Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322 PROSECUTOR Inspector Amanda Templeton PARTIES : DEFENDANT Pavese Citrus Pty Ltd FILE NUMBER: IRC 5297 of 2003 CORAM: Staff J CATCHWORDS : Occupational health & safety - Prosecution under s 8 - Failure to ensure premises were safe - Vehicles parked in orchard - Risk to safety of employee driving a tractor - Failure to adequately instruct or supervise employees - Risk of tractor confronting a motor vehicle - Liability is absolute or strict - Duty owed to careless employees - Detriment to safety - Foreseeability relevant to defence - No defence - Charge proven LEGISLATION CITED : Occupational Health & Safety Act 1983 Occupational Health & Safety Act 2000 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313 Ferraloro v Preston Timber Pty Ltd (1982) 42 CLR 627 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 McLean v Tedman (1984) 155 CLR 306 Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 CASES CITED : WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121 WorkCover Authority of New South Wales v Blacktown City Council (2003) 124 IR 59 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 Workplace Authority of New South Wales (Inspector Barnard) v Rail Infrastructure Corporation (2001) 109 IR 209 HEARING DATES: 09/21/2004; 09/22/2004 DATE OF JUDGMENT: 10/29/2004 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms L Barnes WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr G Underwood of counsel Agent: Mr K Heasman Ken Heasman LL.B., Solicitor Holmes Keenan & Turnell JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 29 October 2004 Matter No IRC 5297 of 2003 INSPECTOR AMANDA TEMPLETON V PAVESE CITRUS PTY LTD Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2004] NSWIRComm 322 1. Pavese Citrus Pty Ltd ("the defendant") is responsible for the operation and management of a citrus orchard at Farm 225, Murray Road, Yoogali in the State of New South Wales. 2. On Sunday 23 September 2001, Mr Tavua was employed on a casual basis by the defendant as a fruit harvester. At approximately 1.00 pm, Mr Tavua drove the defendant's tractor, which was pulling two trailers containing five full bins of harvested fruit in an easterly direction between rows 3 and 4 of the fruit trees. Mr Tavua was found under the rear nearside wheel of the tractor, which had stopped at the end of rows 3 and 4. Mr Tavua suffered fatal injuries. 3. This decision relates to whether the defendant has committed a breach of s 8 of the Occupational Health & Safety Act 2000 ("the OH&S Act") in respect of the incident that occurred on 23 September 2001. The Charge and Agreed Facts 4. The charge alleges that the defendant: DID FAIL To ensure the health, safety and welfare at work of all of the employees of the Defendant, in particular Peni Tavua, contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: a) The Defendant, at all material times, operated a citrus orchard at Farm 225, Murray Road, Yoogali, in the State of New South Wales ("the premises"). b) The Defendant, at all material times, was the trustee for the Pavese Family Trust (ABN 42 788 473 125). c) The Defendant, at all material times, employed a number of workers, including Peni Tavua ("Tavua"), to work at the premises. d) The Defendant, at all material times, provided a Massey Ferguson 35 tractor (the "tractor"), for use by employees of the Defendant at work at the premises, in particular Tavua, to tow bins of oranges in trailers attached to the tractor along the rows of fruit trees in the orchard and to the packing shed. e) The Defendant failed to ensure the health, safety and welfare at work of all of the employees of the Defendant, in particular Tavua, by:- i) failing to ensure that the premises (and/or the means of access to or exit from the premises) were safe and without risks to health, in that it failed to ensure that vehicles were not parked in the orchard, in particular at the end of the rows of fruit trees, such that the parked vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; ii) failing to adequately instruct or supervise employees to ensure that they did not park vehicles in the orchard, in particular at the end of rows of fruit trees, such that the vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; iii) failing to provide or maintain a system of work in relation to the carting of fruit at the premises by use of the tractor and trailers that was safe and without risks to health; iv) failing to ensure that any plant, in particular the tractor, provided for use by the employees at work at the premises was safe and without risks to health, by failing to ensure that a safety belt or other restraining harness device was fitted to the tractor for the use of the operator. f) On 23 September 2001, at the premises, Peni Tavua was fatally injured. 5. The defendant pleaded not guilty to the charge. The prosecutor tendered an agreed statement of facts. This statement was as follows (formal parts omitted): 3) At all material times the Defendant was responsible for the operation and management of a citrus orchard at Farm 225, Murray Road, Yoogali, in the State of New South Wales ("the premises"). 4) The Defendant employed a number of workers, including Peni Tavua ("Tavua"), to work at the premises. 5) The Defendant, at all material times, provided a Massey Ferguson 35 tractor (the "tractor"), for use by some employees of the Defendant at work, in particular Tavua, to tow bins of oranges in trailers attached to the tractor along the rows of fruit trees in the orchard to the packing shed. 6) Tavua was employed by the Defendant as a fruit harvester on a casual basis from about 1998 and was employed by the Defendant in that position on 23 September 2001 ("the accident date"). His duties included driving a tractor in the citrus orchid (sic) for the purpose of fruit harvesting. 7) On the accident date, Tavua commenced work at approximately 7:45am. At some point that morning, he parked his car, a Mitsubishi Sigma, NSW registration UPV 201, (the "car") at the end of rows three and four, blocking approximately two-thirds of the distance between the rows. 8) At approximately 1pm, Tavua drove the tractor between rows three and four of the orchard. Attached to the tractor were two trailers containing five bins full of harvested fruit. Prior to driving the trailer, Tavua had told Sepuloni Vuadreu ("Vuadreu"), another fruit harvester and employee of the Defendant, that he was going to drive the tractor to the packing shed and unload the fruit, and that he would meet Vuadreu at 2pm to continue harvesting fruit. 9) After a few minutes driving the tractor in an easterly direction between rows three and four an accident took place in which Tavua was fatally injured. 10) After the collision, Tavua was found under the rear nearside wheel of the tractor having became trapped by the upper portion of his skull. He sustained fatal injuries being severe trauma to the neck and neck structures and respiratory arrest. The Prosecutor's Evidence 6. Mr Reitano of counsel who appeared for the prosecutor called Inspector Amanda Templeton, a WorkCover Inspector located in Dubbo at the time of the incident, who, with Stuart Larkin, a Senior Inspector of WorkCover, conducted interviews with those who were present on the farm at the time of the accident including Paul Pavese, a working director of the company; Deni Pavese, a director of the company; Sepuloni Vuadreu, a fruit picker at the farm on 23 September 2001 and Cema Toga, a fruit picker at the farm on 23 September 2001. Records of interview of each of these persons were tendered and Sepuloni Vuadreu and Cema Toga were called to give evidence. Each witness called was cross examined. A statement of Senior Constable Kovacs, who was not required for cross examination, was also tendered. 7. Senior Constable Kovacs, together with Constable H Parker attended Farm 225, Murray Road, Yoogali ("the farm") at about 1.40 pm on 23 September 2001. Senior Constable Kovacs' evidence was that she observed a faded red coloured Massey Ferguson 35 tractor parked at a 45° angle to the north-east of row four with two trailers attached to it containing five full bins of oranges. Senior Constable Kovacs observed a minor dent to the trailer frame at the nearside front section of the front trailer. 8. The Senior Constable observed Peni Tavua, pinned by his head underneath the nearside wheel of the vehicle. Senior Constable Kovacs inspected the rear bumper of motor vehicle UPV 201 which was owned by Mr Tavua and observed a scuff mark approximately 15cms in length and 5cms wide, of light colour which appeared fresh. A small round dent approximately 2.5cms in diameter also existed near the scuff mark. A black and light coloured rubber mark on the outer side of the front offside tyre of the tractor was also observed. The scuff mark and dent was consistent with the markings on the front offside tyre of the tractor. 9. Senior Constable Kovacs observed tyre markings in the dirt between rows three and four, directly behind the trailers which were attached to the tractor. The tyre markings in the dirt, appeared fresh and consistent with the tread of the tyres which were fitted to the trailers attached to the tractor. A steel fence post which was positioned at the end of row four, was damaged and dented in a northerly direction. The damage appeared consistent with the tractor colliding on its left, against the steel stake. The owners of Farm 225 informed the Police that the steel post had not been damaged prior to 23 September 2001. Various limbs of the last orange tree of row four were damaged. The height and freshness of the broken limbs was consistent with the Massey Ferguson tractor colliding into the tree. A plastic pipe of the trickle irrigation system at the end of row four was also damaged. The owners of the farm told Senior Constable Kovacs that the irrigation system at the end of row four was not previously damaged. Senior Constable Kovacs' evidence was it therefore appeared that this also occurred as a result of the incident which supported that a collision may have occurred between the tractor and Mr Tavua's motor vehicle. 10. Senior Constable Kovacs' evidence was that it therefore appeared that Mr Tavua drove the tractor east between rows three and four and for some unknown reason, Mr Tavua then attempted to manoeuvre the tractor into a left turn out of the aisle between the last tree in row four and his sedan. However, the tractor and full trailers were unable to fit into the space and the front offside tyre of the tractor collided with the rear offside bumper of Mr Tavua's car. This in effect caused the tractor to then collide into the steel stake, the irrigation system and the last orange tree of row four. It is unknown if the deceased attempted to jump from the tractor, fell off it, or suffered from a medical condition, as there were no witnesses to the incident. Markings in the dirt, under the rear offside tyre of the tractor, indicated it had skidded for some time before the vehicle stalled in gear. 11. Senior Constable Kovacs spoke to Viliame Toga, Sepuloni Vuadreu, Ilisoni Vaudreu and Cema Toga who informed her they had been picking oranges in the same orchard as Mr Tavua, at the time of his death. Mr Tavua left and towed the trailers behind the Massey Ferguson tractor and was en route to the packing shed when the others last saw Mr Tavua alive. They continued to pick fruit towards the top of a row approximately 200m north of where Mr Tavua was located. They did so for another five to ten minutes before ceasing for a lunch break. They then walked in a south-east direction along the rows making their way towards the end of rows four and five. The workers planned to have a lunch break and meet up with Mr Tavua at this location. However, when they neared the end of the rows, they could see the tractor stopped and Mr Tavua was nowhere to be seen. Each of the workers appeared visibly upset and stated that they did not witness the incident, hear the tractor revving loudly, or hear the deceased scream for assistance. 12. Senior Constable Kovacs spoke to Sepuloni Vuadreu, Mr Tavua's uncle, regarding the state of the deceased's health. Mr Vuadreu was not aware of Mr Tavua having any medical or heart conditions or recently being ill. 13. In addition, Mr Reitano tendered Inspector Templeton's Report of Accident and 15 colour photographs taken by Inspector Larkin on 24 September 2001. 14. An aerial photograph of the orchard was also tendered. Findings of Fact 15. There was no dispute between the parties that: a) the company owned the farm; b) Mr P Pavese was a working director of the company; c) Mr Tavua was employed by the company as a fruit harvester; d) The company owned a Massey Ferguson 35 tractor; e) Mr Tavua's duties included driving a tractor in the citrus orchard for the purpose of fruit harvesting. f) At some time during the morning of 23 September 2001 Mr Tavua parked his car, registration UPV 201, at the end of rows three and four blocking approximately two thirds of the distance between the rows. g) At approximately 1.00 pm Mr Tavua drove the tractor in an easterly direction between rows three and four towards Murray Road. 16. Inspector Stuart Larkin was a WorkCover Inspector located in Griffith at the time of the accident. Inspector Larkin attended the site on 24 September 2001 and provided a factual report together with a sketch of the site where the incident occurred. 17. Mr Sepolini Vuadreu gave evidence that on 23 September 2001 he was picking oranges at the Pavese farm. Mr Vuadreu had been contacted by Mr Tavua and asked to help him pick oranges. As a result of other commitments, Mr Vuadreu arrived at the farm between 10.30 am and 11.45 am. Mr Vuadreu described how he became aware of the accident in a witness statement provided to Inspector Templeton as follows: We were picking together and then I got my daughter, my son in law, my two grand daughters and my son, while picking we decided to have a break and come back at 2 oclock, that is after we finished the first trailer and then Pen decided to take the second trailer to the shed while we have a break. So everybody left except me and Pen who were talking. So my son went and brought the car, my car, so whilst he went away and I spoke to Pen and said we will meet here again at 2 oclock and so he took the trailer and went away. When my son came I hopped into the car and we drove up to the main road. So my son in law called me and said quick come. As soon as we reached the side of the road we saw the tractor and when we went and investigate we saw Pen was underneath. Then I tried to release and pull the trailer pin out and move the tractor away from there but we couldn't take it off, it was too tight. I felt Pen's pulse he was still had a pulse so I asked my son in law run to the farm across the road to ask to ring the ambulance. At the same time I ran up to Paul's shed and I met Paul and said please get your forklift we have an accident. So Paul came with the forklift. We tried to push the pin from the bottom but we couldn't so we just leave it there. We just had to wait for the ambulance. 18. Mr Vuadreu's evidence was that the tractor was not going when he arrived at the scene but the key was still on. His evidence was that Mr Tavua's car was parked in between the end of the rows that Mr Tavua was trying to get through. Mr Vuadreu's evidence was that when he commenced working at the farm he was instructed for about five or ten minutes how to do things. This included being careful driving the tractor and placing the ladder firmly on the ground before climbing it. His evidence was that on the day of the accident Mr Tavua parked his car "right in front of the rows that he was driving out to (sic). He was driving (the tractor) towards his car". This was not where Mr Tavua normally parked his car and Mr Vuadreu could offer no explanation as to why Mr Tavua parked his car where he did. He stated the designated area that cars were supposed to be parked in was "either back to the place where we did the pick or right at the front". Mr Vuadreu's opinion as to how the accident occurred was as follows: What I do believe is that Peni tried to avoid hitting his car and he tried to drive past his car and he must have hit something and I believe there is a post about 2 foot sticking up at the end of the rows and the trailer must have hit that and it must have caused the tractor to jack knife back to the next row. How Peni got under there is beyond me. 19. Mr Vuadreu's evidence was that Mr Tavua operated the tractor every time that he worked at the farm which was mainly on Sundays. His evidence was that Mr Tavua usually stopped the tractor if he had to get off it for any reason. He informed Inspector Templeton that: He normally put the tractor in neutral or turn it off completely and do what he wants off the tractor and get back on and start it. 20. Mr Vuadreu's evidence was that Mr Tavua drove the tractor up following the row towards the main road and that the bins on the trailer were full. 21. During cross examination, Mr Vuadreu gave evidence that prior to 23 September 2001, Mr Paul Pavese showed him how to get on and off the tractor and how to operate and service the tractor. Mr Vuadreu's evidence was Mr Pavese told him if he was to alight from the tractor, to make sure the gears were in neutral and to turn the engine off before he got off the tractor. Mr Vuadreu stated that he was an experienced tractor driver as part of his job with another employer was moving machinery including a loader, tractor and bulldozer. 22. Later in cross examination, Mr Vuadreu gave evidence that the best way for Mr Tavua to park his car was at the packing shed and bring the tractor from there to the farm. On 23 September 2001, Mr Tavua, while Mr Vuadreu and others were picking, intended to move from his current house to a new house, so he left the pickers and went away. Mr Vuadreu believed that when he came back, he parked his car in front of the place where he was picking. Mr Vuadreu's evidence was that Mr Tavua normally parked his car at the packing shed on a Sunday as he was the person who drove the tractor. Mr Vuadreu's evidence was that whilst he was picking, Mr Tavua said: "Look I will go and I will come back again". 23. Mr Vuadreu did not know where Mr Tavua's car had been parked prior to him leaving the farm during the morning of 23 September 2001. Mr Vuadreu accepted that sometimes cars were parked parallel to the rows that were being picked. Mr Vuadreu's evidence was that Mr Tavua would put the tractor in neutral, or turn it off completely and start it up again, that he was an old man and a very safety-minded person. He had observed him doing that on many occasions, to the extent that his evidence was that it was routine. 24. In re-examination, Mr Vuadreu explained that he had parked along the side of a row of fruit trees in the block immediately behind block 10, the block where the picking of fruit took place on 23 September 2001. Mr Vuadreu's evidence was that he did not park in the headland area. Mr Vuadreu could not remember exactly whether Mr Tavua's car was parked in the same area as his own earlier, however, he believed that it was parked with his daughter's car which was parked two rows to the left of the row three and four from where the accident occurred. 25. Cema Toga provided a statement to Inspector Larkin on 14 September 2004. Ms Toga is the daughter of Mr Vuadreu and attended Pavese's farm on 23 September 2001 to pick oranges. 26. Ms Toga's recollection of the accident was as follows: At the time of the accident, we were actually breaking for lunch, so this was before the accident. But I can't remember the time was specifically. Peni said that he was going to take the trailer to the shed, drop off the full bins and load some more empties on the trailer so they would be ready when we got back from our break. We, my husband, myself and my 2 children, gathered up our stuff and were going to walk back to the car. At this time Peni headed off in the tractor. We walked towards our car along a row between the trees that were 2 rows to the North of where we had been picking. My husband was walking ahead of us and got to the Murray Road end of the row first and he noticed the tractor parked a bit funny at the end of the picking row with the engine stopped. So he went to investigate. As he realised what had happened, the kids and I had reached the end of the row and were looking over to the tractor as well. He called out that Peni was under the tractor, and said stay with the kids. So we just went and stayed at the car that was parked at the end of the row that we had just walked up. My husband then waved down my father and brother who were driving along the row next to the accident on the southern side. They all went to the tractor then someone yelled out to me to get an ambulance. I ran across the road to the farm opposite where we were working and asked the lady there to ring an ambulance. I told her that there had been an accident involving Peni, as they knew who he was. They knew who he was because he worked all around that area. Then I just came back and sat with the children at the car... 27. Ms Toga's evidence was that Mr Tavua's car was at the end of the row he was driving down and her dad's car parked in the row to the south of the one she was picking about 80 to 100 metres from where the accident happened. Ms Toga gave evidence that her car was parked two rows to the left of where she was picking at the end of a row. She subsequently identified by marking on a map that her car was some four to five rows to the left of rows three and four. There was a further car parked on the right hand side to the row that was being picked, this being row 2. In respect of this car, Ms Toga could not remember which way it was facing. Ms Toga's evidence was that Mr Tavua's car was parked at the end of the row that she was picking. 28. In cross examination, Ms Toga stated this was the first time that she had been to the Pavese farm and that her recollection of events on that day were hazy and that the first interview that she gave in respect of the matter was on 14 September 2004. Ms Toga identified by reference to the aerial photograph that when she arrived at the farm, other members of her family were picking fruit in rows 3 and 4 of block 10. 29. Inspector Templeton in cross examination agreed that it wasn't clear whether Mr Tavua fell from the tractor as a result of an impact or whether he was attempting to alight from the tractor whilst the tractor was still running. Inspector Templeton's evidence was that the accident occurred at the end of row 4. 30. Inspector Larkin gave evidence that it was his understanding that Mr Tavua's vehicle was facing the packing shed. His placing of the car is consistent with the scuff mark on the bumper bar being caused by the front right hand side wheel of the tractor. 31. I find beyond reasonable doubt that Mr Tavua's car was parked at the end of row 3 and 4 and partly across the entrance to rows 3 and 4 and that the scuff mark on the bumper bar was consistent with the front right hand side wheel of the tractor coming into contact with that part of the bumper bar. 32. Inspector Larkin also gave evidence that he inspected the tractor and that it was in working condition at the time of his inspection on 24 September 2001. 33. In cross examination, Inspector Larkin was referred to his report of the accident. Under the heading "Summary of Accident/Incident", Inspector Larkin stated: Tractor travelling between 2 rows of orange trees with loaded trailer. End of rows obstructed by parked car (deceased's own car). Tractor stopped at end of row and probable that deceased has alighted to move car in order to continue journey to packing shed. In the process of getting off the machine, the deceased has possibly knocked the machine in to gear or alternatively, not ensured that it was in neutral and released the clutch as he was alighting. The deceased has been knocked down and run over by the left rear wheel of the tractor sustaining fatal injuries. 34. Inspector Larkin's evidence was that this opinion, although made before the investigation had run its course, was still appropriate. The Defendant's Evidence 35. Mr G Underwood of counsel appeared for the defendant and tendered an affidavit of Mr Paul Pavese; a statement of Mr Dominic Nardi, Executive Officer, Riverina Citrus, a Statutory Authority and a report of Mr David Dubos, an industrial and public safety consultant. Each were required for cross examination. 36. It was Mr Pavese's evidence that he was a director of the company, his duties being to run the packing shed and oversee and help his father with the farm work as well. The main business of the company was growing and packing citrus. On 23 September 2001 the company employed seven or eight employees. Mr Tavua commenced work at around 8 o'clock. Mr Pavese last saw Mr Tavua alive at about 10.30 am on 23 September 2001 when he brought five full bins of oranges up to the packing shed. Mr Pavese stated that the accident occurred at the top of row No 4 in block 10. Each row has a star post with a number on it to identify it. When Mr Pavese arrived at the scene of the accident, he said the tractor was around the tree, the trailer was "sort of stuck against the tree and the tractor was jammed there". The tractor was not going when Mr Pavese reached it. Mr Pavese described that Mr Tavua's car was parked at the end of the row right next to where the tractor was. 37. Mr Pavese stated that on the day of the accident, he provided Mr Tavua with the following instructions: "Basically the same we do every other day, to be careful of the tractor and he was really experienced because he had been with us for two years and knew what he was doing. Every night all the bins are full and they bring them up to the shed and take the old ones off and put new ones on". 38. Mr Pavese stated that he was not aware of any faults with the tractor on the day of the accident. He stated that after the accident the tractor was brought back to the shed after a wire was put back on because "it wouldn't start because one of the wires was off". Mr Pavese was unaware if this was because of the accident. 39. On the day of the accident Mr Tavua's car was parked at the end of rows 3 and 4. Mr Pavese did not see Mr Tavua's car parked in this position prior to the accident. Mr Pavese's opinion as to what caused the accident was that "it's hard to say but what we can see is he was obviously trying to hop off the tractor to move his car and he must have left it in gear when he hopped off". 40. Mr Pavese's evidence was that the distance from the packing shed to the farthest row would be about 400 to 450 metres. His evidence was that as long as cars were parked in the row beside the row that was being picked, then there was no risk arising from the vehicles being parked in that row because the vehicles would not be in the way of the tractor. Furthermore, Mr Pavese stated that the tractor and trailer could not turn from rows 3 and 4 into, for example, rows 2 and 3 because the tractor would be incapable of executing such a turning circle. 41. Mr Pavese's evidence was that Mr Tavua was an experienced fruit picker who commenced work with the company in 1998. Some three years before the accident he had provided Mr Tavua with an induction training programme which included how to pick fruit, where to park vehicles and how to drive the tractor. Mr Pavese showed Mr Tavua the correct way to operate the ignition, pedals, gears and steering and he was given a practical demonstration. In particular, Mr Tavua was instructed never to climb from the tractor when the ignition was on and always to turn the ignition off and put the tractor into neutral before alighting from the tractor. 42. The employees, including Mr Tavua, were instructed to park their cars in one of two positions when arriving to pick fruit: i) the designated parking area near the packing shed; and ii) in the orchard parallel to the rows of trees to be picked. 43. The pickers often took their lunch, eskies of drinks and chairs or picnic rugs to sit on, in order to have their lunch and morning and afternoon teas in the orchard. Mr Tavua was also advised in respect of fruit picking ladder safety, farm machinery and tool safety. 44. When Mr Tavua recommenced seasonal work with the company, Mr Pavese ensured that he was told what to do and checked that he could operate the tractor to his satisfaction. 45. The company used the HACCP (Hazard Analysis Critical Control Point) Quality Assurance System to create what was known as the Pavese Citrus Quality Assurance System (Section C - Systems, Procedures - Work Instructions). Mr Tavua was trained by Mr Pavese in 2001 in respect of this system. HACCP provided experts to advise in various areas including safety. 46. In January 2001, Mr Pavese provided Mr Tavua with the induction training programme pursuant to the HACCP System which included showing how to pick fruit and where to park vehicles, and how to drive the tractor. In particular, Mr Pavese's evidence was that he again showed Mr Tavua the correct way to operate the ignition, pedals, gears and steering and he was given a practical demonstration. 47. Mr Pavese stated that he had been in the citrus business for twenty years and that it is industry practice to allow fruit pickers to park their vehicles parallel to the rows of citrus trees being harvested. When a tree is picked the pickers pick the entire tree in one "go". This means that the vehicles of the pickers can be parked in rows alternate to any row being picked, the result being that the tractor towing the fruit bins can proceed down the row being picked unimpeded, with pickers picking the trees both left and right of that row in total. Mr Pavese said that he instructed Mr Tavua on the operation of the tractor and, in his opinion, he knew how to drive it safely, and had driven the tractor safely for at least five years. 48. After Mr Tavua's accident, employees are now required to sign a "Farmhand and Fruit Pickers Training Declaration". Paragraph 3 of the Declaration is as follows: 3. Explanation & Practical Demonstration of Farm Machinery. TRACTOR - The site manager will give a practical demonstration of the following in regards to the operation of the farm tractor: Tractor Model being used: ....................................................... Correct manner in how to operate the ignition, pedals, gears & steering. Correct manner on how to climb on and off the tractor. This includes instruction that the employee is NEVER to do so when tractor ignition is ON. ALWAYS TURN OFF THE IGNITION & PUT INTO NEUTRAL BEFORE GETTING ON OR OFF THE TRACTOR. If any mechanical problems arise - the tractor must be left stationary and the site manager notified. The employee must not attempt to correct any faults with any tractor. CAUTION & CARE should be used at all times. NEVER SPEED. ALWAYS CHECK AREA IS CLEAR BEFORE MOVING TRACTOR. NEVER CARRY PASSENGERS ON THE TRACTOR. NEVER OPERATE TRACTOR OR MACHINERY WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS. STRICTLY NO ALCOHOL OR DRUGS ARE ALLOWED ON THE PREMISES. 49. Under the heading "Parking" the declaration provides: PARKING Pickers/Farm Hands have 2 (two) parking options: Please circle option taken. Option 1 Cars and/or vehicles must be parked in the area designated and signed as "Parking" and located near the packing shed. Option 2 Where passengers, food and/or supplies need to be taken to the farm picking area, vehicles must adhere to the following parking regulations: 1. Vehicles should be parked a safe distance from where picking/work is being carried out. 2. Vehicles must be parked parallel to the rows of fruit - NEVER AT THE END OF THE ROWS. 3. Vehicles MUST NEVER OBSTRUCT THE PATH OF TRACTORS/FARM VEHICLES. 50. The tractor involved in the accident was a small 35 horsepower tractor being a Massey Ferguson 35 built in 1957/1958. The tractor did not require registration as it was only driven on the farm, nor was there any legislation requiring it to be fitted with a seat belt. Seat belts were normally fitted when the tractor has a cabin. The tractor is an open tractor, to be slowly driven for work on a small citrus farm. Cabins were not built on tractors until the 1980s. Mr Pavese's evidence was that the use of a seat belt would be impracticable for fruit pickers, as the operator is required to alight from the tractor every 10m in order to pick fruit. As the tractor proceeds slowly and for short distances, Mr Pavese did not believe a seat belt would be a safety measure. Mr Pavese's evidence was that other farms use a Massey Ferguson 35 and that he had never seen these tractors registered for road use or fitted with seat belts. The tractor was last serviced by J & A Agostini Repairs & Services Pty Ltd on 26 June 2000. 51. The distance between the rows of fruit trees is approximately 4m and the "headland" area where Mr Tavua parked is some 10m wide. Mr Pavese's evidence was that employees were always told to park their cars either in the parking area, or parallel to the rows of trees being picked. Mr Pavese's evidence was that he had never seen Mr Tavua, or any other employee park their cars in the "headland" area. He did not know why Mr Tavua did so. Accordingly, he never identified any particular risk with Mr Tavua in tractor operation or car parking. Mr Pavese contended that he had performed a risk assessment of car parking in the orchard and also of tractor driving and in his opinion, there was very little likelihood of any problem with the car parking or tractor operations. The tractor is driven very slowly, at about 10km per hour through rows of fruit trees where the picking takes place. It was a very simple tractor, regularly maintained, serviced and checked. It operated only on a level area. 52. Mr Pavese clearly recollected giving instructions to Mr Tavua where to park his car and his evidence was he had no reason to assume he would not follow these instructions. 53. Mr Pavese visited the orchard at least once in the morning and once in the afternoon when fruit picking was taking place. He monitored the safety of work practices and saw the quality of the fruit being picked was satisfactory. Mr Pavese was also the sole supervisor of about seven employees in the packing shed and one employee fruit picking. He considered Mr Tavua to be an experienced employee. 54. Mr Pavese's evidence was that he had inspected the area of the orchard for safety in work practices, such as, the operation of the tractor and the car park, on many occasions before the accident occurred, and did not consider any employee would park their car at the end of a row of citrus trees, blocking access to a tractor and indeed had never seen a car parked there, and would not have identified this as being a potential cause of an accident. He considered it was obvious that no-one would park there. 55. Mr Pavese's evidence was that he considered that he did all he could to provide a safe system of work and considered that the accident was most unfortunate in that he had never seen cars parked across the head row area. Mr Tavua was instructed to park parallel to the rows of trees and also instructed not to leave the tractor with the engine running and, in particular, when he alighted to turn the ignition off and leave the tractor in neutral. 56. Mr Pavese stated that the farm was 34 acres. There are at least 250 farms of acreage between 22 and 50 acres in the Griffith to Leeton area. It was Mr Pavese's observation over many years that the work practices in respect of fruit picking and harvesting on those farms did not vary significantly from those carried out at his farm. In particular, Mr Pavese stated he had observed that employees are permitted to park parallel to the rows of fruit trees where picking is carried out. He also stated that the use of a Massey Ferguson 35 tractor is widespread in the area and none of them appear to be registered and none were fitted with seat belts. 57. The Employee Induction Training Manual which was annexed to Mr Pavese's affidavit showed Mr Tavua's staff training, including tractor and forklift training. 58. In cross examination, Mr Pavese acknowledged that the Pavese Citrus Employee Induction Training Manual under the heading "Car Park" provided "Parking facilities are located to the side of the packing shed. Please keep vehicles parked in that area. Bikes can also be stored in the same area." Mr Pavese agreed that it was regarded as being unsafe to have vehicles parked in and around the orchard. Mr Pavese's evidence was that he explained verbally to the employees that they should park parallel to the row of fruit they were picking. Mr Pavese agreed that he had departed from what had been put in the Induction Manual although he conceded he had no formal qualifications in safety. Mr Pavese agreed that he had been trained by the HACCP Practitioner and that he subsequently attended to the training of employees in accordance with the Induction Manual in 2000. Mr Pavese's evidence was that in subsequent years training records showed that Mr Tavua was trained. Mr Pavese's evidence was that each of his employees, including Mr Tavua, were provided with induction training by himself again in 2001. 59. I accept Mr Pavese's evidence in respect of providing ongoing induction training to his employees including Mr Tavua. 60. In respect of the Farmhand and Fruit Pickers Training Declaration, Mr Pavese conceded that parking instructions 1 and 3 were not instructions given to Mr Tavua but introduced after his accident. 61. Mr Pavese maintained that he did all that he could to provide a safe system of work by telling the pickers that they could park their cars parallel to the row in which they were picking. Mr Pavese's evidence was that if the pickers were picking fruit from trees in rows 5 and 6, the employee should park his car in row 4 because the next rows that were to be picked would be rows 4 and 3. If a car is parked in row 4 at the conclusion of picking rows 5 and 6, the tractor proceeds into rows 4 and 3 and there is no possibility of a collision. In addition, Mr Pavese's evidence was that it would not be possible to turn the tractor and trailer out of rows 5 and 6 and into row 4. 62. Mr Dominic Nardi is the Executive Officer of Riverina Citrus. Mr Nardi has extensive experience in the citrus industry, although he holds no relevant qualifications in occupational health and safety. His evidence was directed to the practice of fruit pickers, based on his experience. Much of the material contained in Mr Nardi's report was based on what Mr Paul Pavese had informed him and in my view is of little probative value. 63. The essence of Mr Nardi's evidence was that it was necessary for pickers to have access to protective clothing, mobile phones for emergencies, sun protection paraphernalia, food and water throughout the day, which needs to be stored close at hand to where they are picking and a vehicle is the most convenient place for it to be located. The practice of having vehicles close by has been in existence as long as fruit has been harvested by casual labour. Mr Nardi pointed to the unattractive nature of picking fruit and observed that having to walk kilometres with food supplies, protective clothing and picking bags, would make the work very unattractive to prospective employees. 64. Mr David Dubos, an industrial and public safety consultant provided a report into the accident that occurred on 23 September 2001. Mr Dubos gave evidence that the likely cause of the accident was the position in which Mr Tavua had parked his car. It was impossible to drive the tractor, with the two trailers and five bins attached, between the parked car and the fruit tree forming the end of row 4. As a result he believed Mr Tavua intended to move his vehicle so as to allow him to drive the tractor around the end of the row and turn right to the packing shed (not left as set out by WorkCover as the packing shed where the five bins of orange were to be unloaded was located to the right). 65. Mr Dubos postulated that Mr Tavua stopped the tractor, left the engine running and assumed the tractor was in neutral but inadvertently left it in low gear. He left his left foot on the clutch, lifted his right foot out of the tractor and commenced to alight. With his left foot on the clutch pedal, the tractor jumped. The tractor having jumped, it moved forward with Mr Tavua attempting to steer it to avoid it colliding with his motor vehicle. Mr Tavua became caught up in the orange tree at the end of the row whilst attempting to steer the tractor and fell under the tractor and its wheel and suffered fatal injuries. Mr Dubos' evidence was that this was the more likely scenario. 66. In cross examination, Mr Dubos agreed that one way of eliminating the possible risk that might be posed by a parked vehicle in and around the orchard is to insist that vehicles be parked in the parking area adjacent to the packing shed, however, his evidence was that this would be difficult to put in place and impracticable. His evidence was, that parking parallel to the fruit trees is a safe way to park a car as well as parking in the packing shed area. Mr Dubos' evidence was that it was impracticable and unreasonable to park in the car park. His evidence was that if Mr Tavua had parked parallel to the fruit trees, then it would have been a safe and practical method of parking. Mr Dubos stated that if Mr Tavua was wearing a seat belt, it was likely in terms of the scenario posited by WorkCover that it might have saved him. Prosecutor's Submissions 67. Mr R Reitano's submissions can be conveniently summarised as follows: · The risk that was created, or the detriment to safety created by having Mr Tavua's vehicle parked at the end of rows 3 and 4 was patently obvious. On either scenario, had the car not been parked there the accident would not have happened. · The risk was created by the car being parked in the position at the end of rows 3 and 4 and by allowing Mr Tavua to park in the orchard. · It is blatantly obvious that parking cars in and around areas where they don't need to be parked and in and around areas where work is being undertaken, as distinct from the car park, creates a risk to health and safety, particularly where there is a possibility that employees will disobey instructions and not park in areas where they are instructed to park. · That the instructions regarding parking were inadequate and evidence that the instruction in respect of parking was changed can effectively be used as evidence of inadequacy in the first place: Workplace Authority of New South Wales (Inspector Barnard) v Rail Infrastructure Corporation (2001) 109 IR 209. · That there was an absence of adequate training: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57. · The instruction that simply says "park your car at the car park or in the row parallel to the row that you are picking" does not enlighten the employee as to the reasons why they should do so, nor does it do anything to alert them as to the possible risk. It was contended that this was not an adequate instruction. · Relevance of foreseeability of the particular circumstances of the accident: Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector) Ch'ng) (1999) 90 IR 432. It was submitted that the important focus for the prosecution is the risk to health and safety and not, as might be suggested, the causes of the accident. It was submitted that the risk was known based on what was found in the Induction Manual and the evidence of Mr Dubos and thus it was contended reasonably foreseeable. The inadvertence or disobedience of instructions by employees is not a defence: Riley v Australian Grader 103 IR 143, Maine Lighting 100 IR 248 at 257 and WorkCover Authority of New South Wales v Blacktown City Council 124 IR 59. · It was relatively easy and reasonably practicable to guard against the risk constituting the offence. It was submitted that Mr Dubos' opinion that it wasn't reasonable or practicable to ensure cars were not parked anywhere near the orchard so as to eliminate the risk entirely should be rejected. Any inconvenience could have been overcome by having cars transporting people backwards and forwards, or alternatively, using the tractor. · There was no evidence that would enable the Court to conclude that it was not possible to have a designated supervisor of the orchard, nor any evidence regarding the costs of employing such a supervisor to eliminate the risk. · The statutory defence as to whether it was reasonably practicable to ensure the safety of the employees working in the orchard on the day in question is not made out. In this regard, it was submitted that the conclusions of Mr Dubos and Mr Nardi in respect of complying with the Act should be rejected. Mr Nardi conceded in the circumstances of this orchard, compliance would have been relatively simple. 68. In summary, the thrust of the prosecution's case was that the parking of Mr Tavua's car on the headland at the end of rows 3 and 4 created the risk to health and safety which led to the breach of the Act. Submissions of the Defendant 69. Mr G Underwood of counsel appeared for the defendant. Mr Underwood's principal submission was: "That the cause of the untimely incident, at which it contends it had no control and to which it was impracticable for the defendant to take any steps so that it obtains the benefit of the defence under s 28, was that it was principally Mr Tavua alighting from the tractor which was the cause of his death and for which it was impracticable, other than to give the training which had been given to not only Mr Tavua on several occasions but also which was confirmed in evidence to have been given to Mr Vuadreu". 70. The defendant contended that Mr Tavua disobeyed clear instructions given by Mr Pavese in relation to alighting from the tractor. This, it was contended was the more likely of the scenarios that led to his death. 71. Mr Underwood submitted that there was a major issue between the prosecution and the defence about what instructions should have been given in relation to the risk that may arise in respect of the parking of the vehicles and supervision in relation to parking. Counsel submitted that it was quite clear that instructions were given to park in the car park or to park parallel to the rows of trees in alternate rows and not to park in other areas. 72. Mr Underwood submitted that if a worker is given directions to park in A or B, that doesn't mean that there is a failure to put in place a safe system of work if an employee is not told each particular area where he is not to park because obviously an incident can happen at any particular area on the farm. It was further submitted that it was inappropriate to give a positive direction, that is, where to park, and at the same time indicate to an employee that he should not park in one or more designated spots. 73. Mr Underwood submitted that the fact that the Training Induction Manual at the time only designated car parking in the car park adjacent to the packing shed, is fully explained by the positive instructions which were given orally to Mr Tavua and also to Mr Vaudreu. 74. Furthermore, the giving of the instructions, in addition to what was in the Induction Manual, is a clear, unequivocal instruction that was given to Mr Tavua and which he disobeyed. Counsel submitted that it is principally the disobeying and the failure to follow the accepted alighting procedures from the tractor which was the instrumental cause of the accident. It followed, it was so submitted, that if Mr Tavua had alighted from the tractor, put it in neutral, turned the engine off, the fact that Mr Tavua's car was parked at the end of rows 3 and 4 would have been an irrelevant consideration. 75. Mr Underwood accepted that the parking of Mr Tavua's car was in breach of instructions given, but submitted that it would not have been the cause of Mr Tavua's death if he had followed the instructions in properly alighting from the tractor. Mr Underwood submitted that it is the fact that Mr Tavua did not follow the instruction in relation to alighting from the tractor which is the principal cause of the accident which set in train the unfortunate sequence of events. Legal Principles 76. I observe that s 8 of the Act is the successor provision to s 15 of the OH&S Act 1983. I propose to apply the principles developed by this court when considering prosecutions brought under s 15 in considering this matter. 77. Walton J Vice-President recently reviewed the legal principles which govern the operation of s 15 and s 16 of the Occupational Health & Safety Act 1983 in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207. His Honour said at [123]-[124]: ... The summary of authorities distilled by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 288 - 289 and endorsed recently by the Full Court in WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] 110 IR 447 at [16] provides an excellent overview: ... An extensive review of the nature of the liability created by s 15(1) was recently conducted by the Full Bench in Drake Industrial (90 IR at pp 449-453) by reference to the authorities as they had developed. In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at pp 288-289, Hungerford J had occasion to again review this general question and, after citing the main authorities concerned, drew the following propositions: (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence. The Nature of the Duty: Absolute; Pro-active; Unable to be Delegated and owed to Careless Employees 124 As Hungerford J stated in his first two principles, the offence created by s15 is independent of fault: every leading authority describes the section as having created an absolute or strict duty; obligations; or liability. The absolute nature of liability under s15 was contrasted with "at fault" liability such as negligence by Fisher CJ in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209: In Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467, it was held that s 15(1) of the Act created an absolute liability in employers to conform with the terms of the section, but 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. It is correct to say that this failure is not the same as a failure of a duty to take care at common law where the standard of the duty is that of the reasonable and prudent man. Here, the standard is absolute. If there is a failure, subject to s 53 of the Act, however understandable the failure might be, liability is absolute. 78. His Honour continued at [126]: 126 It follows from the exacting nature of the obligation and from the Full Court's observations in Ridge Consolidated v Meagher that, as the Courts have often held, employers must be proactive in securing the health, safety and welfare of employees and contractors. 79. In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121, Walton J Vice-President (with whom Wright J President agreed) provided a recent statement of the above principle: [43] Further, the Full Bench in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 (at [32] - [33]), by reference to WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25, recently emphasised the extent of the duty cast upon an employer "in the strongest possible language" by the Occupational Health and Safety Act . The relevant passage from Schrader, adopted by the Full Bench was in the following terms: [56] In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995 at p18) (approved recently by Full Benches of this Court in Profab at [37] and Riley v Australian Grader Hire (2000) 103 IR 143 at [15]): ... the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. [57] Equally forceful observations have been made, an example of which includes the judgment of Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467, in which his Honour held (at 470): In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. [58] It is pertinent to observe also the comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. [59] I would also concur with the observations of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 where, in the context of a s15 prosecution, his Honour observed that the Act imposed (at 209): ... an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. 80. It is well settled that an employer's obligation is to ensure the health and safety of its employees and contractors and extends to the hasty, careless, inadvertent, inattentive or unreasonable employee and contractor. This is a facet of the pro-active nature of the duty described in such forceful terms by Hill J in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety" and by Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the majority held (at [45] - [46]): [45] The duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 – 312 and WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. [46] We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 (at par 15) as follows: "The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: 'Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry'." (See also WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722). 81. And later (at [48]): [48] The employer must also guard against acts of inadvertence to the fullest extent practicable: Inspector Ankucic v Naomi Cotton Co-operative Ltd (unreported, 97/2251, 14 July 1998, Hill J). We note in this respect the observations of the Full Bench in Australian Grader Hire (at par 16) as follows: "Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p 44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)'." 82. It is worth stressing the frequently repeated principle that the duty is one to prevent risks to safety, not to prevent the risk of injury. This was vividly illustrated by Hill J's description in Atco Controls of the duty (quoted in WorkCover v Fletcher Constructions, extracted above): "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace". As noted in Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 and subsequent authorities, it follows from the correct interpretation of the duty as one to prevent risks to safety, that (defences aside) liability will ensue if an employer's act or omission "created a situation of potential danger to the health and safety of people at its workplace". 83. In Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, Wright J President and Walton J Vice-President considered a submission that the appellant had no way of assessing any risks which may have been associated with the use of another machine. This risk created by the use of that machine, it was said, was a risk which the appellant could not predict or guard against. Their Honours said at 452: First, the submission focuses on the foreseeability of the alleged risk to safety. The authorities cited above establish that in order to demonstrate a breach of s15(1) the prosecutor is required to prove the existence of a failure on the part of the employer which is causally connected with the risk to safety. There can be no failure on the part of the employer in not taking steps to preclude a risk which was impossible to anticipate: see WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, Peterson J). However, the appellant goes further and submits that no breach of s15(1) is committed where the employer does not know of the hazard and could not reasonably know about it. The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1). Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 84. Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 285-288 considered various decisions that discussed the nature of liability under s 15(1) of the OH&S Act 1993 and at [20] his Honour said: From those authorities I would draw the following propositions as to the now settled nature of the liability created by s15(1) relevant to the instant cases: (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence. 85. It is clear that careful attention must be paid to the correct identification of the risk, the subject of the charges. Police Service (No 2) makes it clear that it is inappropriate to seek to artificially confine the risks to one narrowly defined by reference to an accident with the benefit of hindsight. It is the general class of risk which matters. The danger repeatedly cautioned against of focusing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation. 86. As stated by Fisher P in Cullen v State Rail Authority (NSW) it is still necessary to prove that the employer failed in the language of the section in at least one of the many obligations placed upon him. The requirement to prove a causal connection between the actions or failures of an employer and the risk to health and safety is one of the most significant limitations on liability. 87. In Drake at 452 the Full Bench stated: The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. This consideration is carefully explained in the decision of the Full Court of the then Industrial Court of NSW in Haynes. Commenting on the reasoning of the trial judge, their Honours said (at 156-157): "The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that "(t)he occurrence of the accident itself does not however establish the commission of the alleged offence": see Dawson (State Rail Authority of New South Wales v Dawson (1990) 37 IR 110) (at 120-121) and McMartin v The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, at 7-8). But, her Honour then concluded, concerning the case against Manufacturing, that "(i)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was causally connected with the front end loader hitting Mr Chen. It seems to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the Defendant which failed to `ensure the health, safety and welfare at work' of Mr Chen and Mr Ding. The prosecution of Industries was considered by her Honour according to "(m)any of the comments ... made in relation to the prosecution against Manufacturing"; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondent were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That over emphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objective drawn therefrom. Section 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident." 88. In respect of foreseeability and the operation of s 28, Drake Personnel makes it clear that although foreseeability of a risk has no application to liability under s 8, it is relevant when considering whether a defence has been established under s 28. 89. It is well settled that to establish a defence under s 28 of the Act, it must be proven, to a civil standard, that it was not reasonably practicable in the circumstances to have complied with the relevant duty, or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: Legge v Coffey; Drake Personnel (at 457); and WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182. Consideration 90. It is clear from the preceding review of authorities that in order to determine liability, the Court should identify the relevant risk; determine whether, as a matter of fact, there was a relevant failure by the defendants (by act or omission, as particularised in the charges); and, if so, determine whether there is a causal connection between the risk and the defendant's failures. 91. The relevant risk, in my view, was allowing cars to be parked at the end of rows of fruit trees in the orchard. In my view, there was not a sufficient system of work in place in relation to the parking of cars which was safe. In these proceedings, the charges against the defendant allege a failure to "ensure the health, safety and welfare at work of all of the employees of the Defendant", particularised as failing "to ensure that the premises (and/or the means of access to or exit from the premises) were safe and without risks to health, in that it failed to ensure that vehicles were not parked in the orchard, in particular at the end of the rows of fruit trees, such that the parked vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; failing to adequately instruct or supervise employees to ensure that they did not park vehicles in the orchard, in particular at the end of rows of fruit trees, such that the vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; failing to provide or maintain a system of work in relation to the carting of fruit at the premises by use of the tractor and trailers that were safe and without risks to health; failing to ensure that any plant, in particular the tractor, provided for use by the employees at work at the premises was safe and without risks to health, by failing to ensure that a safety belt or other restraining harness device was fitted to the tractor for the use of the operator." 92. The defendant had used the HACCP system to provide quality assurance contained in the Employee Induction Training Manual. Under the heading "Car Park" the following appeared: "parking facilities are located to the side of the packing shed. Please keep vehicles parked in that area. Bikes can also be stored in the same area." To this system was added the oral instruction of Mr P Pavese: "to park in the orchard parallel to the rows of trees to be picked". 93. The question that arises is whether the system of work that provided for the parking of vehicles in the orchard posed a risk to the safety of an employee driving a tractor. In my view, the answer is yes. 94. In Genner the Court emphasised that for a system of training to be adequate, in accordance with an employer's obligation under the Act, what must be shown is that the "system is sufficiently systematic or comprehensive, contains appropriate detail and, importantly, is sufficiently promulgated to its workers who are themselves adequately trained in their implementation". In Genner these observations were made in the context where the particular method of work (in that case the method of work providing for the entering and exiting of trucks to a worksite) was not the subject of consideration on appeal. 95. In my view, it was inevitable upon a proper consideration of the evidence that a tractor would confront a car parked at the end of a row of fruit trees. Mr Vuadreu in cross examination gave the following evidence regarding the parking of cars (at T 16): Q: Do you recall where you saw for the first time on 23 September 2001, Mr Peni Tavua's car? A: When I came in there, all the cars was down here with my daughters, down here, right at the end of the thing in here. Q: Whereabouts? A: At the end of this, of this patch here. Q: Did you see, whose cars were there? A: Well my daughter and Peni's car. Q: And what time did you arrive at the orchard on 23 September? A: It was about 11, half 11, I couldn't remember the time exactly... ... (At T 21) Q: And where you say back to the place which we did the pick, sometimes were cars parked parallel to the rows that you were picking in adjacent rows? A: Yes, sometimes they do that. But actually the tractor is coming up and down, you have to keep the road clear so either you park away from the farm beside the road or right at the back of the farm and right at the shed. ... (At T 22) Q: Was it the situation that sometimes cars were parked in a parallel to the rows of the rows not being picked by the pickers? A: That's correct. ... (At T 23) Q: I will give you another sticker, a yellow sticker with a 3 on it, if you just indicate where your car was? A: My car is right at the back here. This is where we bringing my car, is at the back here. This is the main road. 96. Mr Vuadreu indicated on the aerial photograph that his car was parked in the block behind the block where the oranges were being picked on 23 September 2001. 97. In re-examination, Mr Reitano sought to clarify where certain cars were parked on 23 September 2001. (At T 24) Q: Is it the case that in the middle of the map there is the words "packing shed"? A: Yes. Q: And is that where you refer to where you understood Peni normally parked his car? A: That's correct. Q: If I can just ask you to move to the bottom right hand corner of the map, you indicated that, I think your daughter's car, I may be wrong, it may be your son in law's, but one of them and Peni's car was origianlly parked in the bottom right hand corner of the map when you arrived on the day? A: Over here. Q: Now we are going the (sic) try and describe this. It is at the intersection of Murray Road and -? A: No, that is not the intersection, there is just the end of the rows, there is another patch in there. Q: Where Murray Rd meets the break between the block of oranges on the far right hand side of the map? A: Yes. Q: And were they parked in amongst the trees or in that area that I described as the break between the two blocks? A: They were parked just in here right in the head land here. Q: When you say right in here at the headland, you have indicated about four rows of trees along roughly? A: Somewhere here because I just can't - and I just drive past. Q: I understand what you're saying but it's very important that everyone else does and they can't see, that is that (sic) problem. I am trying to describe where you are saying here somewhere along Murray Rd at the head, you are pointing to the third or the fourth or even the fifth row of trees? A: It could be there, somewhere - Q: Is that what I have described a correct description? A: Yes. Q: So they would be parked, as it were, alongside the head of the road? A: Yes. (At T 25) Q: ... I will just go to the third thing you indicated where you parked? A: Yes. Q: And that is the yellow sticker that has the number 3 on it? A: Yes. Q: Which is towards the top right hand corner of the map? A: Yes. Q: And can you indicate was it amongst the rows or once again was it -? A: No, there is a space there between these two rows here, right. There is a big space there. I parked it in there just beside this row here. Q: Once again at the head of the row? A: No, just parallel to this. Q: When you say" parallel? A: Just like a straight line, just follow the road. Q: A straight line from right to left? A: Yes. Q: It's not a road but in that break between the two lots of trees? A: Yes. ... Q: And where Peni normally parked, were cars ever parked anywhere else? A: Well you can park - I mean the car straight inside the rows here, unless, if the rows already been picked and if it's not been picked, no, it's going to, it will never be the way to stop; not to block the tractor from coming in. Q: Did anyone tell you about where you should park your car? A: Yes the owner of the farm always keep clear from here, I park in the shed. Q: The packing shed? A: There is a carpark area there, or park it away from the place where you pick. Q: And is that what you were told "away from the place where you were picking"? A: Yes. 98. Ms Toga's evidence confirmed that given by her father, Mr Vuadreu, that her car was parked approximately four or five rows to the left of rows 3 and 4 at the end of the row facing Murray Road. Ms Toga recalled that Mr Tavua's car was parked near her car. Furthermore, Ms Toga's evidence was that no-one told her where to park or not to park when she arrived at the farm. She saw where the picking was taking place and parked her car. Ms Toga placed a sticker on the aerial photograph indicating her car was parked some four rows to the left of rows 3 and 4 and in the headland region. Ms Toga's evidence was a third car was parked in row 2 parallel to the rows of trees which were being picked. 99. The evidence discloses that there were four cars parked in the orchard on 23 September 2001 and only one of those cars was parked in accordance with the manual or oral instructions provided by Mr Pavese to employees. I find beyond reasonable doubt that Mr Tavua's car was initially parked some four to five rows to the left of rows 3 and 4 with Ms Toga's car in the headland. It was subsequently moved to the headland at the Murray Road end of rows 3 and 4 partially blocking the entrance to those rows. 100. In order to meet the requirements of s 8 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. The majority in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 219 observed: In order to ensure such a system was safe as required by s.15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. 101. In this matter, there was no instructions given to Ms Toga as to where she should park her vehicle. The evidence establishes that Mr Tavua initially parked in the headland some three to four rows from where picking was being conducted prior to subsequently parking his vehicle at the end of the rows where picking was being conducted. The charge against the defendant did not merely allege a failure by the respondent to provide and maintain a safe system for the parking of vehicles (in the sense of the particular method adopted at the site). True it is that the charges included a failure to provide a safe system of work in this respect but it is the failure of the employer's system to ensure that a safe work method was adopted for the parking of cars that is the subject of prosecution and, in particular, the failure of that system to ensure a method of work was adopted that prevented risks being posed by parked vehicles. 102. It was inevitable, as I have already observed, that an employee driving a tractor would confront a car at the end of a row of fruit trees and that such a car would pose a risk to the safety of the employee driving the tractor. It is this deficiency in the system of parking implemented by the defendant that caused the detriment to safety and a breach of the Act. By failing to provide and maintain a system of work that vehicles parked in the orchard did not pose a risk to the safety of an employee driving a tractor and carting fruit the employer failed to ensure the safety of its employees. 103. In accordance with the observations of the Full Bench in Genner, the defendant must be able to show that the alleged system of work was sufficiently certain in its operation, sufficiently promulgated and enforced so as to ensure the relevant workforce is aware of what is required and that the employer has taken steps to ensure the work method is safe and observed. 104. Ms Dubos' evidence in cross examination was that both he and Mr Pavese had looked at the various parking options and believed that if persons were instructed to park parallel to the fruit trees, the risk of employees parking anywhere else was low. Needless to say, the obligation imposed on all employers is to ensure the method of work is safe. In my view it was not. 105. There is plainly a causal connection between the company's failure to provide systems, supervision and risk assessment in relation to the parking of motor vehicles in the orchard and the risk that employees may disobey the Employee Procedure Manual or the oral instruction given by Mr Pavese. Mr Pavese's evidence was that he attended the orchard once in the morning and once in the afternoon. In my view, this was insufficient to ensure that employees did not park in the orchard, in particular, at the end of the rows of fruit trees, such that a vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees and out from in between the rows of fruit trees. 106. In respect of Ms Toga, no instructions whatsoever were given to her by the company. This failure, particularised in the charge, in my view, is established. The risk was allowing employees to park in and around the orchard, in particular, at the end of the rows of fruit trees where a vehicle so parked, in my view posed a risk to the safety of an employee driving a tractor out of or into the row of fruit trees. 107. I have earlier set out evidence concerning the action of the employer since the accident. Mr Reitano submitted that the change in instructions regarding parking in the orchard pointed to the inadequacy of what existed prior to the accident. In Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8, Walton J Vice President stated at 27: Whilst the response by the defendants after the accidents was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendants to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (at 21-22). 108. In my view, the additional instruction that vehicles must be parked parallel to the rows of fruit never at the end of the rows (defendant's emphasis) illustrates the inadequacy of the system prior to the accident. 109. A further question arises in respect of the adequacy of the instruction provided to Mr Tavua and other employees. Mr Reitano submitted that the instructions provided to Mr Tavua or the other employees did nothing to enlighten them as to the reasons why they should do so, nor did it do anything to alert them to the possible risk. Mr Vuadreu gave evidence that Mr Tavua was a competent and experienced employee who had worked in the fruit picking industry for many years. In my view, as was found in Genner, it is not possible to infer that Mr Tavua simply disregarded the dangers created when he parked his car at the end of the row of fruit trees. The rational conclusion from the evidence was that Mr Tavua did not fully envisage the risks created by parking his vehicle where he did. This was by reason of a failure to adequately train him in relation to the safe operation of the orchard. Although I accept that Mr Pavese instructed Mr Tavua each and every year in respect of safe car parking, it was the inadequacy in the instructions that were given that led to Mr Tavua not fully envisaging the risks created by not parking parallel to the row of fruit trees that was being harvested. There was therefore a failure to adequately instruct or supervise employees to ensure that employees did not park vehicles in the orchard at the end of rows that posed a risk to an employee driving a tractor. I find this particular of the charge for the reasons given, is made out on the requisite standard of proof. 110. A further failure relied upon by the prosecutor was that a safety belt or other restraining harness device was not fitted to the tractor. I am not satisfied that there is sufficient evidence before me to make out this particular. I therefore find that the prosecutor has failed to establish this particular. 111. It is necessary to deal with a number of further submissions of the defendant. Mr Underwood submitted that it was principally Mr Tavua's alighting from the tractor which was the cause of his death and for which it was impracticable for the defendant, other than to give the training which had been given to him and other employees to foresee or control. It was submitted that the only practicable way in which that could be done would be have someone with Mr Tavua as he was carrying out a task (driving the tractor) in which he was fully experienced and adequately trained and should have been second nature to him. There was no practical step which could be taken by Mr Pavese in relation to that aspect of causation. This submission suffers from the same vice that I have already referred to, that is, it focuses on the accident itself and not the risk to safety. I reject it. In my view, the argument advanced by the defendant erroneously concentrated on the forseeability of the particular circumstances of the accident. The general duties created by the OH&S Act are directed to obviating "risks" to the health, safety and welfare of persons in the workplace: Haynes v CI & D Manufacturing at 158-159. 112. I have set out the principles found in Drake Personnel Ltd t/a Drake Industrial, above at [88], which can be summarised in respect of the above issue as follows: ... it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 113. I have earlier determined that in my view, the risk was that there was not a sufficient system in place that ensured the parking of cars in the orchard was safe. This risk was known to the defendant as it was referred to by the experts who prepared the Employee Manual. Mr Dubos also gave evidence that a risk existed in respect of the parking of cars in the orchard although he considered such risk as being low. It follows that the risk being known, the obligation on the defendant was to ensure the safety of the employees in the face of that known and identified risk. 114. By focusing on the actual accident this led Mr Underwood to further submit that the incident occurred through Mr Tavua's disobeying of clear instructions in relation to alighting from the tractor. There is no evidence before me, as I have previously stated, that deals with what Mr Tavua did immediately prior to his death. Different scenarios have been advanced by the prosecutor and by Mr Dubos for the defendant, however, in my view, neither of these are to the point. Even if they were, however, it is appropriate at this point to again observe that the duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 (at 311-312). 115. I respectfully agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15]: ... The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry." 116. Mr Underwood also submitted that Mr Tavua disobeyed the clear and unequivocal instructions given to him regarding parking. This submission falls into the same category as I have previously dealt with regarding employees who disobey instructions. 117. Mr Underwood referred the Court to Ferraloro v Preston Timber Pty Ltd (1982) 42 CLR 627, a decision of the High Court of Australia where Mason, Murphy, Brennan, Deane and Dawson JJ said at 629: The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task. 118. Mr Underwood submitted that the above passage is the corollary of s 28(b) of the Act, submitting that it is only injury which occurs by causes other than, in this instance, the employee's disobedience of very clear instructions which were given to him and which fall outside the intention of the passage in Ferraloro for which the defendant is liable and can be prosecuted. 119. Ferraloro was a case dealing with negligence and personal injury. In my view, it is inappropriate to introduce common law tests into a statute which imposes an absolute obligation on an employer to ensure the health and safety of its employees. This Court has not embraced the common law concepts of duty of care in determining whether a breach of s 8 or its predecessor (s 15) has occurred. See, for example, Haynes, Drake Personnel t/as Drake Industrial and Riley. 120. Specifically, in relation to its s 28 defence, the defendant relied on the evidence of Mr Pavese, Mr Dubos and Mr Vuadreu that Mr Tavua was a well trained, well experienced tractor driver who always followed instructions in relation to stopping the tractor and getting on and off the tractor. The defendant bears the onus of establishing a defence under s 28 but does so only on the civil onus. Nevertheless the onus is substantial. 121. The defendant's submissions were that Mr Tavua, by placing his car in an unusual position, contrary to what he normally did, started a chain of events which led to his death, which was a cause over which the defendant had no control. It was further submitted that it would have been impracticable for the defendant to take steps to control that event. The only practicable way in which that could be done would be to have someone with Mr Tavua as he was carrying out a task in which he was fully experienced and adequately trained and should have been second nature to him. There was no practicable step which could be taken by Mr Pavese in relation to that aspect of causation. 122. As I have previously determined, I am not concerned with the accident, but rather the risk to safety caused by cars being parked in the orchard not in accordance with the Manual or the oral instruction given by Mr Pavese. The risk to safety arose in the orchard as a result of cars being parked not in accordance with the manual and oral instructions. 123. In my view, this was a relatively easy risk to guard against. The question that arises is whether it was reasonably practicable to guard against the risk constituting the offence. In this case, the risk of having cars parked in wrong places around the orchard was known and identified, albeit, as a low level risk. 124. A further question that arises is whether it was reasonably practicable to ensure the cars weren't parked anywhere near the orchard so as to eliminate entirely the risk that emerged on this day. Mr Dubos' evidence was that it wasn't reasonable or practicable because of the inconvenience that would be caused to the employees in firstly having to walk approximately some 400 to 500 metres carrying their lunch, sun screen and other items that they may require during the day. I do not accept this evidence. In my view, there were a range of ways that such inconvenience could have been overcome. Firstly, walking such a short distance does not seem to me to be unreasonable or impracticable. Cars could have been used to transport the employees to where they were picking and return them to the car park next to the packing shed. The employees lunch, sunscreen and other items could have been conveyed in one of the trailers attached to the tractor. There was no evidence called before me that it was not possible to have another designated car parking area closer to block 10 which was being harvested on 23 September 2001. Furthermore, no evidence was called which would enable me to conclude that it was not possible to have a designated supervisor of the orchard, or that it wasn't practicable. No evidence was before the Court regarding the financial position of the orchard, or the costs that may be involved in having a designated supervisor. 125. In WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 259, it was stated that the practicability of adopting measures directed at addressing a particular detriment to safety required a balancing of the magnitude of the risk and the gravity of harm likely to result, with the sacrifice involved in the measures necessary for averting the risk. It was, furthermore, observed that it would not generally be practicable to take measures to guard against a detriment to safety that was not reasonably foreseeable. This approach was adopted by the Full Bench of this Court in Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 at 82-83. 126. As I have already observed, the risk was identifiable and known to the defendant and, in my view, there were reasonably practicable measures available to ensure that cars were parked in such a manner so as to eliminate entirely the risk that emerged on the day. In short, it was reasonably practicable for the defendant to comply with the provisions of the Act by ensuring supervision and a safe system of work by having cars parked in the car park, or in a row immediately adjacent the rows being harvested and not at the end of a row. Far from demonstrating the impracticability of taking measures, the defendant, by adopting the system after the accident, showed how a system could be put in place and how reasonable, simple and practicable it was. 127. The defendant has failed to discharge the onus upon it in relation to the s 28 defences. 128. For the above reasons, I find the offence proven in the prosecution brought in Matter No IRC 5297 of 2003 with the exception of the particular relating to the safety belt or other restraining harness device. 129. The matter will be listed for directions at 9.30 am on Friday 19 November 2004 for the purpose of programming a sentencing hearing. 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