risk of injury could have been reduces or eliminated: (Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; 205 CLR 304; 177 ALR 585; 75 ALJR 481 (15 February 2001) ('Slivak') at [53] per Gaudron J; Edwards v National Coal Board [1949] 1 KB 704; Marshall v Gotham [1954] AC 360 per Lord Oaksey). 12. The analysis of whether the defendant complied with its duty to ensure safety is to be determined by looking the facts of the case as practical people would look at them, not with the benefit of hindsight: Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 Harper J at 123–124; R v Australian Char Pty Ltd [1999] 3 V.R. 834 at 847 per Phillips, C.J., Smith and Ashley, JJ. 13. The test is objective and all relevant circumstances must be taken into account, including the matters in s 18 of the WHS Act. 14. The mere occurrence of an accident resulting in injury to a worker is not sufficient in itself to prove the commission of an offence under s 32: see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ching) [1999] NSWIRComm 341 (12 August 1999) citing Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209 and State Rail Authority v Dawson (1990) 37 IR 110 at 120–121. 15. It is necessary for the prosecutor to establish a causal connection between the failure/conduct of the duty holder and the worker (person) being exposed to the risk at the time the work was being performed. In Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCR 288 ('Grasso') the NSW Court of Criminal Appeal held that the question of causation was a 'backward-looking attribution of responsibility for breach' in a criminal context and was not a 'theoretical exercise' (see paragraphs [226] and [233]). 16. The principles applicable to prosecution of offences under the WHS Act have been summarised in recent decisions including Orr v Cobar Management Pty Ltd [2019] NSWDC 796; Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 and SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792. 17. It is incumbent upon the prosecution to prove that the WHS Act or omission of the defendant was a significant or substantial cause of a person being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 ('Bulga') at [130] per Bathurst CJ, Hidden and Davies JJ. The question, however, is one 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. 18. The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 19. The safety of a worker or person cannot be ensured if a risk to their health and safety exists. The simple existence of the risk constitutes a breach of s 19 of the WHS Act. It matters not that there was an accident or that a person was injured: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 at [13] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury. 20. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the WHS Act or omission and the risk to which a worker was exposed: Bulga. 21. The word 'risk' is not defined in the WHS 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 Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 ('Theiss') at [67] per Spigelman CJ. 22. Reasonably practicable is defined in s 18 of the WHS Act. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak at [37] per Gleeson CJ, Gummow and Hayne JJ. 23. The phrase 'exposed to risks' contained in s 8(2) of Occupational Health and Safety Act 2000 (NSW) 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: Theiss. 24. The s 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]. 25. In Bros Bins Systems at [32] per Marks J it was held that a duty holder must have a structured and systematic approach to risk management. 26. The words 'reasonably practicable' indicate that the duty does not require an employer to take every possible step that could be taken: Baiada Poultry Pty Ltd v R [2012] HCA 14. Simply demonstrating that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty: Baiada at [15] and [38] per French CJ, Gummow, Hayne, Heydon and Crennan JJ. 27. In WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257, Bauer J stated as follows: 'The very purpose of the WHS Act was to introduce safe working practices so that accidents are prevented. The WHS Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.' 1. The question of reasonable practicability is also a question of fact, dependant 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 ER 331 at 351. 2. It is accepted law that one of the matters that 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] VSCA 181 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51]. 3. In Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No. 3) [2018] NSWSC 45 at [423]–[429], it was held that the use of an independent contractor with specialist skills or knowledge is a relevant consideration. If reliance is placed on an independent specialist contractor to perform a task that would demonstrably be within the independent contractor's area of expertise, it would not ordinarily be practicable for the contractor to do more, provided the task undertaken reasonably appeared to have been carefully and safely performed by the independent contractor: Hamersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) per Steytler J. 4. A duty holder must have regard to not only 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. Whilst it is not always possible to foresee various inadvertent actions by workers, duty holders nonetheless must conduct operations on the basis that such acts will occur and they must be guarded against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd ('Kirk Group Holdings') (2004) 135 IR 166 at [129]. 5. In Kirk Group Holdings it was held that 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. 6. The relevant question on causation is whether the WHS Act or omission of the defendant was a significant or substantial cause of the exposure to the risk of injury: Bulga at [127]. Further, the relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but whether there was a causal relationship between the WHS Act or omission and the risk to which the worker was exposed: Bulga at [130]. 7. The application of common sense must be feature in the determination of the question of causation, bearing in mind that the purpose of the enquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378. 8. Section 275 of the WHS Act provides that an approved code of practice is admissible in proceedings for an offence against the WHS Act as evidence of whether a duty under the WHS 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 they may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. 9. The redacted transcript of the record of interview conducted by Mr Brendan Williams from SafeWork with Mr Keith Smith on 22 November 2016 was tendered and became exhibit 12. 10. Mr Smith gave evidence that he commenced work with the defendant in 2014 and as at 12 July 2016 he was a supervisor. As the Load Out supervisor, he accepted that he had responsibilities with regard to the work area and that he had received training in OHS consultation (exhibit BB). 11. In 2014 Mr Smith stated that he had been involved in disciplining workers for operating forklifts without licence and that he knew that unlicenced drivers were not permitted to do so. 12. He gave evidence at Q.88 as follows: 'In all honesty, in part, I could say it might have been my fault because I wasn't down there, but I can't help with what I've got to do either.' 1. The question that this response was made to, and the subsequent questions and answers have been redacted, which does make it somewhat confusing. 2. Nonetheless, I accept that this is Mr Smith taking responsibility for the accident on the basis that if he had been in the Load Out at the relevant time, he would not have permitted an unlicenced worker to drive the forklift. Oral Evidence Alan Doocey 1. Mr Alan Doocey ('Mr Doocey') commenced work with Southern Meats as a labourer in early June 2014 (T56 L15). 2. Mr Doocey confirmed that he signed a Southern Meats personal safety agreement on 19 June 2014. 3. In the period between the commencement of his employment at Southern Meats and the date of the incident, Mr Doocey did not obtain a high-risk work license in relation to the operation of forklift trucks in Australia (T60 L25). 4. Mr Doocey gave evidence which described the process that was to be done to prepare domestic product for distribution. That process involved wrapping pallets in cling wrap. Mr Doocey explained that the task was performed by manually walking around the pallet with the roll of wrap in hand and that while wrapping was occurring in the loadout, forklift trucks would still be loading and unloading freezers. He explained that there were no particular rules that applied to how the forklifts and the people performing the wrapping were to interact with each other (T73–74). 5. Mr Doocey believed that there were signs erected on the walls at the entrance to the loadout area that read 'forklift area'. 6. Mr Doocey however confirmed that there was a rule in place that forklifts were to be operated by licensed persons. He described the reasons he would operate a forklift, including to move pallets or put them in a container. Mr Doocey said that he did not operate forklifts very often (T76 L20). 7. Mr Doocey gave evidence that in the period 2014 to 2016, other unlicensed persons would operate forklifts on a daily basis. Mr Doocey identified Hayden Drysdale, Colin Jones and Max Urmaski as persons who would routinely operate forklifts unlicensed (T76 L35). 8. Mr Doocey said that he did not have any interaction with the factory manager, Mr Groarke, in relation to the operation of forklifts (T77 L15). 9. During cross-examination, Mr Doocey disagreed with a proposition put by Senior Counsel for the defendant that when he was inducted at Southern Meats, he was provided with awareness training which made him aware of forklifts operating in specific areas away from pedestrians. Mr Doocey instead asserted that pedestrians and forklifts always operated in the same area (T108–109). 10. Mr Doocey agreed with Senior Counsel that it was not a practicable measure for a pedestrian working in the same vicinity as forklifts to maintain eye contact when there were three or four forklifts operating in that vicinity (T109–110). 11. Mr Doocey was taken to the SafeWork NSW forklift driver procedure (signed by Mr Doocey as part of his induction) which identified the possibility of striking employees with a forklift and repeated a warning that only licensed operators were to drive forklifts. 12. Mr Doocey explained that he was a leading hand which was a supervisory role and that he would be acting as supervisor when Mr Keith Smith ('Mr Smith') was absent from the premises (T113). 13. Mr Doocey agreed that Mr Smith worked in the loadout on a daily basis when he was at work and agreed that he and Mr Smith would see each other on a very regular basis during the day, but not all the time because sometimes Mr Smith would work in other areas of the Load Out. 14. Mr Doocey confirmed that he knew Ms Claire Graham ('Ms Graham') and that she regularly visited the loadout. In relation to the forklift procedure in particular, Mr Doocey attested that Ms Graham was present at the same time as him on many occasions observing unlicensed persons driving forklifts (T124–125). 15. Mr Doocey recalled an instance in which Mr Groarke instructed him and Mr Smith during a meeting to put unlicensed drivers into a forklift. Mr Doocey later described that meeting as taking place in the loadout office. 16. Mr Doocey confirmed that on the day of the incident he was the leading hand. Mr Smith was not in the loadout area at the time of the incident, and that as leading hand, he could arrange for the positions of pallets in the loadout to be moved and that he had a number of licensed forklift drivers available. He agreed that there was no shortage of licensed forklift drivers on that day (T136–137). 17. Mr Doocey was an unimpressive witness. The manner in which he gave evidence was such that I have formed the view that he intended to attack the credibility of the defendant and its management. There were inconsistencies in his evidence about forklift procedures, the induction process and the manner of scanning and stamping the boxes. 18. Similarly, his assertion (at T125-127) that Ms Graham knew about unlicenced drivers was, in my view, speculative, and I do not accept his evidence to establish that Ms Graham knew there was a practice of unlicenced workers driving forklifts in the Load Out. 19. He further (at T141-145) denied that Ms Evans inspected the Load Out weekly checking for safety issues, which I am of the view that she did. Nor do I accept his evidence that if he saw a practice of unlicenced workers driving forklifts, he would not have reported it. 20. In my view, Mr Doocey was an evasive and argumentative witness and as such was not a reliable witness. James Stewart 1. Mr James Stewart ('Mr Stewart') gave evidence that as at 12 July 2016, he had been employed by Southern Meats for approximately two years and confirmed that at the time of the incident, he was working as a general labourer working in the loadout. He confirmed that he held a high-risk work license in respect of the operation of forklifts (T155). 2. Mr Stewart explained that on average, he would operate a forklift in the loadout area maybe once or twice a day, but he was always available to do so. 3. Mr Stewart gave evidence that on an average day between 2014 and 12 July 2016, three forklifts could be operating in the loadout area at any one time (T156). 4. Mr Stewart gave evidence that he was provided with an induction when he first started working at Southern Meats. The induction included an instruction that only licensed persons could operate forklifts. 5. During cross-examination, Mr Stewart agreed that as time went on during his employment with Southern Meats, he was asked to drive forklifts more frequently because he was licensed and was permitted to drive forklifts (T173). He agreed that he could be called on by a supervisor at any time to drive a forklift, and as a forklift driver, the safe procedure when operating a forklift in the loadout area was to sound the horn when approaching a corner (T180). 6. Mr Stewart agreed that Mr Greg Slater ('Mr Slater'), as the work health and safety representative, directed unlicensed persons to get off forklifts, which happened more than once. 7. Mr Stewart gave evidence that when he saw the scene of the accident involving Mr Doocey on 12 July 2016, he did not think the place where Mr Doocey was wrapping the pallet was an appropriate place to do so, however he confirmed that he observed Mr Slater give directions to unlicensed persons to get off forklift every couple of days or perhaps weekly (T192). 8. At (T169) he gave vague evidence about workers who were unlicenced operating the forklifts but was unsure as to the frequency of that occurring. I do not accept that his evidence supports the submission that there existed a practice of permitting unlicenced personnel to operate forklifts, or that it was a regular occurrence. Greg Slater 1. Mr Slater was employed by Southern Meats in various capacities in several periods between 1994 and 2016. Mr Slater obtained a high-risk license in respect of operating forklifts at some point between 2005 and 2010 (T209–210). 2. Mr Slater gave evidence describing the process for the movement of product around the loadout area. He described, in particular, the process whereby pallets were scanned and wrapped in the loadout area. 3. Mr Slater became the health and safety representative when he returned to the employ of Southern Meats in 2013. He admitted that it came to his attention, in his role as the health and safety representative, that many unlicensed persons were operating forklifts in the loadout area. He gave evidence that he would instruct unlicensed persons to stop operating forklifts (T216). 4. His evidence was that he had conversations with people in management positions at Southern Meats in relation to unlicensed persons using forklifts, including Mr Keith Smith, Ms Graham and Mr Kenny Conroy ('Mr Conroy') and that he recalled having more than a dozen conversations with Ms Graham in which he reported to her the fact that many unlicensed persons were using forklifts in the loadout area, and that he was 'kicking them off' the forklifts. 5. Mr Slater confirmed that he was working on 12 July 2016, the day of the incident. He could not recall that there was a written procedure in respect of loading or unloading trucks and confirmed that three forklifts would have been operating in the loadout area at one time (T229 L25). 6. During cross-examination, Mr Slater agreed that the content of the inductions given to Southern Meats employees had changed and that when he returned to Southern Meats in 2013, Ms Graham conducted an 'all-of-plant overall systems' induction (T234 L35). 7. Mr Slater confirmed that there were disciplinary procedures applicable to those who did not comply with safety and procedural requirements and that he signed and understood a personal safety agreement on 22 August 2013, which included details about consequences of failure to adhere to specific policies relating to safety. 8. Mr Slater identified that there was yellow paint on the floor either side of the doorway to the cold storeroom to indicate that a forklift would be coming in and out of the doorway. Mr Slater agreed that the yellow paint faded over time. He never personally saw that paint being refreshed, although agreed that from time to time, the yellow lines had been repainted, and that the words 'watch out for forklifts' were stencilled on the floor (T241–242). 9. Mr Slater was cross-examined about a verbal warning he had received on 21 July 2014 in relation to a minor breach of a safety procedure and he confirmed that if anyone informed Ms Graham that there had been a breach of safety procedure, Ms Graham would commence an investigation into the allegation. 10. Mr Slater disagreed with a proposition put by Senior Counsel for the defendant that he didn't actually tell Ms Graham about unlicensed forklift operators in the loadout because he knew that Ms Graham would commence disciplinary investigations into them. He maintained that he did tell Ms Graham that there were unlicensed drivers and that there would be some sort of action (T248–249). 11. In about June 2016, about a month before the incident, Mr Slater deposed that Mr Drysdale had been the subject of a disciplinary procedure for operating a forklift unlicensed, and that he was Mr Drysdale's representative in that disciplinary process. 12. I treat the evidence given by Mr Slater with caution, in particular his evidence concerning the frequency of unlicenced drivers making complaints to management about unlicenced drivers. His evidence (T271) with regard to conversations with management was imprecise and inconsistent. Ian Reynolds 1. Mr Reynolds confirmed that as at July 2016, he had been employed by Southern Meats as a labourer since August 2006 but had only been employed as a forklift operator for about five years (T264). 2. He gave evidence that his job as a full-time forklift operator principally involved moving product in and out of the freezer and confirmed there were four operational forklifts in the loadout area. He estimated that the four forklifts were operating about 60% of the day. 3. His evidence was that most of the forklift work was carried out with pedestrians on the ground, which included the scanning and wrapping of pallets. Mr Reynolds said that Mr Doocey routinely performed scanning in the loadout area (T272). 4. Mr Reynolds recalled persons that were known to him that operated forklifts without a license. He gave evidence that before the incident, it was a common practise. He said that prior to the incident, the personnel that were licensed were Heath Hogan, Keith Smith and himself. He could not recall if Mr Doocey was licensed. 5. Mr Reynolds thought that he could remember Mr Doocey operating forklifts prior to the incident on 12 July, which is why he thought that he may have had a license. He estimated that in the leadup to the incident, he saw Mr Doocey operate a forklift at least two or three times per week (T271.L5). 6. Mr Reynolds also identified persons whom he believed did not hold a forklift license, including Hayden Drysdale and Tim Brown. He was not sure whether Kurt Jones held a license or not. Mr Reynolds thought that Mr Drysdale operated forklifts probably two or three times a day. 7. Under cross-examination, Mr Reynolds agreed that the marshalling area was a shared zone, in that employees who are driving forklifts and employees on foot are working in the same area (T276–277). 8. He agreed that he was trained as a forklift driver to look out for pedestrians which included making eye contact with them or tooting the horn to alert pedestrians to his presence in a forklift and that if those methods did not alert pedestrians to the presence of a forklift, the forklift had to stop. He agreed that the safe way to operate a forklift when it is carrying a high load is to travel in reverse. He agreed that the ultimate position as a forklift driver was to give way to pedestrians (T278). 9. Mr Reynolds said that in the period between 2013 and 12 July 2016, when Mr Slater returned to Southern Meats, he recalled Mr Slater telling unlicensed people to get off forklifts in his role as safety officer. He could not remember Mr Doocey telling unlicensed people to get off forklifts in that period (T294–295). 10. Mr Reynolds' evidence was contrary to the evidence of other witnesses with regard to safety inspections by Ms Evans and that workers would not be disciplined for breaching safety policies. He was an unimpressive witness. Heath Hogan 1. Mr Hogan started working for Southern Meats in about 2000 as a labourer. He took various period of time off work, including in 2002 and in 2009 or 2010. He started back with Southern Meats in 2012 (T299). 2. Mr Hogan believes he became a leading hand in around 2015. 3. Mr Hogan attested that of a morning, there would be 15 people at the facility. He said that forklifts would be going up and down moving product in and out of the freezer store. He said that there would be four forklifts operating at any one time (T300–301). 4. Mr Hogan gave evidence that he encountered unlicensed persons operating forklifts in the loadout on a daily basis. Mr Hogan believed that he did not instruct unlicensed persons operating forklifts to get off the forklifts. He said that those instructions mostly came from Ms Graham. 5. Mr Hogan knew that it was part of the written rules that unlicensed persons were not to operate forklifts at Southern Meats. When asked about how it came to be that unlicensed persons started operating forklifts, Mr Hogan gave evidence that it resulted from it being very busy in the factory where there was a need to respond to up to 5,200 animals being killed every day. Mr Hogan said that at some stage, it was reported to management that more forklift drivers were required (T305–307). 6. He recalled that there was a forklift incident with one of the 'young guys' and that as a result, a number of employees were sent to do a forklift course. 7. Mr Hogan gave evidence that both Mr Groarke and Ms Graham said to him during those discussions that he 'better not be letting unlicensed forklift drivers drive the forklifts' to which he said that he responded 'well, if you want these constraints put on, that's the way it has to operate or it just will not get done' (T308). 8. Mr Hogan recalled that Hayden Drysdale was suspended for driving a forklift whilst unlicensed. 9. In the period leading up to the incident, Mr Hogan's evidence was that he did not tell unlicensed persons to stop driving forklifts because management knew they were driving and did nothing about it, despite the fact that Mr Groarke and Ms Graham had directed him to not allow unlicensed drivers to operate forklifts. Mr Hogan maintained that there was CCTV footage always available to management personnel and in any event, they would walk through the room with unlicensed operators on the forklifts and did nothing about it (T308–309). 10. During cross-examination, Mr Hogan agreed that he signed a declaration on 12 October 2012 in relation to the general induction for the loadout area, and although denying that certain procedures applied to the loadout area, Mr Hogan agreed that unlicensed people were not to drive forklifts (T317). He was aware that Mr Drysdale was subject to disciplinary action for driving unlicensed (T314). Mr Hogan could not remember whether any other people had been subject to disciplinary action for driving unlicensed. 11. Mr Hogan agreed that as a forklift driver, the safety procedure applicable to him at Southern Meats when driving forklifts in a shared zone was to make eye contact with pedestrians or alternatively tooting the horn to get their attention. Mr Hogan agreed that forklift drivers were required to toot the horn when, for instance, driving out of the freezer doors to alert pedestrians that the forklift was about to come through (T323–324). 12. Mr Hogan agreed, when it was put to him by Senior Counsel for the defendant, that over the course of time, he probably instructed unlicensed persons to operate forklifts. He agreed that that instruction was in breach of the procedure. He said that he gave a direction to Max Sakiarci to operate a forklift, believing he was a licensed to do so and after being told by Ms Graham that he was cleared to drive. Mr Hogan agreed that he had been told after Mr Doocey's incident that Max Sakiarci had an expired license (T346). 13. Mr Hogan said that he did give instructions to unlicensed persons to get off forklifts prior to 12 July 2016 and that the instructions coming from Ms Graham were always that unlicensed drivers could not drive forklifts. 14. Mr Hogan recalled seeing 'Forklift pedestrian shared zone' signs in the loadout area in the period 2012 until 12 July 2016 but he could not say for certain where in the loadout the signs were located as they had been moved around (T372). 15. In relation to questions put to Mr Hogan by Senior Counsel for the defendant, Mr Hogan agreed that at the time of the incident, he was the supervisor that was present in the container. He agreed having been shown CCTV footage of the incident, that when five people emerged from the truck immediately following the incident, he was the supervisor. He agreed that as a licensed forklift driver, he could have gotten on the forklift and driven it out of the truck. When asked why he didn't drive the forklift as a licensed driver, he said that it was 'just like every other day, these guys are driving'. He also agreed that he could have directed Mr Slater to drive the forklift out but didn't (T381–382). 16. Under re-examination, Mr Hogan clarified that he spoke with Ms Graham about unlicensed persons driving forklifts on at least two occasions. He recalled that to his knowledge, an investigation was not undertaken following the reports he made, nor was anyone disciplined (T384). 17. Mr Hogan believed that following the incident, Mr Smith had to show cause as to why he should keep his job at Southern Meats (T385). 18. Mr Hogan's evidence contained inconsistencies as to whether he had instructed workers to get on forklifts. His evidence with regard to W=SWPs in the Load Out were not followed, that he didn't know of any disciplinary action being taken by the defendant for breaches of policies and relating to Ms Evans' inspections. 19. In my view, Mr Hogan grossly exaggerated the difficulty and nature of the work in the Load Out, which he stated was systematic, repetitive and planned in advance (T299). He was an unimpressive witness and I have trouble in accepting most of his evidence. Hayden Drysdale 1. Mr Drysdale started working at Southern Meats as a labourer in about June 2014 and he did not hold a high-risk work license for operating forklifts at any time in the period between June 2014 and 12 July 2016 (T388). 2. Mr Drysdale gave evidence that he was suspended from work about 3 months prior to the incident on 12 July 2016 but reported that he did not receive a final warning or a disciplinary letter from Southern Meats following his suspension in the period leading up to 12 July 2016 (T391). 3. During cross-examination, Mr Drysdale agreed that he signed a declaration in relation to the loadout induction on 29 July 2014 (T395) and agreed that the rule that only licensed drivers were permitted to operate forklifts was in place from the first time he started working at Southern Meats (T396). 4. Mr Drysdale agreed that forklift drivers needed to make eye contact with pedestrians or otherwise toot the horn to gain their attention (T399). He said that he was not instructed to do this in awareness training rather, it was a matter of common sense (T400). Further, he said that there were signs indicating that the loadout area was a shared zone. 5. Mr Drysdale confirmed that Ms Graham and Ms Brooke Evans ('Ms Evans') would visit the loadout from time to time but that he never knew when she would be visiting (T414). He agreed that Ms Graham could initiate disciplinary procedures if she (or Ms Evans) saw him driving a forklift unlicensed. 6. Mr Drysdale agreed that he was suspended for driving a forklift unlicenced and that he attended a meeting with Mr Conroy in relation to the suspension. Mr Slater was also present at the meeting. Senior Counsel for the defendant put it to Mr Drysdale that he did not indicate orally or otherwise to Mr Conroy that he had been instructed by a supervisor to drive forklifts at any time. Mr Drysdale disagreed, saying that he was fairly sure that he had said that to Mr Conroy (T423). 7. Mr Drysdale's evidence about the frequency of driving forklifts was not consistent with the other evidence, nor that there was no awareness training provided. He was not a credible witness and unless his evidence was independently corroborated, I do not accept it. 8. In his written note after the incident, Mr Drysdale made no mention of any practice of unlicenced personnel operating forklifts in the Load Out. In my view, it is unlikely that (see exhibit H) in the face of potential disciplinary action that Mr Drysdale would not have raised in his own defence the existence of a practice and the condemnation by Load Out supervisors, if such a practice existed. Kurt Jones 1. Mr Jones recalled that he worked for Southern Meats between about 2014 and 2016 and did not hold a high-risk license to operate forklifts at any time during his employment with Southern Meats (T425). 2. He recalled that Mr Doocey and Mr Hogan asked him to operate forklifts (T426). 3. Mr Jones confirmed that he saw Mr Drysdale operate forklifts and agreed that he was provided with a written instruction that only licensed personnel were permitted to operate forklifts. However, he as an unlicensed person, came to operate forklifts when he was asked to do so by a supervisor (T427). 4. Mr Jones recalled that Mr Smith would tell him to stop driving forklifts, but said that after multiple times, he turned a blind eye to it (T428). 5. Under cross-examination Mr Jones confirmed that Mr Smith instructed he and Mr Drysdale on multiple occasions to not drive forklifts. He said that Mr Hogan had also provided a similar instruction. Mr Jones said that after a while, they stopped providing that instruction and turned a blind eye (T428). 6. Mr Jones confirmed that if Mr Hogan or Mr Smith were the supervisor, and one of them instructed him to get off the forklift, he would be asked to get back on by another supervisor such as Mr Doocey (T429). 7. Mr Jones said even though Mr Hogan and Mr Smith had given the instruction to get off the forklift, he couldn't tell Mr Doocey that the other supervisors had given that instruction as a reason for staying off the forklift. He said that he would be yelled at by the supervisor giving the instruction if it was not followed (T429). 8. Mr Jones confirmed that if he said 'no' to the supervisor asking him to drive forklifts, he'd get in trouble. He gave evidence that it was invariably Mr Doocey (T429). 9. Mr Jones said that he recalled seeing signs with 'only licensed persons to drive forklifts' in the loadout area. He also recalled seeing signs indicating that the loadout was a shared zone (T444). Alexander Kenneth Crosby 1. Alexander Kenneth Crosby ('Mr Crosby') gave evidence before me. Mr Crosby was an inspector with SafeWork NSW who was based in Goulburn and had experience in working with forklifts and was involved in a particular project in 2015 or 2016 relating to forklift use. 2. Mr Crosby attended the defendant's premises in Goulburn subsequent to a telephone conversation that he had had with Ms Graham with regard to the safe forklift use project. When he attended the premises Mr Crosby had a checklist with him which was part of the general project and to utilise the checklist whilst at the defendant's premises. 3. Mr Crosby caused various documents to be created which are contained within the PTB. In particular, page 11 behind tab 6 in PX2, contains the safety guide for people working near forklifts which was relevant to his inspection. 4. In cross-examination Mr Crosby indicated that the primary part of his visit to the defendant was to give advice and education in relation to the use of forklifts in a safe manner. He conceded that he did have the power to issue improvement notices, as follows (T22.36): 'Q. So, the primary purpose of you attending on 1 June at Southern Meats was to determine that they were using the forklifts at that premises safely? A. Yes.' And then further, at line 49: 'Q. And it was directing you as an inspector to have conversations about any aspect of the use of – the safe use of forklifts as part of your inspection? A. Yes.' 1. Mr Crosby agreed that the protocol under which he had to satisfy himself that the systems in operation at the particular place you were visiting were in fact appropriate for the job they were intended to do. 2. As part of his visit, Mr Crosby also inspected external PCBU resources including SafeWork NSW Poster 1 headed 'Taking Forklift Safety Seriously'. 3. I note that (T26) during cross-examination when Mr Crosby was asked about his recollection of the visit, part of the protocol was that he checked that forklift drivers were licensed and the following exchange took place. Inspector Crosby agreed (T29) that his visit on 1 June did not require him to take additional actions such as issuing improvement notices and the like. 4. It is apparent that whilst Inspector Crosby was doing his best, he did not recall specific details of the visit to Southern Meats but recalled more of what his usual practice would be in visiting the site. Whilst Mr Crosby agreed that the protocol was used by him as part of the inspection, but he has no independent recollection of whether each part of the protocol was addressed. 5. Ultimately, Inspector Crosby agreed that the PCBU had appropriate systems in place to manage their operators' high risk work license currency and validity, having checked some of those licenses, and that the defendant had in place a system to ensure the validity of licenses for forklift drivers. He was a frank and honest witness and I have no trouble in accepting him as a witness of truth. Danny Michael Groarke 1. Mr Groarke was at the date he gave evidence, employed by the defendant as a production manager and had held that position since 2011 working as the Load Out supervisor immediately before this role. Since his employment began in 1997, Mr Groarke has held various positions including a backstrap supervisor and general hand (T480). 2. As the production manager, Mr Groarke stated that he was responsible for establishing the daily agenda (T481) and supervising staff and operations across the plant (T536), which included the Load Out area. He confirmed that he managed manning numbers and breakdowns impacting the daily production output or goal (T543). 3. Mr Groarke gave evidence that he would have to make such alterations in the Load Out area once every two to three months (T543), and that workers who were moved to the Load Out to fill a personnel gap would be given an induction, provided the SafeWork sheets to read and understand, buddied with individuals experienced in Load Out operations, and given simple tasks that were manual or menial in nature (T542). 4. Mr Groarke confirmed that many jobs in the Load Out area required specific skills, such as driving forklifts or using knives, and that workers moved to the Load Out could only perform jobs that they had been signed off on. He stated that if the Load Out area was short a licenced forklift operator, he would adjust the work amount or alter operations (T542-543). 5. Mr Groarke gave evidence that if supervisors failed to enforce the rules contained in the SafeWork procedures, they would be disciplined. He agreed that he always investigated any breaches of procedure when he became aware of such, but that the severity of the breach determined the extent of his investigation and the penalty to be applied (T558). 6. Mr Groarke did not recall whether he investigated the incident involving Mr Doocey (T562). 7. Mr Groarke gave evidence that he had previously disciplined Mr Smith, who allowed a worker to commence working in the Load Out area without taking them through the procedures as required. He confirmed that Mr Smith's failure to follow procedure and his inappropriate response to Ms Graham was enough to issue the written warning. Mr Groarke agreed that the warning was kept in Mr Smith's employment record as part of the three-step disciplinary process set out in the Enterprise Bargaining Agreement between the defendant and the union. Mr Groarke stated that a person would be suspended or terminated if they received three written warnings (T560). 8. Mr Groarke gave evidence that nobody was allowed to depart from the written SafeWork procedures, including supervisors, unless the procedure had been reviewed and altered (T561). 9. Mr Groarke stated that he would spend approximately half an hour to one hour in his office before walking through various areas of the plant at random and agreed that he visited the Load Out area regularly, approximately six times a day during a normal working day, without necessarily responding to a problem and that he had done so for two years prior to July 2016 (T547). 10. He stated that workers would stand in the causeway (T488 L3–4), adjacent to the pallet and to the right of the conveyor (T487 L35–45). Mr Groarke said that workers in the area would stand inside a red line that indicated a pedestrian area while unloading plate freezers and that these markings and other floor markings were a warning of forklift movements that were present before the incident (T485–489). 11. Mr Groarke stated that once a pallet was full of product, it was removed by forklift and an empty pallet would be put in its place. He confirmed that four forklifts were available in the Load Out area and stated that two to three forklifts would operate in the Load Out area to move the product from next to the conveyor rollers and to take product from the freezer store to the loading area. Mr Groarke agreed that four forklifts would not be used simultaneously because unused forklifts would be in the charging area (T511–517). 12. Mr Groarke agreed that, from June 2014 through to the date of the incident, there was a SafeWork procedure regarding the task of loading and unloading boxes from conveyor rollers onto pallets (exhibit 2) and confirmed that it referred to the possibility of workers being struck by forklifts (T518 L8–11). Mr Groarke also gave evidence that, since he began working at Southern Meats in 1997, there was a rule in place that only allowed workers with a forklift licence to drive forklifts (T517–540). 13. Mr Groarke recalled that there were signs throughout the Load Out warning that it was a high traffic area at the time of the incident, in addition to the forklift shared zone signs. Mr Groarke stated that there were floor stencils and wall signs warning of forklifts and forklift movements in the area as at the date of the incident but could not recall their exact location (T491). 14. Mr Groarke gave evidence that the line markings were painted on the floor by maintenance but faded due to regular wear and tear. Mr Groarke stated that he, supervisors, or Load Out workers would inform maintenance about remarking lines and that maintenance would re-stencil and repaint those markings. He said that, before the incident, repainting would be necessary every eight to twelve weeks (T496-497). 15. Mr Groarke confirmed that at the time of the incident, there was a site Traffic Management Plan, and agreed that he participated in the preparation of the plan, and that it was developed in accordance with a safety guideline. Mr Groarke further gave evidence that "Safety Guideline 21: Traffic Management" was developed around the same time as the Traffic Management Plan in June 2014 and confirmed that the Guideline and the Traffic Management Plan were the only documents that applied to the plant and Load Out area at the time of the incident (T494–499). In addition, Mr Groarke agreed that the Traffic Management Plan defined areas around the site as pedestrian only areas, designated walkways, and shared zones (T501–510). 16. Mr Groarke gave evidence that the loading dock, which was the size of the loading ramp and stretched from the ramp towards the freezer room, was marked with coloured paint. He confirmed that the marshalling area of the loading dock was also painted after the incident. Mr Groarke did not recall what colour paint was used for either area but agreed that the marking was consistent with the diagram shown to him (T526–529; exhibit 2). 17. Mr Groarke agreed that CCTV cameras were placed inside and outside each area of the plant to monitor activities and confirmed that the footage was on a continuous loop and that he could view one camera for ten seconds before it automatically rolled over to another. Mr Groarke agreed that he could not always see everything occurring in each area of the plant, but that he had a general view of each area and could stop the loop to access a specific camera. He also agreed that watching the cameras could lead him to make an enquiry or visit (T552–553). 18. Mr Groarke gave evidence that there was a camera located in the Load Out area above the freezer store, which was clearly visible at the date of the incident (T492). 19. He stated that the CCTV footage was recorded and stored for approximately 90 days and that he did not have access to the recordings, but he could obtain them by speaking to maintenance, who had access to the recorded footage (T494). 20. Mr Groarke said that at the time of the incident, approximately 300 people were working at the defendant's plant. Mr Groarke gave evidence that approximately 12 men would work in the Load Out area each day, and that he was not completely familiar with the names and identity of each worker in the Load Out around the time of the incident. Mr Groarke stated that he did not memorise names of workers with forklift licences before the incident but that he knew which workers in the Load Out were licenced forklift drivers at the time prior to the incident (T536–537). 21. Mr Groarke stated that he had seen Mr Drysdale working, but that he was not familiar with his name or face before the incident (T536). 22. Mr Groarke said that he could identify Mr Sakiasi, Mr Doocey and Mr Jones by appearance. He said that he knew that they did not have forklift licences and that if he had seen them operating one, he would have asked questions. He further stated that if he saw someone he did not recognise as having a forklift licence, he would ask to see their licence and take them off the floor. He agreed that workers driving forklifts were required to carry their licence on them (T548). 23. Mr Groarke agreed that he regularly spoke with supervisors, seconds-in-command, leading hands, and other workers during his plant inspections. He confirmed that this was to determine whether supervisors or leading hands were experiencing any issues or needed help (T551). 24. Mr Groarke recalled speaking with Mr Smith about unlicenced drivers between the period of 2014 to June 2016 and informing Mr Smith that nobody was to operate a forklift or any equipment without being signed off on it or licenced to operate it. He stated that this applied generally, and not just to the Load Out area. Mr Groarke said that he had never instructed Mr Doocey to allow unlicenced workers drive the forklift at any time prior to the incident. He agreed that he never suggested that Mr Doocey, or any unlicenced individual could , drive forklifts, during a conversation with Mr Doocey and Mr Smith in the Load Out office (T539–551). 25. Mr Groarke confirmed that he has had a forklift driver's licence for over 20 years. He agreed that once every month or two he would assist with work in the Load Out if workers were behind, if he had time, or if specific help was needed. Mr Groarke said that he regularly visited the freezer store and used forklifts to access materials or look for items (T538–552). 26. Mr Groarke confirmed that, prior to the incident, a safety cage located between Load Out area and maintenance could be used with forklifts. He gave evidence that forklifts had not been used by himself or anybody else to raise individuals without the man cage. Mr Groarke confirmed that he never asked anyone, including Mr Drysdale, to lift him on a forklift without a man cage. Mr Groarke stated that he would occasionally instruct licenced workers to use forklifts to move pallets, but that he never saw Mr Drysdale driving a forklift in the Load Out area and therefore did not give him such instructions (T538–551). 27. Mr Groarke gave evidence in a very forthright and credible way, and I accept him as a witness of truth. Claire Jane Graham 1. Ms Graham was called and gave evidence that she, as at the date of her evidence, was employed by the defendant as the work health and safety ('WHS') manager. She stated that she has held this position since 2006. Ms Graham gave evidence that she began working at Southern Meats as a labourer before moving into the quality assurance department to ensure compliance with food safety requirements (T568–682). 2. Ms Graham agreed that as the WHS manager, she is responsible for the traffic management system at the defendant's plant, and that the Safety Guideline and the Traffic Management Plan were drafted around the same time. Ms Graham confirmed that she helped author Safety Guideline 21: Traffic Management in 2014 and agreed that the document forms part of the plant's traffic management system (T568–582). 3. Ms Graham confirmed that the Safety Guideline considers traffic hazard risks in the workplace and that it required the Traffic Management Plan to identify shared zones, pedestrian zones, safety barriers, and clear signage to reduce traffic risks. She agreed that the Load Out area was composed of multiple shared zones, and that the materials listed as additional references and information in the Safety Guideline allowed her to determine that line markings and colours could be placed on the floor of roadways in some areas (T569–570). 4. Ms Graham gave evidence that she participated in consultations to develop the "Form 21.01 Layout Traffic Management Plan" and agreed that she and the supervisors were responsible for implementing the Traffic Management Plan. She stated that red line markings on the Load Out map indicated where forklifts enter and exit the freezer store, and that the markings were painted on the floor along the front of the plate freezers (T617–630). 5. Ms Graham said that many procedures were in place that covered how to train Load Out workers in the traffic management system. Ms Graham confirmed that the Traffic Management Plan referred to forklifts, and that the Load Out is covered by the safety plan as part of the site (T596–606). 6. Ms Graham stated that, prior to the incident, there was significant signage on the walls and floors from the walkways to the main area where forklifts would move pallets and product in the Load Out area to distinguish shared and pedestrian zones, and that yellow lines painted along the corridors indicated the entrance to a forklift area, and the yellow wall signs with a forklift image warned of forklift zones. Ms Graham said that, at the time of the incident, the pedestrian only area was not indicated by any markings on the ground, but by the location of the conveyer rollers (T583–590). 7. Ms Graham said that it was difficult to see these yellow lines in the loading dock from a still image from the CCTV footage, but that the yellow and black bollards in front of the freezer area and the yellow paint at the base of the pallet and slip sheets were visible (T584–585). 8. Ms Graham recalled that there was wall signage warning of the forklift area and that forklifts were in use, and signage in the corridor indicating a high traffic zone. Ms Graham stated that there were 'watch out for forklifts' markings on corridor floors at each point of entry into the Load Out. She also recalled a yellow sign warning of slippery floors in the freezer (T588–590). 9. Ms Graham confirmed that the marshalling area was a shared zone per the Traffic Management Plan, and that the two pallets next to the loading ramp at the time of the incident were within the marshalling area (T664–680). 10. Ms Graham gave evidence that forklifts moved pallets from the freezer opening door up the corridor and into the marshalling area and that rollers were used to move product from the boning rooms to be placed in the plate freezers. She stated that the conveyor belt and bollards segregate the forklifts from people working on the plate freezers. She also said forklifts would drive between the freezers and the marshalling area and that pallets would be collected and taken into the freezer or marshalling area (T586–588). 11. Ms Graham stated that there were documents in the safety guidelines covering the operation of forklifts and contained safety instructions, Load Out area inductions, and SafeWork procedures as at July 2016, including a SafeWork procedure relating to driving forklifts in the Load Out. She said that this procedure was developed in March 2007 and that it would have been reviewed every two years since then (T597–633). 12. Ms Graham said that she was involved in inducting new starters and providing whole-of-plant inductions. She confirmed that the general induction included a broad description of the plant operations, the requirements of the enterprise bargain agreement, and an explanation that breaches of policy may result in disciplinary action. Ms Graham stated that she was aware of the rule that only licenced individuals could drive forklifts since her induction in 1993 and agreed that this rule was maintained and did not need changing after she became the WHS manager, and that a breach of this rule would attract disciplinary action (T588–683). 13. Ms Graham agreed that a registered training organisation delivered awareness training from 2014 to 2016, and that training was provided to all licenced and unlicenced workers in the Load Out. The awareness training included an induction to the Load Out area that covered the area's specific hazards, and that workers were given extensive induction training through presentations and a demonstration DVD about forklifts before they are allocated to a working area. She said that training also included a practical demonstration from supervisors and documents like the induction package, SafeWork procedures, the handbook, safety procedures, and safety instructions and guidelines (T598–680). 14. Ms Graham stated that safety guidelines dealing with general plant-related hazards were provided to workers at the initial induction while area-specific safety guidelines would only be provided to workers assigned to work in that specific area. She confirmed that Safety Guideline 6 was provided to workers in the Load Out and not to all workers as part of their induction to Southern Meats (T605). 15. Ms Graham gave evidence that around May 2016, she met with a SafeWork Inspector, Mr Crosby, at the Southern Meats site regarding the use of forklifts. She agreed that inspectors rarely attended the site to conduct proactive investigations, and stated visits were usually in response to something that had happened. She recalled that the inspection lasted approximately one hour and that they visited areas across the plant where forklifts would operate (T608–615). 16. Ms Graham agreed that Mr Crosby sent her and Mr Conroy an email with an attached report after the meeting and that the report referred to actions that the defendant agreed to undertake. Ms Graham also agreed with the suggestion that Southern Meats should investigate limiting forklifts to 5 kilometres per hour indoors and implement a safe pallet stacking heights procedure for damaged pallets (T609–611). 17. Ms Graham confirmed that after receiving the report, she took steps to review SafeWork procedures, increase the frequency of forklift competency checks, and added the eye-contact in shared zones recommendation, and she did not recall if these steps were taken before the incident (T612). 18. Ms Graham said that she spoke to the Load Out supervisors and the general manager about the report's recommendations and modifying procedures prior to the incident, and that she did not recall any amended work procedures or guidelines being finalised before the incident (T615). 19. Ms Graham gave evidence that the risk assessments were recorded and kept as electronic records. She stated that the risk assessment date would be relevant to any revision, and that the risk assessment for the amended SafeWork procedure relating to forklift driving would have been done some time in July 2016 (T705). 20. Ms Graham agreed that daily HAZOP sheets were completed by supervisors to identify whether their specific area conformed to Southern Meats' policies and procedures, note any issues or non-conformance, and suggest corrective actions. She confirmed that the HAZOP sheets went to her office every day and that, depending on the issue, she would action the requirements by taking it to the appropriate department, and that the HAZOP sheet gave supervisors an opportunity to raise issues with management, such as not having enough forklift drivers (T692–693). 21. She agreed another supervisor in the area could fill out the daily HAZOP form if the regular supervisor was not present and that the daily HAZOP review Load Out form was amended after the incident to include the name of the licenced forklift drivers present each day. She stated that the form was also upgraded to include the line "no unlicenced drivers" under conformance monitoring, as opposed to simply reviewing the forklift drivers (T636 L5–12). 22. Ms Graham gave evidence that supervisors also completed a daily timesheet to record the hours worked by employees in the Load Out area and stated that the timesheet would be printed for the week and filled in every day to record the number of hours and overtime worked by each employee for remuneration purposes (T694–695). 23. Ms Graham confirmed that she obtained the Load Out area's timesheet records from 1 July 2015 through to 18 May 2016, that there were usually more licenced drivers available than required during this period, and that at least two to three licenced drivers were working every day. Ms Graham said that she identified only four days in this period when there were less than three forklift drivers. Her evidence was that determining what number of drivers would be adequate depended on the day's production requirements and how many licenced workers were needed. Ms Graham said that she knew that there were always more than enough licenced drivers working in the Load Out because there was never a day when the Load Out's work had not been completed since she began working at Southern Meats (T695–697). 24. Ms Graham agreed the Southern Meats Management Review Meeting Minutes of 4 August 2016 referred to actioning Work Cover recommendations, and that she was required to review individual improvement notices, including an update of the SafeWork procedures for pallet wrapping, the Load Out traffic management plan, and the risk assessments for the store (T638–639). 25. Ms Graham stated that on the date of the incident, the pallet wrapping was not conducted per the Load Out map in the traffic management plan, and that it should have been removed to the marshalling area or done in the blue area marked on the map for pallet wrapping. Ms Graham agreed that a SafeWork procedure relating to wrapping pallets was developed after the incident in the Load Out area and that she was responsible for a recommendation to move the pallet wrapping location (T639–640). 26. Ms Graham agreed that she had seen the CCTV footage of the incident, and that the defendant maintained a CCTV system across the site prior to the incident. Ms Graham said that this included one on the loading dock that recorded the incident, as well as ones showing the front of the plate freezers and the area from the maintenance department towards the outside dock (T645). 27. Ms Graham confirmed that she could access the CCTV footage prior to the incident through her desk computer (T646 L12–17), but that it was always visible on her screen (T698 L44–45). 28. She stated that from the period of 2014 to 2016, she accessed the CCTV footage to record how production was going, investigate any build-up issues, generally observe workers from a WHS perspective, and review incidents raised via the two-way radio, which connected supervisors and management around the plant to communicate issues, delays, or problems that needed attention. She stated that she was always monitoring the radio channel, and that the second channel was used mostly by maintenance to speak without interrupting the first channel (T646–699). 29. Ms Graham agreed that she visited the plant and the Load Out area regularly as the WHS manager and that during the period from 2014 through to 12 July 2016, she visited the plant at least three times a week and the Load Out sporadically averaging once a week. Ms Graham stated that her visits were unscheduled and unannounced, but that her visits occurred at various times of the week to check training periods, conduct audits, check whether people were performing tasks per the SafeWork procedures, give information to supervisors, and make general observations (T686–707). 30. Ms Graham confirmed that, from the beginning of 2012 through to 12 July 2016, she knew which Load Out workers had a forklift licence, because she could recognise employees on sight and had copies of their licences in training and WHS records. She also confirmed that she could identify workers driving forklifts in the Load Out by watching the CCTV footage. Ms Graham stated that each time she visited the Load Out area during this period, she only saw workers that she knew had a forklift licence operating the forklifts. She agreed that she did not observe any person she did not recognise as licenced, or any unlicensed person, operating a forklift during this period (T686–700). 31. Ms Graham agreed that Ms Evans observed Mr Huang on one occasion, and Mr Tetlarra, Mr Brookes, Mr Watkin, and Mr Shields on another occasion, driving forklifts without licences during her weekly inspection of the Load Out area. She stated that Ms Evans reported this to her, and that the supervisor held a disciplinary meeting and that nobody denied driving the forklift. She also stated that she made enquiries of the unlicenced workers and supervisors to determine whether any of the workers had driven forklifts on other occasions, and that she continued to review and monitor the CCTV footage (T703–704). 32. Ms Graham agreed that she knew Mr Hogan, and that he was a Load Out worker and leading hand at the time of the incident. She agreed that Mr Hogan, Mr Smith, and Mr Doocey wore blue hats on the floor to indicate their supervisory or leading hand status. Ms Graham stated that Mr Hogan and Mr Doocey were both leading hands, and that Mr Hogan would have reported to the production manager and Mr Smith, the supervisor. She confirmed Mr Hogan and Mr Doocey would have reported to each other as there was no hierarchy between them (T655–656). 33. Ms Graham stated that supervisors and leading hands were responsible for training workers and ensuring that they knew about the SafeWork procedures applicable in the Load Out area. She stated this included determining whether individuals had forklift licences, confirming that workers knew to request permission before operating machinery, and ensuring that all workers signed off on the forklift SafeWork procedure so that they understood that only licenced persons could drive forklifts. Ms Graham agreed that rules relating to the safe operation of forklifts and forklift awareness training were available in writing, on signs, and included in awareness training (T657). 34. Ms Graham stated that she, Mr Conroy, Mr Doocey, and Mr Smith were part of the investigation team regarding the July 2016 incident. She said that she obtained and watched the CCTV footage, which confirmed that Mr Drysdale was driving the forklift during the collision. Ms Graham stated that she identified Mr Slater, Mr Hogan, and several other workers in the container when Mr Drysdale got onto the forklift (T658–659). 35. Ms Graham stated that between 2014 to 2016, disciplinary processes would be triggered where non-compliant behaviour was reported or observed during plant inspections. Ms Graham said that after two written warnings, a final warning could result in suspension or termination, but that it depended on the degree of the breach and whether the worker had received any other disciplinary letters before. She confirmed that this process often involved her, and always involved a person from management (T684–684). 36. Ms Graham gave evidence that as WHS manager, she has written records of disciplinary action taken against workers at Southern Meats. Ms Graham confirmed that she also searched the records as far back as 2006 to find if any action had been taken against unlicenced forklift drivers. She agreed that the records were dated and signed on the day that any warning was issued. Ms Graham stated that if she had heard that unlicenced workers were driving forklifts due to a high workload, she would have disciplined the unlicenced drivers and reported it to the supervisor and general manager (T684–686). 37. When shown CCTV footage of the incident, Ms Graham agreed that a forklift carrying a pallet of product stopped next to the slip sheets, and that the forklift driven by Mr Reynolds was entering the freezer room (T664–665). 38. Ms Graham identified Mr Doocey in the CCTV footage as wearing a blue hat and using the pallet wrapping machine. She agreed that Mr Doocey was within the marshalling area at that point. Ms Graham stated that Mr Doocey and the forklift operator exiting the freezer room into the shared area did not need to make eye contact with each other because it was not a requirement at the time. She also stated that the forklift did not have to wait until Mr Doocey was aware of it. Ms Graham said that forklifts would usually honk their horn to indicate their presence when entering or exiting the freezer or moving about (T666–668). 39. When asked specifically about the CCTV footage, Ms Graham stated that Mr Doocey was within the marshalling area while the forklift was reversing on an angle and its back half entered the marshalling area (T674 L41–49; T675 L3–14). She stated that, at the time of the incident, the pallet should not have been wrapped there because it was too close to the loading dock (T675 L50). 40. Ms Graham stated that this knowledge was also based on awareness training, and there was an unwritten procedure that pallets would be wrapped before being placed next to the loading dock (T674–677). 41. When asked specifically about the image on the CCTV footage at four minutes and 50 seconds, Ms Graham stated that half the group were within the marshalling area and the other half were on the roadway. She said that the roadway was the width of a forklift and pallet and that it travelled in an L-shape through the freezers and Load Out to move pallets from the marshalling area into the trucks (T677–678). 42. Mrs Graham gave extensive and detailed evidence to the Court. I accept that she was a diligent worker and that her evidence was credible and clear. I accept her as a witness of truth. Kendall Conroy 1. Mr Conroy was employed by Southern Meats as the human resources ('HR') manager, and that he has held this position since 2014. Mr Conroy agreed that during his employment as a HR manager, there was a rule that only licenced individuals could drive forklifts throughout the plant, including the Load Out area (T709–713). 2. Mr Conroy confirmed that he would visit the Load Out area from time to time on an ad hoc basis to conduct a general check of everything in the area as part of his duties. He agreed that during the period from early 2014 through to the middle of 2016, these visits to the Load Out area occurred on average every day or every other day. Mr Conroy confirmed that he was able to recognise and identify people who worked in the Load Out area for an extended period. Mr Conroy agreed that he could distinguish which individuals working in the Load Out area had a licence to drive a forklift and gave evidence that, during the period from 2014 to 2016, he did not see any individuals that he recognised as being unlicensed driving forklifts during his visits to the Load Out area (T712–713). 3. Mr Conroy gave evidence that, during the period of July 2014 to July 2016, his office was located at the Southern Meats site's first-aid building, which was adjacent to the Work Health and Safety offices, and that he maintained an open-door policy (T709 L46–50). 4. Mr Conroy stated that he did not recall having any conversations or discussions with Mr Slater about unlicensed persons driving forklifts in the Load Out area (T711). 5. Mr Conroy's evidence was given in a very forthright manner and I accept him as a witness of truth. Brook Evans 1. Ms Evans stated that, as at July 2016, she held the position of work health and safety ('WHS') supervisor at Southern Meats, held this role since approximately January 2011, and then became the return-to-work coordinator after July 2016. She commenced working at Southern Meats as a labourer in July 2010 and left the defendant's employ in May 2021, and that she was employed as the WHS supervisor at the time of the incident (T718–719). 2. Ms Evans confirmed that she conducted weekly safety inspections, where she would visit each area of the plant, including the Load Out area. Ms Evans agreed that, as part of this role, she would complete weekly inspection forms in relation to the weekly inspections (T719–720). 3. Ms Evans stated that in the period between 2014 and 2016, she would visit the Load Out area approximately once or twice a week, and that the manner of her inspections would vary. In cross-examination, Ms Evans agreed that she did not have the SafeWork procedures with her during the weekly inspections, but confirmed that while she was walking around, she would make observations about activities being performed in the area with the issue of safety in her mind and in relation to SafeWork practices (T728–733). 4. Ms Evans confirmed that she made handwritten entries on the weekly inspection forms, including a date indicating when she completed the forms, and agreed that these consultations gave people an opportunity to raise any issues that they considered to be a concern in their respective area with her. Ms Evans confirmed that for each weekly inspection form that she completed, she undertook this same process of identifying who she spoke to during an inspection and in which area (T721–723). 5. Ms Evans gave evidence that she would identify and note any issues raised during an inspection on the front page of the weekly inspection form and continue writing on a separate attached page if there was not enough space (T724). 6. When asked specifically, Ms Evans agreed that during a weekly inspection dated 6 February 2015, she observed general compliance with safety procedures by Mr Hogan and in the Load Out area (exhibit GG). She confirmed that she consulted Mr Hogan on this occasion and that he could have raised any concerns regarding the Load Out area with her during the inspection, such as a lack of licensed forklift drivers. Ms Evans stated she would have noted this on the inspection form and informed the HR manager if such an issue was raised (T723–724). 7. Ms Evans gave evidence that, by 2014, she was aware of a rule prohibiting unlicensed persons from driving forklifts, having become aware of this rule when she commenced working as a labourer and was inducted into the company, and that this rule was maintained throughout her period of employment with Southern Meats (T719–7220). 8. Ms Evans confirmed that she knew which individuals working in the Load Out area had forklift driving licences and that she was aware of, and would be able to recognise, those persons who were licenced during the period from the beginning of 2014 through to July 2016. Ms Evans agreed that, during her visits to the Load Out area as the WHS supervisor, she identified unlicenced individuals driving forklifts but could not recall when that was. Ms Evans stated that when she observed persons driving forklifts without a licence, they would be removed from the forklift and escorted to the HR office, and that she would make a note of this fact on the weekly inspection forms (T720 L39–43). 9. When asked specifically, Ms Evans agreed that on two occasions she witnessed unlicensed individuals operating forklifts in the Load Out area (T721 L1–3, 14–17; T730 L11–14). She gave evidence that the weekly inspection forms noted that the unlicensed workers were issued letters for driving the forklift and rechecked, and that it recorded Mr Smith's nonconformance and the corrective action to be taken (exhibit FF). Ms Evans confirmed that the workers were removed from the forklifts and taken to the office for interviewing and to begin the disciplinary process on both occasions, and that this procedure occurred on the same day as the weekly inspections that she conducted. Ms Evans gave evidence that on no other occasion had she observed individuals that she did not recognise as having a licence, or unlicenced persons, driving a forklift in a Load Out area during the period from the beginning of 2014 through to July 2016. During cross-examination, Ms Evans stated that she did not recall the circumstances in which she identified the unlicensed persons on either occasion (T721–731). 10. Ms Evans also gave evidence that, as the WHS supervisor, she reviewed the SafeWork procedures on a regular basis of approximately every two years. She agreed that this was to determine whether the risks associated with specific tasks were properly identified in the SafeWork procedures. Ms Evans stated that this process involved her attending the area relevant to the SafeWork procedure being reviewed, including the Load Out area, and observing the tasks set out in the SafeWork procedures in consultation with those performing and supervising it. She agreed that she would seek input regarding what specific risks were involved in the performance of tasks through the consultations. Ms Evans confirmed that if she identified new or different risks, she would take steps to amend the procedure (T726). 11. Ms Evans confirmed that a review of SafeWork procedures could also be initiated when someone identified and raised problems regarding a SafeWork procedure. Ms Evans stated that she would also have cause to visit the Load Out area at supervisors' requests or to generally walk around the area from time to time. Ms Evans confirmed that if a task was not subject to a SafeWork procedure, then no other risk assessment or review process would be performed (T727–734). 12. Ms Evans also gave evidence that she was aware that supervisory persons in each area of the Southern Meats plant would complete a daily HAZOP sheet to demonstrate that they have examined the appropriateness of the processes and equipment in their area and to identify any problems. She agreed that this could include issues relating to maintenance, manning, or not having enough forklift drivers (T728–729). 13. Ms Evans confirmed that she was familiar with the daily HAZOP sheet from 2014 to 2016 because she received the sheets at the end of every day and actioned them accordingly. She stated that this involved consulting with Ms Graham about the best way to action requests and that Ms Graham would undertake actual implementation of the agreed action. Ms Evans confirmed that the agreed actions would vary depending on the complaint received, and that there were no restrictions on supervisors raising issues. Ms Evans stated that she did not recall whether a daily HAZOP form raised the issue that there were not enough licenced forklift drivers to perform work in the Load Out area (T729–730). 14. Ms Evans was a very impressive witness. She had worked for the defendant since 2010 when she started as a labourer, moved into the WHS role in January 2011, and then at the time she left Southern Meats in May 2021, she was a supervisor. I find that her expertise and experience working in various roles for the defendant equipped her with extensive knowledge of the operations of Southern Meats and the obligations imposed by the WHS Act. I have no hesitation in accepting her evidence. CONSIDERATION Consideration with regard to the risk 1. The prosecutor submits that the pleaded risk is the broad category, or general class, of risk associated with pedestrian and forklift interaction in the Load Out at the abattoir; namely that the risk of pedestrians being struck by a forklift whilst undertaking work, contemporaneously with forklift operations, in the Load Out. 2. The defendant does not agree with this characterisation of the risk as it asserts that there is no evidence of any other worker being exposed to the risk than Mr Doocey on 12 July 2018. 3. The defendant submits that the prosecutor has misstated the statutory test in respect of the duty to manage health and safety risks under clause 35 of the Work Health and Safety Regulation 2017 (NSW) ('WHS Regulation'). Clause 35 of the WHS Regulation provides: 'A duty holder, in managing risks to health and safety, must— (a) eliminate risks to health and safety so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable [emphasis added].' 1. The terms of clause 35 of the WHS Regulation are consistent with s 17 of the WHS Act: 'A duty imposed on a person to ensure health and safety requires the person— (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable [emphasis added].' 1. A significant issue was raised as to the construction of the word "not" in s 17(b) above. It was asserted by the defendant that the section cannot be construed to mean that if a PCBU could not eliminate, just skip to minimisation of the risk and that would be sufficient. 2. In Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28 and in SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No 2) [2020] NSWDC 668, their Honours Judge Kearns and Judge Russell respectively referred to the following passage from Bulga, where in a joint judgment, the Court said: '106 As is apparent, the appellant placed particular emphasis on the fact that the duty imposed by s 8 of the WHS Act was to ensure the health, safety and welfare of employees and that the obligation could not be satisfied by managing or minimising the risk. 107 There is no doubt that this is correct… 108 However, it by no means follows that a failure to take steps which would lessen or minimise the risk, without entirely eliminating it, could not constitute a breach of that obligation. Such steps may be necessary but not sufficient to ensure safety or may at least tend to manage the risk. It is difficult to see why the failure to take such steps, albeit insufficient to ensure safety, could not constitute a breach of s 8(1) of the WHS Act. 109 In our view, a failure to take steps which are necessary but insufficient to ensure safety, or which limit the risk to the employee without entirely eliminating it, can constitute a breach of s 8(1). Constructions of the section, as with any statutory provision, must begin with a consideration of the text itself. However, the meaning of the text may require consideration of the context, which includes the general purpose of a provision… 110 In the present case, the legislation is silent as to what can constitute a breach of s 8(1). Having regard to the objects of the WHS Act contained within section 3, it would be surprising if liability could be avoided by reason of the fact that it could only be established that a particular method would merely manage the risk rather than eliminate it… 117 Further we do not think that s 7A assists the appellant. As we pointed out above at [35], the effect of s 7A was to place the onus on the prosecutor to prove that a measure was reasonably practicable as distinct from making this factor a defence. This does not seem to us to be of assistance in determining whether a contravention occurred.' 1. That matter was decided under the Occupational Health and Safety Act 2000 NSW ('2000 Act'). I note that s 7A of the 2000 Act is different to the wording of s 17, but not to the extent that to my mind it makes any material difference. 2. The defendant asserts at paragraph 48 of the prosecutor's submissions – that the WHS Regulation requires a duty holder to 'eliminate or minimise them [risks] so far as reasonably practicable…', and that as the prosecutor has not established that it was not reasonably practicable to eliminate the risk, such that consideration of how the risk was to be minimised, so far as reasonably practicable, arises. The Load Out was required to be a shared zone in which forklifts and pedestrians interacted to undertake the various tasks. The defendant further submits that the prosecution has not called any evidence to suggest, let alone establish, that the work could have been practically performed in some different way so that the Load Out was not a shared zone. The Load Out workers gave evidence that anything other than a shared zone arrangement was not practical and forklifts and pedestrians were required to interact for the work to be performed. 3. I accept that the reasonable reading of s 17 is that a PCBU must eliminate risks to health and safety. That is the primary duty under s 19(a). However, if risks to health and safety cannot be eliminated, then the PCBU must minimise the risk. I accept that the correct reading of s 17 is that if a PCBU cannot eliminate a risk to the health and safety of workers, then there is a positive obligation on the PCBU to minimise it. I accept that if a risk can be eliminated, and the PCBU does not do so, that that would in and of itself constitute a breach of the WHS Act. Further, I accept the submission of Senior Counsel for the defendant that s 17 does not create an alternative. The breach is committed if having failed to eliminate the risk, the PCBU did not minimise the risk. The Prosecutor's Case 1. The prosecutor's written submissions contain the following: 1. On the day of the incident Mr Alan Doocey — a leading hand in the Load Out, Mr Heath Hogan — a leading hand in the Load Out, Mr Gregory Slater — both the Load Out health and safety representative and the union representative, and Mr Hayden Drysdale — a labourer employed in the Load Out — were all working, together with a number of other workers, on the unloading and re-loading, of a container which had been returned to the business earlier that day. 2. At the time of the incident, Mr Keith Smith, the Load Out Supervisor, had left the Load Out, in accordance with his usual practice, to attend at the defendant's office for the purpose of processing routine paperwork and to attend to other administrative tasks associated with the container that was being unloaded and re-loaded in the Load Out. See: Exhibit 12 SafeWork Record of Interview dated 22 November 2016 with Mr Keith Smith at Q/A 51–61. 1. The container had been backed up to the Loading Dock, the loading dock ramp was in place and Mr Hogan, Mr Slater, Mr Drysdale and several other unidentified workers were working inside the container together with a forklift operated by the defendant. 2. On the day, prior to the incident, a pallet of boxed product ['the pallet'] had been placed in an "area" within the Load Out which was known by various names, for example: 'the stamping and scanning area', 'the palleting (sic) and scanning area and the wrapping area' and 'the marshalling area' ['the marshalling area']. The marshalling area occupied a space in the Load Out bordered on one side by the right hand edge of the loading dock, the loading ramp and the path of travel on which the defendant's forklifts were to be operated when entering into and, also, reversing out of containers being loaded and unloaded, via the loading ramp, on one side, and the office on the other and a path of travel which leads to the charging bay or area. See: Exhibit 2 tab 23 at 0:00:00; and Exhibit 8 and the evidence of Graham T09/03/22 pp 661 – 679. 3. The prosecutor understands it is common ground that, as at the date of the subject incident, the borders of the loading dock and the loading ramp and the borders of the path or route of forklift travel, on which the defendant's forklifts were to be operated when entering into, or reversing out of containers, were not marked out with paint, or otherwise highlighted, on the floor of the Load Out to provide a visual cue to both forklift drivers and pedestrians. 4. In contrast to the absence of markings on the floor in relation to the loading dock, the loading ramp and the forklift route of travel referred to above, the prosecutor understands it is also common ground that, prior to and as at the date of the incident, it was the defendant's practice to paint markings on the floor of the Load Out at pedestrian entrances to the Load Out and, also, in the main corridor of the Load Out to provide a visual indication, or cue, to workers that the Load Out operated as a 'shared area' in which forklifts operated and pedestrians worked simultaneously: evidence of Groarke T07/03/22 p503 L15-50; and Graham T08/03/22 p583 L45-p584 L16. 5. In this regard, the defendant's pre-incident practices also included the painting of a "red line" on the floor of the main corridor of the Load Out marking the border between the area adjacent to the roller conveyor in which pedestrians palletised product and the main forklift path of travel or "road" used by forklifts when travelling in the main corridor: evidence of Groarke T07/03/22 p487 L14–p488 L30; and Graham T08/03/22 p588 L24–41 and p618 L22–46 (See also: Exhibit S — Photograph of the main corridor within the Load Out: and Exhibit 2 tab 40 Form 21.00 Traffic Management Plan Version No 15 last Revision July 14 at page 5 which provided relevantly as follows: 'Communication of Traffic Management Plans * A copy of the layout plan will be given to all employees at their induction. * Site layout plans should be displayed on noticeboards and in production areas. * …. * Clear signage and line markings are to be used to identify key areas of the plan. * …..' 1. The CCTV footage captured on the day shows the pallet in situ in the marshalling area prior to the incident: Exhibit 2 tab 23 commencing at 0:00:00. 2. The CCTV footage also shows the incident. 3. The pallet of boxed product involved in the incident was located in the marshalling area in close proximity to the border between the marshalling area and the adjacent area comprising the loading dock, the loading ramp and the path of travel on which the defendant's forklifts were to be operated when entering into and, also, reversing out of containers being loaded and unloaded, via the loading ramp at the Load Out loading dock. 4. During the period immediately preceding the incident, Mr Drysdale mounted the forklift, sat down in the driver's seat and turned on the motor of the forklift: exhibit 2 tab 23 commencing at approximately 0:00:54. 5. The prosecutor notes that, in the CCTV footage, the lights of the forklift can be seen to turn on. The prosecutor understands it is common ground that the lights on the forklift in the container turned on when Mr Drysdale turned on the motor of the forklift: exhibit 2 tab 23 commencing at approximately 0:00:56. 6. Contrary to both s 43(1) of the WHS Act and the defendant's systems of work, including a specific written direction of which Mr Drysdale was aware, Mr Drysdale was not licensed to operate forklifts. 7. Contrary to both s 43(2) of the WHS Act and the defendant's systems of work the defendant's leading hand, Mr Hogan, who was in the container with Mr Drysdale when Mr Drysdale mounted the forklift, either directed or allowed Mr Drysdale to operate the forklift whilst unlicensed, knowing that Mr Drysdale was unlicensed. 8. In the period immediately preceding the incident Mr Doocey obtained a roll of plastic film, also called pallet wrap, which was routinely used by workers in the Load Out to wrap pallets of boxed product. 9. Mr Doocey carried the roll of pallet wrap to the pallet and commenced wrapping the pallet with the plastic pallet wrap: exhibit 2 tab 23 at approximately 0:00:55 when Mr Doocey, wearing a blue hat, can be seen at the right-hand side of the image. 10. The pallet, which Mr Doocey was wrapping, was not in a location within the marshalling area that both accorded with routine practice in the Load Out and was safe for the subject task: exhibit 13 SafeWork Record of Interview with Mr Smith Q/a 91; Stewart T05/05/21 p190 L26–p191 L15; and Graham T09/03/21 p674 L30–p679 L4. 11. The location was not safe for the task of wrapping a pallet because the pallet was not located a safe working distance from the border between the marshalling area and the adjacent "area" comprised by the loading dock, the loading ramp and the 'path of travel' [the 'forklift transit route' or 'roadway'] to be followed by forklifts when entering into and reversing out of containers that were being loaded from, or unloaded into, the Load Out, via the loading ramp and the loading dock (i.e. it was too close to the loading dock and the intended path of forklift travel): exhibit 13 Ibid Smith; Stewart; and Graham. 12. Mr Doocey commenced working on the pallet at a point that was located both low down on the pallet and, also, located on the far side of the pallet facing away from the loading dock and the container: exhibit 2 tab 23 commencing at approximately 0:01:02. 13. At or about the same time as Mr Doocey commenced working on the pallet, Mr Drysdale commenced reversing the forklift, loaded with a pallet of boxed product, out of the container: exhibit 2 tab 23 commencing at approximately 0:01:02. 14. As the rear of the forklift emerged from the container onto the loading ramp, Mr Doocey commenced walking backwards, in a clockwise direction, along the side of the pallet towards the border of the marshalling area with the loading dock, the loading ramp and the path of travel or transit route to be followed by forklifts entering into and reversing out of containers being loaded from, and unloaded into, the Load Out via the loading dock and the loading ramp: exhibit 2 tab 23 commencing at approximately 0:01:09. 15. At or about the same time, Mr Reynolds began to drive a forklift through the doorway from the Freezer Store: Ibid. 16. In accordance with the defendant's safe work system, whilst in the Freezer Store, prior to driving the forklift through the doorway from the Freezer Store into the "area" containing the loading dock, the driver of the forklift was to sound the forklift's horn: T07/05/21 Hogan p324 L14ff. 17. The purpose for sounding the forklift's horn was to warn pedestrians on the outside of the Freezer Store that the forklift driver was about to drive the forklift, through the doorway, out of the Freezer Store: Ibid. 18. As a doorway used by forklifts, which were moving into and out of the Freezer Store, there were markings to indicate that pedestrians were to stand clear of the doorway: Reynolds T06/05/21 p296 L46ff. 19. Mr Reynolds drove out of the Freezer Store through the doorway and Mr Reynolds sounded his horn: exhibit 2 tab 23 commencing at approximately 0:01:09 and Reynolds T06/05/21 p298 L1ff. 20. Mr Reynolds observed that Mr Doocey was working in the area outside the Freezer Store: T06/05/21 p297 L19–L37. 21. Mr Reynolds turned and drove his forklift past Mr Doocey without making eye contact with Mr Doocey in order to ensure that Mr Doocey had noted and acknowledged the presence of the forklift before Mr Reynolds proceeded to drive past Mr Doocey: T06/05/21 Reynolds p296 L10–p298 L14. 22. Whilst Mr Reynolds was driving out of the Freezer Store, Mr Drysdale continued to reverse the forklift out of the container and down the loading ramp onto the floor of the Load Out. 23. As Mr Drysdale reversed the forklift out of the container and down the loading ramp onto the floor of the Load Out, he did not look in the direction of travel and the rear of the forklift can be seen to deviate slightly to the right in the direction of the pallet. 24. As Mr Drysdale was reversing the forklift out of the container, down the ramp and onto the floor of the Load Out, Mr Doocey commenced moving backwards in a clockwise direction around the pallet and then, without looking, Mr Doocey stepped out backwards from behind the pallet into the path of the forklift. 25. It is the prosecutor's case that, prior to and as at the date of the subject incident, neither pedestrians nor forklifts drivers working/operating in 'shared areas' or 'shared zones' were required under the defendant's system of work to make eye contact with each other. 26. In contrast, it is the prosecutor's case that, consistent with the agreement struck with Inspect Crosbie, post incident the defendant modified its procedures to require forklift operators to make eye contact with pedestrians. The Defendant's Case 1. The defendant asserts that the prosecutor's case turns upon the Court finding that there was an established work practice of unlicenced workers driving forklifts in the Load Out in the lead up to the incident on 16 July 2016, and that the Court would not be satisfied that such a practice existed. 2. The defendant submits that the Court would not be satisfied that the control measures ('the measures') pleaded in paragraph 9 of the Amended Summons would have eliminated the risk as set out in paragraph 7 of the Amended Summons. They assert that the prosecution has not made it clear whether they say it is not possible to eliminate the risk, as required by s 17 of the WHS Act so as to enliven consideration of the minimisation of the risk, so far as is reasonably practicable. 3. Further the defendant submits that whilst it is permissible to consider whether the measures have been proven to minimise the risks so far as is reasonably practicable, the Court would not find on the evidence that the measures minimised the risk beyond that which was achieved as a result of the controls that the defendant had in place prior to the incident. The controls were assessed by SafeWork NSW on 1 June 2016, six weeks prior to the incident, and determined to be suitable to manage the risk associated with the use of the forklifts at the abattoir. 4. The defendant accepts that prior to, and at the time of the incident, the Risk was known to the defendant. The defendant submits that key steps taken by the defendant to manage the risk are as summarised below: 1. The defendant developed and implemented a traffic management system, which included Form 21.00 Traffic Management Plan ('TMP') and a Safety Guideline 21: Traffic Management. The TMP was developed in consultation with workers and identified the Load Out as being a combination of a 'shared zone' and 'pedestrian only' zones. The TMP recorded controls measures as 'Forklifts to be fitted with flashing lights, horns and reversing alarms, all personnel wear high visibility clothing, good signage.' In respect of areas within the plant identified as shared zones, the TMP stated the following rules applied: 'All personnel trained in working around forklifts (SWP Induction to Load Out / By-products / Maintenance / Skin Shed / Outside Activities); Only licensed personnel to operate forklifts; All mobile plant to adhere to impact their speed limits; All mobile plant to give way to pedestrians…'; 2. As part of the defendant's general induction into its workplace: 1. Workers were taken though the TMP; 2. Workers were required to sign Personal Safety Agreements ('PSAs') setting out their obligations to follow safety instructions, and safety procedures for each task, report hazards, not interfere or misuse equipment and carry out work in a manner that did not negatively impact on their own safety and the safety of others; 3. Workers were provided with the Employee Handbook which explained that disregarding safety rules would result in disciplinary action being taken. 'Misconduct' was clearly defined in the Handbook as including not adhering to safety polices. Workers were required to sign declarations acknowledging receipt of the Handbook, that behaviour in conflict with the defendant's policies could result in termination of employment and that they had been shown around the workplace and made aware of potential risk areas (exhibit 2 Tab 34); 1. Workers in the Load Out were required to go through a specific induction which covered the relevant Safe Work Procedures ('SWPs'). The SWPs included the requirement for forklift drivers to be licensed and awareness training. The SWP for Forklift Driving included various requirements such as 'only licensed operators permitted to drive forklifts', 'use horn to warn pedestrians', 'ensure you have good vision at all times' (exhibit 2, tab 13); 2. The defendant made it a mandatory requirement that all forklift drivers be licensed. The requirement was explained to workers on induction to the Load Out and was repeated in the SWPs. Records of licenses were kept on personnel files within the HR/First Aid building. A breach of the requirement was a disciplinary matter (exhibits W and AA); 3. The defendant required workers to wear high visibility clothing in shared zones, including the Load Out; 4. The defendant placed signage in and around the Load Out to alert pedestrians and forklift drivers to traffic hazards, including signs at entry points from pedestrian only areas to shared zones and line markings to separate pedestrians from forklifts. The forklift charging bay contained a sign stating 'ONLY LICENSED PERSONNEL TO DRIVE THE FORKLIFT. NO PASSENGERS ALLOWED.' Road markings were placed on the floor and were refreshed by the defendant's maintenance team approximately every eight to 12 weeks (exhibits B,R,S,T and T497 L10); 5. Forklifts were fitted with audio and visual warning devices, including alarms, horn, flashing lights and reversing beepers; 6. Awareness training was provided to both forklift operators and pedestrians, which focussed on the rules for forklift/pedestrian interaction in the shared zone. All workers gave evidence which was consistent with these rules about the interaction between pedestrians and forklift interaction, except for Mr Doocey who asserted that there had been no awareness training. His evidence was internally inconsistent on this point, and inconsistent with all the other works and I reject his evidence. The purpose of the training was to ensure pedestrians positioned themselves so that they were visible to forklift operators working in shared areas and remained clear of the path of travel. The training incorporated: 1. The requirement for pedestrians to be aware that they were working in a shared zone where forklifts may be operating; 2. The requirements for forklift operators to be aware they were working in a shared zone where pedestrians may be working; 3. The need for forklift operators and pedestrians to make eye contact with pedestrians in the shared zone. If eye contact could not be achieved, the operator was to stop and toot the horn and not proceed until the pedestrian's attention had been gained; 4. The need for pedestrians to make eye contact with forklift operators and that the forklift operators would use the horn to gain their attention; 5. The need for forklift operators to use the horn at blind spots, such as corners and the entrance to freezers; and 6. For pedestrians to maintain a safe distance from forklifts when performing work activities, such scanning, stamping and wrapping pallets; 1. The defendant appointed a supervisor to the Load Out who was responsible for controlling the activity in the area and monitoring the work to ensure health and safety procedures were being adhered to (see Employee Handbook exhibit 2); 2. The defendant required its supervisor to complete Daily Hazop Review Forms, which required WHS hazards to be identified and to record corrective action. Any issues that arose in respect of the TMP were to be documented on the Daily Hazop Forms. The Daily Hazop Forms included a conformance check in relation to forklifts. Issues raised were considered and actioned by the defendant's WHS Manager (exhibits E and T and Safety Guidelines); 3. The defendant's management personnel undertook regular, unannounced, and random inspections of the Load Out; 4. The defendant's WHS Supervisor, Brooke Evans carried out Weekly Inspections of plant, including the Load Out. The inspections were undertaken unannounced, randomly at different times each week. During the inspections, Ms Evans undertook visual inspections of work practices against the SWPs and would consult with the workers and supervisors about safety issues (see Evans evidence T721, T723–724); and 5. When non-conformances with the safety systems were identified, the defendant took steps to correct it, in line with its disciplinary procedure (see Weekly Inspection Forms — Exhibit FF also Exhibits W and AA). When Ms Evans identified an unlicensed person driving a forklift she said "[T]hey were taken off the forklift and escorted up to the HR office." Mr Evans' practice was to made a record of the non-conformance on the Weekly Inspection Form. 1. The defendant asserts that it is abundantly clear that the defendant did not simply rely upon the fact that its forklifts operators held valid licences, or for forklift operators and workers to determine the rules for interaction themselves. Further, it is submitted that the prosecutor's criticism of the defendant's pre-incident systems at paragraphs [102]–[103] and [116] of its submissions is unfair, does not reflect the system that was in place, and is and made with the benefit of hindsight and in light of knowledge of the incident. The Elements of the Offence ELEMENT 1 – Whether the defendant was conducting a business or undertaking 1. It was not a contest that the defendant was a PCBU which owed a health and safety duty under s 19(1) of the WHS Act to workers such as Mr Doocey. ELEMENT 2 – Whether the defendant owed to the workers engaged by the defendant in its business of undertaking, a duty under s 19(1) of the WHS Act while the workers were at work in the business or undertaking. 1. It is an agreed fact that Mr Doocey was employed as a leading hand in the Load Out area of the defendant having commenced that employment with the defendant in November 2014. His main duties were scanning products for invoicing purposes, stamping products and supervisory work. ELEMENT 3 – Did the defendant fail to comply with that duty 1. The issue of breach of duty under the WHS Act is to be addressed prospectively having regard to the circumstances as they existed at the time of the person upon whom the duty was imposed, was performing its works. The scope of the duty must be formulated prospectively, not by engaging in a hindsight analysis of whether the risk could have been reduced or eliminated (see Slivak). 2. I accept that the analysis of whether the defendant complied with the duty is to be determined by looking at the facts of the case as practicable people would look at them, not with the benefit of hindsight: Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 (Harper J at 123–12). Further, I accept here that the mere occurrence of an accident resulting in injury to a worker is not sufficient in itself, to prove the commission of an offence under s 32. 3. The test is objective and all relevant circumstances must be taken into account, including the matters in s 18 of the WHS Act. 4. It is necessary for the prosecutor to establish a causal connection between the failure/conduct of the duty holder and the worker being exposed to the risk at the time the work was being performed. In Grasso the New South Wales Court of Criminal Appeal held that the question of causation was a 'backward-looking attribution of responsibility for breach' in a criminal context and was not a 'theoretical exercise' (see paragraphs [226] and [233]). 5. The Amended Summons particularised the alleged failures at [9] as follows: 'The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Alan Doocey, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to its workers: a. Ensure that workers whose duties included operating forklifts at the abattoir were licenced to operate forklifts; and/or b. Enforce its Safe Work procedures in relation to forklift operation in the load out area, which prohibit unlicenced workers from operating forklifts at the workplace, by implementing one or more of the following measures: (i) The provision of adequate onsite supervision to ensure, as far as was reasonably practicable, unauthorised workers did not access or operate forklifts; and/or (ii) Penalising unlicenced forklift operators and/or their supervisors when breaches occur in accordance with its own performance management and disciplinary policy; and/or (iii) The provision of instruction and training to workers in relation to these measures.' 1. The prosecutor's case with regard to particulars 9(a) and (b) is as follows: * that there was a practice in place in the Load Out pursuant to which unlicenced personnel operated forklifts, including Mr Jones and Mr Drysdale; * all of the supervisory staff working in the Load Out (Mr Smith, Mr Hogan and Mr Doocey) knew of and participated in the practice; * the practice was observed by workers in the Load Out; * Mr Doocey instructed unlicenced persons to drive the forklifts and "turned a blind eye" to the practice of unlicenced personnel driving the forklifts; * this was a complete failure of the defendant's supervisory systems; * the failure was perpetuated by Mr Smith, Mr Hogan and Mr Doocey to properly supervise the workers in the Load Out, in particular Mr Jones and Mr Drysdale; * young and inexperienced unlicenced workers, nor in fact should any worker have been put in the position to decline to follow instructions issued to them by a supervisor — importantly that instructions should never have been issued, let alone on multiple occasions; and * had the defendant provided adequate training regarding reporting and disciplinary systems in the Load Out, then repeated issuing of such instructions to unlicenced personnel would have been reported to the defendant, and the defendant could then investigate the issue. 1. With regard to particular 9(a) the defendant submits that the particular does not identify what steps the defendant ought to have taken to "ensure" that only licenced forklift drivers were operating them, and that I ought be satisfied that the defendant's system required workers whose duties included operating forklifts to be licenced, for the following reasons: * The unlicenced driver rule was longstanding and known to all workers and supervisors in the Load Out. The SWPs recorded the rule and a large sign was displayed in the Load Out charging bay stating the requirement; * The workers in the Load Out area all gave evidence of their knowledge of which persons held licences and which persons did not, and that there was always an adequate number of licenced forklift drivers in the Load Out area to do the work required; * The defendant took appropriate steps to enforce its rule by disciplining workers, when instances of unlicenced drivers was brought to its attention; and * On 1 June 2016, Inspector Crosbie certified that the defendant had appropriate systems in place to manage their drivers High Risk Work (HRW) licence currency and validity. After the inspection there were no deficiencies noted by Inspector Crosbie, and the only action agreed was to increase the frequency of future licence checks to ensure renewal was attained before expiry. 1. With regard to particular 9(b), the defendant submits that unless I make a finding that there was in place a practice of allowing unlicenced workers to operate forklifts in the lead up to the accident, there is no evidence that the defendant failed to enforce its SWPs in the manners alleged. 2. The defendant further submits that with regard to particular 9(b)(i) there is no evidence to the level of supervision required, and why the supervision of the defendant was inadequate. Further, the defendant's supervisors in the Load Out had been trained in the SWP for Forklift Operation and were aware of their responsibilities as supervisors. In 2014 Mr Smith had counselled workers for operating forklifts unlicenced and on 9 June 2016, he was reminded of his obligations to follow the defendant's safety procedures by being sanctioned for failing to induct workers into SWPs. Mr Doocey and Mr Hogan were well aware of the rule relating to unlicenced operators and that breaches of the defendant's safety policies could result in disciplinary action. Other workers had been inducted into the defendant's systems of work and signed PSAs. Neither Mr Hogan nor Mr Doocey had come to the attention of management as a consequence of breaching policies or procedures. 3. The defendant also asserts that there was more than adequate onsite supervision through its management personnel who frequently attended the Load Out on a random and unannounced basis, including for the specific purpose of monitoring compliance with the SWPs. Additionally, the defendant provided opportunity for supervisors to raise any issue through the daily Hazops and the weekly inspections carried out by Ms Evans. The defendant penalised unlicenced forklift drivers when breaches had come to its attention. 4. The evidence of the following witnesses, as extracted, supports the contention that the defendant did not have in place a system that permitted unlicenced drivers operating the forklifts: 1. Claire Graham (WHS Manager) (T686-687) 'Q. Are you able to give an average of the amount of times that you would visit on a weekly basis the plant, including the load out area? A. Probably at least three times a week for the plant. The loadout could be more sporadic. It might be three times in one week and not the following week. On average, I would say once a week. Q. But as you pointed out, that might be sporadic. It didn't mean you were there every week, but if you average it out over that period, it's approximately once a week. A. Yeah, that's right. Q. Again in that period - beginning of 2014 through to 12 July 2016 - were you aware of which employees working in the loadout area had a licence to drive a forklift? A. Yes. Q. How were you aware of that? A. I had copies of the forklift licences that were kept in the training records. And I know employees by sight. Q. And is that part of or would a licence of that kind - that is a forklift licence - be a licence that you would check as part of the process of inducting a new starter into the Southern Meats plant? A. If it's they - if they had a licence when they started as an employee, do you mean? Q. Yes. A. Yes. … Q. At any time when you visited the loadout area, in the period 2014 to July 2016, did you observe any person that you didn't recognise as having a forklift licence driving a forklift? A. No. Q. Did, at any time, you see a person, who you weren't sure whether they had a forklift licence? A. No. Q. So, does it follow that each time you visited, the only persons you saw driving forklifts were persons you knew to have a licence? A. Yes.' 1. Kenny Conroy (HR Manager) (T713) 'Q. And throughout your time as HR manager, it was a rule, wasn't it, that only licenced people could drive a forklift trucks anywhere on the plant? A. Correct. Yes. Q. That included the loadout area? A. Yes. Q. You've been there for quite a while. Were you able to recognise people within the loadout out area who'd been there for some period of time by their face and putting a name to it? A. Yes. Q. And were you aware of - in that period 2014 to 2016 - of those people working in the loadout area, who had a licence to drive a forklift? A. Yes. Q. Was there any time when you visited the loadout area - again in that period 2014 to 2016 - that you saw a person who you didn't recognise as having a forklift licence driving a forklift truck? A. No.' 1. Danny Groarke (Operations Manager) (T538-539) 'Q. Did you have cause, at any time before the incident - between about July 2014 and the date of this incident - to give instructions to unlicensed workers to get off a forklift? A. Yes. Q. Who were they? A. I recall a one Riley Shield. Q. Do you ever recall encountering Mr Jones, Mr Drysdale? A. No. Q. What about Mr Doocey? A. No. Q. Mr Sakiarci? A. No.' (T541) 'Q. Did you visit the loadout area during the normal working day at any time? A. Yes. Q. How often would you visit, on average, the loadout area on a daily, weekly monthly basis? A. Roughly six times a day.' (T548) 'Q. Is there any time that you did see a person who you didn't know driving a forklift in the loadout area? A. Yes. Q. Who was that? A. Riley Shield. Q. Do you remember when that was? A. A long time ago. I can't give you an exact date. Q. If I suggested early 2014, would that - if it doesn't equate with your memory, you tell us. A. That'd be about right, but I'm not a hundred percent sure. Q. When you saw Riley Shield, why were you in the loadout area on that occasion? A. Just walking through seeing if they were all right. Make sure everything was going smooth. Q. You saw this Riley Shield on the forklift. A. Yes. Q. Did you know Riley Shield at that time? A. Yes. Q. Did you know whether he had a forklift license or not? A. I knew he didn't.' (T549) 'Q. What's the first thing you did? A. I told him off. Give him a verbal. Discipline, like verbally. Then called HR, tell them I'm bringing him up. Let his supervisor know. Take him to HR. Discipline him. Q. Mr Shield was asked to get off the forklift. A. Yes. Q. You told him he was going to go through a disciplinary process. A. Yes. Q. And he was immediately taken up to HR-- A. Yes. Q. --for the purpose of carrying out that process? A. That's right. Q. Was there anybody else, other than Mr Shields, that you saw driving a forklift who you didn't recognise? A. No.' 1. Brooke Evans (WHS Supervisor) (T720) 'Q. Was there any time that you were in the loadout area where, as the WHS supervisor, you identified any person driving a forklift who was not licenced to do so? A. Yes. Q. Do you recall now when that was? A. No. Q. What did you do in relation to that observation or observations that a person or persons were driving forklifts without a licence? A. They were taken off the forklift and escorted up to the HR office for the-- Q. Did you make a note anywhere of that fact? A. Yes. Q. Whereabouts did you make that note? A. On the weekly inspection.' (T722) 'Q. Now, is that one of the occasions that you recall where you took the persons off the forklift and took them up to be interviewed and go through the disciplinary process? A. Yes. Q. Going over to the second page, you see again, loadout area, Keith Smith, N for nonconformance, and, "workers issued letters driving forklift unlicenced, RCOK"? A. Yes. Q. Again, those persons were stopped from driving and taken to the office for disciplinary proceedings? A. Yes Q. That process - that is, the process of taking them to the office and having them go through the disciplinary process - was that done on the same day as the date on this weekly inspection? A. Yes. Q. On both occasions? A. Yep. Q. Turning your mind, then, to that full period that I've asked you to think about, beginning of 2014 through to July 2016, was there any occasion other than these two where you observed a person who was not licenced driving a forklift in the loadout area? A. No.' 1. I make the following findings of fact with regard to particulars 9(a) and (b): 1. The uncontested evidence is that all of the workers had received instructions and training in SWPs, traffic management in the Load Out, and in particular, that only licenced persons were permitted to drive forklifts; 2. The workers knew that a breach of safety policy, including driving a forklift unlicenced, would result in disciplinary action; 3. On 1 June 2016 Inspector Crosbie assessed the defendant as having adequate systems in place to encourage safety behaviours, which took into account consideration dealing with unsafe behaviour and consulting with workers about forklift safety; 4. Inspector Crosbie's assessment was a recognition that the defendant was complying with its duty to enforce its SWPs; and 5. There did not exist a practice whereby unlicenced workers were permitted to drive and/or operate forklifts in the Load Out at the defendants premises at the time of the incident. 1. The particulars in [9] continue as follows: 'c. Provide and enforce a safe system of work for the use of forklifts at the workplace, which included a direction that forklift operators travelling in reverse must look in the direction of travel, particularly where pedestrians or other workers were, or could be present; and/or d. Develop, implement and enforce a traffic management control system such as a site-specific traffic management plan, for the load out area which would identify hazards and control measures to address those hazards in relation to the loading/unloading of trucks by forklifts including: i. A pedestrian management system with exclusion zones or walkways in areas where forklift trucks were operating to load/unload trucks to prevent workers and pedestrians being struck by mobile plant; and/or ii. Separate, clearly marked footpaths or walkways using lines painted on the ground or different coloured surfacing; and/or iii. A purpose-designed and designated area for the wrapping of pallets that separated workers and pedestrians from powered mobile plant while they were performing their duties; and/or iv. The establishment of a restricted area for the operation of mobile plant in the load out area which pedestrians were not permitted to enter unless authorised to do so; and/or v. Reduce speed limits; and/or vi. Documented procedures setting out when and hoe mobile plant operators must give way to pedestrians such as an instruction that the forklift operator is to ensure that they have sight of all workers in the area, including the need for workers to position themselves to be visible by the forklift operator and/or making eye contact with each other and remaining clear of the travel path; and/or e. Undertake a risk assessment of the reasonably foreseeable risks and hazards associated with the task of unloading, sorting, repacking and reloading trucks in the load out area that could give rise to the health and safety of works and implement the most effective risk control measures to address the risk, including but not limited to the measures set out at paragraphs 9(a) to 9(d); and/or f. Ensure, as far as is reasonably practicable, that a safe work procedure for the unloading and reloading of trucks was in place prior to unloading the truck which included: i. Providing clear instructions to workers not to stand and/or perform duties in the immediate area identified as the loading dock and adjacent marshalling area while a forklift was in operation, unless specifically authorised to do so; and/or ii. Where necessary, a competent person with the required training and/or qualifications to direct powered mobile plant, in particular forklifts, when the mobile plant is operating near workers.' 1. The prosecution case with regard to particulars 9(c), (d), (e) and (f) is that the defendant's breach of duty arises out of a series of failures in relation to forklift safety that were longstanding. After the inspection by Inspector Crosbie on 1 June 2016, the matters that he identified were matters that were capable of being discovered by the defendant had it performed a proper review of its forklift safety systems and proper inspections of the site. 2. The prosecution submits with regard to the particular and also with regard to particulars 9(d), 9(e) and 9(f) that this was reasonably practicable for the defendant to have provided a formal, documented set of procedures which defined the particular hazard and provided formal documented controls in relation to the hazard. 3. With regard to particulars 9(c), (d), (e) and (f) the prosecutor's case is that it was reasonably practicable for the defendant to have provided a formal, documented set of procedures which defined the particular hazard and provided formal, documented controls in relation to the hazard, including: * a detailed traffic management plan for the Load Out area, of a kind referred to in particular 9(d) which addressed the possibility of conflict between pedestrians, including the foreseeable risk of pedestrians not directly involved in the loading and/or unloading of trucks being struck by a forklift when moving into and reversing out of trucks — including reduced speed limits; (exhibit 14); * amended written safe work procedures in relation to the operation of forklifts of the kind referred to in particular 9(d)vi; which adopted as mandatory requirements any one or more of the following steps or measures: 1. an instruction that, when operating in reverse, forklift operators must look in the direction of travel; 2. an instruction that the operator must have sight of all workers in the area in which the forklift is operating 3. an instruction that workers must position themselves so as to be visible to forklift operators; 4. an instruction that forklift operators and pedestrians must make eye contact with each other; and 5. pedestrians must remain clear of a forklift's path of travel (exhibit 20). * a written safe work procedure for the loading and unloading of trucks of the kind referred to in 9(f), which procedure included as a specific control measure written instruction as to one or more of the following steps or measures: 1. (i) clear instructions not to stand and/or perform duties in the immediate area identified and the Marshalling Area [the stamping and scanning area] unless specifically authorised to do so; and/or 2. (ii) a competent person with the required training and/or qualifications to direct powered mobile plant when the mobile plant is operating near workers. * a written safe work procedure for the wrapping of pallets that make provision, amongst other matters, for that task to be performed in areas clearly defined and identified for that purpose by the defendant (i.e. particular 9(d)) (see exhibit 5 and 15). 1. The prosecutor asserts that as part of the process of developing a task specific SWP of the kind referred to in particular 9(f), it was reasonably practicable for the defendant to have undertaken a risk assessment in relation to the task of loading, sorting, repacking and reloading trucks in the Load Out as particularised at 9(e). 2. The prosecutor submits that before the incident the defendant acknowledged the importance of risk assessments, developing written procedures, drafting a written traffic management plan, and written task specific SWP as part of its written WHS management system. 3. Further, it is asserted that prior to the incident the defendant acknowledged the importance of identifying and marking operational areas involving forklift movements and pedestrian areas to restrict conflict between pedestrians and forklifts. It is also noted that prior to the incident, there was in place an undocumented practice of placing painted line markings and stencilled warning signs on the floor of the Load Out area to provide visual cues regarding the operation of the forklifts in the area. 4. It is part of the prosecutor's case that prior to the incident the defendant had an undocumented work practice for wrapping the pallets in the stamping and scanning area which it is asserted, was too close to the front of the area where the forklifts were moving and reversing. As such there were changes that the defendant was capable of introducing with little cost or inconvenience, and if the defendant had provided written mandatory written directions to the forklift drivers and pedestrians as part of their instruction and training and required in writing from the workers the way in which the subject tasks were to be performed. 5. The defendant's submissions with regard to particular 9(c) is that this allegation is not supported by the evidence, and it could not be suggested that the defendant should have made it a requirement that unlicenced persons be permitted to drive a forklift, and that the defendant told them (the unlicenced drivers) to look in the direction of travel. It is submitted that this is contrary to the evidence which was that all licenced forklift drivers knew to look in the direction of travel when reversing, particularly in shared zones where pedestrians could be present. 6. The defendant's submission is that the prosecutor has not called any evidence upon which it could be held that the measures set out in particular 9(d)(i) to (vi) are reasonably practicable in the Load Out, and as such the prosecution has failed to make out this particular and should be dismissed. Further, that this alleged failure does not have regard to the fact that the Load Out was required for the practical carrying out of the work, a shared zone where forklifts and pedestrians worked together. It fails to have regard to the significant steps the defendant took to address the risk, which included awareness training, including awareness training. 7. I find that the evidence establishes that everybody knew, when working in the Load Out area including all of the forklift drivers, that they had to make eye contact and all of the pedestrians knew that they had to make eye contact. This was a system that was actually in operation and it involved training the pedestrians and the forklift drivers having knowledge of that requirement. I cannot see how, as the prosecution asserts, that if they had been given this requirement in writing it would have made any difference at all. There is no evidence how it could have made a difference at all, or that it would have made a greater impact. 8. Moreover, the evidence before me demonstrates that there was in place a written and often-repeated instruction that no unlicenced drivers were to drive the forklifts — and yet, that had little impact on this particular day, in this particular circumstance. 9. I find that in regard to particular 9(d) that there is no evidence upon which it could be held that the measures set out in particular 9(d)(i) to (vi) are reasonably practicable in the Load Out, and given this lack of evidence, this particular should be dismissed. 10. Further, the defendant submits that this alleged failure does not have regard to the fact that the Load Out was and required to be for the practical carrying out of the work, a shared zone where forklifts and pedestrians worked together, and does not take into account the steps that the defendant took to address the risk, including awareness training. 11. The defendant submits that there is no evidence that the TMP (exhibit 14), would have reduced the risk further than the TMP which was in place prior to the incident, which encompassed not only a documented plan, but the provision of information through induction processes and awareness training specific to the Load Out. 12. Consideration of the defendant's pre-incident traffic management systems and what the defendant knew prior to the incident are important, based on reasonable foresight. Inspector Crosbie visited the premises for the purpose of reviewing the defendant's procedures and providing advice on separating people from moving forklifts six weeks prior to the incident. In his inspection report, the Inspector assessed the defendant as having adequate control systems in place to separate forklifts from pedestrians. 13. It is important to note that the marshalling area, in which the incident occurred, remained a shared zone in which the shared zone rules applied. The rules governing the area were the same as the rules in place prior to the incident: training in working around forklifts (awareness training), the requirement for forklift drivers to be licensed, to adhere to speed limits and to give way to pedestrians) (exhibit 14, page 2 - 3). The Improvement Notices issued by the Inspectors did not require that the rules for operating in a shared zone required alteration or even review. The measures alleged in paragraph 9(d) would not have minimised the identified risk beyond the systems of work that were in place prior to the incident. 14. The defendant makes further submissions as follows: * In relation to particular 9(d)(i), there is no evidence as to where exclusion zones or walkways were to be, or could be, placed in the Load Out, whether this was reasonably practicable, and how such zones would have 'prevented' workers and pedestrians from being struck by forklifts. There is no evidence that pedestrian routes, such as the ones described in exhibit 15 (page 11) could be implemented within the shared zone areas in the Load Out. * In relation to particular 9(d)(ii), there is no evidence of where footpaths or walkways could be placed to minimise the identified risk. * Particular 9(d)(iii) does not explain how a designated zone for wrapping could have been established or where it could have been established given the working requirements to move pallets frequently using a forklift, nor how it would have provided separation between workers and the forklifts in the circumstances where the area remained a shared zone. Forklifts were required to enter into any wrapping area, irrespective of location, for the purposes of lifting and moving the pallets both before and after wrapping. As with the previous procedure, the post-incident Wrapping Pallets SWP (exhibit 24) required workers to be aware of forklifts in the area and to keep eye contact with forklift drivers. * Prior to the incident the Load Out workers knew of the locations within the Load Out where wrapping was undertaken. Wrapping was undertaken in the corridor freezers 7A and 7D (one of the areas designated after the incident) or in the marshalling area. Both Mr Doocey and Mr Stewart said that wrapping was generally done in the corridor. * Workers performing the wrapping task were able to direct the placement of pallets for wrapping to a suitable area. As part of their awareness training, workers were trained to maintain a safe distance from forklifts when performing work activities, such scanning, stamping and wrapping pallets. 1. It is apparent to me that Mr Doocey and Mr Hogan were the personnel who 'dropped the ball'. This was demonstrated by the way in which they gave evidence and in particular when they were cross-examined as to the question of unlicenced drivers in the Load Out. I am satisfied that the change in their demeanour in the witness box was because they both knew that they had done the wrong thing. 2. Furthermore, Mr Doocey then gave further evidence to the effect that the defendant was fabricating things (T145-147). It was during this passage of his evidence that it became apparent that Mr Doocey needed to be made aware of his rights, and in particular with regards to self-incrimination (T148-153) and the opportunity to obtain legal advice was offered to him, which he accepted. At (T193-205) there was discussion about Mr Doocey's evidence, and, ultimately I granted him a certificate under s 128 of the Evidence Act. As it eventuated, Mr Doocey only objected to answering a handful of questions on the grounds that it may incriminate him. 3. I do not accept that the defendant simply relied upon the common sense of forklift operators and pedestrians regarding modes of communication and the judgment of its supervisors and/or workers to determine safe working distance to be maintained at or about the border between the route followed by forklifts when entering into and reversing out of containers and the adjacent marshalling area. 4. I accept that this matter is readily distinguishable from SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295 ('Tamex'). In Tamex, it was found that the defendant had not implemented its own procedures by training its staff in exclusion zone rules prior to the incident (at [98]–[110]). In this case there is uncontested evidence of the defendant's system and its implementation, which included the provision of training on the modes of communication between forklifts and pedestrians and to maintain a safe distance from forklifts when performing work activities as pedestrians in the Load Out. Neither the modes of communication or methods of separation were left to common sense and personal judgment of workers. 5. I find that there is no evidence in respect of particular 9(d)(iv). There is no evidence as to where a restricted area could be established for the operation of forklifts, how it could be established, or what type of authority was required to enter such area. 6. There is no evidence to support of particular 9(d)(v). There is no evidence that the speed at which the forklifts travelled in the Load Out was excessive or that a reduced speed limited would have minimised the identified risk. There is no evidence that the ground condition, working environment, traffic and employee access to the work area justified a lower speed limit. 7. Inspector Crosbie did not identify any breach relating to the speed travelled by forklifts indoors or in the Load Out – he simply raised the issue as a matter for investigation of the possibility of reducing the speed. 8. Particular 9(d)(vi) is entirely based on hindsight and the post-incident Forklift driving procedure (exhibit 19). This allegation fails to have regard to the defendant's pre-incident systems of work and the provision of awareness training. The evidence supports that prior to the incident forklift drivers were aware of the need to ensure they had sight of all workers in the area, and pedestrians knew of the need to be visible and to make eye contact. 9. I find that all of the licensed forklift drivers gave evidence of their knowledge of the need to make eye contact with pedestrians when working in the shared zone and to ensure they had sight of workers in the area. All workers were provided with awareness training relevant to working in the Load Out, which included the need to make eye contact with forklift drivers. 10. With regard to particulars 9(e) and (f), it is the Prosecutor's case that as part of the process of developing a task specific SWMS, it was reasonably practicable for the defendant to have undertaken a risk assessment in relation to the task of unloading, sorting, repacking and reloading trucks in the load out area , and in this context the defendant ought to have embarked upon the process of developing a detailed TMP which adequately addressed the subject risk. 11. I find that the process for unloading and reloading involved the same risks and controls, which were covered by the defendant's pre-incident systems of work. I accept that there is no evidence that a SWP specifically for the tasks of unloading and reloading would have minimised the risk further than the systems of work that were already in place. 12. The "clear instructions" in 9(f)(i) not to stand in the path of a reversing forklift was covered in the pre-incident awareness training and is frankly something most people should be aware of, despite it being part of the training. I can find no evidence of in what circumstances a person would be required to direct a forklift, or what training or qualifications would be required for this role. Therefore, it is not possible to determine whether such measure was reasonably practicable. 13. With regard to particular 9(g), the Prosecutor asserts that the defendant's breach of duty arises out of a series of failures in relation to forklift safety that were longstanding, and that following Inspector Crosbie's attendance on 1 June 2016, the defendant accepted that there were a number of defects in forklift safety systems which required amendment. This is denied by the defendant. 14. On the evidence before me, and in particular that of Ms Evans, I accept that the defendant's management personnel conducted adequate, random and regular inspections to verify that the SWPs were in place and enforced in the Load Out. 15. I accept that there is no evidence that a risk assessment beyond that which had resulted in the policy and procedures operating up to 12 July 2016 would have resulted in any new or modified systems of work. No evidence has been called by the prosecution to demonstrate that the assessments made were deficient in any particular respect or that a different result would have been achieved. Inspector Crosbie certified the defendant as having adequate systems in place and did not identify risks that were not appropriately managed. 16. I note the submission by the prosecutor that the inspector's visit is inconsistent with common sense, in that an appropriate inspection could have taken place in such a short period of time, and as such it could not be seen as constituting a comprehensive review of the entire system. 17. However, it is agreed that the inspector and the defendant agreed on specific actions which the defendant needed to take. I do not accept that this was to remedy deficiencies in the defendant's policies but was to refine the systems in place. Even so, Inspector Crosbie did not issue any Improvement Notices. From that I accept that Inspector Crosbie did not form a reasonable belief that there was a contravention of WHS laws. 18. There is no evidence that the identified risks associated with the tasks of unloading, sorting, repacking and reloading trucks were any different from the risks identified and referred to in the defendant's pre-incident systems of work. 19. The task of unloading, sorting, repacking and reloading involved the same risks and controls. In the circumstances, SWPs for unloading product back into the Load Out either generally, or for the more specific purpose of re-sorting products, re-packing product, etc. was not required. 20. The process for unloading and reloading involved the same risks and controls, which were covered by the defendant's pre-incident systems of work. There is no evidence that a SWP specifically for the tasks of unloading and reloading would have minimised the risk further than the systems of work which were already in place. 21. The 'clear instructions' in 9(f)(i) not to stand in the path of a reversing forklift was covered by the pre-incident awareness training. It seems to me that as a matter of common sense such an instruction ought not need to be given. 22. The particulars at [9] continue as follows: 'g. To conduct adequate and regular inspection of the workplace to verify that safe procedures were in place and enforced in the load out area, where workers were undertaking loading and unloading of trucks using forklifts.' 1. The prosecutor submits that following Inspector Crosbie's visit on 1 June 2016, the matters that he identified as defects in the forklift safety systems were such that they were matters that if the defendant had conducted a proper review of its systems with regard to the forklifts and the Load Out, the deficiencies would have been revealed, and the defendant could have verified that safe procedures were in place. 2. The defendant asserts that the Court will be satisfied that the defendant's management personnel conducted adequate and regular inspections to verify that the SWPs were in place and enforced in the Load Out. 3. However, I accept that in completing the 'Forklift Use – Checklist and Discussion Guide', the Inspector came to the conclusion that there was no need to issue any improvement notices, and thus implicitly he must have formed the view that there was no contravention of the WHS Act and WHS Regulation such that an Improvement Notice ought to have been issued. ELEMENT 4 – Did the defendant's failure to comply with its work, health and safety duty expose the workers – in particular Mr Doocey, to a risk of death or serious injury. 1. The question to be resolved with respect to causation is whether the acts or omissions of the defendant were a substantial cause of the relevant workers, including, and in particular, Mr Doocey, being exposed to the risk of death or serious injury. This question must be considered in light of the objects of the WHS Act, and the object of the duty set out in section 19(1), namely, ensuring the health and safety of workers at work. 2. The prosecution submits that each of the failures in [9](a)–(g) are made out, in that such failures increased the risk of a worker undertaking work in the Load Out being struck by a forklift when working in the proximity to the loading dock whilst a forklift was being used to load and/or unload product from the rear of trucks. 3. The prosecution also submits that the practice of permitting unlicenced personnel to operate forklifts was a significant cause of the risk was a significant cause of the risk. I am of the view that this was the major crux of the prosecution's case. I do note however that the prosecutor relies on the failure to put in place and maintain any of the measures pleaded in [9] of the Amended Summons. 4. The prosecution submits that had the defendant taken any or more of the reasonably practicable steps as pleaded in [9] of the Summons, the practice of permitting unlicenced personnel to drive forklifts would not have developed. I do not accept that to be the case. 5. Having found that there was not a system in place that permitted unlicenced workers to operate forklifts in the Load Out, s 244 of the WHS Act has no role to play. 6. Further, any occasions of unlicenced workers being permitted to drive forklifts, including the conduct of Mr Hogan on 12 July 2016, cannot be attributed to the defendant. The defendant's system did not provide the supervisors with authority to permit unlicenced workers to drive the forklifts — it was a rule known to both the Load Out supervisors and the Load Out workers, and it was also known that a breach of this rule was a disciplinary matter. The Load Out supervisors did not have authority to modify or change the procedure (T561 L31) and (T728 L20–50). 7. I accept that there is no evidence that a departure from the system was, or could have been, within the actual or apparent scope of the supervisor's employment. The workers were all aware, as a result of their training, that disciplinary action would be taken. 8. I am not satisfied that the prosecution has proven the elements of the offence beyond reasonable doubt. ORDERS 1. I make the following orders: 1. The prosecution has not proved all the elements of the offence beyond reasonable doubt. 2. I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 3. I list the matter for further directions before me on 14 July 2023 to determine the appropriate course. ****** Amendments 16 June 2023 - Remove/delete paragraph 3 from Catchwords commencing "PROCEDURAL - foreseeability" 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 June 2023