Citation: SafeWork NSW v Southern Meats Pty Ltd [2021] NSWDC 192
Court: District Court of NSW
Date: 21 May 2021
Judge: Strathdee DCJ
Background
SafeWork NSW prosecuted Southern Meats Pty Ltd, a meat processing business, under the Work Health and Safety Act 2011 (NSW). The prosecution alleged that the defendant, as a person conducting a business or undertaking, failed to comply with its duty under s 19(1) to ensure the health and safety of workers so far as reasonably practicable. That failure was said to have exposed a worker, who was run over by a forklift in the defendant's load-out area in July 2016, to a risk of death or serious injury contrary to s 32 of the Act.
The defendant entered a not guilty plea and the trial commenced on 3 May 2021. During the trial, a question arose about the admissibility of certain evidence, prompting a voir dire (a preliminary hearing held within a trial to determine an evidentiary question).
The specific dispute concerned whether evidence of changes the defendant made to its systems of work after the incident could be admitted. The defendant objected to this evidence on two grounds: that it was not relevant, and that its admission would cause unfair prejudice.
Legal Issues
- Whether evidence of post-incident changes to systems of work was relevant under s 55(1) of the Evidence Act 1995 (NSW), specifically in relation to the question of "reasonable practicability" under the WHS Act
- Whether, even if relevant, that evidence should be excluded under s 137 of the Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice to the defendant
Decision
On relevance, Strathdee DCJ found that the evidence was admissible. Her Honour accepted that the central question to which the post-incident evidence was directed was not whether those steps were reasonably practicable, but rather the more preliminary question of whether the defendant could have taken those steps at all. Under s 18 of the WHS Act, determining "reasonable practicability" requires consideration of the availability and suitability of ways to eliminate or minimise a risk. Evidence that the defendant actually implemented certain measures after the incident is directly relevant to whether those measures were available before it.
Her Honour drew on Poletti Corporation Pty Ltd v SafeWork NSW (2020), where the NSW Court of Appeal confirmed that possibility and reasonable practicability are distinct concepts. The fact that a step was possible does not automatically establish that failing to take it was a breach, but possibility remains a necessary ingredient of reasonable practicability and is therefore a legitimate subject of evidence. The earlier High Court decision in Baiada Poultry Pty Ltd v The Queen (2012) was acknowledged but distinguished: that decision cautioned against treating possibility alone as proof of breach, not against admitting evidence of possibility in the first place.
On unfair prejudice, Her Honour rejected the defendant's argument under s 137 of the Evidence Act. The risk of unfair prejudice in this context is the risk that a tribunal of fact might misuse the evidence. Because the trial was being heard by a judge alone, Strathdee DCJ was satisfied that an appropriate self-direction about the weight to be placed on the evidence would adequately manage any such risk. The probative value of the evidence was not outweighed by the danger of unfair prejudice.
Orders Made
The court ruled that evidence of steps taken by the defendant after the incident was admissible and permitted the prosecutor to adduce such evidence. The question of the weight to be afforded to that evidence was reserved for further submissions during the resumed trial.
Key Takeaways
- Evidence of post-incident changes to a defendant's systems of work is relevant in WHS prosecutions because it bears on whether particular safety measures were available to the defendant before the incident, which is a component of "reasonable practicability" under s 18 of the WHS Act.
- Under the framework confirmed in Poletti, possibility and reasonable practicability are distinct considerations. Proof that a step was possible does not establish breach, but availability of a measure is expressly relevant to the reasonable practicability inquiry, making evidence of post-incident steps properly admissible.
- The District Court affirmed that Baiada Poultry does not bar evidence of possibility; it merely cautions that possibility alone, without more, cannot establish a breach of duty.
- Where a criminal trial proceeds before a judge sitting alone, the risk of unfair prejudice from post-incident evidence can be managed through a judicial self-direction on weight, rather than by excluding the evidence under s 137 of the Evidence Act.
- The appropriate temporal frame for assessing reasonable practicability remains what was known or knowable by the duty holder before the incident. Post-incident evidence is admitted for the limited purpose of informing the practicability question, not to invite reasoning from hindsight.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 17, 18, 19(1), 32
- Evidence Act 1995 (NSW), ss 55(1), 137
Cases
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92
- Poletti Corporation Pty Ltd v SafeWork NSW (2020) 300 IR 167
- SafeWork v McConnell Dowell Constructors (Aust) Pty Limited (No. 3) [2021] NSWDC 105
- Vitale v The Queen [2020] VSCA 237
- Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119
- Davis v Langdon (1911) 115R (NSW) 149
- Silvak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304
- Washer v Western Australia (2007) 234 CLR 492