Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIRComm 16 (9 February 2005)

Last Updated: 16 February 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIRComm 16

FILE NUMBER(S): IRC 6333

HEARING DATE(S): 02/11/2004, 03/11/2004

DECISION DATE: 09/02/2005

PARTIES:

PROSECUTOR:

Inspector Dieter Franke

DEFENDANT:

Vin Heffernan Pty Ltd.

JUDGMENT OF: Haylen J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr R Reitano of counsel

SOLICITORS:

Carroll & O'Dea

DEFENDANT:

Mr B Hodgkinson SC and Mr M Shume of counsel

SOLICITORS:

Ms J Williams

Timber Trade Industrial Association

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

Inspector Haynes v CI&D Manufacturing Pty Ltd & ors (1995) 60 IR 149

Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432

Ferguson v Nelmac Pty Ltd (1999) 92 IR 188

Kirkby v A & M I Hansen Pty Ltd (1994) 55 IR 40 at 50

O'Sullivan v The Crown in Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361

Riley v Australian Grader Hire Pty Ltd [2001] 103 IR 143

WorkCover Authority v Main Lighting (1995) 100 IR 248 at 257

WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at [72] and [73]

WorkCover Authority (Inspector) Egan v ATCO Controls Pty Ltd (1998) 82 IR 80

WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] 100 IR 64

WorkCover Authority of New South Wales (Inspector Keelty) v Police Service of New South Wales (No 2) (2001) 104 IR 268

WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001)] 105 IR 81

WorkCover Authority (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [101]

LEGISLATION CITED:

JUDGMENT:

- 61 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: HAYLEN J

9 February 2005

Matter No. IRC 6333 of 2003

INSPECTOR DIETER FRANKE v VIN HEFFERNAN PTY LTD

Prosecution under s 8(1) of Occupational Health and Safety Act

2000

JUDGMENT

[2005] NSWIRComm 16

INTRODUCTION

1 On 5 November 2001, Vin Heffernan Pty Ltd was an employer carrying on the business of harvesting trees at a location referred to and identified as Coupe 1, Area 320 in the Yambula State Forest. On that day, the company's work was being performed by three employees, Geoffrey Munday, Brian McDonald and Carl Anthofer. In this working crew, Mr McDonald operated the bulldozer and was the designated "bush boss" a position which was equivalent to that of supervisor; Mr Munday, was the tree faller and Mr Anthofer, was employed as the excavator operator and was storing the logs at a dump site some little distance from the area in which the tree falling was taking place.

2 Shortly after commencing work on this day, Mr Munday was falling trees and Mr McDonald was using the bulldozer to drag the trees to an area known as the dump where logs were stored, a task known in the industry as snigging. Mr McDonald drove his bulldozer to the area where Mr Munday had been falling trees where he observed that Mr Munday was refuelling his chainsaw. Mr Munday was then some little distance from the trees he had been falling. Mr McDonald and Mr Munday agreed to look for Mr Munday's axe, which had been misplaced at the end of work the previous week and was part of his tree felling equipment. Unknown to Mr McDonald, Mr Munday had cut a tree which had not yet fallen to the ground. While the pair were searching for Mr Munday's axe, the tree fell and killed Mr Munday.

A PROSECUTION COMMENCED

3 Following this workplace accident, Inspector Franke of the WorkCover Authority of New South Wales commenced a prosecution against Vin Heffernan Pty Ltd alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. The charge alleging that the defendant company had failed to ensure the health, safety and welfare at work of all its employees, and in particular Mr Geoffrey Edward Munday, contrary to s 8(1) of the Occupational Health and Safety Act 2000, was particularised as follows:

(a) the defendant failed to provide and maintain systems of work that were safe and without risks to health in relation to its employees working around trees that were at risk of falling;

(b) the defendant failed to provide and maintain a safe system of work so as to ensure that its employees did not walk into the area or zone which included the falling path of a tree that had been scarfed and backcut at a time when that tree posed a risk of falling into that area or zone;

(c) the defendant failed to have in place supervision that ensured that employees would not be required to rely solely on their own judgment as to risks to their health and safety, or to the health and safety of other employees, that might arise by reason of trees being scarfed, backcut and left standing.

4 The defendant company entered a plea of not guilty to that charge. The essence of the defence case at the hearing was that the defendant company did provide an effective and safe system of work in the felling of trees, and had the work on the day been carried out in accordance with that system, there was no risk to the safety of the workers and in particular the safety of Mr Munday.

THE EVIDENCE

5 Mr McDonald had been employed by the defendant company for over 26 years and confirmed that in November 2001 he was employed as a bulldozer operator and held the position of bush boss. His role as bush boss was to make sure that the operation was run in a safe and "proficient" manner. He implemented occupational health and safety procedures, identified any hazards and dealt with those hazards in the compartment that was being worked upon by the crew in the bush. As bush boss, it was Mr McDonald's duty to induct any new employees and visitors to the area to make sure that they understood the safety procedures the crew worked under. The duties of bush boss were documented in the defendant's occupational health and safety manual.

6 In an interview with Inspector Franke on 5 March 2002, Mr McDonald stated that he had a category L3 professional faller's ticket, an advanced problem tree felling and a bulldozer certificate. He had obtained those qualifications by training and practical demonstration over 30 years. Those qualifications were current. He had been employed as a faller on a temporary basis, including a few days after the accident involving Mr Munday. Mr McDonald was aware of the Harvesting Plan provided by State Forests New South Wales to the defendant and the fact that the Plan prohibited the falling of trees into filter strips and across National Park boundaries.

7 Mr McDonald described the method of falling timber used by the crew as both machine assisted falling and directional falling. With directional falling the tree was scarfed and backcut and was then either wedged by the faller or machine assisted to fall in the direction desired by the faller. The equipment used in directional falling was either the bulldozer or the faller could use an axe/hammer and wedges. A faller did not always use an axe and wedge to assist the tree to fall and whether those implements were used depended on the boundaries and whether the terrain was steep: both habitat and retained trees had to be kept in mind. Mr McDonald said that it was not a high percentage of trees that would have to be wedged and the falling depended upon the skill of the faller and the way the tree was leaning.

8 In oral evidence, Mr McDonald described scarfing as putting in a bottom cut with a chainsaw on one side of the tree in the direction the faller wanted it to fall, then putting in a top cut and taking out that wedged shaped piece of wood. The faller then placed what was called a backcut at the rear of the tree which allowed the tree to fall in the direction intended by the feller. A faller could put a wedge into the backcut, tapping it in with a hammer or axe and then lever the tree in the direction the faller intended it to fall. It was usual for the wedge to be made of plastic or aluminium and to be tapped in with the axe although a hammer could be used. The first thing a faller did in getting a tree to the ground was to check the direction in which the tree was leaning so that it could be scarfed in the right direction and fall in the area desired by the faller. The place where the tree was scarfed actually affected the direction in which the tree fell. A tree could lean in one particular direction, but to a certain degree a good faller could make it fall in another direction. Usually it was desirable to have the tree fall into an open area where it was not going to be tangled with other trees and was also directed away from filter strips. Filer strips were the protection strips on the edge of creeks and gullies and were designated by State Forests.

9 Mr McDonald described how directional falling could also be achieved using a bulldozer. This was called tree assisted or machine assisted tree falling. This occurred in certain cases when a tree did not fall and the faller could ask the bulldozer driver to assist in getting the tree down by pushing with an attachment connected to the bulldozer.

10 In his statement to the Inspector, Mr McDonald agreed that it was normal practice for the faller to carry his pouch strapped around his waist containing two wedges, as well as carrying his axe. It was a matter of individual preference whether the axe was left at the last stump or whether it was kept in the personal possession of the faller but it was always within a short distance from where the faller was working.

11 On the day of the accident, Mr Munday had felled three trees before being joined by Mr McDonald. Mr Munday had been accredited by training conducted by the Eden Logging Investigation and Training Team (ELITT). He would not be allowed in the bush to fall trees unless he was accredited. It was a State Forests requirement for all persons working in the forest to be trained and accredited. A faller's accreditation was reviewed and Mr McDonald reviewed Mr Munday's work by observing his cutting and falling techniques. This was also reviewed by the State Forests officer and ELITT once a month. There were also documented toolbox talks.

12 As bush boss, Mr McDonald had inspected the stumps of trees felled by Mr Munday and was satisfied with his work. He said that, in this position as bush boss and driving the snigger, he was in the best position to see the day to day operation of the faller and the loader operator. The supervising forestry officer responsible for this compartment was Mr Bradley Hyde, who attended the worksite daily but it varied from day to day as to how long he would be present. His duties were to check the work that was being performed, to mark the habitat trees and the retaining trees and to inform the bush boss if there was any hazard that needed to be attended to. In consultation with the bush boss they could close off an area. The forestry officer also submitted his own report to his superiors concerning the crew's workmanship. That officer also had responsibilities relating to occupational health and safety.

(a) Both the supervising forestry officer and Mr McDonald had carried out `assessments of trees felled by Mr Munday prior to the accident. If the forestry officer thought there was a problem, he would raise it with the bush boss but nothing had been said to Mr McDonald - his own inspections showed that the work was "okay".

13 In relation to the work on the previous Friday, 2 November 2001, Mr McDonald noticed that Mr Munday did not have his axe with him. When asked about the axe, Mr Munday said that he had left it at a stump of a tree that he had felled that afternoon, and it was agreed that together they would look for it on the following Monday morning. On the Monday, the crew had a cup of tea, spoke about what work would be done and at approximately 7.15 am Mr McDonald went to his bulldozer and performed his usual check of equipment. Mr Munday took his chainsaw and fuel from the utility and went to the area in which he was to work. Mr McDonald saw him falling a couple of trees before starting his work snigging, and after snigging and debarking a few trees at the dump, Mr McDonald went back to where Mr Munday was working and noticed he was refuelling his chainsaw that was laying on a stump. Mr McDonald then remembered that they had agreed to look for Mr Munday's axe although at that stage did not know if the axe had been found. Mr McDonald stopped his machine and spoke to Mr Munday about the axe and they agreed to look for it. Mr McDonald started up his bulldozer while Mr Munday walked through the bush to the area in which he had worked on the previous Friday. Mr McDonald followed Mr Munday using the snig track and joined Mr Munday in looking for the axe amongst the foliage after removing a number of tree heads. They spent approximately 15 minutes in this area looking for the axe but did not find it. Mr McDonald suggested that Mr Munday use a sledgehammer that was in the bulldozer until another axe could be obtained. Mr McDonald then went back to his bulldozer and a few seconds later heard the noise of a tree falling. The tree did not injure him because he was protected by the canopy of the bulldozer - the tree did hit Mr Munday, approximately four metres to Mr McDonald's right.

14 Mr McDonald said that, prior to the accident, he was unaware that Mr Munday had attempted to fall the tree which eventually fell on him. If he had known that the tree had been scarfed and backcut there was "no way" he would have gone into the bush looking for the axe, nor would he have allowed Mr Munday to do so. Mr McDonald said that, when falling was being undertaken there was an exclusion zone of at least two tree lengths in which persons had to be clear of the faller - that was the rule that operated when working in the forest.

15 It was Mr McDonald's view that an operator with Mr Munday's level of competence would have had no difficulty in using his chainsaw to fall a tree with a diameter of approximately 1300mm, such as this particular tree. Mr McDonald had considered the state of the stump of the tree on a number of occasions. He could not see anything wrong with the procedure followed by Mr Munday. He noted that there was a "pipe", that is a rotten hole in the middle of the tree, but thought that was not a contributing factor other than it might have reduced the amount of holding wood that Mr Munday believed was present in the stump. There was also an old burn scar covered with bark which reduced the strength of the holding wood on the top side of the stump which Mr Munday would not have been aware of, and there was decay reducing the strength of the holding timber of which Mr Munday could not have been aware. Mr McDonald noted that, whenever there was a problem with a tree, Mr Munday would inform him and it would be pushed down using the bulldozer. He believed that Mr Munday thought there was enough holding wood left in the tree because it was not his style to work in an unsafe manner and he was a good operator. Mr Munday had not mentioned that he had scarfed the tree.

16 In a statement given to the New South Wales Police, Mr McDonald said that he was aware of Mr Munday and his family and knew that he was experienced in the forestry industry. In the performance of his work, Mr Munday was regarded as being very efficient and doing a very good job: he was the sort of person who never took risks and was very safety conscious, which was required for the job that he performed. Mr Munday always wore his safety equipment while working on the site, which included a hard hat, ear muffs, eye protection, safety boots, cut proof pants and a high visibility vest. Mr McDonald could only recall one incident where he thought Mr Munday had displayed an error in judgement. That had occurred on 26 October 2001 while working in the dump. Mr Munday was cross cutting a log on the dump which was below another log which had the potential to roll - that log did roll, and both Mr McDonald and the excavator operator alerted Mr Munday to the danger. He was said to be lucky to get out of the way of the log otherwise he could have been injured.

17 It was only after contacting emergency services and trying to find Mr Munday's pulse that Mr McDonald became aware that Mr Munday had scarfed and backcut the tree. At no time when talking with Mr Munday while searching for his axe did he tell Mr McDonald that he had scarfed and backcut a tree which was above them. The cuts in the tree were not visible to Mr McDonald at any time during his discussions with Mr Munday or while searching for his axe, mainly because where Mr Munday was working on the stump was out of sight, being over a ridge and an outcrop of rock. Mr McDonald said that it was common practice in the industry not to work below a tree that had a potential to fall on or near a person. On inspection of the stump, Mr McDonald noticed that the cut had left about 10 inches of uncut wood on the top side of the stump. This indicated that possibly Mr Munday had run out of fuel and was refuelling his chainsaw prior to completing the cut.

18 In his oral evidence, Mr McDonald said that, at the start of the day while they were having a cup of tea, there was no discussion with Mr Munday about his axe or his equipment nor did Mr McDonald ask him about his axe. During the early part of the work, while Mr McDonald was taking trees to the dump, he had no conversation with Mr Munday and did not raise the issue of looking for his axe until he noticed that Mr Munday had stopped work and was refuelling his chainsaw. Mr McDonald had not seen the axe with the rest of Mr Munday's equipment and he did not know whether Mr Munday had retrieved the axe or whether it was still in the bush.

19 Mr McDonald said that on some occasions a faller may not be able to wedge down a tree because it may be sitting back or otherwise would not fall. In those circumstances, it was the faller's decision whether it was to be pushed down by the bulldozer. Normally, the faller would cut an escape route behind the tree at a 45 degree angle away from the stump. It was preferable to cut in an upside direction where that was practicable, because the uphill side was the safest side of the tree to be on when it fell. It would depend on the individual faller how far up the escape route he would go after the backcut was put in but normally it would be about 10 metres.

20 Mr McDonald was cross-examined in detail about forestry practices when falling trees as well as the circumstances surrounding the accident involving Mr Munday.

21 In cross-examination, Mr McDonald said that his advanced qualification as a tree faller required him to be re-assessed every three years - it was a qualification he had held for a considerable period of years. There were also different grades of tree faller which reflected the capacity of a faller to undertake certain work. At the time of the accident in November 2001, he had been a bush boss for five or six years. In this position, if a faller or another employee had a problem with a hazard, he would be the first person spoken to about it. In this position, he was continually making assessments about the work being carried out because he was in the actual work area.

22 The faller assessed a tree before deciding whether or not he was going to fall it: it was the faller's decision and it was the final decision as to whether the tree was felled or whether it was left. As the bush boss, he would not go into the area where the faller was working if he could not see the faller. He could approach to within two or three tree lengths of the tree on which the faller was working but no closer. That rule applied to everybody on the site. The bush boss also carried out induction of inexperienced people visiting the site and they were to stay in designated areas more than two treelengths away from where the faller was working. Inexperienced people on the site would normally be accompanied by the bush boss or the State Forests officer. The State Forests officer usually visited daily but on the day of the accident, which occurred early in the morning, he had not yet arrived.

23 Mr McDonald stated that when a tree was being felled it was not to fall into the filter strip nor was it to hit another tree and force it into the filter strip. If that occurred, it had to be documented and a report made about it. A tree which hit another tree and left limbs hanging in it created a hazard and that too was to be avoided. The faller picked a tree to bring down and, before doing so, he established an escape route. He would normally cut any scrub with his chainsaw and would then assess the tree and its lean before he cut the escape route. There were also other considerations, such as when the ground was too wet it was not safe or appropriate to work in the coupe. The decision as to whether it was safe to work was not made by the bush boss but by the State Forestry officer and he would also decide when work could resume.

24 While they had been working in this area, Mr Munday had requested machine assistance and Mr McDonald had provided it. The bulldozer had a tree pusher attached which enabled this task to be performed. The bulldozer also had a certified protection cage to protect against rollovers and falling limbs. In areas where there was a hill, such as this work, the work was to start at the bottom and an area was cleared for the trees higher up the site to fall into. In this coupe, the bottom area had been cleared the previous week and that was the area in which Mr McDonald and Mr Munday had looked for the axe.

25 The harvesting plan was prepared by State Forests and unless there was such a plan the defendant company could not go into an area and fall trees. Before the plan was finalised, there would be a discussion between the forestry officer and the bush boss which would take place during an inspection prior to the crew moving into an area. The discussion would deal with filter strips and areas where trees were not to fall.

26 It was Mr McDonald's opinion that a faller did not always need to use an axe and wedge to assist in bringing down a tree and that most trees did not need to be assisted in that way. The axe was used to wedge the tree if necessary, with the blunt end of the axe head being used as a type of hammer. The blade of the axe was not very often required to be used during the falling process - sometimes, if cuts had not met in the scarf, the axe would be used to cut that piece of wood out if it was stuck. Sometimes the scarf could be hit with the back end of the axe and would come out and at other times it would need to be cut out with the axe. From Mr McDonald's observation of Mr Munday's work, he did not have problems with his chainsaw cuts in creating the scarf and he regarded Mr Munday as a very good tree faller. Whether a person was a good tree faller could be assessed by looking at the stump to see where he had left the holding wood, the type of scarf cut and how he put in the backcut. The holding wood was like a piece of hinge wood and was the small piece of wood that was left either side between the scarf and the backcut for the tree to hinge on as it fell. The hinge wood provided some control of the direction in which the tree fell and, if the hinge wood was cut out, the tree might fall in any direction. The presence of the hinge wood resulted in the tree falling into the scarf cut. From studying the stumps of trees felled by Mr Munday, Mr McDonald had formed the view that he had cut appropriate lengths and depths of scarf and an appropriate length and depth of backcut, as well as leaving an appropriate amount of hinge wood. It was not necessary to speak to Mr Munday about the need for improvement or about his falling capacities.

27 Prior to commencing work with the defendant in mid-January 2001, Mr Munday's accreditation as a faller had expired - without ELITT accreditation as a faller, State Forests would not permit that task to be performed. State Forests also required accreditation and licences for driving bulldozers and other machines.

28 On the Friday before the accident, 2 November 2001, Mr McDonald noticed that Mr Munday did not have his axe with him at knock-off time when he brought his chainsaw and fuel back from the worksite to the work vehicle. Mr McDonald asked him where was his axe and Mr Munday said that he had left it at the base of a stump where he had been falling that afternoon. That was the same area where work commenced the following Monday. Mr Munday had been gradually working up the hill and had left or misplaced his axe. The work on the following Monday commenced from where it had ceased the previous Friday.

29 On the following Monday, Mr Munday was observed to have all his personal protective equipment except his axe, that is, he had his hard hat, earmuffs, cut proof pants, safety boots and high visibility vest. He had a belt and a pocket with two wedges and he had his chainsaw and fuel cans. Mr Munday commenced work about 150 metres from the dump site where Mr McDonald had initially commenced working. After working at and around the dump for approximately half an hour Mr McDonald commenced to drive the bulldozer towards Mr Munday where he was refuelling his chainsaw. As Mr McDonald approached, Mr Munday did not give him a signal. If a faller did not want anyone to approach he would hold his hand up to stop the person from coming into the area. If Mr Munday had needed machine assisted falling, he would have given a hand signal which was understood between them that assistance was required. Mr McDonald confirmed that, if he had not seen Mr Munday, he would not have proceeded into the area or if Mr Munday had not noticed Mr McDonald coming, he was required to wait until seen by Mr Munday, then receiving a signal he could go into Mr Munday's area of work. A person in that position was to remain at least two tree lengths away and wait until eye contact could be made and a signal given to come into the work area.

30 On the day of the accident, Mr McDonald could not recall whether he actually made eye contact with Mr Munday, but he could see Mr Munday refuelling the chainsaw. Mr McDonald presumed that it was safe to proceed into the work area because Mr Munday was in a cleared area, which he thought must have been safe for Mr Munday to be working in and therefore it would be safe for Mr McDonald also to be present in that area. Mr McDonald was unable to see the base of the tree that had been cut but had not yet fallen because of an outcrop of rocks. Mr McDonald had since examined the site again and had satisfied himself that the stump could not be seen until standing on top of the outcrop of rocks. Mr Munday was refuelling his chainsaw about 20 metres away from the outcrop of rocks.

31 Mr McDonald said that it was an unwritten law that the faller was in charge of the area where he was working on falling trees and that he was responsible for the tree being cut. Nobody was permitted to go within two tree lengths of that area without the faller's permission because it was regarded as a danger zone. On considering this particular stump, Mr McDonald was of the view that the tree ultimately fell where Mr Munday had intended it to fall.

32 When Mr McDonald approached Mr Munday while refuelling the chainsaw, Mr Munday did not mention anything about the tree he had cut, nor did he raise any form of difficulty he was experiencing in relation to the tree. Mr McDonald stated that, if a tree had a scarf and a backcut and did not fall, as bush boss he regarded the first priority was to get the tree on the ground. He would wedge the tree if he could but if it would not respond to wedging he would call for machine assisted falling. If neither of those courses was possible because of the terrain, then the tree would be left and the area would be flagged to warn people not to go into that area. Mr McDonald agreed that sometimes the wind could have an effect on a tree because of its height and size. Just a slight breeze had a lot of power in the top of a tree, the leafy area, and sometimes the faller could wait for the wind to bring down the tree.

33 Mr McDonald agreed that he had looked at the stump on a number of occasions. When asked if there was anything left for Mr Munday to have done in terms of bringing the tree down, Mr McDonald said that "maybe he could have cut a little bit more holding wood on the top side end", but he also agreed that Mr Munday did not really need to do that in order to bring the tree down. Mr McDonald also agreed that, when Mr Munday was refuelling his chainsaw, he "probably" did not need to return to cut any more of the tree. Mr McDonald said in his statement to the police that the uncut wood on the top side of the stump indicated that Mr Munday had possibly run out of fuel and that he was refuelling his chainsaw prior to completing the cut. He said that at the time he made that statement, he was feeling very stressed and that was a possibility or an assumption on his part. Having the opportunity to consider the matter further, Mr McDonald did not think it remained a possibility.

34 Mr McDonald agreed in cross-examination that putting in wedges did not always result in a tree coming down. Sometimes, a tree cut by the chainsaw could rock back on the stump, lean the wrong way, and close the gap created in the backcut. When that occurred, it was difficult to insert a wedge and when that occurred it may be inappropriate for safety reasons to try to insert a wedge. This would be a circumstance where machine assisted tree falling would be appropriate.

Mr McDonald clarified his evidence, saying it would not be inappropriate to put in a wedge and although it was very difficult to get a wedge in, a faller should "definitely try" to get a wedge in and if it failed to then call for machine assistance.

35 In re-examination, Mr McDonald said it would be necessary to wedge a tree when it would not fall on its own after being cut. That was the only circumstance it would be necessary to wedge a tree. It was not often that the blade of an axe would be used. The blade would be used on the odd occasion when the scarf could not be removed from the front of the tree, but that was very rare.

36 Mr Munday had previously asked for machine assistance in bringing down a tree and it was something used quite often by the crew. Mr Munday would ask for machine assistance to get a tree away from a filter strip or to steer it away from a filter strip. There may have been occasions when a tree sat back on its stump and he could not get a wedge into it and would then ask for machine assistance. In September 2001, Mr Munday had also requested machine assistance because something happened to his axe.

37 Mr McDonald had seen the defendant's occupational health and safety manual. He understood that the operator's personal protective equipment included carrying an axe and a wedge as well as the provision of a helmet, eye protection, ear protection, leg protection, high visibility clothing and safety footwear.

38 As bush boss, Mr McDonald agreed that he had overall supervision of the safety of the site but he did not have authority to overrule the tree faller within his work area: the faller could say to stay away or come into the area, and the bush boss could not interfere with that direction even if he thought it was inappropriate. That was a matter of practice that was taught and a matter of procedure that had always been in place.

39 Mr Ah Sam was the manager and trainer in assessing for ELITT and had been employed by ELITT for approximately eight or nine years. He held a Bachelor's Degree in Science Forestry and was an accredited trainer with the forest industry and also an accredited WorkCover trainer. He had been involved in the forestry industry for about 29 years at the time of giving his evidence.

40 Mr Ah Sam was interviewed by Inspector Franke. In that statement, Mr Ah Sam said he had been an instructor trainer and had been assessing for eight years as at March 2002. He confirmed that ELITT conducted occupational health and safety training and training in accreditation for the forestry industry in its harvesting sector. ELITT was funded by way of levy from ELITT members and by way of fee for service for non-members. The ELITT training for forest workers was carried out both in the classroom and with practical training and skilling conducted in a training centre workshop and then in the forest under supervision. All persons working in State forests were required to be trained and licensed: these requirements were imposed by State Forests NSW. To obtain a forest operator licence, a worker required training and accreditation on the machine the person was to operate including chainsaws, skidders and bulldozer excavators. People applying for a forestry operator's licence would need to have completed a number of short courses, including occupational health and safety, first aid, environmental management, fauna and flora, cultural heritage and forest, soil and water protection. State Forests had also accepted operators who had gained their certificate of competency from other areas and States, and consulted with ELITT about a person's accreditation for issuing a forestry operator's licence. There were three levels of training for chainsaw operators: a person had to achieve a Level 2 intermediate, or a Level 3 professional/advanced tree falling level to operate as a professional faller in State Forests. Directional falling techniques, training and harvesting plans for forest workers were part of this training. In relation to directional falling techniques, Mr Ah Sam said that the lean of a tree, defects in a tree which may not be evident at the time of cutting, filter strips or other retained trees were factors that could increase the risk to fallers.

41 Mr Ah Sam described ELITT as a nationally registered training organisation specialising in training and accreditation of forest workers. ELITT provided training to State Forests employees, chainsaw operation at different levels, occupational health and safety committee and induction training as well as short courses. ELITT had provided training for the employees of the defendant company and had trained Mr Munday. He had been trained in the hardwood faller's course in 1983 and 1991, and assessments had been provided in 1993 and 2001. Mr Munday had undertaken the dumper's course in 1983 and the faller's course in 1991. He then undertook the forest soil and water protection course in September 2001. The training provided to Mr Munday was assessed through the falling skills he had demonstrated in the classroom, the workshop and in the forest and his overall attitude to working in the forest. His last assessment was conducted by Mr Brown and was carried out in January 2001. Mr Brown was an accredited trainer/ assessor with ELITT and had for many years been a professional faller. Mr Munday was assessed for his work as a faller in 1987, 1991, 1993 and in 2001 and on at least two other occasions during audits that were carried out by ELITT and a consultant working together with a number of logging contractors. Mr Munday had achieved the ELITT tree professional faller (hardwood) level of training. In Mr Ah Sam's view, the task of falling in hardwood forests generally posed a greater risk due to the defects that may be found in the tree to be felled, namely, its shape, lean, larger diameters, weight, height, coverage and dead branches.

42 A stump assessment of the tree involved in the accident with Mr Munday was carried out by Mr Brown, Mr Walker, (a professional tree surgeon and ex-hardwood faller with 23 years' experience) and by Mr Hyde, (a New South Wales State Forests supervising officer with 15 years' hardwood falling experience). They had produced a report which was handed to the WorkCover Authority. Mr Ah Sam had inspected the stump of the fallen tree and other stumps in the adjacent work area. That inspection revealed Mr Munday's work techniques to be of a high standard. There was evidence of machine assisted falling and the trees were felled in the desired direction of the scarf. His ability in regard to directional falling was evidenced by the fact that there were no tree heads in the filter strips and there was an absence of widow makers in the remaining tree canopy. There was a professional approach taken by the faller to fall the tree in the desired direction having regard to the scarf, the backcut and the holding wood. Mr Munday's tree falling techniques prior to the accident were constantly monitored by the bush boss and the supervising Forests officer. On 30 October 2001, Mr Ah Sam had observed Mr Munday falling trees in the compartment in which the accident took place. He regarded Mr Munday's falling technique and use of the escape route of a high and safe standard, and commented that Mr Munday and Mr McDonald communicated well with each other.

43 Mr Ah Sam said that, generally, accidents involving logging operations were reported to ELITT and that recently, near misses were being reported as well. These reports were used to track accident prevention and statistical trends and assisted ELITT to carry out assessments for emergency procedures and first aid response. ELITT also carried out accident investigations - Mr Ah Sam had investigated and reported on this accident involving Mr Munday.

44 When asked if it was normal practice for the faller to carry with him an axe/hammer and wedges at all times Mr Ah Sam replied that in ELITT's training it was stipulated that all fallers must have an axe/hammer and at least two wedges with them at all times in the immediate work area. The axe and the wedges were to be kept with the faller when he was cutting the tree.

45 In answer to the inspector's question as to whether it was normal practice for a faller to leave a tree standing once he had commenced to work on it, Mr Ah Sam replied:

No. The way we train is that the faller ensures that the tree he is falling, actually falls to the ground. If however the chainsaw runs out of fuel or the chain becomes blunt he needs to assess the situation as to whether leaving the standing tree poses a threat to himself and others. This is constantly reinforced in the training both in the classroom and the bush. As part of our verbal instruction and industry safe work practice fallers do not take their eye off and guard a tree that he has scarfed and backcut. Should the need arise and the tree does pose a threat he will keep his eye on the tree until the dozer operator returns and he requests the dozer operator to push the tree over. This is a documented procedure "Faller/Machine Assisted Tree Felling Procedure" and has been provided to our members and contractors and was developed in consultation with all parties including the people in the bush.

46 Mr Ah Sam said that he had visited a number of sites where Mr Munday had been falling and had always regarded his work as being professional, carried out in a safe manner and to a high standard. It was out of character for him to leave a tree that he had scarfed and backcut without guarding it and requesting the dozer operator to push it over. The training instruction, the industry standard and common practice were that at no time were persons working in the forest ever to enter the tree's falling zone and this was reinforced in the New South Wales State Forests Chainsaw Operator's Manual and endorsed by industry in all States including ELITT.

47 In oral evidence, Mr Ah Sam said that once work had commenced on a tree the training of fallers was to commit them to putting that tree on the ground. Where the tree had not fallen the training was to use their felling tools - the axe or the wedge - to bring the tree down. Fallers should have their wedges and axes with them at all times when falling. There were no circumstances where they should not have those two implements with them. If a faller was having difficulty in getting a tree down the other accepted way to bring it down was to notify the dozer operator to push the tree over if problems were being experienced. That would occur if the tree was not able to be brought down by using the axe and the wedge.

48 In cross-examination, Mr Ah Sam confirmed that the defendant company had been a member of ELITT for nearly nine years. Accreditation from ELITT was recognised on a national basis. Mr Munday had been reaccredited in order to obtain his forestry operator's licence, a process undertaken by ELITT. Mr Munday was assessed by Mr Brown, ELITT's senior instructor/trainer. Mr Brown was accredited as a faller to the level of tree-jacking which was a very specialised aspect of falling and the most senior accreditation that a faller could obtain. Tree-jacking accreditation was used in very special or difficult circumstances when trees had to be brought down.

49 Under ELITT training, the faller took control of the work area around the tree which was intended to be brought down - the faller was responsible for that tree. This approach was adopted because of the inherent dangers in the task. A code of practice within the industry was that no-one should go within two treelengths of a faller who was falling a tree. Only the faller could grant someone permission to enter that work area. Generally, a faller worked together with a bulldozer operator or a skidder, and the faller communicated with the dozer operator and gave him permission to come into the work area. A dozer operator who could not see the faller would not be permitted to go into the faller's work area: not even the bush boss could go into the faller's work area without the faller's approval. That approval or authority could be provided by simple hand signals or through the use of a CB radio or by eye contact, with beckoning. Whatever method was used, both the dozer driver and the faller had to know what the signals meant.

50 If a scarf was cut and the backcut put in but the tree remained upright, this was regarded as a very dangerous situation and fallers were trained to deal with that situation. It was a fundamental part of the training and the accreditation process given to fallers through the ELITT processes. It was a matter considered in reassessments. When a tree did not come down the faller had to withdraw from the tree but also needed to watch the tree during the process of withdrawing. That was part of the training as was the requirement to continue to watch the tree until it was brought down. The tree might be brought down with mechanical assistance, but until the tree came down it remained the responsibility of the faller. If the tree could not be pushed over by the bulldozer, then the area would be flagged off so that nobody would be able to go into the area because a tree that had been scarfed and backcut would eventually fall. A change in wind could lead to the tree falling. All of these matters were contained in the training given by ELITT. It was considered dangerous to have another person in the zone for any purpose. There were circumstances where, sometimes, a wedge could not be used to assist in bringing a tree down and a trained faller would withdraw from the tree if it remained upright and would seek assistance, such as mechanical treefelling. The faller's responsibility was to guard the tree because it was dangerous - he had to somehow or other signal the dozer operator to come near because he was still required to watch the tree in case it fell in the direction of the bulldozer. A faller was not to leave a tree that had been scarfed and backcut without taking one of these steps. A faller was not trained to merely leave a tree and not tell anyone about it. Where a tree had been scarfed and backcut and had not fallen, a faller was trained to try to bring down the tree with the axe and wedge but if that failed or was not possible, then machine assisted falling would be used.

51 Ms Erica Hansen had provided a witness statement to Inspector Franke. Ms Hansen was a self-employed forestry and safety consultant operating under the corporate entity Eden Forest Management Services Pty Ltd. She provided services to logging contractors in New South Wales and Victoria and had been doing so for nearly 12 months as at May 2002. She had a Bachelor of Science degree in Forestry, as well as certificates in assessment and workplace training, accredited WorkCover induction and consultancy training.

52 Ms Hansen had been employed by New South Wales State Forests for 11 years as a forester in Eden and had been involved in the industry all her life, with her father and brother both being foresters. Whilst employed as a forester, she was involved in the marketing of timber, which required her to go into the bush to work with the contractors and fallers. Prior to that, she was involved in the supervision of staff employed by New South Wales State Forests.

53 Ms Hansen had helped the defendant company develop and maintain occupational health and safety manuals for its field operation, truck drivers and workshop staff. She had conducted toolbox talks with the logging crews and had conducted safety audits of the company's systems of work and provided reports on compliance and issues raised by employees. The toolbox meetings were held monthly on site and the audits were conducted every 3 months and involved Ms Hansen visiting the worksite and observing the logging operation. The procedure was documented and was an ongoing service provided to the defendant. She commenced carrying out this work for the defendant in late August 2001.

54 The documentation of the toolbox meeting was provided to the defendant with a copy kept by the logging crew through the bush boss. The documentation was placed in the crew's safety manual which was kept in the work vehicle on site. When a toolbox talk was conducted by Ms Hansen, she physically sighted the manual to ensure that the last meeting report was present. She had conducted two toolbox meetings at which Mr Munday was present, one on 12 September 2001 and the second on 30 October 2001. Both these meetings were held at Yambula State Forest. The September meeting was used to introduce the safety manual and its contents, and in October there was a discussion about a "near miss" when a crew had worked out a system of overcoming the problem which had been documented. At the three monthly meeting, Ms Hansen would check to see that tools and equipment were being used and were available. She had carried out an equipment check on site when Mr Munday was present in September 2001. That audit reported that Mr Munday had broken his axe handle and that a replacement was to be provided very shortly by the next log truck. That was a common practice.

55 After Mr Munday had completed his training as a faller, he was assessed by ELITT and the assessment documentation was provided to the company and entered on its personnel file. Ms Hansen was provided with a list of current accreditation and all training provided by ELITT to the defendant's employees in the logging operation - this seemed to be a system developed by the company to ensure that its employees had the appropriate training and accreditation. Mr Munday's falling techniques prior to the accident were constantly monitored by State Forests and Mr McDonald.

56 Ms Hansen was not engaged by the defendant to assist in accident investigations involving the logging crew, but she was aware that all accidents involving logging operations were reported. These reports were made to determine why the accident occurred, to take corrective action if there was a contributing factor, to review systems of work and implement change if required. Ms Hansen confirmed that it was normal practice for a faller to carry with him at all times an axe or hammer and wedges.

57 In oral evidence, Ms Hansen confirmed that she was engaged by the defendant not simply to prepare an occupational health and safety policy and manual but also to assist in the development of the policy and manual. By September 2001, she had assisted in producing the defendant's occupational health and safety manual which had not been amended prior to the accident involving Mr Munday in October 2001. In September, Ms Hansen conducted a toolbox meeting over one day and , as it was the first time she had been with the crew, she provided them with one of the manuals, went through it and explained its content to the bush crew. She conducted a crew safety audit and looked at the general work procedures of the crew as a whole and also the members individually. A report was prepared as a result of that meeting. A similar process was followed in October. On the first occasion, Ms Hansen said she was present for 3-4 hours; in October it took about 30 minutes to an hour to discuss the issues with the crew. There were a number of documents prepared for the manual that were used for the safety audit. She had prepared those documents using information from the safety pack that State Forests provided and also used information from ELITT - that information was combined with the documents in the manual. In the September report dealing with Mr Munday, it was noted that the faller was not carrying an axe and wedge. Ms Hansen noticed that he was not carrying an axe and enquired as to why that was the case. She made that enquiry because it was recommended practice and part of the safe working procedures that a faller had a variety of personal protective equipment including a wedge and axe. From her experience in the forestry industry, the wedge and axe was used to help guide trees, which might be difficult to fall, in the right direction. Ms Hansen was not an accredited faller.

58 In cross-examination, Ms Hansen said that, while employed by State Forests, she had supervised the people who are now referred to as State Forestry officers. Part of her duties during her 10-11 years as a forester was to work with logging crews to ensure that they operated under the codes of practices and to supervise other forestry employees to ensure that they were carrying out their tasks correctly. The codes of practice in forestry harvesting operations included sections on safety. The State Forestry officers attended on a daily basis to check the logging crews in their particular areas. She understood that if State Forestry officers observed any improper practices, they would report them. These were matters that they were required to bring to attention quickly and to ensure they did not continue. Over a number of years she had experience of the defendant's crews, and had not received any complaints from forestry officers about the way in which the company's fallers operated.

59 From her previous experience, Ms Hansen was aware of the way in which the defendant's crews operated in the forest and from that experience had formed the view that Mr McDonald was one of the safest operators in the bush. When Ms Hansen introduced the manual to the crew, she did not have to introduce any new practices for any member of the team because they already had safe practices.

60 Ms Hansen understood that the requirements of State Forests in relation to a faller engaged in bringing down a tree were to ensure that there was no-one standing in the path of the intended fall of the tree, that the faller had an escape route prepared having commenced falling the tree, that the work area around the tree would be essentially controlled by the faller and that these existing practices were incorporated in the manual she had prepared. They were consistent with the safety standards required by State Forests. The development of the manual was, in essence, the bringing together in one document of existing work practices.

61 It was Ms Hansen's understanding that for the majority of the time fallers did not require wedges when they were bringing down trees. She had observed fallers bringing trees down in a desired position without the use of wedges. In September 2001, Ms Hansen had observed Mr Munday falling 10 trees-and had completed a report based on those observations. From her observations, it appeared that Mr Munday had a plan for falling the trees which was consistent with foresstry practices. He appeared to make the appropriate assessment for each tree, checking their leaning, where he would fall the tree, where his escape path was to be placed and any hazards around the tree. Observations were made of scarf cuts and the backcuts which were acceptable and the amount of hingewood was acceptable. It was important that the appropriate amount of hingewood was left to assist the directional fall of the tree and Mr Munday had done that with each of the 10 trees. There was a provision for considering whether the wedge procedures were safe and effective but Mr Munday did not use a wedge to bring down any of the 10 trees while Ms Hansen was observing his work. This work was undertaken on the day that his axe handle was broken. Overall, Ms Hansen found that Mr Munday was working safely on the day she observed him. It was her understanding that it was the faller's responsibility, after he had scarfed and backcut a tree which had not fallen, to try to bring the tree down as safely as he could. In such circumstances, it would be appropriate to call in mechanical pushing assistance to bring the tree down.

62 In re-examination, Ms Hansen agreed that the use of escape routes, the fact that no-one was to be present in the intended direction of the tree's fall and the person who was to be in control of the falling operation when it was being conducted were not, in terms, set out in the manual she had prepared but they were forestry practices. Her documents did, however, deal with the requirements of keeping people two tree lengths clear of the falling operation while a tree was being brought down.

63 In the defendant's case, Mr Roger Brown was called to give evidence. Mr Brown was a senior skills instructor/trainer with ELITT, had 30 years' hardwood felling experience and 20 years' experience as a professional production faller. Together with Mr Walker, a professional tree surgeon and ELITT instructor/trainer with 23 years' hardwood felling experience and Mr Hyde, the State Forests supervising forest officer with 15 years' hardwood felling experience, he produced an "investigation study" of Mr Munday's tree falling standards and techniques for ELITT and New South Wales State Forests following the accident

64 The ELITT investigation/study inspected forest areas in which Mr Munday had felled trees on the day of the accident, a week before the accident and four weeks prior to the accident. In addition, they had taken photos of tree stumps that he had felled on the day of the accident, the week before the accident and trees felled two and four weeks before the accident.

65 In relation to the tree stump involved in the fatal accident, the scarf and the backcut were considered as textbook examples. It was noted that the holding wood on the upper slope was thicker than on the lower slope, a cut that was usual to avoid the tree falling down the slope and into the filter strip. The investigating team considered that, on the whole, the tree was scarfed and backcut to a professionally acceptable standard. In relation to the trees felled during the week prior to the accident, they were felled into open space away from the buffer zone and all trees were considered to be scarfed, backcut and felled to a professionally acceptable standard. The investigation report then described the stumps where trees were felled approximately two weeks prior to the accident and four week prior to the accident. The report contained an overall comment of the investigation team, stating that it was most impressed by the overall consistency and high standard of professionalism of the stumps cut by Mr Munday. In relation to stumps of trees felled over a period a month before the accident, they were regarded as textbook felled and there was unanimous agreement that the quality of Mr Munday's stumps and the evidence of his directional falling would "put him amongst the top fallers in the Eden forest region". All trees had been felled into open space. There was also evidence throughout the felled logging coupes that the dozer operator had assisted the faller with machine assisted tree falling. The investigation team was unable to say why a faller of Mr Munday's calibre and experience and family logging history would leave a tree he had scarfed and backcut instead of making sure it had hit the ground before he took his eyes off it and walked away.

66 In oral evidence, Mr Brown confirmed that he had been employed by ELITT since 1999, had a certificate as a workplace assessor and was accredited as a level 3 faller, in addition having a treejacking qualification. He had extensive experience in the timber industry with State Forests and in a variety of positions. He was employed to provide members of ELITT with services as a trainer and an assessor for persons wishing to become professional tree fallers. As part of the services provided through ELITT, members having difficulties dealing with a particular situation in the bush would be able to secure Mr Brown's attendance at the site to provide advice and assistance. In 2001, he was the only tree faller in the area with a tree jacking qualification and able to perform that task, but since that time other fallers had qualified in tree jacking.

67 Mr Brown had become aware of Mr Munday as a professional faller in the early 1990s. At that time he had assessed Mr Munday as quite competent and good at his job. He also assessed the safety aspects of his work and found that he had performed well in that area. In 2001, the defendant asked him to perform a full assessment of Mr Munday to enable him to regain his accreditation after it had lapsed. On that assessment, Mr Brown found Mr Munday to be competent and he saw the work actually being performed when that assessment was undertaken. If, during the course of an assessment, he found the person to be working incorrectly, Mr Brown would stop the assessment, make the person aware that the assessment had been stopped followed by a discussion with the employer and Mr Brown's manager to work out what training that person needed to obtain accreditation and to overcome the incorrect work procedures.

68 Members of ELITT were also provided with a service of assessing their workers in the field. This was conducted on a scheduled basis by performing random checks. Mr Brown simply turned up at a job, went into the work area with the faller, looked at the faller actually working and documented his observations. Mr Brown's schedule was to drop in every month or two months for visits to all places where work was being performed. He had performed a number of random assessments of a team in which Mr Munday was working. He found no problem on these occasions warranting a person being placed on a training programme. On these occasions, he found Mr Munday to be very professional and very competent in what he was doing - in his view there were no problems with Mr Munday's work.

69 As a trainer and as a faller, Mr Brown stated that there was a requirement that if anybody came within two tree lengths of a tree being felled by a faller, work was to cease. That was a standard requirement throughout the timber industry. Wedges were used on approximately 10 per cent of trees being felled but this could vary in certain areas.

70 Mr Brown stated that, depending upon the lean of a tree, where a tree was standing straight up and where 10 per cent of the holding wood remained intact, that tree was potentially ready to fall which was when the backcut was made. He had investigated the stump of the tree which had fallen on Mr Munday, believed it had been competently cut in accordance with professional felling standards and that once the backcut had been put in, the tree was ready to fall at some time. He agreed that sometimes the chainsaw blade got caught if a tree rocked back on its stump and use of a wedge would stop that happening. The wedge could be put in the tree before it sat back and without having to hit it with some implement. Such a wedge could fit into the size of the cut and could be tapped in. Once in place, it could inhibit the tree rocking back onto the stump.

71 In relation to the investigation in which Mr Brown had participated, he formed the view that the scarf cut out by the chainsaw had come out easily on its own and he did not think that any force was needed to remove the scarf from the tree that Mr Munday had been working on. It was quite neatly cut. He was familiar with the publication produced by State Forests called the Chainsaw Operator's Manual, which was the system used throughout the industry. Everyone was taught the contents of the manual before they went into the bush.

72 In cross-examination, Mr Brown said that Mr Ah Sam was his immediate superior. He agreed with Mr Ah Sam's evidence that in ELITT's training it was stipulated that all fallers must have an axe/hammer and at least two wedges with them at all times and in the immediate work area when cutting a tree. He also agreed that it was for the faller's safety that he was required to have an axe at all times while falling trees. A faller may not know at any given time whether he would need to use his axe to cause a tree to come to the ground: that could happen after scarfing and backcutting yet the tree did not fall by itself. Where the tree had fallen back on its backcut, a wedge put in and the tree still had not fallen, then the faller would need the axe to drive the wedge in further. There might be occasions when the faller would need to use the sharp end of the axe.

73 Mr Brown said that when assessing a tree stump he looked at the size of the holding wood, the quality of the stumps and how the backcuts were put in. He then looked at whether the tree had been felled into the retained trees or had fallen into open space. By looking at a stump he could determine whether a directional felling technique had been used and whether it was a good or bad technique. When assessing a faller, his equipment was considered and Mr Brown always looked at the wedges, the axe, the chainsaw, the chainbrakes and the personal protective equipment. If a person did not have the wedges and axe with him then an assessment could not be performed. The axe and wedge were looked at to make sure that the faller had them with him and that they were in good condition. There was no point in having an axe so old that it could not drive in a wedge.

74 Mr Brown agreed that it was important for a faller to remain in communication with the snigger or the bush boss and, in particular, when a faller was out of the sight of the bush boss. It was important for the bush boss and the faller each to know what the other was doing all the time. That was because it was important to make sure that the snigger or bush boss did not come within the danger zone, that is, within two tree lengths of the tree being felled. The communication between these two workers was assessed. Mr Brown said that before the snigger came back into the work area he would wait until he received a hand signal or radio signal from the faller and that was how they would communicate. More recently, they had used UHF radios: the snigger would call up the faller and ask if it was safe to come back into the work area. Where hand signals could not be seen, the snigger and the faller would usually have talked about that situation before work started and the snigger would have to wait for the faller to come out and be seen and make sure that the tree was on the ground before going into the work area. In that situation, the faller would have told the snigger that he was going to a particular area to bring down a particular tree and in what direction that tree would be brought down. The snigger, if he was unable to see the faller, would wait until he had been told that the tree had fallen.

75 In relation to the particular tree involved in the accident with Mr Munday, Mr Brown had given some consideration as to why the tree did not fall. He thought there could have been a "little" breeze holding it up or perhaps the wedge could not be driven. He mentioned the wedge because Mr Munday did not have an axe to drive it in. He formed the opinion that Mr Munday could have made some attempt to use the wedge because it was found on the ground near the stump and was not in his belt. That was why Mr Brown thought there was a possibility that Mr Munday had tried to drive the wedge but was unable to do so.

76 On this particular site, the rocky outcrop blocked the capacity to see a faller working at the base of the tree. Where a faller was going to work in an area where he could not be seen by the bush boss or snigger, he would usually indicate the area in which he intended to work rather than the particular tree.

77 In re-examination, Mr Brown said that the use of wedges depended upon the type of bush in which the work was being performed: that is, whether the faller was required to do a lot of directional falling or whether he was in a large open area where he could fell the trees more freely. In the area in which Mr Munday was working, between two filter strips, he needed to wedge probably 10 per cent of those trees to direct the trees out of the way of the filter strips because they were not falling directly with their lean but a little away from their lean. The wedge was used to assist directing the trees away from the filter strips. Machine assisted felling which was used quite frequently by that team. In Mr Brown's view, machine assisted felling for direction was better because a machine was stronger than a wedge and it could better control the tree.

78 During training, Mr Brown said the issue of what a faller should do if he needed to leave an area of a tree he was trying to bring down was dealt with and there were rules that applied. A faller should notify all other persons in the area and, if he could, get the bulldozer to push the tree over. If there was a problem and a bulldozer could not be brought in, then treejacks could be used. If none of those things could be used, then the area had to be flagged off and signs erected warning persons to stay away from the trees. The responsibility of the faller in those circumstances was to actually watch the tree, make sure that no-one else came into the vicinity and to notify everyone in the area but, ultimately, the real responsibility was to get the tree onto the ground. People were not to come within two treelengths of that tree.

79 A number of documents were tendered in evidence that require some brief mention. The State Forest Chainsaw Operator's manual dealt extensively with the theory of tree felling. In part the manual dealt with the necessity to assess the tree and stated that directional falling was important for the safety of the operator and the safety of others and emphasised that hanging branches and widow makers should not be left on adjoining trees. The manual stated that the faller should check the tree for defects before felling and that the operator should "sound" the tree using the axe. As part of the preparation for falling a tree the operators are directed to clear around the base of the tree, to remove dead wood and to prepare an escape route using the axe or the chainsaw. In relation to the use of wedges the manual states that plastic wedges were more prone to damage and wear from being hit by a hammer or blows from the axe. The circumstances are then set out when wedges are most often used in felling a tree. Under "work method" the manual speaks of operators staying in contact with other workers and deals generally with working in a safe manner. There is a description of the method to be used in falling a problem small tree using a wedge and a felling bar. The manual then deals with driving a wedge to force a tree to fall and notes that in the case of defective trees the operator is to take extra care during the wedging task.

80 The WorkCover Code of Practice for snigging logs deals in part with working with tree fallers. At page 19 of the Code it is stated:

It is essential that a skidder operator does not move into an active tree felling area before the faller has been sighted and it is safe to move in. If the faller is not sighted, the skidder is to be stopped, engine switched off and the faller is to be located via the noise of the chainsaw. The skidder operator is to ensure that it is safe to enter the area before doing so.

81 State Forests of New South Wales produced a document entitled "Forest Practices Code - Timber harvesting in native forests". In dealing with the scope of the code the document stated that the code applied to all timber harvesting operations conducted in all native forests under the control of State Forests of New South Wales and constituted a condition of every timber, products, contractors and operators license and sale agreement. The Code was binding on all parties and individuals involved in the management and practice of obtaining timber or timber products from State Forests and Crown timberland. The Code was said to describe procedures designed to ensure good workplace standards, safe working practices and matters dealing with the protection of the ecology and the protection of forest assets. In circumstances where there was a failure to comply with the Code State Forests would decide what sanctions would be taken: one of the matters considered was "compliance with accepted work standards". Under the heading "Safety" the Code stated that State Forests, as the manager of timber harvesting operations on State forests and Crown timberlands shared responsibility with licensees to ensure that all work was performed in a safe manner. It included all work performed by State Forest employees and all licensees engaged in timber harvesting and associated forest operations. All employees were to comply with all reasonable directions given by their employer "pertaining to safety" and each employee was to take remedial action to remove potentially dangerous situations where that employee had the means to do so. Employees were to report to their employer, without delay, any dangerous situations they were unable to rectify.

Field and bush supervisors were to give effect to the provisions of the Timber Industry (Health and Safety) Regulation 1982 by ensuring that an employer did not permit any employee to undertake any work unless the employee had been adequately trained. The training had to give instructions in the performance of the work, any dangers associated with that work and any safety precautions which ought to be taken. These sections of the code dealt with safety in general terms and did not specifically mention, for example, the necessity for a faller to remain in possession of an axe and wedges at all times while performing the felling task. Under the heading "tree felling and servicing of logs and products" the code provided that manual tree fallers and other chainsaw operators had to observe a number of requirements including a requirement to hold accreditation acceptable to State Forests of NSW for the class of timber and type of felling required. It directed that fallers working in close proximity in the logging coupe were far enough apart not to endanger one another and that the minimum separation distance was two tree lengths. This part of the Code also dealt with directional felling of trees and stated that tree fallers were to use directional felling techniques when necessary to: avoid damage to the fallen stem;, minimise damage to retained trees; minimise disturbance caused by snigging; and, avoiding felling trees into filter strips or other exclusion areas. In dealing with "hang ups" the Code stated:

Tree fallers must bring all trees lodged during felling (hang ups) to the ground as soon as practicable. This includes trees still upright after cutting is completed. Where there is any delay, the tree must be flagged with an approved flag. Once there are more than three flag trees in any single operation, the faller must cease felling of other trees until the lodged trees are brought down and made safe.

82 The Vin Heffernan Pty Ltd occupational health and safety manual of September 2001 spoke in general terms of the defendant's occupational health and safety policy. Management and the bush crew leading hand had responsibility and had to be committed to adopting safe systems of work and safe operating procedures as well as ensuring employees were trained and competent to carry out their work. Employees were responsible and committed to working safely and to take all reasonable care and to follow safe working procedures to reduce risk of injury. It was the employee's responsibility to use and correctly maintain appropriate safety and personal protective equipment. The manual stated that the "Designated Safety Officer and Bush Boss" was Mrs Julie Dunne, that the "Workplace Supervisor" was Mr Brian McDonald and that the "Occupational Health Safety/Rehabilitation Co-ordinator" was Mrs Julie Dunne.

83 The September 2001 manual stated that the designated safety officer had the role of implementing the management of the defendant's occupational health safety and rehabilitation policy and procedures. This involved conducting workplace inspections and subsequent risk and management procedures to identify, assess and control existing and potential hazards in the workplace. It was the responsibility of this officer to promote a higher level of safety awareness at all times and to ensure adequate workplace supervision was in place at all times as well as monitoring compliance with the contractor's safe systems of work.

The bush boss was described as having the role of implementing the detail of the company's occupational health safety and rehabilitation policy and procedures and had the specific role of providing workplace supervision. The detail of this role was stated to be the provision of effective workplace supervision and where appropriate to conduct risk management and identify assess and control risks in the workplace. The bush boss was to lead by example and promote workplace safety at every opportunity. The manual did not state the role and responsibilities of the workplace supervisor (Mr McDonald) although he regarded himself as the bush boss at the worksite.

In relation to individual employees the manual stated that individual employees were responsible for their own safety and ensuring that their work activities did not put other employees or other persons at the workplace at risk. Their responsibilities as individuals was to develop and maintain a high level of safety awareness, utilising safe work procedures at all times, adhering to instructions particularly in relation to the use of personal protective equipment and actively co-operating in the employer's safety initiatives, procedures and practices to ensure safe work.

84 In accordance with the manual the Designated Safety Officer "or the bush boss" was to maintain a daily diary which would contain workplace inspections to monitor workplace supervision, consultations, risk management and plan management, incidences and breaches of company policy and procedure and the issue of personal protective equipment amongst other things. The manual stated that the defendant would undertake competency assessments of all employees before they commenced work and where skill deficiencies were detected appropriate training and assessment would be provided before the work commenced so that employees could perform their designated duties competently and safely. In relation to workplace consultation it was said that toolbox talks were considered the most appropriate means by which quality communication and consultation could be maintained. Toolbox talks were to be held at least monthly and were to be chaired by either the designated safety officer, the occupational health and safety consultant or the bush boss.

85 Appendix A to the defendant's manual was a document titled "New bush crew employee workplace safety induction manual". That document said that management supervisors and individual employees had to take every reasonable precaution to protect the health safety and welfare of themselves and other co-workers and that every employee should work together as a team to reduce workplace accidents and other incidents and reduce exposure to health and safety risks. In the section of this appendix dealing with personal protective equipment a number of items are mentioned including headwear, footwear and high visibility clothing but no mention is made of a requirement that the faller was to keep with him at all times his axe and wedges. The appendix then, in very general terms, directed that people should work safely and they should not engage in skylarking or dangerous activities.

SUBMISSIONS

86 In submissions for the prosecutor, it was pointed out that, when Mr McDonald came to Mr Munday while he was refuelling his chainsaw, there were no signals given to Mr McDonald nor was he told that a tree had been scarfed and backcut. Mr McDonald was allowed to come into the danger zone without any warning about the tree. Further, the two men searched for Mr Munday's misplaced axe in the area in front of the tree in the danger zone. There was nothing in the system of work which required Mr Munday to tell Mr McDonald that he had left a tree standing which had been scarfed and backcut but which had not fallen. Mr Munday was not required, nor did he mention the direction in which the tree was intended to fall, which was exactly where he and Mr McDonald were looking for the axe. Mr McDonald made no enquiry of Mr Munday in respect of the work he had been performing prior to the time he saw Mr Munday refuelling his chainsaw. While it was accepted that Mr Munday was a skilled, competent tree feller appropriately licensed to carry out the work he was undertaking on the day in question, that he had received training, that his chainsaw skills were of a high standard and that the defendant had introduced an occupational health and safety manual in September 2001, nevertheless, the obligation imposed upon the defendant was absolute and required the defendant to ensure, guarantee or make certain of the safety of its employees whilst they were at work. That obligation focused upon eliminating risks from the workplace and therefore the fact of an injury or of an accident was not necessarily an element of the offence. The Full Bench in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 had observed that the concept of reasonable foreseeability was not apt to be applied in relation to the duties owed under the Occupational Health and Safety Act. The duties so imposed were not merely duties to act as a reasonable or prudent person would in the same circumstances, but the obligation was to ensure the health, safety and welfare of employees at work. There was no warrant for limiting the detriments to safety contemplated by that provision to those which were reasonably foreseeable. It could be accepted that employers were not liable for risks to safety which were merely speculative or unduly remote (Kirkby v A & M I Hansen Pty Ltd (1994) 55 IR 40 at 50). The terms of the Act specifed that the obligation was a strict or absolute liability to ensure that employees were not exposed to risks to health or safety.

87 The prosecution case could not be avoided by a conclusion that Mr Munday was in some way negligent or careless or failed to take heed of what he knew to be a known and identified risk. In Riley v Australian Grader Hire (2001) 103 IR 143, and WorkCover Authority v Main Lighting (1995) 100 IR 248 at 257, it was pointed out that the provisions of the Act required employers to be diligent and proactive to ensure the safety of employees and those obligations were not diminished because of the error or negligence of an employee, although those matters may reflect on the degree of culpability of the employer for the purposes of sentencing. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard for personal safety as well as the foreseeable technical risks of industry.

88 In the present case, nothing appears to have been done to alert Mr McDonald, or anyone else who may have been working in the forest, to the fact that there was a scarfed and backcut tree which had not fallen. It was known that a tree that was being felled posed a risk in the course of felling operations for anyone coming within the danger zone, that is, within two full tree lengths of such tree. It was necessary therefore to ensure that if a tree was scarfed and backcut it did not fall on anyone.

89 At the commencement of work on 5 November 2001, Mr Munday did not have his axe with him; the axe was an essential item of equipment and identified as being part of his personal protective equipment. Mr McDonald, at the beginning of the day at the log dump, and when Mr Munday was refuelling his chainsaw, did not enquire at all about the absence of Mr Munday's axe. A safe system of work both in its provision and maintenance would have, at the very least, made certain that Mr Munday was armed with all his personal protective equipment, including his axe, and all of the tools necessary to do his work safely. If the system of work provided or required Mr Munday to have his axe with him and at all times while he was felling trees, that system was not maintained on 5 November 2001.

90 This system of work allowed persons snigging trees to continue to carry out the work at a time when they had no idea whether or not it was safe to remove trees from a particular area. Mr McDonald, as supervisor and snigger, needed to be sure that there was no risk to anyone, including himself, posed by the prospect of falling trees in any particular part of the forest. He should have communicated with Mr Munday each and every time he returned to Mr Munday's work area as to whether it was safe to snig, or even be present in that particular area. Mr McDonald relied on assumptions about what Mr Munday was or had been doing rather than actually finding out what he had done before he had stopped to refuel his chainsaw. Mr Munday had not signalled Mr McDonald into the area, nor had Mr Munday made eye contact with Mr McDonald. Nevertheless, Mr McDonald proceeded to the area where Mr Munday was refuelling his chainsaw: Mr McDonald frankly conceded that he presumed or assumed that it was safe to go there.

91 The problem with this system of work operating on the day in question was that it relied solely upon Mr Munday's judgement as to what he would tell Mr McDonald as to what and where he was up to in terms of his work. The system further required Mr Munday to exercise his own judgement as to whether or not it was safe to walk away from a scarfed and backcut tree at any time, whether it be for the purpose of refuelling his chainsaw or for the purpose of looking for his axe. Again, the question arose as to why Mr Munday did not have his axe with him which was essential in any safe system of work. There was a dual problem which arose on 5 November: the system required Mr Munday to exercise his own judgement in relation to matters that may have seriously jeopardised safety and it left to Mr Munday what he would communicate to Mr McDonald as to the possibility of the risk of a scarfed and backcut tree falling over. That system left open the very real and imminent risk that his judgement might be wrong.

92 Mr McDonald was the supervisor, and his view of the stump of the tree on which Mr Munday was working was obscured by the rocky outcrop. In his supervisory role, Mr McDonald, however, did not at any stage ask Mr Munday what he was doing. He relied upon what he could see when there was a rocky outcrop impairing his view of the tree stump. There was no communication from Mr Munday saying he was felling a tree, or that he was going to fell a tree, or at what stage in the process he was while refuelling his chainsaw. If there had been communication and Mr McDonald knew that Mr Munday was felling the tree, he could then have asked Mr Munday, on his approach, whether the tree was down. In operation, this system relied entirely upon Mr Munday and, to some lesser extent, assumptions by others.

93 The defendant's occupational health and safety manual contained general statements about the requirements of occupational health and safety and included duty statements. The manual did not document any procedural system for either the bush boss or the faller in relation to the work of harvesting. In dealing with safe systems of work, the manual referred a reader to the Forests Practices Code, but that Code said little, if anything, about a system of work which was to apply. None of the documents laid down a system of work or laid down what communication there was to be between the crew - it did not lay down how the danger zone was to be identified nor did it lay down mandatory requirements as to the continual possession of an axe by the faller. There was no mention about what was to be done when a member of a crew was out of sight from other members, or what was to be done in circumstances where the faller did not have his axe.

94 The requirement for a faller to have an axe went both to the system of work and supervision of the work. There was no check system to ensure that the axe was with the faller at the commencement of work. There was no system of supervision which would allow Mr Munday to discuss a particular problem with a tree - the system left it entirely to his own view as to whether a tree that had not come down but had been scarfed and backcut represented a risk. There was always the possibility that a person could make a wrong assessment and that risk was reduced if there was a requirement to discuss the matter with another member of the crew. Even allowing that two people could make a mistake the chances of a mistake were reduced if two participated in the decision making. In this particular situation, machine assisted falling in accordance with the ELITT procedure was only required if there was a life-threatening situation such as hang-ups or widow makers but, where a tree was scarfed and backcut but had not fallen, it was left to the assessment of the faller. There was no obligation to inform anyone when a tree would not fall including the bush boss.

95 The prosecutor rejected the position that, having ELITT or State Forest accreditation or training alone satisfied the requirements of the Act, leaving the employer with nothing more to do to ensure safety. The employer's obligation, at the very least, was to enforce and maintain the systems of work that employees were trained in because of the absolute nature of the obligation. If, for example, the training stated that for safety reasons a faller must have an axe with them at all times, then the employer's obligation was to make sure, certain or guarantee that an employee did in fact have the axe with him at all times and did in fact undertake his work systematically in accordance with the training. The employer's obligation could not be met simply by the system of training leading to accreditation. The visits by representatives of ELITT to inspect the work was more to do with the system of training than the system of work. In this particular case, there was a system being applied to the work being undertaken and it was not a question of what ELITT did, but that the employer did not provide and maintain a safe system.

96 The way in which the charge was framed and particularised focused upon the risks identified: the tragic death of Mr Munday was not necessary to be part of the charge. It may be that the accident cast some light on the nature of the risk, but the risk was identified as the risk of a tree falling and that is where the causal nexus existed. On this approach, an offence was established by the failure to ensure that Mr Munday commenced work with an axe and kept the axe close at hand during his work as a faller.

97 For the defendant, it was submitted that, central to the system of work, was the system of training and accreditation of persons working in the forest. That was the way in which a pro-active employer could deal with the risks thrown up by this kind of work. The process of accreditation was required by State Forests so that an individual could obtain a licence to carry out the work. The process of accreditation addressed the issue of risk, identifying risks in terms of what might be expected to happen and what might be unexpected. A member of a crew had to be trained physically how to use the chainsaw safely, and to identify, within a forest, a tree or trees that could be brought down and what were the difficulties associated with that task. That involved assessing the lean of the tree, the size of its head and the effect of the wind and other matters dealt with in the evidence. Accreditation equipped the person not only with the capacity to bring the tree down but to bring it down in an identified area - the training provided the skill necessary to land a tree in a specific area. For safety reasons, a tree could not be brought down into other standing trees because of the potential to create safety problems with hang-ups and widow makers. The faller had a right to leave a tree - he was equipped to make that assessment.

98 Where a tree would not come down there were options available - the faller could use wedges: sometimes using wedges would not bring a tree down. The option of using mechanical assistance was available. The accreditation process was much more than a licence to work. It was accepted that a licence was obtained from State Forests as a result of accreditation through ELITT but that system trained members of a crew to deal with circumstances that could arise in the forest.

99 Here there was not only a system of work which was safe but it also contained checks and balances to ensure safety. On a daily basis, the State Forests officers checked the work, including the work of the faller. In addition, ELITT provided to its members (including this defendant) the service of random checks of the work in all its aspects including safety, communication and the way the work was performed. In this case, the defendant had sought an additional audit system provided through the services of Ms Hansen and, in addition, a system of reminding a crew of safety matters through the toolbox talks that had been instituted.

100 The defendant accepted that the system was not that if the faller did not have his axe then no work was to be performed. The evidence showed that an assessment would not be continued in the absence of an axe, but the axe was not a factor causally related to the risk in the system. The system and the training required a person to have the axe with the faller at all times. In fact, Ms Hansen had continued an audit in circumstances where an axe handle had been broken and of necessity there was no axe. An axe was not needed to create scarfs since the chainsaw was all that was needed for that purpose. It was submitted that this was not a case where the evidence supported a finding that the work could not be performed safety without an axe. The evidence, in fact, showed that the work could be performed without an axe and, indeed, it showed that wedges were not required on every tree. Directional falling could be performed without the use of a wedge by using the skill of the faller. A wedge assisted that process if it was required by the faller.

101 The system of work accommodated all possibilities including the possibility that a faller did not have an axe - it accommodated the possibility that the tree would not fall. The evidence was clear that the faller had to keep an eye on the tree, withdraw from the tree and notify either the supervisor or the bush boss so that steps could be taken to bring down the tree. That might involve machine assistance but that was the system. If the system had been followed in this case, nobody was exposed to a risk but the system was not followed: there was a departure, and a very significant departure. The faller had at all times control of the work space and knew he had that control. He knew he could exclude, in a very simple fashion, other people from that space merely by holding up his hand with a recognised signal and stopping anybody coming within two tree lengths of his work area. In this case, Mr Munday did not follow that system. He did not communicate but he had the capacity to do so. He could have put up his hand to stop Mr McDonald. Mr McDonald was able to see Mr Munday from the time he left the area near the dump and driving over to where Mr Munday was refuelling his chainsaw.

102 Regard also had to be had to the fact that Mr McDonald was driving a bulldozer and that Mr Monday did not have any machine operating. His chainsaw was being refuelled so there was no noise that would interfere with Mr Munday's capacity to hear the bulldozer coming across the area of the coupe towards his position at the stump where he was refuelling. If the system had been complied with Mr McDonald could have been stopped from coming any closer which would have been effective to stop Mr McDonald. That was the system and Mr McDonald's evidence is that he would have complied with such a signal. When Mr McDonald got to the site of the stump, the system again was not followed because the tree was still up and the only person who knew that was so was the faller. He was still in control of the work area and it was still his responsibility - a responsibility in which he had been trained. For reasons unknown, he said nothing to Mr McDonald. He was required under the system to say something as simple as "There's a tree still standing" or " I haven't completed pushing over that tree" or " I need assistance". This was not complex, the system accommodated that response and was operating, but Mr Munday did not make that communication. The requirement of the faller to communicate was derived from the accreditation process: the faller was responsible for the tree until it was on the ground once he commenced; the faller could stop a person entering his work area until it was safe and that had to be communicated, and the faller had the ability to require machine assistance and would have to communicate to have it provided. As a result of these elements, a faller knew he had to communicate at all times while the tree was up. Mr Munday had previously used assistance in bringing down a tree, so it was not a lack of knowledge of what assistance could be used when confronted with that difficulty.

103 The prosecution's submissions that no eye contact was made by Mr McDonald was not an accurate reflection of the evidence. Mr McDonald gave evidence of the system of making eye contact with the faller and waiting for an appropriate signal before entering the work area. All Mr McDonald was saying was that after such a long period of time he could not recall whether he made eye contact back in November 2001. Mr McDonald said he could see Mr Munday and therefore Mr Munday could see Mr McDonald. Mr McDonald was driving a bulldozer which should have put everybody on notice where the bulldozer was and that it was approaching Mr Munday. Further, the system operated as recognised by Mr McDonald's evidence: if he had been told by Mr Munday that the tree had been scarfed and backcut but had not fallen, he would not have gone into the area in front of the tree nor would he have allowed Mr Munday go there. That was how the system operated.

104 The defendant accepted that either Mr Munday made a mistake about the state of the tree, or that he was negligent, careless or forgot - they were the options, but it would never be known which of them applied to Mr Munday on this occasion. This was not a case where there was not a system or where inadvertence or carelessness took somebody into an area that had not been contemplated and had not been accommodated in the system. This system allowed for the very circumstance of this tree staying up and provided a safe means to deal with it. The defendant in this case had done everything it could do and there was nothing causally related to the defendant employer in the circumstances that exposed a person to risk. If the system in operation had been complied with, nobody was exposed to risk. If a tree did not fall and was not otherwise brought down, then the area was flagged off and nobody was exposed to a risk.

105 The components of the system were, firstly, that a professionally accredited faller was required to ensure that no person came within two tree lengths of the tree being worked upon. The trees were worked in a pattern so they were felled from the bottom of the area up the hill, thereby creating the ability of bringing the tree down into clear ground. That overcame other potential risks to safety. The faller was to make an assessment of the tree, to identify its characteristics so as to decide whether to fall it or not, and how he might fall it if that was the final decision. The system then required the faller to utilise his chainsaw to scarf and backcut the tree but, before doing so, putting in an escape route at an angle of 45 degrees uphill if possible. In the cutting process, the faller could choose to use wedges but the faller was trained (as was Mr Munday) to be able to direct the tree to a particular area. If there was a problem, the system laid down what must be done: the faller had to keep his eye on the tree, he had to withdraw and he had to seek the assistance of the bush boss for machine assistance, or some other step to bring the tree down and, if that was not possible, then to flag off the area and advise that nobody was to be allowed into that area until the tree came down naturally. The evidence demonstrated that Mr Munday was trained in these techniques and that he was competent and experienced in the use of those techniques. This was not a case where a person with a level of inexperience was required to work in circumstances where he faced the unexpected.

106 The system ensured the safety of workers, firstly, by itself being a safe system and it ensured that it would be adhered to as a system by the process of checking and assessing. In addition, the system provided that nobody would walk into a faller's work area if the faller could not be seen. This and other aspects of the system were all set out in WorkCover's Code of Practice in relation to snigging logs. That was also reflected in industry training.

107 The defendant also relied upon the defences available under s 28 of the Act. It was submitted that, in the circumstances of this case, there was nothing more that was reasonably practicable for the defendant to do in order to comply with the Act. The system provided for communication and provided for the means to safely deal with a tree that would not fall. It was not a question of adding to the persons who might supervise. It was not appropriate under the system for another person to be working within two tree lengths of the working area. An objective determination had to be made as to what measures were reasonably practicable in the circumstances of the case. For example, it was no answer to say that a failure to verbally communicate or communicate by hand signals could have been achieved (and safely achieved) by the use of radios. All that had to be said by Mr Munday on this occasion was not to come into the area, or that the tree had been scarfed and backcut but had not fallen.

108 If a breach had been established in this matter then it was a technical breach. On the facts, nothing more could have been done by the defendant. It was accepted that, amongst the experienced people who had been called to give evidence, it was not put to any of them, and none of them gave evidence that nothing further could be done. The defendant relied upon an analysis of the evidence to make good its submission that a s 28 defence had been established.

109 In relation to the defences, the prosecutor submitted, firstly, that if the practice that an assessment would be stopped because a faller did not have his axe, then it was practicable for work to be stopped because he did not have an axe. Secondly, it was clearly not impracticable for the bush boss to take 30 seconds at the beginning of the day to ensure that a faller had his axe before allowing the faller to commence work. Thirdly, it was clearly reasonably practicable for Mr Munday to notify the bush boss of his intention to commence falling a tree and that, when he had completed that task, there was nothing in the evidence to suggest that it would not have been practicable for the use of a radio during the work so that the bush boss could be informed of the work being performed, or that the tree could not be brought down and/or that the faller did not have his axe to assist in bringing it down. In this case, two industry experts of great experience said that it was not safe to work without an axe. There was nothing stopping Mr Munday having his axe or being provided with another one. There was also nothing in the evidence to establish that it was impracticable to flag the area when the tree did not come down and to notify everyone that they were not to come into that area until the tree fell.

DELIBERATION

110 The defendant has relied upon the accreditation system including the training to obtain accreditation, daily visits by the Forestry officer, monthly or two monthly checks by a senior representative of ELITT and the recent introduction of a safety manual with the requirement for toolbox meetings and the engagement of an occupational health and safety consultant as providing a safe system of work but one which, for reasons unknown, was not complied with by Mr Munday on the day of this incident. In terms the defendant does not allege a casual act of negligence by Mr Munday on the day in question or even carelessness on his behalf: he was properly trained for the task to be performed and that training instructed him what was to happen when a tree that had been scarfed and backcut had not fallen - for unknown reasons Mr Munday did not follow those steps. The question arises whether this simple approach of the defendant is sufficient to meet the obligations of the Occupational Health and Safety Act A Full Bench of the Commission in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] 100 IR 64 at [37] referred to the judgment of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting where his Honour said:

... 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 inadvertence, inattention, haste, and even foolish disregard of personal safety as well as foreseeable technical risks in industry.

Although that judgment deals with an appeal as to penalty the general thrust of Bauer J's statement has been accepted as an accurate description of the obligations arising under the Act (see also WorkCover Authority (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [45], [46]; Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15]).

111 In the present case three workers engaged in the dangerous task of felling large trees were required by the defendant's safety manual to work as a team. One of the three, Mr Anthofer, was employed as the excavator operator and was storing the logs at a dump site some little distance from where the actual tree felling was taking place. In the immediate tree felling area the responsibilities for the safety of the operation lay directly with Mr McDonald as the workplace supervisor and/or bush boss and Mr Munday. According to the evidence there was no doubt that the ELITT training and the industry practice was that a faller must have an axe and at least two wedges with him at all times during the task of falling a tree. That was confirmed by Mr McDonald, Mr Ah Sam, Mr Brown and Ms Hansen. Similarly, it was the evidence of these experienced people that this dangerous task was carried out by using a series of simple but well understood signals so as to ensure that nobody came into the feller's work area (being at least two tree lengths) without having notified the faller of the desire to enter the area and having received the faller's approval to enter the area. Although the evidence was not universal to all witnesses the evidence of the experts from ELITT (and Ms Hansen) was that the axe and wedges were regarded as part of a faller's personal protective equipment and were to be with a faller during assessments and accreditation otherwise those exercises could not take place. On this particular day none of those accepted practices and obligations were complied with: in such circumstances can it be said there was a safe system or a safe system that was maintained such as to meet the requirements of the Act?

112 In answering this question and in determining whether the prosecution case has been established, the particulars of the charge require close attention. While the charge alleges a failure to ensure the health, safety and welfare of Mr Munday in particular, it does encompass all employees: in the context of the work being performed on the day in question attention is focused on the activities of Mr Munday and Mr McDonald. It is to be noted that the particulars do not rely on the fatal injuries suffered by Mr Munday but focus on the system of work and its failures and omissions in relation to employees working around trees that were at risk of falling including a failure to ensure that employees did not walk into the falling path of a tree that had been scarfed and backcut and was at risk of falling. Cases such as Inspector Haynes v CI&D Manufacturing Pty Ltd & ors (1995) 60 IR 149 caution against focusing on the accident rather than on the charge as particularised.

113 The prosecution case does not single out the actions of Mr Munday but critically analyses what was done and not done by both Mr McDonald and Mr Munday as establishing the breach of s 8(1) of the Act as charged. In summary the evidence establishes that:

(a) Mr McDonald knew the previous Friday that Mr Munday had misplaced his axe and that they would look for it on the following Monday. On the Monday, in discussing what work would be performed, no mention was made by either Mr McDonald or Mr Munday of the absence of Mr Munday's axe nor was any step taken to ensure, before work commenced, that Mr Munday had a replacement axe or sledgehammer so he could sound trees for defects and effectively use the wedges. There was no rule or requirement that a faller could not commence work unless in the possession of an axe and wedges. There was a lack of consistency between the training and the defendant's safety manual as to whether the axe and wedges were part of issued personal protective equipment, although the axe did feature in the manual's safety audit;

(b) Mr Munday proceeded to the area where he was to continue falling trees taking with him his chainsaw and refuelling drums. There was no evidence that the faller was required to ensure that he had sufficient fuel for the trees planned to be felled, allowing for breaks in the work. On this day, Mr Munday had completed the falling of three trees and on the evidence had scarfed and backcut the fourth tree to a point where it was capable of falling. At this point he appears to have run out of fuel for his chainsaw and returned the short distance to the stump where the fuel had been stored for use during the day's work. There appears to have been no rule or requirement to assess the number of trees that might be brought down before the chainsaw required refuelling and cautioning against commencing the task of scarfing and backcutting a tree when there was a danger that the chainsaw fuel would run out during the felling task;

(c) after Mr Munday had brought down three trees, Mr McDonald approached the area where Mr Munday was working and noticed that he was refuelling his chainsaw. He made no mention of making eye contact with Mr Munday at this point in either his statement to Inspector Franke or in his statement to the police and was uncertain in his oral evidence whether or not he had made that eye contact. In any event, Mr McDonald did not wait for a signal from Mr Munday as to whether or not he could enter the area but made the assumption that it was safe to do so based on the fact that Mr Munday was refuelling the chainsaw. There appears to have been a further assumption made by Mr McDonald that Mr Munday must have completed the falling of the last tree before leaving that stump and returning to the refuelling point. There was no requirement at this point for Mr McDonald to ask any question about the state of Mr Munday's work and whether or not he had completed felling the last tree and, if not, what its current status was: there was no requirement for Mr Munday to inform Mr McDonald about the state of his work and whether or not the last tree worked upon had been brought down. While the training given to these employees required the bush boss and snigger driver to be in constant contact with the faller, it appears that no words were exchanged between them at this point when Mr McDonald entered the area where Mr Munday was refuelling his chainsaw.

This evidence does not speak of a complete, maintained or effectively monitored safe system of work.

114 There was some attempt in the defendant's submission to suggest that the carrying of an axe was not necessary to perform any of the tasks of the tree faller because the scarf and backcut could be put in by using a chainsaw and if the tree sat back or would not fall, it could be brought down by using the system of machine assistance. This aspect of the submission, firstly, ignores the defendant's own case that ELITT training, accreditation and its requirements was part of the system of work. That training, accreditation and system of work required a faller to have with him at all times a serviceable axe and wedges. Secondly, the defendant is in no position to pick and chose which part of the system it otherwise relies upon as being unnecessary because of other aspects of the work that may make up for the deficiency of not having an axe. Thirdly, there was a deal of evidence about the safety aspects of having an axe available to the faller. Mr McDonald's evidence was that it was "normal practice" to carry a pouch, two wedges and an axe and that the axe was always to be "within a short distance from where the faller is working". He said that the axe could be used to cut out a wedge and for other work and if a tree would not fall it would be wedged and only if it did not fall would the call be made for machine assistance. Mr McDonald agreed that it was necessary to wedge a tree if it would not fall. Mr Ah Sam's evidence was that ELITT training and practice required a faller to carry an axe and wedges "at all times" and in the immediate work area. An axe and wedges were to be kept with the faller in the area where he was cutting trees. Machine assistance would be used to bring down a tree if it could not be brought down using an axe and wedge: the training was to use the axe and the wedge first and machine assistance if that failed. Ms Hansen's evidence confirmed the normal practice was for a faller to carry an axe/hammer and wedges "at all times". She had asked Mr Munday in September where his axe was because it was normal practice to have the axe and was regarded as part of the faller's personal protective equipment. Her evidence was that the axe was used to help guide trees to fall in the right direction when they proved difficult to bring down. Mr Brown agreed with Mr Ah Sam that ELITT training was that a faller was to have an axe or hammer and at least two wedges with him at all times and in the immediate work area. This requirement was for the faller's safety since a faller would not know, at any given time, when he would need an axe to assist in bringing down a tree and that an axe could be used after scarfing and the backcut had been placed in the tree. The axe was required to drive a wedge in further; the sharp end of the axe might be required if a tree still did not fall after the wedge had been hit with the axe. Mr Brown also assessed the condition of all equipment including axes as there was no point in having an axe so old that it could not drive in a wedge. He stated that a wedge was used in directional falling to direct the tree away from the filter strip. The State Forest's Chainsaw Operator's Manual referred to checking for defects in a tree before felling it by sounding it with an axe. The manual also spoke of preparing the area around the tree by clearing the base including deadwood and preparing an escape route using an axe or a chainsaw. The manual also described the method of felling problem small trees with the use of a wedge and a felling bar. That evidence clearly establishes the important part the axe and wedges play in the safe system of work required by State Forests and promoted through ELITT training and accreditation.

115 It is of some significance that Mr McDonald offered Mr Munday the use of a sledgehammer on the Monday after they were unable to locate the axe that had been lost the previous Friday. It seems apparent from that offer that Mr McDonald recognised the importance of having an axe or hammer available to properly carry out the task of wedging. In September 2001, Ms Hansen had noted that Mr Munday was working without an axe because the handle had broken. She said that it was common practice for a broken axe handle to be replaced by the next log truck but gave no further detail about that practice. It is implicit in that statement that a faller should always be in possession of an axe and that it would be replaced if the axe handle broke. There was no evidence of a system of keeping a spare axe to meet such circumstances which were apparently frequent enough to establish a practice for their replacement through the delivery of a new axe by the next log truck. There was no evidence as to the frequency of visits of a log truck. Certainly, neither Mr McDonald nor Mr Munday took steps for a new axe to be brought to the work site by a log truck. Mr Brown had formed the view that on the day in question Mr Munday made some attempt to use the wedge to bring down the tree that ultimately fell on him but that he did not have an axe to drive the wedge. He came to that view because a wedge was found near the stump of the tree and was not in Mr Munday's pouch. This evidence further confirms the important role of the axe in a safe system of tree felling.

116 I accept that the defendant had in operation a system of work that addressed safety and the risks attendant upon work of this nature in the forest: the issue is the effectiveness of that system. The evidence suggests that the training and accreditation system relied upon both written and unwritten rules and operated upon some assumptions about appropriate practice in the forest when felling trees. As detailed above there were gaps in the defendant's system even though it relied upon the training and accreditation of ELITT, the supervision of the forestry officer and the assistance provided by random visits by ELITT and more recently the consultant's toolbox talks. Much of the defendant's manual spoke in generalities rather than specifying what was to be done in certain circumstances: this is to be contrasted with the Chainsaw Operator's manual produced by State Forests which sets out step by step what was to be looked for, what was to be done, what dangers to look out for and how to address those dangers. It may well have been that this particular accident was in part due to the confidence which follows upon undertaking this dangerous task day in and day out and the culture of bush mateship which recognises the worthiness of the individual rather than the precise particulars of a safe system of work. For example, Mr McDonald had noticed an earlier incident at a log pile where Mr Munday was in danger of being injured by rolling logs. That incident does not seem to have been the subject of a toolbox talk, a direction about such work or a reminder about the dangers of performing work at the dump. The broken axe incident, although reported, does not seem to have prompted any review through a toolbox meeting or any other system of audit or review leading to the carrying of an additional axe as an emergency replacement or an analysis of the effectiveness of a log truck bringing in another axe in such circumstances. On the Monday, Mr McDonald checked his own equipment as part of his safe work practices but did not check Mr Munday's equipment. At the beginning of work that day he did not know if Mr Munday had retrieved the axe or not but he did not see the axe. In those circumstances, he made no provision for ensuring that Mr Munday had an axe or a hammer. Nor as bush boss did he (or was he required to) counsel the worker and emphasise the importance of the faller having an axe at all times and emphasise that the axe was part of the faller's personal protective equipment, just like his helmet, bush boots and wedges.

117 The defendant's approach, that there was a safe system but one that was simply not followed, requires a restatement of some now well established principles. Firstly, the obligation imposed by the Act on the defendant is to "ensure" the health, safety and welfare of its employees. The Act creates an absolute or strict liability on employers. (It may well have created a true hybrid having regard to the structure of the Act). The duty to ensure an employee's safety given the ordinary meaning of that word, is an obligation to guarantee secure or make certain the employee's safety (Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467). It has been said in numerous cases that this is achieved not only by remedial actions after a problem has been identified but by being diligent and maintaining constant vigilance to take all practicable measures to ensure safety in the workplace WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80; Ferguson v Nelmac Pty Ltd (1999) 92 IR 188). That duty is not discharged by simply creating a system of work which requires safe working or by leaving it to others by way of delegation to either establish the system and/or apply it. The employer is required to be active in ensuring that the system is in fact followed in the workplace and in doing so must take into account the everyday experience that there will sometimes be encountered human errors including inadvertence, inattention, haste and even foolish disregard of personal safety by those employees. In the present case what was the point of training a faller to always have an axe and wedges on the job "at all times" if that requirement was not enforced at least through the bush boss and if necessary further by report to the Forestry supervisor, the ELITT representative conducting random inspections or by raising the issue with the consultant and/or at a toolbox meeting. What was the point of training that emphasised communication at all times between the bush boss and the faller and the system of signals to be adopted before entering the faller's area if those practices were not enforced. The employer is not being diligent and active in preventing risks to safety in the workplace if the bush team is permitted to stray from those directions on the basis they are all experienced people and otherwise good people and good workers. As the Full Bench pointed out in Riley v Australian Greater Hire Pty Ltd 103 IR 143 (at 15), the obligations imposed by the Act are not diminished because of error or negligence by an employee although those matters may reflect on the degree of culpability of the employer in the sentencing exercise.

118 In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the majority judgment at [48] emphasised that an employer must guard against acts of inadvertence to the fullest extent practicable and noted the observations of the Full Bench in Riley's case at [16] that it was important for employers to actively ensure that instructions given were both sufficient for and complied with by employees. The employer was to ensure that procedures and instructions were actively and positively complied with by employees. The obligations of the Act were not satisfied by simply giving instructions because the Act imposed upon employers positive duties in relation to ensuring safe systems of work which extended to ensuring that instructions were carried out.

119 In two cases, WorkCover Authority of New South Wales (Inspector Keelty) v Police Service of New South Wales (No 2) (2001) 104 IR 268 and O'Sullivan v The Crown in Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 36 the Court dealt with submissions arguing that violent and unpredictable acts could not be entirely eliminated and were due to unknown causes independent of the defendant. In those cases, the Court pointed to the fact that the defendant was well aware of the type of risk which could arise in the course of the employment and that it was inappropriate to adopt an approach of reasonable foreseeability of a risk having regard to the obligation under the Act to ensure the health, safety and welfare of employees at work and the strict or absolute nature of the liability imposed by the Act. In the present case, the danger of falling trees was at the heart of the entire operation and the purpose of training and accreditation for working in the industry. The defendant could not be ignorant of the possibility that some of the practices and instructions expected of the team may not be followed. As indicated earlier, there were, in any event, gaps in the defendant's instructions which in part relied upon training provided by others and what was described as unwritten rules. The ELITT random inspections were carried out every month or two and there was no direct evidence as to the nature and extent of the supervision and direction in relation to safety exercised by the supervising forestry officer. Further, the defendant's case concentrated on omissions by Mr Munday but ignored the serious departures from the system by Mr McDonald, where both were experienced workers. Having regard to these matters I am satisfied that the prosecutor has established a breach of s 8(1) of the Act by the defendant as particularised and has established that breach to the requisite standard.

120 It then becomes necessary to consider the defendant's submissions in relation to the defences available under s 28 of the Act. The defendant relied upon both limbs of the defence provisions, arguing that it was not reasonably practicable to comply with the provisions of the Act in relation to the breach or that the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provision. In WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at [72] and [73] the Full Bench noted in relation to s 53 of the previous Act that the defendant had failed to adduce sufficient evidence or to show that the steps required to avoid or overcome the risk to safety in the workplace outweighed those risks. The Full Bench rejected the submission that the prosecutor had not introduced any evidence to establish that there was an obvious and foreseeable risk which the respondent should have considered required attention as the defendant bore the onus of showing the defence under s 53 was available. The burden of proving the defence beyond reasonable doubt remained with the prosecution but in relation to the defence the defendant bore the burden, in an evidentiary sense, to adduce evidence capable of showing that it was entitled to the benefit of that defence. The same points were made by the majority of the Full Bench in WorkCover Authority (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [101].

121 In the defendant's submission, there was no place here for an added level of supervision considering the workplace rule that required the faller to work in an area by himself and to prevent entry to that work area until the tree had fallen and was safe to do so. It was accepted, however, in relation to the experienced witnesses who gave evidence, that it had not been put to them and none of them gave evidence that nothing further could be done to ensure safety. It is difficult in those circumstances to see how the defences could be made out. There is force in the prosecutor's submission that if the practice and assessment of a faller could be stopped because he did not have his axe then it was practicable for work to be stopped because he did not have an axe: further it was clearly not impracticable for the bush boss to take a short time at the beginning of the day to ensure that a faller had his axe before allowing the faller to commence work. It was also reasonably practicable for the faller to notify the bush boss of his intention to commence falling a tree and to communicate when he had completed that task. It might be added that there was nothing preventing Mr McDonald from waiting for the appropriate hand signal or communication before entering Mr Munday's work area or asking Mr Munday if he had completed falling the tree on which he was last working. Clearly enough the defendant relied on the system of training and accreditation of ELITT and State Forestry supervision as providing a safe system and rhetorically asks "what more could be done?". A system of work however which is not effectively enforced is not a safe system of work. In this case the only two members of the work team who were involved in this dangerous task both took steps which were not endorsed or approved under the workplace instructions or industry practice. The employer was obliged to ensure that its system of monitoring that was substantially undertaken by bodies external to the defendant, was effective. There was no evidence of the defendant itself undertaking this important task, being involved directly with others in this task (as suggested by the safety manual) or why it was impracticable to do so. There was no evidence to support the conclusion that nothing else could be done to enforce the system. Evidence of the system in use, while constituting a step in that direction, does not alone constitute evidence that it was not reasonably practicable for the defendant to comply with the Act or that the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to made provision. In those circumstances the defendant has failed to make out either of the defences available under s 28 of the Act.

122 Having regard to these matters, the prosecution has established a breach of s 8(1) of the Act as particularised in the charge. The parties will be heard at a convenient time on the question of an appropriate penalty.

LAST UPDATED: 09/02/2005