Workcover Authority of New South Wales (Inspector Warren Cecil Boyle) v Graincorp Operations Limited [2003] NSWIRComm 42 (27 February 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Warren Cecil Boyle) v Graincorp Operations Limited [2003] NSWIRComm 42

FILE NUMBER(S): IRC 516

HEARING DATE(S): 11/12/2002, 12/12/2002, 13/12/2002

DECISION DATE: 27/02/2003

PARTIES:

PROSECUTOR:

Inspector Warren Cecil Boyle

DEFENDANT:

Graincorp Operations Limited

JUDGMENT OF: Staunton J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr R Reitano of counsel

SOLICITORS:

Phillips Fox Lawyers

DEFENDANT:

Mr P. M Skinner of counsel

SOLICITORS:

Goldbergs Solicitors

CASES CITED: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467

Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432

Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57

Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149

Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428

Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57

Rodney Morrison v Tahmoor Coal Pty Ltd [2002] NSWIRComm 327

Shannon v Comalco Aluminium Ltd (1986) 19 IR 358

State Rail Authority of New South Wales v Dawson (1990) 37 IR 110

WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248

LEGISLATION CITED: Occupational Health and Safety Act 1983 s 15 s 53

Occupational Health and Safety (Confined Spaces) Regulation 1990 Part 5

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Staunton J

27 February 2003

Matter No. IRC 516 of 2002

WorkCover Authority of New South Wales (Inspector Warren Cecil Boyle) v Graincorp Operations Limited

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2003] NSWIRComm 42

1 On 3 May 2000, Andrew Steele was employed as a grain handler at one of the defendant's grain silos (BS 76) at Gilgandra in New South Wales. On that day, he and three workmates were engaged in loading grain from the silo into rail trucks. In the course of doing that and in circumstances to be elaborated upon in this judgment, Andrew Steele became caught by moving grain and was trapped for some five hours. He was nearly suffocated and suffered a number of injuries.

2 As a result of the above accident, the defendant was charged with an offence under section 15(1) of the Occupational Health and Safety Act 1983 ('the Act'). The defendant has entered a plea of not guilty to that charge.

3 The offence charged is in the following terms:

It is alleged that -

the Defendant GRAINCORP OPERATIONS LIMITED (ACN 003 875 401), an employer, breached section 15(1) of the Occupational Health and Safety Act 1983 on 3 May 2000 at premises located at Eumungerie Street, Newell Highway, Gilgandra in the State of New South Wales ("the premises"), in that it failed to ensure the health, safety and welfare at work of its employees, in particular, Andrew Charles Allen Steele, in that it failed to ensure a system of work that was safe and without risks to health for the clearance of grain blockages in silos at the premises.

4 Particulars of the defendant's alleged breach are:

(a) It failed to conduct an adequate risk assessment prior to its employees attempting to clear a grain blockage in Bulk Storage Silo 76 ("BS76") at the premises;

(b) It failed to ensure that adequate training, instruction and supervision was given to persons employed as grain handlers in the safe management of or safe procedures for the removal of grain blockages in silos at the premises;

(c) It failed to provide adequate equipment to employees to ensure the safe removal of grain blockages in silos at the premises;

(d) It failed to provide adequate warnings to its employees concerning the potential hazard of working on or near moving grain in silos at premises;

(e) As a result of the defendant's failures, Andrew Charles Allen Steele was exposed to a risk of injury or death from suffocation.

5 At the hearing before me certain agreed facts were tendered, relevantly as follows:

(1) At all material times the Defendant:

(a) was involved in the storage and handling of bulk grain at the premises;

(b) was responsible for the storage and handling of grain in a silo known as Bulk Storage 76 (BS76) at the premises;

(c) employed Jim Ewers (Ewers), Allen William Steele (Allen Steele) and Andrew Charles Allen Steele (Andrew Steele) as grain handlers at the premises;

(d) employed Malcolm John Noonan (Noonan) as a team leader at the premises;

(e) employed Trevor Banks (Banks) as a maintenance mechanic at the premises.

(2) On 3 May 2000 Andrew Steele and Noonan were overseeing the loading of rail trucks with grain from BS76 (the loading operation). The loading operation was conducted via a grain elevator which received bulk grain through a hopper located underneath the concrete floor of BS76. The grain was lifted by the elevator for loading into the rail trucks.

(3) Prior to 3 May 2000 there had been rainfall in the area of the premises and the grain in and around the hopper had become wet.

(4) At approximately 10.30am (on 3 May 2000) Andrew Steele became caught in the moving grain above the hopper and he was trapped for almost 5 hours. Andrew Steele was temporarily covered by grain running over his face and he temporarily lost consciousness. Emergency services attended the scene to assist in the rescue operation and Andrew Steele was removed from the grain at about 3.40pm.

(5) BS76 was constructed of a concrete base and fabricated with galvanised sheeting sides and internal wooden rails with steel posts.

(6) External to the shed was a grain elevator tower connected to a hopper underneath the shed.

(7) Entry to BS76 was through a main door located on the northern side and constructed of steel measuring 2.9 metres high and 2.5 metres wide. Positioned in the top left corner (observed from the door in a closed position) of the main door was an inspection door measuring 1 metre by 900 mm. The inspection door was located approximately 2 metres from ground level and was in the very top left hand corner of the main door when looking from the outside of BS76 with the main door closed.

(8) BS76 had a maximum capacity of approximately 7,600 tonnes of grain and was holding approximately 6,500 tonnes of grain at the time of the accident.

(9) On 25 May 2000 the Prosecutor issued Improvement Notice Number 231336 to the Defendant for failing to ensure persons working at BS76 were not exposed to risk of injury due to the absence of safe working procedures and hazard assessment.

(10) The Improvement Notice requested the Defendant to:

‘Ensure the health and safety of employees by providing and maintaining systems of work that will eliminate and control the risk arising from working with grain at BS76 Gilgandra’.

and indicated that consideration should be given to:

‘(1) elimination of water in areas where a blockage could occur;

(2) provision of safe systems of work when a blockage has occurred;

(3) procedures to manage working with grain when the elevator is working and grain is running by gravity at BS76.’

(11) A sump pump had been installed at the premises previously which pumped water from the hopper automatically and prevented the grain becoming wet but it had been stolen prior to the accident. A portable pump had also been supplied.

6 As well as the agreed facts, there was additional documentation and photos tendered by consent bundled together as one exhibit (exhibit 2) and indexed as items numbered 1 to 15.

7 In addition to the four employees mentioned, the prosecution called the following witnesses:

· Inspector Warren Boyle, an Inspector for WorkCover who investigated the accident involving Mr Andrew Steele;

· Mr Spencer Barton, the Risk and Safety Adviser with the defendant - employed by it since 1998;

· Mr David Yeo, the Regional Manager for the defendant at the time of the accident. Mr Yeo has been employed by the defendant for 36 years;

· Mr Trevor Banks, employed as a maintenance mechanic by the defendant at the time of the accident. Mr Banks was employed by the defendant for approximately three years from 1997.

8 Counsel for the defendant called one additional witness - Mr Jamie Zell, currently Area Manager with the defendant. At the time of the accident in May 2000, Mr Zell was a Service Centre Manager with the defendant based at Gilgandra. He has been employed by the defendant since 1998.

9 By way of elaboration to the agreed facts, the four employees engaged in loading grain on 3 May 2000 were Mr Malcolm Noonan, Mr Andrew Steele, Mr Jim Ewers and Mr Allen Steele. Mr Allen Steele is Mr Andrew Steele's father. Mr Noonan is Mr Andrew Steele's father-in-law and Mr Ewers is Mr Andrew Steele's uncle. All four men live in the Gilgandra region and had been employed by the defendant as grain handlers for varying periods of time. Mr Ewers has been employed for some 26 years, Mr Noonan 19 years and Mr Andrew Steele since 1996. Mr Andrew Steele had initially been employed as a casual employee and was made permanent in 1998. His father, Mr Allen Steele had been employed on a casual basis during peak activity times for some four years as at May 2000. Mr Malcolm Noonan was the appointed team leader for the four employees on 2 and 3 May.

10 Prior to 3 May 2000, Mr Noonan, as team leader, had been advised by Mr David Yeo, the Regional Manager for the defendant, of the need to load some 9 rail trucks with grain from the silo (BS 76) on 3 May 2000.

11 Preparation for that task was commenced on 2 May 2000 when the four employees attended at the silo site. Such preparation was particularly necessary on this occasion because of the heavy rain that had occurred in the area.

12 The configuration of the silo for the purposes of unloading made it particularly susceptible to water entering certain working areas of the silo following heavy rain. In simple terms when the silo is being filled with wheat it empties onto a cement floor. At a certain point in the floor there is an opening known as a grate. When the wheat is being outloaded it falls by gravity through the grate into what is known as the reclaim hopper which is located beneath the floor of the silo. The entry of wheat from the silo into the hopper can be controlled by closing a valve between the grate and the hopper. Once the wheat passes through the grate into the hopper, an electrically powered bucket elevator is then used to scoop the wheat from the hopper beneath the floor and lift it up and out by a conveyor belt system to the railway carriages outside the silo.

13 When heavy rain occurs, water enters the hopper area and the bottom of the elevator known as the boot pit. The water gets into the wheat and causes it to expand. It subsequently hardens, becomes crusty on the surface and apart from any other problems, blocks the hopper and the grate through which the wheat falls from the silo. When that occurs it becomes necessary to clear the crusted grain from the elevator boot pit or from the underside of the reclaim hopper and grating.

14 It was not in dispute before me that the problem of wet wheat following rain did occur and that it caused blockages, particularly when wheat had to be outloaded from the silo onto rail trucks. Exactly how many times this problem occurred was not precisely stated but it was clear that it was a commonly acknowledged problem following rain. A permanent pump had been installed by the defendant in the boot pit in order to deal with the flooding problem in that area. At the time of this incident that permanent pump had been stolen and Mr Noonan had available a portable pump which he kept in his utility.

15 On 2 May 2000, the four employees had done all that they could on that day to free up the blockages that had occurred following the heavy rain in preparation for the loading of the rail trucks the next day. The evidence of Mr Malcolm Noonan explained that the four men went to the silo on that day to "clear the wet wheat out of the hopper". As Mr Noonan elaborated:

A. We couldn't get it to run. We couldn't clear the hopper.

Q. Had any wheat been - were you able to clear any wheat?

A. Only the wet stuff, yes. Couldn't get no dry wheat out of it. We pulled a heap of wet wheat out.

16 According to Mr Noonan, the four men pulled out some three tonnes of wet wheat from the boot pit and hopper area on 2 May. All that wheat was thrown away as waste.

17 During the night of 2 and 3 May 2000, there was additional rain in the area. When the four employees returned to the silo site on the morning of 3 May 2000, they were confronted by the continuing problem of water entry into those earlier mentioned areas of the silo and further blockages caused by the swollen and crusted wheat. In a further attempt to free the blocked hopper and grate, the four employees then attempted to free the blockage in the hopper and the grate by utilising a procedure that was well known as one method of attempting to clear blockages caused by swollen and crusted wheat from the hopper and grate. Undertaken from outside the silo, this procedure involved utilising appropriate tools or readily available materials in order to poke through the wheat in the general direction of the hopper and grate. On this occasion the four men utilised pieces of plastic conduit.

18 The procedure, as described by the men in their evidence was, on any view, as simple as it was crude. Put simply, a number of small holes were punched through the corrugated iron wall of the silo, in or about the area where the grate was located with the hopper underneath. The pieces of conduit were then poked upwards through the small holes in the general direction of the hopper and grate in the hope that that action would happen upon the crusted wheat and by pushing at it with the conduit the wheat crust would be broken and the blockage freed.

19 That the defendant knew of the problems with water as far as blockages were concerned, and the rather rudimentary way that its employees attempted to resolve the problem, was evidenced by Mr David Yeo, the Regional Manager for the defendant in his record of interview with Inspector Boyle on 12 May 2000:

Q 17: Were you aware of the problems that staff had when it rained if grain was in the hopper and the water entered the hopper inside BS76?

A: I am, it's a problem that's consistent with BS76 type silo built in low drainage areas and built below ground level.

...

Q22: What did management do to control the ingress of water and the wetting of grain when the automatic pump was no longer there?

A: Portable pumps were used at Gilgandra because the site is manned each day of the week and they are able to manage to keep the water levels down. In this instance Gilgandra received in excess of six inches rain and this of course allowed water to enter the pit and storage shed through the reclaim hopper.

Q27: Did you provide any equipment to release blockages in the hopper caused by wet wheat at silo BS76?

A: Only just the normal shovels and bars. Most of the time men would design their own scraper to release blockages of this nature.

20 In stating that employees of the defendant usually devised their own "scraper to release blockages", Mr Yeo also stated that where he had encountered grain blockages in his inspection travels, they had always been freed by employees utilising their unblocking devices from outside the silo.

21 The efforts to unblock the wheat in the manner described were unsuccessful. A decision was then made by Mr Noonan to make a further attempt to free the blockage by entering the silo and poking down into the wheat with the pieces of conduit in the general area of the grate. The hope was that by poking down towards the grate they would eventually free up the crusted wheat around the grate which it was believed was preventing the grain from flowing through the grate into the reclaim hopper and the elevator bins.

22 In making the decision to enter the silo Mr Noonan did so by entering through the inspection door. The inspection door was a small opening located approximately 2.4 metres above floor level in the main door. When he entered the silo via the inspection door, Mr Noonan was accompanied by Mr Andrew Steele and Mr Jim Ewers.

23 At the time that the three men entered the silo it held approximately 6,500 tonnes of wheat and was assessed as some 70 percent full. In entering the silo via the inspection door, which was part of the main door, it was known that the grate was approximately 3 metres from that main door.

24 When Mr Noonan made the decision to enter the silo with Mr Andrew Steele and Mr Ewers, he did not close the valve between the grate and the hopper and he did not turn off the power generating the bucket elevator. In cross-examination Mr Noonan could give no other explanation as to why he left the elevator on and the valve open except to suggest "complacency" and that he just "didn't know why we did the things we did."

25 Mr Andrew Steele was also questioned as to his view as to why the power for the elevator may have been left on and the valve to the hopper from the grate open. His explanation was expressed thus:

A. If the valve was closed and you poke it [the conduit] down through the grain and the grain started to flow you wouldn't know because the valve was closed, there would be no grain going away.

Q. Thank you. My question is more directed to leaving the elevator on.

...

Q. Why was that left on?

A. Because we had the valve open and if we didn't have the elevator on the wheat would have went into the bottom of the boot pit and the elevator wouldn't be able to pick it up like, it would have swamped it, if you understand.

26 Central to the decision by Mr Noonan to enter the silo in order to free the blocked grain was his belief, at the time, that the grain was not moving. This point was not only a factor in Mr Noonan's decision-making on 3 May 2000, it is also a point disputed by the defendant. In other words, the defendant says there is evidence that the grain was moving, albeit slowly, on 3 May. Given that was so, says the defendant, the decision by Mr Noonan to enter the silo when the wheat was moving was contrary to every instruction given by the defendant to its employees when working with moving wheat. That is an issue I will return to in due course in this judgment.

27 When Mr Noonan, Mr Andrew Steele and Mr Ewers entered the silo via the inspection door, they walked/waded across the wheat in the general direction of the grate. As they did so, they were poking the plastic conduit they had taken with them down into the wheat with the intention of breaking up the crusted wheat around the grate. After a short time Mr Ewers left the silo and went outside for his "smoko". Mr Noonan and Mr Andrew Steele continued their task of poking downwards through the wheat. According to Mr Noonan, this procedure continued for some three-quarters of an hour when Mr Andrew Steele obviously freed the blockage and, almost immediately, the grain began to move. What happened is simply, yet graphically, described by Mr Andrew Steele in his evidence:

"So then the following day about after smoko Mackkie Noonan and myself entered the shed with long poles - I think they were a bit of conduit, but usually [we] just use what was lying about, and we went inside the shed, standing on top of the wheat probing down with the poles and just - it just broke through and it took off and luckily Mackkie was at the side, he got out like. [The] initial gush went up to my knees and Mackkie went to the door and he yelled out for help to tell them to turn the flow of the wheat off and probably by that time I was up to my waist. Jim and Mackkie or Mackkie came back and Jim came in the shed and they had hold of me and with [my] arms trying to stop me going down any further, and Allen came to the door and they told him to go and get some more help. He went to the office, I think, and then has got Jamie and Russell. By that time when they come back the wheat was up to my chin and I knew I was going to go under, so I asked them for some hose or something to breath out of and first, but they gave me, must have been like a syphon hose, had petrol on it, so I couldn't use that but they got a vacuum cleaner hose. By that time the wheat had completely covered me. I just remember the wheat going in my nose and mouth and just screaming out, and that's when I blacked out. All I remember from then is when I came to. They had my hands tied with rope up over a rafter to stop me going down any further and they had a piece of tin around me to stop any further wheat covering me, and because I was at the lowest spot, the pressure of the wheat against the tin, it just wrapped around me like a funnel and just started to crush me and I was in there for about five hours until they eventually got me out."

28 Mr Noonan gave his recollection of the same incident confirming the sequence of events as described by Mr Steele. He explained how, when the wheat started to move and Mr Steele started sinking into the wheat, he rapidly exited the silo, called for help and turned off the power to the elevator. He went back and held Mr Steele and assisted in securing the vacuum hose to help him breathe and stabilising him in such a way that he did not slip further into the wheat. The effort to free Mr Steele involved the assistance of the police and associated emergency services and required the cutting of large holes in the silo wall nearest to Mr Steele to allow wheat to run away and take the weight and pressure of the wheat off him.

29 Putting aside for the moment whether the grain was moving or not moving, the decision by Mr Noonan to enter the silo in order to free the blockage of wheat in the way that he and his workmates attempted was, on any objective consideration, inherently dangerous and foolhardy - particularly given that the valve between the grate and the reclaim hopper was left open and the power to the elevator was left on. Notwithstanding that, Mr Noonan gave evidence that he had utilised that procedure to free blocked grain on prior occasions. Mr Andrew Steele and Mr Ewers supported his evidence on this point and I accept that to be the case. Mr Yeo, as the Regional Manager stated that he did not know of such a procedure being used to clear blocked grain. While Mr Yeo conceded that the freeing of blockages in the hopper caused by wet wheat was not unknown and that employees generally used "shovels and bars" or "would design their own scraper to release blockages of this nature", it was his experience that the freeing of all such blockages were attempted from outside the silo.

30 While it may have been a dangerous and foolhardy thing to do, I do accept the evidence of Mr Noonan, Mr Andrew Steele and Mr Ewers that this was not the first time that they had utilised such a procedure to free grain blockages. Whatever else may be said about Mr Noonan's decision on the day in question, I did not get the impression that Mr Noonan sought to mislead the Court in any evidence that he gave. Likewise his work colleagues. To adopt the phrase of counsel for the defendant in relation to Mr Noonan's evidence:

" in the way he gave his evidence one would applaud. He was candid, he was forthright and courageous in accepting that he had told Mr Andrew Steele, accepting that as night follows day, that in hindsight as soon as they uncleared that blockage what happened was going to happen and so on."

31 If anything, Mr Noonan left one with the overwhelming impression that the potential consequences of his decision on that day were of a magnitude too terrible to contemplate, given that it almost led to the death of his son-in-law. There was no doubt in my view that he clearly blamed himself for all that had happened.

32 There is no evidence before me the defendant knew that the practice of entering the silo in the manner described to free grain blockages had developed amongst those particular employees. There is little doubt, if it had become known, it would have been immediately prohibited for reasons that are self-evident.

33 In entering a plea of not guilty, the defendant raises a defence under s 53 of the Act. As well, the defendant relies upon the actions of Mr Noonan on 3 May 2000 as being such as to break the chain of causation as far as the defendant's liability is concerned, relying particularly on the decision of a Full Bench of this Court in State Rail Authority of New South Wales v Dawson (1990) 37 IR 110.

34 The starting point for considering this matter must be to have regard to the nature of the offence created under s 15(1) of the Act. It is restating a general principle long established that "s 15 imposes an absolute liability on an employer subject to s 53 which provides for a defence in certain, identified circumstances": Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359. In Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 452 that obligation is expressed as:

"the terms of s 15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety."

35 The meaning of "ensure" in the context of s 15 enunciated by Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470 has been consistently adopted in decisions of this Court.

36 Notwithstanding the absolute nature of the defendant's liability it is still necessary for the prosecution to establish beyond reasonable doubt each of the elements of the offence. As the Industrial Commission in Court Session said in State Rail Authority v Dawson (1990) 37 IR 110 (at 120-121):

"The mere fact that an accident occurs involving an employee, but without more does not establish liability in an employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee."

37 On behalf of the defendant, considerable evidence was adduced about training programmes organised by the defendant both generally as well as those undertaken specifically by the relevant employees.

38 The defendant relies on extensive training programmes in a wide range of areas as well as safety manuals and identified operating procedures as evidence of the emphasis it placed on proper safety procedures in the workplace - particularly in relation to working with moving grain. The defendant conceded that there was no specific training programme or authorised operational instructions for the clearance of grain blockages. Notwithstanding that the defendant says, within a number of its training programmes, safety manuals and procedures, consistent emphasis was placed on those matters which, if abided by, would have ensured that Mr Andrew Steele would not have been exposed to the risk of injury that he was by the system of work to free the grain blockage adopted by Mr Malcolm Noonan on 3 May 2000.

39 There was no dispute by any of the four employees that they had undertaken a variety of training programmes over the years prior to the accident, although the extent to which any of them remembered anything was questionable. Counsel for the defendant submitted detailed documentation about the relevant in-service training programmes each of the employees had undertaken during their period of employment with the defendant. On any view, they were extensive and wide-ranging. For example, Mr Noonan in his 19 years or so with as they defendant, had undertaken some 19 programmes of various types during that time including topics such as Customer Awareness, Fumigation and Grain Assessment. It is not necessary to detail all of them for the purposes of this judgment. Suffice to say that those considered most relevant, and the year in which Mr Noonan undertook them were:

Confined Spaces: 1993

Risk Assessment: 1997

Safety Committee: 1997

Workplace Assessment: 1996

Weighbridge Clerk: 1994

Workspace Training: 1995

Silo Manager: 1995

Silo Operator: date not known

40 Those relevant programmes undertaken by Mr Andrew Steele up to the time of his accident were:

Safety Harness: 1998

Confined Spaces: 1998

Risk Assessment: 1998

Silo Manager: 1998

41 Those relevant programmes undertaken by Mr Jim Ewers were:

Confined Spaces: 1993

Safety Awareness: 1995

Silo Manager: 1995

Silo Operator: date not known

42 There were also harvest induction programmes conducted by the defendant that presumably re-emphasised many aspects of the formal training programmes undertaken. As counsel for the defendant put it:

"It was when the work force would expand around harvest time, [a] whole lot of new people would come in or people who have been there before would be re-engaged, there was a harvest induction program conducted for everyone in grain handling."

43 As a casual employee, Mr Allen Steele had received the basic formal training undertaken by the defendant's casual employees upon commencement of employment. That primarily consisted of him being given a copy of the defendant's safety booklet by his local supervisor.

44 Counsel for the defendant pointed to the Confined Spaces training programme as evidence of the emphasis placed by the defendant on relevant safety matters. For example, in the Confined Spaces training programme conducted by the defendant in 1998 the following entry appears on page 16 of the course outline and content document (exhibit 10):

ENGULFMENT HAZARDS

When entering confined spaces which contain loose granular materials such as grain, coal, or similar material, steps should be taken to prevent the workers from being engulfed or suffocated. This often occurs when the material crusts or forms a bridge, which breaks under the weight of the worker. The use of harnesses, lifeline and suitable fall arrestor/winch device may be necessary when working in such places.

45 Evidence was given by Mr Grant Barton, the Risk and Safety Adviser with the defendant, verifying the Confined Spaces course content as the one he had undertaken in 1998 at the same time as Mr Andrew Steele. Mr Noonan and Mr Ewers undertook a similar course in 1993. On Mr Barton's evidence he says "Mr Noonan was trained in the same way". It should be stated at this point that Mr Noonan did not dispute the various training programmes he had undertaken during his years with the defendant. However he was never taken to the exhibit 10 document to verify or otherwise his recollections of the Confined Spaces course he undertook in 1993 - nor was Mr Ewers for that matter. Mr Andrew Steele was shown exhibit 10 but could not verify it as the course he undertook.

46 Whether or not the silo was a confined space as defined by Part 5 of the Occupational Health and Safety (Confined Spaces) Regulation 1990 was never definitively argued by counsel for the defendant. Indeed his final submission acknowledged some uncertainty on that point, even on the evidence of Mr Banks and Mr Yeo:

"Certainly, the confined spaces issue may be debatable as well as to whether this was a confined space within the definition of what some people say confined space is. Mr Banks was of the view it was, I think Mr Yeo was of the view it wasn't. These are not statutory words which apply. To train someone in confined spaces [is] to give them skills to recognise not just when they're in there but to recognise a situation of danger which the category of confined space is a convenient heading for ... "

47 The defendant also produced a booklet titled "Safe and Healthy Practices". This booklet is given to every new employee on commencement and has been given to all employees since at least 1994. Three editions of the booklet were in evidence before me - being the 1994, 1996 and 2000 editions. Apart from any other instructions and safety advice the booklet gives to employees, the defendant relies on the following instruction that appears in each of the booklets, and is in similar terms. That instruction appears on page 42 of the 1994 and the 1996 editions and on page 20 of the 2000 edition as follows:

29. WORKING NEAR MOVING GRAIN

Except for the movement of non-gravity grain at the bottom of the bin or sides of the storage, no person shall enter a silo bin while grain is being run into it or out of it. Fatal accidents have occurred from persons being drawn into the flow of moving grain and suffocating.

You should also refrain from walking on grain above or adjacent to the reclaim hopper in a horizontal storage while outloading is in operation unless the grain pile is down to a safe level.

48 While there was some uncertainty as to whether they had ever been precisely advised, when pressed, all four witnesses acknowledged the dangers of working around moving grain. Given the emphasis that counsel for the defendant made of that issue as a matter of fact, it is necessary to determine whether, on the day and at the time that Mr Noonan made the decision to enter the silo, the wheat was moving.

49 In their evidence before me in the first instance Mr Noonan, Mr Andrew Steele, Mr Ewers as well as Mr Allen Steele, all stated that on the morning of 3 May 2000, there came a point where the grain was not moving. True it is when pressed in cross-examination, Mr Noonan particularly conceded there must have been some movement of the grain on the morning of 3 May 2000. On that issue he was directed to a statement he had given both to Inspector Boyle on 5 May 2000 and to Mr Barton the defendant's Risk and Safety Adviser some few weeks after the accident. In each of those statements, Mr Noonan indicated that, following attempts to clear the grain on the morning of 3 May, they had "got the wheat to trickle very slowly". When pressed he agreed in cross-examination as follows:

Q. Then even though it was filled more slowly than perhaps it should have been, that would indicate that the grain was moving out of the shed before you went into it?

A. Yep.

Q. Do you say that when you went into it, it had stopped moving?

A. I don't know, it could not have been.

Q. Sorry?

A. Could not have been, must have been moving.

Q. So in that case you would have gone into a shed and into moving grain, moving however slowly?

A. That's right.

Q. I would suggest that's what in fact did happen?

A. Yeah probably.

Q. That is completely against all procedures of Graincorp isn't it?

A. It is.

50 I am satisfied that none of the four employees working at the silo site on 3 May 2000 sought to give evidence other than that of their most honest and accurate recollection. Having said that, Mr Noonan particularly was inclined in cross examination to agree to anything that was put to him as to his perceived failures on the day - symptomatic I believe of the strong impression I gained that Mr Noonan blamed himself for all that had happened to Mr Andrew Steele. Despite that, there is evidence before me that there was a more contemporaneous acknowledgement, particularly by Mr Noonan, that there had been some movement of grain on the morning of 3 May 2000. The reality, I believe, is that there was both. That is, there was some initial movement of grain that morning which, despite the best efforts of the four employees did not improve and ultimately did perceptibly cease. It was, after all, the failure of the grain to unblock that precipitated the decision by Mr Noonan to enter the silo. Indeed it was the express reason for doing so - the hopper was blocked and external efforts to free the blockage had been unsuccessful. Accordingly the decision was made to enter the silo in a last attempt to free the blockage. I am satisfied beyond reasonable doubt that, in all the circumstances, at the time when Mr Noonan, Mr Andrew Steele and Mr Ewers entered the silo, there was no perceptible movement of grain.

51 That finding of fact of and by itself does not render Mr Noonan's actions any less foolhardy nor does it render the defendant automatically liable. What it does do is simply highlight the efforts undertaken in trying to free grain blockages as part of the system of work in place at the time as far as these employees were concerned.

52 As well as the training programmes and the safety booklet already identified, counsel for the defendant produced a document titled 'Silo Operator Procedures'. It was tendered by consent on the basis that it embraced all aspects of procedures for silo operators that were in place when this accident occurred in May 2000. In particular, counsel for the defendant identified page 1201, where the following entry appears:

Storage Access

Under no circumstances enter the workings of the storage whilst the plant is running. The Silo Operator shall keep the keys for the security doors in his/her possession at all times. No farmers or unauthorised persons are to enter any GrainCorp owned storages.

If you are running the Silo by yourself (i.e. single employee sites) DO NOT GO NEAR THE STORAGE UNLESS IN THE PRESENCE OF SOMEONE ELSE e.g. truck driver. Advise the carrier that he/she is not permitted to leave the hopper area or to tare off the until the Silo Operator is safely outside the grill floor area. Then he/she can either travel to the weighbridge with the driver, or walk.

UNDER NO CIRCUMSTANCES IS ANY PERSON ALLOWED TO ENTER A BIN OR WALK THE GRAIN SURFACE WHILST THAT BIN IS BEING FILLED OR OUTLOADED. THE RISK OF BEING BURIED ALIVE IS REAL.

53 The Silo Operator Procedures Manual was apparently kept in a filing cabinet in the weighbridge office adjacent to the silo site. It was accessible to all employees of the defendant. Of the four employees, only Mr Andrew Steele was shown the Manual in cross-examination and he was not asked to comment on the particular entry above. Mr Noonan and Mr Ewers had both undertaken a Silo Operators training course but exactly when was not known. The impression I gained was that it was some considerable time ago. Mr Andrew Steele had undertaken a Silo Managers' course in 1998.

54 All of the above documents, the defendant says, are evidence that it had done all that was reasonable to put in place a safe system of work involving training, instruction and supervision for the clearing of grain blockages.

55 That safe system of work the defendant says, can be found by collective reference to all of the documentation identified above, with particular reference to directions given about working near moving grain and entry to confined spaces. It is difficult to accept that proposition.

56 To begin with, it cannot be said that blockages of the type as confronted Mr Noonan on 3 May 2000 was a unique event. Mr Yeo's evidence confirms, if nothing else, it was a reasonably regular occurrence when wet weather occurred.

57 Further, the system of work identified, which is the subject of the offence before me, is the clearance of grain blockages. It was acknowledged by the defendant that there was no formal direction or authorised procedure in place for that task nor any specific training. That much was confirmed by Mr Yeo, Regional Manager for the defendant in his interview with Inspector Boyle on 12 May 2000:

Q25: What training has been given to grain handlers in the safe management of a blockage of grain at BS76?

A: To my knowledge none. It's knowledge handed down from supervisor to supervisor over the years.

Q26: What training has been given to grain handlers in safe procedures for removing a grain blockage in the hopper of BS76?

A: Again none.

58 What is important here I believe, as far as determining the defendant's liability is concerned, is centred around the issue of the clearance of grain blockages. On that the following points require emphasis:

· the defendant was aware of the problem of blocked grain due to rain;

· in addition to installing a pump in the boot pit of the elevator the defendant was aware of the rather rudimentary way in which such blockages had traditionally been cleared, passed on as Mr Yeo states, "as knowledge handed down ... over the years" presumably by word-of-mouth;

· machinery such as an evacuator was available on request but would have had to have been brought from a nearby town some few hours away;

· the defendant acknowledged that it did not have any specific training programme or instructions for the clearing of grain blockages;

· the freeing of blockages had, as far as Mr Yeo was aware, always been done by utilising a conduit or similar type object or tool from outside the silo.

59 I have accepted the evidence of Mr Noonan, Mr Andrew Steele and Mr Ewers that the freeing of grain blockages by going inside the silo was something they had done on prior occasions. Even if they had not done it before and the fact that the employer may not have had direct knowledge of that unsafe system of work, is not the point it seems to me. What the defendant did know was that wet grain impeded and blocked outloading grain procedures.

60 The defendant also knew that those blockages had to be cleared. The defendant also knew that, as at 3 May 2000, the procedure by which those blockages were cleared was, on any view, rudimentary at best. The ad hoc poking of pieces of timber, tools or plastic conduit found around the worksite in the manner described as a means of dealing with a fundamental workplace problem is hardly what could be described as providing a safe system of work for dealing with the problem. It is not surprising, perhaps, when employees such as Mr Noonan, with some 20 years of experience with the defendant, seemingly become frustrated by that "hand me down" procedure, he resorted to the foolish and dangerous practice that he did on 3 May 2000 - and in doing so, exposed his work colleagues as well as himself to the risk of serious injury.

61 If anything, what Mr Noonan did that morning simply highlights the defendant's obligations to ensure a safe system of work for the clearing of grain blockages.

62 On any view, on the basis of the evidence before me, there should have been training programmes or instructions specifically directed at clearing grain blockages. Loading and unloading wheat is a major part of the defendant's business. Problems caused by wet weather particularly in the outloading of wheat and the creation of blockages was known. Accordingly it is axiomatic in my view that what is understood by "ensuring" a safe system of work within the context of s 15 of the Act would require a safe system by way of training, instruction and supervision for the clearing of grain blockages. Instead the method by which such blockages had traditionally been cleared was at best, ad hoc, and to use Mr Yeo's phrase "handed down" over the years by employees of the defendant.

63 The provision of appropriate and adequate training has been considered by a Full Bench of this Court in Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57. In that matter the Full Bench considered the question of what constitutes adequate training in the context of s 15(1) of the Act. In doing so, the Court held that adequate training requires, "the provision of such information and instruction" as is necessary to "fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of, or relating to, the performance of such work". Further at para [57]:

"an employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education)."

64 In the matter before me, it is clear that the defendant did not provide training to deal with "all contingencies" arising out of or relating to the outloading of wheat - specifically, the freeing of grain blockages. Further, having regard to the Full Bench's view that the employer must educate the employee to deal with the "full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character", in this matter the defendant has clearly failed. In other words, the outloading of wheat was certainly part of the range of circumstances arising in the performance of the work of grain handlers. The blocking of that process by wet and swollen grain was an eventuality that was not unusual in character but indeed did occur not infrequently as part of that process and associated with wet weather. It is clear, having regard to the decision in Genner, that the "word of mouth" understanding as to how one went about clearing grain blockages was simply insufficient for the purposes of discharging the defendant's obligations under s 15(1) of the Act particularly as to what constituted adequate training in the clearing of grain blockages as part of the work undertaken by the defendant's employees.

65 There are I believe two aspects to the issue of training concerning this matter before me. The first is the alleged failure to provide training in the "clearance of grain blockages". The defendant admits no such programme exists but points to its other training programmes, safety booklet and silo operator's manual to adequately cover this obligation. Second, even if the training and instruction provided, together with the safety booklet and procedure manuals were to be thought adequate on a prima facie basis, they fail on any view on closer consideration as to adequacy having regard to sufficiency within the context of the task of clearing grain blockages. In my view what was provided was simply inadequate to discharge the defendant's obligations to ensure a safe system of work for the task identified.

66 The training and instructions as well as safety procedures and manuals that were given to the defendant's employees addressed the importance of care to be observed in working near moving grain and the dangers of engulfment. Counsel for the defendant emphasised that the instruction about not working near moving grain was, as it were, a fundamental golden rule of safety as far as the defendant was concerned. Rightly so. However, to the extent that warnings were and are given about the dangers of working near moving grain, they were inadequate having regard to the identified task of clearing grain blockages.

67 In other words, the defendant should have had proper training and an authorised instruction in the clearing of grain blockages and, within the context of that specific instruction, should have re-emphasised the dangers of doing such a task where grain is blocked and may suddenly move. Also, given the probability of grain blockages occurring following wet weather, the training and instruction on the clearing of grain blockages should have been regularly, consistently and forcefully re-emphasised in the workplace. As the Full Bench in Genner stated, the training and re-training of employees should be done, "where necessary, to ensure the continued sufficiency of such education".

68 It is not surprising, that without adequate regular and consistent reinforcement of safety issues and training at proper intervals, complacency and a tendency for employees to 'short cut' on important safety issues occurs - which is what I believe happened here. As was stated by Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257:

"The very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry."

69 Quite apart from the views expressed in Genner as to the issue of training and retraining and the sufficiency of it, the defendant's own Occupational Health and Safety course provider did express an informed view on this issue. Exhibit 10 was a document titled "Course in Safe Working in Confined Spaces". That document was tendered by the defendant and had been put together to reflect the course in confined spaces conducted on behalf of the defendant by a company identified as Combined Training and Consulting Pty Ltd. In that document, amongst other things, by way of a general overview of the question of training and re-training, the following statement appears:

Re-training should be provided at appropriate intervals. It is the responsibility of the employer as to the frequency and nature of the re-training programme. The frequency of re-training is dependant on a multitude of factors. We are asked on many occasions for a guide in this area. Some sites/tasks may require more frequent and on-going training. From our experience we advise that a period of 12 months is the maximum time practical between training sessions. (my emphasis)

70 While the defendant did provide warnings and instructions to its employees concerning the potential hazard of working on or near moving grain, the warnings given were not sufficiently frequent or emphasised on an ongoing basis having regard to the task under consideration. They were inadequate, that is they were not equal to the requirement that the occasion demanded - which was the laying out of a safe procedure for the clearing of grain blockages that, to the extent necessary, incorporated and re-emphasised the dangers of working near moving grain.

71 That the defendant recognised it needed to do more to ensure a safe system of work in the clearing of grain blockages was evident from the material placed before me. In the first instance I refer to the Minutes of the Occupational Health and Safety Committee meeting of the defendant, held on 6 May 2000, some three days after the accident. At that meeting Mr Barton and Mr Yeo were present in their official capacities and Mr Noonan had been invited as a visitor - specifically to consider the implications of the incident that had occurred on 3 May 2000 at the silo site at Gilgandra. Those Minutes record the following outcome:

Review of the accident at Gilgandra, 3 May 2000. Entrapment in moving grain.

Discussion took place with the following recommendations being made:-

1. The BS76 shed to be altered to include a "bleeder chute" immediately above the wall hopper area and in the shed wall. A bleeder chute valve is to be fitted at the wall end of the chute fitted to deliver grain to the elevator at or just above the hopper chute.

2. All BS sheds to be modified as a matter of priority (particularly where water entry is a problem.)

3. Sump pump and a secure mesh boot pit cover is to be fitted to the Gilgandra BS 76 shed.

4. The Standard Work Instructions relating to the operation of vertical storages to be revised to highlight the dangers associated with moving grain.

5. BS76 are not to be filled to a point where the hopper is covered until the "bleeder" chutes are installed.

6. If blockages occur where it cannot be cleared from below the hopper, then out-loading work is to cease and the problem referred to the Regional Manager. Options available to clear the blockage may be the use of an evacuator or a full fall arrest system as the very last option. The use of fall arrest must be strictly supervised.

7. A Standard Work Instruction is to be written covering "Working on grain, or other commodity, that has the potential to move." The SWI will be based on the existing lock-out/tag-out procedure. Some existing isolation and emergency stop switches may need to be upgraded.

8. The above recommendations are to be approved by the Central State Manager, David Titterton, for implementation.

72 In addition to the above recommendations, the defendant circulated a Notice to all of its employees titled 'Don't get sucked in' highlighting the 3 May incident and restating the advice on page 42 of the Safe and Healthy Practice titled 'Working near moving grain'. As well, an electric eel was made available at Gilgandra to deal with future grain blockages.

73 Following the accident and the investigation by Inspector Boyle, there was communication by him with Mr Barton, the defendant's Risk and Safety Adviser. As part of the documentation before me there were four letters written by Mr Barton to Inspector Boyle in the following chronological order:

· May 5 2000

· May 19 2000

· June 7 2000

· July 28 2000

74 A proper consideration of that correspondence together with the evidence of Mr Barton confirms that after the accident the defendant reviewed all relevant Standard Work Instructions and added the following Rule by way of emphasis to each of them:

RULE: DO NOT walk on moving grain, or enter any hoppers or bins when elevator or conveyor are moving.

75 Mr Barton was unable or unwilling to say precisely whether such a Rule was added before or after the accident on 3 May 2000. There was a suggestion made by him that the above Rule may have been added to the Standard Work Instructions before the accident on 3 May 2000. I am satisfied it was added after the accident. Support for this view comes from Mr Barton's own correspondence to Inspector Boyle particularly that of 5 May and 28 July 2000 where the following entries appear:

· 5 May 2000:

"Standard Work Instructions reviewed and amended. New work rules added and potential problems of moving grain listed. New revised Silo Operators Manual containing the revised SWI to be issued by the end of May, 2000. (my emphasis)

· 28 July 2000:

"The Standard Work Instructions relating to the operation of permanent storages have been amended to reinforce the dangers associated with moving grain." (my emphasis)

and

"An additional Standard Work Instruction titled 'Clearing a blocked hopper that is covered with grain or other commodity' has been developed and is with the Safety Committee for final approval prior to being accepted." (my emphasis)

76 Further, in the Minutes of the Occupational Health and Safety Committee on 17 August 2000, the following entry appears about that additional Standard Work Instruction:

1. Standard Work Instruction for working on moving grain to free a blocked hopper was reviewed. After discussion it was decided that the proposed instruction was still too dangerous and a new instruction would be drawn up. The new instruction would prevent employees standing on grain that is or could move and refer them to the regional office and their team leader where a decision would be made as to the best method to be used to free the blockage. (my emphasis)

77 The remedial steps undertaken by the defendant after the accident only reinforce the view I have come to that, at the time of the accident, the defendant had not done all that it should to ensure a safe system of work for the clearance of grain blockages.

78 The prosecution also particularised the failure of the defendant to provide adequate equipment to ensure the safe removal of grain blockages. I have already commented on what I consider the rather crude and ad hoc way in which various tools or implements were used from around the worksite to attempt to clear grain blockages in the first instance. That is, as in the case before me, the poking of pieces of plastic conduit in a rather blind upwards or downwards direction through the wall of the silo, in the general direction of the grate having regard to where it is located within the silo. That can only be described as somewhat of a hit-and-miss approach to a fundamental problem.

79 The defendant did have an evacuator available which, as its title suggests, is a piece of machinery with a vacuum-like action that sucks wheat out from a particular location at a great rate. Exactly how the evacuator would have assisted in the task of clearing the blockages confronting the four employees on the day in question was never precisely explained. However, it was not disputed that an evacuator was available to assist in the clearing of such blockages. The only problem was that on 3 May 2000 the evacuator was not at the silo. It was apparently available if it had been requested from the nearby towns of Parkes or Narrabri - some few hours drive away. While the request was never made, and acknowledging that there was no suggestion of urgency attached to the task of outloading the grain, it still seems a rather lengthy and protracted way of solving an immediate problem. It is not surprising perhaps, when confronted with that delay, regardless of any perception of urgency or otherwise, and in the absence of precise procedures laid down for the clearing of grain blockages, employees would resort to seemingly innovative on-the-spot ideas that in this case invariably led to the dangerous solution adopted by Mr Noonan.

80 Since the accident an electric eel has been made available to resolve blockage problems such as the type encountered on 3 May 2000. Mr Yeo gave evidence that such equipment had been used prior to 3 May 2000, but never to his knowledge at Gilgandra and he could not recall any conversation he had ever had with Mr Noonan about the availability or otherwise of an evacuator or an electric eel. In any event, Mr Yeo did state that an electric eel has been used at Gilgandra since 3 May to assist in the clearing of grain blockages.

81 All in all it is difficult to see how the first hand method by which employees of the defendant were clearing grain blockages - utilising a procedure and equipment handed down by word of mouth - assists the defendant in resisting the allegation that they failed to provide adequate equipment to ensure the safe removal of blocked grain. Further, to the extent that some equipment was available, it could not be said on any view that it was readily available such as to overcome the natural reluctance of employees to go through the lengthy process of awaiting the arrival of that equipment - unless, of course, to get back to the central issue before me - the defendant had laid down a safe system of work for the clearance of grain blockages that included such a direction.

82 On the issue of risk assessments the defendant says that task was Mr Noonan's responsibility on the day, that he had undergone risk assessment training in 1997 and accordingly knew what he had to do.

83 In the first instance, it was not Mr Noonan's responsibility, in my view, to undertake formal risk assessments unless, of course, they were done with the co-operation and input of the employer. Mr Noonan was the nominated team leader on the day. There was some evidence given as to his role in organising the necessary number of employees to do the job specified, but otherwise there was no precise evidence before me as to exactly what his role was nor the extent of his role and responsibilities as team leader. There was no document by way of instructions or job specification to confirm the extent of Mr Noonan's role, responsibilities and authority. On the issue of risk assessment, Mr Noonan acknowledged that he had done a risk assessment course in 1997. In cross-examination the only explanation as to why he had not done such an assessment on 3 May 2000 when confronted by the grain blockage was that he "never thought of it at the time" and "stupidity".

84 It should be said at this point that, although he had undertaken a risk assessment course in 1997, the only risk assessment Mr Noonan had done was when he was on the Safety Committee at or about the same time.

85 Of more relevance on the question of risk assessment is, I believe, the evidence of Mr Yeo, the Regional Manager for the defendant. On that issue, his evidence was as follows:

Q. So are you able to point me to anything, any document, policy or procedure or anything that would tell me that it was part of Mr Noonan's responsibility to undertake a risk assessment at BS76?

A. No.

Q. On 3 May or before?

A. No document, no.

Q. Certainly you were unable to tell me that you had any conversation with him about this?

A. No.

Q. You didn't tell him that he had to undertake risk assessments?

A. No.

Q. And I think you said this, and I just want to make it clear, you're the person he reports to up the chain, as it were?

A. That's correct.

86 In his statement to Inspector Boyle on 12 May 2000 Mr Yeo responds further on the question of risk assessments:

Q18: Are you aware of any risk assessments being undertaken at BS76 prior to this accident?

A: No

Q19: Was a risk assessment undertaken of the task of unblocking the hopper at BS76 prior to 3 May 2000?

A: No.

87 Both Mr Yeo and Mr Barton, the defendant's Risk and Safety Adviser conceded that no formal risk assessment had been done on the task of clearing grain blockages and that, in the first instance, risk assessments are done by the authorised Safety Committee under the auspices of the defendant.

88 The next question that arises is, did Mr Noonan's actions on the day break the chain of causation as far as the defendant's culpability is concerned? I do not believe so.

89 This is an issue that has been the subject of earlier decisions of this Court. I can do no better than refer in the first instance to the decision of Haylen J in Rodney Morrison v Tahmoor Coal Pty Ltd [2002] NSWIRComm 327 and in particular para [151] of that decision in the following terms:

"The issue of causation was central to the defendant's case. In that context it is appropriate to refer to the judgment of the Vice-President, Walton J in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) at 253:

As previously mentioned, the defendant raised the question of causation. Many decisions of this Court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s 15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a 'causal nexus' between the conduct of the defendant and the consequent risks to the health, safety and welfare of its employees: (see McMartin v The Broken Hill Proprietary Co. Ltd (2000) 100 IR 241; Drake Personnel Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 91 IR 432 at 449; Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209; State Rail Authority (NSW) v Dawson (1990) 37 IR 110, at 120-121; Haynes v C I & D Manufacturing Pty Ltd 1995) 60 IR 149, at 1560157 and Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50). There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: see WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 at 377. However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety."

90 The causal connection here was the failure of the defendant to provide a clear and safe system of work for the clearing of grain blockages and the risk to safety to which employees such as Mr Andrew Steele were exposed as a result of the failure to do that - evidenced by the unsafe system that had been adopted. That unsafe system came about because of the defendant's failure to do as particularised. That is, a failure to provide adequate training, instruction and supervision about the clearing of grain blockages, a failure to provide adequate and proper equipment for that task, and no proper risk assessment for that task having been undertaken by the defendant.

91 It is difficult to see how Mr Noonan's decision, foolhardy though it was, breaks the causal nexus between the defendant's failure and the identified risk to safety. If the risk is both present and capable of being known to be present, the liability is absolute, subject to the defences provided: Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149.

92 Counsel for the defendant made much of the fact that it was the actions of Mr Noonan on the day in question that broke the causal nexus as between the defendant's failure and the identified risk to safety. In doing so, the defendant points to all of the documentary material about hazards of working with moving grain that, in its view, reinforces that it had done all that it could have done to prevent the risk to safety and that it was Mr Noonan's failure or, alternatively, the decisions that Mr Noonan made on the day independently of the defendant, that caused the injury to Mr Andrew Steele. In making that submission, counsel for the defendant relied on the decision of the Full Bench of this Court in State Rail Authority of NSW v Dawson (1990) 37 IR 110. I cannot agree with that proposition.

93 In the first instance, in Dawson the prosecution conceded that the defendant had laid down a safe system of work. No such concession was made here. Indeed, it was the system of work in undertaking the clearance of grain blockages and the absence of such a system that is the focus of the matter before me. In finding in favour of the employer in Dawson, the Full Court confirmed on appeal that while there was:

"a failure to relevantly supervise ... that failure was the failure of the foreman. On balance, and in viewing the evidence as a whole, we are unable to be satisfied beyond a reasonable doubt that the failure was also that of the appellant (employer) ...there was in fact a failure by the foreman to adhere to the procedure or system of work laid down in clear terms by the appellant (employer). The appellant, in our view, cannot be held liable under s15 in such a situation once it be found qualified supervisors have been provided by it." (my emphasis)

94 On the facts before me it is abundantly clear that there was no procedure or system of work laid down in clear terms by the defendant in relation to the clearance of grain blockages that Mr Noonan, in his capacity as team leader, should have followed. He had a system of work for the clearance of grain blockages that I have already described as ad hoc, simple, and crude - utilising as it did immediate utensils at hand and was a procedure that had been handed down over the years presumably by word of mouth. When that failed and in the absence of any clear procedure or instructions, Mr Noonan made the decision to press on in the foolhardy way that he did in order to get the job done - in this case attempting to clear the grain blockage in order to outload the grain.

95 On the question of both training and instruction, coupled with the question of supervising authority, the Full Bench of this Court in Genner para [61] had this to say:

"Where a worker is left in control of a worksite and necessarily given authority to alter work arrangements should circumstances require, it is less likely that informal, 'on the job' training will, in itself be sufficient. Whilst the lack of documented procedures will not always indicate a deficiency in the training provided by an employer, it may in some cases constitute an indication the training was less comprehensive or systematic than was required. Where a worker may be required to autonomously adopt alternative work procedures in response to changing circumstances and those alterations may present serious risks to that worker or others it would be prudent, at the very least, that on the job training was formalised and documented with a view to insuring a comprehensive and full appreciation of any safety risks the employer concerned".

96 There is no doubt in my mind that procedures for the clearing of grain blockages had been undertaken by informal "on the job" verbal advice from supervisor to supervisor over the years. That much is conceded by Mr Yeo on behalf of the defendant. It is also clear that the defendant was well aware of the dangers of employees coming into contact with moving wheat. That much is evident by the emphasis given in their safety booklet and other documents. Combine the informal nature of advice and instruction as to how best to clear grain blockages (on any view inadequate and insufficient for the purpose) with the known dangers of employees working around moving grain and the known propensity for grain blockages to occur and it is apparent that, as night follows day, proper training and a clear formalised instruction for clearing grain blockages should have been in place. A failure on the part of the defendant to do that is clearly causally related to the risks to safety which Mr Andrew Steele, amongst others, was exposed to on 3 May 2000.

97 If any further confirmation was needed as to the defendant's failure, one need look no further than the steps taken by the defendant immediately post the accident, as establishing the defendant's failure to ensure a safe system of work in the clearance of grain blockages. In other words, the steps taken, already identified, were easily remedial steps that could have been put in place before the accident on 3 May 2000.

98 I am satisfied beyond reasonable doubt that the defendant failed to provide a safe system of work for the clearing of grain blockages. Specifically I am satisfied that the particulars as alleged in (a), (b) and (c) of para [4] above have been established beyond reasonable doubt.

99 The defendant raises a defence under s 53 of the Act. Section 53 of the Act provides:

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

100 To establish a defence under s 53 the defendant must prove, on the balance of probabilities, either that it was not reasonably practicable to comply with the statute or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57: para [66].

101 The defendant did not state precisely why it was "not reasonably practicable" for it to comply with the Act nor those "causes over which (it) had no control" or were "impracticable" to make provision for. It would be correct to state, I believe, that the defendant believed that in doing what it did by way of training and instruction, safety booklets and manuals, it had done all that was reasonably practicable to provide a safe system of work for the clearing of grain blockages. For the reasons I have already stated, I cannot agree.

102 As to the second arm of the defence available under s 53, it would appear that the defendant relies on the actions of Mr Noonan, acting independently on the day in doing what he did, as an action over which it had no control and, given the dangerous, foolhardy and unforeseeable nature of his decision, it was impracticable for it to take steps to prevent.

103 In Kennedy-Taylor (NSW) Pty Ltd the Court said at para [68]:

"In WorkCover Authority of New South Wales (Inspector Glass) v Kellogg, Walton J, Vice President referred to the relevance of foreseeability in a defence under s 53. His Honour said:

It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53:

"If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight."

This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have". (my emphasis)

104 I have determined that there was a failure to provide a safe system of work in the clearing of grain blockages, as particularised. Given that and the inadequacy of the defendant's actions as particularised it was reasonably foreseeable, in my opinion, that the circumstances would arise where an employee of the defendant would be exposed to the risk to safety such as occurred to Mr Andrew Steele on 3 May 2000. Further, it was reasonably practicable for the defendant to put in place a proper authorised procedure for the clearing of grain blockages accompanied by relevant training and instruction and underpinned by a formal risk assessment.

105 Further it is clear on my findings as to the existence of an unsafe system of work and the causes of it, that they were all matters over which the defendant had proper control and could have practicably made provision for.

106 The defence under s 53 is not made out.

107 Accordingly, I find the offence proved.

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LAST UPDATED: 27/02/2003