Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority v Red Lea Chickens [2000] NSWIRComm 203 PROSECUTOR: PARTIES : WorkCover Authority of New South Wales (Inspector Macbeth) DEFENDANT: Red Lea Chickens Pty Ltd FILE NUMBER: IRC 6669 of 1999 CORAM: Boland J CATCHWORDS : Occupational health and safety - breach of s 15(1) of the Occupational Health and Safety Act 1983 (NSW) - injury to employee following collision with vehicle - plea of not guilty - failure to put in place an adequate system to separate employees and motor vehicles on employer's premises - failure to put in place an adequate system for controlling motor vehicle traffic at the premises - casual connection found between conduct of defendant and consequent risk to health or safety of employees - offence proven LEGISLATION CITED : Occupational Health and Safety Act 1983 Evidence Act 1995 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 CASES CITED : WorkCover Authority of New South Wales (Inspector Corbett) v P Ward Civil Engineering Pty Limited [1998] NSWIRComm 212 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 WorkCover Authority of New South Wales (Inspector Peter Hannan) v Bitupave Limited, trading as Boral Asphalt [2000] NSWIRComm 50 WorkCover Authority of New South Wales (Inspector Schultz) v Pioneer Road Services Pty Limited [1998] NSWIRComm 479 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998)83 IR 362 HEARING DATES: 08/23/2000; 08/25/2000 DATE OF JUDGMENT: 10/27/2000 PROSECUTOR: Mr I. Taylor of counsel Solicitor: Mr G. Henderson PriceWaterhouseCoopers Legal LEGAL REPRESENTATIVES: DEFENDANT: Mr G. Watson of Counsel Solicitor: Ms S. Thomas Sparke Helmore JUDGMENT: 1 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J DATE: 27 October, 2000 Matter No IRC 6669 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MACBETH) V RED LEA CHICKENS PTY LTD Prosecution under s.15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 Red Lea Chickens Pty Limited ("the defendant") is a company incorporated in New South Wales and is located at Flushcombe Road Blacktown. It is engaged in the business of poultry production and processing. On 12 December 1997 at the defendant's premises, an employee of the defendant, Christopher Peterson, fell under a semi-trailer truck and both of his legs were severely injured by the wheels of the truck. 2 A prosecution was instituted against the defendant by Inspector James Henry Macbeth of the WorkCover Authority of New South Wales for an alleged breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). Section 15(1) imposes a strict liability on an employer to "ensure the health, safety and welfare at work of all the employer's employees." 3 The charge against the defendant was that: "it failed to ensure the health, safety and welfare of its employees, in particular, Christopher Peterson in that it failed to provide or maintain a system of work that was safe and without risks to health for the movement of motor vehicles and employees in the rear yard area of the premises. Particulars of the Defendant's failure to provide or maintain a safe system of work that was safe and without risks to health are as follows: a) Failure to put in place an adequate system to separate employees and motor vehicles using the rear yard area of the premises; b) Failure to adequately instruct employees as to the safe pedestrian usage of the rear yard area of the premises; c) Failure to adequately warn employees of the risks posed by motor vehicles to pedestrians using the rear yard area of the premises; d) Failure to adequately instruct drivers of vehicles entering or leaving the rear yard area of the premises to keep a lookout for pedestrians using the rear yard area; e) Failure to put in place an adequate system for controlling motor vehicle traffic at the premises. 4 The defendant pleaded not guilty. 5 Mr G Watson of counsel appeared for the defendant and Mr I Taylor of counsel appeared for the prosecution. Background Facts 6 The incident giving rise to the charge occurred at about 11.45am on 12 December 1997. Set out in Annexure One is a sketch (not to scale) of the incident drawn from photographs and sketches tendered into evidence. The sketch assists in explaining how the incident occurred. The area in the sketch is known as the "live bird" area. 7 Mr Peterson had been working in the "Hanging Room". He had started work that morning at 4.30 am. At about 11.45 am he was leaving the area of the Hanging Room, along with other employees to have his lunch break. According to the evidence, Mr Peterson left the Hanging Room at the same time as other employees but upon leaving he struck out in another direction as the sketch shows. There is conflicting evidence about what occurred immediately after Mr Peterson left the Hanging Room. Mr Maurice Velcich, who was the General Manager of the defendant, was standing talking to Mr James Milnes at the position shown on the sketch. He said in his evidence that he saw the employees leave the Hanging Room and that a group of the employees walked past him and Mr Milnes in the direction shown on the sketch, towards the lunch room. Mr Velcich said he saw Mr Peterson leave the Hanging Room but he was unsure in which direction he headed. Mr Velcich said about three to five minutes after the employees left the Hanging Room he saw Mr Peterson coming from behind the conveyor heading towards the truck. Mr Peterson was three to four metres from the truck. The truck had just begun to move forward to position itself to reverse into the hopper. Mr Velcich said that as the truck moved forward Mr Peterson "walked straight into it ………..and he fell under the wheels." Mr Velcich described Mr Peterson's appearance or demeanour as he walked towards the truck as though he was "in Disneyland", that "He was not there" and that "He just looked lost". 8 Mr Milnes, an employee of the defendant, saw Mr Peterson leave the Hanging Room with other employees. He agreed with Mr Velcich that Mr Peterson split off from the other workers, walked between the stationary truck and the forklift and towards the hopper behind the conveyor. Mr Milnes said that Mr Peterson came back about five minutes later and that "he was coming along with his head down and was walking towards where the truck was just coming around …and I called out to him." 9 It was not entirely clear from the evidence, but it appears that Mr Peterson's upper body struck the truck and somehow his legs fell under the rear wheels of the trailer which then rolled over his legs. A moment before this occurred Mr Milnes shouted a warning to Mr Peterson. The warning was too late to prevent Mr Peterson walking into the truck. Mr Milnes went to the truck driver who reversed the vehicle off Mr Peterson's legs. Mr Velcich rang '000' and he and Mr Milnes rendered assistance to Mr Peterson. 10 Mr Peterson's evidence was that he left the Hanging Room with all of the other employees, removed his apron and hair net and headed towards a fence where his 'Esky' containing his lunch was situated. Mr Peterson said that as he left the Hanging Room he felt "really tired". It had been his first day "hanging chooks" and he said he had been sent to the Hanging Room for "disciplinary reasons". As he headed between the parked forklift and the conveyor (along the route shown on the sketch) towards his 'Esky' near a fence he heard a shout, turned in the direction of the shout but it was too late and he hit the truck and "it sucked me under". Mr Peterson estimated that the time between hanging up his hairnet and apron and coming into contact with the truck was about 15 seconds. 11 It can be seen from the sketch that Mr Peterson's evidence differs from that of Mr Velcich and Mr Milnes as to the direction from which Mr Peterson was coming towards the truck. Given my findings in the matter, it makes little difference which direction Mr Peterson was coming from when he collided with the truck. 12 Mr Charles Farrugia was the driver of the truck. He was employed by Camilleri Stockfeeds to drive a semi-trailer to the defendant's premises twice a day to collect offal. On the day of the incident Mr Farrugia was unable to immediately reverse under the hoppers that discharged the offal because some bins were blocking access. Mr Farrugia consequently parked his truck in the position shown on the sketch, ready to reverse to the right into the bay. Mr Farrugia apparently alighted from his vehicle and spoke to Mr Milnes and a Mr Morrison. Once the bins had been removed Mr Farrugia climbed back into the cabin of his truck and began to move forward in order to position the vehicle to reverse into the bay. He said he looked into his rear vision mirror but could see nothing that would cause him to stop. As his vehicle moved slowly forward, about a metre or two, he heard Mr Milnes "yelling" for Mr Peterson to look out and then he heard a scream. He stopped, saw Mr Peterson under the first axle of the trailer and reversed his vehicle. He then went to Mr Peterson's aid. 13 In other evidence given by Mr Farrugia he said that on previous occasions he had visited the defendant's premises he had seen pedestrians walking in the area in which he drove, that some months prior to the incident he had received instructions from the watchman at the entrance to the defendant's premises to slow down when going in and out of the driveway and to look out for pedestrians. In cross-examination, Mr Farrugia said that he visited Mr Peterson in hospital and that Mr Peterson had said to him "Look mate, I'm sorry, it wasn't your fault." Mr Peterson denies he said this to Mr Farrugia. Consideration 14 It is not in issue that the defendant is an employer and Mr Peterson was an employee of the defendant, at work, at the time of the alleged offence. There is no challenge to the authority of Inspector Macbeth to institute these proceedings. Mr Macbeth did admit under cross examination that his first impression was that the prosecution of the defendant should go no further because he did not think the prosecution would be successful but since that time he had changed his mind. 15 It is also not in issue that Mr Peterson was injured in the manner I have described. As Mr I Taylor rightly pointed out, however, the accident that caused Mr Peterson's injury does not establish the commission of an offence: State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 156; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449 per Wright J (President) and Walton J (Vice President). There must be shown some causal nexus between the breach of statutory duty and the fact of detriment to safety: Dawson at 121; Haynes at 159 and Drake Personnel at 449-450; WorkCover Authority of New South Wales (Inspector Peter Hannan) v Bitupave Limited, trading as Boral Asphalt [2000] NSWIRComm 50. 16 In Haynes the Full Court said at 158-159: The stated purpose of the OHS Act being "to provide effectively for the safety, health and welfare of all persons in all workplaces" in which "enormous reforms in worker safety, health and welfare" will be achieved in "the protection of workers in their employment from all risks resulting from factors adverse to health" by placing "responsibility on employers to ensure that they operate in such a way as not to endanger their employees" may only be seen in the manner stated by us. The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself 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; but, it seems to us, 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. 17 In WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd ( unreported, Walton J, Vice-President, IRC 4732, 4733 of 1997, 19 October 1999) his Honour said at pp 27-28: "Many decisions of this court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s15(1). It is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees: see McMartin : Drake at 34; Cullen at 209; Dawson at 120-121; Haynes at 156-157: and Kirby at 49-50. There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: WorkCover Authority of NSW v Maitland City Council (1998) 83 IR 362 at 377." 18 It seems to me, therefore, that I need to consider firstly, whether there had been a failure on the part of the defendant as alleged in each of the particulars of the charge. Secondly, if there was a relevant failure, whether there was a causal relationship between that failure and the consequent risk to the health, safety and welfare of the defendant's employees, in particular, Mr Peterson, occasioned by the movement of vehicles in the rear yard of the defendant's premises. I have to be satisfied of this beyond reasonable doubt. 19 Mr Watson submitted that the prosecution was required to show by way of evidence things that should have been done to prevent the accident occurring. I do not agree. In Drake at 451 Wright J, President and Walton J, Vice President stated: "Proof of the commission of an offence does not require a demonstration that particular measures should have been taken to prevent the risk. Rather it is sufficient either to show how the employer failed to provide for the health and safety of its employers or to prove the objective facts causing the detriment to safety and the causal connection to the employer's acts or omissions." 20 It is alleged under the first particular of the charge, that the defendant failed to provide or maintain a system of work that was safe and without risks to health in that it failed to put in place an adequate system to separate employees and motor vehicles using the rear yard area of the premises. The evidence shows that not only was there not an adequate system to separate employees and motor vehicles in the defendant's premises, including the rear yard but there was virtually no system at all. The only safety measures in relation to the movement of vehicles were: 1. a warning issued to drivers by the watchman at the front gate of the premises to slow down when going in and out of the driveway and to look out for pedestrians. This warning was given to Mr Farrugia a few months before the accident but at no earlier or later time that Mr Farrugia could remember; 2. a 15 kilometre speed limit sign was posted at the front gate of the factory premises and the same sign appeared on a side gate providing entry and exit to the factory premises. There were no signs warning pedestrians of vehicular traffic. 21 There were no road markings or signs (other than the 15 km speed limit signs) on the roadways within the factory precincts to be observed by vehicles in relation to where they may drive or park; there were no pedestrian crossings at appropriate points at roadways; there were no lanes marked for exclusive pedestrian use in areas where vehicles and pedestrians might pass close to one another; there were no fences or other barricades preventing pedestrian access to areas used frequently by vehicles or to prevent pedestrians using roadways at points that might be considered unsafe; there was no system in place to ensure that large semi-trailers, of the type driven by Mr Farrugia, could reverse into a confined area without risk to the safety of pedestrians. It was Inspector Macbeth's evidence that "There didn't appear to be any form of procedure to prevent the contact of persons and vehicles on the premises." 22 Clearly, in this respect, there was a failure on the part of the defendant to provide a safe system of work. Whether this failure had a causal connection to the risk to safety posed by the movement of vehicles and employees in the rear yard of the premises, is the next consideration. 23 Mr G Watson urged on me that no amount of warning signs or instructions to employees, pedestrian crossings or other traffic control systems would have prevented Mr Peterson colliding with the truck. There was no system, Mr Watson submitted, that could have prevented the accident. Mr Peterson, he said, was simply not looking where he was going and would have collided with the truck whether it was moving or stationary. Mr Watson relied on a number of decisions to support his argument, namely: WorkCover Authority of New South Wales (Inspector Corbett) v P Ward Civil Engineering Pty Limited [1998] NSWIRComm212; WorkCover Authority of New South Wales (Inspector Schultz) v Pioneer Road Services Pty Limited [1998] NSWIRComm479; WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362. A reading of these cases shows that they were decided on their own peculiar facts and circumstances. While they are informative of particular situations where the employer had been absolved of liability under s15 and s16 of the Act, they do not offer a great deal of assistance in resolving the particular matter before me. As Mr Taylor submitted, in these cases it was held that there was nothing more the employer could have done to avoid or remove the risks to safety. In the case before me, however, there were a number of actions that were reasonably practicable and could have been taken by the employer to obviate the risks to safety but these actions were not taken. 24 There was no evidence that Mr Peterson was under the influence of drugs. There was a proposition put to Mr Peterson in cross examination that he had spoken to a person by the name of Brent Pretty after the accident and told him that he, Mr Peterson, "was stoned on marijuana" at the time he walked under the truck. Mr Peterson denied this. Mr Pretty was called by the defendant to give evidence of the alleged conversation to prove that Mr Peterson was under the influence of marijuana at the time of the accident but an objection was taken by the prosecution on the basis that s 59 of the Evidence Act 1995 excluded the evidence as hearsay. The prosecution's objection to Mr Pretty's evidence was upheld. 25 Mr Watson argued that if the truck had been a brick wall Mr Peterson would have collided with it. It appears that Mr Peterson was in a semi-dazed state. Perhaps this was because of the early start that morning and Mr Peterson's feeling of tiredness because of the physical nature of the work but there is insufficient evidence for me to draw any firm conclusions about this. If however, the defendant had been charged with an offence under s 15 of the Act, arising out of an incident where Mr Peterson had collided with a brick wall in circumstances similar to what is before me, I find it difficult to imagine that the prosecution would have been successful. Mr Peterson may have sustained a bump on the head but most likely it would have been regarded as a careless act of inadvertence or negligence on the part of the employee against which there were no reasonably practicable or effective measures the employer could have taken to prevent it. 26 The collision by Mr Peterson with a truck is another matter, as manifested by the seriousness of his injuries. The area in which Mr Peterson was injured is used at least twice each day by a heavy vehicle to collect offal. One of the times this is done each day is between 10.30am and 12 noon which covers the period when employees in the Hanging Room are exiting to go to lunch. It is not mandatory that all employees take their lunch in the lunch room and there is no prohibition on employees doing what Mr Peterson did, namely having lunch outside near a fence. 27 From the photographs in evidence, the live bird and hopper areas are also used by forklifts. Despite the fact that it was necessary for the heavy vehicle to reverse under the hopper and, in order to do that on the day of the accident to reverse through a 90 degree angle at the corner of a building, there was no system in place to ensure this could be done safely without risks to pedestrians. Along one corner of the building where the semi trailer reverses into the hopper area there is a conveyor (see sketch). By the look of the conveyor in the photographs in evidence and the explanations provided by witnesses, a person could not easily pass under it or over it and it is an effective barrier to accessing the roadway entry directly in front of the hopper area. Along the other corner, however, there was nothing to warn an employee about taking care in crossing the roadway after exiting the Hanging Room or, more importantly, any physical barrier to stop an employee walking straight out onto the roadway at a corner of the building as Mr Peterson said he did. Any view of the roadway to the left would be obstructed by the conveyor. Given the coming and going of a semi trailer at least twice a day, as well as forklifts, this corner would have to be considered, on any reasonable assessment, a risk to the safety of pedestrians using the area. Mr Farrugia's evidence was that he had seen, on his daily visits, pedestrians using the area where he was driving and in the immediate vicinity of the accident. 28 If a pedestrian was approaching the corner of the building from the direction that Mr Velcich and Mr Milnes said they saw Mr Peterson heading, that is from the entrance to the hopper, there was no system in place to ensure that pedestrians were safe from the risk of vehicles reversing into the hopper or from vehicles, such as forklifts, coming around the corner towards the hopper entrance. 29 I find that Particular (a) has been made out because of the failure of the defendant to provide a system of work to separate employees and motor vehicles in the rear yard of its premises in order to ensure the health and safety of employees against the risk of colliding with or being hit by a motor vehicle. 30 Particular (b) alleges a failure on the part of the defendant to adequately instruct employees as to safe pedestrian usage of the rear yard of the premises. The evidence shows that up to the time of the accident no instructions, oral or written, were given to employees regarding safe pedestrian usage of any part of the employer's premises, including the rear yard where the accident occurred. In particular, there were no instructions issued to employees not to access or use the roadway in the vicinity of the corner in question, despite the obvious danger in doing so. In the absence of these instructions there was no prohibition on pedestrians accessing or using the roadways adjacent to the corner at any time, regardless of the presence of moving vehicles. The question is, however, whether it is beyond reasonable doubt that an instruction to employees, without other physical safety measures being taken, would have avoided the risk of collision with a vehicle. In other words, would Mr Peterson, in an apparently tired and semi-dazed state, eager to have lunch - and the most direct route to his lunch was via the roadway adjacent to the corner of the building - have obeyed a mere instruction? I think the necessary degree of doubt exists and I find that Particular (b) has not been made out. 31 Particular (c) alleged a failure on the part of the defendant to adequately warn employees of the risks posed by motor vehicles to pedestrians using the rear yard of the premises. I find on the evidence that employees were not adequately warned of the risks posed by motor vehicles. However, I cannot in the circumstances of this case, find beyond reasonable doubt that there was a causal nexus between the failure of the defendant to warn employees of the risks posed by motor vehicles and the risk of colliding with or being hit by a motor vehicle. Even if Mr Peterson had been warned of the risks posed by motor vehicles, in the absence of other measures to ensure his safety and given what I have said in relation to Particular (b), there was no evidence to show the warning would have been sufficient to obviate the risk of collision between vehicle and pedestrian. 32 I make a similar finding in relation to Particular (d). Firstly, I am unsure on the evidence whether or not there was a failure to adequately instruct drivers of vehicles entering or leaving the rear yard area of the premises to keep a lookout for pedestrians and secondly, even if there was such a failure, it has not been proved beyond reasonable doubt that the failure had a causal connection with the detriment occasioned to the employee given the circumstances in which the accident occurred. 33 Particular (e) alleges a failure on the part of the defendant to put in place an adequate system for controlling motor vehicle traffic at the premises. The only system in place for controlling motor vehicle traffic according to the evidence was the two 15 kilometre per hour speed signs and the occasional warning issued by the watchman to drivers to slow down and look out for pedestrians. If the defendant had provided a system where reversing trucks were under the direction of a flagman, who also had the responsibility to keep a look out for pedestrians, I consider that the accident would have been avoided, especially if Mr Velcich and Mr Milnes were correct in their recollection about the direction from which Mr Peterson was coming when he collided with the truck. It was not impracticable or unreasonable in my view to have a person available to direct a truck that was required to reverse through a ninety degree angle into the hopper in circumstances where pedestrians might be present. It was foreseeable that if this was not done, someone could have been injured by the reversing vehicle. Consequently, Particular (e) is made out. 34 Although in this case only two of the five particulars have been made out, what the prosecution is required to establish, in a criminal proceeding, are the essential elements of the offence charged. It is not necessary to establish each of the particulars: Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481. 35 Particulars (a) and (e), in my view, contained substantive allegations as to failure on the part of the defendant. Given that these have been made out I find that the essential elements of the offence have been proved beyond reasonable doubt. 36 I turn to consider whether a defence has been made out under s53 of the Act. 37 That section provides as follows: "It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that- (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence; or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision." 38 To establish a defence under s53 the defendant must prove that on the balance of probabilities, either that it was not reasonably practicable to comply with the Act 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: Drake at 457; Sydney City Council v Coulson (1987) 21 IR 477 at 480; Italo Australian Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 15 (unreported, Walton J, Vice President, 19 October 1999 - IRC 4732 of 1997, IRC 4733 of 1997). 39 It is clear from what I have already said in this judgment that I do not consider that it was not reasonably practicable for the defendant to comply with the provisions of s15(1). The prospect of a person colliding with a vehicle at or near the corner in question was I believe readily foreseeable and it would have been a relatively straightforward matter for the defendant to take measures to guard against the risk of collision. The defence under s53(a) is not made out. 40 Further, I do not consider 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 for the defendant to make provision. I find that the defendant has not made out a defence under s 53 (b) of the Act. 41 Leave is granted to the parties to seek to have this matter re-listed in order that the question of penalty might be addressed. Sketch of Incident Annexure One DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.