Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 PROSECUTOR WorkCover Authority of NSW (Inspector Vierow) PARTIES : DEFENDANT Ridge Consolidated Pty Ltd FILE NUMBER: 3877 of 1999 CORAM: Peterson J CATCHWORDS : Occupational Health & Safety - health, safety and welfare at work - section 15 - not guilty plea - reversing tip truck - buddy system - adequate induction process - charge made out to extent of failure to provide a person to direct and guide drivers - section 53 defence - circumstances not reasonably foreseeable - impracticable to make provision for - defendant not guilty - charge dismissed - costs awarded to defendant LEGISLATION CITED : Occupational Health and Safety Act 1983 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 per Watson J Cullen v State Rail Authority (NSW) (1989) 31 IR 207 per Fisher CJ State Rail Authority (NSW) v Dawson (1990) 37 IR 110 CASES CITED : Drake Personnel v WorkCover Authority of New South Wales (1999) 90 IR 432 WorkCover Authority (NSW) (Inspector Guillarte) v Genner Constructions Pty Ltd (Unreported, Kavanagh J, 6 June 2000) Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) NSWIRComm 267 WorkCover Authority (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR362 per Hill J HEARING DATES: 11/05/2001 DATE OF JUDGMENT: 02/08/2002 PROSECUTOR Ms McManus of Counsel AGENT WorkCover Authority of New South Wales SYDNEY LEGAL REPRESENTATIVES: DEFENDANT Mr F Corsaro SC SOLICITOR Colin Biggers & Paisley SYDNEY JUDGMENT: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 8 FEBRUARY 2002 Matter No. IRC3877 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR VIEROW) v RIDGE CONSOLIDATED PTY LTD Prosecution under s15(1) of the Occupational Health & Safety Act 1983. JUDGMENT 1 On 28 August 1997 an accident occurred causing fatal injuries to a road worker on the M4 motorway, west of Parramatta. That incident has led to a charge being laid under s15(1) of the Occupational Health and Safety Act 1983 ('the Act') against Ridge Consolidated Pty Ltd, a contractor to State Wide Roads M4 Pty Ltd. 2 The charge is that the defendant did fail "to ensure the health safety and welfare at work of all its employees and in particular George Tseganis in that it failed to provide or maintain systems of work, for the coordination and direction of motor vehicles and pedestrians at the said construction site, that was safe and without risks to health, contrary to Section 15(1) of the Occupational Health and Safety Act, 1983, in such case made and provided." The particulars provided by the summons of the charge are as follows: The defendant failed to designate and implement a Traffic Control person responsible for guiding and directing drivers reversing motor vehicles and to warn pedestrian employees of the impending approach of those vehicles. As a result of the said failure, George Tseganis was fatally injured. 3 The defendant has pleaded not guilty to the charge and ultimately submitted that if the prosecutor has made out a case on the evidence as a whole, the defendant is entitled to the benefit of the defence provided by s53 of the Act. The defendant admits the following facts: 1. Inspector Maurice Vierow was the informant; 2. Inspector Vierow was an Inspector duly authorised to institute the proceedings before the Court; 3. Ridge Consolidated Pty Limited (ACN 008 589 437) (the Defendant) was an incorporated company with its registered office located at 134 Gladstone Road, Fyshwick in the Australian Capital Territory; 4. The Defendant was an employer; 5. The Defendant's place of work was at a road construction site at the M4 Motorway between Greystanes Road and Clunies Ross Road overpasses, at Prospect NSW; 6. The Defendant employed George Tseganis; 7. The Defendant subcontracted Mr Charles Joseph Mizzi to perform work at the road construction site at the M4 Motorway between Greystanes Road and Clunies Ross Road overpasses, at Prospect NSW. 4 Otherwise the relevant facts are as follow. The defendant was subcontracting the widening of the M4 motorway west of Parramatta at a point approximately 200 metres short of the Clunies Ross Road overpass. The median area between the east and westbound carriageways had been fenced off with concrete barriers and work was proceeding between them. The work involved the levelling of the ground to a measured distance by use of a grader. After the grader had piled up graded material in a "windrow" a backhoe would collect the material and load it into a tip-truck which would then carry it to a tipping site. In the instant case the tip-truck involved was required to reverse, between the concrete barriers, for a distance of some 200 metres or more from the point of load to the point of tip. Reversing was necessary because there was insufficient room to turn the vehicle around. 5 On the day involved in the charge the defendant was utilising a lorry owner driver, Mr. Mizzi, whose tip-truck was being used in this way. Prior to the accident the driver had taken two loads in this manner to the tip. While he was undergoing his third load, he unknowingly ran over a labourer, George Tseganis who, with another labourer, John Watson, was measuring the depth of the road, but this in the path of the reversing truck. 6 One aspect of the defendant's safety procedures involves an induction process which requires employees, particularly those working in pairs as were Messrs Watson and Tseganis, to look out for each other, particularly in respect of vehicles and other heavy machinery in their vicinity. This is referred to as the 'buddy' system. Mr. Watson said in evidence that there was no difference, on other major jobs on which he had worked, from the way traffic was controlled on the M4 job. That is part of the induction and everyone is informed before the day's work proceeds, that anyone in the vicinity where there is heavy machinery moving around, they are to be aware and to work in pairs and that each one takes care of the other person. 7 Mr Mizzi's evidence on this aspect was: Q. Over the years when you have worked on civil jobs, the way that work is handled, and the safety of workers is ensured, is that firstly the truck driver looks out for what is happening on site? A. That is right. Q. You were told to do that on this job? A. Yes. Q. And you did it? A. Correct. Q. In addition, the workers are told to get out of the way of trucks? A. That is correct, yes. Q. And that is how it is ordinarily handled on a building job where you were working. You agree? A. That is right. Q. There is no special system or procedure in place on jobs that you have worked on like this? A. No. Q. You are agreeing with me. Is that correct? A. Yes. 8 Mr Watson's task was to take a string line, tied to a peg on one side of the new carriageway, to the far side, thus enabling Mr Tseganis to measure the depth between the tautly-held string line and the road surface below. If further grading was necessary the depth measurement would then be spray painted upon the road surface for the grader driver to follow. 9 It was while Mr Tseganis was stooped spray painting a measurement on the road (having regard for the evidence of Mr. Mills and the fact the deceased was found with a spray can in his hand after the accident) that he was placed in jeopardy by the arrival of the loaded vehicle reversing along the way. 10 Mr Watson is a person who is certified by the Road Traffic Authority as a Traffic Controller for RTA roadworks. This entitles him to stop and start traffic proceeding past or through roadworks sites. He is also engaged from time to time as a "tip man", a person whose function it is to guide tip-trucks while they are tipping their loads. He has had considerable experience on road construction, having worked for about eight years with the Abigroup on major bypass road constructions such as the Jugiong and Yass Bypasses and the M2 Freeway. However, as to the relevance of that role, his evidence in cross-examination was: Q. In your estimation was your position such that a driver in the cab would have been able to see you looking out the left hand? A. I don't think so. Q. Why didn't you get in a position where the driver could see you? A. I could see that there was no danger for George if he had carried out his instructions, what I asked him to do, come up with me. Q. Do I take it you are saying you do not think it necessary to get in a position where you had to signal to the truck? A. True. Q. If you thought there was danger, you would have done so? A. Yes. 11 Mr. Mizzi, on the other hand, said: Q. The tipman will assist a truck driver like yourself in connection with operations involving the truck. True? A. That is right. Q. The tipper will position himself where the truck driver will see him and will tell the truck driver by actions whether he should stop, go, reverse, go left, right and so on? A. That is correct. Q. You knew that was Mr Watson's job there having worked with him for the three months on the site? A. Yes. Q. You had worked with him as a tipman safely and well throughout, had you not? A. That is right. Q. In order for him to take an assisting role for you in these operations, Mr Watson would position himself where you could see him in the mirrors. Correct? A. Not always. I only used to see him most of the time. Q. Even on occasions when Mr Watson assisted you in relation to those operations there were occasions when you couldn't see him? A. That is right, yes. Q. You knew that Mr Watson had the job of tipman guiding your truck as a result of being told that was his position during induction. Correct? A. Yes. Q. And you were told, weren't you, as is customary around a site, that you took directions from the tipman. Correct? A. Not on that particular section, no. 12 Mr. Peter John Webb was the Construction Foreman employed by the defendant on the M4 job. His evidence was that it is usual for a tip truck to reverse 5 to 10 metres to tip its load. On this site the distance was 150 to 200 metres. Mr. Webb had inducted Mr. Watson onto the site and said in evidence: A. Well I said to Mr Watson that he was the dip man and looking after that area of the job, and that he was to be alert and be aware of all sections and the effects on safety in that area. Q. Did you tell him how he was to undertake that task? A. As he was required to. Q. What did you say to him? A. To keep out of the way of the trucks. Make sure your man with you is safe as well. Keep the trucks at a slow pace and just report any instances that could alert us to anything that could happen in reversing or in any of the work. Q. I want you to assume for the moment if you would that Mr Watson gave evidence earlier before his Honour and indicated he and Mr Tseganis were working as a team in connection with carrying out dips on the unprepared pavement, do you understand? A. Correct. Q. Did you tell them to work as a team? A. Yes. Q. Why was that? A. They worked together. You have to have two guys to do the job as well as the safety aspect of it. You cannot have a man doing that sort of thing on his own. They keep an eye out for each other. Q. Did you tell Mr Watson he was the senior of the two and he was given instructions in relation to safety and the control of the vehicles? A. Mr Watson was in charge of that area at the time. Q. Did you tell him? A. I told him that, yes. Q. Was it important to you that he was a licensed traffic controller? A. Yes it was. Q. Why is that? A. The experience he had in that field. Q. Who was the dip man doing the dipping operations that were being carried out on that stretch of roadway on the day Mr Tseganis was injured? A. John Watson. Q. Did you tell him that? A. John Watson's job was to control the trucks and do the dipping. Q. Did you tell him that? A. Yes. Q. When did you tell him that? A. Well John Watson was looking after that area of the works and that was a continuous day to day way he worked. Q. Whose job was it that day to be responsible for the team of Mr Watson and Mr Tseganis in connection with the approach of the vehicle? A. Well Mr Watson would be being the senior traffic controller, he would have been in charge. Q. Did you tell him that was his job? A. We believe they both looked after all oncoming vehicles. (I note that the transcript refers occasionally to a "dip man" and "dipping"- these should be read as "tipman" and "tipping". However, the word "dips" in the third question in this part I take to refer to the task of measuring from the stringline to the road surface.) 13 As to eye witnesses of the accident, the court also had the benefit of the evidence not only of Mr Watson, but also a motorist, Mr A.W. Mills, who had been passing by and was driving alongside the worksite in traffic which had been slowed to a virtual standstill for seven or eight minutes. During this time he was in the right hand lane on the westbound carriageway and could observe, over the concrete barrier, the tip-truck reversing down the road more or less in tandem with him. He observed Mr Tseganis in a stooped position in the carriageway and was concerned that he appeared to be showing no awareness of the approach of the truck. Mr Mills could hear the truck's reversing beeper and later, after moving down the road a short way past the truck, was able to see that its reversing light was on. He saw Mr Tseganis spraying the road with a paint can. When he first saw Mr Tseganis the latter was three to five metres from the truck. He saw him trying to stand up, saw him stumble when he within one metre of the reversing vehicle and then saw him in the final stages of going under the wheels. He said in cross-examination that it was the worker's not moving, while the truck was moving, that first drew his attention. 14 The driver of the truck testified that his truck was proceeding at less than walking speed (Mr Watson confirmed this) and was unaware of the presence of Messrs. Watson and Tseganis until he saw Mr Watson waving at him through the passenger's window, whereupon he stopped and then discovered that he had driven over Mr Tseganis. This had a tremendous impact upon him causing him to have treatment and counselling for three months and to take four years off work. 15 Mr Watson's evidence was that he and Mr Tseganis had only been undertaking this work for about 20 minutes. When he first became aware of the truck coming he said Mr Tseganis was one metre from him and he said to him "There's a truck coming, come up here with me". He said Mr Tseganis inexplicably turned and walked to the centre of the carriageway. He then called out again to indicate "Truck coming" and to call him over. He said Mr Tseganis turned to him and seemed to be "in a daze". He said that he then said "Come to me". He said Mr Tseganis then turned and moved towards the opposite side of the carriage way from that on which Mr Watson was standing. He said that it was necessary to speak 'above yourself'' because of the noise levels from traffic on both sides. He said that he first heard the beeper on the truck and saw it when it was about 10 metres away. His estimate of distance in the courtroom suggested that he may have had in mind a distance of no greater than about seven metres. 16 At the close of the prosecution's evidentiary case the defence submitted that there was no case to answer. It relied upon the presence of Mr Watson, someone who was qualified to guide and direct drivers while they were reversing and the fact that Mr Watson actually gave three distinct warnings to the deceased employee prior to the accident. It was submitted that there was no evidence to prove that some other person "designated" as a traffic control person would have been able to do any more than Mr Watson did. This submission was rejected. The reasoning in favour of the prosecutor will form part of my conclusions in this matter. Conclusions 17 The offence with which the defendant is charged arises from a duty imposed by s15(1) of the Act which provides that "Every employer shall ensure the health, safety and welfare at work of all of the employer's employees". Section 15(2) provides that the employer contravenes that subsection if the employer fails "to provide or maintain plant and systems of work that are safe and without risks to health". The obligation to "ensure" safety of employees is, as observed by Watson J in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 "to be construed in . . .. their ordinary meaning of guaranteeing, securing or making certain". That duty does not operate upon the basis that the occurrence of an accident will illustrate a failure but rather where an employer may be seen to have failed to comply with an obligation, the effect of which would have been to achieve that certainty. As Fisher CJ said in Cullen v State Rail Authority (NSW), (1989) 31 IR 207 at 209: "…… it is still necessary to prove that the employer failed in the language of the section in at least one of the many obligations laid upon him." Later (at 210) Fisher CJ said: "In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus on the prosecution to prove the employer's failure." This last reference was cited with approval by a Full Bench of the former Commission in Court Session in State Rail Authority (NSW) v Dawson, (1990) 37 IR 110 at 123-4 and a useful discussion of the nature of the liability occurs in the joint judgment of Wright J, President and Walton J, Vice-President in Drake Personnel v WorkCover Authority of New South Wales (1999) 90 IR 432 at 449-454. 18 There is no allegation involved in this matter of a failure to adequately train employees. Indeed, on the evidence, I am satisfied that the defendant undertook an induction process for employees which gave appropriate emphasis to safety upon the road construction site and reiterated the duties of employees in that regard on a continual basis. That approach to safety included the adoption of what appears from the evidence to be a norm in construction projects of this kind, namely the "buddy" system which is designed to ensure that where two persons are working together, they each will look out especially for their partner's safety. Not only does the evidence here suggest that system is a normal approach but that position is reflected in the judgment of Kavanagh J in WorkCover Authority of New South Wales (Inspector Guillarte) v Genner Constructions Pty Ltd (Unreported, 6 June 2000 Matters No. IRC4898 and IRC4900 of 1998) and the judgment of the Full Bench of the Commission in Court Session given, on appeal from the judgment as to penalty, on 30 October 2001 in [2001] NSWIRComm 267. Those matters involved facts relating to the death of a worker who was killed when run down by a truck on a roadwork site. In paragraph 8 of the Full Bench judgment the following appears: The trial judge observed that system of work that required large trucks to complete a U-turn across traffic was not safe and that a worker who was required to work on the roadside should be protected by the use of the "buddy" system. 19 That approach does not appear to have been put in issue in the appeal, although it might be noted again that the appeal was by the defendant against only the quantum of penalty. 20 The buddy system was in operation as between Messrs Watson and Tseganis on the day in question. Mr Watson's efforts to call Mr. Tseganis away from the path of the approaching truck were consistent with his obligations under that system. The mystery in relation to the accident is why Mr Tseganis did not respond positively and at an early stage to Mr Watson's directions or suggestions to him. It was his delay in so acting which largely seems to have caused his inability to escape from the truck's path. 21 The defendant is required to meet only the charge as particularised. Mr Corsaro submitted that the prosecutor has failed to establish that the provision of a person to guide and control trucks and warn pedestrians, as the particulars of the charge suggest, would have made any difference. Indeed it was submitted that the prosecution had actually proven the presence of a person qualified to perform that work: Mr. Watson. While I do not doubt Mr. Watson's qualifications, I find myself unable to accept that submission. The fact is that Mr Mizzi was proceeding in reverse in his truck somehow unaware of the presence of the two workers he was approaching. He was reversing the vehicle down what was effectively a narrow laneway between the edge of the tarmac on one side and on the other the windrow of dirt forming the lane. Another factor of significance appears to me to be the unusual nature of those circumstances. The evidence indicates that the usual form of tip work involves a forward drive ensuring an obviously enhanced visibility for the driver and a short (five to ten metres) reverse to tip. Here, the constrictions of the laneway in which the work was being undertaken, prevented that method of carting to the tip and necessitated a very long reversing of the tipper. 22 Mr Mizzi was enabled by the circumstances of the work to proceed in this fashion effectively blind to the presence of the two workers. It is this fact which seems to me to be at the root of the offence as charged. There can be no doubt that had a particular worker been designated as, and working as, a person controlling traffic in the context of this work scene, the accident would not have occurred. Mr Mizzi, however, was effectively alone in carrying out his driving task. Mr Watson's responsibility, under the buddy system, was to look out for his 'buddy', which I am satisfied he did so far as he could. Although he may have had the credentials to direct traffic on such sites, I find it was not his defined duty to direct Mr. Mizzi or the latter's duty to ensure that he drive according to Mr. Watson's directions. Mr. Watson was working with Mr. Treganis on the same work during the first two loads done by Mr. Mizzi, during which they avoided the truck. Mr. Watson was not then acting as a tipman for Mr. Mizzi and so the duties and obligations of each of them in the different context of tipping did not arise. If Mr. Webb's evidence were intended to suggest otherwise I could not accept it. Mr. Watson was not positioned where he could, by sound or signal, give any directions to Mr. Mizzi. The unavoidable fact is that Mr Mizzi had a reverse of some hundreds of metres quite unaided by anyone else. While he was doing that and actually tipping, Mr. Watson was working on the measuring task with Mr. Tseganis. As seemed consistent with Mr. Watson's evidence describing the growing risk to Mr. Tseganis, any warning that might be conveyed between Messrs. Watson and Mizzi was a mere incident of the developing events, the type of warning which might be expected of any person standing nearby and observing the situation. It was not the result of a considered and deliberate approach to ensuring the safety of a worker or the avoidance of such risks as might obviously arise from the reversing of the truck in the circumstances of the job. 23 It follows from these conclusions that the prosecutor has made out the charge to the extent it involves the provision of a person to direct and guide drivers reversing motor vehicles. 24 It remains to consider the defence submission that the benefit of s. 53 should be applied in its favour. Section 53 is in the following terms: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that - (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence; or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 25 In considering this issue it is necessary to bear in mind the narrow nature of the charge the defendant is faced with. My finding that there was an ability in Mr. Watson to convey to Mr. Tseganis more than one warning, which he seemed not to assimilate or respond to until it was too late, negates that aspect of the charge that concerns the alleged failure to provide "a Traffic Control person………responsible to warn pedestrian employees". Accordingly, that part of the summons with remaining substance relates to the alleged failure to designate a person responsible to guide and direct Mr. Mizzi. 26 This aspect of the defence is to be determined on the balance of probabilities, although the onus falls upon the defendant. I am satisfied on balance that the circumstances of this accident were not reasonably foreseeable, the aspect relied on by Mr. Corsaro and therefore it was not reasonably practicable to make provision in this regard. The truck was reversing slowly, over a long distance. Its reversing light and beeper were functioning. I would infer that the surrounding road noise impacted upon the ability of Messrs. Watson and Tseganis to hear the approach of the truck, not until it was within 7 to 10 metres distance. Nevertheless, there was sufficient time, upon Mr. Watson's warnings, for Mr. Tseganis to get out of its path yet this he failed to do. This could not be foreseen. The circumstances of the vehicle's reversing were unusual in the context of work of this type, because of the site layout, but not in the ordinary course of truck operations. One constantly sees large vehicles reversing on public streets, across public footpaths and in public places such as service stations and parking areas, and into loading bays. It is the light and beeper which are intended to give warning of the manoeuvre which enable this to occur. In the circumstances of this case it seems to me obvious that had had a person been made available, as the charge contemplates, to guide the truck driver, this sad event would not have occurred. However, it is apposite to recall the words of Hill J. in WorkCover Authority (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR362 at 381. "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of reasonable foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight." 27 I consider this is an accident which no reasonable person, considering the possibility of risk to workers such as Messrs. Watson and Tseganis, would have formed the opinion that a truck control person was necessary. The combination of the 'buddy' policy with the warning devices on the vehicle would be, in prospect, sufficient. 28 I find the defendant has made out a defence under s. 53; I find the defendant not guilty and dismiss the charge. The defendant should have its costs of the proceedings. I direct the parties to confer on that question. Liberty to apply. 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.