District Court New South Wales Medium Neutral Citation: SafeWork NSW v Miller Logistics Pty Ltd;; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 Hearing dates: 12, 13, 14, 16 February 2024 Date of orders: 8 March 2024 Decision date: 08 March 2024 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In relation to the Miller Logistics Pty Ltd Summons in proceedings No. 2022/144479: (1) The allegations set out in par 14(a), (b), (c), (d), (g), (h) and (i) in the Summons have been proved beyond reasonable doubt. (2) I find the defendant Miller Logistics Pty Ltd guilty. (3) The matter will be listed for sentence hearing on a date convenient to the prosecutor. In relation to the Mitchell Doble Summons in proceedings No. 2022/144530: (1) The prosecution has not proved all of the elements of the offence beyond reasonable doubt. (2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). (3) The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders, or argument on the proposed questions of law to be stated to the Court of Criminal Appeal. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL LAW – prosecution – work health and safety – duty of officers – due diligence – risk of serious injury or death OTHER – forklift hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts OTHER – due diligence – work health and safety systems, processes and resources – verification – delegation – compliance officer Legislation Cited: Corporations Act 2001 (Cth), s 9 Criminal Appeal Act 1912 (NSW), s 5AE Criminal Procedure Act 1986 (NSW), s 133(2) Evidence Act 1995 (NSW), s 165 Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A, 16, 17, 18, 19, 27, 32 Work Health and Safety Regulation 2017 (NSW), cll 39, 214 Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Constantanidis v R [2022] NSWCA 4 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Orr v LakeCoal Pty Ltd [2019] NSWDC 178 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 SafeWork NSW v Hetherington [2019] NSWDC 11 SafeWork NSW v Miller Logistics; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) A Crim R 340 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Texts Cited: Code of Practice Managing the Risks of Plant in the Workplace dated August 2019 Forklifts Induction Sheet for Owners and Operators, Safe Work Australia, July 2014 General Guide for Industrial Lift Trucks, Safe Work Australia, July 2014 Michael Tooma, Tooma's Annotated Work Health and Safety Act 2011, (Thomson Reuters, 2nd Edition) Occupational Health and Safety Law NSW, LexisNexis Traffic Hazard Checklist Safe Work Australia, July 2014 Category: Principal judgment Parties: SafeWork NSW v Miller Logistics Pty Ltd SafeWork NSW v Mitchell Doble Representation: Counsel: M Scott (Prosecutor) Mr Baroni / A Horne (Defendant Mitchell Doble) Solicitors: Department of Customer Service (Prosecutor) Holman Webb (Defendant Mitchell Doble) File Number(s): 2022/144479; 2022/144530 Judgment Introduction 1. On 4 November 2020 Mr Christopher Herden, a truck driver employed by Zentry Pty Ltd (Zentry) was working at a transport depot operated by Miller Logistics Pty Ltd (Miller) in Tamworth (the site). Miller traded as Doble Express Transport (DXT). Mr Herden was working on foot assisting the driver of a B-Double trailer which was located in the loading/unloading area at the site. Mr Herden was struck by a forklift driven by another worker. He suffered serious injuries. 2. SafeWork NSW (SafeWork) prosecutes Miller in proceedings 2022/144479, alleging that Miller, being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with the duty exposed workers, in particular Mr Christopher Herden, to a risk of death or serious injury contrary to s 32 of the WHS Act. 3. SafeWork also prosecutes Mr Mitchell Doble in proceedings 2022/144530 alleging a breach of Mr Doble's duty under s 27(1) of the WHS Act. SafeWork alleges that Mr Doble failed to exercise due diligence to ensure that Miller complied with its duty or obligation under s 19(1) of the WHS Act, because he failed to take reasonable steps to ensure that Miller had, so far as reasonably practicable, complied with its duty under the WHS Act. Procedural History 1. Both Summonses were filed on 18 May 2022 and first came before the court for directions on 11 July 2022. 2. After several directions hearings, the matter came back before Judge Scotting on 6 March 2023. The court was informed that on 2 March 2023 Mr Gavin Moss was appointed the liquidator of Miller pursuant to a creditors' voluntary liquidation. The prosecutor did not need leave to continue the prosecution against Miller – see Orr v LakeCoal Pty Ltd [2019] NSWDC 178. Before Judge Scotting Mr Doble entered a plea of "not guilty" on 6 March 2023. 3. The two matters were listed before me on 30 May 2023. On behalf of Miller, a plea of "not guilty" was recorded, as there was no appearance for that defendant and no plea. In the matter of Mr Doble, the court was informed that a Notice of Motion was to be filed by Mr Doble seeking a separate trial. 4. Mr Doble's Motion was heard on 6 July 2023 and judgment was delivered on 13 July 2023: SafeWork NSW v Miller Logistics; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252. I dismissed the Notice of Motion seeking a separate trial and confirmed that both matters would proceed together as defended hearings commencing on 12 February 2024. 5. The joint trial of both defendants commenced on 12 February 2024 and concluded on 16 February 2024, when judgment was reserved. There was no appearance for Miller. The prosecution proceeded ex parte in relation to Miller. Mr Doble was represented by counsel. 6. The oral and documentary evidence for the prosecution was received in both matters. Some of the documents tendered against Mr Doble were objected to by counsel for Mr Doble, but ultimately all of the prosecution evidence went in against both defendants. The Task of this Court 1. The joint trial of Miller and Mr Doble is a matter of administrative convenience, for the reasons set out in my earlier interlocutory judgment. I must consider the case against each accused separately. I must return a separate decision in respect of each individual accused. 2. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. 3. The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt. 4. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty. 5. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence. 6. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW). 7. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4. In the present case many of the witnesses worked for Miller or worked for Zentry at the site. For that reason they might have in theory attempted to minimise their own involvement or that of the defendants. I do not think that any witness did that. The Miller Summons The Risk 1. Paragraph 13 of the Summons pleads the risk as follows: "The risk was the risk of workers, in particular Mr Herden, suffering serious injury or death as a result of being struck, or otherwise impacted, by a forklift whilst the workers were undertaking duties associated with the loading of transport vehicles in the loading/unloading area at the premises." Reasonably Practicable Measures 1. Paragraph 14 of Annexure A to the Summons pleaded nine measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively minimise, if it is not reasonably practicable to eliminate) the risk. At the conclusion of the trial, counsel for SafeWork abandoned particular 14(e). 2. Paragraph 14 pleaded as follows: "14. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Herden, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a) Provide a designated loading and unloading zone in the loading/unloading area at the premises; and/or b) Provide designated and clearly marked forklift movement lanes in the loading/unloading area at the premises; and/or c) Provide designated and clearly marked pedestrian exclusion zones in the loading and unloading area at the premises; and/or d) Install a physical barrier in the loading/unloading area at the premises to separate pedestrians and powered mobile plant; and/or e) [Abandoned] f) Enforce, or verify that Zentry was enforcing, the "3 metre rule" at the premises; and/or g) Develop, implement and enforce a safe work procedure for loading/unloading trucks and/or a traffic management plan at the premises which: i. identified the risk of being struck by a forklift at the premises; ii. described the control measures to be implemented to eliminate or control the risk, such as those measures outlined in paragraphs (a) - (f) above; and/or h) Provide, or require and verify that Zentry provide, an induction to new workers, which included information, instruction and training in relation to the safe work procedure and/or traffic management plan, identified in paragraph (g) above. i) Provide, or require and verify that Zentry provide, supervision to workers undertaking duties in the loading/unloading area to ensure that the safe work procedures and/or the traffic management plan was followed, such as those set out in paragraph (g) above." Exposure to a Risk of Death or Serious Injury 1. Paragraph 15 of Annexure A to the Summons pleaded that as a result of the failures by Miller, workers, and in particular Mr Herden, were exposed to a risk of death or serious injury. Miller: The Elements of the Offence Charged 1. Section 32 of the WHS Act provides: "A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness." 1. The elements of the offence are: 1. Element 1 The defendant owed the workers a duty under s 19(1) of the WHS Act; 2. Element 2 The defendant failed to comply with that duty; and 3. Element 3 The failure exposed the workers to a risk of death or serious injury. 1. The objects clause in s 3 of the WHS Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable." 1. The offence is one of strict liability: s 12A of the WHS Act. 2. The content of the duty is set out in s 19 of the WHS Act which provides: "(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 … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking." 1. The meaning of "worker" is dealt with by s 7(1) of the WHS Act which provides: "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: (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor…" 1. Section 16 of the WHS Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity." 1. Section 17 of the WHS Act deals with the management of risks and provides: "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." 1. The word "risk" is not defined in the WHS Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the WHS Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury – s 32(c). 2. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015. 3. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once. 4. "Reasonably practicable" is defined in s 18 of the WHS Act which provides: "In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know, about; (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk." 1. The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33]. 2. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ. 3. 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; (2001) 110 IR 57 at [68]. 4. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J. 5. The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ. 6. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 7. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by a worker, but defendants must conduct operations on the basis that such acts will occur, and they must be guarded against to the fullest extent practicable. 8. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [127]. 9. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. 10. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) A Crim R 340 at [79]-[102]. 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 act or omission and the risk to which a worker was exposed: Bulga Underground at [130]. The Doble Summons The Risk 1. Paragraph 14 of Annexure A to the Doble Summons pleaded particulars of the risk as follows: "14. The risk was the risk of workers, in particular Mr Herden, suffering serious injury or death as a result of being struck, or otherwise impacted, by a forklift whilst the workers were undertaking duties associated with the loading of transport vehicles in the loading/unloading area at the premises." Failure To Exercise Due Diligence 1. Paragraphs 15 and 16 of Annexure A to the Doble Summons pleaded particulars of the failures of Mr Doble to comply with his duty under s 27(1) of the WHS Act. Those paragraphs plead as follows: "15. The defendant failed to exercise due diligence to ensure that Miller Logistics complied with its duty or obligation under section 19(1) of the Act, because he failed to take reasonable steps (as outlined in paragraph 16 below) to ensure that Miller Logistics had, as far as reasonably practicable, complied with that duty, as Miller Logistics failed to take one or more of the following reasonably practicable measures: a) Provide a designated loading and unloading zone in the loading/unloading area at the premises; and/or b) Provide designated and clearly marked forklift movement lanes in the loading/unloading area at the premises; and/or c) Provide designated and clearly marked pedestrian exclusion zones in the loading and unloading area at the premises; and/or d) Install a physical barrier in the loading/unloading area at the premises to separate pedestrians and powered mobile plant; and/or e) [Abandoned] f) Enforce, or verify that Zentry was enforcing, the "3 metre rule" at the premises; and/or g) Develop, implement and enforce a safe work procedure for loading/unloading trucks and/or a traffic management plan at the premises which: i. identified the risk of being struck by a forklift at the premises; ii. described the control measures to be implemented to eliminate or control the risk, such as those measures outlined in paragraphs (a) - (f) above; and/or h) Provide, or require and verify that Zentry provides, an induction to new workers, which includes information, instruction and training in relation to the safe work procedure and/or traffic management plan, identified in paragraph (g) above. i) Provide, or require and verify that Zentry provides, supervIsIon to workers undertaking duties in the loading/unloading area to ensure that the safe work procedures and/or the traffic management plan was followed, such as those set out in paragraph (g) above. 16. The reasonable steps the defendant should have taken in exercising due diligence to ensure Miller Logistics complied with its duties and obligations under the Act included one or more of the following: 1) Ensuring that Miller Logistics had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of Miller Logistics business or undertaking by: a) requiring, instructing or directing Miller Logistics to provide. a designated loading and unloading zone in the loading/unloading area at the premises; and/or b) requiring, instructing or directing Miller Logistics to provide designated and clearly marked forklift movement lanes in the loading/unloading area at the premises; and/or c) requiring, instructing or directing Miller Logistics to provide designated and clearly marked pedestrian exclusion zones in the loading and unloading area at the premises; and/or d) requiring, instructing or directing Miller Logistics to install a physical barrier in the loading/unloading area at the premises to separate pedestrians and powered mobile plant; and/or e) [Abandoned] f) requiring, instructing or directing Miller Logistics to enforce, or verify that Zentry was enforcing, the "3 metre rule" at the premises; and/or g) requiring, instructing or directing Miller Logistics to develop, implement and enforce a safe work procedure for loading/unloading trucks and/or a traffic management plan at the premises which: i. identified the risk of being struck by a forklift at the premises; ii. described the control measures to be implemented to eliminate or control the risk, such as those measures outlined in paragraphs (a) - (f) above; and/or h) requiring, instructing or directing Miller Logistics to provide, or requiring and verifying that Zentry provides an induction to new workers, which includes information, instruction and training in relation to the safe work procedure and/or traffic management plan, identified in paragraph (g) above. i) requiring, instructing or directing Miller Logistics to provide or requiring and verifying that Zentry provide supervision to workers undertaking duties in the loading/unloading area to ensure that the safe work procedures and/or the traffic management plan was followed, such as those set out in paragraph (g) above. 2) Verifying that one or more of the resources or processes listed in paragraphs 16 (1 )(a) - (i) above were provided, implemented and used by workers when undertaking work for, or on behalf of, Miller Logistics." Exposure to a Risk of Death or Serious Injury 1. Paragraph 17 of Annexure A to the Doble Summons pleaded that as a result of the failures of Mr Doble, workers, and in particular Mr Herden, were exposed to a risk of death or serious injury. Doble: The Elements of the Offence Charged 1. Section 27 of the WHS Act deals with the duty of officers of a corporation. Section 27 provides as follows: "27 Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps— (a) to acquire and keep up-to-date knowledge of work health and safety matters, and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and Example— For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include— • reporting notifiable incidents, • consulting with workers, • ensuring compliance with notices issued under this Act, • ensuring the provision of training and instruction to workers about work health and safety, • ensuring that health and safety representatives receive their entitlements to training. (f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e)." 1. Section 4 of the WHS Act contains a definition of officer, which includes "an officer within the meaning of s 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership". 2. The definition of "officer of a corporation" in s 9 of the Corporations Act 2001 (Cth) includes "a director or secretary of the corporation". Mr Doble was the sole director and the secretary of Miller at the relevant time. 3. The elements of a Category 2 offence involving the failure of an officer to exercise due diligence (ie under s 27 of the WHS Act) are: 1. There is a corporate PCBU which has a duty or obligation under the WHS Act. 2. The accused individual is an officer of that PCBU. 3. The accused has failed to exercise "due diligence" to ensure that the PCBU complies with that duty or obligation. 4. The failure to exercise due diligence exposes an individual to a risk of death or serious injury. 1. In Occupational Health and Safety Law NSW, LexisNexis, par 2530.5 the learned authors say: "Section 27 is a straightforward implementation of recommendation 40 of the First Report of the National Review, which was that a New Model Act should 'place a positive duty on an officer to exercise due diligence to ensure the compliance by the entity of which they are an officer with the duties of care' under the Act. The positive duty imposed by s 27 requires officers to be proactive and means that officers owe a continuous duty to ensure compliance with duties and obligations under the Act." 1. The learned authors of that service also say at par 2530.30: "The officer's duty is to exercise due diligence to ensure that the PCBU complies with the PCBU's duties or obligations (subsection 27(1)). This ordinary grammatical meaning is further extended by subsection 27(5) of the Act. The definition is framed in an 'inclusive', rather than 'exclusive', way. Due diligence now includes knowledge of work health and safety matters, understanding the hazards and risks associated with the business or undertaking's operations, and resources and processes to eliminate or minimise the risks. Unlike s 26 of the OHS Act 2000 which required that the relevant company actually contravene the legislation, it appears an officer may be guilty under s 27 of the Act simply by failing to exercise due diligence, even if the company itself has not been charged or been found guilty of a breach. Due diligence also concerns information about incidents, hazards and risk, processes for complying with the PCBU's duties and obligations, and arrangements to verify the provision and use of resources and processes. The standard of care prescribed for officers in s 27 is 'due diligence'. The Oxford English Dictionary defines the word 'diligence' as, simply: Constant and earnest effort to accomplish what is undertaken; persistent application and endeavour; industry, assiduity. Subsection 27(5) requires an officer to be proactive in acquiring and keeping up-to-date knowledge of work health and safety matters and ensuring the PCBU has, and implements, processes for complying with any duty or obligation the PCBU has under the Act. It is a high standard to be reached. It does not place the officer directly in the position of the corporation, but requires the officer to be actively engaged in the governance of the corporation." 1. The learned author of Tooma's Annotated Work Health and Safety Act 2011, Thomson Reuters, 2nd Edition expresses (in par 27.10) similar views to the matters set out above from the LexisNexis practice book. 2. The Summons in the Doble matter in par 16 specifically pleads two ways in which it is alleged that Mr Doble should have exercised due diligence. 3. Par 16(1) of the Doble Summons pleads that Mr Doble should have exercised due diligence to ensure that Miller "had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of Miller Logistics business or undertaking". Par 16(1) of the Doble Summons then lists eight steps which should have been taken by Mr Doble to ensure due diligence in this regard. 4. Paragraph 16(1) of the Doble Summons picks up the words of s 27(5)(c) of the WHS Act, which provides that due diligence includes taking reasonable steps "to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking". 5. Paragraph 16(2) of the Doble Summons pleads that Mr Doble should have exercised due diligence by "verifying that one or more of the resources or processes listed in par 16(1)(a)-(i) above were provided, implemented and used by workers when undertaking work for, or on behalf of, Miller Logistics". 6. Paragraph 16(2) of the Doble Summons picks up the words of s 27(5)(f) of the WHS Act which provides that due diligence includes taking reasonable steps "to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e)". Having regard to par 16(1) of the Doble Summons, which confines itself to pleading reasonable steps required by s 27(5)(c), the "verification" pleaded in par 16(2) of the Doble Summons is to be understood as a pleading that Mr Doble should have verified the provision and use of the resources and processes pleaded in s 27(5)(c), and particularised in par 16(1) of the Doble Summons. 7. In WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349, Staunton J held at [131]-[134] that: "[Due diligence] is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established. Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safety standards established are in fact being adhered to and under ongoing review." 1. Judge Scotting considered the scope of the duty imposed by s 27 of the WHS Act in SafeWork NSW v Hetherington [2019] NSWDC 11. His Honour said at [37]-[45]: "37 The scope of the duty imposed by section 27 of the Act has not been authoritatively determined. The following matters appear to be non-controversial. 38 First, the section 27 duty is radically different to its predecessor section 26 Occupational Health and Safety Act 2000, which deemed a director on proof of a contravention by the company. The first report of the Stewart-Crompton Panel (the First Report) described section 27 as requiring an officer to be proactive to ensure compliance by the company, making the officer liable for their own acts or omissions. The approach was intended to require proactive steps by the officer for compliance by the company, with the duties of care placed on the company. 39 In McKie v Al-Hassani [2015] ACTIC 1 Chief Industrial Magistrate cited with approval the following relevant passage from Barry Sherriff and Michael Tooma, (Understanding the Model Work Health and Safety Act) (Wolters Kluher): The approach taken by the model WHS Act, however, emphasises the corporate governance responsibilities of officers. The personal liability in that context reflects culpability of company officers in failing to meet the corporate governance responsibilities by preventing corporate misconduct. Consistent with this rationale, officers under the model laws will have a duty to ensure due diligence. Thus, their attributed liability is transformed into a positive duty to ensure compliance through sound corporate governance. 40 Second, 'due diligence' is defined to include taking reasonable steps to achieve the objectives set out in section 27(5)(a)-(f), but the definition of due diligence is not closed. 'Due diligence' in the context of the Corporations Act 2001 (Cth) has been defined as a minimum standard of behaviour involving a system which provides against contravention of relevant regulatory provisions and adequate supervision ensuring that the system is properly carried out: Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531. 41 In Inspector Kumar v Ritchie [2006] NSWIRComm 323 at [153] Haylen J considered that the due diligence defence provided for by section 26 Occupational Health and Safety Act 2000 required a systematic approach designed to achieve compliance with the regulatory scheme and to prevent contravention of it, that the system was appropriate and not a paper system designed to pay lip service to the Act and that the system was properly enforced to achieve compliance with the Act. 42 In WorkCover Authority v Daly Smith Corporation [2004] NSWIRComm 349 at 152] Staunton J described the due diligence defence as requiring that the person had put in place a system to identify and manage the risk to safety at the employer's worksite. It involved ensuring that the workers had the skills to perform the work and ensuring that they complied with the safety standards established, by formal and informal review and auditing. 43 In Inspector Aldred v Herbert [2007] NSWIRComm 170 at [25] Backman J held that it was sufficient due diligence for directors to address safety matters at board meetings, to require managers to report on safety matters and to monitor safety as an issue. 44 In Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163 at [188] Boland P was not satisfied that the due diligence defence was established because there was no review or auditing process to ensure that the supervisors and managers were acting in compliance with the written policies. 45 Third, the exercise of due diligence and what are reasonable steps will be determined to some extent by the officer's place in the corporate structure and their ability to control the objectives outlined in section 27(5)(a)-(f)." 1. Further, at [56]-[58], Judge Scotting said: "56 The section 27 duty imposed on officers is not to take all reasonably practical measures to ensure compliance by the PCBU and an officer is not required to ensure the health and safety of workers. 57 An officer is required to adhere to a minimum standard of behaviour involving a system which ensures compliance by the PCBU with its duties and obligations under the Act and to provide adequate supervision to ensure that the system is properly carried out. The minimal standard of behaviour and the system is to take reasonable steps to include the objectives in section 27(5)(a)-(g). 58 Section 27 does not require that the officer undertake the reasonably practicable measures on behalf of the PCBU. A breach of section 27 by an officer is not dependent on a breach of another duty owed by the PCBU." Prosecution Documentary Evidence 1. The documentary evidence for SafeWork was largely contained in two folders which were marked as PX 1 and PX 2. Some, but not all, of the documents in those folders were tendered. My Associate kept a list of the documents in the folders admitted into evidence, and this list was marked MFI 1. It was provided to the solicitors for the parties, who agreed it was accurate. Once the list was agreed, the documents which were not tendered were physically removed from the folders and returned to the solicitor for SafeWork. 2. SafeWork also tendered: 1. An A4 photograph of the scene of the accident. The original version of this photograph contained in PX 1 was too small and too indistinct to make out any relevant detail (PX 3). 2. A s 155 Notice directed to Miller, together with the documents numbered 10, 11 and 12 in the Notice. These were the documents produced by Miller in relation to workplace inductions for Mr Herden, Mr Everson and Mr Hill. They were the three workers directly involved in the incident. Reference will be made to those induction records when the oral evidence of each worker is considered below (PX 4). 1. The documents in PX 1 and PX 2 were helpfully grouped into categories, which were listed in the index to the folders. I propose to consider the documents in chronological order. Before the Incident on 4 November 2020 Service Agreement between Miller and Zentry dated 1 July 2019 (PX 1, Tab 14) 1. This Service Agreement was made between Miller as Principal and Zentry as Service Provider. Its term was from 1 July 2019 to 30 June 2023. Clause 10 (p 5) of the Service Agreement deals with "Workplace Health and Safety". It requires both parties, and their employees, contractors and agents, to comply with all applicable workplace health and safety laws. Each party must ensure that employees, agents and subcontractors receive adequate training in workplace health and safety and risk management. General Guide for Industrial Lift Trucks dated July 2014 published by Safe Work Australia (PX 2, Tab 61) 1. This Guide was provided by Safe Work Australia to provide information about health and safety risks for people who carry out activities involving industrial lift trucks ie forklifts. The Guide contained details about how forklift risks can be managed. It set out the following steps: 1. Identify hazards. 2. Assess risks. 3. Control risks. 4. Review control measures. 1. The Guide specifically dealt with "traffic management" on p 6. The Guide states: "Industrial lift trucks must not collide with pedestrians or other powered mobile plant. If there is a possibility of an Industrial Lift Truck colliding with pedestrians or other vehicles you • must ensure the industrial lift truck has a warning device that will warn people of the movement of the industrial lift truck eg a horn or reversing alarms. • should set-up the workplace so industrial lift trucks, pedestrians and other vehicles are separated and their paths do not cross. • should provide dedicated loading and unloading areas." (Emphasis added) 1. The Guide also set out control measures to achieve traffic management. These included barricades for separating pedestrian and traffic areas for the use of bollards or guard rails. Traffic Hazard Checklist dated July 2014 published by Safe Work Australia (PX 2, Tab 62) 1. This Checklist set out in table format matters to be considered in identifying potential traffic hazards arising from "powered mobile plant and other vehicles interacting with pedestrians". 2. The list of matters to be considered include the following: 1. "Have you checked the floorplan of your workplace? Sketching the layout of the workplace can also help." 2. "Are there physical barriers to stop vehicles and pedestrians interacting?" 3. "Are workers and other pedestrians safe from vehicles when for example: • hitching and unhitching trailers; • carrying out maintenance; • getting on and off mobile plant; • securing loads?" 1. "Can interaction between vehicles and pedestrians be eliminated or minimised? Consider mapping how often and where interaction occurs." 2. "Are pedestrian routes designed so pedestrians will not take shortcuts?" 3. "Are workers and other pedestrians aware of the hazards? Are there procedures in place to manage risks? For example, site induction training, signage and traffic controllers." Forklifts Induction Sheet for Owners and Operators dated July 2014 published by Safe Work Australia (PX 2, Tab 63) 1. This Induction Sheet (PX 2, Tab 63) was a document referred to and accompanying the General Guide discussed above. 2. Under the heading "Traffic Management" the Induction Sheet says: "Most forklift incidents involve pedestrians. Forklift trucks must not collide with pedestrians or other powered mobile plant. You should make sure there are clear, separate pathways for pedestrians and forklifts." (Emphasis added) Safe Work Procedure issued in August 2017 (PX 1, Tab 15) 1. This Safe Work Procedure is on the letterhead of DXT. It was authorised by Mr James Hayter. It deals with forklift work. The operating procedure deals with: 1. Pre-operation. 2. Operation. 3. Post-operation. 1. The only mention of interaction between forklifts and pedestrians is contained under the sub-heading "Operation" where one of the dot points is: "Look out for pedestrians at all times". 1. It is to be noted that the Safe Work Procedure says nothing about separating forklifts and pedestrians to ensure that there is no collision between a forklift and a pedestrian. Work Health & Safety Policy dated 31 July 2017 (PX 1, Tab 34) 1. The policy says that DXT provides, maintains and promotes a safe work environment and a safety management system by: "• A systematic approach to identifying, assessing and controlling health and safety hazards and risks through the development and implementation of suitable procedures; • Ensuring as far as practicable all operations conducted by employees and contractors are in accordance with relevant legislation and regulatory requirements and relevant industry standards; • Effective management demonstrated by commitment and direct involvement at all levels of the company; • Effective two-way communication as an integral part of every job; • The provision of appropriate facilities, equipment, education, training and supervision for employees and contractors to ensure healthy and safe working conditions and methods." 1. The policy also says that Doble Express Transport Management is required to "facilitate continuous improvement through periodic review of objectives and performance measures, systems, practices and procedures to ensure their continued effectiveness and relevance". Job Safety Analysis dated August 2017 (PX 1, Tab 29) 1. This Job Safety Analysis is on the letterhead of DXT and is authorised by Mr James Hayter. It deals with forklift operation at the Yennora depot of Miller. On p 6 of the Job Safety Analysis a noted risk is a crush or impact injury between a forklift and person. The control measures included: "Designated areas for pedestrian and forklift to be used." 1. It is noted that the document does not make clear whether there is one designated area for forklift and pedestrians, or whether there should be separate areas. SafeWork NSW Improvement Notice issued on 23 October 2017 (PX 2, Tab 54) 1. This is an Improvement Notice issued to Miller in relation to the Yennora depot. Inspector Maddaford stated his belief that on 20 October 2017 at 9.30am Miller was contravening a provision of the WHS Act s 19. 2. The Improvement Notice states that workers may be exposed to the risk of being struck by moving plant and palletised loads due to an inadequate traffic management plan to control the interaction between forklift trucks and truck drivers. The Notice describes the required procedures to be: "• Specifying where the trucks drivers are to be located while their trailers are being loaded. • Ensuring the forklift trucks are not loading the trailers when the truck driver cannot be seen by the forklift driver, and • Specifying when the truck drivers can return to their trucks to strap and tarp their trailers." 1. The Notice requires Miller, as far as is reasonably practicable, to develop, implement and maintain a documented traffic management plan. The plan must include, but not be limited to, the three procedures described in the Notice and set out above. The Notice requires all workers, supervisors, managers and contract drivers to be informed and trained in the traffic management plan. 2. The Notice was electronically issued on 23 October 2017 and was served by email upon Mr Hayter and upon Lofty Noah, a worker at Yennora. The Notice stated that the contravention must be remedied before 17 November 2017. Email dated 10 November 2017 (PX 1, Tab 28) 1. This email sent on 10 November 2017 was from Mr Hayter to a large number of people. One of the recipients was Mr Doble. The subject was "Toolbox Talks". Mr Hayter said that toolbox talks were to start from Monday, 13 November 2017 and continue fortnightly "until all staff are familiar with the processes and procedures within the company (DXT)". 2. This email also said: "It has become clear there are far too many incidents, near-misses or errors in judgment happening. If it continues this way we could end up with a serious or fatal injury. All managers please grasp the bull by the horns. Enforce all safety processes/procedures and ensure they are under you [sic] control." 1. There were attachments to the email. The relevant attachment is headed "TOOLBOX Forklift – 3 Metre Rule". That attachment described the 3-metre rule in the following terms: "Separation of a 3-metre distance between pedestrian and Operating PME (Powered Mobile Equipment). At all DXT sites the 3-metre rule MUST be strictly adhered to at all times, except where exclusion zones apply." 1. The document also contained the following: "Helping out is not worth the risk – Forklifts and people don't mix What are the risks? Forklift-related incidents result in injury and death in the workplace – more than half of them are pedestrians. The risk for those that do not follow 3-metre rules face the reality of being potentially injured or killed by a forklift operating the area. Separation of forklift and people is essential." (Emphasis added) Email dated 6 December 2017 (PX 1, Tab 27) 1. This email was from Mr Hayter to a number of people including Mr Collier and Mr Doble. It referred to SafeWork NSW visiting Yennora. It attached safety talks for forklift drivers and truck drivers to be held on 8 December 2017. The toolbox talk documentation was to be signed by those who attended, scanned and emailed back to Mr Hayter. The email included the following: "As per the below email safety needs to come first. Speed kills and far too many forkies are speeding. (This was picked up by the safework inspector during his visit)." 1. The reference to the "below email" was a reference to an email of 10 November 2017 (PX 1, Tab 28), a copy of which was included at the foot of the email of 6 December 2017. The email attached documents relating to various topics for the toolbox talks. One of them was headed "TOOLBOX Forklift Safety". It commenced: "Each year, tens of thousands of injuries related to forklifts occur in the workplace. Many employees are injured when… struck by a forklift truck…". 1. The document did not speak about separation of forklifts and pedestrians and did not mention the 3-metre rule. Miller WHS Manual dated 8 February 2018 (PX 1, Tab 33) 1. This 148-page Manual sets out the Doble Express Transport Work Health and Safety Management System which is to apply at all sites of Doble Express Transport. The policy and procedures are formally authorised and approved by the Managing Director (p 6). The policy sets out the responsibilities of the Managing Director as follows (p 7): "• Formally approve the Work Health and Safety Policy. • Assign custody to ensure procedure is maintained and updated. • Formally approve the Work Health and Safety Procedures. • Review overall organisational health and safety performance. • Participate where required in the resolution of safety issues. • Review serious injuries/incidents and monitor corrective actions. • Review health and safety performance of middle management. • Ensure organisational compliance with health and safety legislation." 1. Page 11 of the policy is in the same terms as the work health and safety policy dated 31 July 2017 (PX 1, Tab 34) which has been summarised above. 2. Section 3 (p 13) of the policy deals with "Hazard Identification, Assessment and Management". Section 3.7 (p 14) of the policy is headed "Clear Marking of Designated Areas to Minimise Hazards". It states that work areas where workers are exposed to risks or hazards are identified with proper markings. 3. Section 5 (p 15) of the policy deals with "Training and Supervision". Section 5.1 (p 15) refers to a "First Day Induction" for new employees which is a verbal explanation, and observation of the task in a safe working environment with supervision. Part of the first day induction is an explanation to the new employee of hazards associated with the job and appropriate controls, and a description of the safe way to do the job. There is no document in PX 4 or otherwise in evidence showing that Mr Herden, Mr Hill or Mr Everson ever received such an induction. 4. Section 5 also refers to Form 06.1 entitled "First Day Induction Checklist". There is no such checklist for Mr Herden, Mr Everson or Mr Hill in evidence. 5. Section 13 of the policy deals with "Traffic Control". Section 13.1 (p 25) says that it is the responsibility of managers and supervisors to implement traffic control procedures relevant to pedestrians and vehicles, communicate the requirements of these procedures to workers, monitor the effectiveness of the procedures and monitor compliance. Section 13.2 deals with "Pedestrian Safety" (p 25). It requires appropriate controls to be implemented to ensure the safety of all pedestrians in and around the workplace. There must be a traffic control policy developed to ensure the health and safety of all persons while on the premises. 6. Form 01.2 is headed "Health and Safety Plan" (p 36). The Managing Director is given responsibility in relation to the following matters: 1. Adopt and review the Health & Safety Policy and associated Manual. 2. Provide safe plant and equipment. 3. Encourage consultation with employees on health and safety matters. 4. Consider hazards in the workplace and implement controls where required. 5. Ensure employees are properly trained and records kept. 1. In relation to the obligation upon the Managing Director to consider hazards in the workplace, the action required of the Managing Director is "conduct the yearly workplace inspection to identify hazards". 2. Section 30 (p 127) of the policy deals with "WH&S Audit". This makes the "Operations Manager" responsible for developing audit schedules and maintaining and updating all audit documentation. Any need for corrective action is to be "reviewed in the meetings held by the Managing Director". Code of Practice Managing the Risks of Plant in the Workplace dated August 2019 (PX 2, Tab 59) 1. This Code was created to provide practical guidance to PCBUs on how to manage health and safety risks associated with plant in the workplace. It states that plant is a major cause of work-related death and injury and that the significant risks associated with plant can result from being crushed by mobile plant (p 5). The Code specifically refers to the duty of officers to exercise due diligence (p 8). 2. The Code refers to Part 3.1 of the Work Health and Safety Regulation 2017 (NSW). The Code provides guidance on how to manage risks by a systematic process as follows: 1. Identify hazards. 2. Assess risks. 3. Eliminate risks so far as is reasonably practicable. 4. Control risks if it is not reasonably practicable to eliminate the risk. 5. Review control measures to ensure they are working as planned. 1. The Code refers to cl 39 of the WHS Regulation in relation to provision of information, training and instruction to protect all persons from risks to their health and safety arising from work carried out (p 11). 2. Section 2 of the Code deals with the risk management process in considerable detail (commencing on p 13). 3. The Code specifically refers to powered mobile plant (p 30). The Code refers to cl 214 of the WHS Regulation, which speaks, inter alia, of an obligation to control the risk of "the plant colliding with any person or thing". Miller Management Team Structure as at 12 January 2020 (PX 1, Tab 13) 1. The executive of Miller consisted of Mr Doble as the Managing Director (Operations). Immediately below him was Mr Collier whose title was General Manager (Commercial). 2. The functional structure was Mr Doble as the Managing Director, with three persons reporting to him. One of those was Mr Hayter whose title was "Compliance Manager". For the regional depots, the team structure document recorded each depot manager as reporting directly to Mr Doble. Ms Angela Mumma is the Tamworth Depot Manager in the Team Structure document. 3. The oral evidence of several witnesses was to the effect that above the depot managers there was an Operations Manager. SafeWork Improvement Notice dated 30 September 2020 (PX 2, Tab 56) 1. The Improvement Notice is directed to Zentry Pty Ltd in relation to the Miller depot at Beresfield, which is near Newcastle. The provision contravened is described in the Improvement Notice as follows: "Persons may be exposed to the risk of injury from forklift trucks striking pedestrians due to insufficient traffic management controls as evidence by inadequate floor markings inside and outside the depot to delineate pedestrian from forklift truck traffic." (Emphasis added) 1. The Improvement Notice directs Zentry to ensure that persons can enter, exit and move about the depot without risk to health and safety. The direction includes, but is not limited to, "painting lines for pedestrian walkways so that these areas are delineated from forklift truck traffic inside and outside the depot and/or by other suitable means". 2. The Notice was issued to Mr Hayter and a copy was placed on the staff noticeboard at Beresfield. The contravention had to be remedied before 28 October 2020. SafeWork NSW Improvement Notice dated 30 October 2020 (PX 2, Tab 55) 1. This Notice was issued by Inspector Toole as a result of her visit to the Tamworth depot at 6.30am on 30 October 2020. The Notice states that workers may be exposed to a serious risk to their health or safety from being struck by mobile plant at the workplace in Tamworth "due to inadequate traffic control systems". 2. The Notice gives a direction that the following measures must be taken: "You must ensure so far as is reasonably practicable the health and safety of workers/other persons by - managing the risks associated with person's [sic] being struck by moving plant and vehicles at the workplace. - having a suitably qualified person develop a traffic control plan to control the movement of plant, vehicles and pedestrians at the workplace. - implementing the measures detailed in the traffic control plan and monitoring the effectiveness of these measures." 1. The Notice was issued by Inspector Toole on 30 October 2020 and served upon Mr Hayter and upon Ms Mumma. It required the contravention to be remedied before 27 November 2020. 2. It is noted that this Improvement Notice was served upon Miller five days before the incident where Mr Herden was injured at the Tamworth depot. The Improvement Notice specifically refers to the very risk which came home when Mr Herden was injured. The Incident on 4 November 2020 1. The direct evidence concerning the incident in which Mr Herden was injured on 4 November 2020 comes from his oral evidence, and the oral evidence of Mr Hill and Mr Everson. For reasons set out below I accept the version of Mr Herden and Mr Hill concerning how the incident happened. For reasons set out below, I reject the version given by Mr Everson. Medical Records dated 4 November 2020 (PX 2, Tabs 52 and 53) 1. The Tamworth Hospital Discharge Summary records that Mr Herden suffered an undisplaced subcapital right neck femur fracture. He had surgery and the insertion of screws. A CT scan of the pelvis showed a subcapital fracture of the right hip. An x-ray of the right arm showed an elbow joint effusion with an impacted fracture of the radial neck. Factual Inspection Report dated 4 December 2020 (PX 1, Tab 8) 1. Inspector Toole of SafeWork NSW attended the Tamworth depot at 11.10am on 4 November 2020 in response to notification of the incident. She observed two Toyota forklifts in situ adjacent to a parked B-Double trailer on the eastern side of the depot. Both forklifts had freight on pallets on the tines. Load tiedown straps extended from the B-Double trailer onto the concrete floor. Inspector Toole took photographs. Photographs Taken on 4 November 2020 (PX 1, Tab 9 and PX 3) 1. The best view of the scene is in the A4-size photograph which is PX 3. The B-Double trailer on which Mr Hill and Mr Herden were working is on the left side of the photograph, underneath the roof of a very large shed with a concrete floor. It is apparent that there are no lines painted on the floor to delineate forklift and pedestrian areas. In the middle of the photograph is a forklift which was being operated by Mr Hill on the day of the incident. The forklift which struck Mr Herden, driven by Mr Everson, is located towards the right of the photograph. Further to the right of the Everson forklift there is palletised freight stacked against the right-hand wall of the shed. The Everson forklift contains a high load of freight on a pallet which is on the tines of the forklift. The other two photographs in PX 1, Tab 9 are close-up photographs of the Everson forklift. The third photograph in particular shows the height of the freight when the tines are resting on the ground. After the Incident on 4 November 2020 Message from Angela Mumma dated 4 November 2020 (PX 1, Tab 22) 1. At 5.52pm on 4 November 2020 Ms Mumma sent a message which read as follows: "Hi all, a rough day at DXT today. I want to thank you all for remaining calm, professional and getting the job done as best as could be in the circumstances. We will be implementing a new traffic management plan in the yard as of tomorrow. Please ensure all personal vehicles are parked outside the yard as of tomorrow. Further details on traffic management to come. Feel free to call me if you have any questions or concerns. Thanks Ang." Email dated 5 November 2020 (PX 2, Tab 45) 1. On 5 November 2020 at 6.33am Ms Mumma sent an email (PX 2, Tab 45) to Mr Hayter and Mr Doble in relation to "Tamworth Traffic Management Plan". She attached a rough sketch. All areas with diagonal lines were pedestrian exclusion zones while forklifts were in operation. Ms Mumma said that she added a walkway around the outside of the yard and at the back of the awning area to allow pedestrian movement. Straps had to be thrown from this walkway, which was on the far side of the vehicle, rather than being thrown by a pedestrian standing in an area where a forklift is in operation. Ms Mumma requested engaging a line marker to paint this. She said she would obtain some local quotes. Ms Mumma also said that she had added a pedestrian exclusion zone within the shed which would be painted and marked out by a hi-vis barrier. Miller Investigation Report dated 5 November 2020 (PX 1, Tab 18) 1. Ms Mumma, the Depot Manager in Tamworth, conducted an investigation and produced a written report dated 5 November 2020. The purpose of the investigation was to find the cause of the incident and implement greater controls to prevent a repeat of the incident. Ms Mumma's findings were as follows: "3-metre rule not being observed by Kevin or Ronald. Kevin was moving forward on the forklift without clear vision. Christopher was in a loading area during forklift operation. Forklifts and pedestrians are moving in the same space. Staff have become complacent about the dangers of forklifts. Staff have been ignoring recent verbal directive. Customer access to the depot needs to be controlled. Staff parking in the depot is causing cramped working conditions." 1. The conclusions reached in the report were as follows: 1. Traffic Management and Pedestrian access areas need immediate review. All staff need to be re-educated in the safe operation of forklifts and pedestrian exclusion zones. 2. Physical barriers are needed to prevent forklifts and pedestrians crossing paths. 3. More training is required on the importance and specifics of forklift safety. Pedestrian access areas need to be repainted and clearer for all customers and staff. 4. Private vehicles are taking up too much space in the depot, not leaving enough room for safe separation of plant and person. Record of Toolbox Meeting dated 6 November 2020 (PX 1, Tab 23) 1. A toolbox talk meeting about forklift safety was conducted by Ms Mumma on 6 November 2020. Those who attended wrote their names on a record of the toolbox meeting and signed it to indicate that they had attended. Email dated 6 November 2020 (PX 1, Tab 23) 1. Ms Mumma sent an email on 6 November 2020 to Mr Hayter and Mr Doble and to Sydney Operations Support. Ms Mumma attached the toolbox documents relating "to our new depot pedestrian zones and operating procedures". Workers were asked to familiarise themselves with a yard map which displayed pedestrian walkways in green. This map, being a rough sketch, was put into evidence as PX 1, Tab 21. In oral evidence Ms Mumma indicated that the purple lines on the map indicated a proposed physical barrier between part of the walkway and part of the forklift area. 2. The toolbox talk discussed safety barriers, which were to be in place at all times while forklifts were operating in the depot. There was to be a bollard and chain barrier dividing the freight sorting zone from the bulk area of the shed. Forklifts had to be switched off and their keys removed before a forklift driver may remove the barrier. 3. The toolbox talk said that during peak load and unload times, forklifts were only to operate in the shaded area of the yard map. If a forklift needed to access a pedestrian zone, then the driver must turn off the forklift, remove the key, clear the area of pedestrians and engage a spotter to ensure that pedestrians did not enter the area while the forklift is operating. The driver would then have to return any barricades to their original positions prior to allowing pedestrian access. 4. In relation to strapping of loads, there were to be no pedestrians in the forklift zone at any time while the forklift was in operation. Strappers had to remain in designated pedestrian walkways at all times while the forklift was operating. Strapping could not be done directly opposite a loading forklift. The strapper would have to wait until the forklift had moved to another area of the truck before approaching the side of the truck. Forklifts had to be switched off and have their keys removed before any pedestrian approached the side of the truck to tighten or adjust straps. 5. The toolbox talk concluded with the following: "Drivers and strappers must not step into the forklift operation zone while forklifts are in operation." Email dated 6 November 2020 (PX 1, Tab 24) 1. Two minutes after Ms Mumma sent her email Mr Doble replied by an email saying: "Morning – Good work!" Safe Work Procedure Issued December 2020 (PX 1, Tab 31) 1. This document is a Safe Work Procedure issued by Mr Hayter in December 2020. It relates to forklift work. Under the heading "Operation", one of the things stated is "look out for pedestrians at all times". The document also states: "The forklift is never to be used in highly populated public areas". 2. It is noted that the Safe Work Procedure does not make explicit that there is to be no pedestrian movement within a forklift zone. Further, the document seems to contemplate permission for a forklift to operate in a lightly populated public area. This Safe Work Procedure was signed by several workers, including Mr Hill and Mr Everson. 3. I observe that this was not the first document created by Mr Hayter which failed to spell out the need to physically separate forklifts and pedestrians – see pars 74, 78 and 89 above. DXT Injury/Incident Report dated 25 November 2020 (PX 1, Tab 17) 1. This was a report prepared by Ms Mumma concerning the incident on 4 November 2020. Ms Mumma described the nature of the incident as follows: "Kevin Everson was moving freight into the loading area. Ron Hill was loading the B-Double. Chris Herden was assisting Ron. Chris was struck by a pallet being moved on the forklift by Kevin. Chris was knocked to the ground." Email dated 2 December 2020 (PX 2, Tab 47) 1. This is an email from Mr Boreham of Total Linemarking Resources providing a quote to the manager of the Tamworth depot. The quote is attached to undertake line marking at the Tamworth depot for a price of $1,815 inclusive of GST. Email dated 13 April 2021 (DX 2, Tab 47) 1. Ms Mumma sent an email to "Tamworth Ops" attaching the email from Total Linemarking dated 2 December 2020, together with the quote for $1,815 for line marking. Oral Evidence from Prosecution Witnesses 1. SafeWork called the following witnesses: 1. SafeWork Inspectors: Jodie Toole and Ian Shepherd. 2. Workers involved in the incident: Christopher Herden, Kevin Everson and Ronald Hill. 3. Miller Compliance Manager: James Hayter. 4. Tamworth Depot Manager: Angela Mumma. 5. General Manager of Doble Express Transport: Matthew Collier. 1. I say at the outset that with one exception, I accept the evidence of all the witnesses. The exception, discussed below, is that I do not accept the version of the incident given by Mr Everson. Inspector Toole 1. Inspector Toole created the Improvement Notice issued to Miller on 30 October 2020 (PX 2, Tab 55). She gave evidence that she and Inspector Shepherd attended the Tamworth depot unannounced and found three forklifts moving in and out of the area where B-Double trailers were loaded. 2. Inspector Toole created the Prohibition Notices issued to Miller dated 4 November 2020 (PX 2, Tab 57). She and Inspector Shepherd had attended the site after the incident in which Mr Herden was injured. Inspector Toole took the photographs which were tendered (PX 1, Tab 8 and PX 3). Inspector Shepherd 1. Inspector Shepherd gave evidence that he assisted Inspector Toole in relation to her involvement at the Tamworth depot. 2. Inspector Shepherd was cross-examined about "a 3-metre exclusion zone". He agreed that such a zone was "a guide in terms of the directions of the measures to be taken" (Tcpt 42/24). He said that this was not a documented guide, but then he said that there was a traffic management guide that SafeWork had published and he thought the 3-metre exclusion zone was mentioned in that guide (Tcpt 42/35). There was no such guide tendered in evidence. 3. Inspector Shepherd said that his recommendation would be that if loads on a semi-trailer were to be strapped, then rather than relying on the forklift driver to observe the worker doing that job, his recommendation would be for the forklift driver to stop and move out of the location (Tcpt 43/45). 4. Inspector Shepherd was cross-examined about two SafeWork Inspection Reports dated 1 October 2020 and 9 October 2020. These were later tendered and became Exhibits DX 1 and DX 2). These documents contained the phrase "current traffic management plan in place within the workplace". Inspector Shepherd said that this was the observation made by Inspector Toole and recorded by her in the reports (Tcpt 47/40). Christopher Herden 1. Mr Herden was first employed by Doble Express Transport in 2017 as a truck driver. He also held a forklift licence. He used a forklift to load and unload his own truck. He also helped unload other trucks using a forklift. His job was to do local deliveries, which were mostly in Tamworth. 2. On the first day on the job he went out with another driver for half a day and was shown what to do. He was never shown any documents relating to the operation of forklifts. He did not recall being shown a copy of the work health and safety manual. 3. Mr Herden said that if a truck was heading out of town, he was sometimes involved in the loading of that truck, to get it out on the road as quickly as possible. If one worker was driving a forklift, then he would be helping strap the load by throwing the straps over the load as they were going on, via the forklift. This was the kind of work he was doing when he was injured on 4 November 2020. On that day Mr Herden was helping Mr Hill load Mr Hill's truck. Mr Hill had a pallet which would not fit into a small spot, so he asked Mr Herden to go looking for a smaller pallet which would fit into that position. Mr Hill's truck was in the parking area where it was usually loaded, at the side of the shed. To find a suitable pallet he had to walk to the other side of the shed where the pallets and the freight were stored against the wall. Mr Herden said that as he was looking for a pallet "I just got hit from behind by another forklift that was loaded" (Tcpt 54/34). 4. Mr Herden has been unable to work since suffering injuries in the incident at work. He said that he had been helping out by holding the straps and throwing them over the load from the right-hand side of the truck ie the side closest to the centre of the shed, rather than the side of the shed. 5. In cross-examination Mr Herden was asked whether he had an induction when he started work. He repeated his memory that it involved spending half a day in a truck driven by another worker. He said that he was not provided with an induction pack when he started work. The depot manager at the time he started was "Jamie". He recalled that Angela Mumma started working later as a depot manager. Mr Herden said that he was never shown where the loading and unloading of the trucks was to take place, but that he observed where it was done and it was just common knowledge. Mr Herden did the loading and unloading of his own truck, which was smaller than a semi-trailer, in the yard and not in the warehouse. 6. In cross-examination Mr Herden said that when the incident happened, Mr Hill was sitting on his forklift waiting for him to find the smaller pallet. Mr Hill was using the forklift to load his own truck. To that point Mr Herden had been helping Mr Hill with the straps over the load. Mr Herden was simply throwing the straps over the load, and they were going to be tightened after the trailer was fully loaded. 7. Mr Herden said that the forklift which struck him had nothing to do with the loading being carried on by Mr Hill and Mr Herden (Tcpt 69/18). Mr Herden said that he did not know where that forklift came from. 8. Mr Herden said that there were no markings on the floor to designate loading or unloading areas. Mr Herden agreed that toolbox talks were held from time to time. He could not recall traffic management plans being the subject of a toolbox talk. He could not recall Ms Mumma telling a toolbox talk that people could not walk around the depot where forklift traffic was happening. Mr Herden disagreed with the suggestion that there were designated walkways in the depot (Tcpt 73/5). Kevin Everson 1. When the incident happened in November 2020, Mr Everson was employed as a supervisor with Doble Express Transport. He decided on when trucks were to be loaded and which trucks were going out of the depot. By November 2020 he had been working in the depot for two or three years. When he first started the job he was told that he had to deliver freight to various places. He was told where the toilet was and where the lunchroom was. Mr Everson said that he never saw any documents concerning safe work procedures with forklifts. 2. The version of the incident which Mr Everson gave was that Mr Hill was on a forklift with a pallet. Mr Hill was driving around the pallet which was on the floor of the shed, trying to find the name on the pallet. Mr Everson said that he pulled up his forklift while Mr Hill was doing that. Mr Everson said that he was hanging over the side of his forklift watching what Mr Hill was doing. Mr Everson said that Mr Hill moved off and that Mr Herden stepped out. Mr Everson struck Mr Herden with the loaded pallet on his forklift. The tines were only just off the ground at that point. 3. Mr Everson said that he was using the forklift to unload Mr Hill's truck. I reject the version of the incident put forward by Mr Everson. It is inconsistent with the version of the incident of both Mr Herden and Mr Hill, who corroborate each other. Both Mr Hill and Mr Herden said that they were involved in loading Mr Hill's trailer. They also said that Mr Everson was not involved in that process at all. 4. Mr Everson said that after the incident there was a major change to the use of forklifts. Walkways were marked where people could walk and there was a fenced-off area for forklifts to operate. 5. Mr Everson said that where the incident happened was adjacent to the area where trailers were loaded and unloaded. He said that it was not a designated loading area, it was just where the loading and unloading was done (Tcpt 88/2). 6. In cross-examination he said that he did not know what Mr Herden was doing on the day. He said "I think he might have been walking through" (Tcpt 90/44). This was supposition on the part of Mr Everson, and I reject this part of his evidence as well. 7. Mr Everson agreed that if there were any safety issues or concerns he knew he could go to Ms Mumma and raise them. If he did that, the issue would be discussed with her. If Ms Mumma thought that the issue was worth following through with the rest of the crew, she would call all the staff together first thing in the morning (Tcpt 93/33). 8. Mr Everson disagreed with the proposition that the 3-metre rule was raised in toolbox meetings. He said that what was spoken about was the need to "just stay clear of the forklifts" (Tcpt 95/41). Mr Everson said that he was not aware of a 3-metre rule being in place at the depot (Tcpt 96/25). He became aware of that rule after the incident. His understanding was that it was the pedestrians that had to keep three metres away, not the drivers (Tcpt 97/15). 9. Mr Everson agreed that it was not uncommon for workers to be on foot assisting with the loading of vehicles (Tcpt 98/5). He said that there was no prohibition on someone being there to assist with the loading of a trailer (Tcpt 98/45). It was not unusual to see someone there assisting the forklift driver by putting the straps over the pallets. He said that there was nothing wrong with that happening providing that the space between the forklift and the pedestrian was observed (Tcpt 99/45). 10. Mr Everson said that the area where the trailers were loaded wasn't a restricted area and there was nothing to stop anyone from walking through it. He said that people did walk into the area (Tcpt 100/25-45). 11. Mr Everson said that from time to time he did see Mr Doble at the Tamworth depot. He said that he used to walk around the place. He said that he saw Mr Doble there probably three or four times a year (Tcpt 107/45). Ronald Hill 1. Mr Hill was employed at the Tamworth depot, first as a semi-trailer driver, and later as a B-Double driver. He also had a forklift ticket. He started with Doble Express Transport in November 2016. His route was to drive to Inverell, Moree and then back to Tamworth. He could not recall receiving any safety documents regarding the operation of forklifts when he started. He thought that he had seen the DXT work health and safety manual. He had a copy of it but did not think that he ever read it (Tcpt 112/45). 2. Mr Hill said that from time to time when he was loading his truck with a forklift he had help from other workers. The other person would put the straps out of the way, help strap the load and help sort the pallets that were being loaded onto the truck. He had such assistance with both loading and unloading (Tcpt 113/26-36). 3. Mr Hill said that in the incident on 4 November 2020 he was loading his own trailer with a forklift. There was a mezzanine floor on the trailer and he had trouble fitting a pallet underneath the floor. Mr Herden was there helping him load the trailer. Mr Hill tried to get a pallet onto the truck and it wouldn't fit. He then asked Mr Herden to go and find a lower pallet which would fit under the mezzanine floor. He saw Mr Herden go over to the far wall looking for a smaller pallet. Mr Hill said that Mr Everson then drove a forklift through the roller door into the shed. He pulled up about halfway through the roller door, got off his forklift and went back out to speak to someone. He saw Mr Everson get back on his forklift and start driving forward. He called out to Mr Everson to stop. Mr Herden had his back to the forklift and was struck by the forklift driven by Mr Everson, which had a full pallet so high that Mr Everson could not have seen in front of himself (Tcpt 117/1-30). 4. After the incident Mr Hill attended a toolbox talk with Ms Mumma where safety procedures were discussed. 5. In cross-examination Mr Hill acknowledged that when he started at the company he had an induction, which involved being shown where the trailers were parked and where they were loaded and unloaded. Mr Hill denied that he was given any explanation about maintaining distance from a forklift (Tcpt 120/30). All he was told was "just be careful of forklifts" (Tcpt 121/20). 6. Mr Hill said that he was aware of a 3-metre rule at the depot, the three metres being the distance to be maintained between a forklift and a pedestrian (Tcpt 122/10). 7. Mr Hill described the process for loading trucks, which involved having assistance to throw the straps over the load. Mr Hill said that people did walk around in the forklift area, and he remembered once when he stopped and turned the forklift off and refused to move it until someone stopped walking around (Tcpt 124/5). Mr Hill said that Ms Mumma conducted regular toolbox meetings to reinforce the issue of the 3-metre rule. He agreed that everybody knew about the rule, but that this was after the incident. Mr Hill said that the rule was "never enforced" until after the accident (Tcpt 124/39). 8. He said that after the incident there were lines painted where pedestrians could walk or not walk (Tcpt 124/40). 9. Mr Hill was asked about the actions of a previous manager. He said that this manager did raise safety matters, but then "he would do exactly the same as everybody else" which included walking around the forklift area (Tcpt 125/35-45). 10. While Mr Hill acknowledged in cross-examination that Ms Mumma did raise issues of safety in toolbox meetings, he said "nobody was never not told to not go near the forklifts" (Tcpt 126/43). 11. It was put to Mr Hill in cross-examination that Mr Everson was also working by loading or unloading part of Mr Hill's trailer. Mr Hill said: "He wasn't anywhere near that trailer. He wasn't – had nothing to do with that trailer". (Tcpt 127/15) James Hayter 1. Mr Hayter started employment with DXT at the end of 2013, dealing with human resources, compliance and payroll. His compliance role initially concerned the chain of responsibility for heavy vehicles. He later moved into work health and safety and started updating the work health and safety manual. 2. Mr Hayter was shown the Improvement Notice from SafeWork dated 20 October 2017 (PX 2, Tab 54). He said that the document would have been given to him to deal with at the time. He created the traffic management plan for the Yennora depot and he would have sent a template out to other depots to ensure that they were up-to-date "because whenever one thing came through, it was always sent to everybody else" (Tcpt 131/1). Mr Hayter said that at this point he was not involved in the regular meetings which took place with the depot managers. 3. Anything to do with compliance he did by email, or he spoke to Mr Doble or Mr Collier about it. Mr Doble and Mr Collier were in the meetings with the depot managers, so they would convey what Mr Hayter had to say about compliance. 4. Mr Hayter did go to the Orange depot and the Beresfield depot, but these visits were largely to do with HR. 5. Mr Hayter was shown an email which he wrote on 10 November 2017 (PX 1, Tab 28). This was the email concerning toolbox talks. He said it was sent to every single depot manager, including all of the managers in Sydney. 6. Mr Hayter had his attention directed to that part of the email dealing with the forklift 3-metre rule. He said that he drafted that. Mr Hayter said that senior management and everybody who is a manager of a depot was included in that email. He said that he followed up with the depot managers whether they had carried out the steps discussed in the email. He did not remember whether every depot replied, but he thought that 90% of them did. Those who replied sent back copies of signed toolbox talks records to him. 7. Mr Hayter was taken to the Safe Work Procedure dated August 2017 (PX 1, Tab 15). He said that he did not produce that document, but he updated it at that time. He said it would have been issued out to all depots. 8. Mr Hayter was taken to the Job Safety Analysis (PX 1, Tab 29). Again, he said that he did not generate that document but he did update it in 2017. He said that it would have been sent out to all depots and he thought it was part of the induction process for every employee. 9. Mr Hayter said that when a toolbox talk was held concerning the 3-metre rule, he expected the form to be signed and sent back to him. He said that not all depot managers did this. He knew that they had a habit of keeping the records in their own depots. 10. Mr Hayter was then taken to the Improvement Notice for the Beresfield depot dated 30 September 2020 (PX 1, Tab 56). His attention was drawn to the fact that the notice said that there had been a contravention due to insufficient traffic management controls. Mr Hayter said that there was a booking made for lines at the depot to be repainted. He and another manager went to the Beresfield depot. Mr Hayter was sorting out the compliance side of the problems and the other manager was assisting with the managing of the depot, as the depot manager had departed. Mr Hayter said that he updated a traffic management plan that was on record at Beresfield. He said it wasn't particularly good, so he updated it, and put a new one on the wall when he got to Beresfield (Tcpt 136/25). 11. Mr Hayter was taken to the Improvement Notice relating to the Tamworth depot dated 30 October 2020 (PX 2, Tab 55). He said that Ms Mumma would have spoken to the SafeWork inspector who turned up and issued that notice. In relation to Tamworth, Mr Hayter said that he understood that a traffic management plan was in place but it was not up to standard. Mr Hayter never went to the Tamworth depot. He said: "The issue was when they moved depots, they never updated the plan to the new depot." (Tcpt 137/15) 1. Mr Hayter said that every depot should have had a picture of their traffic management plan on their wall. He did see a draft copy of a traffic management plan for Tamworth but he never saw the finished copy. He thought he saw the draft copy before Ms Mumma started at Tamworth, but he could not recall the date. He said that he started the actual traffic management plan for Tamworth while he was still doing the one for Beresfield. 2. Mr Hayter was taken to the Prohibition Notice relating to Tamworth for 4 November 2020 (PX 2, Tab 57). He said that they had already started drafting the traffic management plan before the incident happened. He did not know whether the traffic management plan had been completed between the notice on 30 October 2020 and the incident on 4 November 2020. He said that counsel would have to ask Ms Mumma. 3. Mr Hayter was then taken to the record of a toolbox talk for 6 November 2020 (PX 1, Tab 20). He said that this talk took place after everything was completed and finished. 4. Mr Hayter said that generally he received his instructions from Mr Collier if the matter was administration-based or from Mr Doble if the matter was operations-based. 5. Mr Hayter said that there were weekly management meetings, and that work health and safety was always an agenda item for those meetings. He said that if a safety matter needed to be dealt with, it was attended to quickly. There was never any resistance about rectifying issues of safety. Mr Hayter said he reviewed policies and procedures from time to time. If he found that a policy or procedure was out-of-date, he would update it. Some of the updated policies required the signature of Mr Doble at the bottom. About 90% of them did not need a signature at the bottom, so Mr Hayter just looked over them, and sent them out. 6. Mr Hayter said that Mr Collier and Mr Doble kept themselves informed about what he (Mr Hayter) was doing in relation to work health and safety. Not everything needed their approval. Often Mr Hayter would just go ahead and implement a safety measure which he thought appropriate. He would send information out to depots by email, or if it was physical objects like posters, he would send them to each depot with one of the trucks that were going there. He had an expectation that the depots would then implement his safety requirements. Mr Hayter said that he would check if they had received everything he'd sent and if they'd done what he said they should do (Tcpt 149/1-43). 7. At the management meetings, where Mr Doble was present, the implementation of new safety measures was raised and discussed. A task involving work health and safety was allocated either to Mr Hayter himself, or to the operations manager, who sat above the depot managers. 8. At the next meeting, there would be a discussion to check that the suggested safety measures had "been ticked off and implemented at the depots" (Tcpt 150/25). This was then minuted. Everybody would be satisfied that what had to be done had been done. Mr Hayter said that his understanding was that traffic management plans were in place at all the depots. When he received improvement orders or similar documents he would be "shocked" because he thought that everyone had a traffic management plan in place (Tcpt 151/5). 9. In cross-examination Mr Hayter confirmed that in around 2017 he updated the traffic management plan and created a template which he sent to all the depots. He said that each depot had to write down what every person did when they came into the depot, and they would then have a traffic management plan in relation to those movements. Mr Hayter said that there was a process of continuous improvement in relation to traffic plans, policies and procedures (Tcpt 151/45). 10. Mr Hayter said that by the phrase "traffic management plan" he understood that there should be a document, not just verbal instructions to people at the depot. He said that there should have been a sketch on every depot's wall. A sketch was part of a traffic management plan, so that there was written documentation to go with the sketch (Tcpt 153/32-154/9). 11. In cross-examination Mr Hayter was taken to an employee WHS Induction Training Record dated 25 February 2020 (Exhibit DX 3). At p 42 of this document was part of the traffic management plan, being a photograph. The next document was the traffic management plan specific to the Orange depot. This was based on a template which "the depot manager gave me, wrote out and I actually put it into electronic form" (Tcpt 159/28). At p 51 of the document was an acknowledgment that the drivers had to sign to confirm that they had read that particular form and been told about it. At p 55 of the document was the actual DXT traffic management plan template. 12. In cross-examination Mr Hayter was taken to an email dated 7 December 2017 and its attachments (DX 4). This was an email which Mr Hayter sent to Mr Hall (the Dubbo manager), Mr Kelly (the Tamworth manager) and Mr Whiburn (the Orange and Bathurst manager). The email confirmed the 3-metre rule and made a safety recommendation requiring barriers, and signs to be compliant. (Tcpt 160/20-35). 13. In cross-examination Mr Hayter said that in relation to this correspondence concerning traffic management plans and their update, the documents were sent either on direction from Mr Doble, or Mr Doble was kept informed. After SafeWork made inspections at the Tamworth depot, Mr Hayter would have informed Mr Doble about that matter. Mr Doble would have directed Mr Hayter to take the appropriate steps to ensure that there was compliance. At the time of the Tamworth inspections, Mr Hayter thought that traffic management plans were in place at all the depots. He did say that Tamworth was different, because it was a relatively new depot, "so with the paperwork they had, they may have had the old traffic plan still" (Tcpt 166/50). 14. Mr Hayter said that there were eight DXT depots: Dubbo, Orange, Bathurst, Tamworth, Wagga, Canberra, Yennora and Beresfield. Mr Hayter was aware that Mr Doble from time to time went and visited each depot. If Mr Doble went to a depot and observed a problem, he would make a phone call to Mr Hayter and say "can you fix this while I'm up here" (Tcpt 167/25). Mr Hayter was of the view that Mr Doble "took an active interest" in ensuring that work health and safety and compliance was attended to (Tcpt 167/42). 15. Mr Hayter in cross-examination again confirmed that he expected completed documents (including toolbox talks minutes signed by workers) to be returned to him. If a depot manager did not send them back, Mr Hayter would ask the operations manager (to whom he understood the depot managers directly reported) to get involved and get the depot managers to send the documents back (Tcpt 169/35). 16. Mr Hayter said that if at the management meetings anyone had raised a problem at a depot with workers not listening to the depot manager, then Mr Doble "would direct whoever was in charge of them to chase them up and get them to do it" (Tcpt 170/10). If there was something to do with a toolbox meeting which required urgent attention, Mr Doble would get involved and tell them to fix the problem (Tcpt 170/20). Angela Mumma 1. Ms Mumma started at the Tamworth depot in June 2020 as the branch manager. 2. In relation to the incident in which Mr Herden was injured on 4 November 2020, Ms Mumma conducted an investigation. In the forklift area where the incident occurred, there were no markings relating to forklift areas or pedestrian areas (Tcpt 177/15). 3. Ms Mumma said that even prior to the incident there was a traffic management plan in development. It was finalised and enforced after the incident (Tcpt 177/45). 4. Ms Mumma was taken to a hand-drawn plan which she had created (PX 1, Tab 21). She said that this formed part of the traffic management plan. There was no previous drawing of that kind at the depot. Nor was there a document headed "traffic management plan" at the depot prior to the incident (Tcpt 178/10). 5. By reference to the plan, Ms Mumma indicated that prior to the implementation of the traffic management plan, workers on foot could enter the rectangular area marked on the plan where there was a truck. Someone could go through from the "man shed door" into the forklift area. On the plan Ms Mumma indicated that the pink/purple line was a physical barrier consisting of a yellow chain on bollards, later replaced by a row of flags on a string. This was a physical barrier strung from behind the truck to the end of the man shed door to stop pedestrians walking into the forklift area. This barrier was to indicate that there was a forklift loading area and that people were not to walk into that area. This physical barrier was created after the incident, and is marked on the proposed traffic management plan. The green lines on the plan indicate the proposed walkways (Tcpt 179/1-36). 6. Ms Mumma said that it took some time to get a line marker out to the depot to have the proposed lines painted to mark the walkways. 7. After the incident the involvement of a pedestrian assisting the driver to load a vehicle by a forklift was discontinued. Prior to the incident the work that Mr Herden was doing when he was injured was "not unusual" (Tcpt 180/40). 8. Ms Mumma held a toolbox talk on 6 November 2020 to instruct the drivers and the workers about the new traffic management plan. 9. Ms Mumma was shown a tax invoice from Bunnings, relating to the purchase of self-adhesive materials, a sign and some spray paint. Ms Mumma went to Bunnings and purchased these herself on 4 November 2020 (PX 2, Tab 46). Ms Mumma was later reimbursed for this purchase. The spray paint was used to mark the lines on the ground until a line marker could attend. This was done on the day of the incident. Ms Mumma was also shown an invoice from SafetyQuip relating to the purchase of plastic chain hazard barriers and portable bollards. Ms Mumma purchased those on the day after the incident and was reimbursed for them (PX 2, Tab 46). 10. Ms Mumma arranged for Mr Boreham from Total Linemarking to provide a quote dated 2 December 2020 to mark the lines indicated on the traffic management plan on the ground at the depot (PX 2, Tab 47). She received that quote and sent it to Mr Hayter to obtain authority to spend the money doing the line marking. Mr Boreham came out to the depot early in 2021 and did the spray-painting of the lines. 11. Ms Mumma confirmed that she conducted a toolbox talk on 6 November 2020 regarding forklift safety. (PX 1, Tab 20). She gave a copy of her toolbox talk notes to everyone who attended the meeting and every new employee who started after that date (Tcpt 185/10). To develop the written traffic management plan, she had input from the drivers and workers at the depot. Ms Mumma said that it was usual for her to keep a record of all toolbox meetings and have the minutes signed off. 12. Ms Mumma was taken to the Prohibition Notice issued as a result of the incident (PX 2, Tab 57). In order for SafeWork to lift the Prohibition Notice, Ms Mumma provided her traffic management plan. After that was provided on 27 November 2020, the Prohibition Notice was lifted. Ms Mumma said that by ceasing the work practice of pedestrians being in the vicinity of mobile plant, she eliminated the risk of pedestrians being struck by mobile plant while in operation (Tcpt 187/20). 13. Ms Mumma recalled Mr Doble coming to the Tamworth depot once or twice. Mr Collier came there when she first started, and then again with Mr Doble on a later date. 14. In cross-examination Ms Mumma was asked about the introduction she had to the depot, which was given to her by the outgoing manager. She said that she could not recall a specific discussion about the 3-metre rule. However, she was aware that there was a system in place at the Tamworth depot with respect to the 3-metre rule. She did not specifically raise the matter in these terms when speaking to the workers at Tamworth, but she did speak to them "about not walking through where the forklifts were operating" (Tcpt 199/44). She knew that there had to be a distance maintained between a pedestrian and a forklift. That was so where the people were walking around where the forklifts were in operation, or where somebody was on foot assisting the forklift driver to do a particular task (Tcpt 200/1). 15. Ms Mumma said that there were lots of disagreements with the workers about whether or not they should be in the loading zone while on foot. She said "They wanted to strap the freight while the fork was loading, or pick their freight out from the, like, staged freight". However, she had told the drivers and the workers not to do it that way and to maintain distance (Tcpt 202/35-203/10). 16. Ms Mumma confirmed in cross-examination that she regularly spoke to Mr Hayter about work health and safety matters, and about improving and implementing safety systems. She said that Mr Hayter was not heavily involved in the traffic management plan that she implemented after the incident. Mr Hayter had sent her a template, but it did not suit the layout of the Tamworth shed (Tcpt 204/5). The eventual traffic management plan provided to SafeWork in November 2020 was the result of discussions with her team at Tamworth, as well as discussions with SafeWork. The discussions with SafeWork were in train prior to the pre-incident visit by SafeWork to the depot (Tcpt 204/26). 17. Ms Mumma said that she did not raise with Mr Hayter the line marking issue because she did not then know where she wanted to mark the lines. She had started to have discussions with employees about how best to come up with a traffic management plan, which included discussion about where to mark the lines. She was seeking consultation with the drivers and workers. There were several drafts of the traffic management plan. She did not discuss the drafts with Mr Hayter. She had tried to make Mr Hayter's template work, but it did not suit the layout of the shed (Tcpt 204/48-205/28). 18. When Ms Mumma inducted new workers onto the site, she said that they could not walk into the loading zone, but she did not remember using the term "3-metre rule". She did say you have to keep your distance from the forklifts. 19. There were weekly meetings conducted by Microsoft Teams with the depot managers. Mr Hayter was part of those meetings. Any specific work health and safety matters were discussed with Mr Hayter during those meetings. Ms Mumma had no difficulties picking up the phone and calling Mr Hayter if she had any concerns about safety-related matters. Matthew Collier 1. Mr Collier was employed by DXT in 2020 as its general manager. He looked after the commercial aspects of the business. If there was a work health and safety issue raised with either Mr Doble or Mr Collier, then they would deal with it. Such issues were raised by Mr Hayter. 2. Mr Collier did travel to Tamworth and to the Beresfield depot. He said that he went on a number of occasions to Tamworth. 3. In cross-examination Mr Collier said that the depot managers reported to an operations manager. He recalled the name Serge, who was a regional operations manager. In 2020 when Ms Mumma was the depot manager at Tamworth, there was a regional operations manager in place. He thought that the management structure document tendered by the prosecutor was incorrect in this regard. At that time if any depot manager had a procedural, operational or customer issue, they went to the regional operations manager about it. If a depot manager had a concern about a compliance issue, they would go to Mr Hayter (Tcpt 216/10). 4. Mr Collier was part of the regular management meetings. So was Mr Hayter. These meetings discussed instructions that Mr Hayter had given to depot managers to follow-up on toolbox talk sessions. Safety-type matters were always dealt with by Mr Hayter at these meetings. The next meeting would include a follow-up to discuss whether there were any outstanding items from the previous meeting (Tcpt 217/50). 5. There were also senior management meetings, where work health and safety was a constant agenda item. Each participant in the meeting, including Mr Hayter, provided an updated report on their area of responsibility. From time to time Mr Hayter raised matters that had been raised with him by depot managers or other people. These were matters which needed to be discussed or which needed to be rectified (Tcpt 219/35). Mr Collier said that there was never a budget in relation to work health and safety, and there was never any pushback in relation to expenditure on health and safety. Separate Consideration re Miller and Doble 1. Miller and Mr Doble are separately charged with different offences. Their joint trial has taken place as a matter of administrative convenience, but the case against each must be considered separately. Miller: The Risk to Workers 1. Paragraph 13 of the Miller Summons described the risk to workers, in particular Mr Herden, as the risk of suffering serious injury or death as a result of being struck, or otherwise impacted, by a forklift while the workers were undertaking duties associated with the loading of transport vehicles in the loading/unloading area at the Tamworth premises. 2. The evidence clearly establishes that this risk was present at the Tamworth depot. Wherever there were pedestrians and forklifts operating in the same physical area, the risk of an impact was very real. The risk was indeed recognised by Miller, but the only precaution it took was adopting a "3-metre rule", which for reasons set out below, I regard as totally inadequate to ensure safety. Miller: Reasonably Practicable Measures 1. The phrase "reasonably practicable" is defined in s 18 of the WHS Act. It requires the court to take into account and weigh up all relevant matters, including those listed in (a)-(e) in s 18. The Likelihood of the Risk Occurring – s 18(a) 1. The risk which existed at the Tamworth depot is proved by the evidence. There was a not insubstantial risk that any person working on foot in the same area as a forklift could be struck and injured by that forklift. As the guidance material in this case states, collisions between pedestrians and forklifts are unfortunately very common in industry. The Degree of Harm that Might Result from the Risk – s 18(b) 1. It is obvious that death or serious injury could result if a worker on foot was struck by a forklift, particularly a laden forklift. What the Defendant Knew or Ought Reasonably to Have Known – s 18(c) 1. The General Guide for Industrial Lift Trucks dated July 2013 published by Safe Work Australia (PX 2, Tab 61) stated that forklifts must not collide with pedestrians. If there is a possibility of collision with a pedestrian, then the PCBU must set up the workplace so that forklifts and pedestrians "are separated and their paths do not cross". 2. The Forklifts Induction Sheet for Owners and Operators dated July 2014 published by Safe Work Australia (PX 2, Tab 63) stated as follows: "Most forklift incidents involve pedestrians. Forklift trucks must not collide with pedestrian and other powered mobile plant. You should make sure there are clear, separate pathways for pedestrians and forklifts." 1. This guidance material, which pre-dated the incident by several years, means that Miller ought reasonably to have known that nothing short of total separation of forklifts and pedestrians was adequate to ensure safety. This guidance material not only warned of the risk, but also advised about the only sure way of eliminating the risk. Availability and Suitability of Ways to Eliminate or Minimise the Risk – s 18(d) 1. As recited above, the guidance material only proposed one way to eliminate the risk, which was to separate forklifts and pedestrians and not allow their paths to cross. The Cost Associated with Available Ways of Eliminating or Minimising the Risk – s 18(e) 1. Apart from the receipts from the hardware store, and the cost of line marking, there was no evidence concerning the cost of taking appropriate measures to separate forklifts and pedestrians, as Miller did immediately after the incident. There was no evidence that there was any particular cost involved in having forklifts operate in an area where pedestrians were excluded. In any event, the measures introduced by Miller after the incident meant that pedestrians could still assist in the loading of trailers, but only by standing on the side of the trailer opposite to the zone where the forklifts were working, instead of standing in the forklift zone as had previously been the practice. Thus, there would not seem to have been any cost to Miller, apart from the trivial cost of marking and delineating the forklift area. Miller: Reasonably Practicable Measures as Pleaded Separating Forklifts and Pedestrians – Subparagraphs 14(a), (b), (c) and (d) of the Summons 1. These four measures all fall into the category of separating forklifts and pedestrians, and excluding pedestrians from a forklift zone. All of these steps were taken immediately after the incident by Miller, and ought to have been in place before the event. These four steps are in accordance with the guidance material and quite clearly eliminate the risk, as is required under the WHS Act. Miller should have taken each and every one of these steps before the incident. 2. Not only should Miller have known to take the steps, but it did know that such steps were required by reference to the pre-incident inspections of the Yennora depot and the Beresfield depot, where traffic management plans which were inadequate had to be updated. 3. I find that the measures pleaded in par 14(a), (b), (c) and (d) of the Summons were reasonably practicable steps which Miller should have taken, as they would have enabled Miller to comply with its duty under the WHS Act to ensure safety. 4. I find that the steps pleaded in par 14(a), (b), (c) and (d) of the Summons, in relation to ensuring that forklifts and pedestrians were not at risk of collision, did constitute reasonably practicable measures which Miller should have taken. The 3-Metre Rule - Subparagraph 14(f) of the Summons 1. Paragraph 14(f) of the Summons pleads that Miller should have made sure that the 3-metre rule was enforced at the Tamworth depot. There was no clarity in the evidence about what the 3-metre rule actually meant. It was a phrase used from time to time, but there was no document to state what the rule was. At best, it seems to have been an exhortation to workers on foot to stay at least three metres away from a forklift. That unsophisticated "rule" amounted to little more than saying to the workers on foot "look out for yourself". This is always an inadequate precaution to take, where there are reasonably practicable means of ensuring safety. 2. There was no evidence as to how Miller could have enforced the 3-metre rule. This would have required someone to be observing the forklift area all the time, and somehow warning people who strayed within the 3-metre distance from a forklift that they were in danger. Given the speed at which forklifts were driven, and given that sometimes they were driven with obscured vision, even having a full-time observer would not have meant that safety was ensured. 3. I find that the measure pleaded in par 14(f) of the Summons was not a step which Miller should have taken, as it would have been completely inadequate to comply with its duty under the WHS Act to ensure safety. Implementing and Enforcing a Traffic Management Plan – Subparagraph 14(g) of the Summons 1. This should have been done before the incident. Miller had already been warned in 2017 that a traffic management plan was required at the Yennora depot and again in 2020 at the Beresfield depot. Mr Hayter gave evidence that while there could well have been a traffic management plan in place in Tamworth, when the Tamworth depot was moved to the location where the incident occurred, there was no updated traffic management plan. The evidence clearly shows that there were no appropriate line markings on the floor of the depot and there were no physical barriers to separate forklifts and pedestrians. Mr Hayter gave evidence that there should have been a plan of the depot, showing traffic management areas, on the wall of the depot. There was not. Nor was there a written document, part of which would have been the plan, prior to the incident. Ms Mumma gave evidence that discussions had been held with SafeWork and that she was consulting personnel at the depot in order to come up with a traffic management plan, when the incident did occur. 2. Given that, three years before 2020, Miller was informed about the inadequate traffic management plan at the Yennora depot, Miller should have made sure that each depot created or updated a traffic management plan. Miller did not do so. 3. I find that the steps pleaded in par 14(g) of the Summons, in relation to having and implementing a suitable traffic management plan, did constitute a reasonably practicable measure which Miller should have taken. Induction – Subparagraph 14(h) of the Summons 1. The inductions provided to Mr Herden, Mr Hill, and Mr Everson, were not formal and systematic. Nor did they include any instruction about safety matters. All three workers were experienced transport drivers, and all they were given was instructions about how and where they had to deliver loads. 2. A proper induction would have included speaking to them about safety matters. That of course would only have been useful, if Miller had taken the reasonably practicable steps discussed above, which would include separating forklifts and pedestrians, and having an appropriate traffic management plan in place. 3. I find that the step pleaded in par 14(h) of the Summons, in relation to conducting an induction in relation to safety and a traffic management plan, did constitute a reasonably practicable measure which Miller should have taken. Supervision – Subparagraph 14(i) of the Summons 1. It is not enough to create safe work procedures. PCBUs must then supervise workers to ensure that safety measures which have been put in place are followed. Once again, supervision would only be worthwhile if workers were being supervised to ensure that they were complying with appropriate safety measures and an appropriate traffic management plan, neither of which were in existence at the Tamworth depot when the incident occurred. Miller should have taken the reasonably practicable steps pleaded in the Summons, as well as supervising workers to ensure that they complied with those reasonably practicable measures. 2. I find that the step pleaded in par 14(i) of the Summons, in relation to supervising compliance with a safe system of work, did constitute a reasonably practicable measure which Miller should have taken. Conclusion on Reasonably Practicable Steps 1. I find that the prosecution has proved the case against Miller pleaded in subpars 14(a), (b), (c), (d), (g), (h) and (i) of the Summons. I am satisfied beyond a reasonable doubt that Miller failed to comply with its health and safety duty in these regards. Miller Causation: Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury 1. The relevant question on causation is not whether the failures of the defendant were the cause of the injury to Mr Herden, but whether the act or omission of the defendant was a substantial or significant cause of Mr Herden being exposed to the risk of injury – Bulga Underground Operations at [127], [130]. 2. That question must be considered in the light of the objects of the WHS Act and the provision contained in s 19(1), namely to ensure the health and safety of workers – Bulga Underground Operations at [129]-[130]. 3. As recited above, I have found that Miller breached its health and safety duty by failing to take the measures pleaded in the Summons and identified above. If the forklifts and the pedestrians were separated, then Mr Herden would not have been in the forklift area and would not have been struck by the forklift driven by Mr Everson. I find that a substantial cause of Mr Herden being exposed to the risk of serious injury was the failure by Miller to take the pleaded reasonably practicable steps, together with inducting workers into those steps and supervising them to make sure that the safety system was followed. Taking the steps which Miller did immediately after the accident would have eliminated the risk. 4. I am satisfied beyond a reasonable doubt that the breach of duty by Miller exposed Mr Herden to a risk of death or serious injury. Miller: Conclusion 1. I find that the defendant Miller committed a Category 2 offence pursuant to s 32 of the WHS Act because: 1. Miller owed the worker Mr Herden a health and safety duty under s 19(1) of the Act. 2. Miller failed to comply with that duty. 3. The breach of duty by Miller exposed Mr Herden to a risk of death or serious injury. 4. I find the offence pleaded in the Miller Summons proved beyond a reasonable doubt. I will hear the prosecutor on sentence. Miller: Orders 1. The orders of the court in relation to the Miller Summons are: 1. The allegations set out in par 14(a), (b), (c), (d), (g), (h) and (i) in the Summons have been proved beyond reasonable doubt. 2. I find the defendant Miller Logistics Pty Ltd guilty. 3. The matter will be listed for sentence hearing on a date convenient to the prosecutor. Prosecution Case Against Doble: Consideration 1. As recited above, the four elements of a s 27 offence are: 1. There is a corporate PCBU which has a duty or obligation under the WHS Act. That was not a matter in dispute in the present case, and in any event, for reasons set out above I have found that Miller had a duty or obligation under the WHS Act. This element is established beyond a reasonable doubt. 2. The accused individual is an officer of the PCBU. Mr Doble was the sole director of Miller, and thus he falls within the definition of "officer". This element is established beyond a reasonable doubt. 3. The accused has failed to exercise "due diligence" to ensure that the PCBU complies with that duty or obligation. This was the key issue in the prosecution of Mr Doble. I deal with it at length below. 4. The failure to exercise due diligence exposes an individual to a risk of death or serious injury. For reasons set out above, I have held that Mr Herden was exposed to a risk of death or serious injury. If there was a failure to exercise due diligence by Mr Doble, then his failure exposed Mr Herden to that risk. If on the other hand there was no failure to exercise due diligence, then Mr Doble is not guilty of exposing Mr Herden to a risk of death or serious injury. 1. Thus, this case turns upon whether Mr Doble failed to exercise due diligence to ensure that Miller complied with its duty or obligation under the WHS Act. Doble: Failure to Exercise Due Diligence 1. As recited above, the Doble Summons pleads that Mr Doble failed to exercise due diligence in two respects: 1. By failing to ensure that Miller had available for use, and used, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking. Par 16(1) of the Summons pleads that Mr Doble should have carried out his duty of due diligence by "requiring, instructing or directing" Miller to take the reasonably practicable steps which Miller should have taken to ensure safety. 2. By failing to verify that one or more of the resources or processes were provided, implemented and used by workers when undertaking work for or on behalf of Miller. 1. As pointed out above, these two allegations of failure to exercise due diligence pick up the words of s 27(5)(c) and s 27(5)(f) of the WHS Act. 2. Counsel for the defendant submitted that the Doble Summons was a defective pleading, as it alleged an offence not known to the law. I reject that submission. The Doble Summons does not conflate the duty imposed on a PCBU with the duty imposed on an officer. The Doble Summons recognises that while a PCBU may fail to comply with its s 19 duty under the WHS Act (which is not an essential element of a s 27 charge), the breach of the WHS Act alleged against the director was a failure to take due diligence by two pleaded means ie ensuring the PCBU had appropriate resources and processes, and verifying that those resources and processes were implemented. Having said that, the Doble Summons does not actually plead what Mr Doble should have done to discharge his duty of due diligence. To put it in terms of the legislation, the Doble Summons does not particularise the ways in which Mr Doble failed to exercise due diligence, beyond essentially saying that he should have done something to ensure that Miller complied with its duty. What that something was is not elucidated in the Doble Summons or in the opening submissions (Tcpt 29/35-45) or closing submissions (Tcpt 255/35 – 264/7) for SafeWork. 3. The court is required to make findings of fact based upon the evidence concerning the provision by Mr Doble of resources and processes, and the verification that such resources and processes were implemented. 4. The evidence in this regard primarily comes from Mr Hayter. His evidence stated the following: 1. After commencing with DXT at the end of 2013, Mr Hayter was responsible, inter alia, for work health and safety. He commenced updating the work health and safety manual. 2. In 2017 Mr Hayter created a traffic management plan for the Yennora depot and sent this out as a template to other depots to ensure that their traffic management plans were up-to-date. 3. When he was first employed, anything to do with "compliance" (meaning work health and safety) was either done by email by Mr Hayter, or he spoke to Mr Doble or Mr Collier about work health and safety matters. When Mr Hayter started, he knew that Mr Doble and Mr Collier had regular meetings with the depot managers so that they could convey to the managers what Mr Hayter had to say about compliance. 4. Mr Hayter generally received his instructions from Mr Collier if the matter was administration-based or from Mr Doble if the matter was operations-based. 5. There were weekly management meetings. Work health and safety was always an agenda item for those meetings. 6. If a safety matter needed to be dealt with, it was attended to quickly. There was never any resistance about rectifying issues of safety. 7. Mr Hayter said that if he found that a policy or procedure was out-of-date, he would update it when he reviewed policies from time to time. 8. Mr Doble and Mr Collier kept themselves informed about what he (Mr Hayter) was doing in relation to work health and safety. Not everything needed their approval. Often Mr Hayter would go ahead and implement a safety measure which he thought appropriate. 9. At the management meetings where Mr Doble was present, the implementation of new safety measures was raised and discussed. A task involving work health and safety was allocated either to Mr Hayter, or to the operations manager, who sat above the depot managers. 10. At the following management meeting, there would be a discussion to check that the suggested safety measures had been "ticked off and implemented at the depots". This was then minuted. Everybody would be satisfied that what had to be done had been done. 11. When Mr Hayter sent his template traffic management plan to all the depots in 2017, he assumed that traffic management plans were in place or would be put in place. He said that there was a process of continuous improvement in relation to traffic plans, policies and procedures. 12. When correspondence was sent concerning traffic management plans and their update, Mr Doble was kept informed. 13. After SafeWork made its inspections at the Tamworth depot, Mr Hayter would have informed Mr Doble about those inspections. 14. Mr Doble would have directed Mr Hayter to take the appropriate steps to ensure that there was compliance. 15. Mr Doble from time to time went and visited each depot. 16. If Mr Doble went to a depot and observed a problem, he would make a phone call to Mr Hayter and ask him to fix it. 17. Mr Hayter formed the view that Mr Doble took an active interest in ensuring that work health and safety and compliance was attended to. 18. At management meetings if anyone raised a problem with workers at a depot not listening to the depot manager, Mr Doble would direct whoever was in charge of them to chase them up and get them to do what they were instructed. 19. If there was something to do with a toolbox meeting which required urgent attention, Mr Doble would get involved and tell them to fix the problem. 1. Mr Doble was the managing director and indeed the sole director, of Miller. That does not mean that he had to do everything that the PCBU had to do to ensure safety. The WHS Act required him, as pleaded, to have processes and resources in place to ensure that the PCBU complied with its duty under the WHS Act. Miller was a medium-sized operation. It had eight depots spread throughout the State. It used a large number of transport drivers operating over a wide area. Unlike a one or two person business (such as the one Judge Scotting considered in Hetherington), a managing director in the position of Mr Doble cannot know everything that is going on at any given moment. To run a corporation there must be a level of delegation. 2. The evidence in the case shows that Mr Hayter was specifically employed to deal with work health and safety. This required Mr Hayter to not only update policies and procedures, but to deal with any issues which arose from time to time. There was no suggestion in the evidence that Mr Hayter was anything other than conscientious. There was no suggestion in the evidence that Mr Doble had any reason not to place confidence in Mr Hayter carrying out his work health and safety duties. The engagement of Mr Hayter was the primary process or resource which Mr Doble used to ensure that the PCBU carried out its duty under the WHS Act. 3. The fact that Mr Hayter failed to mandate the separation of forklifts and pedestrians is a failure by the PCBU. Of itself it is not a failure by Mr Doble to exercise due diligence. 4. Mr Doble was not a "hands-off" director in relation to work health and safety. The topic of work health and safety was listed on the agenda for every management meeting. Mr Hayter kept Mr Doble informed about matters of work health and safety at those meetings and contacted him from time to time to inform Mr Doble about safety matters and to receive instructions from Mr Doble about those matters. 5. Mr Doble was not "hands-off" in relation to the depots, and he visited each depot from time to time. If he observed a problem at a depot he would ring Mr Hayter and get Mr Hayter to fix it straight away. Mr Doble took an active interest in ensuring that work health and safety and compliance were attended to. 6. The prosecutor in a due diligence prosecution has a difficult task in that it must prove a negative. The evidence of Mr Hayter suggested that not only were things discussed with Mr Doble, but that management committee meetings were minuted. In those circumstances, if the minutes did not reflect what Mr Hayter said in his oral evidence, one would have expected the prosecutor to tender those documents and make a submission that the lack of entries concerning work health and safety in the management minutes demonstrated that due diligence was not being exercised by Mr Doble. No such documents were tendered. 7. Mr Hayter and Mr Collier both said that if there was a work health and safety matter which required attention, there was no budgetary constraint in fixing a safety problem and there was never any pushback by Mr Doble in relation to expending money on health and safety. 8. The listing of health and safety matters at management meetings as an agenda item, and the follow-up at the next management meeting to check that steps had been taken as discussed in the previous meeting, constitutes verification that the resources and processes provided to the PCBU were being implemented. 9. The evidence shows that Mr Doble put in place a system to identify and manage the risks to safety at the depots. The evidence shows that Mr Doble addressed safety matters at board meetings and required the work health and safety manager to report on safety matters and to monitor safety as an issue. The evidence also shows that Mr Doble reviewed whether or not safety matters drawn to his attention were being followed up. 10. The prosecution must prove, beyond a reasonable doubt, that Mr Doble failed to exercise due diligence to ensure that the PCBU complied with its separate duty under the WHS Act. Mr Doble was not obliged to take all reasonably practicable measures which had to be taken by the PCBU, and he was not required to ensure the health and safety of workers. 11. In light of the evidence reviewed above, and the lack of any evidence to cast doubt upon what Mr Hayter said concerning the involvement of Mr Doble in matters of health and safety, I have come to the view that SafeWork has not proved the third element of the offence. The prosecutor has not proved beyond a reasonable doubt that Mr Doble failed to exercise due diligence to ensure that Miller Logistics Pty Ltd complied with its duty or obligation under the WHS Act. 12. This means that consideration of the fourth element of the offence charged against Mr Doble (causation) is unnecessary. Doble: Orders 1. The orders of the court are: 1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 3. The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders, or argument on the proposed questions of law to be stated to the Court of Criminal Appeal. ********** 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: 08 March 2024