Citation: SafeWork NSW v JBS Australia Pty Ltd (No 3) [2023] NSWDC 382
Court: District Court of New South Wales
Date: 19 September 2023
Judge: Scotting DCJ
Background
JBS Australia Pty Ltd operates Australia's largest meat and food processing business, including a cattle feedlot at Caroona in New South Wales. As part of feedlot operations, large hay bales (each weighing approximately 700 kilograms) were delivered by truck and stacked in pads around the facility using a front-end loader. Before stacking, bales required moisture testing: bales with high moisture content risked spontaneous combustion or structural instability and needed to be rejected or set aside.
On 19 February 2020, Belinda Fletcher, an administrative employee working as a Commodities Clerk and Weighbridge Attendant, was performing moisture tests on hay bales near a partially constructed stack. Two bales fell from the stack onto Ms Fletcher, trapping her underneath and causing serious injury.
SafeWork NSW prosecuted JBS under section 32 of the Work Health and Safety Act 2011, alleging that JBS failed to comply with its primary duty of care under section 19(1) of that Act, thereby exposing Ms Fletcher to a risk of death or serious injury. JBS pleaded not guilty.
Legal Issues
- Whether JBS failed to comply with its health and safety duty by failing to take the reasonably practicable steps particularised in the summons (Element 3), specifically:
- Failure to undertake an adequate risk assessment for hay unloading, moisture testing, and stacking tasks
- Failure to develop, implement, and enforce a safe work procedure for moisture testing
- Failure to develop, implement, and enforce a safe work procedure for hay stacking
- Failure to provide adequate information, training, and instruction
- Failure to provide adequate supervision
- Failure to appoint a spotter
- Whether JBS's breach of duty exposed Ms Fletcher to a risk of death or serious injury (Element 4)
- Whether Ms Fletcher's own conduct severed the chain of causation between JBS's failures and the risk to which she was exposed
Decision
The court found JBS guilty of the section 32 offence, being satisfied beyond reasonable doubt that JBS failed to take some of the reasonably practicable steps particularised in the summons, and that those failures exposed Ms Fletcher to a risk of death or serious injury.
On Element 3, the court was satisfied that JBS had not developed and implemented a clear, consistent, and documented safe work procedure specifically for moisture testing, nor had it conducted an adequate risk assessment for that task. The general practice at the feedlot of keeping workers away from a stack under construction had not been communicated to Ms Fletcher in a sufficiently structured or documented way. The court accepted that Ms Fletcher had not received adequate training or instruction about the hazard of approaching a partially constructed stack during moisture testing operations.
On the causation question, JBS argued that Ms Fletcher's own conduct in approaching the stack broke the chain of causation. The court rejected this, finding that Ms Fletcher did not fully comprehend the danger she was in because she had not been properly trained. Her conduct did not sever the chain of causation or give rise to a reasonable doubt on that issue.
The court also rejected JBS's contention that the prosecution case was fatally limited by the way the prosecutor sought factual findings on what was described as the "double handling" issue, namely a disputed conversation about placing bales near the stack to avoid moving them twice. The court was not satisfied that its findings on that factual dispute were determinative of the prosecution's overall case.
Orders Made
- The defendant JBS Australia Pty Ltd was found guilty of the offence under section 32 of the Work Health and Safety Act 2011.
- The matter was listed on a convenient date for sentencing.
Key Takeaways
- The District Court confirmed that a duty holder under section 19(1) of the Work Health and Safety Act 2011 must develop and implement clear, consistent, and documented safe work procedures for tasks that carry a risk of death or serious injury; informal or undocumented general practices are insufficient to discharge that duty.
- A worker's failure to appreciate or avoid a hazard does not necessarily sever the chain of causation where that failure is itself a consequence of inadequate training and instruction by the duty holder.
- Under section 32 of the Work Health and Safety Act 2011, the prosecution is not required to prove that a worker was actually injured as a result of the breach; it need only prove that the breach exposed the worker to a risk of death or serious injury.
- The absence of a specific risk assessment and documented safe work procedure for a discrete high-risk task (here, moisture testing in proximity to an unstable stack) was treated as a significant failure, even where a broader safety management system existed within the organisation.
- The fact that a supervising employee was on leave at the time of the incident did not diminish JBS's culpability, as the underlying procedural and training deficiencies predated the incident and were not contingent on any one individual's presence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
Cases
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- Royall v The Queen (1991) 172 CLR 378
- SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316