Industrial Court of New South Wales CITATION: Inspector Gill v Concrete Recyclers (Group) Pty Ltd [2006] NSWIRComm 203 PROSECUTOR Inspector Steve Gill PARTIES: DEFENDANT Concrete Recyclers (Group) Pty Ltd FILE NUMBER(S): IRC 5103 of 2004 CORAM: Staff J CATCHWORDS: Occupational health and safety - Prosecution for failure to ensure person not in employer's employment not exposed to risk to health and safety - Injured person employed by trucking company delivering waste to site - Driver suffered serious injuries when front-end loader collided with truck while truck parked prior to unloading - Defendant engaged as subcontractor to sort waste material on behalf of head contractor - Defendant operated sorting of waste material at site - Risk of truck entering sorting area without knowledge of employees - Offence made out - Defences - Whether offence due to causes over which defendant had no control - Held defendant did have some control over bringing matters to attention of the provider of the facility - Whether "reasonably practicable" for the defendant to have complied with the Act - Balancing of the nature, likelihood and gravity of the risk, with costs, difficulty and trouble necessary to avert the risk - Not reasonably practicable for defendant to erect boom gate - Whether engagement of a yardman would have prevented the risk - Events that caused the accident beyond the control of the defendant - No reasonably practicable intervention by defendant could have prevented the accident - Held, defendant had established defence - Summons dismissed - Occupational Health & Safety Act 2000 (NSW) - Section 8(2) and 28(a) and s 28(b) - Costs LEGISLATION CITED: Occupational Health & Safety Act 1983 Occupational Health & Safety Act 2000 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 432 Haynes v CI&D Manufacturing Pty Ltd (1994) 60 IR 149 Inspector John Patton v Orest Peter Sywak [2003] NSWIRComm 238 Kennedy Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 Mainbrace Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Charles) (2000) 102 IR 84 Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 CASES CITED: Morrison v Waratah Engineering Pty Ltd (2005) 139 IR 186 Schultz v Tamworth City Council (1995) 58 IR 221 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) (No 1) Pty Ltd (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering (No 2) (2001) 110 IR 447 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Construction Australia Ltd (2003) 123 IR 121 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 HEARING DATES: 27/03/2006, 28/03/2006, 29/03/2006, 03/04/2006, 05/04/2006 DATE OF JUDGMENT: 06/23/2006 PROSECUTOR Mr D O'Neil of counsel Solicitor: Mr R Higgins Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT Mr L King SC Solicitor: Mr R Leitch Leitch Hasson Dent JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 23 June 2006 Matter No IRC 5103 of 2004 INSPECTOR STEVE GILL v CONCRETE RECYCLERS (GROUP) PTY LTD Prosecution under s 8(2) of the Occupational Health & Safety Act 2000 JUDGMENT [2006] NSWIRComm 203 1 This matter is a prosecution by Inspector Steve Gill of the WorkCover Authority of New South Wales ("the prosecutor") of Concrete Recyclers (Group) Pty Ltd ("the defendant") alleging a breach of s 8(2) of the Occupational Health & Safety Act 2000 ("the Act"). Section 8(2) of the Act imposes the obligation on an employer to "ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". 2 The prosecution arose out of an incident that occurred on 30 September 2002 at 38 McPherson Street Banksmeadow, New South Wales ("the Botany site"), resulting in serious injuries to Mr Arthur MacKenzie. Mr MacKenzie was employed by Cardinal Project Services as a truck driver who was instructed by his employer to deliver a bin of bricks to a building waste facility operated by Collex Pty Ltd ("Collex") at the Botany site. 3 On the day of the accident, Mr MacKenzie arrived at the site and was handed a tip docket from Mr S Reisenleiter who was employed at the gatehouse operated by Collex. Mr MacKenzie then proceeded to drive his truck down a corridor, eventually stopping at a "stop" sign. He waited there in his truck for a period of time as other trucks parked behind him. After a period of time, Mr Reisenleiter walked from the gatehouse to Mr MacKenzie's truck and asked Mr MacKenzie to move his truck into the unloading/loading area so that trucks behind him could get past his truck and access other areas of the site. Mr MacKenzie moved his truck, as instructed, to a location approximately 20 metres past the "stop" sign in the loading/unloading area. 4 Mr MacKenzie waited in his truck, watching a front-end loader at work. The front-end loader was driven by Mr Frank Smeekens, who is employed by the defendant. A short time later, the front-end loader with the bucket of the loader in an upright position, collided with Mr MacKenzie's truck, causing severe injuries to Mr MacKenzie. As a result of the accident, Mr MacKenzie suffered ongoing long term problems as a result of the injuries and subsequent multiple operations including abdominal wall deformity, permanent weakness in his right hip and right lower limb, permanent restriction in sexual function and an inability to perform any heavy physical tasks. Mr MacKenzie has not returned to any duties as a result of his injuries. 5 The building waste facility operated by Collex catered for the delivery of construction and demolition waste to the site for recycling. Collex would charge customers for using their facility to deliver construction and demolition waste based on the size of the load of waste. 6 In or about 15 August 2001, Collex entered into an agreement with the defendant for the defendant to provide sorting services at the site. Any materials recovered from the recycling process would be loaded by the defendant into bins provided by Collex. Collex would then pay the defendant a particular rate per week for sorting and loading at the site. At the time of the accident, it was contended, the system in place was as follows: Trucks would enter the site with their load to be delivered. The truck would stop at a gatehouse operated by Mr Reisenleiter. Mr Reisenleiter would estimate the size of the load to be delivered and would issue the driver of the truck a tip docket. The driver was then instructed to proceed along a makeshift corridor constructed of concrete blocks. At the end of the corridor of concrete blocks was a "stop" sign. The truck driver was instructed to stop at the "stop" sign and wait until the loader operator directed the driver into the unloading/loading area. 7 The system of work regarding the loading/unloading of trucks is an issue of significance in the proceedings which I will return to later. 8 Prior to the accident date, there had been discussions between Collex and the defendant as to the employment of a yardman who would work at the "stop" sign and direct traffic into the loading/unloading area in conjunction with the loader operator. At the time of the accident, no such person had been employed in that position. Despite truck drivers being instructed to wait until contact from the loader operator, Mr Reisenleiter would sometimes instruct drivers to move forward past the "stop" sign into the unloading/loading area if there too many trucks waiting in line. Reisenleiter had a two-way radio with which he would communicate with the loader operator. After the trucks tipped their waste or were loaded with rubble, they would exit via another gate at the site. 9 Inspector Martin Anderson was assigned to the investigation and visited the site on 30 September 2002 to conduct an inspection. Interviews were subsequently conducted by Inspector Steve Gill with Mr Tiberiu ("Tibby") Orden, a director of the defendant and Messrs MacKenzie, Smeekens, Reisenleiter and S Lawrence, the Manager of the site employed by Collex. 10 The initiating summons was issued on 27 August 2004. The charge, as contained in the amended summons was in the following terms: Concrete Recyclers (Group) Pty Ltd … being an Employer on 30 September 2002 at 38 McPherson Street, Banksmeadow ("the site") in the State of New South Wales, DID FAIL, contrary to section 8(2) of the 2000 Act to ensure that people other than employees of the Defendant, in particular, Edward MacKenzie, were not exposed to risks to their health or safety arising from the conduct of the Defendant employer's undertaking while they were at the Defendant employer's place of work. Date of Offence: 30/09/2002 The particulars of the charge are as follows: The Defendant, being an employer, on the said date of the said site, contrary to section 8(2) of the 2000 Act, did fail to ensure that people other than employees of the Defendant, in particular, Edward MacKenzie, were not exposed to risks to their health or safety arising from the conduct of the Defendant employer's undertaking while they were at the Defendant employer's place of work. In particular, the Defendant failed to provide and maintain a safe system of work in relation to loading and unloading of trucks at the site in that the Defendant failed to ensure that people like Edward MacKenzie only entered the area where the front-end loader was operating with the knowledge and at the direction of the front-end loader operator. Admissions by the Defendant 11 The defendant made the following admissions: 1. The Inspector is and was duly appointed under the Occupational Health & Safety Act 2000 (NSW). 2. The Inspector is and was empowered to institute the Industrial Court proceedings under the Occupational Health & Safety Act 2000 (NSW). 3. The Defendant is and was at all material times a corporation. 4. That the Defendant's registered office is at Suite 3, Mona Terrace, 2A Mona Road, Darling Point in the State of NSW. 5. That the Defendant is and was at all material times an employer in NSW. 6. That Edward McKenzie (sic) was not at any material times an employee of the Defendant. 7. That the recycling facility located at 38 McPherson St, Banksmeadow, NSW ("the site") was used by the Defendant at all material times as a place of work. 8. That, at all material times, the loading and unloading of material at the site was part of the Defendant's "undertaking" within the meaning of s.8(2) of the Occupational Health & Safety Act 2000 (NSW). 12 The following were agreed facts: 1. Collex Pty Ltd has pleaded guilty to a charge under section 8(2) of the Occupational Health & Safety Act 2000 (NSW) ("the Act") arising out of the same factual scenario as arises in these proceedings. 2. Mr Barnes was not interviewed in the course of the WorkCover investigation. 3. Mr Barnes is no longer employed by Collex Pty Ltd. 4. WorkCover Inspectors do not use their powers under the Act to obtain statements from witnesses, once proceedings have been commenced. 13 Mr Barnes, at the time of the accident, was the State Manager of Collex. The Evidence 14 A brief of evidence was tendered in these proceedings. The brief of evidence contained extensive documentation produced in connection with the investigation conducted by Inspector Gill, including statements from the Inspector; numerous photographs of the site and the vehicle Mr MacKenzie was driving at the time of the incident; a memorandum re tipping procedures; a document titled Botany Safe Working Practices, introduced following the accident; a Yard/Depot Traffic Control procedure document in operation prior to the accident; tipping procedures using boom gate after the accident; documents indicating actions taken following the accident, and a statement of Mr Orden, a director of the defendant responsible for managing the defendant's sites. 15 It is convenient to commence the consideration of the evidence by referring to the evidence of Mr MacKenzie. Mr MacKenzie gave evidence that on 30 September 2002, he drove a truck containing bricks, concrete and/or sheet metal to the Botany site. This was the second or third time that he had attended the site, the first occasion being of his attendance on the previous Friday. Mr MacKenzie was employed by Cardinal Projects Services and was informed that he was required to attend the gatehouse at the site and follow instructions. Mr MacKenzie was given a docket at the gatehouse and advised to proceed to a white line at the entrance to the tipping area and to stop there until he received further instructions. The normal practice was to stop at the white line. From this position, Mr MacKenzie was able to observe the front-end loader loading a truck. A Collex truck came up behind Mr MacKenzie's truck and the driver got out of the truck and came to talk to him. Mr MacKenzie then described what occurred: "The driver came up and talked to me and in the process another bifold truck coming (sic) behind him, so there were two other trucks and we were talking, like we were just talking to each other and then the guy came out of the gatehouse and said, 'move your truck because you are holding everyone up'. … I just said, 'well, I can't move'. I said, 'well, I can't go off the white line. I was told to stay here'. He said, 'either you move your truck, or you don't bother coming back'." 16 Mr MacKenzie stated that the reason why he said he couldn't move the truck was that on the previous Friday he crossed the white line by 12 inches and the loader operator abused him for crossing the white line. Mr MacKenzie stated that Mr Reisenleiter then pointed to exactly where he wanted him to move the truck. Subsequently, Mr MacKenzie moved the truck across the white line to a position within the loading/unloading area where he was directed to stop by Mr Reisenleiter. He turned the engine of the truck off and started reading a paper. 17 Mr MacKenzie then described what occurred: "Well I saw the loader move away from the truck. I saw that he was getting another load, I went back to read the paper until I heard a noise and I seen (sic) a bucket on me." 18 Mr MacKenzie estimated that the time between seeing the loader move and hearing the noise of it colliding with his truck, was probably three to four minutes. 19 Mr MacKenzie stated that immediately after the collision the loader driver was in "his truck" abusing him for being there. 20 Mr MacKenzie identified from the photographs the driveway at the site, the gatehouse, a stop sign and the white line, which he believed was closer to the gatehouse on the day of the accident and the position that he moved his truck to inside the loading/unloading area. 21 Mr MacKenzie was cross-examined about his account. Under cross-examination he stated: Q. Mr MacKenzie, just tell me if you agree or disagree with these things. You were in no doubt after the occasion you went to this site on Friday before your accident that you shouldn't move forward past the stop sign at the white line without the okay of the loader operator? A. That's correct. Q. And when the gatehouse-keeper told you to do so just before your accident you were concerned about that obviously? A. Yes, I was. Q. And that's why you raised it with him as to whether it should happen? A. Yes. Q. So you were under no illusion that what was happening might be unusual? A. Correct, yes. Q. Now you said that you drove forward to the point where you were shown a thumbs up sign of the gate-keeper and stopped, do you agree with that? A. Correct. Q. If you jump ahead to the impact when the front-end loader hit you, would you say that that impact pushed you back some distance? A. Yes, because I - the only chance I had to sort of do anything - I tried to start but I couldn't start because I just didn't have enough time, I just pulled my maxi brake off, it's like a hand brake, I think it would soften the impact a little bit. 22 Mr MacKenzie was also cross-examined about his recollection of whether it was the same loader operator who abused him on the Friday who was driving the loader on the date of the accident. He believed it was the same person. Mr MacKenzie is clearly mistaken about this issue. 23 Mr MacKenzie was also cross-examined about whether he may have been confused in respect of the placement of the stop sign and the white line. Mr MacKenzie agreed that could be the case. 24 Finally, Mr MacKenzie was cross-examined about whether the gatekeeper told him that he would be in radio contact with the loader operator to warn him that he was sending a truck into the loading/unloading area of the yard. His evidence was: Q. Now, just finally, Mr MacKenzie, did the gate-keeper, when he was directing you to drive forward, tell you that he had been in radio contact with the loader driver to warn him? A. He said he was to be in contact with the loader driver. He said not to worry about it. Q. And do you remember saying to people after your accident when they were talking about how it could have come to happen, you were assured that the gate-keeper was going to radio through to warn the loader driver? A. That's correct, that's what he told me. Q. And not to beat about the bush, Mr MacKenzie, the fact that you were told that was going to happen is probably one very good reason that you were prepared to move forward? A. That's correct. 25 Mr Scott James Reisenleiter was employed as the gatehouse supervisor by Collex on 30 September 2002 and had held that position since commencing employment with Collex in May 1999. Mr Reisenleiter's duties included the issuing of a tipping docket or receipt which was issued to a driver. Such dockets or receipts were issued on behalf of both the defendant and Collex. He stated that Collex trucks and customers of Collex tipped at the site. The defendant's trucks did not tip at the site although customers of the defendant did. 26 Mr Reinsenleiter's evidence was that if he was asked by a driver what were the yard procedures, he would tell them, otherwise, he assumed that they knew the procedures. He stated that there were two separate tipping areas in the yard, one for Collex customers and one for the defendant and that in September 2002, the defendant was doing the sorting of waste product for Collex. On 30 September 2002, Mr Smeekens was the loader operator driver and Andre Pittisyn was the excavator operator. Both were both employed by the defendant. The regular loader operator driver was Mr Gary Cason who went on annual leave on the Friday proceeding the incident. Mr Reisenleiter could not recall whether Mr Smeekens had operated the front-end loader in the yard during the previous 12 months. Mr Reisenleiter was not involved in the formulation of the traffic rules at the site. Further, Mr Reisenleiter gave evidence of his understanding of the traffic rules as follows: A: The trucks would enter the yard. If need be they would line up. Drivers would then come to the window of the gatehouse, receive their tipping dockets, then follow the yard through the concrete blocks up towards the stop sign and wait. Q. There were blocks, were there, laying down the path through which the trucks had to go from the gatehouse to the point where they waited? A. Yes. Q. What was it that told them where they had to wait? A. Stop sign. Q. Once they were at the stop sign what was to happen then? A. The loader operator or somebody equivalent in the absence of the loader operator, namely myself or Gary at various times if the operator was at lunch I would go out myself and direct the traffic at times when people were in. The operator at different times depending on the back up of traffic within the yard the operator would call them through. Q. So far as you were concerned, at 30 September 2002 who was it who could call the truck through; that is, pass the stop sign? A. Their truck that was? Q. Any truck, who was entitled to do that? A. Sorry, either myself as the gatehouse supervisor or the loader operator loader operator itself, themselves I should say. Q. Now you mentioned Gary, was Gary always the loader operator when he was there? A. Yes. Q. Whose role was it to police the site traffic rules? A. I would say both of ours, both Gary and myself and anybody acting in my absence in the gatehouse. Me and/or Gary together. Q. How had the rules, the traffic rules, been communicated to you in advance of 30 September 2002? A. From memory Steve Lawrence had put a memo out, the signage was up there and it was just something that we had agreed on as to the running of the yard. Again at different times Gary and myself, being the only day in, day out, had worked together to keep the flow of the yard moving for both parties involved. 27 Mr Reisenleiter stated that he recalled issuing a docket to Mr MacKenzie on 30 September 2002. Mr MacKenzie moved his truck through to the white line and the stop sign. Mr Reisenleiter stated as follows: At that time I realised that there were about three or four Collex customers that were able to tip in another area other than where Mr MacKenzie was to tip. Therefore, to increase the flow of the yard or to decongest the yard I walked over to Mr MacKenzie's vehicle and asked him politely to, in my words I quote, "Just roll her over there near the tyres thanks mate". Something to that effect. 28 This would allow the Collex trucks to enter the yard and tip in a separate area to where the defendant's tipping piles were located. Mr Reisenleiter's evidence was that when Mr MacKenzie moved his truck to the area past the stop sign, he did not advise anyone of that, although he had the capacity to do so with a two-way radio. When Mr Reisenleiter let a truck into the yard, his evidence was that he could not recollect exchanging a thumbs up sign when Mr MacKenzie got near the position in the yard that Mr Reisenleiter directed him to park his truck. Mr Reisenleiter became aware of the accident when he heard Mr Smeekens voice come over the two-way radio saying that he had hit a truck. 29 After the accident, Mr Reisenleiter could not remember a yardman becoming involved in working the yard but recalled that a remote controlled boom gate was installed. Mr Reisenleiter was provided with a remote control, as was the loader operator. At times with the loader operator absent or out of necessity, Mr Reinsenleiter would operate the remote control from the gatehouse otherwise the loader operator operated the remote control. On such occasions, Mr Reisenleiter would use the two-way radio to advise the loader operator that a truck had entered through the boom gate. Mr Reisenleiter could not recall seeing the Botany Safe Working Practices or a document entitled Yard/Depot Traffic Control prior to 30 September 2002. 30 During cross-examination, Mr Reisenleiter stated he was quite satisfied that Mr Smeekens had not got out of the cabin of his loader and gone to the cabin of the truck and had some sort of confrontation with Mr MacKenzie. Mr Reisenleiter accepted that in his role at the gate house, he was the Collex supervisor of the premises and had a good working knowledge of the premises, and accepted that Collex's activities on the site represented approximately 60 per cent of the volume of the work on the site and the defendant's activities represented, approximately 40 per cent. 31 Mr Reisenleiter stated that he sometimes saw Mr Tibby Orden and Mr Brent Lawson, representatives of the defendant on the site having discussions with Mr Lawrence and other managerial staff from Collex. Mr Reisenleiter also recalled Mr White, the occupational health and safety officer for the defendant, regularly attending the premises and had contact with the defendant's employees, agreeing that he might have been making inspections to see how the work was being done. On behalf of the defendant, the abovenamed persons would go into the area where the front-end loader and excavator were operating so they were in a position to see what was happening from time to time. 32 Mr Reisenleiter agreed that it was to Collex's advantage that Mr MacKenzie's truck be moved forward so that Collex garbage trucks could enter the yard to go to a distinct Collex area. Mr Reisenleiter also agreed that the primary responsibility for calling truck drivers past the stop sign and the white line into the unloading area remained with the loader operator. He agreed that if he wished to send trucks through, he would radio through to the loader operator and tell him that he was doing this but he overlooked doing that on the day that the accident happened, although he denied that he told Mr MacKenzie he was going to radio through. Mr Reisenleiter denied telling Mr MacKenzie that if he didn't take his truck forward as directed, he would not to come back to the yard. 33 Evidence was also called from Stephen Lawrence, who was the Manager of Sydney Recycling Centres at the time of the incident. Sydney Recycling Centres is a subsidiary of Collex Pty Ltd. 34 Mr Lawrence stated that Collex entered into an arrangement with the defendant in accordance with a letter of intent dated 13 August 2001 to provide loading and sorting services in respect of waste at the Banksmeadow site which is known as the Botany Building Recyclers site. The defendant operated a front-end loader and an excavator on the site. 35 Mr Lawrence outlined the procedure that was to occur when trucks entered the site which was consistent with the evidence of Mr Reisenleiter. Mr Lawrence stated that there were site tipping procedures which were enforced from 1 July 2001 which had previously been in force when Collex who operated the site separately from the defendant before that date. The procedures were posted on the gatehouse window. A letter outlining the procedures was sent to customers notifying them that the Sydney Recycling Centres Joint Venture with the defendant had started. His evidence was that a copy of the procedures were handed to drivers. It was Mr Lawrence's evidence that nothing had changed in the operation with the introduction of the defendant. However, this evidence is inconsistent with the evidence of Mr Cason, Mr Orden, Mr Lawson and Mr White. Mr Lawrence stated that a decision was taken after July 2001 to use the barricading or a corridor of concrete blocks to channel the trucks into the yard. He said this was suggested by Mr Gary Cason, the loader operator. 36 Mr Lawrence stated that the loader operator was the only person who could indicate to the tipping trucks where and when to enter the unloading area. He stated the only other person would have been the excavator operator or as he had now been informed, the gatehouse operator but stated that that should not have been the procedure for them. He reiterated that it should have only been the loader operator who was in charge of the loading/unloading area, as he was responsible for informing people where to tip. Mr Lawrence's evidence in this regard is inconsistent with that given by Mr Reisenleiter. I prefer the evidence of Mr Reisenleiter and Mr Cason in respect of this issue. 37 Mr Lawrence's evidence was that it should not have been for the gatehouse operator to make a decision to allow the trucks to pass the stop sign at all. His evidence was that prior to the accident on 30 September 2006, he had no knowledge of the gatehouse operator letting trucks into the tipping or unloading area. It was the responsibility of the loader operator to initially check the load and allow the truck to enter the yard. Mr Lawrence's evidence was that the gatekeeper was not to let the trucks through. Mr Lawrence confirmed that there was a notice on the gatekeeper's office window which stated "attention all vehicles, yard policy states you must stop and wait until the loader operator directs you into the unloading/loading area". Mr Lawrence stated that the walkie talkie provided to the gatehouse operator was not to be used to let people through into the yard and then tell the loader operator. For reasons that I will give later, I reject this evidence. 38 Mr Lawrence's evidence was that the defendant had raised the issue of a yardman prior to 30 September 2002 in discussions with Mr Paul Barnes. Mr Lawrence was not present during those discussions. 39 Mr Lawrence stated that a yardman was engaged for a short period of time prior to Mr MacKenzie's accident to assist in the directing of traffic. The yardman was put in place by Collex. Mr Lawrence was incorrect in this respect. After the accident, Mr Lawrence stated there was another risk assessment done by the Collex Risk Management Team. These discussions involved Mr Lawrence, Mr Reisenleiter, the Risk Management Team and Mr Gary Cason, on behalf of the defendant. These discussions resulted in a boom gate being installed in approximately November 2002. Mr Lawrence's evidence was that the control of the boom gate was by the loader operator, although he acknowledged that a remote control for operating the boom gate was also provided to the gatehouse supervisor. 40 During cross-examination, Mr Lawrence acknowledged that the defendant was a sub-contractor to a joint venture between Maron Investments Pty Ltd and Collex. The defendant's obligations were in the nature of the provision of the plant hire by loader and excavator operators with their operators to perform sorting tasks in respect of waste material. Mr Lawrence further acknowledged he was aware of trucks lining up from time to time which led to concrete slabs being placed in the driveway to direct the traffic. 41 After the joint venture took effect on 1 July 2001, and the defendant commenced their sub-contracting work arrangements, Collex garbage trucks commenced to come to the Botany site where they were parked and also repaired in the workshop. This commenced on or around December 2001. Mr Lawrence disagreed that with the advent of the garbage trucks, the traffic problem was greater on the site, although he acknowledged that the garbage trucks usually came back to the site before lunch time, when the ordinary activities of the site were in progress. If the garbage trucks needed to be moved from the parking area to the workshop, they had to go across in front of where the stop sign was installed if they were to take the most direct route to the workshop. It was also possible for them to go behind the gatehouse. 42 Mr Lawrence agreed that he had received complaints from the defendant in respect of the entry of the garbage trucks onto the site and truck drivers walking around the site on foot. Mr Lawrence denied that he received complaints in respect of the sizes of the piles of tipped material which was said to have impeded the movement of vehicles and the visibility of the loader operator. When pressed, Mr Lawrence agreed that Mr Cason and Mr Orden had complained about what he described as piles of the "light material". 43 Mr Lawrence also denied that he had been asked to speed up the removal of the piles of waste so as to make the site safer and easier to work. However, he did accept that there was problem getting rid of the light waste at times. Mr Lawrence adhered to his evidence that he did not know that from time to time before 30 September 2002, Mr Reisenleiter would send trucks into the yard on his own decision. He did accept that it was in Collex's interest for the trucks to be turned around as quickly as possible. 44 Mr Lawrence acknowledged that Collex was concerned about the profitability of the yard and agreed that it was more viable after the introduction of the garbage trucks. He acknowledged that there was always trouble parking garbage trucks in the area and although he denied that the defendant had complained to him about the introduction of the garbage trucks, he agreed that he made it clear to the defendant that they were staying. There were 15 garbage trucks introduced to the site which would leave before the site opened and return to be parked usually before lunch time. Mr Lawrence acknowledged that the parking of the trucks was not the problem, but the movement of the trucks on the site and the movement on foot by drivers were the subject of complaints by the defendant. 45 Later, during cross-examination, Mr Lawrence conceded that he had recently become aware that Mr Reisenleiter took it upon himself from time to time to move trucks into the yard past the stop sign and used the two way radio to advise the loader operator what was happening, but said it should not have been happening. Mr Lawrence agreed that the defendant was no longer doing the sorting work. Mr Lawrence stated that in late 2001, or early 2002, Mr Cason put in a line of concrete blocks to channel the flow of trucks along one route into the premises, after speaking to Mr Lawrence. Subsequently, Collex replaced the concrete blocks on the left hand side of the channel with plastic blocks which could be more readily moved. 46 Mr Lawrence could not recall whether the stop sign had been moved from a position further up the channel to where it was at the time of the accident, nor when the white line was introduced. He acknowledged that he would take direction from Mr Barnes about anything that was going to involve expenditure of time and expense on behalf of Collex and would abide by his decision. Mr Lawrence stated that there was no yardman in place on the date of the accident. He stated that a risk assessment was done by Mr Makris, Collex's occupational health and safety officer, prior to the accident and acknowledged that he may have been wrong in his recollection as to when the yardman took up his duties. Mr Lawrence was also involved with a risk assessment with Mr Makris after the accident. He agreed that after the accident Collex examined the situation at the site holding a tool box meeting on 1 or 2 October 2002. He could not recall whether the risk assessment involved anyone from the defendant although he thought Mr Cason may have been involved. However, he agreed that he could have been mistaken. 47 Mr Lawrence agreed that when it was known that Mr Cason was going to be away, Collex expressed a preference for Mr Smeekens to be his replacement as he had worked at the site before and knew the site. Mr Lawrence accepted that in response to a question from WorkCover during his interview, he stated that Collex had considered the use of a yardman prior to the accident. Further, Mr Lawrence agreed that after discussions involving Mr Barnes the decision was taken by Collex not to have a yardman because the yardman would be serving the same purpose as the stop sign and that there could be a problem about letting trucks into the yard without the loader operator knowing. Mr Lawrence also agreed that Mr Reisenleiter had made it clear that he did not like having to do work for the defendant. Although Mr Lawrence's evidence was he did not know Mr Reisenleiter would direct trucks to go into the yard without waiting for the loader operator to do it, he disagreed that such an approach kept things moving in the yard and was an advantage to Collex. In my view, Mr Lawrence's evidence on this issue is disingenuous. 48 It was common ground that the yardman was only there after the accident and Mr Lawrence was obviously mistaken in his evidence about this. 49 Mr Gary Cason stated that he was employed as a foreman for the defendant and as its loader driver operator at the Botany site. Mr Cason was on holidays at the time of the accident. His evidence was that there was a system for the movement of trucks at the site. Upon obtaining paperwork from the gatehouse, a truck would move to a stop sign and wait to be told to come through to the tipping area by Mr Cason. Mr Cason stated that Mr Reisenleiter could inform the truck to move into the tipping area. If he did this, he would call Mr Cason and advise him he was going to let a particular truck through. No-one else was authorised to let trucks into the tipping area. Mr Cason could not recall any occasion when Mr Reisenleiter had not called him on the radio to advise he was letting a truck into the tipping area. 50 Mr Cason's evidence was that he developed, what he described as, a traffic management plan for the trucks. He said he set it up, along with the knowledge of Mr Reisenleiter on behalf of Collex. Mr Cason gave evidence that garbage trucks would break down in the line of trucks and on occasions be brought in on the back of a tow truck which would result in the barricades having to be moved. On occasions, the garbage trucks would go across in front of the stop sign to the workshop. His evidence was that he made complaints to Mr Reisenleiter about the traffic situation in 2002. His evidence was often the yard would be very busy and the trucks would would actually be lined up out onto the street and Mr Reisenleiter would want to push them through so he would be told via the two way radio that trucks were banking up. His view was Collex was trying to hurry him up. His response to this was he could only do so much and to request that Collex "stop pushing". 51 Mr Cason said he raised this matter on a number of occasions with Mr Tibby Orden and possibly Greg White, over a period of months in 2002. His evidence was that the problem was not resolved. There were times when he was "flat out" and there were times when it was very quiet. Mr Cason stated that Collex supplied the stop sign which he and Mr Reisenleiter then erected. He also put the barricades in place. 52 Initially, concrete barricades were used which had been brought to the site to be dumped. These were replaced with plastic barricades which were pushed around by Collex so that garbage trucks could get through. Garbage trucks would, on occasions, come onto the tipping site. 53 Mr Cason complained about this to Tibby Orden. By 30 September 2002, Mr Cason stated "it was tamed down a lot …but they would still do it every now and then …". Garbage trucks would enter without Mr Cason's knowledge. Mr Cason's evidence was that pamphlets were provided to the truck drivers telling them the traffic management rules which were to stop at the stop sign until directed by the loader operator, or staff. Mr Cason's evidence was that there was a sign at the gatehouse setting out the rules and also one below the stop sign. Mr Cason did not complain about Mr Reisenleiter letting trucks into the tipping area. 54 Mr Cason stated he believed Mr Orden took his complaints up with Mr Lawrence although he could not remember any specific conversations about the issue in his presence. Mr Cason stated that on the day or the day before he went on annual leave, he met Mr Smeekens and gave him the keys to the gate and a rundown of how the site worked. 55 During cross-examination, Mr Cason stated that he had come to court after a night's shiftwork and felt tired. He agreed that he was a bit uncertain and confused in respect of some of his answers. Mr Cason agreed that at the time of the accident, he had worked at the site for the defendant for approximately 17 months since they started sub-contracting the sorting of materials. In addition, Mr Cason agreed that initially the traffic arrangements for trucks were a bit of a free-for-all. The trucks came from the gatehouse to an open area at the entrance of the tipping site and there was no channelling. This was of concern to Mr Cason. 56 The first change that Mr Cason was largely responsible for was the creating of a passageway for vehicles by the use of the concrete blocks which were available at the site. Mr Cason recalled discussing this change with Mr Lawrence and Mr Reinsenleiter. With the addition of the Collex garbage trucks, some of the concrete barriers were replaced with plastic barriers which changed the physical setup that had been created by Mr Cason. This was to enable the movement of the garbage trucks in the way that Collex wanted. At about this time, the stop sign was also moved further into the site and a line was also drawn at the stop sign. Mr Cason believed this arrangement had been in place for some months prior to him going on annual leave. 57 Mr Cason stated that Mr Smeekens had not done any driving of the loader or the excavator at the site since it had been set up in the manner described above. Mr Cason stated that when he met Mr Smeekens he explained that the stop sign had been changed from the gatehouse up to the end of the barricades. He could not recall whether this was the morning that Mr Smeekens started work or earlier. In my view, the evidence of Mr Smeekens is of greater reliability on this issue. I find that the meeting occurred on the day Mr Smeekens commenced work at the site. Mr Cason agreed that Mr Orden had spoken to him and asked him to speak to Mr Smeekens and give him a rundown of what occurred at the site. Mr Cason agreed that the setup was very similar to the traffic plan that had been introduced after the free-for-all, except that the stop sign was a little further into the site. 58 During cross-examination, Mr Cason recalled that Mr White became the occupational health and safety officer for the defendant in early 2002. Mr Cason's evidence was that Mr White would call with some regularity at the site and watch the work in progress and how he and the excavator operator were operating their machines. He agreed that, from time to time, he did express concerns to him about the operation of the site. Mr Cason's evidence was that he was quite vocal in expressing dissatisfaction to Mr Reisenleiter and to the customers regarding his concerns "over the way things were on the site". 59 Mr Cason's complaints to Collex included the free-for-all, the physical state of the yard with piles of material which stayed there for periods of time interfering with manoeuvrability of vehicles and with visibility. Some days there was a shortage of trucks available to move the material so it built up. Mr Cason agreed that Collex never got the yard under control. Mr Cason's evidence was that when he raised his concerns with Mr Orden, he was advised by him that he would take the concerns up with Mr Lawrence, Mr Barnes and also Mr Lawson. 60 Mr Cason's evidence was that on occasions when Mr Reisenleiter would send a truck in, he would radio to advise him. On some occasions the truck would be in the yard very quickly without plenty of warning. However, as long as there was a warning, there were no accidents. On occasions, truck drivers would break the rules and sneak in without having been cleared by either Mr Cason or Mr Reisenleiter. This was particularly so with some of the regular drivers. 61 Another concern of Mr Cason was that Collex personnel did not insist that every driver who came onto the premises wear an orange vest. Mr Cason explained this concern as going to visibility if drivers got out of their trucks. He remembered a yardman being employed for a period after he returned from annual leave and that the piles of material were down upon his return. 62 Mr Cason's evidence was once the boom gate was installed, on occasions, the person in the gatehouse would use the remote control to let a truck in. Once again, Mr Cason would be called on the two way radio and be informed of this. However, Mr Cason said he had more control after the accident in respect of trucks entering the site. Mr Cason agreed that from when he commenced at the site, he knew that the traffic needed management and that he took steps to deal with that situation. Mr Cason recalled speaking to a driver with a goatee beard, which may have been Mr MacKenzie and "getting up him" in respect of not going through the stop sign. Mr MacKenzie wears a goatee beard and I find that it was Mr MacKenzie who was warned by Mr Cason not to cross the line on the Friday prior to the accident. 63 In re-examination, Mr Cason was shown a document known as "Workplace/Task/Equipment Assessed: Yard/Depot Traffic Control" which was dated 15 January 2002. This document was prepared by an Assessment Team comprised of Mr Cason, Mr Frank Smeekens and Mr Greg White. Mr Cason's evidence was that a risk assessment was done shortly after the Collex garbage trucks started using the site. Under the heading "Mechanical Hazards - Impact and Crushing" the following comment appeared in the document: "Failure of drivers to conform to speed limits and stop signs places every individual in the yard at risk of impact & crush injuries". 64 Under the heading "Exposure to Assault/Verbal Abuse" the following appeared: "Drivers resent being stopped. Drivers of Collex garbage trucks attempting to park at end of shift resent having to wait behind customers." 65 Mr Cason's evidence was that he complained to Messrs Orden and Reisenleiter about the size of the piles of waste from time to time when they built up, advising that more trucks were needed. This problem persisted until September 2002. Mr Cason also stated that he raised his concerns that regular drivers of the trucks would from time to time break the line and enter the yard of their own volition with Mr Orden. His evidence was that a lot of Collex trucks, the Collex contractors with bins from building sites, were paid on a bin rate so there were "itching to get going". Mr Cason stated that after he complained to Mr Orden, the problem continued but not as often. 66 Mr Smeekens gave evidence that he was employed by the defendant as it's loader operator on 30 September 2002 at its Botany site. Mr Smeekens stated that he had previously worked at the site loading the crusher prior to that work being discontinued. He had also worked loading the screen which separated light from heavy waste. Mr Smeekens stated that he had previously also been engaged as the loader operator for a short period time when the operator was on leave. 67 Mr Smeekens' evidence was that the layout of the yard had changed from when he had previously worked at the site. He stated that the concrete barriers had been put in place which funnelled trucks into a single line and there was a stop sign at the end of the line. Mr Cason had explained the changes to Mr Smeekens at about 5.30 am on the morning that he commenced work. Mr Cason told Mr Smeekens that the trucks were to wait at the stop sign until the loader operator told them to move into the tipping area. 68 Mr Smeekens stated that when he had previously worked there, Mr Reisenleiter had, on occasions, told trucks to move into the tipping area and some trucks had moved into that area themselves which created a problem for Mr Smeekens because as the loader operator he "would not know they were there". In response to a question whether Mr Reisenleiter was supposed to let trucks into the tipping area, Mr Smeekens said: Well to my knowledge, no. I don't know. He was in charge of the allocation office and letting the trucks in so I suppose he would be, yes. But I understood that I would move them from the Scott (sic) sign into the tipping yard. 69 Mr Smeekens evidence was that as far as he was aware, Mr Reisenleiter used to radio through when he let a truck into the tipping area. 70 Mr Smeekens described the circumstances leading up to the accident as follows: A. I was loading a truck and dog. I finished loading the truck and dog and I backed away, left the bucket up in air. On my left hand side was the heavy stockpile, rather large, couldn't see past that. And I went past it and the dog and as I come down and started loading the bucket and going around the heavy stockpile to go down to the stop sign to bring the truck in, and I looked down to my left because there was some piers, brick piers there to make sure not to run those over and when I looked back up the truck (sic) was hitting the windscreen of the truck, that is what happened. Q. What did you do then? A. I sat in the loader with my foot on the brake and I called Scotty on the radio and told him I had an accident. Q. Did you approach the truck. Did you exit the loader and approach the truck? A. No I talked in the loader. I had to. I didn't want to take my foot off the brake because the truck was downhill and I was uphill and if the loader was to roll forward because I was afraid of the height, so I stayed in there with my foot on the brake. 71 Mr Smeekens' evidence was that when he had previously worked as a loader operator, truck drivers would become impatient, particularly when it was busy. 72 Mr Smeekens recalled being involved in workplace risk assessment on 15 January 2002. However, Mr Smeekens could not remember whether the assessment occurred before or after the garbage trucks started arriving at the site. Mr Smeekens' evidence was that he was concerned about the trucks that did not stop at the stop sign and he conveyed his concern to Mr Cason. It is clear on the evidence that this assessment occurred after the garbage trucks commenced at the site in or around December 2001. 73 In cross-examination, Mr Smeekens' evidence was that one of the piles of debris was in his line of vision between where he was working and the gatehouse and the stop sign. When he was manoeuvring around to the stop sign, he had to avoid colliding with the pile of debris and the tray of "a dog" (a trailer) behind a truck which he had been loading. He did this whilst the bucket was up in front of the loader which obscured his vision of where Mr MacKenzie had parked his truck. Mr Reisenleiter had not informed Mr Smeekens via the radio that he had allowed the truck into the tipping area. Mr Smeekens' evidence was that if he had been informed that a truck had been let into the tipping area, he would not have driven with the bucket of the front-end loader in the up position. 74 Mr Smeekens stated that he knew the layout of the premises prior to attending work on 30 September 2002 and that the stop sign had moved and the barriers finished at the stop sign. Although Mr Cason told Mr Smeekens that trucks stopped at the stop sign until he moved them on, that was the procedure in operation when he had previously worked at the site. His evidence was that Mr Cason reminded him that most of the time when he had finished loading a truck, he would come back to the stop sign to bring in another truck. Mr Smeekens' evidence was that he did not get a message on all occasions that a truck had been let through into the tipping site. On occasions, Mr Smeekens would get a warning very shortly after the truck had arrived. On other occasions, he would get the radio warning in good time, sometimes before the truck had arrived, sometimes at the time when he saw the truck arriving. He recalled trucks had arrived on occasions without any warning. To find a truck in the yard without a warning was very annoying to Mr Smeekens. He complained to Mr Cason about this occurring. Mr Smeekens' understanding was that Mr Cason was going to do what he could about this situation. 75 Mr Tiberiu Orden gave evidence. Mr Orden is a director of the defendant. Mr Orden stated that during 2002, his role with the company involved managing the defendant's site at Botany. Mr Orden's evidence was that at the time of the accident, a document known as Botany Safe Work Practices was in place. Although this document referred to a yardman directing where trucks should stop for their loading and unloading, Mr Orden agreed that there was no yardman employed at the time of the accident. The procedures set out in this document were implemented in early 2002 which introduced new procedures in respect of the funnelling of trucks and a change to the stop sign. 76 Mr Orden's evidence was that at September 2002, it was not the intention of the defendant to have a yardman engaged. The procedure, as outlined by Mr Orden, was that the weighbridge operator would inform the trucks to go to the stop sign and from there the trucks were to come into the yard by communicating with a either through a two way radio or through a sign or hand signal. This would occur when the truck driver could see the loader operator. Mr Orden's evidence was that the traffic plan was put into operation after negotiations with Collex because it was not the defendant's place to do anything in the yard. 77 The defendant was only there in respect of what he described as a plant hire situation. Mr Orden's evidence was that everything had to be done through Collex, including safety issues. This included discussions about safety issues. Mr Orden stated that Collex and the defendant worked together on safety. Collex purchased the stop sign, however, it was physically erected by the defendant. 78 Mr Orden's evidence was there was no paperwork relating to induction and/or training prior to the incident of 30 September 2002. Mr Orden admitted that he was aware that from time to time that the gatehouse operator would let a truck past the designated stop sign to dump a load. He stated that Mr Cason complained about this. Mr Orden's evidence was that Mr Cason "complain(ed) to Steve" (Lawrence), the Manager at Collex. However, it did not stop happening and Mr Cason occasionally told Mr Orden it was still happening. 79 Mr Orden agreed that he knew throughout 2002, as a Manager, there was some risk to his employees and to non-employees. However, he stated the defendant was not in charge of the site and not in a position to change the traffic system. Mr Orden's evidence was that Collex was in charge of the site. This was the reason that a yardman was not put in place. The defendant offered to pay half the costs of the yardman, even though the occupation by the defendant was only 10 per cent to 20 per cent of the yard. Mr Orden's evidence was when the suggestion of a yardman was discussed, Mr Lawrence said "it might be dangerous for a yardman to be there because he could be run over". 80 Mr Orden's evidence was that the defendant did a risk assessment after the accident. It took the form of a site meeting. It was a Collex meeting in which the defendant participated. The meeting occurred on 9 October 2002. It resulted in the introduction of the boom gate in place of the stop sign. A yardman was also introduced who did not remain for a long period. Mr Orden's evidence was that the boom gate was proposed by WorkCover. 81 During cross-examination, Mr Orden stated that the defendant ceased its crushing operation at the site and then some months later, after entering into another contract, resumed work at the site sorting waste. This was around July 2001. Different traffic rules applied at the site after the defendant re-commenced operation. Mr Orden reaffirmed that the defendant suggested to Collex that they should engage a yardman, as they thought it would have been an advantage to have a yardman. Mr Orden confirmed that the concrete barriers were put in place by Mr Cason after getting permission from Collex. 82 Mr Orden's evidence was that he stood at the site quite regularly to see if the staff were okay, if it was safe and everything was going according to plan. He also checked that the machinery was in good condition during his visits to the site. He would watch the whole operation including the loader operator and excavator operator in action. He had observed both Mr Cason and Mr Smeekens operating the loader. 83 Mr Orden stated that he formed the view that Mr Smeekens was a good, reliable operator and safe. He had never seen him driving the loader with the bucket up and if he had, he would have told him it was an unsafe practice. He also stated that when the garbage trucks were introduced to the site, Collex removed the concrete barriers and replaced them with other barriers so that the Collex trucks could get through to their yard. 84 Mr Orden's evidence was that he passed on the complaints made by Mr Cason regarding the entry of trucks into the tipping area, without warning, to Mr Lawrence and Mr Barnes. This resulted in a meeting between Mr Orden, Mr Lawson, Mr Barnes and Mr Lawrence. Mr Orden also stated that Mr Cason complained about the physical state of the yard and the piles of material. In his view, the problem was obvious and he complained to Mr Lawrence. 85 The installation of the boom gate and the shifting of material was done by Collex, not the defendant. Mr Orden's evidence was that visibility improved dramatically after the accident because the stockpiles of material was not there any more. Mr Orden stated that nothing was done jointly. Suggestions were made to Collex to improve the traffic system. Sometimes they accepted the suggestions, sometimes they did not. 86 In re-examination, Mr Orden stated that when the defendant was conducting the crushing operation, it was the sublesee of part of the site. 87 The defendant called the following witnesses: Gregory David White, the Sales Administrator Manager and Occupational Health & Safety Manager of the defendant; Mr John Collins, a risk management consultant, and Mr Brent Lawson, a director and the Administrator Manager of the defendant. 88 Mr White has been employed by the defendant since 2000. He had the joint responsibility of Sales Administration Manager and Occupational Health and Safety Manager. In his role as the Occupational Health & Safety Manager, Mr White stated that any requests made of him by clients of the defendant were to be verified and considered by the directors. No arrangements were to be entered into on behalf of the defendant with its clients without the endorsement of the directors. 89 Prior to Mr White taking up his role as OH&S Manager, he had meetings with the management of the defendant and an organisation called Brief Group who had commenced to put together occupational health and safety policies and procedures for the defendant. He also had documentation from the Dust Diseases Board and other assorted files associated with health and safety of workers. Mr White also obtained a copy of the OH&S Act and Regulations and went to the WorkCover office at Parramatta and asked what documentation and procedures and guidelines were available. 90 Mr White maintained contact with WorkCover and would regularly attend its offices to get new publications. WorkCover Inspectors would often call at the defendant's site at Camellia shortly after Mr White became the OH&S Manager. A result of these discussions was the creation of the yard/depot traffic control document. Mr White stated that this document was a result of concerns that Mr Cason had raised with him. He raised these concerns with the directors of the defendant, Mr B Lawson and Mr T Orden. Mr White also had discussions with Collex employees at the Botany site. These employees were Scott Reisenleiter, Steve Lawrence and Tony Clavel. 91 The yard/depot document prepared by Mr White was finalised within a day or two of speaking to Mr Orden and Mr Lawson about trucks entering the tipping area. Mr White got the impression that both persons already knew of Mr Cason's concerns. Mr White estimated that he would go to the Botany site at least twice a week and undertake an inspection. His practice was to speak to the loader operator, enquire how everything was proceeding and whether anything was needed. Mr White would also take note of the amount of material that was around the site and how many trucks were waiting because he knew they were contentious issues. 92 Mr White observed both Mr Cason and Mr Smeekens operating the loader. He formed the view that Mr Smeekens operated the equipment safely and in a way consistent with the guidelines that he had presented from WorkCover. He also discussed safety working procedures with each of the employees. Mr White's evidence was that he had never seen either Mr Cason or Mr Smeekens driving the loader with the bucket in the air. Mr White acknowledged that the employees had been instructed that this should not occur and that it was highlighted in the Botany Safe Working Practices document. 93 Mr White's evidence was that the matters raised by Mr Cason and Mr Smeekens on 15 January 2002 regarding the traffic issues in the yard were in fact occurring. Mr White brought these to the attention of the directors of the defendant. Mr Cason also often raised that there was insufficient trucks provided to remove the material on site which diminished the working footprint for the loader to move around the site. Mr White's evidence was that the quantity of the material prepared remained pretty much the same after Mr MacKenzie's accident. 94 During cross-examination, Mr White agreed that it was a well known risk driving a loader with the bucket raised. Mr White agreed that unless the loader operator directed otherwise, there was to be no-one else in his immediate area to ensure that the loader operator would have complete control. This was the intent of the Traffic Management Programme that was put in place by Collex. Mr White stated that throughout 2002, the loader operators did not have total control of the situation. His evidence was, upon becoming aware of this, he reported what he had learned to his directors and asked them to raise that subject with the management of Collex so that they could rectify the problem with their employees at Botany. 95 Mr White agreed after he reported to his directors, he was told the problem persisted. He continued to ask his directors whether they had discussions with Collex and was told the discussions were ongoing and that improvements would be made. Mr White's understanding was the frequency of multiple vehicles being in the working area of the loader diminished after the directors of the defendant raised the problem with Collex. However, he did concede that he knew the defendant had to ensure that its employees were not put at risk. 96 In order to ensure that loader operators were not at risk of their machines colliding with a vehicle, Mr White believed that the defendant requested Collex to ensure that their employees ceased allowing vehicles to enter the yard. Mr White's evidence was that he was aware throughout 2002 that truck drivers would enter the tipping area without the knowledge of the loader operator and that it would be complained about whenever it occurred. He stated that when a truck entered the tipping area without the knowledge of the loader operator, the operator would go to the weighbridge or occasionally go upstairs to the office of Collex and inform them what was happening. Throughout 2002, Mr White stated that on each occasion that he became aware that the risk was repeated, he brought it to the attention of his directors. He gave evidence that Mr Lawson went to the site from time to time. 97 Mr John Collins has been a risk management consultant for the last 16 years advising clients in industry of the implementation of occupational health and safety management systems and compliance and best practice systems. 98 Mr Collins prepared a report in respect of the accident at the Botany site on 30 September 2002. 99 Mr Collins' conclusions and reasons for opinion were stated as follows: (i) The Banksmeadow site appears to be controlled by Collex with Concrete Recyclers acting as a subcontractor. (ii) Under both NSW legislation and normal practice Collex would be expected to control traffic on the site as part of their Occupational Health & Safety Management System. (iii) There is no evidence that Concrete Recyclers were required by Collex to develop their own system and generally subcontractors would be expected to work with the site managers to ensure the safety of all persons via an integrated Traffic Management Plan. (iv) Although Concrete Recyclers appears to have discussed traffic management with Collex on several occasions prior to the accident it was obvious at the time of the accident that Collex were responsible for traffic into the site and the recycling area. This can be inferred from the fact that the Gatehouse Supervisor allowed trucks into the recycling area on several occasions to reduce congestion at the gate. (v) On this basis I believe Collex were responsible for the traffic plan on the site and therefore should also be responsible for the supervision and maintenance of that plan. (vi) Due to the informality of the traffic plan and lack of supervision on the site it was foreseeable that the plan would fail. 100 In preparing his report, Mr Collins was provided with the prosecution brief, statements from Mr G White, Mr T Orden and Mr F Smeekens. He also undertook a visit to the perimeter of the site after the report was prepared. 101 Mr Collins stated that in respect of the installation of the boom gate, the loader operator should be the only person who has the remote control handset. He stated if other persons have access to remotes, that defeats the purpose and provides another method of failure of the system. 102 During cross-examination, Mr Collins' evidence was that once a truck went past the stop sign, there would still be some risk of collision even if the loader operator was aware that the truck had entered the tipping area. 103 Mr Collins observed that, in his view, you can never reduce risk to zero. He agreed that the fact that the traffic system was not formalised, would have been an element in increasing the risk. Formalising the traffic system, Mr Collins stated, would have reduced the risk because it could have been more easily enforced. 104 Mr Collins' evidence was, as he saw it, that Collex had the responsibility of establishing a traffic management system. His view was that there should have been a traffic management system across the site whereby someone was responsible for the whole of the site. In his view, this was Collex. When it came to the enforcement of that system, in Mr Collins' view, the primary responsibility is always with the people who have got the system in place and who have got authority for that system. According to Mr Collins, Collex should have been the primary people responsible for the maintenance of the system. 105 In respect of the defendant, Mr Collins' evidence was that they had the responsibility for the maintenance and enforcement of their systems and their systems would have related to the loading/unloading of the trucks because that is the task that they were doing and they would have responsibilities for informing Collex of deficiencies in the system. Mr Collins stated that once the defendant became aware that trucks were entering the tipping area without the knowledge of the loader operator, the defendant had a role to play in bringing the deficiency to the attention of Collex. This extended to ensuring that their own employees and non employees were not exposed to risk to their safety. 106 It was suggested to Mr Collins that they needed to do more than report it to Collex. Mr Collins' evidence was that if the failures in the system continued, it did not mean that the defendant was failing to meet its obligation. He contended that where a system is not operating as it should, individuals should talk and discuss how to improve it. This was the process that he believed was taking place at the Botany site. 107 Mr Collins stated in his opinion it was a flawed system at best in the sense that the system relied on people's behaviour, which is not perfect so ultimately there was a chance of a failure. He believed that if there had been a move of one level up in the hierarchy, a form of mechanical system such as a boom gate, could have been introduced prior to 30 September 2002, which would have reduced a risk. This has now occurred. 108 Mr Collins believed that the risk was low in respect of the system that was in place at 30 September 2002, but would have been lower still if there was a form of mechanical barrier in place. His view was that despite the lack of formality with regard to the system, the existing arrangements would have been adequate if they had been followed by all persons on the site. If the administrative controls had been enforced, they would have been adequate if they had been followed by all persons on the site. 109 Mr Collins stated that one option would have been to stop doing the job. According to Mr Collins, the Yard/Depot Traffic Control document was a reasonable attempt at a risk assessment in his experience. In his opinion, risk assessment methodologies in New South Wales are still developing. Mr Collins stated that it could not be said it was a perfect document. However, at the time that it was prepared, that being in 2002, it would have been a reasonable attempt at a risk assessment. 110 Mr Collins' evidence in respect of the formalisation of the traffic management system was that he saw no evidence of this or anything else being turned into procedures. He did not see any procedures that said "you will stop at the gatehouse, you will obtain clearance for this, you will drive down to the stop signs, under no circumstances will you move forward from the stop sign." Mr Collins would have expected to see these procedures written down. He would have expected Collex to have provided those to the drivers when they first arrived as part of their induction training and also to the defendant so that the drivers knew exactly what the system was. 111 Mr Collins' evidence was that the sign on the gatehouse was not a procedure. It did not really define all the aspects of the activity, nor tell the drivers what they needed to do. 112 In re-examination, Mr Collins stated that if a yardman was to be employed, it would have been the responsibility of Collex. Any financial issues would have been negotiated separately between the contractor and the sub-contractor. 113 Mr Collins stated that if the loader operator travelled around the yard with the bucket in an upright position so as to avoid contact with residual piles of material or the "dog" tray of the trailer, this was not something that the yardman could have prevented. 114 Mr Collins' evidence was that in respect of the yard depot traffic control document, this document would have been a suitable springboard or starting point for negotiations or continued negotiations with someone in the position of Collex. 115 Mr Brent Lawson, a director of the defendant, gave evidence. Mr Lawson's main function is the administration of sales and account work. Mr Lawson described Mr Orden's role as the management of staff in the field; the production of equipment; maintenance of the equipment and looking after the workers. 116 Mr Lawson confirmed that he had instructed Mr Greg White, the Occupational Health & Safety Officer after Christmas 2001 to come to him with guideline instructions and recommendations because, in his view, it was a better way of building relationships with their clients. Mr Lawson's evidence was that he visited the site for meetings with Collex and also over a period in mid 2002 when Mr Orden was on holidays. He took over his functions of supervising the site for three or four weeks. 117 Mr Lawson stated that he was aware of a complaint of trucks moving past the stop sign which had been placed in its current position approximately six months prior to the accident. The complaint involved warnings not being given to the loader operator when trucks were let through into the tipping area. He gave evidence that after he became aware of this complaint from Mr White and Mr Orden, he had been trying to resolve the issue with Mr Lawrence and getting nowhere. He decided he would organise a meeting with Mr Barnes, the State Manager for Collex. Mr Lawson admitted he was aware of a number of meetings that occurred at the Botany site and other sites which were attended by Mr Orden including a meeting in the middle of 2002. 118 Mr Lawson stated that the first meeting between the defendant and Collex would have been after the garbage trucks commenced coming to the Botany site. Prior to the garbage trucks commencing work at the site, Mr Lawson stated there was a lot more room in the yard which would have meant that the first meeting was around January 2002. He admitted that Mr Barnes was positive in respect of solutions and there was discussions of how the site could be improved, in particular, improving on the system that the defendant had provided with the barricades. The meeting concluded on the basis that Collex would work together with Mr Cason and Mr Orden, and that Mr Lawrence was asked to come up with a better system that worked for the defendant and for Collex's customers. 119 Mr Lawson stated that there were further meetings which were held at the Botany site that were about two months apart. He recalled attending a meeting after the modifications to the traffic arrangements which moved the stop sign into a more convenient position beyond the gatehouse. 120 Before Mr Lawson attended this meeting, he had discussions with Mr Cason to obtain his opinion about how the system was working at that time. Mr Cason informed Mr Lawson that he believed the system was working well although there was still the issue of trucks moving past the stop sign without his knowledge and he was concerned about that issue. 121 Mr Lawson gave evidence that when he raised this matter with Mr Barnes and Mr Lawrence, he proposed that yardman be put at the stop sign to try and stop the vehicles moving into the tipping area. Mr Lawson stated that he was advised the yard was losing money and that Collex was not prepared to fund it. According to Mr Lawson, the defendant offered to pay 50 per cent of the costs because they were concerned about this issue. This was rejected by Collex. Mr Lawson then stated that a cheaper option might be to install a boom gate and was again advised that Collex did not want to spend any further money as they felt the system they had was working. 122 The solution that Collex came up with was that Mr Cason would have the authority to give the truck drivers a warning and if they broke the procedure of going over the line, Mr Cason could tell them if it happened again, they would not be permitted back into the yard. 123 Mr Lawson stated that after the accident, the defendant wrote to Collex by letter dated 9 October 2002 setting out the six matters that the defendant sought to have addressed in respect of Collex' traffic management plan and sight risk assessment. These matters were as follows: 1. Drivers for the Garbage Collection vehicles garaged at the site entering via the outward vehicle ramp and gate in the morning. This places them at risk, as they must transit the waste handling area as pedestrian traffic. 2. The Garbage Collection vehicle parking area and the Maintenance Workshop, both allow pedestrian access to and from the waste handling area. 3. Barricades, installed by Concrete Recyclers to manage the movement of traffic in the waste handling area, were moved by Collex without consultation with Concrete Recyclers. 4. Drivers for the Garbage Collection vehicles, when leaving the site in private vehicles are not controlled by the current sop signs and are both at risk and placing others at risk of collision. 5. Restriction is to be placed on pedestrian access by visitors to the yard. 6. Prohibition on any entry to the yard by anyone not wearing High Visibility Safety Vest or clothing confirming to AS/NZS 4602-1999 and AS/NZS 1906.4. This is to apply to drivers of tipping trucks that may not expect to leave their vehicle, as they may need to in order to adjust or repair their vehicle. 124 During cross-examination, Mr Lawson agreed that after the various meetings between the defendant and Collex, Mr White continued to report up to September 2002 that trucks were still going through the stop sign without the loader operator's knowledge. Mr Lawson stated that every time the defendant raised this issue with Collex and asked for it to be re-investigated, Collex would address the problem and express it in one form or another. His evidence was that upon learning the trucks were still moving through the stop sign, he asked for another meeting. Each time Mr Lawson had a meeting with Mr Barnes, Mr Lawson stated he found that the defendant was getting results. He believed that the system which enabled the loader operator to ban drivers from the site who entered without approval was working. 125 Mr Lawson's evidence was that the defendant had to co-operate with Collex because they were running the site so the defendant had to do what they were told on the site. He stated that the defendant was employed to supply machinery to sort the waste but was never asked to run the yard from a traffic management point of view and were not paid to do so. Mr Lawson agreed that the defendant could have put on as many staff as it felt was necessary. However, commercially, the defendant was not being paid to do that and had no authorisation to do it without the approval of Collex even if they had taken such a decision. 126 Mr Lawson agreed that Mr Lawrence said that the defendant could employ a yardman but he stated that Collex's view was that a yardman was an added risk in the yard and it was not necessary. The defendant accepted that decision. Mr Lawson's evidence was that the procedures were set up by Collex and the defendant made sure these procedures were followed by the loader operator and that the loader operator was trained in those procedures. Mr Lawson stated that the loader operator also worked under the supervision of Mr Lawrence from Collex. If Mr Lawrence gave the loader operator a direction, the loader operator would follow that direction. Mr Lawson's evidence was that Mr Cason spoke to Mr Lawrence on a weekly basis expressing his concern regarding traffic management and if there was something that Mr Lawrence wanted done in the yard, such as placing the barricades, Mr Cason had to do it. 127 In re-examination, Mr Lawson reaffirmed that every time a meeting occurred with Mr Paul Barnes of Collex, the parties came to a resolution that improved the situation from the defendant's point of view. 128 Mr Lawrence was recalled for further cross-examination, specifically to deal with evidence which he had earlier given, in which he stated he was not present during conversations between the defendant and Collex concerning improving the traffic management system. Mr Lawrence stated that he could recall being present at one meeting at the Moorebank site with Mr Barnes and Mr Lawson, but it was not to do with traffic management at the Botany site. Mr Lawrence's evidence was he did not recall being at such a meeting where it was agreed that Mr Cason would be given the authority to reprimand drivers who crossed the stop sign line. Mr Lawrence admitted that his only recollection in respect of the topic of a yardman was when it was raised by Mr Barnes with him after Mr Barnes had a meeting with the defendant. Mr Lawrence had no recollection of a boom gate being discussed at any meetings prior to the accident. In re-examination, Mr Lawrence admitted that Mr Cason had control of the tipping area from the stop sign onwards to where trucks tipped. 129 Mr Lawson was also recalled for cross-examination. His further evidence was that the matters raised in the letter from the defendant to Collex dated 9 November 2002 included historical matters which were of concern to the defendant. Mr Lawson stated that there was no reference to the installation of a boom gate in that letter because Collex, after discussions with WorkCover, had informed the defendant that they proposed to install a boom gate. At the time of writing the letter, Mr Lawson admitted, he understood Collex was in the process of getting quotes to install the boom gate. Mr Lawson agreed that there was no other correspondence between the defendant and Collex prior to 30 September 2002 which raised the traffic management situation at the site. 130 Mr D O'Neil, counsel for the prosecutor, suggested to Mr Lawson that he may have been confused with the timing of the instructions of Mr Cason to reprimand truck drivers who crossed the line, suggesting that it was after the accident. However, this proposition was rejected by Mr Lawson. I would observe that Mr Lawson's evidence in this regard is corroborated by Mr MacKenzie and Mr Cason. 131 In re-examination, Mr Lawson agreed that he had made a statement in respect of this matter only a couple of weeks prior to the hearing. 132 Mr Lawson stated that he had discussed the operations of the Botany site and the circumstances of Mr MacKenzie's accident with Mr Orden and with his legal counsel, half a dozen to a dozen times since 30 September 2002. This included three or four conferences with the defendant's counsel so that the circumstances surrounding the operation of the site and the accident were alive in his mind when he made his statement for the purposes of it being provided to the OH&S expert. Prosecutor's Submissions 133 Mr O'Neil commenced his submissions by acknowledging that the admissions made by the defendant dealt with place of work and undertaking. Counsel acknowledged that it was incumbent upon the prosecutor to prove that the defendant failed to provide and maintain a safe system of work in relation to the loading and unloading of trucks at the site in that the defendant failed to ensure that people like Mr MacKenzie only entered the area when the front-end loader was operating with the knowledge and at the direction at the front-end loader operator. 134 Counsel submitted that the evidence was crystal clear in terms of primary liability in that there was a failure to ensure the provision and maintenance of a safe system as at 30 September 2002 in that a truck entered the relevant area, the tipping area, without the knowledge of the loader operator. The risk of injury arose from the relevant risk of collision between the vehicles. It was submitted that the risk was foreseeable and was actually foreseen as early as 15 January 2002 when it was referred to in the yard depot traffic control document. 135 Mr O'Neil referred to the relevant legal principles as set out in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at 196. 136 Counsel submitted that the evidence of Mr Lawson and Mr Collins being that the defendant could not have liability because Collex was the lessee of the site was totally flawed. It was submitted that the evidence of Mr Lawson attending meetings to negotiate an appropriate traffic management plan was not an acceptable course in light of the absolute obligations on the defendant to ensure safety. To subject employees and non-employees to risk whilst parties are going through some negotiating process is not an acceptable course to follow. Mr O'Neil referred to the evidence of Mr Lawson and submitted that Mr Lawson was unsure about the timing of the introduction of the procedure which allowed Mr Cason to warn drivers if they crossed the line. Counsel observed this proposition was never put to Mr Lawrence. 137 It was contended that the weight of evidence from Mr White and Mr Cason was that there were problems with the traffic management system which continued until 30 September 2002. There was no paperwork, no instant reporting form. It was submitted that the system did not work and was not being enforced so the operator's safety and the safety of non-employees was not being ensured to the fullest extent practicable. 138 Mr O'Neil, relying on WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182; Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 and Inspector John Patton v Orest Peter Sywak [2003] NSWIRComm 238, submitted that the defendant was not permitted to contend that it did not have control of the site and could not do any more. Nor could the defendant submit it was working along a path which they believed to be improving the system. It was submitted the obligation to ensure safety remains with the defendant: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 432. 139 Mr O'Neil submitted that there was evidence of the defendant and Collex working co-operatively from time to time in relation to management issues. Counsel referred to the evidence of Mr Cason who suggested changes to the traffic management system in January 2002. They identified the risk of collision and sought to address it by the channelling of trucks towards the stop sign. It was submitted throughout 2002, there was no proper enforcement of the system of which Mr Collins said, if property enforced, it would have ensured safety. 140 Mr O'Neil submitted that the prosecutor did not have to establish that a step required to have been taken would have eliminated the entire risk, relying on Morrison v Powercoal at [105]. It was Mr Cason's evidence that as at September 2002, he was the only person who had the authority to let trucks into the tipping yard. This was supported by Mr Orden's evidence that the trucks would come into the tipping area by communicating with the loader operator either though a two way radio or through a sign or hand signal. 141 Mr Lawrence's evidence was to a similar effect that a truck driver was told to wait at the stop sign until the loader operator had inspected his load and determined what product he had which required sorting. In addition, his evidence was that the traffic rules which were previously in place were procedures for Collex where Collex solely operated the site and they continued on once the defendant became involved in the operation because the basic operation and principle of the trucks coming in and attending the tipping area did not change and the same customers with the same bin companies were still coming to the site. 142 Mr White's evidence was that everything that was brought to his attention in January 2002 was occurring at the site. It was this evidence that Mr O'Neil referred to which pointed to a knowledge on behalf of the defendant that the contemplated system was not being observed. Counsel submitted that the focus should be on the system, not the incident or the accident. Mr O'Neil referred to the evidence of Mr White who was aware that the problem of trucks crossing the line had not been eradicated. Mr White raised the matter with Mr Lawson who had a meeting with Mr Barnes. Mr O'Neil submitted that Mr Lawson's evidence that the system was working properly could not sit with Mr White's evidence that he continued to report to him right up until September 2002 that trucks were going through the stop sign without the loader operator's knowledge. It was submitted to the extent that there was some internal conflicts in the evidence, all it does is to reveal the deficiency in enforcing the system which arose from a lack of paperwork. 143 Mr O'Neil observed that the defendant was unable to produce any notes that any of its directors had taken in respect of meetings with Collex about occupational health and safety issues. In the absence of evidence of proper administrative controls and documentation recording incidents by Mr Cason, it was submitted that the defendant has not done everything practicable to enforce the system, relying on WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Construction Australia Ltd (2003) 123 IR 121 at [94] which discusses what will meet the test of reasonable practicability under s 53 of the Occupational Health & Safety Act 1983. 144 Mr O'Neil submitted that it is not sufficient for the defendant to conduct this case on the basis that there was a not a problem if the system was disregarded as long as Mr Reisenleiter contacted the loader operator. However, it was submitted that because the system did not involve any mechanical impediment to the traffic, there was the real need to monitor, enforce, promulgate, check and reinforce the system. In these circumstances, counsel submitted that to tolerate the breach of the system as long as Mr Reisenleiter rang through on the radio, is the very first step in failing to enforce the system. 145 In respect of the issue of the yardman, Mr O'Neil accepted that there was no evidentiary dispute that the yardman issue was raised with Collex. However, in respect, in particular, of Mr Lawson's evidence regarding the boom gate, Mr O'Neil submitted that as Mr Lawson had sat in court during Mr Orden's evidence and the evidence of other witnesses, it was not possible to know whether the evidence given by Mr Lawson was solely from his own recollection, a combination of discussions he had had with other people, or something directly from his discussions with other people. It was therefore submitted that where Mr Lawson is in dispute with other witnesses, the court should prefer the evidence of the other witnesses. On the issue of the boom gate, the only disputing witness was Mr Lawrence. He had no recollection of meetings between the defendant and Collex where the issue of the boom gate was discussed. Mr O'Neil submitted that had he been at these meetings, it was known that Mr Reinsenleiter was letting trucks into the yard. Mr Lawrence's evidence was that he was not aware of this which, it was submitted, he would have been had he attended the relevant meetings. Mr O'Neil submitted that I would not be satisfied that the discussions occurred. 146 It was further submitted that on Mr Lawson's evidence, the discussions regarding the boom gate were general in nature and that the defendant acquiesced in the decision taken by Collex not to install a boom gate. It was submitted that if I found that it was impracticable for the defendant to put a boom gate in place because Collex would not allow it, this did not mean the defendant should be acquitted at all as the defendant in any event was required to enforce the system in some other way. One way was employing a yardman and Mr Lawson conceded that Collex told the defendant that they could employ a yardman, although Collex believed that a yardman was an added risk in the yard. 147 Mr O'Neil submitted that it was open to the defendant to employ a yardman and there was no persuasive evidence that it was impracticable. It was submitted that the defendant could only be acquitted if the defendant has done everything practicable towards enforcing the system that was in place which, it was contended, had not occurred. 148 Finally, Mr O'Neil submitted that the matters set out in the letter to WorkCover dated 4 November 2002, suggested that the defendant took a number of steps after the accident. These included providing a second discreet radio channel to the loader operator; directing the loader operator to refuse services to any drivers failing to observe the traffic control measures and all the defendant's staff were instructed to refuse service to anyone not performing the current site rules. It was submitted that these matters could have and should have been done well before 30 September 2004. It was submitted that the defendant could not persuade the court that it had done everything practicable to ensure safety of non-employees through the maintenance of the system. It followed that no defence could succeed. The Defendant's Submissions 149 A significant portion of the defendant's submissions focused on the contention that the causation had not been made out for the purpose of the charge. Mr L King SC, who appeared for the defendant, submitted that two causal acts of negligence beyond the control of the defendant produced the risk/accident. Counsel emphasised that the case brought by the prosecution is that there was a system failure with the charge being limited to the date of the accident. Mr King contended that the prosecution had not made out its case in accordance with the charge in the particulars because, it was submitted, it is clear that the prosecution proceeded upon, and depended upon, an allegation that the system was, at all material times that nobody other than the loader operator was to allow trucks to come into the area. 150 Mr King referred to Mr O'Neil's opening in which he submitted that this is not a case where it is said there was never any contemplation or any system. Mr O'Neil referred to the system thought to be in place which required only the loader operator to allow trucks into the loading/unloading area once they had passed the stop sign but also anticipated that there would be evidence that Mr Reisenleiter as the gatehouse keeper, not infrequently and contrary to what others thought the system was undertook that task himself, thereby evidencing a failure to ensure a safe system or enforce a system. Mr King submitted that the prosecutor sought to rely on something which was not the system and for that reason the prosecution ought to fail. Then senior counsel submitted that the only evidence for the proposition that the system was, which the prosecutor had opened its case, was that of Inspector Gill. Although he was given an opportunity to concede that the system had become one where Mr Reisenleiter would send trucks in and radio ahead, this was not embraced by the Inspector. Although he had interviewed Mr Smeekens, Mr Cason and Mr Orden, he had a different view of the system. 151 Mr King submitted that Mr Lawrence's evidence should not be accepted in respect of his denial as to what the system was because he ought to have known what it was as he spent half of his time at the premises. It was submitted that there was evidence of three witnesses who spoke to Mr Lawrence about the system. Counsel submitted that in respect of the complaint by the prosecutor that it was not put to Mr Lawrence that Mr Orden had spoken to him, Mr King observed that Mr Orden was a prosecution witness whose evidence was that he had spoken to Mr Lawrence about the system. Mr Lawrence also knew about the yardman, an issue which was discussed during these meetings. 152 In respect of primary responsibility, Mr King submitted that it was still necessary for the prosecution to demonstrate some causal connection between the failure of the defendant and the risk and the accident to the extent that the accident is a reflection on the risk. It was submitted that the prosecutor did not deal with the question of causation. 153 Senior counsel submitted Mr Smeekens admitted that he should not have driven with the bucket up. In addition to that, there is a lapse on the part of Mr Reinsenleiter, who admitted he had not radioed through. There was of course ample time for Mr Reinsenleiter to radio through before the accident. Mr King submitted that in respect of these lapses on the part of Mr Smeekens and Mr Reisenleiter, there is absolutely nothing that the defendant could have done about it. Messrs White and Orden were not cross-examined or challenged to what they would have done had they observed Mr Cason or Mr Smeekens operate with the bucket up. 154 Mr King submitted this was a case where only one party, Collex, had responsibility and another party, the defendant, did not have relevant responsibilities. Counsel submitted that Mr Collins' evidence, was to this effect. The owner of the site relevantly has the responsibility in respect of traffic control management. A person in the position of a sub-contractor, which is the defendant, has the responsibility of reporting problems and engaging in consultation which, Mr Collins observed, was exactly the same situation that arose in this case. 155 Mr King submitted that the contractual situation that existed between the defendant and Collex was completely distinguishable from the labour hire cases. Counsel observed this case did not involve a host employer. 156 In respect of the letter dated 4 November 2002 to WorkCover, Mr King submitted that the matters raised in that letter were issues that had been happening for some time before 30 September 2002. The matters contained in the letter of 9 October 2002 are to be seen in the same context. Mr King submitted that as a result of the accident on 30 September 2002, Collex was much more compliant than it had been in the past. 157 Mr King submitted that Mr Cason could not dictate in any way to Collex employees including Mr Reisenleiter. Relevantly, all Mr Cason did was to make a suggestion for an improvement to traffic management which was discussed with Collex and approved by them. The suggestion was installing a line of concrete barriers. 158 Mr King submitted that if anything could have been done to avoid the risk, it had to be done on a proper consideration of the evidence by Collex and that it was therefore not reasonably practicable for the defendant to ensure the safety of persons like Mr MacKenzie. For the purposes of s 28(a) of the Act, the defendant relied upon the fact of just how the risk could have been eliminated, submitted it does not emerge on the evidence. It was submitted, although the prosecutor had referred to the engagement of a yardman or a boom gate, it was not for the defendant to install a boom gate. It was not even asked to do that after 30 September 2002 when Collex attended to the installation of the boom gate, which it was submitted, did not eliminate the risk in any event so as to ensure safety. 159 In respect of s 28(b) of the Act, Mr King submitted that the relevant causes of the risk and accident on 30 September 2002 were Mr Smeekens (one off or isolated act of atypical negligence) in driving with the bucket of the loader in a upright position and Mr Reisenleiter's atypical act of sending Mr MacKenzie through to park. Mr King observed, had Mr MacKenzie not parked for some minutes, but either dumped his load, or if Mr Smeekens had been alerted by radio, he would not have been struck by the loader operator. Consideration 160 The question for determination in this matter is whether the defendant has committed an offence under s 8(2) of the Act. As was observed by the prosecutor, the court has before it a systems failure charge limited to the date of a workplace incident, being 30 September 2002, which occurred at 38 McPherson Street, Banksmeadow. This site was leased by Collex who engaged the defendant to sort building waste products. 161 This is not a case where it is said there was no system, but rather, as contended by the prosecutor, one where the failure was to properly promulgate and enforce a system. An important matter requiring determination to the requisite standard is what was the actual system in place in respect of the unloading of trucks at the site on 30 September 2002: WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at [35], Schultz v Tamworth City Council (1995) 58 IR 221 at 226. 162 The evidence is that trucks would enter the Collex site and proceed along a driveway with barriers on either side to a gatehouse where the gatehouse supervisor, Mr Reisenleiter, would issue a docket and receive payment from the truck driver after assessing the material in the truck and its weight. A sign was attached to the gatehouse window which stated "Attention all vehicles you must stop and wait until the loader operator directs you into the unloading/loading area." 163 The risk to safety occasioned by any person other than the loader operator allowing truck drivers to drive their trucks into the loading/unloading area is self evident. The loader operator would not necessarily know that a truck was in the area in which the loader operator was working. 164 This system contemplated that trucks would proceed from the gatehouse to the stop sign and queue in a line until instructed by the loader operator to enter the tipping area. 165 However, the evidence discloses, and I find beyond reasonable doubt, that the system had evolved into one which Mr Reinsenleiter, at times when he thought there was a need to do so because trucks were queuing, took it upon himself, to let trucks into the tipping area. His usual practice was to radio through to the loader operator to give a warning that he had let in a truck. The loader operators were not always happy about that, because at times, the warning did not give them much notice. However, that system had been successful in practice in avoiding an accident. The system further evolved with the moving of the stop sign further into the yard. As a result of ongoing complaints from Mr Cason, Collex and the defendant agreed that Mr Cason could threaten a truck driver, who entered the tipping area without approval, with being banned from the site. 166 On 30 September 2002, the front-end loader was being operated by Mr Smeekens, an employee of the defendant, as the regular loader operator, Mr Cason, was on annual leave. 167 Mr Smeekens' evidence, which I accept, was that on the morning that he commenced work at the site, Mr Cason explained that the yard had changed from when he had previously worked at the site. Mr Cason informed Mr Smeekens that trucks were to stop at the stop sign until the loader operator told them to move into the tipping area. Mr Smeekens' evidence was that when he had previously worked at the site, Mr Reisenleiter had, on occasions, told trucks to move into the tipping area and Mr Reisenleiter would radio through that he had let a truck into the tipping area. Mr Smeekens was unsure whether Mr Reisenleiter was authorised to let trucks into the tipping area. When a truck had been let in to the tipping area, Mr Smeekens would normally get a radio warning. On previous occasions Mr Smeekens complained to Mr Cason that trucks would be let into the yard by Mr Reisenleiter without the loader operator being informed. 168 On 30 September 2002, Mr Reisenleiter approached a truck at the stop sign driven by Mr MacKenzie, a non-employee of both the defendant and Collex. Mr Reisenleiter directed Mr MacKenzie to enter the tipping area and park his truck. Mr Reisenleiter did not advise Mr Smeekens that he had let Mr MacKenzie's truck into the tipping area and the front-end loader driven by Mr Smeekens collided with the truck. Mr MacKenzie was assured that Mr Smeekens would be notified that he was entering the yard and that, in my view, was an important factor in him doing as he was directed. I accept Mr MacKenzie's evidence that he had been reprimanded on the previous Friday for crossing the line on the driveway at the stop sign. This reprimand must have been given by Mr Cason. 169 Mr Lawson's evidence was that the ability of the loader operator to reprimand truck drivers who entered the tipping area without approval emerged from a meeting between Mr Barnes and Mr Lawson which took place at Mr Lawson's request when he learnt that trucks were still entering the yard without approval. I should observe that Mr Barnes was not interviewed by WorkCover, and regrettably, therefore not available to give evidence. The importance of his evidence should have been clear after WorkCover interviewed Mr Orden. 170 Having reviewed the evidence, I find, beyond reasonable doubt, that the traffic management system evolved over time at the site from July 2001 when the defendant commenced as a sub-contractor. This finding is based on the evidence of Mr Cason who suggested to Mr Lawrence, the Collex Manager of the site after July 2001, that concrete blocks should be used as a barricade and corridor to channel the trucks into the yard. It was common ground that on or around December 2001, Collex introduced 15 garbage trucks to the site. This resulted in the concrete barricades being replaced by plastic barricades that could be pushed around to allow the garbage trucks to access a different part of the site. 171 I accept Mr Cason's evidence that he made complaints to Mr Reisenleiter about the traffic situation in early 2002. Mr Cason's evidence was that the yard would be very busy and the trucks would be lined up onto the street, although this was denied by Mr Reisenleiter. There is no doubt that there was a build up of trucks from time to time. This necessitated a desire on Mr Reisenleiter's behalf to push the trucks through. I also accept Mr Cason's evidence that Collex tried to hurry him up, and that he raised this matter with Mr Orden (and possibly with Mr Greg White) who took the matter up with Collex. As a result of the complaint, Collex supplied a stop sign which Mr Cason and Mr Reisenleiter erected. The stop sign was moved from the gatehouse to a position further into the yard at a later time. Finally, the loader operator was given the authority to reprimand or ban truck drivers who entered the tipping area without approval. 172 It is also clear and I find that Mr Reisenleiter gave directions to truck drivers to enter the tipping area from time to time. Mr Cason accepted this as Mr Reisenleiter would radio him, to advise that he was letting a truck into the tipping area. On occasions, truck drivers would also enter the tipping area without receiving permission from either Mr Cason or Mr Reisenleiter. This was particularly so in respect of some of the regular drivers. 173 The only witness who adhered to the proposition that the system was that only the loader operator could allow vehicles into the tipping site was Inspector Gill. It is difficult to accept the Inspector's understanding of the system, particularly as the evidence of Messrs Smeekens, Cason and Orden, which I will come to shortly, was that the system included Mr Reisenleiter taking it upon himself to send trucks into the tipping area. The Inspector's evidence also did not acknowledge the reality of what was occurring at the site on or about September 2002. The yard depot traffic control document dated 15 January 2002, prepared by Messrs Cason, Smeekens and White, identified as a physical hazard, "the vehicles entering the yard before other vehicles had moved on, crowding what is already a very limited area for materials, handling, sorting and loading." 174 Mr Cason's evidence was that if Mr Reisenleiter sent a truck in, he would radio him so he had a warning the vehicle was coming. It was this system that had been successful in avoiding an accident prior to 30 September 2002. 175 The evidence of Mr Lawrence is inconsistent with the evidence given by Mr Reinsenleiter, Mr Lawson and Mr Orden as to their knowledge of the system. Mr Lawrence's evidence was that the only person he was aware of who could authorise trucks to enter the tipping area, was the loader operator driver, although he conceded in cross-examination that he was not ignorant of the fact that Mr Reisenleiter was to direct trucks into the tipping area and advise the loader operator by two way radio that he had taken such a step. 176 However, Mr Reisenleiter's evidence was he saw Mr Lawson and Mr Orden arriving for meetings with Mr Lawrence and other managerial staff of Collex. Mr Lawson's evidence was that he spoke to Mr Lawrence on a weekly basis regarding the traffic issue. Although it was not clarified over what period such discussions occurred, the evidence discloses that Mr Lawson attended the site on a number of occasions around the middle of 2002 when Mr Orden was overseas. Mr White observed Mr Lawson attending the site and Mr Cason's evidence is that he complained to Mr Lawson regarding the trucks. I therefore find, beyond reasonable doubt, that Mr Lawson met with Mr Lawrence on or around the middle of 2002 and raised the issue of the trucks entering the tipping area without notice to the loader operator. His evidence was that he was getting nowhere with Mr Lawrence. 177 The reason for such meetings was Mr Cason had raised with Mr Orden and Mr White concerns that he had regarding the traffic management system at the site. These concerns related to the "free-for-all" in respect of the trucks and the physical state of the yard which had piles of material which stayed there for periods of time interfering with the manoeuvrability and visibility of the loader operator. More telling was the evidence of Mr Reisenleiter: Q. So far as you were concerned, at 30 September 2002 who was it who could call the truck through; that is, pass the stop sign? A. Their truck that was? Q. Any truck, who was entitled to do that? A. Sorry, either myself as the gatehouse supervisor or the loader operator itself, themselves I should say. … Q. How had the rules, the traffic rules, been communicated to you in advance of 30 September 2002? A. From memory Steve Lawrence had put a memo out, the signage was up there and it was just something that we had agreed on as to the running of the yard. Again at different times Gary and myself, being the only day in, day out, had worked together to keep the flow of the yard moving for both parties involved. 178 Mr White also had conversations about the system with Mr Lawrence. His evidence, which I accept, was that he was required to raise all occupational health and safety issues with the directors of the defendant. 179 It was as a result of these discussions that the yard/depot document came into existence in January 2002. Mr Orden's evidence was he complained to Mr Lawrence after Mr Cason complained about Mr Reisenleiter letting trucks into the tipping area. Furthermore, Mr Lawrence agreed that he was present during discussions with Mr Barnes when a yardman was considered. Mr Orden stated, when the suggestion of a yardman was discussed, Mr Lawrence had said "it might be dangerous for a yardman to be there because he could be run over." The reason that a yardman was discussed was because Mr Cason had complained to Mr Orden and possibly Mr Reisenleiter about the bank up of trucks and pressure being exerted by Mr Reisenleiter to let trucks into the yard. 180 I therefore prefer the evidence of Messrs Orden, Cason, Reisenleiter and Lawson where it conflicts with that of Mr Lawrence. Although Mr O'Neil submitted that I should treat Mr Lawson's evidence with caution because he had heard the evidence of other witnesses, I do not find his evidence is diminished to the extent that I should give it no weight. Mr Lawson is a director of the defendant who I find gave credible evidence. In addition, Mr Lawrence spent approximately five hours a day at the premises. He had the benefit of closed circuit television in his office to observe what was happening in the yard and spent about half an hour per day actually in the gatehouse. It is inconceivable that Mr Lawrence was not aware that Mr Reisenleiter was directing, from time to time, trucks into the tipping area. It is to be remembered on the day in question Mr Reisenleiter left the gate to speak to Mr MacKenzie at the stop sign. 181 Mr Collins, the OH&S expert called by the defendants, gave evidence that once the defendant became aware that trucks were entering the tipping area without the knowledge of the loader operator, the defendant had a role to play in bringing the deficiency to the attention to Collex. In my view, the defendants needed to do more than report this to Collex because they had an absolute obligation under the Act to ensure that their own employees and non-employees were not exposed to a risk to their safety. Mr Collins' evidence was, that despite the lack of formality with regard to the system, the existing arrangements would have been adequate if they had been followed by all persons on the site which, of course, was not what occurred and what gave rise to the risk. 182 Mr O'Neil submitted, in order to establish what is often referred to as primary liability, the prosecutor had to establish, beyond reasonable doubt, that the defendant failed to provide and maintain a safe system of work. Counsel for the prosecutor also submitted that the evidence was clear in terms of primary liability in that there was a failure to ensure the provision and maintenance of a safe system as at 30 September 2002 in that a truck entered a relevant area, the tipping area, without the knowledge of the loader operator. Once the failure to establish the provision and maintenance of a safe system is established, full liability is established, subject only to any defences. I agree with this submission. 183 It was submitted that both Mr MacKenzie, a non-employee, and Mr Smeekens, although there was no s 8(1) allegation under the Act, were both placed at risk. The relevant risk was of a collision between a truck and the front-end loader in the loading/unloading area at the Botany site. 184 It is now clearly established that the general duties created by the statute are directed to obviating risks to the safety of persons in the workplace: see Haynes v CI&D Manufacturing Pty Ltd (1994) 60 IR 149 at 158; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) at 452 - 454 and WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) (No 1) Pty Ltd (1999) 101 IR 239 at 253 - 254. 185 Although the Full Bench's decision in WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering (No 2) (2001) 110 IR 447 considered the nature of liability under s 15(1) of the Occupational Health and Safety Act 1983, the principles outlined are nevertheless relevant to the nature of liability under s 8(2) of the Act. At [16] the Court held: …An extensive review of the nature of the liability created by s 15(1) was recently conducted by the Full Bench in Drake Industrial (at 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 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. 186 In my view, the risk was foreseeable as early as January 2002, as reflected in the yard depot traffic control document which was the product of discussions between Mr Cason, Mr Smeekens and Mr White. The defendant contended that it could not have liability because Collex was the lessee of the site. A not dissimilar submission was dealt with by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd at [65] where his Honour observed: I do not regard this submission as enabling the defendant to resist the charge. Not infrequently, a number of employers, contractors or individuals may be involved in working at a particular site. All these parties may have responsibilities in relation to the maintenance, cleaning, design or construction of equipment or structures in use on the site. Risks of injury may arise as a result of failings by a number of parties involved in an operation or of the difficulty in co-ordinating between the different operators : see, for example, WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 and WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34. However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace. Such a matter may be relevant to the determination of sentence or, perhaps, to a defence under s 53 of the Act. It does not, however, remove the existence of an offence. 187 I respectfully agree with his Honour. In my view, the defendant was responsible for the operation of the tipping area and for instituting safe work procedures in that area. The defendant's system related to the loading/unloading of trucks. The defendant participated in a number of discussions with Collex to address safety concerns at the site in respect of the loading and unloading of trucks. This resulted in changes to the traffic system during 2002 which I have referred to earlier. 188 In Morrison v Waratah Engineering Pty Ltd (2005) 139 IR 186 at [46], the Full Bench said: … There can be no acceptable submission that, under the Act , in circumstances where there is a combined workforce involving employees from two employers and the site becomes the place of work for each employer, any assumption of control or authority, by one or other employer on that worksite, diminishes the statutory obligation placed upon each employer to ensure the safety of both its employees and others at its place of work. Therefore, there can be no significant diminution in the objective seriousness of these offences by any reliance of the respondent as to a lack of control on site, although it is necessary to have regard to the specific culpabilities of each offender in assessing penalty. Whilst it is appropriate to have regard to the role played by other entities as part of a review of the total circumstances of a particular prosecution so as to evaluate the real culpability of a defendant, such factors cannot reduce the culpability of the defendant in the sense of apportioning the overall penalty. It is important to assess the nature and seriousness of the defendant's offence by reference to the actual contribution of the defendant to the relevant risk: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [46]; WorkCover Authority of NSW (Inspector Farrell) v Morrison (No. 2) (2002) 112 IR 312 at [53] and WorkCover Authority of NSW (Inspector Mansell) v Anytime Industrial Services Pty Limited (2001) 110 IR 34 at [21] - [30]. 189 A review of the evidence discloses that the defendant knew of the risks of trucks entering the tipping area before other vehicles had moved out of the area and the failure of drivers to conform with the stop sign. The defendant also knew that Mr Reisenleiter directed trucks into the tipping area contrary to the system it had in place. This gave rise to an identifiable risk, being the risk of collision. I am satisfied that the inability to prevent trucks stopping at the stop sign presented a risk and a clear danger of a collision once a truck entered the tipping area without the loader operator's knowledge. It was the defendant's failure to ensure that a truck did not enter the tipping area without the knowledge of the loader operator. The Act is directed at obviating risks to safety, rather than the occurrence of a particular accident. 190 It follows from the foregoing discussion, that the defendant failed to ensure that persons not in its employment, in particular, Mr MacKenzie, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work as particularised by the prosecutor, namely, in failing to provide and maintain a safe system of work in relation to loading and unloading of trucks at the site on 30 September 2002. Non-employees like Mr MacKenzie should have only entered the tipping area where the front-end loader was operating with the knowledge and at the direction of the loader operator. 191 The defendant is therefore guilty of an offence under s 8(2) of the Act in relation to the charge brought in these proceedings, unless it is able to make out a defence under s 28 of the Act. Defences under Section 28 of the Act 192 It is necessary to consider whether the defendant has made out a defence under s 28 of the Act. Section 28 of the Act provides: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, 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. 193 It is well settled that in order to establish a defence under s 28 of the Act, a defendant must prove, to a civil standard, 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: see Drake Personnel at 457; Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 at 82; Mainbrace Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Charles) (2000) 102 IR 84 at 102 and Cleary Bros at [76]. 194 In this case, the defendant purported to rely on both arms available under s 28 of the Act. In respect of s 28(a), Walton J in Cleary Bros reviewed decisions of the High Court, English Courts and this Court as to the meaning of the phrase "reasonably practicable". 195 At [87] - [88] his Honour stated: [87] It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 196 I respectfully adopt the principles enunciated by his Honour and proposes to examine the defences raised by the defendant with these in mind. I turn firstly to consider s 28(b). I have already observed that foreseeability of the risk is not a consideration in this case. The risk occasioned by the presence of a truck entering the tipping area without the knowledge of the loader operator presented an obvious danger to both the loader operator and the driver of the truck. This risk had, in fact, been identified by the defendant and documented in January 2002. The first submission advanced by the defendant that was said to establish a defence, namely, that it was not reasonably practicable for the defendant to ensure the safety of persons like Mr MacKenzie, was that if anything could have been done to avoid the risk and the accident which is a reflection of it, it had to be done, based on all the evidence, by Collex. 197 The defendant had taken proper steps in relation to the general performance of its loader drivers, Mr Cason and Mr Smeekens. They were properly trained and certificated. They were experienced. Their performance was monitored by the observations of Mr Orden and Mr White. The driver involved in the particular accident, Mr Smeekens, was the person Collex wanted as a replacement when Mr Cason was unavailable. He conceded that, in effect, he had done the wrong thing in driving with his bucket up, saying that it was the only time he had ever done it. In my view, there was nothing the defendant could have done to prevent that isolated, indeed unique lapse on his part. The evidence of the expert, Mr Collins, was to that effect. Mr Smeekens' evidence was that if he had been told by Mr Reisenleiter that he had sent a truck into the tipping area, he would not have driven the loader with the bucket up. The evidence of Messrs Orden and White was that they had not seen Mr Smeekens drive the loader with the bucket in a upright position. As Mr Collins observed, even the presence of a yardman would not have prevented this risk. This lapse, of course, coincided with a lapse by Mr Reisenleiter without which there would not have been any risk or accident. 198 I consider that there was nothing that the defendant could have done to ensure that Mr Reisenleiter did not send Mr MacKenzie past the stop sign either at all, or, in particular, without radioing through to Mr Smeekens to warn him. Mr Reisenleiter was not the defendant's employee. Mr Cason's evidence was that he was not Mr Reisenleiter's boss and Mr Smeekens was in the same position. In my view, the events that caused the accident on 30 September 2002, that being the event or risk, the subject of the charge, were beyond the control of the defendant. 199 The relevant causes of the risk/accident on 30 September 2002 were Mr Smeekens' isolated act of atypical negligence and Mr Reisenleiter's atypical act of sending Mr MacKenzie through to park his truck in the tipping area, without warning the loader operator. Had Mr MacKenzie not been parked in the tipping area for some minutes, but had he moved on to dump his load as other trucks which "ducked through" did, he would not have been where he was to be struck at the time and he would also not have been struck had Mr Smeekens been alerted by radio. These events, in my view, were rogue actions not representative of even the modified system of work considered elsewhere in these reasons and no reasonably practicable intervention on the part of the defendant could have prevented them. 200 I now turn to consider, in accordance with s 28(a) whether it was reasonably practicable for the defendant to comply with the Act. The defendant contends how the risk could have been eliminated does not emerge. It is conceded that the prosecutor pointed to the engagement of a yardman and the erection of a boom gate, both of which would have constituted improvements. Of these, the greater improvement would have been effected by the boom gate. However, the defendant contended that it was not for it to install one, and further, that it was not even asked to do so after the event as Collex attended to the erection of a boom gate. 201 In respect of the engagement of a yardman at the premises, the defendant offered to pay 50 per cent of the costs of a yardman, although Mr Reisenleiter's evidence was the defendant was only responsible for 40 per cent of the site. Mr Orden's evidence was that the defendant was only responsible for 10 to 20 per cent of the site. In any event, the defendant's offer was rejected by Collex. One of the reasons was that, in Mr Lawrence's view, the placing of a yardman near the stop sign would have created an additional risk in the form of the yardman himself. Mr Lawson's evidence, which I accept, was when he raised the engagement of a yardman with Mr Barnes and Mr Lawrence, he was told the yard was losing money and that Collex was not prepared to fund it. It is not suggested that a yardman would have ensured the avoidance of the accident or the risk. The defendant's view was that putting a yardman on the site was the responsibility of Collex who were their leaseholders. In my view, the defendant is correct. 202 The major part of the operation at the site was associated with Collex. Collex had a site supervisor (Mr Reisenleiter) at the premises. It also had an office facility where Mr Lawrence, a manager, spent most of his time. It was ultimately responsible for putting the premises into the condition in which they were for some months prior to the accident by installing a stop sign beyond the gatehouse and running the concrete barriers up to the stop sign and putting in a white line at the sign. Although Mr Reisenleiter got the physical assistance of Mr Cason, this was because the defendant had labouring type personnel at the premises, being the loader operator and the excavator operator. In my view, the system was adequate if it had been followed. 203 In my view, the installation of a boom gate would have undoubtedly made an improvement. However, it would not have ensured the elimination of the accident and the risk. Mr Collins, the expert called by the defendant, stated a boom gate could be damaged or overridden. In this case, Collex put the means of overriding the loader operator's control of the boom gate into the hands of Mr Reisenleiter by keeping a remote control for the boom gate in the gatehouse. In my view, the erection of the boom gate was the responsibility of Collex. It was stated by Mr Lawson that he was advised by Collex that they did not wish to spend the money and the system was working. It was Collex, who shortly after the accident, installed the boom gate. To install a fixture like a boom gate is to improve the real estate of the site of which Collex was leaseholder in a direct relationship to the landlord. The defendant was not. 204 It was contended by the prosecutor that the defendant could have made contact with the WorkCover Authority. This is so although it was not put to Mr White, the occupational health and safety officer of the defendant, that he ought to have made a formal report to the WorkCover Authority that the defendant had not been able to get Collex to act. Mr Lawson's evidence was that he believed improvements were being made to the traffic management system, particularly as a result of the involvement of Mr Barnes. Inspector Gill did not say that if the WorkCover Authority had been approached and informed of what was happening, there was anything it could or would have done to get Collex to eliminate the risk. In my view, this is a matter for speculation and does not establish a failure to ensure safety according to the criminal standard. 205 It was also contended by the prosecutor that the defendant ought to have ceased work. This also, in my view, is speculative. There is no evidence as to what Collex would have done if this had happened. The defendant may well have been exposing itself to litigation for a breach of contract. Negotiations between the defendant and Collex resulted in improvements to the system which I have already observed would have avoided the risk if followed. 206 It was not proved, according to the criminal standard, what would have happened had the defendant ceased work and I therefore do not propose to consider whether this option would have ensured safety. 207 Mr King submitted that the inescapable fact is that the human factor cannot be taken out of the operations the subject of this matter, and these were rogue actions not representative of even the modified system of work. I agree with these submissions. No reasonably practical intervention on the part of the defendant could have prevented them. ORDERS 1. The summons in matter No IRC 5104 of 2005 is dismissed. 2. The usual cost order would be that the prosecutor pay the defendant's costs, as agreed, or assessed. If there is any disagreement about the terms of that order, the parties have liberty to apply, which should be exercised within 21 days. --------------------------------------- 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.