Scocan Holdings Pty Ltd & Ors v Work Health and Safety Prosecutor
[2025] QDC 56
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- Scocan Holdings Pty Ltd & Ors v Work Health and Safety Prosecutor[2025] QDC 56
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Scocan Holdings Pty Ltd & Ors v Work Health and Safety Prosecutor[2025] QDC 56
Scocan Holdings Pty Ltd & Ors v Work Health and Safety Prosecutor[2025] QDC 56
DISTRICT COURT OF QUEENSLAND
CITATION: | Scocan Holdings Pty Ltd & Ors v Work Health and Safety Prosecutor [2025] QDC 56 |
PARTIES: | SCOCAN HOLDINGS PTY LTD (appellant) and KATHERINE ANN MAXWELL (appellant) and SCOTT EVANS MAXWELL (appellant) v WORK HEALTH AND SAFETY PROSECUTOR (respondent) |
FILE NO/S: | DC4/2024 DC3/2024 DC5/2024 |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Maryborough |
DELIVERED ON: | 23 April 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 February 2025 |
JUDGE: | Rafter SC DCJ |
ORDERS: | In each matter: Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS where the company appellant was engaged in harvesting pineapples – where the individual appellants were directors of the company – where a worker sat on the trailer with his legs over the side – where the worker’s foot was pushed underneath the wheels of a trailer causing him to suffer serious injuries – where the company appellant had a duty under section 19(1) of the Work Health and Safety Act 2011 to ensure the health and safety of workers – where the directors each had a duty under section 27 of the Work Health and Safety Act 2011 to exercise due diligence to ensure that the company complied with its duty – where the appellants were each convicted of an offence under section 32 of the Work Health and Safety Act 2011 – whether the magistrate failed to refer to the standard of proof – whether the magistrate applied the same duty of care imposed on the company to the directors – whether the magistrate failed to determine whether the directors exercised due diligence required by section 27(1) of the Work Health and Safety Act 2011 – whether the magistrate convicted the appellants based on unparticularised breaches – whether the verdicts of guilty were unreasonable and not supported by the evidence – whether the magistrate failed to have regard to and apply sections 17, 18 and 19 of the Work Health and Safety Act 2011 Work Health and Safety Act 2011 (Qld) ss 17, 18, 19, 27, 32 Fox v Percy (2003) 214 CLR 118 McDonald v Queensland Police Service [2018] 2 Qd R 612 R v Lavin [2019] QCA 109 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Safe Work NSW v Wollongong Glass Pty (2016) 257 IR 351 |
COUNSEL: | T A Ryan KC for the appellants S J Cartledge for the respondent |
SOLICITORS: | Carswell & Company for the appellants Office of the Work Health and Safety Prosecutor for the respondent |
Introduction
- [1]Scocan Holdings Pty Ltd (“Scocan”) was engaged in the business of harvesting pineapples on a farm at Tinana. The directors of Scocan were Katherine Ann Maxwell and Scott Evans Maxwell. Scocan owned and operated a Kioti RX8030 tractor and a pineapple harvester on a trailer, which were used in connection with the business.
- [2]The process of picking pineapples involved the workers picking the pineapples and then placing them on the boom of the harvester that had a conveyor. The pineapples were then transferred to the trailer by means of the conveyor and then stacked into a crate. The trailer could be stacked with three crates of pineapples.
- [3]On 1 August 2022, workers at the farm were engaged in the process of picking and stacking pineapples. The tractor was being driven by the team leader, Dean Anderson. The workers had finished picking pineapples on one block and were moving to another location a short distance away. Most of the workers got on the trailer. One of the workers, Caleb Mead sat on the right side of the trailer with his legs over the side. He dragged his feet in the dirt and after the trailer began moving his right foot came into contact with something. His foot was pushed underneath the dual wheels of the trailer and he was pulled underneath. Mr Mead suffered serious injuries.
The charges
- [4]Scocan was charged that between 6 December 2021 and 2 August 2022 at Tinana, it was a person conducting a business or undertaking, and held a health and safety duty, namely a duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (“WHS Act”), to ensure, so far as reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by it, while the workers were at work in the business or undertaking, and failed to comply with the duty, and the failure exposed an individual to a risk of death or serious injury or illness contrary to s 32 of the Act.
- [5]The complaint alleged that the use of the trailer to transport workers was hazardous, because there was a risk posed to the health and safety of workers that they could be seriously injured or die as a result of falling from the moving trailer or falling from the trailer and being run over by it (“the risk”).
- [6]The control measures and failures alleged against Scocan were as follows:
- “7.The Defendant should have eliminated or minimised the risk, so far as was reasonably practicable, by ensuring that (‘the controls’):
- a.workers were directed that being on the trailer when it was moving was prohibited;
- b.supervision was provided to the workers to ensure that workers complied with the direction given.
- 8.The Defendant failed to implement one or more of the controls in contravention of its health and safety duty.”
- [7]Mr and Mrs Maxwell were each charged that between 6 December 2021 and 2 August 2022 at Tinana, they being officers of Scocan, held a health and safety duty, namely a duty pursuant to s 27 of the WHS Act, to exercise due diligence to ensure that Scocan complied with the health and safety duty it owed, and failed to comply with that duty, and the failure exposed an individual to a risk of death or serious injury or illness, contrary to s 32 of the WHS Act.
- [8]The control measures and failures alleged against Mr and Mrs Maxwell were as follows:
- “8.The Defendant failed to exercise due diligence to ensure Scocan Holdings Pty Ltd complied with the health and safety duty it owed, in that (they) failed to take 0reasonable steps to:
- a.gain an understanding of the risk posed to the health and safety of workers through being on the trailer when it was being moved by the tractor at the workplace;
- b.ensure resources and processes were available for use and used by Scocan Holdings Pty Ltd To eliminate the risk posed by the trailer to workers health and safety, namely:
- i.a direction that workers were prohibited from being on the trailer when it was being moved by the tractor;
- ii.supervision of the workers to ensure compliance with the direction prohibiting them from being on the trailer when it was moving.
- 9.The Defendant failed to take one or more of the above reasonable steps in contravention of the health and safety duty (they) owed.”
- [9]The trial was held in the Magistrates Court at Maryborough on 29 February 2024. The magistrate found Scocan and Mr and Mrs Maxwell guilty of the charges. Scocan was fined $65,000 and a conviction was not recorded. Mr and Mrs Maxwell were each fined $5,000 and convictions were not recorded.
Grounds of appeal
- [10]By amended Notice of Appeal filed on 2 December 2024 Scocan has appealed on the following grounds:
- “1.The learned Magistrate erred in law by failing to apply the correct standard of proof to determine whether the elements of the charge were proved.
- 2.The learned Magistrate erred in law by convicting the appellant of a breach of the health and safety obligation on a basis that was not particularised by the Prosecution and was not the subject of litigation by the parties at trial.
- 3.The verdict of guilty against the appellant was unreasonable and not supported by the evidence.
- 4.The learned Magistrate erred in law and in failing to have regard to and apply the matters in s 17, 18 and 19 of the Work Health and Safety Act, which resulted in a failure to determine:
- (a)Whether or not any worker had been exposed to the risk of death or serious injury: and/or
- (b)Whether the measure particularised by the Prosecution was “reasonably practicable”.”
- [11]By amended Notices of Appeal filed on 2 December 2024 Mr and Mrs Maxwell have appealed on the following grounds:
- “1.The learned Magistrate erred in law by failing to apply the correct standard of proof to determine whether the elements of the charge were proved.
- 2.The learned Magistrate erred in law by treating the health and safety duty that was imposed on the corporate defendant as being the same duty imposed on the appellant(s).
- 3.The learned Magistrate erred in law and, in fact, by failing to determine whether the appellant exercised due diligence as required by s 27(1) of the Work Health and Safety Act, in particular, by failing to apply or have regard to the matters specified in s 27(5) of the said Act.
- 4.The learned Magistrate erred in law by convicting the appellant of a breach of the health and safety obligation on a basis that was not particularised by the Prosecution and was not the subject of litigation by the parties at trial.
- 5.The verdict(s) of guilty against the appellant(s) (were) unreasonable and not supported by the evidence.
- 6.The learned Magistrate erred in law in failing to have regard to and apply the matters in ss 17, 18, 19 of the Work Health and Safety Act, which resulted in a failure to determine:
- (a)Whether or not any worker had been exposed to the risk of death or serious injury: and/or
- (b)Whether the measure particularised by the Prosecution was “reasonably practicable”.”
Nature of the appeals
- [12]The appeals have been brought pursuant to s 222(1) of the Justices Act 1886. An appeal under s 222 is by way of rehearing on the evidence before the Magistrates Court.[1]
- [13]The powers of the court on appeal include confirming, setting aside or varying the order appealed against.[2]
- [14]An appeal by way of rehearing involves the appellate court conducting a “real review” of the evidence given at the trial. In Robinson Helicopter Company Inc v McDermott[3] the High Court said:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”
- [15]
“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”
The relevant provisions of the Work Health and Safety Act 2011
- [16]One of the main objects of the WHS Act is the protection of workers against harm to their health through the elimination or minimisation of risks. Section 3 provides:
“3 Object
- The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by –
- protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant;
…
- In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.”
- [17]Part 2 of the WHS Act provides for health and safety duties. Subdivision 1 sets out the principles that apply to duties and includes s 17 which relates to the management of risks:
“17 Management of risks
A duty imposed on a person to ensure health and safety requires the person—
- to eliminate risks to health and safety, so far as is reasonably practicable; and
- if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”
- [18]Section 18 sets out what is reasonably practicable in ensuring health and safety and provides as follows:
“18 What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including –
- the likelihood of the hazard or the risk concerned occurring; and
- the degree of harm that might result from the hazard or the risk; and
- what the person concerned knows, or ought reasonably to know, about—
- the hazard or the risk; and
- ways of eliminating or minimising the risk; and
- the availability and suitability of ways to eliminate or minimise the risk; and
- after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
- [19]The duty of care imposed upon a person conducting a business or undertaking is set out in s 19 which provides:
“19 Primary duty of care
- A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
- workers engaged, or caused to be engaged by the person; and
- workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking.
- A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or the undertaking.
- Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
- the provision and maintenance of a work environment without risks to health and safety; and
- the provision and maintenance of safe plant and structures; and
- the provision and maintenance of safe systems of work; and
- the safe use, handling and storage of plant, structures and substances; and
- the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
- the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
- that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business of undertaking.
…”
- [20]Part 2 Division 4 sets out the duties imposed on officers, workers and other persons. The duty of officers is contained in s 27 which provides:
“27 Duty of officers
- If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.
…
- In this section, due diligence includes taking reasonable steps—
- to acquire and keep up-to-date knowledge of work health and safety matters; and
- to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and
- to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
- to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
- to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
Example— For paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—
- reporting notifiable incidents
- consulting with workers
- ensuring compliance with notices issued under this Act
- ensuring the provision of training and instruction to workers about work health and safety
- ensuring that health and safety representatives receive their entitlements to training.
- to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).”
- [21]The duties imposed on workers are set out in s 28 which provides:
“28 Duties of workers
While at work, a worker must—
- take reasonable care for his or her own health and safety; and
- take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
- comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
- co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.”
- [22]The relevant offence provision is s 32 which provides:
“32 Failure to comply with health and safety duty—category 2.
A person commits a category 2 offence if—
- the person has a health and safety duty; and
- the person fails to comply with that duty; and
- the failure exposes an individual to a risk of death or serious injury or illness.
…”
Consideration of grounds of appeal
- [23]For the reasons that follow, the appellants have established that the magistrate erred by failing to refer to the standard of proof. The other grounds of appeal asserting specific errors have not been established.
- [24]Having regard to the nature of the appeals, the established error and the grounds of appeal that the verdicts are unreasonable, the court is required to conduct a review of the evidence and form its own conclusions on the matter.
Standard of proof
- [25]The prosecution was required to prove the elements of the offences beyond reasonable doubt. It is common ground that the magistrate did not expressly refer to the standard of proof.
- [26]The magistrate made repeated reference to the principle that the prosecution had the onus of proving guilt. The magistrate said: “The basic principle in these proceedings is the burden of proof lies with Prosecution to prove every element.”[5] After referring to the drawing of inferences the magistrate said: “[a]nd Prosecution must exclude reasonable hypothesis consistent with evidence [sic; innocence].[6]
- [27]
- [28]In a trial without a jury, the judge is required to give reasons that identify the principles of law that have been applied and the main factual findings.[9] The same requirement applies in summary trials before magistrates. The standard of proof is a fundamental principle.
- [29]Although it is likely that the magistrate had in mind the requisite standard of proof, his Honour’s failure to articulate that the charges had to be proved beyond reasonable doubt, constitutes an error.
Whether the magistrate convicted the appellants on the basis of unparticularised breaches
- [30]The appellants submit that the magistrate incorrectly identified alternative control measures and convicted them on a basis that was not particularised by the prosecution. I do not accept that submission.
- [31]The particulars relied upon by the prosecution identified the use of the trailer to transport workers as hazardous because it created a risk of workers falling when it was moving.
- [32]The magistrate found that there was “a clear and obvious risk associated with allowing workers to ride on the back of the trailer.”[10] The particularised control measures were that workers should have been prohibited from riding on the moving trailer and providing supervision to ensure that the direction was complied with.
- [33]The magistrate said that the appellants were required to “take posi tive and ongoing steps by way of affirmative action to provide alternative or safe means of allowing transportation of workers between job sites on the farm. That may be by insisting on workers walking, or providing some alternate means of transportation, or making safe the use of the trailer for such transportation.”[11] The magistrate went on to say that the appellants may have done so by putting in place visual or physical barriers, or ensuring that the tractor driver did not commence driving until all workers were safely positioned on the trailer.[12]
- [34]The essential finding of the magistrate was that the failures of the appellants arose from not directing workers that they could not ride on the back of the trailer. That was the case particularised by the prosecution. The fact that the magistrate identified alternative control measures does not mean that the appellants were convicted on an unparticularised basis.
The magistrate’s failure to have regard to and apply sections 17, 18 and 19 of the Work Health and Safety Act 2011
- [35]The appellants submit that the magistrate failed to have regard to and apply ss 17, 18 and 19 of the WHS Act, which resulted in a failure to determine: (a) whether or not any worker had been exposed to the risk of death or serious injury; and/or (b) whether the measure particularised by the prosecution was “reasonably practicable”.
- [36]They submit that the broad allegation that the conveyance of workers on the trailer was, of itself, a breach of duty, regardless of the conduct of the injured worker, required careful consideration of ss 17, 18 and 19 of the WHS Act.
- [37]The appellants submit that the evidence established that the injured worker was engaging in a self-evidently dangerous activity which he had previously been told not to do. They submit that the injured worker’s conduct can properly be characterised as the unforeseeable behaviour of a disobedient employee whose own conduct led to the event which could not reasonably be foreseen and, therefore, it was not reasonably practicable to guard against it.[13]
- [38]The magistrate gave appropriate consideration to the relevant provisions of the WHS Act. The magistrate considered the respective duties to which the appellants were subject under the WHS Act.[14] The magistrate recognised that s 17 imposed a “heavy burden” on those conducting businesses or undertakings which required the elimination of risks so far as is reasonably practicable, and where not practicable, the minimisation of those risks.[15]
- [39]The magistrate also had regard to what is reasonably practicable in ensuring health and safety by reference to s 18 of the WHS Act.
- [40]The magistrate stated that: “[t]his case is not about the acts per se of [the injured worker], but relate to the questions of whether there is a health and safety duty, whether the defendants failed to comply with that duty, and if the failure exposed risk to death or serious injury.”[16]
- [41]In my view the present case cannot be characterised as “… the unforeseeable behaviour of a disobedient employee whose conduct led to the happening of an event that could not be reasonably foreseen …”.[17]
- [42]There are circumstances where an event occurs due to the unforeseeable conduct of an employee. The facts in Safe Work NSW v Wollongong Glass Pty Ltd[18] provide an example. In that case the deceased employee was assisting another employee to lean glass sheets stacked on an A-frame trolley. The glass sheets were 2306mm high by 2100 mm wide and weighed approximately 80kg each. The weight of the glass sheets became too much for the deceased to support and they fell causing him fatal head injuries. At the time, the deceased was under the influence of cannabis to the extent that in the opinion of a consultant pharmacologist, the deceased’s perceptions, judgment, decision-making processes, vigilance, appreciation of dangers, concentration and reaction times were significantly impaired. Moreover the employer’s system of work ensured by adequate training that was enforced by supervision, required that a crane be used for pieces of glass that could not manually lifted by two people, being panels weighing more than 60kg or bigger by 2.4m long by 1.2m high.
- [43]In my view the magistrate properly considered and applied ss 17, 18 and 19 of the WHS Act.
Whether the magistrate erred by treating the health and safety duty imposed on Scocan as the same as that imposed on Mr and Mrs Maxwell and whether they exercised due diligence[19]
- [44]Mr and Mrs Maxwell submit that the magistrate erred by treating proof of the alleged breaches of duty by all appellants collectively. They rely on the magistrate’s comments that: “… the obligations imposed on the defendants’ representative and the defendant company involving their health and safety duty is wide, and I find that they have collectively failed to comply with that duty, in circumstances where the failure did expose an individual to risk of death or serious injury.”[20]
- [45]Mr and Mrs Maxwell also submit that the magistrate failed to undertake any analysis of the evidence to determine whether there was a failure to gain an understanding of the risk posed to health and safety of workers through being on the trailer when it was being moved by the tractor. They also submit that the magistrate failed to consider whether they failed to take reasonable steps to ensure that resources and processes were available for use and used by Scocan to eliminate the risk.
- [46]The magistrate did refer to all appellants collectively, but that was because they were all charged with offences arising out of the same set of circumstances. The magistrate specifically referred to s 27 of the WHS Act which creates the duty on officers to exercise due diligence to ensure that the business complies with its health and safety duty.[21]
- [47]The magistrate did not treat the obligation imposed on Mr and Mrs Maxwell by s 27(1) of the WHS Act as creating any form of vicarious liability. The magistrate referred to part of the failure of the defendants to identify the risk as being evident from their lack of inclusion of specific documentation in relation to safe operating procedures associated with moving from one worksite to another particularly while travelling on the trailer.[22] The magistrate referred to the induction document signed by the injured worker dated 6 December 2021 which made no reference to any risks associated with riding on the moving trailer.[23] Similarly there was no reference in the employee handbook to any risks associated with travelling on the trailer.[24]
- [48]In my view the magistrate did not treat the health and safety duty imposed on Mr and Mrs Maxwell as being the same as that imposed on Scocan. Moreover the magistrate properly considered the duty imposed upon Mr and Mrs Maxwell as officers by s 27(1) of the WHS Act.
The evidence at the trial
- [49]The following facts were admitted pursuant to s 148A of the Justice Act 1886:[25] (a) Scocan was an Australian registered company; (b) Scocan conducted its business at 22 Cran Road, Tinana, Queensland; (c) that Mr and Mrs Maxwell were directors of Scocan; (d) that Scocan conducted a business or undertaking of harvesting pineapples; (e) that Scocan owned and operated the tractor and pineapple harvester on a trailer as part of its business or undertaking at the workplace; (f) that Scocan employed workers including Dean Jay Anderson and Caleb Ryan Mead, to work at the workplace as part of its business or undertaking; (g) that on 1 August 2022 Mr Mead sustained serious injuries, namely high grade liver laceration involving multiple liver segments, bilateral hemopneumothoraces (collapsed lungs), right scapular fracture, left humeral shaft fracture, and left infraorbital haematoma and preorbital and premaxillary soft tissue swelling.
- [50]The prosecution called the following witnesses who were working on the day of the incident: Caleb Mead, Dean Anderson, Adam Garner, Shaun Mahoney, Daniel Middleton and Joshua Smith.
- [51]The prosecution also called Jacqueline Curtis, an inspector at Workplace Health and Safety Queensland.
- [52]Scocan and Mr and Mrs Maxwell did not give or call evidence.
- [53]A general risk assessment was carried out on 14 August 2021.[26] The risk assessment identified the harm that could be caused as being muscle strain to workers while picking pineapples. The assessment stated that workers were encouraged to stretch before commencing work. There was no reference to any risk arising from workers travelling on the moving trailer.
Caleb Mead
- [54]Mr Mead was 19 years old. He commenced working for Scocan on 1 January 2022. This was his first job. Mr Mead signed an induction document in which he acknowledged that it was his legal responsibility to take reasonable care for the health and safety of himself and others at the workplace. He also acknowledged that he was required to comply with all reasonable instructions, policies and procedures in the workplace.[27] Mr Mead said that he received directions to the effect that workers could sit on the trailer, but they were required to ensure that it was safe and to stay away from the conveyor belt.[28] When reminded of what he said in his statement dated 29 September 2022 Mr Mead agreed that he was told by Mrs Maxwell that workers could sit on the trailer and they were not to have their legs dangling.[29] He was also told that workers should not sit underneath the boom.[30]
- [55]On 1 July 2022 Mr Mead signed an employee handbook comprising 50 pages.[31] The health safety and welfare section of the employee handbook outlined general requirements that employees not take any action that could threaten their health or safety or that of other employees. There were no specific guidelines on riding on a moving trailer.
- [56]On 1 August 2022 the workers were moving to a different location to continue picking pineapples. Mr Mead said that he sat on the trailer underneath the conveyor belt because the positions where workers would usually stand were taken up.[32]
- [57]
- [58]
- [59]Mr Mead was cross-examined about a part of his statement where he said: “I sat about 50 centimetres in front of the right-hand side wheel guard and put my legs over the edge. My feet were able to come into contact with the dirt. Simply to amuse myself, I was lifting my feet up and down in the dirt similar to a galloping-type motion.” He said that he believed the words in his statement were “a bit jumbled up or … misunderstood.” He denied using the word “galloping” and said that he believed that the statement had been written in the investigator’s own words. He explained that he believed that he would not have spoken in that manner because he had recently had a tube removed from his throat and could barely speak.[39]
Dean Anderson
- [60]Mr Anderson commenced work at Scocan in December 2011. He was the team leader at the time of the incident. Mr Anderson described the process of picking pineapples and stacking them in three crates on the trailer. He said that there is minimal room on the trailer when it is full with three crates.
- [61]Mr Anderson said that workers were allowed to ride on the trailer. He said that he was aware of directions given to workers not to stand between the bins because of the risk of being crushed. He said that workers were also told not to sit underneath the boom. He said that he had never seen workers sitting on the trailer with their legs over the side.
- [62]On 1 August 2022 Mr Anderson was driving the tractor. He said that the workers were going a short distance from block 5C to block 4B to continue picking pineapples. The distance was about 100-150 metres. Mr Anderson told the workers that they could hop on the trailer or walk to the next section. He said that all workers got on the trailer except Daniel Middleton who hopped on the step of the tractor. He said that the workers had the option of walking to the next block if they wished.
- [63]Mr Anderson said that the ground was level and safe to drive over. He said that before driving off he checked to ensure that all of the workers including Mr Mead were either sitting or standing in a safe position.[40]
- [64]
- [65]Mr Anderson said that apart from the incident on 1 August 2022 he had not seen anyone fall from the harvester.[43]
Adam Garner
- [66]Mr Garner had been working for Scocan for four years. He said that within the first two weeks of starting work he was told to stand behind the wheels of the trailer in a safe spot.[44]
- [67]Mr Garner was working on 1 August 2022. He described hearing a noise and looking back and seeing Mr Mead lying on the ground.[45]
- [68]
- [69]
Shaun Mahoney
- [70]Mr Mahoney had worked for Scocan for three and a half years. In relation to riding on the trailer he said that more experienced workers might tell other workers where they should or should not sit.[51] He could not recall receiving any specific instructions from Scocan or Mr and Mrs Maxwell about those matters.[52]
- [71]Mr Mahoney was working on 1 August 2022. He said that the workers had finished picking pineapples on one block and were moving to another block. He said that they got on the trailer. He was on the right side directly behind the wheel facing forward. He said that he heard and felt a bump. He then looked around and saw Mr Mead’s legs out of the back of the wheel and half his body under the wheel. He called out for the tractor to stop and an ambulance to be called.[53]
- [72]Mr Mahoney said that workers would often travel on the trailer. He said that the distances travelled were very short and the ground over which the tractor and trailer travelled was flat.[54]
- [73]
Daniel Middleton
- [74]Mr Middleton worked for Scocan for approximately two years. He had been there for about a year at the time of the incident on 1 August 2022.
- [75]Mr Middleton said that he had been given safety instructions as part of the induction process. He said that workers could ride on the trailer but use common sense and stand where there was adequate room.[57]
- [76]On the day of the incident the workers were moving a short distance to continue picking pineapples. He said that there were “a fair few” workers that day and it was “a bit crowded on the trailer” so he rode on the step of the tractor.[58] Mr Middleton said that he did not see the incident occur but heard the other workers calling out.
Joshua Smith
- [77]Mr Smith had been working for Scocan for about a year. He said that he had been given safety instructions about where to stand or sit on the trailer and not to be in the vicinity of the conveyor belt and boom.[59]
- [78]Mr Smith said that the day of the incident was a hot day. He said that Mr Anderson told the workers they could ride on the trailer or walk to the next location. Mr Smith said that he stood on the trailer. He thought that Mr Mahoney and Mr Middleton were at the back of the trailer. He said that Mr Mead was sitting underneath the conveyor belt and he had his feet hanging over the edge.[60] He told Mr Mead that he was “an idiot” and that he shouldn’t be there.[61] Mr Mead ignored him.[62]
- [79]
- [80]Mr Smith said that apart from the incident on 1 August 2022 he had not seen any worker fall off the trailer.[64]
The elements of the offences
- [81]An element of the offence in s 32 of the WHS Act is that the person failed to comply with a health and safety duty. In R v Lavin[65] Davis J (with whom McMurdo JA and Mullins J, as the President then was, agreed) explained that:
- “[43]Sections 32 and 33 import considerations of “reasonableness”. This is because s 19 of the WHS Act defines the duty as one to ensure health and safety in so far as is “reasonably practicable.”
- [82]The primary duty of care owed by a person conducting a business or undertaking is contained in s 19 of the WHS Act. An officer has a separate duty to exercise due diligence to ensure that the entity conducting the business or undertaking complies with its health and safety duty.[66] The exercise of due diligence includes taking reasonable steps as outlined in s 27(5) of the WHS Act.
Scocan
- [83]The prosecution is required to prove the following elements of the offence beyond reasonable doubt:
- Scocan was conducting a business or undertaking;[67]
-
Scocan owed a health and safety duty to ensure, so far as reasonably practicable, the health and safety of:
- workers engaged by it; and
- while the workers were at work in the business or undertaking;
- Scocan failed to comply with its health and safety duty; and
- the failure exposed an individual to a risk of death or serious injury.
- [84]
- [85]The main issues are whether Scocan failed to comply with its health and safety duty and whether such failure exposed workers including Mr Mead to a risk of death or serious injury.
Mr and Mrs Maxwell
- [86]The prosecution is required to prove the following elements of the offence beyond reasonable doubt:
- that Scocan owed a health and safety duty under the WHS Act;
- that Mr and Mrs Maxwell were officers of Scocan;[70]
- that Mr and Mrs Maxwell failed to exercise due diligence to ensure that Scocan complied with its health and safety duty; and
- the failure exposed an individual to a risk of death or serious injury.
- [87]It was an admitted fact that Mr and Mrs Maxwell were directors of Scocan.[71] The main issues are whether Mr and Mrs Maxwell failed to exercise due diligence to ensure that Scocan complied with its health and safety duty and whether the failure exposed workers including Mr Mead to a risk of death or serious injury.
The management of risks
- [88]The duty imposed on Scocan by s 17(a) of the WHS Act required it to eliminate risks to health and safety so far as is reasonably practicable. If it is not reasonably practicable to eliminate risks, the duty imposed by s 17(b) required it to minimise the risks so far as is reasonably practicable.
- [89]There is helpful guidance on the concept of reasonable practicability in Safe Work NSW v Wollongong Glass Pty Ltd:[72]
- “[26]The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; 103 IR 52 at [53] per Gaudron J.
- [27]The words reasonably practicable indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.8
- [28]An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
- [29]A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
- [30]The unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
- [31]In some cases, it will not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. There are limits to the degree of instruction which can be expected to be provided to an experienced employee: Genner Constructions at [68].
- [32]Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.”
- [90]The offence of failing to comply with a health and safety duty (category 2) in s 32 of the WHS Act involves a failure that exposes an individual to a risk of death or serious injury or illness. It is not necessary that an individual actually be injured.[73]
- [91]The issue is not whether any failure by a duty holder was the cause of the injury to the worker, but rather whether there is a causal relationship between any such failure and the risk to which the worker was exposed.[74]
The approach to conducting a review of the evidence.
- [92]The nature of the appeal requires the court to undertake a “real review” of the evidence. Having regard to the magistrate’s error in failing to refer to the standard of proof, the court should make its own findings of fact and formulate its own reasoning.[75]
- [93]In this case, much of the evidence was undisputed. Mr Mead was the only witness whose evidence was the subject of challenge.
- [94]A court conducting an appeal by way of rehearing should examine conflicting evidence and draw its own conclusions.[76]
- [95]As this court is in a position to make its own findings of fact, there is no necessity to order a retrial pursuant to s 225(2) of the Justices Act 1886.[77]
Factual findings
- [96]At the trial counsel for Scocan and Mr and Mrs Maxwell submitted that Mr Mead was a “thoroughly unsatisfactory witness” whose evidence could not be relied upon. It was submitted that “[h]e lied about lifting his feet up.” The fact that the prosecutor made no mention of Mr Mead’s right foot being run over in her opening address was “… an example of a dishonest witness who fabricates evidence to try and bolster his case …”.
- [97]I do not accept that Mr Mead was untruthful or otherwise unreliable. The inconsistencies in his evidence did not affect his overall credibility. Mr Mead suffered significant injuries in the incident on 1 August 2022. His statement was taken by an investigator on 29 September 2022 at a time when he had recently had a tube removed from his throat and could barely speak. He gave evidence at the trial on 29 February 2024, approximately 18 months after the incident.
- [98]There are inconsistencies in Mr Mead’s evidence. After initially saying that he had not been told by Mrs Maxwell not to dangle his legs over the side of the trailer, he accepted that he had been given such an instruction when reminded of the contents of his statement.
- [99]Although Mr Mead asserted that the investigator had used the phrase “galloping motion” to describe the action of his legs dangling from the trailer, he explained that his feet were dangling over the side of the trailer and making continuous contact with the ground.[78] He accepted this was something he had been told not to do.[79]
- [100]Mr Mead denied that he was told by another worker not to sit under the boom.[80] Mr Smith gave evidence that he said to Mr Mead “you are a dickhead, what are you doing there you (expletive) idiot”.[81] Mr Smith was asked whether Mr Mead responded. He said, “I just think he brushed it off” and “[he] just ignored it”. When asked whether Mr Mead said anything, he said “Not really, just sort of grunted or groaned or something. I can’t remember, it is a while ago.”[82] Mr Smith said that at the time he made the comment the tractor was moving and Mr Mead was not facing towards him.[83]
- [101]Assuming that Mr Smith did make such a comment directed to Mr Mead, there is a distinct possibility that Mr Mead did not hear it. In any event the team leader, Mr Anderson, had looked around at all the workers on the harvester including Mr Mead and was satisfied that they were sitting or standing in a safe position.[84]
- [102]Another issue raised by counsel for Scocan and Mr and Mrs Maxwell related to what was submitted to be a denial by Mr Mead that the workers were told that they could walk to the next crop if they wished to do so, which was contrary to the evidence of other workers. Mr Mead was asked about Mr Anderson telling the workers that they could walk and he said, “I don’t think he said that that day.”[85] It was then suggested that Mr Anderson did say that and Mr Mead disagreed.[86] Mr Mead’s inability to recall a fairly insignificant conversation does not affect his overall credibility. Mr Anderson explained that although the distances were not great, most workers preferred not to walk because they were hot and wanted to get a drink and cool down before restarting.[87]
- [103]There was also an issue in relation to whether there was sufficient room for Mr Mead to stand or sit on the trailer without having to sit underneath the conveyor belt. Mr Mead said that he sat in that position because all other positions were taken.[88] A number of workers gave evidence that there was no need for Mr Mead to sit under the conveyor belt.[89] However Mr Middleton said it was crowded on the trailer when he went to get on so he rode on the step of the tractor.[90] Mr Smith was clearly mistaken when he said that he thought that Mr Middleton was at the back of the trailer, which perhaps illustrates that it is unlikely that the workers paid particular attention to the respective positions of the others.[91]
- [104]The following facts are clearly established by the evidence:
- Mr and Mrs Maxell were present at the farm virtually every day and were “hands on” in relation to management;[92]
- a general risk assessment carried out on 14 August 2021 did not address risks associated with workers riding on the trailer;
- workers were permitted to ride on the trailer but had been directed not to stand between the first and second bins because of the risk of being crushed, and not to sit underneath the conveyor belt because of the risk of it falling;[93]
- Mr Mead was 19 years of age and commenced employment with Scocan on 1 January 2022. This was his first job. Mr Mead signed an induction document in which he acknowledged that it was his legal responsibility to take care for his own health and safety and that of others at the workplace. He signed an employee handbook on 1 July 2022. The handbook outlined general requirements but contained no specific guidelines on riding on a moving trailer;
- Mr Mead had been given verbal instructions by Mrs Maxwell that workers could sit on the trailer but not have their legs dangling over the side;
- although workers had the option of walking from site to site, they would generally prefer to ride on the trailer;
- on 1 August 2022 the workers were travelling a short distance from Block 5C to Block 4B to continue picking pineapples. Mr Anderson was driving the tractor. The trailer was loaded with three crates containing pineapples. There was “minimal room” on the trailer when it was loaded with three crates;[94]
- Mr Middleton believed that it was too crowded to ride on the trailer so he rode on the step of the tractor. The other workers rode on the trailer. Mr Mead sat on the right side of the trailer with his legs over the side. He was positioned in front of the wheel guard underneath the conveyor belt;
- before driving off Mr Anderson was satisfied that all workers were sitting or standing in a safe position. He raised no issue with Mr Mead about where he was sitting;
- the tractor towing the trailer was travelling at about 8 – 9 km/hr over fairly flat ground. The distance between Block 5C and Block 4B was about 100 – 150 metres.
- Mr Mead was “kicking” his legs around and his right foot came into contact with something pushing it underneath the dual wheels of the trailer. He was pulled from the trailer and went underneath the wheels.
Conclusions
Scocan
- [105]I am satisfied beyond reasonable doubt of the elements of the offence including that:
- Scocan failed to ensure so far as was reasonably practicable, the health and safety of workers engaged by it, while they were at work at the pineapple farm; and
- the failure exposed workers including Mr Mead to a risk of death or serious injury.
- [106]The use of the trailer was hazardous because there was a risk to the health and safety of workers that they could be killed or suffer serious injuries as a result of falling from the trailer when it was moving. In the circumstances, Scocan should have eliminated the risk to the extent that was reasonably practicable by directing workers that they were prohibited from being on the moving trailer and providing supervision to ensure that the direction was complied with.
- [107]The trailer was not suitable for transporting workers, particularly when it was loaded with crates of pineapples. There was clearly a risk of a worker falling from the moving trailer.
- [108]I consider that the verbal instruction given to workers about travelling on the trailer was an inadequate control measure. The fact that there were conversations with workers about riding on the trailer indicates that there was an awareness of risks involved in that activity.
- [109]The fact that there had not been previous incidents of a worker falling from the trailer does not mean that the risk did not exist.
- [110]This is not a case of unforeseeable behaviour by an employee who failed to follow instructions. It is not surprising that a young worker would prefer to ride on a trailer in a position where he was able to sit rather than walking to the next site, particularly on a hot day. A general direction given verbally would not necessarily be in the forefront of his mind in the circumstances.
Mr and Mrs Maxwell
- [111]I am satisfied beyond reasonable doubt of the elements of the offence, including that both Mr and Mrs Maxwell:
- failed to exercise due diligence to ensure that the Scocan complied with its health and safety duty; and
- the failure exposed individuals including Mr Mead to a risk of death or serious injury.
- [112]The obligation to exercise due diligence involves taking reasonable steps to gain an understanding of the nature of the operations of the business and generally of the risks associated with those operations[95] and to ensure that resources and processes are available for use and are used in order to eliminate or minimise risks to health and safety.[96]
- [113]Mr and Mrs Maxwell, as officers of Scocan, should have ensured that Scocan complied with its health and safety duty by giving a direction that workers were prohibited from being on the moving trailer and providing supervision to ensure that the direction was complied with.
Orders
- [114]Having regard to my conclusions, the appeals must be dismissed. I will hear submissions on costs.
Footnotes
[1] Justices Act 1886 (Qld) s 223(1).
[2] Justices Act 1886 (Qld) s 225(1).
[3] (2016) 90 ALJR 679, at 686-687 [43] (footnote references omitted).
[4] [2018] 2 Qd R 612 at 627 [47] (footnote references omitted).
[5] AB8:19-20.
[6] AB8:25-26. The audio recording of the magistrate’s reasons was played during the hearing of the appeal and the transcript in this respect is accurate.
[7] AB8:27-30.
[8] AB15:4-6.
[9] Douglass v R (2012) 290 ALR 699 at 701-702 [8].
[10] AB13:32-33.
[11] AB13:37-41.
[12] AB13:42-46.
[13] Safe Work NSW v Wollongong Glass Pty Ltd (2016) 257 IR 351 at 356 [29]-[32].
[14] AB9:35-45 – AB10:1-25.
[15] AB11:5-15.
[16] AB13:20-24.
[17] Amended Outline of Submissions for Scocan filed 2 December 2024 at para 63; Amended Outlines of Submissions for Mr and Mrs Maxwell filed 2 December 2024 at paras 73.
[18] (2016) 257 IR 351.
[19] Amended Notices of Appeal filed by Mr and Mrs Maxwell on 2 December 2024: grounds 2 and 3.
[20] AB14:46-47 - AB:15:1-2.
[21] AB9:10-27.
[22] AB14:21-25.
[23] Exhibit 2.
[24] Exhibit 8.
[25] Exhibit 1.
[26] Exhibit 11.
[27] Exhibit 2.
[28] AB28:30-35.
[29] AB38:30-40.
[30] AB38:45-50.
[31] Exhibit 8.
[32] AB29:39-41, AB50:40-45.
[33] AB33:30-31.
[34] AB35:30-32.
[35] AB35:35-45.
[36] AB49:46-50.
[37] AB33:15-25.
[38] AB37:15-18.
[39] AB42:5-50.
[40] AB67:25-50.
[41] AB63:40-50-AB64:1-5.
[42] AB60:46-47.
[43] AB62:26-31.
[44] AB71:45-50-AB72:1-5.
[45] AB72:20-26.
[46] AB74:31-35.
[47] AB74:36.
[48] AB75:10-11.
[49] AB75:20-21.
[50] AB75:35-45.
[51] AB79:1-5.
[52] AB79:11-12.
[53] AB79:15-25.
[54] AB81:20-25.
[55] AB81:30-35.
[56] AB82:16-17.
[57] AB85:20-25.
[58] AB86:10-15.
[59] AB90:40-50-AB91:1-25.
[60] AB94:20-21.
[61] AB94:1-2.
[62] AB94:33-34.
[63] AB94:40-45.
[64] AB95:35-40.
[65] R v Lavin [2019] QCA 109
[66] R v Lavin [2019] QCA 109 at [40] (Davis J, McMurdo JA and Mullins J, as the President then was, agreeing).
[67] The meaning of “person conducting a business or undertaking” is contained in s 5 of the Work Health and Safety Act 2011.
[68] Exhibit 1 at para 4.
[69] Exhibit 1 at para 6.
[70] The meaning of “officer” in the Dictionary, Schedule 5 of the Work Health and Safety Act 2011 includes an officer as defined in s 9AD of the Corporations Act 2001 (Cth). That provision defines an officer as including a director: s 9AD(1)(a).
[71] Exhibit 1 at para 3.
[72] (2016) 257 IR 351 at 356 (Scotting DCJ).
[73] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 553 [13] (French CJ, Gummow, Crennan, Kiefel and Bell JJ); Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [53].
[74] Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338 at 363 [127]-[130] (Bathurst CJ, Hidden and Davies JJ).
[75] Wang v Hur [2024] QCA 126 at [24].
[76] Fox v Percy (2003) 214 CLR 118 at 127 [25] (Gleeson CJ, Gummow and Kirby JJ).
[77] Fox v Percy (2003) 214 CLR 118 at 133 [46] (Gleeson CJ, Gummow and Kirby JJ).
[78] AB46:1-25.
[79] AB49:15.
[80] AB37:11-20.
[81] AB94:15-16.
[82] AB94: 25-40.
[83] AB94: 17-22.
[84] AB67:25-50.
[85] AB36:37-38.
[86] AB36:40.
[87] AB64:36-38.
[88] AB29:40-42.
[89] Adam Garner at AB75:17-25, Shaun Mahoney at AB81:27-50, Joshua Smith at AB95:40-42.
[90] AB86: 10-15.
[91] AB 93: 1-5.
[92] AB 66: 10-15.
[93] AB 61: 1-25.
[94] AB 59: 1-2.
[95] Workplace Health and Safety Act 2011, s 27(5)(b).
[96] Workplace Health and Safety Act 2011, s 27(5)(c).