Citation: [2021] NSWDC 505
Court: District Court of New South Wales
Date: 22 September 2021
Judge(s): Scotting DCJ
Background
SafeWork NSW prosecuted a civil construction company (the defendant) following the death of a contracted truck driver on 16 February 2018. The driver fell from his truck's trailer while unloading timber piles at a building site. The prosecution alleged that the defendant had failed to take all reasonably practicable steps to train and supervise workers to comply with a pre-existing verbal direction prohibiting access to the back of trucks or trailers during loading and unloading.
Four days after the incident, the defendant's CEO directed staff to watch a SafeWork video titled "Falls from Flatbed Trucks and Trailers Safety Alert" and to review all safety documents before any further unloading occurred. The defendant also issued an internal safety alert incorporating content from that video and held toolbox meetings across its workforce.
The defendant objected to SafeWork's tender of the video into evidence, arguing it was not relevant to the proceedings. The court gave reasons for overruling that objection and admitting the video as Exhibit 5.
Legal Issues
- Whether the SafeWork video was relevant within the meaning of s 55 of the Evidence Act 1995, such that it should be admitted into evidence
- Whether the steps taken by the defendant after the incident could inform the assessment of what constituted a "reasonably practicable" step under s 18 of the Work Health and Safety Act 2011 prior to the incident
Decision
Issue 1: Relevance under s 55 of the Evidence Act 1995
The court found the video relevant because its content was capable of rationally affecting the probability of whether the defendant had taken all reasonably practicable steps to train workers not to access the backs of trucks or trailers and to work from the ground (at [13]). The video contained advice about working from the ground where possible, using fall prevention measures where necessary, and the practice of pre-slinging loads, all of which directly mirrored the defendant's own pre-incident verbal direction and working practices (at [7], [11]).
Issue 2: Post-incident steps as evidence of reasonable practicability
The defendant's decision to deploy the video after the incident was itself treated as some evidence that using such a video constituted a reasonably practicable training step (at [12]). The CEO had expressly described the video as "relevant" in his email directing its distribution, and the defendant's own safety alert incorporated the video's content (at [11]). The court noted, however, that this evidence would not necessarily be determinative when applying s 18 of the Act, because the prosecution must ultimately prove beyond reasonable doubt that the steps were reasonably practicable at the time leading up to the incident, not merely with the benefit of hindsight (at [12]).
Orders Made
- The SafeWork NSW video entitled "Falls from Flatbed Trucks and Trailers Safety Alert" is admitted as Exhibit 5 in the proceedings.
Key Takeaways
- Under s 55 of the Evidence Act 1995, evidence need only be capable of rationally affecting (directly or indirectly) the probability of a fact in issue; the District Court confirmed this threshold was met by a post-incident safety video whose content aligned directly with the defendant's own pre-incident safety directions (at [13]).
- A defendant's own post-incident conduct, including the safety resources it chose to deploy and the language it used to describe them, can constitute evidence that the steps taken were reasonably practicable before the incident occurred (at [11]-[12]).
- Post-incident remediation steps are not automatically determinative of the reasonable practicability question in WHS prosecutions; the prosecution must still prove beyond reasonable doubt that equivalent steps were reasonably practicable at the relevant time, assessed without hindsight (at [12]).
- The content of a safety video may become more probative when considered alongside a company's own contemporaneous internal safety alerts that adopt and contextualise that content for its specific workforce (at [11]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Work Health and Safety Act 2011
Cases
- Not stated