Citation: Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295
Court: District Court of New South Wales
Date: 11 November 2016
Judge: Judge AC Scotting
Background
The defendant operated a transport depot at Beresfield, New South Wales. In the early hours of 28 February 2014, a truck driver employed by a labour hire company arrived at the depot to deliver freight. One of the defendant's employees began unloading the truck using a forklift, and the driver assisted by unsecuring the load.
While the driver was undoing a restraint strap at the rear of the trailer, standing within two metres of the operating forklift, a freight cage was lifted from the mezzanine level of the trailer. The door of the cage became dislodged and struck him in the head, causing serious head injuries.
Safe Work NSW prosecuted the defendant under section 32 of the Work Health and Safety Act 2011 (the Act), alleging that the defendant had failed to comply with its health and safety duty under section 19(1) of the Act, thereby exposing the worker to a risk of death or serious injury. The defendant pleaded not guilty.
Legal Issues
- Whether the defendant failed to comply with its health and safety duty by not taking the steps particularised in the prosecution's summons (Element 3 of the offence)
- Whether that failure exposed the worker to a risk of death or serious injury (Element 4 of the offence)
- What steps were reasonably practicable for the defendant to take in the circumstances
- Whether there was a sufficient causal relationship between the defendant's failures and the risk to which the worker was exposed
Decision
The defendant conceded Elements 1 and 2: that it was conducting a business or undertaking and that it owed a health and safety duty to the worker. The trial therefore focused on whether the defendant had breached that duty and whether the breach exposed the worker to a relevant risk.
On Element 3, Judge Scotting found the prosecution had proved beyond reasonable doubt that the defendant failed to take reasonably practicable steps. Those steps included implementing a traffic management procedure (referred to in the judgment as the TMP) to keep pedestrians separated from operating forklifts, ensuring cage doors were secured before lifting, training workers on these procedures, and conducting adequate workplace inspections. The court found the defendant had relevant knowledge of the risks, including through previous compliance notices, but had not implemented effective controls.
On the monitoring and inspection failures specifically, the court was satisfied it was reasonably practicable for the defendant to have reviewed CCTV footage regularly, amended its inspection checklists, and continued its workplace inspection procedures to verify that the system of work was actually being followed. The cost of doing so was minimal relative to the risk.
On Element 4, the court found a causal relationship between the defendant's failures and the risk to the worker. The worker was proximate to the forklift during unloading, the cage door became dislodged, and the absence of a safe system of work directly contributed to that exposure. The court found the prosecution proved all four elements beyond reasonable doubt and returned a verdict of guilty. The matter was listed for a sentence hearing.
Orders Made
• The defendant is found guilty of the offence
• The matter is listed for a sentence hearing at a date convenient to the parties
Key Takeaways
- The District Court confirmed that under section 32 of the Work Health and Safety Act 2011, the prosecution bears the onus of proving all elements of the offence beyond reasonable doubt, including that the defendant's failure exposed an individual to a risk of death or serious injury.
- A finding of breach does not require that an accident occurred: the creation of the risk is sufficient, though an incident and resulting injury may serve as evidence that a risk existed and will be relevant to sentencing.
- Where a defendant has prior compliance notices putting it on notice of a risk, failure to implement effective controls is a significant factor in establishing that reasonably practicable steps were not taken.
- The duty under section 19(1) extends to workers at a workplace who are not directly employed by the defendant, including workers engaged by labour hire or other companies whose activities are influenced or directed by the person conducting the business or undertaking.
- Bare demonstration that a step might have had some effect on safety is insufficient to establish breach; however, where steps are clearly available, inexpensive, and effective, failure to implement them will satisfy the element of breach (following the High Court in Baiada Poultry Pty Ltd v R (2012) 246 CLR 92).
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 12A, 18, 19(1), 19(3), 32
- Occupational Health and Safety Act 2000 (NSW), s 8(2)
Cases:
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Royall v The Queen (1991) 172 CLR 378
- Mahmood v State of Western Australia (2008) 232 CLR 397
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
- WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
- Smith v Broken Hill Pty Ltd (1957) 97 CLR 337