B.M.D. Constructions Pty Ltd v Nicholson [2026] QDC 5
DISTRICT COURT OF QUEENSLAND
CITATION: B.M.D. Constructions Pty Ltd v Nicholson [2026] QDC 5
B.M.D. Constructions Pty Ltd
(appellant)
v
Simon Nicholson (Work Health and Safety Prosecutor)
(respondent)
FILE NO/S: 1432/25
DIVISION: Appellate
PROCEEDING: Notice of appeal
ORIGINATING
COURT:
District Court at Brisbane
DELIVERED ON: 30 January 2026
DELIVERED AT: Brisbane
HEARING DATE: 7 October 2025
Further material received 6 November 2025.
JUDGE: Grigg DCJ
ORDER: 1. Appeal dismissed
2. The appellant is to pay the respondent’s costs of and
incidental to the appeal on a standard basis
3. I will hear the parties in relation to sentencing.
CATCHWORDS: INDUSTRIAL LAW – WORK HEALTH AND SAFETY –
DUTIES AND LIABILITIES – MANAGEMENT OR
CONTROL OF WORKPLACE – where a worker was injured
while working on the appellant’s construction site – where the
appellant was charged with a failure to comply with a statutory
duty imposed under section 19(1) of the Work Health and
Safety Act 2011 (Qld) contrary to section 32, in circumstances
where that failure resulted in an injury to a worker – where
there is no dispute that the appellant owed a duty to the worker
and the worker suffered a serious injury at the worksite – where
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the issue in dispute is what steps does the appellant’s duty
require the appellant to implement under the Work Health and
Safety Act 2011 (Qld) – whether there was a breach of that duty
which resulted in or exposed the worker to that risk of injury.
MAGISTRATES – APPEAL AND REVIEW –
QUEENSLAND – OTHER CASES – where the Magistrate at
first instance found the appellant guilty – where the appellant
contends that the learned Magistrate erred in law and in fact by
finding that the particularised control measures were
reasonably practicable and should have been implemented by
the appellant to satisfy its duty under the Work Health and
Safety Act 2011 (Qld) – whether the prosecution (respondent)
failed to prove the charge beyond reasonable doubt.
LEGISLATION: Justices Act 1886 (Qld) ss 222, 223, 225
Work Health and Safety Act 2011 (Qld) ss 14, 15, 17, 18, 19,
28, 32, 274
CASES: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246
CLR 92
Dansie v The Queen [2022] HCA 25; 274 CLR 651
DeVries v Australian National Railways Commission [1993]
HCA 78; 177 CLR 472
Edwards v Noble [1971] HCA 54; 125 CLR 296
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Genner Constructions Pty Ltd v WorkCover Authority of New
South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
Griffiths v State of Queensland [2010] QSC 290; (2010) 197
IR 447
House v The King [1936] HCA 40; 55 CLR 499
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA
117
M v the Queen [1994] HCA 63; 181 CLR 487
McDonald v Queensland Police Service [2017] QCA 255;
[2018] 2 Qd R 612
NK Collins Industries Pty Ltd v President of the Industrial
Court [2014] 2 Qd R 304
R v Commercial Industrial Construction Group Pty Ltd
[2006] VSCA 181; (2006) 14 VR 321
R v Irvine [2009] VSCA 239; (2009) 25 VR 75
R v Waters [2023] QCA 243
Safe Work NSW v Wollongong Glass Pty Ltd [2016] NSWDC
58; (2016) 257 IR 351
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205
CLR 304
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Williamson v Betterlay Brick and Block Laying Pty Ltd
[2020] QCA 52; (2020) 3 QR 594
COUNSEL: C J Murdoch KC for the appellant
A Freeman KC and E Sargent for the respondent
SOLICITORS: McCabes Lawyers for the appellant
Work Health and Safety Prosecutor for the respondent
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1
Introduction
[1] Mr William Sills (Mr Sills) was injured in 2020 while working at the appellant’s
(BMD) construction site. At the time Mr Sills was injured, he was assisting another
worker, Mr Joshua Dawson, (Mr Dawson) to lay out geofabric in an excavation hole
when he was struck by a grader operated by Mr Jaimie Page (Mr Page) (Incident).
[2] Following an investigation into the Incident, the Work Health and Safety Prosecutor
(WHSP), by way of complaint and summons, charged BMD with a failure to comply
with a statutory duty imposed under section 19(1) of the Work Health and Safety Act
2011 (Qld) (WHS Act), contrary to section 32 of the WHS Act, in circumstances
where that failure resulted in an injury to a worker.
[3] Following a trial in the Magistrates Court, BMD was found guilty and sentenced with
a penalty of $100,000 plus costs with no conviction recorded.
[4] Mr Page was also charged with breaching his duty pursuant to section 28(b) of the
WHS Act for failing to take reasonable care that his acts or omissions do not adversely
affect the health and safety of other persons. Mr Page was found not guilty.
[5] On 27 May 2025, BMD filed a notice of appeal against the decision of Magistrate
Nolan delivered on 14 November 2024 in accordance with section 222 of the Justices
Act 1886 (Qld) (Justices Act).
[6] BMD contends that:
1. the prosecution failed to prove the charge beyond reasonable doubt;
2. control measures particularised by the prosecution were not reasonably
practicable measures of ensuring health and safety pursuant to sections 17, 18
and 19 of the WHS Act;
3. the learned Magistrate erred in law and in fact by finding that the particularised
control measures were reasonably practicable and should have been
implemented by BMD to satisfy its duty under the WHS Act; and
4. the order of Magistrate Nolan at the Brisbane Magistrates Court on 14
November 2024 ought to be set aside and a new order made acquitting BMD of
the charge.
[7] There was no dispute on the evidence that BMD had comprehensive policies and
procedures in place to manage safety and risk. The material demonstrates BMD was
cognisant of the risk in relation to the scenario which occurred. The evidence also
demonstrated the workers involved in the Incident had had safety training and that Mr
Sills and Mr Dawson were aware of the safety measures to be implemented.
[8] The issue is whether the measures particularised by WHSP as measures which should
have been implemented, were either not taken or not reasonably practicable to have
been taken. As identified below the authorities note that the duty under section 19 of
the WHS Act is not an absolute duty to provide an entirely risk free environment.
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2
[9] Section 17 of the WHS Act requires an attempt to eliminate the risk, or if that cannot
be achieved, minimise the risk as far as reasonably practicable.
[10] There is no dispute about the duty owed by BMD and that an individual suffered a
serious injury at BMD’s worksite. The issue is what steps did that duty entail BMD
to implement and whether there was a breach of that duty which resulted in or exposed
the worker to that risk of injury.
[11] I find that the learned Magistrate’s decision that BMD should have implemented the
supervision/spotting of workers, discloses no legal or factual error and no error in
reasoning. The appeal is therefore dismissed.
Background to the Charge
[12] The following facts were jointly admitted at trial (Admissions):
1. B.M.D Constructions Pty Ltd (“BMD”) is an Australian proprietary company
limited by shares, registered with the Australian Securities and Investment
Commission on 20 March 1980.
2. BMD operated a civil construction business.
3. BMD entered a contract with the Carmichael Rail Network Pty Ltd (‘CRN’),
a subsidiary of Adani Australia, to construct a railway line and related
infrastructure connecting the Carmichael Coal Mine to the existing rail network
(‘the project’).
4. As part of the project, local public roads were required to be upgraded,
including Bulliwallah Road at Belyando.
5. BMD entered a Labour Hire Contract with Protech Personnel Pty Ltd
(‘Protech’) for the provision of labourers to complete the project.
6. William Alan SILLS was employed by Protech and assigned to the project as
a labourer. He commenced work at the project on 5 March 2020.
7. BMD entered a contract with Farrells Earthmoving Pty Ltd (‘Farrells’) for
the hire of plant and equipment.
8. As part of that contract, Farrells provided a John Deere Grader to BMD.
9. As part of that contract, Farrells also provided plant operators to BMD.
10. Jamie PAGE was a plant operator assigned to the project by Farrells.
11. On 8 June 2020, William SILLS sustained the following injuries:
a. Undisplaced fracture of the medial mallelus of the right ankle;
b. 15 centimetre laceration to the right calf muscle that extended to the
subcutaneous tissue; and
c. The laceration was sutured with 32 sutures.
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12. William SILLS’ ankle was plastered and fitted with a ‘moon boot’.
[13] Following the Incident, an investigation was undertaken by Workplace Health and
Safety Queensland (WHSQ).
[14] The WHSQ investigation led to BMD and Mr Page being charged.
[15] By its particulars, amended prior to the commencement of the evidence at trial, the
relevant “hazard” at the BMD worksite was particularised as (Hazard Risk):
“…the risk to pedestrian workers from being struck by moving plant.”
[16] The WHSP alleged BMD should have implemented the following control measures
(Particularised Control Measures) to minimise the Hazard Risk:
“The defendant company should have eliminated or minimised the risk to workers from
the hazard by:
a. Instructing the mobile plant operator to stop grading until pedestrian
workers had placed the geofabric in the excavation and moved away;
and/or
b. Implementing exclusion zones within its workplace that separated
pedestrian workers from moving plant, for example implementing
barricades that delineate work areas for pedestrian workers and areas
where moving plant is operating; and/or
c. Implementing spotters to observe the activity being undertaken by moving
plant and pedestrian workers to ensure pedestrian workers were not placed
at risk of being struck by operating plant; and/or
d. Instructing, training and supervising workers in the safe systems of work
for operating mobile plant within the workplace as set out at Part 3.3 and
3.4 of the Managing the risks of plant in the workplace Code of Practice
2013 and its Safe Work Method Statement number 005 General
Earthworks to ensure developed systems for work were adequate to
manage the risk to pedestrian workers, were communicated to such
workers and that such systems were being complied with; and/or
e. Instructing the pedestrian workers to stop the activity of placing the
geofabric into the excavation until the mobile plant operator had finished
grading activities in the area of the excavation and moved away a Safe
distance; and/or
f. Providing workers with two-way radios and directing them to use those
radios to communicate with each other where moving plant is operating
in the vicinity of pedestrian workers.”
[17] The WHSP contended the failure to implement any of the Particularised Control
Measures constituted a breach of the WHS Act.
[18] The evidence at the trial comprised of:
agreed documentary evidence;
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4
the Admissions;
oral evidence called by the WHSP from:
o workers – Mr Sills, Mr Dawson and Mr Daniel Leedy; and
o WHSQ officers – Mr Shane Wright, Mr Gavin Wesche and Mr Graeme
Hogan.
[19] There was no evidence:
led by BMD;
from Mr Page, the operator of the grader that struck Mr Sills; or
from an independent workplace health and safety expert.
Appeal Process
[20] A person who is aggrieved by a decision made by a justice in a summary way on a
complaint for an offence or breach of duty, may appeal within 1 month after the date
of the order to a District Court judge under section 222 of the Justices Act.
[21] Section 223(1) sets out the hearing procedure on appeal:
(1) An appeal under section 222 is by way of rehearing on the evidence (original
evidence) given in the proceeding before the justices.
[22] The powers the Court has on appeal are set out in section 225 as follows:
225 Powers of judge on hearing appeal
(1) On the hearing of an appeal, the judge may confirm, set aside or vary the
appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to
whoever made the order or to any Magistrates Court with directions of any kind
for the further conduct of the proceedings including, for example, directions for
rehearing or reconsideration.
(3) For subsection (1), the judge may exercise any power that could have been
exercised by whoever made the order appealed against.
(4) An order made under subsection (1) has effect, and may be enforced in the same
way, as if it had been made by whoever made the appealed order.
[23] On appeal, the onus is on BMD to demonstrate that there has been some legal, factual,
or discretionary error made by the court below.1
[24] It must be shown that there has been some error either in acting upon irrelevant matters
or failing to take into account a material consideration.
1 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; McDonald v Queensland Police Service [2017] QCA
255; [2018] 2 Qd R 612, at 627 [47].
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[25] The appeal must be determined based on the evidence and proceedings presented
before the Magistrates Court. It is important to keep the following applicable
principles in mind in an appeal hearing, as explained by the High Court in Edwards v
Noble [1971] HCA 54; 125 CLR 296, at 304 [17]:
(a) an appellant is not successful on appeal simply because an appeal judge may
have found differently;
(b) the appeal is one on fact as well as on law;
(c) a rehearing is not a retrial of the issues:
“The question is not whether the appellate court can substitute its view of the
facts which, of course, it is empowered to do: but whether it should do so”
(d) an appellant court ought not reverse a finding of fact unless convinced it is
wrong;
(e) “If that finding is a view reasonably open on the evidence, it is not enough in
my opinion to warrant its reversal that the appellate court would not have been
prepared on that evidence to make the same finding. Merely differing views do
not establish that either view is wrong”.2
[26] On a rehearing such as this, where findings of fact based on the trial judge's
observation of the witnesses are challenged, the appeal court can be at a disadvantage,
but it is still required to weigh the conflicting evidence and draw its own inferences
and conclusions.3 The question is “whether the inference has been proved beyond
reasonable doubt, not whether any particular fact has been proved beyond reasonable
doubt... Ordinarily in a circumstantial case, guilt is inferred from a number of
circumstances —often numerous —which taken as a whole eliminate the hypothesis
of innocence. The cogency of the inference of guilt is derived from the cumulative
weight of circumstances, not the quality of proof in each circumstance.”4
[27] With these principles in mind, I turn to consider the grounds of appeal.
Grounds of Appeal
[28] The grounds of appeal are as follows:
1. The learned Magistrate erred in law and, in fact, by finding that the
Particularised Control Measures were reasonably practicable measures, and
should have been implemented by BMD to satisfy its duty under the WHS Act.
(a) the learned Magistrate's finding that BMD ought to have instructed the
mobile plant operator to stop the grading activity until the pedestrian
workers had placed the geofabric in the excavation and moved away a safe
2 See also House v The King [1936] HCA 40; 55 CLR 499 at 505.
3 DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 480 .
4 R v Waters [2023] QCA 243, at [139].
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6
distance before recommencing grading activities, is unreasonable and
not supported by the evidence:
(i) The learned Magistrate found that the workers were trained in
BMD's comprehensive safety systems.
(ii) The learned Magistrate found that the workers followed those
comprehensive safety systems prior to the incident occurring, when
a pedestrian worker contacted the plant operator to cease work while
the geofabric was being laid and the plant operator ceased work.
(iii) The learned Magistrate found the plant operator only recommenced
the grading activity after receiving the approval to recommence
from one of the pedestrian workers, notwithstanding that the
geofabric was still being laid in proximity of the plant.
(iv) No evidence was led by the Prosecution regarding the factors the
learned Magistrate was required to apply to decide the matters set
out in ss 17, 18 and 19 of the WHS Act.
(b) The learned Magistrate’s finding that BMD ought to have implemented
exclusion zones within its workplace that separated pedestrian workers
from moving plant, for example implementing barricades that delineate
work areas for pedestrian workers and areas where moving plant is
operating, is unreasonable and not supported by the evidence:
(i) The learned Magistrate erred by inferring that steps taken by BMD
to preserve the incident scene pursuant to its obligations under
section 39 of the WHS Act, by erecting flagging and witches hats,
was sufficient to satisfy his Honour that the control measure was
reasonably practicable.
(ii) The learned Magistrate erred by inferring that control measures
that had been identified by BMD for other activities, was sufficient
to satisfy his Honour beyond reasonable doubt, that it was a
reasonably practicable control measure that BMD ought to have
implemented.
(iii) No evidence was led by the Prosecution regarding the factors the
learned Magistrate was required to apply to decide the matters set
out in ss 17, 18 and 19 of the WHS Act.
(c) The learned Magistrate’s finding that implementing spotters to observe
the activity being undertaken by moving plant and pedestrian workers to
ensure pedestrian workers were not placed at risk of being struck by
operation of plant, is unreasonable and not supported by the evidence:
(i) The learned Magistrate erred in finding that the implementation of
spotters was reasonably practicable by inference from the
engagement of a worker to monitor the gate access to the work
camp.
(ii) No evidence was led by the Prosecution regarding the factors the
learned Magistrate was required to apply to decide the matters set
out in ss 17, 18 and 19 of the WHS Act, in particular in relation to
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the number of pieces of plant operating across the project, the
duration and nature of activities where there may be pedestrians in
the vicinity of operating plant, the availability of other control
measures and as such, the learned Magistrate erred in finding that
such a control measure was reasonably practicable.
(d) The learned Magistrate’s finding that there was insufficient supervision to
ensure compliance and enforcement with BMD’s appropriate health and
safety procedures, is unreasonable and not supported by evidence:
(i) The learned Magistrate found that BMD had provided adequately
trained and instructed workers in relation to its appropriate health
and safety procedures.
(ii) The learned Magistrate found that the completion of a Job Hazard
Analysis card was a reasonably practicable control measure that the
supervisor ought to have checked before the work activity
commenced, though he also found that the workers knew of the
purpose of the Job Hazard Analysis, and had completed a Job
Hazard Analysis for a different work activity earlier in the day.
(iii) No evidence was led by the Prosecution regarding the factors the
learned Magistrate was required to apply to decide the matters set
out in ss 17, 18 and 19 of the WHS Act.
(iv) The learned Magistrate made findings regarding acts and
omissions of the supervisor despite the Prosecution not calling
the supervisor to give evidence.
(v) The learned Magistrate found that BMD should have ensured their
supervisors were monitoring the use of two-way radio broadcasts
and been alerted to the need to intervene when there was no response
broadcasted on the radio channel, despite that not forming part of
the Prosecution case and in the absence of any evidence concerning
whether such as step was reasonably practicable.
(e) The learned Magistrate’s finding that that BMD should have instructed
the pedestrian workers to stop the activity of placing the geofabric into the
excavation until the mobile plant operator has finished grading activities,
is unreasonable and not supported by evidence:
(i) The learned Magistrate found that the workers were trained in
BMD’s comprehensive safety systems.
(ii) The learned Magistrate found that the workers followed those
comprehensive safety systems prior to the incident occurring, when
a pedestrian worker contacted the plant operator to cease work while
the geofabric was being laid and the plant operator ceased work.
(iii) The learned Magistrate found the plant operator only recommenced
the grading activity after receiving the approval to recommence
from one of the pedestrian workers, notwithstanding that the
geofabric was still being laid in proximity of the plant.
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(iv) No evidence was led by the Prosecution regarding the factors the
learned Magistrate was required to apply to decide the matters set
out in ss 17, 18 and 19 of the WHS Act.
(f) The learned Magistrate's finding that worker ought to have been provided
two-way radios and been directed to use those radios to communicate with
each other where moving plant is operating in the vicinity of pedestrian
workers, is unreasonable and not supported by the evidence:-
(i) The Prosecution led no evidence as to the lack of availability of
two-way radios on the day of the incident.
(ii) The learned Magistrate found that communication between the
pedestrian workers and plant operator had been established using a
combination of radio contact and hand gestures.
(iii) The learned Magistrate found that the pedestrian workers were
aware of what ‘positive communications’ meant when interacting
with plant operators.
(iv) No evidence was led by the Prosecution regarding the factors the
learned Magistrate was required to apply to decide the matters set
out in ss 17, 18 and 19 of the WHS Act, in particular the number of
workers on the project, the size of the project, the availability of
radios installed in plant and machinery and as such, the learned
Magistrate erred when finding the control measure was reasonably
practicable.
[29] The primary issue for determination is the implementation of reasonably practicable
control measures with respect to the identified Hazard. The Particularised Control
Measures set out what the WHSP asserts were reasonably practicable control
measures which BMD should have had in place to deal with the Hazard Risk. The
overarching contention of BMD in its grounds of appeal is that the learned
Magistrate’s findings were unreasonable and not supported by the evidence.
[30] The question therefore is whether “the evidence was sufficient in nature and quality
to eliminate any reasonable doubt that the accused is guilty of that offence”: Dansie v
The Queen [2022] HCA 25; 274 CLR 651 at [7]. Was it open on the whole of evidence
for the learned Magistrate to be satisfied beyond reasonable doubt that BMD was
guilty?5
Relevant Laws and Legal Principles
Work Health and Safety Act 2011 (Qld)
[31] The WHS Act under section 19 places an obligation on business to ensure the health
and safety of their works as far as is reasonably practicable. Section 19 provides:
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is
reasonably practicable, the health and safety of—
5 M v the Queen [1994] HCA 63; 181 CLR 487, at 493.
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(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed
by the person;
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is
reasonably practicable, that the health and safety of other persons is not put at
risk from work carried out as part of the conduct of the business or undertaking.
…
(emphasis added).
[32] Section 19(3) sets out what an employer must ensure. It provides:
(3) Without limiting subsections (1) and (2), a person conducting a business or
undertaking must ensure, so far as is reasonably practicable—
(a) the provision and maintenance of a work environment without risks to
health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in
carrying out work for the business or undertaking, including ensuring
access to those facilities; and
(f) the provision of any information, training, instruction or supervision
that is necessary to protect all persons from risks to their health and
safety arising from work carried out as part of the conduct of the business
or undertaking; and
(g) that the health of workers and the conditions at the workplace are
monitored for the purpose of preventing illness or injury of workers
arising from the conduct of the business or undertaking.
…
(emphasis added).
[33] Whether that duty has been complied with is to be assessed objectively.
[34] The WHS Act also imposes duties on workers to take reasonable care for their own
safety. Section 28 provides:
28 Duties of workers
While at work, a worker must—
(a) take reasonable care for his or her own health and safety; and
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(b) take reasonable care that his or her acts or omissions do not adversely affect the
health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction
that is given by the person conducting the business or undertaking to allow the
person to comply with this Act; and
(d) co-operate with any reasonable policy or procedure of the person conducting the
business or undertaking relating to health or safety at the workplace that has been
notified to workers.
[35] An offence is created by section 32 for a failure to comply with a health and safety
duty. Section 32 provides:
32 Failure to comply with health and safety duty—category 2
A person commits a category 2 offence if—
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or
illness.
Maximum penalty—
(a) for an offence committed by an individual, other than as a person
conducting a business or undertaking or as an officer of a person
conducting a business or undertaking—1,500 penalty units; or
(b) for an offence committed by an individual as a person conducting a
business or undertaking or as an officer of a person conducting a business
or undertaking—3,000 penalty units; or
(c) for an offence committed by a body corporate—15,000 penalty units.
(emphasis added).
[36] Under the WHS Act, a duty cannot be transferred or delegated to another6 and more
than one duty may be imposed.7
[37] If a health and safety duty has been imposed, there is a further requirement to manage
any risks to health and safety. Section 17 provides:
17 Management of risks
A duty imposed on a person to ensure health and safety requires the person—
(a) to eliminate risks to health and safety, so far as is reasonably practicable; and
6 Work Health and Safety Act 2011 (Qld) (WHS Act) s 14.
7 WHS Act s 15.
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(b) if it is not reasonably practicable to eliminate risks to health and safety, to
minimise those risks so far as is reasonably practicable.
[38] A serious injury or illness is defined in section 36 of the WHS Act. There is no dispute
that Mr Sills suffered a serious injury as a result of the Incident.
[39] Approved codes of workplace health and safety practice may be approved by a
relevant Minister.8
Reasonably Practicable
[40] What is meant by “reasonably practicable” is explained in section 18 as follows:
18 What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety,
means that which is, or was at a particular time, reasonably able to be done in
relation to ensuring health and safety, taking into account and weighing up all
relevant matters including—
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or
minimising the risk, the cost associated with available ways of eliminating or
minimising the risk, including whether the cost is grossly disproportionate to the
risk.
(emphasis added).
[41] The majority of the High Court in Baiada Poultry Pty Ltd v The Queen [2012] HCA
14; (2012) 246 CLR 92 (Baiada Poultry), observed:9
“…The words “reasonably practicable” indicate that the duty does not require an
employer to take every possible step that could be taken. The steps that are to be
taken in performance of the duty are those that are reasonably practical for the
employer to take to achieve the identified end of providing and maintaining a safe
working environment. Bare demonstration that a step could have been taken and that,
if taken, it might have had some effect on the safety of a working environment does
not, without more, demonstrate that an employer has broken the duty imposed by s
21(2)…”
8 WHS Act s 274.
9 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [15] (per French CJ, Gummow, Hayne
and Crennan JJ).
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(emphasis added).
[42] The general propositions from the cases regarding whether something is reasonably
practicable were summarised by Gaudron J in Slivak v Lurgi (Australia) Pty Ltd
[2001] HCA 6; (2001) 205 CLR 304 (Slivak v Lurgi):10
“…the question whether a measure is or is not reasonably practicable is one which
requires no more than the making of a value judgment in the light of all the
facts. Nevertheless, three general propositions are to be discerned from the
decided cases [citations omitted]:
the phrase "reasonably practicable" means something narrower than "physically
possible" or "feasible";
what is "reasonably practicable" is to be judged on the basis of what was known at
the relevant time;
to determine what is "reasonably practicable" it is necessary to balance the
likelihood of the risk occurring against the cost, time and trouble necessary to avert
that risk.”
(emphasis added).
[43] In Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52; (2020) 3
QR 594, the Court of Appeal noted that:11
1. in determining what is reasonably practicable there must also be consideration
of the ways “to eliminate or minimise the risk” (as set out sections 18(d) and (e)
of the WHS Act);
2. a restrictive interpretation of the nature of the duty imposed
by s 19(2) would not promote the object of the legislation which is to secure
the health and safety of workers including by “protecting workers and other
persons against harm to their health, safety and welfare through the elimination
or minimisation of risks arising from work”; and
3. what is reasonably practicable will be dictated by an assessment “of the extent
of the risk and the available ways of eliminating or minimising the risk and the
cost of such measures, including whether the cost is grossly disproportionate to
the risk”.
[44] For a control measure to be reasonably practical to ensure safety, it must be a measure
which is within the power of BMD to control, supervise and manage: Slivak v Lurgi
at [37].
[45] The WHSP cited R v Irvine [2009] VSCA 239; (2009) 25 VR 75 (Irvine) and R v
Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR
321 (CICG) as authorities for the proposition that there must not only be a safety
management system but an active implementation of that system which involves
monitoring and supervision. Training and safety manuals alone are insufficient to
ameliorate the known/identified risks and hazards that may present at a worksite. The
10 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [53].
11 Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52; (2020) 3 QR 594 at [49] – [50].
-- 15 of 49 --
13
manuals and system identify the known reasonably practicable measures that can be
taken to minimise the risk. The recommendations in the safety manuals would serve
no purpose if it was not intended that they be followed. This is not to say that the
burden then falls on the worker alone. Beyond training and polices there must be
monitoring, supervision and compliance audits.
[46] In Irvine, the Court said an employee’s breach of safety standard “does not necessarily
reduce the gravity of a breach committed by an employer”.12
[47] In CICG (referring to obligations imposed by the equivalent to section 19(3)(e) of the
WHS Act) the Victorian Court of Appeal said (citations omitted):13
“[44] … Every employer has an absolute obligation to ensure that every employee is
adequately informed, instructed, trained and supervised, so as to enable the
employee to work ‘in a manner that is safe’. Where an accident occurs, one of
the first questions for the employer should be whether the event was the result of
the employer’s failure to provide the necessary instruction, training, supervision
and monitoring of its employees, to ensure compliance with its safe system of
work.
…
[48] … the formal adoption of a satisfactory safety management system will not have
the beneficial effects intended unless it is accompanied by the employer’s active
implementation of the system in the workplace. The employer’s duty will not be
discharged simply by creating a safe system of work. The obligation requires
the employer to ensure “that procedures and instructions are actively and
positively complied with by employees”. Not only must employees be
appropriately trained but there must be ongoing supervision and
compliance audits, to ensure that the system is being applied in
practice. Employee compliance with the safe system of work must be constantly
monitored by the employer.
[49] An employer should recognise that it is common experience that human error
will be encountered in the workplace. Error can range from inadvertence,
inattention or haste through foolish disregard of personal safety to deliberate
non-compliance with the prescribed safe system of work. In R v Australian Char
Pty Ltd and DPP v Amcor Packaging Pty Ltd, this Court has referred with
approval to the observations of Harper, J. in Holmes v R.E. Spence & Co Pty
Ltd that an employer’s responsibility for the safety of its workers will not be
discharged unless the employer takes “an active imaginative and flexible
approach to potential dangers in the knowledge that human frailty is an ever-
present reality”.”
(emphasis added).
[48] BMD accepted these excerpts from CICG was a statement of general principle.
12 R v Irvine [2009] VSCA 239; (2009) 25 VR 75 at [46].
13 R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321, at [44], [48]-
[49].
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14
[49] “It is necessary, in determining the response of a reasonable employer, not to be
swayed by the benefits of hindsight”: Griffiths v State of Queensland [2010] QSC 290;
(2010) 197 IR 447 at [59].
[50] Employers must also take into account workers' inadvertence in following
instructions. In Safe Work NSW v Wollongong Glass Pty Ltd [2016] NSWDC 58;
(2016) 257 IR 351, the Court held:
“[29] A defendant must have regard not only for the ideal worker but for one who is
careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v
Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk
of injury arising from the employee’s negligence in carrying out his or her duties
then this is a factor which the employer must take into account: Smith v Broken
Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to
foresee various acts of inadvertence by workers but defendants must
conduct operations on the basis that such acts will occur and they must be
guarded against to the fullest extent practicable.
[30] The unforeseeable behaviour of a disobedient employee may well lead to the
happening of an event that could not be reasonably foreseen and therefore was
not reasonably practical to guard against: WorkCover Authority of New South
Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
[31] In some cases, it will not be practicable to guard against a detriment to safety
occasioned by an appropriately trained and instructed employee departing
from a known safe procedure. There are limits to the degree of instruction
which can be expected to be provided to an experienced employee: Genner
Constructions at [68].
[32] Where an employer is found to have laid down a safe and proper practice and
there is no evidence that the employer failed to use due diligence to see that
the practice is observed, then a casual failure by inferior employees, even if
of supervisory rank, to observe that practice on a particular occasion will
not render the employer criminally liable for a failure to ensure
safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
at 215E.”
(emphasis added).
[51] In relation to what a person concerned knows, or ought reasonably to know about the
risk and its mitigation,14 that knowledge is to be assessed objectively based on what a
person in the position of the appellant would be expected to know.15
[52] The burden of proving the elements of the offence beyond a reasonable doubt lies with
the prosecution.
[53] There are four elements of the offence that need to be established beyond a reasonable
doubt:
1. BMD was conducting a business or undertaking;
14 WHS Act s 18(c).
15 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
-- 17 of 49 --
15
2. BMD owed a health and safety duty;
3. there was a failure to comply with that duty; and
4. the failure exposed an individual to a risk of death or serious injury or illness.
[54] There is no dispute that elements 1 and 2 are satisfied.
Submissions – Summary
[55] In summary, BMD contends:
1. the WHS Act duty does not require a defendant to take every possible step that
could be taken, but only those that are reasonably practicable for the employer
to achieve the provision and maintenance of a safe working environment;
2. a bare demonstration that a step might have had some effect on the safety of a
working environment does not, without more, demonstrate a breach of the
duty;16
3. an offence under the WHS Act arises from a defendant’s failure to take
prosecution’s particularised measures (which must have been reasonably
practicable measures) to prevent an identifiable risk eventuating. BMD referred
to:
(a) Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 553, where the High
Court held the employer’s failure to take particular measures to prevent
an identifiable risk eventuating constituted the act or omission giving rise
to the charge, and it was “the measures which assume[d] importance to
any charges brought”; and
(b) NK Collins Industries Pty Ltd v President of the Industrial Court [2014]
2 Qd R 304, 328, where the Queensland Court of Appeal held the relevant
breach “is the measure not taken, the act or omission of the employer”.
[56] The WHSP’s case is not that there were no systems of work and training, but rather
that the systems were not properly implemented or supervised on the day in question.
[57] The WHSP submits:
1. the safety documentary evidence demonstrates BMD’s awareness of the risk
and relevant control measures manage the risk;
2. the control measures identified in BMD’s safety documents were reasonably
practicable to be implemented at the relevant time; and
3. the relevant control measures were not in place at the time of the incident.
[58] As a result of the above, the WHSP submitted:
16 Citing Baiada Poultry Pty Ltd v R (2012) 246 CLR 92, at [15] and [38] (per French CJ, Gummow, Hayne
and Crennan JJ).
-- 18 of 49 --
16
1. it was open to the learned Magistrate to conclude that the defendant had failed
to comply with its duty under section 19;
2. the evidence was such that the learned magistrate safely inferred that any, all or
a combination of the particularised measures were reasonably practicable
measures within the meaning of ‘reasonably practicable’, per section 18 of the
WHS Act;
3. the learned Magistrate had regard to the relevant authorities and demonstrated
due regard to the applicable provisions of the WHS Act and principles;
4. his Honour was entitled to draw inferences from the facts established on the
evidence that particularised measures that were identified within BMD’s own
policies and procedures should have been taken but were not and that it was
reasonably practicable for BMD to have done so;
5. his Honour was correct to conclude on the evidence that BMD had failed to
implement the relevant control measures it had identified within its own safety
health management system and which were available and reasonably practicable
to it to be taken and this failure exposed Mr Sills to a risk of serious injury; and
6. the Court should refuse the appeal and order that BMD pay the WHSP’s costs
of the appeal.
Evidence Overview
[59] The learned Magistrate provided a summary of the witnesses’ evidence (I have set out
the findings in summary below).
Mr Sills’ Evidence
[60] Mr Sills was employed by Protech and was assigned to the project as an
operator/labourer. He had been a plant operator for about 20 years and held various
tickets/licences for civil construction.
[61] Mr Sills recalled starting with the BMD project in March 2020 and attending an
induction program with BMD prior to commencing work onsite. The induction
program included safety and general construction information, and being told about
work method statements, high risk activities on BMD sites, exclusion zones for
personnel and machinery, people and plant interaction, and manual handling tasks. It
also included discussion around Job Hazard Assessment (JHA) cards and how BMD
expected those cards to be filled out.
[62] There was evidence that Mr Sills had signed a Work Method Statement (WMS)
entitled Incorporating Health, Safety and Environmental Risks on 8 March 2020
acknowledging his attendance at the induction and his understanding of his
responsibility.
[63] In relation to the JHA cards, Mr Sills acknowledged he understood that:
-- 19 of 49 --
17
1. even if he had started a job, there was a need to review a JHA card for that job
if the work methods changed;17
2. the JHA cards were to be completed in the field at the time of the relevant work
activity;18
3. the completion of JHA cards in the field was normal practice and a BMD
requirement;19
4. part of the JHA process was to identify any hazards and check controls from the
WMS;20
5. all workers involved in the job/task would be involved in the JHA;21 and
6. the JHA process required workers to stop and think before they undertook a task
as to what items ought to be in place for the job to be done safely before they
started.22
[64] The learned Magistrate found Mr Sills attended a comprehensive induction program,
and he signed an acknowledgment of his understanding of his obligations before
entering the BMD worksite.23
[65] On the day of the incident, Mr Sills said:
1. he was feeling ‘exhausted’ but otherwise ‘pretty good’ having worked three
weeks straight;24
2. he attended a pre-start meeting where a discussion took place regarding ‘what
foremans (sic) would be running what sections of jobs for the day’;25
3. his section of the job that day was on Bulliwallah Road at the intersection with
Camp 6 Road;26
4. it was a ‘crazy morning’ onsite in that there was a lot of things going on
including road trains carting material in (which was a normal constant daily
activity), a tyre excavator, a dump truck and the grader up the top of the
excavation area;27
5. at the start of the day, he was allocated to be the pad foot roller operator and that
he had signed a JHA card for that job;28
17 Transcript of Trial Day 1 (dated 15 April 2024) (Transcript Day 1) pg 1-66, line 8 – 10.
18 Transcript Day 1, pg 1-66, line 18 – 20.
19 Transcript Day 1, pg 1-66, line 24.
20 Transcript Day 1, pg 1-66, line 38 – 39.
21 Transcript Day 1, pg 1-66, line 44 – 45.
22 Transcript Day 1, pg 1-67, line 9 – 12.
23 Decision of Magistrate Nolan dated 14 November 2024 (the Magistrate Court Decision), pg 14.
24 Transcript Day 1, pg 1-35, line 35 – 38.
25 Transcript Day 1, pg 1-36, line 1 – 3.
26 Transcript Day 1, pg 1-36, line 5 – 7.
27 Transcript Day 1, pg 1-36, line 12 – 23.
28 Transcript Day 1, pg 1-36, line 25 – 27 and line 35 – 37.
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18
6. the supervisor as being Mick Mac and the grader operator was Jamie Page;29
7. the supervisor as being Mick Mac instructed him to assist Mr Dawson with the
laying of the geofab;30
8. no JHA was completed by him for the geofab job;31
9. he recalled there was a lot of “rush” on the jobsite and the supervisor telling him
to “Hurry up and get that fabric in that hole”;32
10. he understood the importance of positive communications as follows: 33
“It’s communication —communication with —with —with supervisor right
through to the machine operators. We need to —we need to have positive comms
to understand what each other are doing, whether you’re on a machine or whether
you’re on the ground.”
11. in relation to availability of two-way radios for the plant operators and other
workers to use, he recalled there were as few as three or four two-way radios
for as many as 20 workers, and even those were not actually assigned, but rather
workers would go into the room where they were stored and take one if any
were available;34
12. he purchased a two-way radio for his own safety to maintain positive
communications.35
[66] The learned Magistrate noted that in addition to the use of two-way radios, another
accepted form of positive communication was the use of clearly visible hand signals.36
[67] Mr Sills gave evidence that this form of positive communication was used on the day
of the incident when he communicated by radio to Mr Page and in response, Mr Page
communicated back to him using a ‘thumbs up’ signal. Mr Sills’ evidence was that he
understood that to mean Mr Page was responding ‘Okay, I understand what you are
saying”.37
[68] In relation to the Incident, Mr Sills said the grader was facing at right angles to where
the geofabric was being rolled out, whereas Mr Dawson gave evidence that the grader
was facing the excavation area. In a contemporaneous written statement of Mr Sills
provided six days after the Incident, he stated that:38
“The grader had been working parallel to the Camp 6 access road all day but had now
changed direction to be working towards the excavated area.”
29 Transcript Day 1, pg 1-36, line 46; pg 1 – 37, line 1 – 12.
30 Transcript Day 1, pg 1-41, line 9 – 13.
31 Transcript Day 1, pg 1-37, line 14 – 17.
32 Transcript Day 1, pg 1-41, line 29 – 32.
33 Transcript Day 1, pg 1-39, line 37 – 40.
34 Transcript Day 1, pg 1-39, line 19 – 31.
35 Transcript Day 1, pg 1-39, line 31 – 33.
36 Magistrate Court Decision, pg 16.
37 Transcript Day 1, pg 1-44, line 1 – 2.
38 Magistrate Court Decision, page 17.
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19
[69] The learned Magistrate preferred the evidence of Mr Dawson as it was consistent with
what Mr Sills said in his written statement within a week of the incident.39 There is
no contention that there was an error in this finding.
[70] Mr Sills said he was told by the supervisor Mick Mac, to park his roller and assist Mr
Dawson with the geofabric placement over excavation holes that had been dug out by
a rubber wheeled excavator.40 The first was adjacent to the Camp 6 Access Road and
the second one was on the other side of that road and adjacent to Bulliwallah Road.
[71] Having completed the laying of the geofabric in the first hole, the rubber wheeled
excavator transported the 6 metre long roll of geofabric across the access road and
placed it near the second hole.
[72] Mr Sills and Mr Dawson rolled out the initial sheet of geofabric and placed it in the
hole. They were unrolling it parallel to Bulliwallah Road back towards Camp 6 Road;
that is, they were unrolling it towards the grader that was moving forwards towards
them and then backwards towards the Camp 6 Road.41
[73] Mr Dawson told the Court he then said to Mr Sills that they were working too close
to the grader and that they should turn the geofabric roll at right angles to allow them
to roll it out parallel to the edge of the hole.42 This would also ensure they were no
longer rolling it out in the direction of the grader. After they discussed this, they then
decided it was better to turn the roll of geofabric at right angles so it was running
parallel to Camp Road and adjacent to the edge of the hole they had to place it in. At
this time, according to Mr Dawson’s evidence, Mr Page had stopped the grader
because of how close they were.43
[74] This is consistent with the evidence of Mr Sills, who told the Court he decided to use
his personal two-way radio to communicate with Mr Page and tell him that they were
rolling the geofabric towards Mr Page.44
[75] The learned Magistrate found that Mr Sills’ evidence on exactly what he said to Mr
Page was unclear. Mr Sills said he received a positive hand signal back from Mr Page
to continue.45
[76] The learned Magistrate set out the unclear Mr Sills evidence:46
“Okay?--- So prior to rolling that out, I need to tell him what’s going on, you know. So
I did. And I had that — I had that two —two-way that I’d —that I’d purchased. And
— so this is the same thing again with comms —how important they are. So I could
see Jamie. He was still —still facing camp 6.
Yeah?--- And - and he gave me the thumbs-up, which in —in terms means, “Okay. I
understand what you're saying.” So we needed to roll it up towards him, you know.
39 Magistrate Court Decision, page 17.
40 Transcript Day 1, pg 1-41, line 10 – 13.
41 Transcript of Trial Day 2 (dated 16 April 2024) (Transcript Day 2), pg 2-56, line 34 – 36.
42 Transcript Day 2, pg 2-56, line 38 – 43.
43 Transcript Day 2, pg 2-57, line 1 – 3.
44 Transcript Day 1, pg 1-43, line 44 – 47.
45 Magistrate Court Decision, pg 18.
46 Magistrate Court Decision, pg 18; Transcript Day 1, pg 1-43, line 44 – 47 and pg 1-44, line 1 – 7.
-- 22 of 49 --
20
Okay. And can you recall what it was that you said over the two-way that led to the
thumbs up; what it was that you told Jamie?--- Well, we needed to —we needed to roll
this geofab out towards —towards him so —so he knows what —what our intentions
are.”
[77] Despite this evidence, Mr Sills then immediately told the Court he was not confident
that Mr Page understood what they were doing:47
“Yes. Sorry, so you - - -?--- We didn’t think that Jamie understood that. So we thought,
“Hang on. Instead of rolling the next sheet out that direction, let’s —let’s narrow —
narrow the space down instead of rolling it towards the grader.” So Josh and I —the –
geofab’s heavy and I couldn’t really lift it, to be honest.
Okay?--- So Josh lifted one end. I held the other end. And we’d moved it around so it
would be right beside our excavation hole.
Okay. And so when you say it would be beside your excavation hole, what direction
were you planning on rolling it out that way?--- Parallel to —so our excavation’s there
like that — parallel, like, to —like, to the excavation. So we are now long —no longer
rolling it towards that machine.
Okay. And why was it that you decided do it that way?--- Well, because I’m not —I’m
not invading on his —on his —on his area where he’s trimming.
Okay?--- And can feel totally comfortable, then, that we know that that fabric is there
beside the hole. So now that —that roll is six metres —so excavation here. The roll’s
six metres wide. That’s where the roll was. And I happened to be on this end here.
Okay. Now, I just want to ask —so at the time that you decided to roll it so that you
were rolling in that direction and not towards the grader, what direction was the grader
operating in relation to the road?--- He was still —he’s still up —he’s still up parallel
with camp 6 road.
Okay. And just in terms of distance, if you can provide an estimate, at that time, where
you would —at the point of deciding to roll it parallel to the road, the geofabric, in
terms of distance, how far away was Jamie Mr Page from where you and Joshua were?-
-- He was enough distance away not to be concerned about anything.
Okay?--- Enough concern —enough distance to —not to be concerned by, yeah,
absolutely anything.
Okay?--- I worked with — I worked with him many occasions and —and, you know,
like —yeah.”
[78] The learned Magistrate identified that Mr Sills offered no explanation to the Court
why he didn’t engage in further communication with Mr Page, in circumstances where
on his own account, he was not confident Mr Page properly comprehended his earlier
radio message.48
[79] The learned Magistrate found the evidence showed both Mr Dawson and Mr Sills
pivoted the roll of geofabric and moved it down to the bottom of the hole before Mr
Dawson gave a ‘thumbs up’ signal to Mr Page to let him know they were well clear
47 Magistrate Court Decision, pg 18; Transcript Day 1, pg 1-44, line 11 – 46.
48 Magistrate Court Decision, pg 19.
-- 23 of 49 --
21
of him.49 Mr Dawson estimated that at this time they were approximately 50 to 80
metres away from the grader.50 Mr Dawson told the Court that he engaged in positive
communications with Mr Page by giving him the ‘thumbs up’ signal to indicate that
Mr Page could recommence grading.51
[80] There was no evidence from Mr Sills or Mr Dawson as to whether the ‘thumbs up
‘communication given by Mr Dawson to Mr Page was ever made known to Mr Sills.
[81] Both Mr Dawson and Mr Sills then commenced to unroll the geofabric before the roll
got caught on a rock and Mr Sills was unable to lift it over the rock. Mr Dawson
swapped ends with Mr Sills who would then have had his back to the Camp 6 Road
as Mr Dawson moved into the hole to free the caught end of the roll. Mr Dawson says
Mr Page was trimming the shoulder on their side of the road moving in a south to
north direction at this time.52
[82] As Mr Dawson was lifting that end of the roll, he heard Mr Sills scream and
immediately jumped from inside the hole to see the grader on top of Mr Sills ankle.
He waved his arms towards Mr Page to signal to him to stop, which Mr Page did
before moving the machine back off Mr Sills ankle.53
[83] Mr Dawson was unclear of the time he gave the thumbs up signal but thought it was
not long before the grader struck Mr Sills.54
[84] The learned Magistrate found that the communication that was implemented was
inadequate, and allowed a situation to emerge, that resulted in the injury to Mr Sills.55
Mr Leedy’s Evidence
[85] Mr Leedy’s evidence was that he had been assigned to work on ‘the gate’ at
Bulliwallah Road, that day on a 6.00am to 6.00pm shift. He estimated he was
positioned some 50 metres (“half a footy field”) away from where the road was being
repaired.56
[86] He recalled attending the pre-start meeting and hearing a discussion about maintaining
positive communications and staying hydrated. He said he couldn’t recall any details
about what he was told about positive communications at that meeting.57
[87] Mr Leedy said he could see all of the works from his position including the rollers
and the Moxys.58
[88] He explained that he thought Bill (Mr Sills) was working the roller, and he also
thought Mr Dawson may have been too, but he wasn’t sure about that. He went on to
49 Magistrate Court Decision, pg 19.
50 Transcript Day 2, pg 2-57, line 3 – 8.
51 Transcript Day 2, pg 2-58, line 36 – 37.
52 Transcript Day 2, pg 2-57, line 10 – 18.
53 Transcript Day 2, pg 2-57, line 30 – 47 and pg 2-58, line 1 – 2.
54 Transcript Day 2, pg 2-57, line 37 – 41.
55 Magistrate Court Decision, pg 19 fn 32.
56 Transcript of Trial Day 3 (dated 17 April 2024) (Transcript Day 3), pg 3-7, line 3 – 26.
57 Transcript Day 3, pg 3-7, line 28 – 37.
58 Transcript Day 3, pg 3-7 and 3-8, line 46 – 47 and 1 – 2.
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22
say, Josh (Mr Dawson) was doing some general labouring jobs around the place and
also told the Court Jamie (Mr Page) was working the grader.59
[89] Mr Leedy explained how he heard a radio transmission between Mr Micheal
McNamara (also known as ‘Mic Mac’), who he described as a subforeman for BMD,
and Mr Sills. Mr Sills was told to stop work on the roller and get out and help and lift
the geofab and get it in the hole that had to be filled.60
[90] The detail described by Mr Leedy about what he observed is captured in the following
extract:61
“Okay. So you mentioned that you'd heard Bill was told to get out of the cab and go
and help lift the geofab. Whereabouts did you see Bill go then?--- Yeah. So he got out
of the cab and got on the ground and they were —and was helping Josh fit that geofabric
in —in the hole in the ground where they ripped up with —for that subgrade.
Sorry, what was that last part?--- Where they ripped up the hole that needed to be filled
—redone again. So, yeah, they will get enough geofab in there so they can fill it in.
Did you see how the geofabric came to be placed at that hole?--- Yeah, they roll it out
and- - -
They rolled it out?--- They lift it up and, yeah, carry —and roll it out.
At the time that they were doing that, can you just describe what you saw at the hole,
in terms of any markings or cones or anything like that?--- Yeah. No, just a hole. There
was just bollards around the place —all over the place, but – yeah, none that were
separating the plant from the workers on the ground.
I’m sorry, you said they were all over the place?--- Yeah. There was no bollards that
were in between, like, the —the boys on the ground and the —and the plant moving
around.
Okay. Now, after you heard that —what Mick Mac told Bill, did you hear any other
instructions?--- I was to hurry up and get that in so that they can fill it in and get it
sealed up.
And now, at the time that happened —sorry, I should just clarify. Were you able to see
where Bill and - - -?--- Yeah.
--- Joshua were rolling out?--- Yeah, absolutely.
And where was Jamie when they were doing that?--- He was in and out that little area,
like, trying to —he was waiting for that geofab to go down so they could put the —the
fill in.
And from where you were, what did you see with any positive communications
between Bill, Joshua and Jamie?--- No, there wasn’t because he didn’t have a radio on
him.
Didn’t have a radio?--- Yeah. I’m pretty sure they didn’t have a radio.
59 Transcript Day 3, pg 3-8, line 6 – 25.
60 Transcript Day 3, pg 3-9, line 6 – 25.
61 Transcript Day 3, pg 3-9, line 36 – 47, and pgs 3-10 – 3-11.
-- 25 of 49 --
23
And where —from where you were, what could you see in terms of any gestures, if you
can describe that?--- Yeah. No gestures. Like, it was pretty dangerous. They could’ve
got ran over by Moxys or [indistinct]
Sorry, could you just repeat that?--- It was pretty dangerous. They could’ve got ran
over by Moxys [indistinct]
Now, at the time that you saw Bill and Josh doing that work, you said before that Jamie
was all over the place. Can you just describe what actions he was doing with the
grader?--- He was just parked up off the side so the —they could get the Moxys in and
out and —with the fill to fill the hole in.
Okay?--- And so, once that’s done, he can come in and —and smooth it out.
And did you see whether he changed from that position?--- No. He just waited until it
was all clear for him to go so he could go through.
And when you said he was waiting until it was clear for him to go through, are you able
to just describe, sorry, what you mean by that?--- So he’s parked off to the side, so he’s
out of the way, yeah. So – away from all the cleaning everything out so they get the fill
in.
Okay. And did he move at all after being parked off to the side?--- No. No.
You’re —just to —just to ask, you're of what happened to Bill that day?--- Yes. So he
was rolling the geofab out and then Jamie was coming back in and —yeah, he clipped
his —clipped his leg.
And, from where you were, did you see that happen?--- Yeah.
When you said that Jamie was —sorry. Sorry, what was it that you said Jamie was
doing with the grader?--- He’s just in and out, yeah, so- and moving
Do you know - - -?--- So it’s —it was in the one little area and there was, like, not really
anywhere really to park off to the side because there was a drain there.
Okay?--- Yeah.
Are you aware when he started moving in and out again?--- After they —they got that
geofab down and he was fixing up some of the entryway into camp 6 on that road.
Now, you mentioned before how you saw that it clipped Bill’s legs; are you able to just
describe what you could see happening?--- So at first it looked like Bill tripped, but he
didn’t, and then I realised the front wheel of the grader had actually clipped Bill’s leg.
Okay. What did you do when you saw that?--- | got out of the cab and started running
to him, just a natural response, like, from my time in the military and in advanced
combat first aid, like, I knew he’d been hit and so I ran straight to him.
Okay. And were you able to assist with the first aid that you mentioned?--- Yeah.”
[91] Mr Leedy’s evidence was unchallenged.
[92] The learned Magistrate accepted Mr Leedy’s evidence as “compelling and particularly
useful, as it was an eye witness account of the incident and importantly, the work
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24
environment in which it occurred. It was frank and clear in its delivery and description
of the day in question”.62
Witnesses Shane Wright, Gavin Wesche and Graeme Hogan
[93] Mr Shane Wright, Mr Gavin Wesche and Mr Graeme Hogan, held positions, at the
relevant time, within WHSQ. None of these witnesses observed the incident, however
Mr Wesche and Mr Wright attended the site on the day after the incident occurred.
[94] Mr Wright had been an inspector for approximately one year at the time of the
Incident. On 9 June 2020, the day after the Incident, he attended the BMD worksite
with Inspector Wesche. They met with a BMD representative and were taken under
escort to their main office. BMD representatives gave them copies of BMD WMS
(including WMS002.1; the next column over, Areas Activity; and then General
Labouring and Manual Handling), some JHAs and statements from some of the
workers.
[95] Mr Wright learned BMD were having trouble getting compaction on an area of
ground, so they had to remove fill and replace it with geofabric. This activity was a
variation to pre-planned works. He discovered there was no time pressure applied
from the client on the people doing work. However, the work couldn’t proceed until
variation was approved. This activity occurred at the same time as other work that was
being carried out there as well.
[96] Mr Hogan was allocated the file in about August 2020 and noted how Mr Sills had
been interviewed by Inspector Wright and a Mr Dunn, and that a transcript of that
interview had been made which Mr Hogan said he viewed.63
[97] Having arrived at the entrance to the place, they were escorted to the offices where
they met with multiple people from BMD, including superintendents, the directors
and safety managers, as well as someone from Adani. The meeting occurred on the
day after the incident, and it lasted about an hour.64
[98] After that meeting, both witnesses were escorted to the incident site. Mr Wesche
described observing a grader, some geofabric on the ground and some mesh and
witches hats. He told the Court that photographs were taken of these observations.65
[99] The photographs show the grader and a section of orange safety mesh and witches
hats placed around the dug out area sitting in front of the parked grader. A roll of
geofabric can be seen with one end approximate to the dug out area, and the other end
pointing towards the front of the parked grader.
[100] When Mr Wright gave his evidence, he was asked about the work that was being
undertaken at the time of the incident. His answer is as follows:66
“For the work that was being completed at the time of the incident, what did you come
to learn about that?--- We come to learn that there was a —an area of ground that they
62 Magistrate Court Decision, pg 22.
63 Transcript Day 3, pg 3-27, line 25 – 47 and pg 3-28, line 1 – 12.
64 Transcript Day 3, pg 3-15, line 14 – 41.
65 Transcript Day 3, pg 3-16, line 20 – 32.
66 Transcript Day 2, pg 2-10, line 17 – 25.
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were having trouble getting compaction of. From memory, I think it was compaction
that they had a problem with. So they had to remove fill, replace fill with geofabric in
there. I asked questions about the scope, the change of scope, how that was managed.
We come to learn that it was a variation, however, there was no time pressure applied
from the client on the people doing work. However, the work couldn’t proceed until
variation was approved. I come to learn that it was being done at the same time as other
work that was being carried out there as well.”
[101] Mr Wright said he asked about whether there were any time pressures and was told
although the geofrabric activity was a variation in the work tasks, there was no time
pressure because there was no timeframe put onto completing that variation.67 This
evidence is contrary to that of Mr Sills who said he felt under pressure to get the job
done that day before their 3 week rotation finished.
[102] The learned Magistrate found Mr Sills evidence on this point was direct and without
hesitation. The learned Magistrate accepted Mr Sills felt under time pressure to get
the particular job completed the day of the incident.68
[103] The learned Magistrate referred to photographs taken the day after the incident
showing the view from the driver’s compartment of the grader and also an unidentified
person standing in a bent forward position, in front of the grader’s left front wheel.
The learned Magistrate found this photograph had little probative value and placed no
weight on it, preferring the direct evidence of Mr Sills and Mr Dawson as to what
happened on the day in question.69
[104] A large amount of documentary evidence was submitted without objection. The
learned Magistrate did not discuss/identify all aspects of the documentary evidence
but identified they formed part of the evidence upon which his reasons and decisions
were based.
[105] The learned Magistrate set out the relevant statutory provisions and authorities.
[106] The learned Magistrate was satisfied BMD had a comprehensive workplace, health
and safety training program which was compulsory during induction and that each
worker was required to attend and successfully complete before they were allowed to
work at the site. The learned Magistrate gave the following summary/evaluation of
the training material:70
“That program contained specific material with respect to workers and machines and
in particular the exclusion zones established to ensure individuals were never to be
placed in a position where a plant operator could not see them. The zones included a 5
metre exclusion area in respect to non-slewing machines, and a 5 metre exclusion area
over and above the slewing radius for slewing machines.
Importantly, that material also clearly contemplates the use of physical barriers
including witches hats and similar safety items for use to delineate where workers are
on the ground, and machinery may be operating.
67 Transcript Day 2, pg 2-11, line 9 – 13.
68 Magistrate Court Decision, pg 24.
69 Magistrate Court Decision, pg 24.
70 Magistrate Court Decision, pg 25.
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26
Similarly, the issue of maintaining positive communications between workers and plant
operators is also stressed within the Work Method Statements as is set out in the
materials. So too is the importance of completing a Job Hazard Analysis card for every
job that is undertaken by each worker.
As the Prosecution did not raise issue with respect to the contents of this material, | do
not intend to descend into a finite examination of the numerous health and safety
components that clearly form part of BMD’s workplace requirements. As already
stated, | am satisfied on the evidence that there existed a genuine and informed system
of workplace health and safety requirements at the site.”
[107] The learned Magistrate correctly identified the issue as not one of training and
procedure but one of implementation. He found:71
“The imposition of the primary duty is imposed on BMD pursuant to section 19(1) of
the [WHS Act], while section 19(2) requires BMD to ensure the health and safety of
other persons is not put at risk from work being carried out as part of their business or
undertaking.”
[108] It is not in dispute that BMD owed Mr Sills a primary duty.
Consideration – Particularised Control Measures
Grounds 1(a) and (1)(e) - finding that there was a requirement to instruct the mobile plant
operator (Mr Page) and pedestrian workers (Mr Sills and Mr Dawson) to stop the activity
of placing the geofabric into the excavation until the mobile plant operator had finished
grading activities and to cease the grading activity while the geofab was being laid
[109] The WHSP submitted that the learned magistrate was entitled to draw an inference
from the evidence of workers Mr Sills, Mr Dawson and Mr Leedy that no such
instructions were given to the workers by BMD at the relevant time. That inference
was said to be available from the following testimony:
(a) Michael McNamara (aka “Mic Mac”) was the BMD supervisor in charge of the
operation of the jobs on the day in question;
(b) Mr Dawson was flagged over by McNamara and told to do a “geofab job” and
Mr Sills was asked to assist;
(c) Leedy heard ‘Mick Mac’ tell Mr Sills on the radio to “get out and lift the geofab”
and “to hurry up and get that in so that they can fill it in and get sealed up”;
(d) Mr Sills was given the instruction on the two-way and ‘Mic Mac’ had then
“gone up to the other end of the job or something";
(e) Mr Sills was yelled at over the radio to “get that geofab in that hole now”; and
(f) Mr McNamara did not make any attempt to ensure that a new JHA card was
completed for the task of laying the geofabric as was required of him as a
supervisor.
[110] BMD submitted the inference drawn by the learned Magistrate was wrong in that it
was unreasonable and not supported by the evidence. First, BMD submits it was an
error to find that that measure was a measure that was not taken. Second, BMD
71 Magistrate Court Decision, pg 25.
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submits it was in error to find that there was a measure that was reasonably practicable
to minimise or eliminate the identifiable risk.
[111] BMD identified the following matters in support of its submission:
1. the learned Magistrate found that:
(a) the workers were trained in BMD's comprehensive safety systems;
(b) the workers followed those comprehensive safety systems prior to the
incident occurring, when a pedestrian worker contacted the plant operator
to cease work while the geofabric was being laid and the plant operator
ceased work;
(c) Mr Page (the plant operator) only recommenced the grading activity after
receiving the approval to recommence from one of the pedestrian workers,
notwithstanding that the geofabric was still being laid in proximity of the
plant.
2. no evidence was led by the WHSP regarding the factors the learned Magistrate
was required to apply to decide the matters set out in ss 17, 18 and 19 of the
WHS Act.
[112] In these circumstances, BMD submits the WHSP failed to prove beyond reasonable
doubt that the instruction detailed in particulars (a) and (e) of the WHSP’s amended
particulars were not provided.
[113] An assessment of the evidence at trial demonstrates the supervisor on the day in
question was Mr McNamara. No evidence was led from Mr McNamara. This means
there was no direct evidence from Mr McNamara as to what steps he took, if any, to
identify, assess, or control the risk that caused (or could have caused) the incident.
[114] Other than the instruction to perform the task, there was no evidence of any safety
instructions given to the workers by Mr McNamara. Given that Mr McNamara and
Mr Page did not give evidence, it was not reasonable to infer beyond a reasonable
doubt that instructions as particularised were not given.
[115] There was no direct evidence from Mr Sills or Mr Dawson about whether Mr
McNamara instructed them to stop their activity until the grading activity was
completed.
[116] There was no evidence from the grader operator, Mr Page, of what instructions he had
been given.
[117] The evidence of the pedestrian worker, Mr Sills, was that Mr McNamara instructed
him to help Mr Dawson complete the geofabric task on at least two occasions: face-
to-face in the first instance, and then secondly over the two-way radio. Mr Sills’
evidence was that before he engaged in the first rollout of the geofab, Mr Page had
the grader parked and stationary approximately 25 metres away. Mr Sills said he and
Mr Page had their two-way radios. Mr Sills told Mr Page what he and Mr Dawson
were going to do with the geofabric and that they would get it done quickly and get
out of his way. Mr Sills acknowledged he had a responsibility there as well as Mr
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Page. Mr Sills said he told Mr Page ‘We’re going to roll out this fabric’. Mr Page gave
him the thumbs up. The grader stayed where it was while they rolled out the geofab.
[118] The evidence of the pedestrian worker, Mr Dawson, was that he was instructed by Mr
McNamara to do the geofabric task, and that Mr McNamara ‘had a bit of a chat to me
and sort of ran me through what he wanted to do’.72 No particulars of this conversation
were elaborated on. What specifically was said by Mr McNamara is not known.
[119] When Mr Dawson was asked if he could recall what Mr McNamara said he answered
“No”.73 On this basis alone, it was not possible to be satisfied beyond a reasonable
doubt that the particularised instructions were not given.
[120] Mr Dawson explained the safety measures he implemented as follows:74
“So can you just describe what happened after the second hole had been dug. What did
you do?--- We started to roll the wall Geofab …
… said to Bill that we were working too close to the – to the grader because we were
rolling towards him …
… and we decided to go down and turn the role and works the opposite way…
Jamie was just starting to trim up one of the shoulders of the road and he’d stop because
we were getting close. We moved the roller down to the bottom – down to the hole,
sorry, and then I gave him a thumbs up just to let him know that we were well clear of
him.
Okay. And at that point you gave him the thumbs up how far away from Jamie were
you?--- Maybe 50 to 80 metres, roughly.”
[121] Mr Dawson accepted that the use of the “thumbs up” was an indication to Mr Page
that it was right for Mr Page to recommence moving his grader.
[122] Mr Sills and Mr Page knew exactly what to do in respect of working in proximity of
plant. They engaged in positive communications to have the effect that the plant would
stay idle, cease work, and allow them – the workers – to undertake their separate
activity of rolling out the geofab. That situation ought to have continued except for
the fact that when Mr Sills and Mr Page were doing the second rollout, Mr Dawson
communicated with them by giving a thumbs up. As a result of which Mr Page
recommenced what he was doing and the accident ensued.
[123] Grounds 1(a) and 1(e) relate directly to what instruction was given to Mr Page, Mr
Sills and Mr Dawson. This instruction, presumably, must have been the instruction
given by the supervisor of these workers. Yet Mr McNamara was not called to give
evidence. Given this situation, one could not be satisfied beyond reasonable doubt of
the details of the relevant instructions.
[124] The WHSP accepted there was no direct evidence of what Mr McNamara told Mr
Page (if anything) on the day but submitted that given Mr Page was in fact operating
the grader in the vicinity of pedestrian workers, the Magistrate was entitled to draw
72 Transcript Day 2, pg 2-54, line 36 – 38.
73 Transcript Day 2, pg 2-55, line 44.
74 Transcript Day 2, pg 2-56, line 34 – 46 and pg 2-57, line 1 – 8.
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an inference that such direction or instruction was not given to him. With respect, the
fact that the grader was in the same yard as Mr Sills and Mr Dawson does not give
rise to that inference. The geofabric task was a variation to the work task and Mr Page
stopped moving when Mr Sills communicated with him via a two-way radio.
[125] In addition to the above, there was also evidence from Mr Sills and Mr Dawson that
they were aware from their training:
1. of the need to establish positive communications with a plant operator prior to
attempting to enter an exclusion zone;
2. they were to wait until the plant had stopped operating before entering an
exclusion zone; and
3. that they would confirm with the plant operator when they were clear of the
exclusion zone so that the plant operator could recommence their work activity.
[126] Without the evidence of Mr McNamara and Mr Page on this matter, it was an error to
find beyond reasonable doubt that Mr McNamara did not instruct the mobile plant
operator to stop the activity of grading until the pedestrian workers had placed the
geofabric into the excavation and moved away a safe distance before recommencing
works.
[127] Given the awareness of those workers, it is not apparent how it could be inferred,
beyond a reasonable doubt, that Mr Sills, Mr Dawson and Mr Page, were not
“instructed”. On the basis of the evidence, it was open to find BMD did appropriately
and reasonably instruct the workers as particularised. This was supported by the fact
that Mr Page stopped moving immediately upon being informed Mr Dawson and Mr
Sills were engaged in the geofabric task, and that he did not recommence moving until
it was indicated by Mr Dawson that he was clear to do so.
[128] Section 19(3) of the WHS Act refers to the mandatory obligation on an employer to
ensure not just relevant training is provided but also necessary instructions and
supervision (as far as is reasonably practicable).
[129] The evidence demonstrates BMD knew of the hazard risk and the means to eliminate
or minimise that risk. What is not known is whether it implemented the instruction
measure particularised.
[130] The WHSP submitted that based on the evidence it was open to the learned Magistrate
to infer that no instruction was given by Mr McNamara to cease work until the
geofabric task was completed or the other way round, because if he had given that
instruction, the workers would have said so. Why? This is just an assumption; it is not
a reasonable inference that arises from what is known. Similarly, the fact that Mr Page
operated the grader in the vicinity of the pedestrian workers only gives rise to an
assumption of a failure to give appropriate safety instructions.
[131] The fact that it was not disputed that Mr McNamara was not in the area where the
work was being done, does not assist to identify beyond a reasonable doubt whether
he gave the workers the safety instruction.
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[132] For the reasons outlined, it was unreasonable for the learned Magistrate to infer that
no specific instruction was given. The available evidence was in general terms and
lacked particularisation. The evidence given went to the task the workers were asked
to undertake. The workers were not asked if they had been instructed to stop the
activity of placing the geofabric into the excavation until the mobile plant operator
had finished grading. There is no positive affirmation, denial or lack of recollection
on this point. Several inferences arise: either an instruction was given, an instruction
was not given or it cannot be determined. As a result, it was unreasonable for the
learned Magistrate to be satisfied beyond a reasonable doubt that no such instruction
was given.
Ground 1(b) - the finding that there ought to have been exclusion zones implemented to
physically separate the workers from the moving plant and that it was reasonably practicable
for B.M.D to ensure appropriate flagging and witches hats were put in place to provide a
clear and distinct barrier.
[133] This ground concerns the use of exclusion zones, flags and witches hats to create a
barrier between the pedestrian workers and the graders.
[134] It was not in dispute that there was a WMS for the site in place.
[135] The BMD Work Method Statement 005.1 General Earthworks (Clearing and
grubbing) identified a control measure for the risk of personnel being injured by plant
because of the hazard of plant movement with ground personnel in the area, that being
“no work in the areas where there is existing hazards or active work unless adequate
controls are implemented, positive communication, VMPs and delineation etc.” The
operator was a person responsible for ensuring the measures were controlled. The
BMD Work Method Statement 001 Operation of Mobile Plant similarly required all
traffic to “call up” where required and requirement for no persons to enter ‘no go’
zones.
[136] BMD submitted:
1. The workers were experienced;
2. Mr Sills’ evidence was that the geofabric activity was “a straightforward job”;
and
3. Mr Dawson and Mr Sills were aware of the need to complete a JHA for each
task.
[137] BMD’s WMS identified:
1. flagging/witches hats as a control measure to be used to delineate fill areas
where compaction testing was being undertaken;75
2. no gone zones as a control measure for using around plant;76
75 005.1 General Earthworks (including Clearing and Grubbing) and BMD Work Method Statement 001
Operation of Mobile Plant.
76 Operation of Mobile Plant Work Method Statement.
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3. exclusion zones for all plant and required persons on foot to never approach
plant from blind spots;77 and
4. the likelihood of harm occurring and the seriousness of any injury.
[138] The documentary evidence confirms BMD knew about the hazard and identified ways
of controlling it, including the use of flagging and witches hats and the
implementation of exclusion zones.
[139] Photographs taken at the scene the day after the incident show flagging, ‘witches hats’
and star pickets erected around the excavation hole where the geofabric was being laid
following the incident.
[140] The workers’ evidence that those markers were not around the excavation hole at the
time of the Incident was not disputed. Mr Sills’ evidence was that witches hats and
netting “weren’t there” while he was rolling out the geofab.78
[141] The fact that BMD had identified that markers were a control measure for use in
certain circumstances did not mean they were reasonable or appropriate measures to
be used in this instance. In my view, the facts do not go far enough to demonstrate a
reasonable inference that they should have been used in this instance.
[142] WHSP says the markers were clearly available. But what, other than a photo taken the
following day, was the evidence to support this assertion? The day after the Incident
the WHSP attended to investigate. Photographs of the site on the day of the inspection
show flags and witches hats were placed at the Incident site. There was no evidence
led explaining the presence of those flags and witches hats. Despite this, the presence
of those items was relied upon as a basis for suggestion that they were a reasonably
practicable control measure to delineate the exclusion zone on the day of the Incident.
No evidence was led on this.
[143] It is an assumption that these markers were available, and it is an assumption that they
were a suitable control measure which would have eliminated or minimised the
Hazard Risk
[144] In relation to exclusion zones, BMD had implemented a rule requiring an exclusion
zone of five (5) metres for all non-slewing plant, and an exclusion zone of five (5)
metres plus the slew radius for all slewing plant, unless adequate control measures
were identified. This rule was communicated to the workers.
[145] Mr Sills and Mr Dawson confirmed their awareness of this rule. Mr Sills and Mr
Dawson also confirmed they were aware, based on their training, that depending on
the activity and the type of plant involved there may be a different exclusion zone.
Despite this awareness, the accident occurred. Initially an exclusion zone was
maintained when the grader was parked. But then, having received a thumbs up, the
exclusion zone was breached.
[146] The evidence of Mr Sills and Mr Dawson confirmed they were aware different plant
required different exclusion zones. Mr Sills confirmed his practice was to ensure 10
77 The General Earthworks (including Clearing and Grubbing).
78 Transcript Day 1, pg 1-51, line 18 – 19.
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32
metres79 whilst Mr Dawson understood 10 metres was to be maintained all the way
around.80 Mr Sills and Mr Dawson also confirmed that they had had positive
communications with Mr Page when he was at least 25 metres away.81
[147] Mr Sills’ evidence was that he believed an exclusion zone could be maintained
because of the communications he had with Mr Page.82
[148] Given the awareness of, and initial maintenance of, the exclusion zones and the
distinct lack of evidence as to why a thumbs up positive communication was given to
Mr Page, it is not apparent that this particularised control measure was not in place.
[149] In relation to the markers, the fact they were available to be used to cordon off the
investigation site area, may lead to an assumption the witches hats were available the
day before (there is no evidence about this), but the evidence does not establish they
would have minimised the risk of what happened here. Given that Mr Sills was unseen
by the driver, how can an inference be drawn that the grader driver would have seen
a witches hat. How far from the excavation pit should they have been placed? There
is insufficient evidence to conclude that this a reasonably practicable control measure.
There was no direct evidence that signs or witches hats should have been erected.
There was no evidence that the implementation of these measures would have
prevented the Incident.
[150] Despite the workers evidence of the exclusion zone, the evidence confirms that the
workers were working outside the exclusion zone. They remained at the excavation
hole doing the geofabric task when Mr Sills was struck.
[151] In relation to physical barriers, there was no evidence led by WHSP as to the type of
physical barrier and the reasonableness of installing/implementing the unidentified
physical barrier. Without particularisation, the reasonableness or otherwise of the
control measure cannot be assessed.
[152] There was also no evidence led regarding whether installing barrier flagging would
have prevented the Incident.
[153] Mr Leedy explained there were not many markers on site because of the number of
Moxys, road trains and scrapers needing to come in and out – i.e. it was not practical.
He then said in relation to the markers (bollards) whereabouts at the time Mr Sills and
Mr Dawson were working on the geofabric, “we got them there…you wouldn’t really
notice them”.83
[154] This evidence supports a finding that it should not be inferred that markers and witches
hats should have been implemented in this situation.
[155] No evidence was led by WHSP as to any new risks posed by the installation of
physical barriers, for example, any risks posed by the need to use additional plant and
79 Transcript Day 1, pg 1-62, line 24 – 29.
80 Transcript Day 2, pg 2-67, line 11 – 16.
81 Transcript Day 1, pg 1-102, line 10 – 44 and pg 1-103, line 1 – 21 (Mr Sills); Transcript Day 2, pg 2-57,
line 7 – 8 (Mr Dawson).
82 Transcript Day 1, pg 1-103, line 11 – 24.
83 Transcript Day 3, pg 3-12, line 32 – 34.
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equipment or manual handling or increasing the number of people on the ground
associated with the installation of physical barriers.
[156] His Honour erred in concluding witches hats and flags would provide a clear and
distinct barrier between ground workers and the operating plant. His Honour drew an
inference from seeing those measures in photographs taken the day after the incident,
that they were or should have been available the day before and should have been
utilised on the day Mr Sills was injured. BMD’s written procedures reference the need
for delineation as a control measure to be implemented in circumstances of
geotechnical testing. The activity engaged in by Mr Sills, Mr Dawson and Mr Page
was not geotechnical testing. There is no reference in BMD’s written procedures to
the need/requirement of using witches hats/flags to create an exclusion zone for this
type of activity.
[157] It was not established beyond a reasonable doubt that:
1. an exclusion zone was not implemented;
2. it was reasonably practicable for BMD to ensure appropriate flagging and
witches hats were put in place to provide a clear and distinct barrier; and
3. flagging and witches hats were measures that would have provided a reasonable
means of eliminating or minimising the Hazard Risk.
Ground 1(c) - It was reasonably practicable for BMD to have ensured spotters to observe
the activity
[158] The particulars do not identify the number of “spotters” it was reasonably practicable
to have nor the “activity”. Nor is it explained why more than one spotter was required.
How far away should the spotter have been?
[159] BMD submits that regardless of the lack of particulars of this ground, “BMD’s system
of work already contemplated a higher order of controls than the use of spotters”.
BMD submits spotters are administrative controls whereas it had implemented higher
controls including:
1. using positive communications to cease one work task until the other is finished;
and
2. implementing exclusion zones.
[160] Mr Leedy, who was the spotter stationed at the gate of the BMD construction site,
gave evidence that he “could see everything”.84 Mr Leedy also gave evidence that he
could hear the instructions being given to Mr Sills over the two-way radio to go and
assist Mr Dawson will the roll out of the geofabric. Mr Leedy had been provided with
the site safety training from BMD. Mr Leedy said at the start of the day there was a
“toolbox” meeting where using positive communications was reiterated. Mr Leedy
saw Mr Sills and Mr Dawson rolling out the geofabric. He saw Mr Page waiting for
the geofabric. Mr Leedy did not know if any of them had a radio and could not see
84 Transcript Day 3, pg 3-8, line 1 – 2.
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any gestures. This suggests that Mr Leedy’s earlier evidence that he “could see
everything” was not an entirely accurate description.
[161] It does not necessarily follow from this evidence that there were no positive
communications. In fact, the evidence from Mr Sills and Mr Dawson is that they used
two-way radios and hand signals to communicate.
[162] Mr Leedy’s evidence that Mr Sills and Mr Dawson were in danger was expressed in
relation to the Moxys (dump trucks) that were coming in and out of the worksite. Mr
Page was parked to the side so that Moxys could get in and out to fill the excavation
hole. According to Mr Leedy’s observation, Mr Page “waited until it was all clear for
him to go so he could go through”.85 He saw the grader clip Mr Sill after which he
assisted with first aid.
[163] BMD’s safety manuals identified that a spotter’s role is to maintain exclusion zones,
ensure hand signals are understood and to check the area for obstacles, equipment and
people before allowing plant to move.
[164] BMD’s manuals identified the use of a controller, or spotter, to authorise and monitor
the movement of mobile plant in all circumstances86 and as a control measure for
positive communications.87
[165] Just because something is an identified possible safety measure does not make it
mandatory to implement. Section 18 of the WHS Act requires the suitability of a
measure, the availability, and cost as matters to be considered when considering
whether something is reasonably practicable. Some of these matters were not
specifically addressed in evidence at trial.
[166] However, it is common sense that the use of a spotter would have minimised the
Hazard Risk. Given how busy the site was (as described by a number of witnesses),
there is ample reason to infer and conclude the use of a spotter (for what was
apparently only a 30 minute geofabric job) would not have been an expense out of
proportion to the minimisation of such an extreme risk.
[167] While there were employees, including Mr Leedy, stationed at gates, they were
approximately 50 metres from the excavation and their role was to monitor protestors
at the site. Mr Leedy’s unchallenged evidence was that the worksite was “pretty
dangerous” because of the number of various operational plant in operation. It was,
as already referred to, clear that Mr Leedy could not see everything from where he
had been stationed.
[168] While there was no evidence led by WHSP as to the reasonable practicability of
implementing spotters given the labour and cost requirements of doing so, it is
reasonable to infer, given there were other supervisors/spotters on site, that it would
have been reasonably practicable to have this quick task supervised. It is also
reasonable to infer that the cost of doing so would have been minimal, if not
negligible, in circumstances where the risk of serious injury was extreme.
85 Transcript Day 3, pg 3-10, line 45 – 46.
86 BMD Plant and Equipment Management —Core Operating Procedure;
87 BMD Work Method Statement 005.1 General Earthworks (Clearing and Grubbing)
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[169] The learned Magistrate had regard to the documents in evidence which recorded the
movement of mobile plant and people as a high-risk activity in which an on-site
controller was identified as a control measure to minimise that risk. The learned
Magistrate accepted Mr Leedy’s unchallenged evidence.
[170] It was established beyond a reasonable doubt that this measure was not in place and
that it would have provided a reasonable means of eliminating or minimising the
Hazard Risk.
[171] It was reasonable and open for the learned Magistrate to infer that the use of spotters
was a reasonably practicable control measure that could minimise or eliminate that
risk.
[172] There is no identified error in his Honour’s findings in this regard.
Ground 1(d) - the finding of insufficient supervision to ensure compliance and enforcement
with BMD’s appropriate health and safety procedures
[173] BMD submits the finding that there was insufficient supervision to ensure compliance
and enforcement of safety procedures was unreasonable and unsupported by the
evidence where:
1. the evidence showed, and the Magistrate found, BMD had provided adequate
training and instructions to workers as to appropriate health and safety
procedures;
2. Mr Sills’ and Mr Dawson’s evidence was that they knew and understood the
safety measures to be implemented and the need to use positive communication
measures;
3. Mr Page complied with the safety system by parking the grader when receiving
the positive communication from the pedestrian workers;
4. Mr Page complied with the safety system by not recommencing grader
operations until he received positive communications from Mr Dawson in the
form of a “thumbs up”;
5. no particulars of the level of supervision required was provided;
6. Mr Sills and Mr Dawson were experienced;
7. shortly after the Incident, Mr Dawson completed his mining supervisor’s course
and obtained employment as a machine operator supervisor;
8. the activity being performed was not complicated;
9. the supervisor was not called to give evidence;
10. no information was obtained from the BMD Site Supervisor by WHSQ during
the investigation into the Incident;
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36
11. it is unreasonable to suggest BMD must have a supervisor directly supervising
every task involving working near mobile plant happening on site at any one
time, where that work is being performed by experienced and trained workers;
12. no evidence was led by the prosecution as to the need or requirement for a
supervisor to be directly supervising, at all times, the task of laying geofabric;
and
13. no evidence was led by the prosecution as to what other tasks were happening
concurrently on site in the area under the control of the relevant BMD Site
Supervisor.
[174] It is not disputed that a JHA card was not completed for the geofabric task.
[175] The learned Magistrate found that the completion of a JHA card was a reasonably
practicable control measure that the supervisor ought to have checked before the work
activity commenced, though also found that the workers knew, through their training
by BMD, of the purpose of the Job Hazard Analysis, and had completed a Job Hazard
Analysis.88
[176] BMD accepted the workers did not sufficiently comply with the procedures because
Mr Dawson, by his thumbs up to Mr Page, signalled to Mr Page that it was safe for
him to start moving up towards where the workers were. However, BMD submits the
learned Magistrate erred in relation to his finding as follows:89
“When the supervisor Mick Mack issued the instructions to the workers to change their
duties to lay the geofab, B.M.D had an obligation under their own safety and work
method procedures to ensure new JHAs were completed and checked by a supervisor
and, further, that all necessary and reasonable – reasonably practical control measures
were put in place, and he goes on to say, “On the evidence before me, this constituted
a failure on the part of B.M.D to comply with the primary duty that they are under.”
[177] BMD submitted there are two errors with this finding. First, BMD had complied with
its own procedures and second, the workers knew they had to complete JHAs. The
evidence demonstrated they were aware of the safety measures. In relation to the
supervision, it was not demonstrated that it was reasonably practicable for a supervisor
to be standing over workers in respect of every new task and ensuring that a JHA was
completed:90
“In the court’s view, it was reasonably practicable for a supervisor, who ought to have
been alert to that message” this is the radio message “to have immediately intervened
to ensure Mr Page heard the broadcast and then to have reminded Mr Page of the need
for positive communication by use of the two-way radio in the cabin of the grader.”
[178] I disagree with BMD’s submission. It was reasonably practicable for a JHA to be
completed which would have identified the Hazard Risk and addressed appropriate
control measures to be implemented. There was evidence of other JHA’s having been
88 Magistrate Court Decision, pg 28 – 29.
89 Transcript of Appeal hearing before Judge Grigg dated 7 October 2025 (Transcript of Appeal), pg 1-22,
line 6 – 12.
90 Transcript of Appeal, pg 1-24, line 41 – 45.
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37
completed. According to BMD’s safety documents, the supervisor is responsible for
facilitating the implementation of risk management measures including:91
“facilitating the implementation of risk management in their area of
responsibility”;
“Identifying workers to participate where appropriate in the 25 planning and
design of risk assessment processes”;
“Completing activity-based conversations and monitoring the ongoing
effectiveness of risk controls”;
“Ensuring risks are eliminated or controlled”;
“Answering final check questions re JHA”.
[179] WHSP submitted in conclusion that the supervisor’s (Mr McNamara) role on the day
was to ensure a JHA was completed and that control measures were implemented to
ensure that the work was safe. The evidence of the workers was that after the
supervisor gave those initial instructions, he was not in the area and had no further
involvement in the task. That is, the supervisor did not ensure spotters were
implemented, and that there was accurate communication between all the parties.
[180] BMD submitted the evidence did not demonstrate that it was reasonably practicable
for a supervisor to be present “standing over and physically observing and watching
the activity”92 at a large construction site. BMD submitted that (notwithstanding their
training) “this is why … there’s such comprehensive training, so the supervisors don’t
need to be there”.93
[181] BMD notes there was no suggestion that there was a need for a supervisor to tell Mr
Page to remain parked. He was parked. There is no evidence he was under pressure to
continue. The evidence demonstrates he only continued moving when he was given
the thumbs up for him to recommence.
[182] The problem arose due to the incorrect communication, not the lack of radios or lack
of utilisation of appropriate communication methods.
[183] WHSP accepted the following:
1. the control measures listed in BMD’s safety materials were “high level”;
2. that a failure to implement every listed control measure in the manual would not
necessarily lead to a conclusion that BMD was in breach and that a causal
connection between the control measure and the risk and whether it minimises
or eliminates that risk, would need to be established; and
91 Exhibit 5 – BOLT Module – Activity Based Risk Management, pgs 6 and 33.
92 Transcript of Appeal, pg 1-25, line 28 – 29.
93 Transcript of Appeal, pg 1-25, line 29 – 30.
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38
3. there has to be a conclusion that the control measure said not to have
implemented would have eliminated or minimised that risk for it to amount to a
breach.
[184] Here, BMD had comprehensive safety measures and assessments for the types of
potential risks which may have been encountered on this particular worksite. Despite
this, no specific JHA was undertaken with respect to the geofab task and there was no
supervision of this task. The implementation of a supervisor/spotter for the task was
a reasonable practical measure in circumstances where:
1. there were other spotters/supervisors on site;
2. the risk of a collision between plant and pedestrian workers associated with the
geofab task was known and identified as an extreme risk;
3. BMD had identified this measure as a reasonably practicable control measure
to implement to eliminate or minimise the risk;
4. it is obvious that if a supervisor was present, the incorrect thumbs up gesture
could have been averted before the Incident occurred;
5. the instruction from Mr McNamara was to hurry up and get the geofabric in the
hole so it could be filled – i.e. there was urgency or pressure to get the task
completed quickly;
6. the evidence from Mr Sills indicated it was a ‘crazy morning’ onsite in that there
was a lot of things going on including road trains carting material in (which was
a normal constant daily activity), a tyre excavator, a dump truck and the grader
up the top of the excavation area; and
7. Mr Leedy’s evidence that the worksite was “pretty dangerous” because of the
number of various operational plant in operation.
[185] Despite the comprehensive training and manuals, an accident occurred because of an
incorrect communication which could have been rectified with appropriate
supervision.
[186] It appears that through their training the workers had received necessary information
and instructions as to how to minimise the risk. The information provided from that
training was not followed. Employers must factor in an employee’s inadvertence in
the provision of a safe workplace.
[187] BMD submitted it is not “reasonably practicable” for BMD to provide step-by-step
instructions for each task being performed on site immediately before the task is
performed as to how to conduct the task in accordance with the system of work. No
evidence was led by WHSP to demonstrate how this could practically be achieved.
Nor was there any evidence regarding costs. I do not accept that such an instruction
was not reasonably practicable. It is entirely reasonable and practical for the cessation
instruction to be given in these circumstances. The risk was high, the potential
outcome extremely serious. It is obvious that such an instruction was a reasonably
practicable measure to minimise the risk.
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39
[188] BMD submitted:94
“The evidence didn’t demonstrate, given the nature of the construction site and the
activities being undertaken that it was reasonably practicable for a supervisor to be
there literally hanging over the workers at all times, and that’s particularly the case in
respect of the knowledge in respect of the procedures that the relevant workers had.”
[189] While there was no evidence led by WHSP as to the reasonable practicability of
implementing spotters given the labour and cost requirements of doing so, it is
reasonable to infer, given there were other supervisors/spotters on site, that it would
have been reasonably practicable to have this quick task supervised. It is also
reasonable to infer that the cost of doing so would have been minimal, if not
negligible, in circumstances where the risk of serious injury was extreme.
[190] The learned Magistrate had regard to the documents in evidence which recorded the
movement of mobile plant and people as a high-risk activity in which an on-site
controller was identified as a control measure to minimise that risk. The learned
Magistrate accepted Mr Leedy’s unchallenged evidence.
[191] It was established beyond a reasonable doubt that this measure was not in place and
that it would have provided a reasonable means of eliminating or minimising the
Hazard Risk.
[192] It was reasonable and open for the learned Magistrate to infer that the use of spotters
was a reasonably practicable control measure that could minimise or eliminate that
risk.
[193] There is no identified error in his Honour’s findings.
[194] There is evidence that the workers were rushing to complete tasks. Perhaps the
workers, although adequately trained and experienced, in their haste to complete the
job, simply failed to implement known safety protection measures. This is not said to
criticise those workers, it is simply a product of the evidence in this case being
insufficient. There was no evidence Mr McNamara was not adequately trained and as
addressed above, no inference can be drawn about a lack of proper instructions.
[195] The evidence of the workers demonstrates they were adequately trained and had good
recall of safety measures despite their training occurring three months prior to the
accident. It was not open on the evidence for any inference to be drawn that there had
been insufficient training. The learned Magistrate found the training materials were
comprehensive and covered possible precautionary measures to deal with the Hazard
Risk.
[196] It is unknown what instruction regarding control measures were given on the day. In
the circumstances, it is not apparent what instructions could have been given to avoid
the accident. There is nothing to indicate that Mr Page would have done anything
except recommence the plant operation when he received the thumbs up.
[197] Despite the training an accident still occurred.
94 Transcript of Appeal, pg 1-21, line 30 – 33.
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40
[198] In Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001]
NSWIRComm 267; (2001) 110 IR 57, the Full Bench of the Industrial Relations
Commission stated that:95
“… in some cases, it would not be practicable to guard against a detriment to safety
occasioned by an appropriately trained and instructed employee departing from a
known safe procedure. This may be so because the risk of the employee failing to
follow procedures was not reasonably foreseeable or on a comparison of the training
and instruction required to ensure the employee adhered to those procedures with the
risks created. There are limits to the degree of instruction which can be expected to be
provided to an experienced employee.”
[199] Given the extreme risk associated with the task, a supervisor ought to have been
present for the duration of the geofabric activity.
Ground 1(f) - the finding that the workers ought to have been provided with two-way radios
and been directed to use those radios to communicate with each other when moving plant is
operating in the vicinity of pedestrian workers.
[200] In respect of ground 1(f), BMD submitted:
1. The learned Magistrate's finding that workers ought to have been provided with
two-way radios and been directed to use those radios to communicate with each
other where moving plant is operating in the vicinity of pedestrian workers, is
unreasonable and not supported by the evidence:
(a) The Prosecution led no evidence as to the lack of availability of two-way
radios on the day of the incident. In this respect:
(i) Mr Sills gave evidence about a meeting where an alleged issue
regarding a shortage of radios was raised and he was told ‘we’re
getting to it’, though he said this meeting was with ‘a lot of Protech
workers’, and does not mention anyone from BMD being present or
otherwise formally notified of this alleged concern. No other
evidence was otherwise forthcoming regarding this alleged meeting.
(b) The learned Magistrate found that communication between the pedestrian
workers and plant operator had been established using a combination of
radio contact and hand gestures.
(c) The incident on 8 June 2020 occurred despite Mr Sills and Mr Page both
having two-way radios available at the time. Mr Sills had a two-way radio
on his person, and Mr Page had access to the radio installed in the grader.
Mr Sills and Mr Page knew to use the two-way radio to establish positive
communications, given the JHA completed the morning of 8 June 2020
identified the two-way radio (using channel 39) as the nominated method
of communication between operators and pedestrian workers, and the
evidence establishes Mr Sills an Mr Page communicated using the two-
way radio shortly before the incident while completing the same tasks.
95 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267;
(2001) 110 IR 57 at [67] (per Wright P, Walton VP and Hungerford J).
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41
(d) On 8 June 2020, the workers had two-way radios available which they
knew how to use, and had used in the lead up to the incident. Nevertheless,
for an unknown reason, the workers did not communicate using the two-
way radios in accordance with the JHA when establishing positive
communications the second time, and instead communicated using hand
signals. It was not demonstrated how, given the clear and unambiguous
signal for the grader to recommence, and given that it appears none of the
workers noticed the subsequent proximity of the grader to the pedestrian
workers until it made contact with Mr Sills, that a direction to use two-
way radios would have assisted to minimise the risk of the incident.
(e) The learned Magistrate found that the pedestrian workers were aware of
what ‘positive communications’ meant when interacting with plant
operators.
(f) No evidence was led by the Prosecution regarding the factors the learned
Magistrate was required to apply to decide the matters set out in ss 17, 18
and 19 of the WHS Act, in particular the number of workers on the
project, the size of the project, the availability of radios installed in plant
and machinery, or available to be carried by workers, and as such, the
learned Magistrate erred when finding the control measure was reasonably
practicable.
[201] The learned Magistrate found that BMD should have ensured their supervisors were
monitoring the use of two-way radio broadcasts and been alerted to the need to
intervene when there was no response broadcasted on the radio channel, 96 despite that
not forming part of the WHSP case and in the absence of any evidence concerning
whether such a step was reasonably practicable.
[202] BMD’s BOLT Module – Plant and Equipment Management (Exhibit 4 at trial),
referred to a variety of communication methods being appropriate in relation to blind
spot awareness and controls, such as two-way radios, verbal or hand signals.
[203] His Honour took into account Mr Sills’ evidence that there were not enough two-way
radios supplied for workers and that there was no spotter. Mr Sills’ evidence was that
he had a radio and so did Mr Page, so between the two relevant parties there was an
ability to communicate via two-way radio, which in fact happened. There was no
specific spotter engaged to solely monitor the geofabric or grading task but there were
spotters monitoring other activities at the gate.
[204] The evidence of Mr Dawson was that although he did not have any radio
communication, he had a line of sight.
[205] Mr Sills and Mr Page both had two-way radios. At all times there was the provision
of two-way radio communication between the two groups.
[206] The evidence given by the workers was that they had been trained, were aware and
understood what they were supposed to do in respect of a situation such as this: that
there was to be an exclusion zone, positive communications and there was to be a
JHA. BMD submitted that in those circumstances, it was not demonstrated on the
evidence that it was a reasonably practicable step to require the supervisor, Mr
96 Magistrate Court Decision, pg 29.
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42
McNamara, to be there giving precise instructions to Mr Page to stop the grading
activity whilst this work was being undertaken, because there was a range of
procedures that the workers knew about and, as can be seen from Mr Sills’ own actions
to Mr Page at the beginning of the exercise, knew had to be implemented.
[207] The error with respect to this finding is that what happened here, that being the grader
recommencing operation, was not a problem that arose due to lack of radios. It was a
problem that arose because of what was communicated and the lack of supervision. It
was not through any lack of effective means of communication that the grader
restarted. The grader restarted because Mr Dawson gave it the accepted signal, being
a thumbs up, to restart.
[208] The Excavation work Code of Practice 2013 required a system of communication to
be in place that should not only stop ground workers from approaching mobile plant
but should stop operators from moving plant closer than a set distance until they were
advised of proposed movement.
[209] In addition, BMD’s Work Method Statement Operation of Mobile Plant required that
positive communications were used before plant could move.
[210] The WHSP alleged that BMD ought to have provided workers with two-way radios
and directed them to use those radios to communicate with each other where moving
plant is operating in the vicinity of pedestrian workers. The learned Magistrate found
that the pedestrian workers were aware of what ‘positive communications’ meant
when interacting with plant operators, and the parties did use the radios to
communicate.
[211] Mr Page was found not guilty in circumstances where the learned Magistrate found
that:
1. Mr Page received verbal and non-verbal positive communications from both Mr
Sills and Mr Dawson via the two-way radio and through thumbs-up hand
gesture;
2. following instruction from Mr Sills, he paused the operation of the grader and
parked;
3. Mr Dawson had given Mr Page the ‘thumbs up’ signal to indicate that Mr Page
could recommence grading. Mr Dawson said he accepted that his signal meant
that Mr Page was ‘good to go again’ and that both he and Mr Sills ‘were well
clear of him’;
4. following receipt of the go-ahead from Mr Dawson, Mr Page moved the grader
and recommenced the trimming activities in the grader;
5. the movement of the grader only recommenced after Mr Page had received a
‘thumbs up’ hand signal from Mr Dawson;
6. Mr Page was required to monitor not only the surface area he was grading but
also other activities including the grader’s blade;
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43
7. the evidence clearly showed Mr Page was aware of the presence of Mr Sills and
Mr Dawson on the ground at the excavation area and that they had asked him to
pause grading activities while they laid out the geofabric;
8. Mr Page complied with that communication and stopped grading;
9. it was not until after Mr Page received a further positive communication
‘thumbs up’ signal from Mr Dawson, that he recommenced grading. At that
time, it is at least inferentially the case, that Mr Page understood it was safe for
him to proceed with his activities, in the belief the ground workers were clear
of the area he was to undertake the fine trimming; and
10. both Mr Dawson and Mr Sills allowed themselves to be, or at the very least, to
remain in a position where they were in the exclusion zone for the grader, after
they had essentially told Mr Page it was safe for him to proceed.
Conclusion
[212] It is agreed that there was a risk a pedestrian worker could be struck by moving plant
causing serious injury. Was the evidence capable of establishing that the control
measures which were identified in paragraph 6 of the complaint were reasonably
practicable to eliminate or minimise the risk?
[213] BMD’s safety documents demonstrate the Hazard Risk was known and foreseen by
BMD. The safety documents set out the extent of, and the potential, control measures
which could be implemented to eliminate/minimise the identified risk.
[214] BMD had a Plant and Equipment Management Core Operating Procedure manual
(COPM) whose stated purpose was to outline and detail the processes to ensure the
safe and controlled operation of plant and equipment on a BMD-controlled site. It
covers the use of earthmoving equipment and high-risk plant. The COPM identifies
that people-plant interaction is known to be a high-risk construction activity. The
operator of all mobile equipment must ensure the equipment is installed with an
operational two-way radio. Control measures such as the use of a two-way radio, the
use of a controller or spotter to monitor plant movement, and the cessation of work in
certain circumstances, are identified.
[215] The material contained in the COPM demonstrates BMD was aware of the potential
hazards on site and had identified risk minimisation steps that could be taken in
relation to this high-risk activity.
[216] The WHSP submitted, and I agree, that if these risk minimisation measures are
nominated in BMD’s own safety system material, it is reasonable to infer that these
measures were reasonably practicable to have been implemented at the time. It would
be illogical to decide that the control steps identified within BMD’s own manuals
were never genuinely intended to be implemented. It is reasonable to infer that these
identified measures were not listed merely to pay lip service to safety measures but
were listed so that they would be implemented. It was accepted by the WHSP that the
identified control measures were to a degree “high-level” and that there would still
need to be that nexus between the risk that’s articulated in the complaint and the
control measure, such that it is reasonable to conclude it would have eliminated or
minimised that risk, before the failure to implement it could constitute a breach.
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[217] A WMS was in place at the site on the day of the accident. Part of the WMS sets out
the probability of a risk eventuating without control measures in place. BMD had
assessed at the time the relevant hazard, being plant movement with ground personnel
in the vicinity, that the impact “struck by plant, personnel injury”, as being likely in
terms of probability, the risk was extreme without control measures, and the
consequences being major. BMD set out in its safety documents the control measures
it considered appropriate to manage those risks. The controls identified were:97
“Plant movement is not to be undertaken if the operator has not confirmed
positive communication between themselves and the surrounding
workers/spotter or other plant”;
“the operator is to cease movement if loss of sight or positive communications
is lost with the workers in the area”; and
“five-metre exclusion zone from all non-slewing plant”.
[218] Training documents indicate induction training regarding plant movement with
ground personnel in the vicinity of other work crews included references to:
need for an exclusion zone;
a nominated position of safety to be identified for all areas of work;
JHAs – job hazard analysis – which were to be completed for site specific tasks;
where plant is operational, ground personnel must be in nominated position of
safety. If personnel wish to move from nominated position of safety, positive
communications must be established and plant must be made fundamentally
stable; and
witches hats and flagging.
[219] COPM makes reference to the following measures with respect to people-plant
interaction:98
the use of risk management processes and the implementation of control
measures to remove or reduce the hazards of this operation;
“Control measures include but are not limited to:
o developing and implementing a traffic management plan for any traffic
control activities being undertaken; and
o developing and implementing a WMS to identify any risks and implement
control measures to prevent or minimise the risk for any construction work
being undertaken;”
“Operators confirming that positive communication has been established
between themselves and the surrounding workers/spotter prior to any movement
of mobile plant onsite”;
97 Exhibit 1 – Agreed Trial Bundle, tab 26, BMD Work Method Statement – WMS No: 005.1 – General
Earthworks (including Cleaning and Grubbing), pgs 998-999.
98 Exhibit 1 – Agreed Trial Bundle, tab 17, BMD Plant and Equipment Management – Core Operating
Procedure, pg 916.
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45
“confirmation can be established by means of radio communication, (2-way
– mandatory for Controllers) or positive line of sight”;
“Plant movement is not to be undertaken if the operator has not confirmed
positive communication between themselves and the surrounding
workers/spotter, stopping immediately when positive communication ceases”;
“Organising, coordinating and monitoring work processes to reduce interaction
between workers and mobile plant”;
“Using an onsite controller/spotter to authorise and monitor the movement
of mobile plant in all circumstances”;
“Using a controller/spotter to control all reversing operations. The controller
must be in a position that does not place them at risk from contact from the
reversing vehicle, and the driver must always maintain sight of the spotter.”
[220] While a measure may be objectively a reasonable measure to list as a possible control
measure, it does not necessarily follow that that measure was required to be
implemented in every scenario. Further, gaps in the evidence give rise to a reasonable
doubt about whether the particularised measures were in place.
[221] The Particularised Control Measures identified are known control measures.
However, the evidence fell short of identifying why all of the Particularised Control
Measures were reasonable in the specific circumstances.
[222] No evidence was led about the assessment of risk vis-à-vis the cost or burden of
implementing the Particularised Control Measures but these matters, at least in
relation to the use of a limited supervisor or spotter, could reasonably be inferred.
[223] The learned Magistrate was satisfied that BMD had a comprehensive package of
training and instruction in place for all workers before they could enter the site. He
accepted the evidence from the workers called to give evidence that they had attended
and passed a pre-start induction program. His Honour says in the next paragraph:99
“The issue is not one of the absence of appropriate health and safety procedures and
training, but rather it is one of what the court finds on the evidence to be an insufficient
compliance and enforcement of those procedures.”
(emphasis added)
[224] The steps that are to be taken in performance of the duty are those that are reasonably
practical for the employer to take to achieve the identified end of providing and
maintaining a safe working environment. A policy may identify that a spotter may not
be required in every situation, but it is reasonable to infer that it was likely to be the
most effective control measure in this situation.
[225] It is evidence from BMD’s safety material and induction training that it was alive to
the extreme risk posed by plant and people operating together on a worksite.
Comprehensive attention was paid by BMD in its safety and training materials to
99 Magistrate Court Decision, pg 29.
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workers’ awareness of hazards, the risks those hazards posed, and the steps which
could be implemented to eliminate or minimise the identified risk.
[226] The evidence before the learned Magistrate demonstrated that the risk and
Particularised Control Measures were known by BMD as being measures which could
be implemented to eliminate or minimise risk. The evidence supported the findings
that those measures were available, practicable and reasonable.
[227] The Particularised Control Measures in grounds (c) and (d) of implementing
supervision and a spotter were within the power of BMD to control, supervise and
manage.
Costs
[228] Costs usually follow the event and are ordered to be paid on a standard basis.100 There
is no basis to depart from the usual order.
[229] The appellant is to pay the WHSP’s costs of and incidental to the appeal on a standard
basis.
Orders
[230] The Court orders that the appeal on conviction is dismissed.
[231] The appellant is to pay the WHSP’s costs of and incidental to the appeal on a standard
basis.
[232] I will hear the parties in relation to sentencing.
100 Uniform Civil Procedure Rules 1999 (Qld) r 702.
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Official source: https://www.sclqld.org.au/caselaw/QDC/2026/005