Citation: SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204
Court: District Court of New South Wales
Date: 16 June 2023
Judge: Strathdee DCJ
Background
The defendant, Southern Meats Pty Ltd, operated a mutton and lamb abattoir at Goulburn, New South Wales. Its premises included a "Load Out" area where boxed meat products were prepared for distribution. Up to three forklifts operated in this shared space, which pedestrian workers and forklift operators necessarily used simultaneously.
On 12 July 2016, a worker (the leading hand) was walking backwards while wrapping a pallet of meat with a handheld plastic wrapping device. At the same time, another worker was reversing a forklift down a loading dock ramp without looking in the direction of travel. The forklift struck the leading hand, crushing his right foot between the tyres and the concrete floor. He sustained a Lisfranc joint fracture and severe soft tissue injuries.
Critically, the forklift operator did not hold the required high-risk work licence. SafeWork NSW prosecuted the defendant as a person conducting a business or undertaking (PCBU) under s 19(1) of the Work Health and Safety Act 2011 (NSW), alleging that the failure to comply with its health and safety duty exposed the injured worker to a risk of death or serious injury, contrary to s 32 of that Act.
Legal Issues
- Whether the defendant owed a health and safety duty under s 19(1) of the WHS Act
- Whether the defendant failed to comply with that duty
- Whether any failure exposed the injured worker to a risk of death or serious injury
- Whether the measures pleaded by the prosecution were reasonably practicable
- Whether the practice of permitting unlicensed workers to operate forklifts could be attributed to the defendant's safety management system
Decision
The court accepted that the defendant was a PCBU and that the Load Out was a shared zone where pedestrians and forklifts worked in the same physical space. SafeWork had conducted a targeted compliance visit to the site just six weeks before the incident, providing advice on safe forklift use. The prosecution's case centred on the defendant's failure to implement any of a range of pleaded safety measures, and on the practice of permitting unlicensed personnel to operate forklifts.
On the central factual question, Strathdee DCJ found that the defendant did not have a system that permitted unlicensed workers to drive forklifts. The requirement to hold a valid licence was a known rule in the Load Out, and breaching it was understood by supervisors and workers alike to be a disciplinary matter. Load Out supervisors had no authority to modify or depart from that procedure.
The court found that the conduct of the forklift operator's supervisor on 12 July 2016, in allowing an unlicensed worker to operate a forklift, could not be attributed to the defendant. There was no evidence that the departure from the system was within the actual or apparent scope of the supervisor's employment. Accordingly, s 244 of the WHS Act, which deals with attribution of conduct, had no role to play on the facts as found.
The prosecution did not establish all elements of the offence beyond reasonable doubt, and the court entered a finding accordingly. Final orders were deferred to allow the prosecution to consider a reference of law to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912 (NSW).
Orders Made
- The prosecution had not proved all elements of the offence beyond reasonable doubt.
- Final orders were not entered immediately, pending the prosecution's opportunity to consider an application under s 5AE of the Criminal Appeal Act 1912 (NSW).
- The matter was listed for further directions on 14 July 2023.
Key Takeaways
- A PCBU will not automatically bear criminal responsibility under the WHS Act for a supervisor's unauthorised departure from an established safety rule, where that departure falls outside the actual or apparent scope of the supervisor's authority.
- The District Court distinguished between the existence of a risk in a shared pedestrian-forklift zone and the attribution of a specific unsafe practice to the defendant's system; proof of the latter was necessary to establish the offence.
- Where a defendant has a documented safety rule, communicates it to workers, and treats breaches as disciplinary matters, that system may be relevant to whether a failure can be attributed to the PCBU for the purpose of s 244 of the WHS Act.
- A SafeWork compliance visit occurring shortly before an incident, without any subsequent improvement notice or prohibition notice, did not of itself establish that the defendant's system was deficient.
- Proof that the defendant was aware an individual worker did not hold a forklift licence did not automatically establish that the defendant's system permitted unlicensed operation; the court required evidence that the system sanctioned or enabled that practice.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 244
- Work Health and Safety Regulation 2011 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Occupational Health and Safety Act 2000 (NSW)
Cases
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ching) [1999] NSWIRComm 341
- Edwards v National Coal Board [1949] 1 KB 704
- Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531
- Orr v Cobar Management Pty Ltd [2019] NSWDC 796
- Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634
- R v Australian Char Pty Ltd [1999] 3 VR 834