Moore v SD Tillett Memorials Pty Ltd [2002] SAIRC 47 (8 November 2002) South Australian Industrial Relations Court [Index] [Search] [Download] [Context] [Help] Moore v SD Tillett Memorials Pty Ltd [2002] SAIRC 47 (8 November 2002) Last Updated: 4 February 2003 Moore v SD Tillett Memorials Pty Ltd [2002] SAIRC 47 INDUSTRIAL RELATIONS COURT (SA) MOORE, Ashleigh v SD TILLETT MEMORIALS PTY LTD JURISDICTION: Prosecution FILE NO/S: AMC-01-13363 HEARING DATES: 11 and 12 September 2002 JUDGMENT OF: Industrial Magistrate M Ardlie DELIVERED ON: 8 November 2002 CATCHWORDS: Prosecution - Plea of not guilty - Alleged failure to provide and maintain so far as was reasonably practicable a safe system of work - Alleged failure to provide such information instruction training and supervision that was reasonably necessary to ensure that its employee was safe from injury and risks to health - Employee fatally injured when granite sheets loaded on a "A" frame pallet fell trapping employee between the granite sheets and a metal table - Held - Onus of proving charge beyond reasonable doubt not discharged - Defendant not guilty - S 19(1) Occupational Health Safety and Welfare Act 1986. REPRESENTATION: Counsel: Complainant: Mr K Soetratma Defendant: Mr A Martin with him Mr P Hannon Solicitors: Complainant: Crown Solicitor's Office Defendant: Duncan Basheer Hannon 1 The defendant company has pleaded not guilty to charges laid under the provisions of s 19(1) of the Occupational Health Safety and Welfare Act 1986 ("the Act"). 2 The defendant is charged on complaint that:- "On the 21st day of December 1999 at Hindmarsh in the said State, being an employer, failed to ensure so far as was reasonably practicable that its employee, namely Craig Anthony Bacon, was, whilst at work, safe from injury and risk to health and, in particular: (a) failed to provide and maintain so far as was reasonably practicable a safe system of work; and (b) failed to provide such information instruction training and supervision as were reasonably necessary to ensure that the employee was safe from injury and risks to health." 3 The particulars in support of the complaint are as follows:- "1. At all material times the defendant carried on a business involving the importing, manufacture and processing of natural stone, including granite. 2. At all material times Craig Anthony Bacon ("the employee") was employed by the defendant as a machine operator. 3. On 21 December 1999 the employee was assisting another employee, Graham Muscat, move an "A" frame loaded with approximately seven granite sheets by use of forklift. 4. The employee was fatally injured when the granite sheets loaded on the `A' frame fell, trapping him between the granite sheets and a metal table. 5. On the said date the defendant failed to provide and maintain, so far as was reasonably practicable, a safe system of work in respect of its employee in that it: (a) failed to provide and maintain a safe system for the movement of `A' frames loaded with granite sheets; and (b) failed to provide and maintain a safe system for the loading and storage of granite sheets on `A' frames. 6. On the said date the defendant failed to provide such information instruction training and supervision that was reasonably necessary to ensure that its employee was safe from injury and risks to health in that it: (a) failed to provide adequate information instruction and training to Graham Muscat in relation to the safe movement of "A" frames loaded with granite sheets; (b) failed to provide adequate supervision for the employee and Graham Muscat; and (c) failed to provide adequate information instruction and training to the Operations Manager, Stephen Tanner in relation to the loading and storage of granite sheets on `A' frames." 4 This proceeding is a criminal prosecution in the strictest sense of that term. The prosecution bears the onus of proving each necessary element of the offence charged beyond reasonable doubt. The defendant does not have to prove anything. 5 It has been held that the essence of the offence created by s 19 arises from putting an employee at risk, rather than any injury which may have resulted. Once such a risk has been proved it is not an essential ingredient of the offence for the prosecution to prove precisely how that risk became evident and caused a particular injury. See Arrowcrest Group Pty Ltd v Stevenson (1990) 57 SAIR 368 in particular at 373 - 374. 6 The key elements or ingredients of the offence created by Section 19 were considered by the Full Court of the Supreme Court in CSR Ltd. trading as CSR Wood Panels v Stevenson (1995) 184 LSJS 204 in particular at 205 per Lander J. 7 The Full Court of the Supreme Court again dealt with the key elements of the offence created by s 19 in Softwood Holdings Limited v Stevenson (1996) 188 LSJS 482. At 484 Prior J with whom the other members of the Full Bench concurred set out the ingredients:- "I agree with the submissions put by the Solicitor General. The respondent had to prove beyond reasonable doubt that the appellant was an employer, that it employed Pasin, that Pasin was exposed to a foreseeable risk of injury and that there were one or more measures which the appellant may have practically taken, but did not take, which would have eliminated or ameliorated that risk. The risk must be a foreseeable risk because the obligation upon the employer is to ensure the safety of the employee, `so far as is reasonably practicable'. The evidence clearly established beyond reasonable doubt that Pasin had been exposed to a foreseeable risk of injury. Indeed the evidence justified a finding that the appellant foresaw the risk of injury arising from the system of work actually in place. Nevertheless, all that was necessary for the prosecution to prove was that the system used by the appellant on the relevant day was unsafe and that, as a result, there was a foreseeable risk to an employee. The system of work in this case was one involving a foreseeable risk that the timber stacks would be unstable and that they might fall and cause injury. The risk was foreseeable, even if it was unlikely or improbable: Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47-48. The evidence before the Magistrate was to the effect that the stack was unstable, with everyday events likely to cause injury. The system of work gave rise to a foreseeable risk of injury regardless of the reason for the collapse on this occasion. The stacking of the timber caused a foreseeable risk of collapse as a result of a combination of everyday events. The appellant's liability was established, even if it was not reasonably possible to `envisage the precise concatenation of circumstances' that gave rise to Mr Pasin's death. The contrary submission put below and before this court is incorrect. The mere fact that the way in which an injury happened could not be anticipated does not exclude liability. The charge was proved beyond reasonable doubt. The appeal must be dismissed." 8 It is common ground that the defendant was the employer of Craig Anthony Bacon on 21 December 1999. Further it is not disputed that Craig Anthony Bacon was fatally injured on 21 December 1999 when he was in the process of assisting another employee Graham Muscat in moving an "A" frame loaded with approximately 7 granite sheets by use of a forklift when the granite sheets fell and trapped Craig Anthony Bacon between the granite sheets and a metal table. Therefore with reference to the elements or essential ingredients of the offence it has been established that the defendant was an employer, that it employed Craig Anthony Bacon and that in the course of his work the defendant required Craig Anthony Bacon to assist his co-worker Graham Muscat as his "offsider" in carrying out the work particularised. 9 Further it seems clear on the evidence that Craig Anthony Bacon was exposed to a foreseeable risk of injury in that moving granite slabs on "A" frames without strapping was work that entailed a risk to the health or safety of Craig Anthony Bacon arising from the system of work so employed by the forklift driver Graham Muscat. 10 The prosecution bears the onus of proving that there were one or more measures which the defendant may have practically taken, but did not take, which would have eliminated or ameliorated the risk. Further the risk must be a foreseeable risk because the obligation upon the defendant is to ensure the safety of the employee "so far as is reasonably practicable". 11 Likewise the prosecution bears the onus of proving that the defendant failed (as it has particularised in par 6 of the particulars) to provide such information instruction training and supervision that was reasonably necessary to ensure that its employee was safe from injury and risks to health in that it:- (a) failed to provide adequate information instruction and training to Graham Muscat in relation to the safe movement of "A" frames loaded with granite sheets; (b) failed to provide adequate supervision for the employee and Graham Muscat; and (c) failed to provide adequate information instruction and training to the operations manager, Stephen Tanner in relation to the loading and storage of granite sheets on "A" frames. 12 The defendant SD Tillett Memorials Pty Ltd on 21 December 1999 carried on business as an importer and processor of stone including granite for use in grave stones, memorials, kitchen bench tops and so on. At the premises at Hindmarsh occupied by the defendant the stone and granite would be if necessary cut into slabs and then could be the subject of further processing such as exfoliation or a roughening process or polishing. During the course of the processing of the granite or stone movement and storage of the granite slabs from place to place within the factory was required. The movement of such material was achieved by use of a crane or a forklift. 13 On 21 December 1999 Graham Muscat was working the afternoon shift which commenced at 3.00 pm. Craig Anthony Bacon ("the deceased") was working as his offsider because Muscat had a back problem. Photograph 5 of Exhibit C1 depicts granite sheets stored on a pallet which Mr Muscat was trying to access to remove the same to be processed. He attempted to use an overhead crane but was not successful. He then decided to use a forklift. To do this he had to move an "A" frame loaded with granite slabs to enable him to use the forklift. 14 Mr Muscat positioned the forklift and used the forklift to move the "A" frame with the load of granite slabs. The granite slabs were not secured. The deceased apparently stood on the pallet to which the "A" frame was secured and endeavoured to steady the load of granite slabs whilst the forklift was moving. 15 Photograph 7 of C1 shows the distance that the "A" frame was moved in a northerly direction by the forklift operator Mr Muscat. The distance is approximately 1116mm. Apparently at the moment the forklift was stopped the load of granite slabs became unstable and moved forward away from the "A" frame in the direction where the deceased was standing. The deceased was unable to stabilise the granite slabs and he was trapped between the granite slabs and a metal table resulting in injuries being the cause of death (hereafter referred to as "the incident"). 16 Mr Peter Morris senior mechanical electrical engineer prepared a report dated 5 September 2001. (Exhibit C2). In that report Mr Morris calculated that the energy required that could possibly cause the slab on an "A" frame to tip or fall was very low and would be available at very low speeds of travel eg. slow walk. He also calculated the acceleration or deceleration required to cause the slab to tip or fall. This was also quite low and could easily be achieved with a moderate brake application of the forklift. He concluded that a suitable combination of energy and deceleration is easily achieved with a forklift operating at modest speeds and modest brake applications. He stated "for this load to be stable under expected operating conditions it needed additional restraint". 17 Mr Chris Tillett managing director of the defendant was interviewed and his interview was transcribed. (Exhibit C3). Mr Tillett indicated that SD Tillett Memorials Pty Ltd was in fact the employer of the deceased at the time of the incident. The deceased was employed as a machine operator and had been so employed for between 5-6 years. Mr Tillett indicated that at the time of the accident he together with Stephen Tanner the operations manager were responsible for the safe working conditions of employees at the defendants premises. Mr Tillett indicated that there was a company requirement to have material that was being moved secured and this was a standard operating procedure everybody was aware of it and it was drummed into employees continually. That to his knowledge this procedure of strapping was documented. 18 Mr Tillett was asked what conclusions were derived from the investigation of the fatal accident. His response was; "as I understand it we, Craig Bacon, the accident happened because Craig Bacon disobeyed an instruction by a forklift driver and also because the slabs were not strapped, however, if he hadn't disobeyed the instructions of the forklift driver the slabs would have just broken and yes the people would have been disciplined but there wouldn't have been the horrific consequences". Mr Tillett was also aware of an incident that happened in the morning of the fatal accident where slabs were not strapped and disciplinary action was subsequently taken. This involved Mark Wesley. 19 The complainant called a number of witnesses the majority of whom were either currently employed by the defendant or previously employed by the defendant. 20 Graham Samuel Muscat (hereinafter referred to as "Muscat") was the driver of the forklift on 21 December 1999. He was working on afternoon shift 3.00 pm - 11.00 pm. At the time of the incident he was described as a labourer and had been working for SD Tillett Memorials for almost four years. He held a forklift licence for a small forklift. 21 Muscat gave evidence that the night before the incident he did not get any sleep because his daughter had been taken to hospital due to an asthma attack. He attended work and requested time off due to this upheaval but his request was denied. 22 Muscat at the time of the incident was on light duties due to a back injury. the deceased was assigned to Muscat as his off sider to give him assistance to carry out his restricted or light duties. 23 Present on the afternoon shift on the day of the incident were Muscat, the deceased, John Harvey, Danny Nelson and a person called Frank. Frank was a contractor who cut out kitchen bench tops. John Harvey was the afternoon shift supervisor. Danny Nelson was an employee doing some overtime. 24 Muscat indicated that at the commencement of the shift he would receive a job sheet from Stephen Tanner who was the factory manager. Stephen Tanner would finish at 5.00pm with the afternoon shift having commenced at 3.00pm. The job sheet would indicate what work was to be performed during the shift. 25 The role of John Harvey the afternoon shift supervisor was described by Muscat as "if we had a problem we would go to him". 26 I summarise Muscat's evidence-in-chief of the events leading up to the incident as follows:- * The two granite sheets were required to be moved and taken to the polisher to be ground down (photograph 5, Exhibit C1). Stephen Tanner had given instructions for this to be done. * The two granite sheets could be moved either by using a crane or moving the "A" frame pallet shown in photograph 5 and then using a forklift to take the two granite sheets to the polisher. * Muscat tried to move the two granite sheets with the crane but found the slings were not suitable. * Muscat then decided to move the "A" frame pallet shown in photograph 5 which had seven or eight sheets of granite stacked on one side of the metal "A" frame. * Muscat retrieved the forklift and inserted the forks into the pallet ready to lift and shift it. * The deceased according to Muscat was standing on the pallet and leaning up against the granite sheets. The granite sheets were not strapped to the pallet. * Muscat apparently told the deceased "about 3 times not to stand there. I suggested him to stand on the side or stand on the southern side and just lean over and put his arms over, over the slabs". * The deceased did not move as requested. * Muscat proceeded to operate the forklift. The pallet was raised about 75mm off the ground and the forks were tilted back. * The forklift was then driven forward at a slow rate and then stopped. * At the moment the forklift was stopped the granite sheets started to fall onto the deceased. 27 Muscat was asked in evidence-in-chief to relate what his knowledge was of any rule of the company about strapping "A" frame pallets before moving them. "Q Did you know of any rule with the company that said that you weren't allowed to move any `A' frame pallet that was loaded unless it was strapped. A No." 28 He was then asked if he had moved "A" frames that were loaded before strapping them. He indicated that occasionally if there was an "A" frame in the driveway it would be moved up without strapping the "A" frames. This involved moving the "A" frame a distance of about 10 metres. When asked whether he had seen other people move "A" frames without strapping them he indicated that he had seen other people move "A" frames in the driveway "if we took "A" frames from the driveway out into the yard, like, pretty well a long distance, we would strap the "A" frames". 29 On the occasion of the incident the reason he put forward for not strapping the "A" frame pallet loaded with granite sheets was "I don't know, just rushing and, again, just wasn't with it that day. Just a stupid mistake". 30 Muscat at 42 of the transcript when asked for what period of time prior to the incident had he been moving unstrapped loaded "A" frames responded "only, like, when you - if you come across, like, there was an "A" frame in the driveway and you needed more room, that's the only time you would really move an "A" frame not strapped. As I said before, like, if we had to move "A" frames outside we would strap them". 31 I summarise Muscat's responses in cross-examination as follows:- * He agreed there were two rolls of strapping one at the front and one at the back of the factory with one strapping tool which was usually kept at the front of the factory. * He knew that each granite sheet or slab was quite valuable. * At 50/51 says he moved unstrapped "A" frame pallets 4 or 5 times in the three or four years he was working before the incident. * That "A" frame pallets were always strapped when being moved from the yard into the factory and from the factory outside into the yard. * As to why he did not strap the "A" frame at the time of the incident his response was "I thought, you know, like just moving it a short distance and it was like a flat surface, so it'd be OK; whereas if you went outside its all like uneven surface and that, and you get thrown around a bit on the fork". * He changed his response when asked again the number of times he had moved "A" frame pallets unstrapped from his evidence in chief namely 4 - 5 times to between 1 - 5 times. * He recalled seeing one other person (Mark Wesley) moving an "A" frame unstrapped and this occurred when he first started working. Again this differed from his evidence-in-chief when he stated that he had seen other people move "A" frames in the driveway area. * He knew that "A" frames had to be strapped when they were being taken out into the yard. * He could not recall if Darren Cooper the afternoon shift supervisor advised him that "A" frames must always be strapped. * Arising from a statement dated 5 December 2001 (Exhibit D3) he was not aware of any written procedure regarding the strapping of loaded "A" frames. He acknowledged that he was instructed that granite slabs on "A" frames had to be secured before they were moved and that he would strap such a load if he was taking it from outside to inside or from inside back outside to the yard. That on occasions he would not strap "A" frames when moving them short distances within the yard. 32 The complainant called Frederick John Harvey ("Harvey") a stonemason who had been working at SD Tillett Memorials Pty Ltd for about nine years as at the date of the incident. At the time of the incident he held the position of leading hand on nightshift. This did not involve telling people on his shift what work they were to do. Such directions came from the production manager Stephen Tanner. Essentially if anyone on that shift had a problem they would seek Harvey's advice and he would assist them with the problem. 33 Harvey was asked whether he was aware of any safety requirements in relation to the movement of "A" frames. He indicated that he was and "the requirement was that the "A" frame had to be strapped prior to moving to or from" and that that instruction was received from the production manager Stephen Tanner through a memorandum. He believed at the time of the receipt of the memorandum that Muscat was an employee. Apart from the memorandum he had not seen any other standard operating procedures in relation to the movement of pallet "A" frames. 34 Harvey recalled that he had seen a loaded "A" frame pallet being moved whilst unstrapped on one occasion. This involved a small "A" frame with bits and pieces on it and it was probably moved 5 - 10 metres. 35 Harvey in cross-examination was asked about the one occasion that he had seen an "A" frame with granite on it being moved without strapping. He thought it was some time ago when he went onto night shift in about 1995/1996 and he agreed that it had remained in his mind because it was contrary to company procedure and it had occurred after he had been provided with the memorandum concerning the procedure with the movement of loaded "A" frame pallets. 36 Harvey indicated that at the time of the incident there were two lots of strapping material one at the front and one at the back of the factory. 37 Harvey indicated that prior to the incident the rule was in place about strapping "A" frame pallets loaded with granite slabs however short a distance they were to be moved. He agreed that apart from the memorandum that he had received verbal instructions were given to people by way of reminder as to the strapping of "A" frame pallets loaded with granite slabs. It was clear in his mind that having received the memorandum that if an "A" frame had to be moved it had to be strapped. 38 Harvey in re-examination stated that in addition to receiving the memorandum he was also given verbal information by Stephen Tanner about the strapping of loaded "A" frames. He said Graham Muscat was not present at the time he was spoken to by Stephen Tanner. 39 Mark David Wesley ("Wesley") was called by the complainant. As at the time of the incident he had been working with SD Tillett Memorials Pty Ltd for about 10 years as a fork truck driver and a machine operator. That on the day of the incident he worked the shift prior to the afternoon shift. 40 On the day of the incident he was asked to move an "A" frame pallet into the factory a distance of about 10 - 15 metres. At the time the pallet was loaded with granite slabs he thought three, two on one side and one on the other. At the time he moved the loaded "A" frame pallet the granite slabs were not strapped. He had assistance from a person called Alex who was basically minding the slabs. That during the course of transporting the "A" frame pallet the front slab fell off. Alex was able to jump clear. He indicated that he had moved loaded "A" frame pallets before this incident without strapping maybe 2 - 3 times. He could not recall having seen other people moving unstrapped loaded "A" frames. He didn't strap the load because it was going into the driveway to remove the three slabs from the pallet. 41 Wesley was asked:- "Q What did you understand were the requirements in respect of moving loaded pallet "A" frames." A They should have been strapped. Q Where did you learn that from. A From a memorandum that went around." 42 He said that the memorandum was distributed before the incident. 43 In examination-in-chief he indicated that the incident was reported to a supervisor during the shift in which it occurred. 44 In cross-examination Wesley agreed that the incident had not been reported at 85 of the transcript. "Q Can I suggest to you (a) that you didn't report it and (b) the reason you didn't report it was because you knew that it had been broken in circumstances where you were in breach of a strict policy of the company, that these `A' frames with slabs on them not be moved unstrapped. Do you agree with those propositions." A Yes." 45 A memorandum (Exhibit D4) which was a warning from SD Tillett Memorials Pty Ltd to Wesley indicated that he had failed to report the incident and that further he had allowed a person to stand on the pallet while being transported by a forklift and that the materials were not strapped. 46 Wesley ultimately agreed that the incident was not reported by him to anyone in a supervisory capacity until after the incident when an approach was made by management to him. 47 The complainant called Stephen Lawrence Tanner ("Tanner"). He had worked at SD Tillett Memorials Pty Ltd from 1991 to 2000. He was production manager from 1991 to 1997 and operations manager from 1997 until when he left in the year 2000. He was asked if an "A" frame pallet had to be moved whether it had to be strapped. He indicated that the "A" frame pallet had to be strapped and that a document containing those instructions had been prepared he thought between 1994 and 1995. He was unable to produce that document. He was asked the reason behind the preparation of the document. "Q Do you recall why that document came into existence." A Yes, it did come into existence in two parts. Firstly, it had always been policy that if an `A' frame was to be moved it would be strapped, and secondly - I can't remember who it was - a person moved an "A" frame and actually - hit the side of a granite block and broke 3 or 4 slabs, so we combined the two, saying that an "A" frame had to be strapped before it was moved and that a second person had to be with the forklift driver to direct the forklift driver when moving any `A' frame." 48 Tanner kept no records of who received the memorandum. He had no independent memory of supplying the memorandum to Muscat. 49 Tanner recalled verbally reminding everybody about strapping "A" frames before moving them. Muscat was the last person he saw at night and he always walked out at night to the car with him whilst instructions were given and he recalls on those occasions reminding Muscat not to move an "A" frame without strapping it. 50 Tanner in cross-examination indicated that it was important that the "A" frame pallets were strapped when they were moved because of the cost per slab "and of course the safety side of it - having them fall off - it was imperative that they were always strapped before they were moved". He indicated that apart from the original memorandum he verbally reinforced the need to strap "all the time". That apart from the original memorandum and the verbal reinforcing of the need to strap there was no other method employed prior to the incident to reinforce the requirement. 51 Tanner indicated that the memorandum dealt with two issues firstly a reduction to writing of the requirement that slabs be strapped and a further requirement being a new requirement that there will always be an accompanying person when slabs were being moved in the factory. He was the author of the memorandum. Each forklift driver was given a copy at the time it was produced. Additional copies were produced and placed at a desk and also on the main noticeboard outside the production office and following that there was a verbal reinforcement of the procedure on a continuing basis. He indicated that there was zero tolerance and that "A" frames must always be strapped before being moved. He was not aware of any breaches of that procedure either from his own observations or from a report being made to him. 52 Tanner indicated that the requirement to strap applied to any movement and was not confined to movements from outside the factory into the factory and from the factory to outside. Tanner stated "as I said before, particularly if there was an "A" frame in the driveway and a block had to be moved in and you had to only either move the "A" frame forward or move it back or whatever, it was always, make sure you strap it before you move it". Whilst Tanner indicated that he had verbally reinforced the procedure to Muscat on several occasions he could not indicate a specific day or date when such verbal reinforcement took place. 53 The complainant called Roberto Radonga ("Radonga"). He was at the date of the incident a storeman and packer. Occasionally he would construct an "A" frame pallet. He indicated that if an "A" frame loaded with slabs had to be moved it should be strapped. He said he learnt of that by written instruction and by word of mouth. He knew of the document containing that instruction. He indicated that Stephen Tanner verbally instructed him as to the requirement of strapping. 54 Radonga indicated that on one occasion he had moved a pallet "A" frame unstrapped which had a slab on it. When asked why he didn't he strap it his response was:- "It was only going in half a metre and as the afternoon shift supervisor I took the responsibility of moving it over that half a metre safely." 55 Radonga in cross-examination agreed that there was no exception to the rule that whenever a loaded "A" frame was to be moved the slabs must be strapped. This applied no matter how inconvenient and however minor the move and this was made clear to him on repeated occasions by Stephen Tanner and Bill Loechel (the factory foreman). 56 Radonga was aware that his movement of the one slab even a very short distance was against the rules and if he was found out he would be in "deep trouble". 57 That the requirement of strapping before moving was a requirement that was in place before the incident. He had never seen anybody else move unstrapped slabs on an "A" frame pallet and if he had he would have put a stop to it. 58 Radonga made mention of "the bible" and explained that that was a procedure folder containing certain procedures relating to the business. That this folder was in existence before the incident and was available to anyone who wanted to read it but a copy had not been provided to him. 59 The defendant called Darren Seymour Cooper ("Cooper") whose present occupation was described as real estate salesperson. He had been working at SD Tillett Memorials Pty Ltd from 1991 to 1998 leaving in about February 1998. That he was the afternoon shift supervisor for between three and four years prior to him leaving in February 1998. He was asked whether there was any requirement to be observed before transporting the granite by means of the "A" frame pallets. He indicated that primarily the granite slabs had to be strapped before they were moved and speed was to be kept very low when transporting. That when slabs were first shifted around on "A" frames Stephen Tanner and Cooper made the decision before starting to move the "A" frames to actually strap the slabs. That this was documented and the document was circulated at the time to all forklift operators. Copies of the document were kept in the block saw operators area which was where most of the forklift work was done. 60 Cooper indicated that there were no circumstances when it was permitted to move slabs of granite on "A" frames without strapping. 61 Cooper indicated that apart from the documentation the rule was enforced frequently. He would receive a job sheet that detailed any slabs that had to come inside to the factory on "A" frames and it was always reinforced on the job sheets that slabs on "A" frames had to be strapped. In addition this was verbally repeated by Stephen Tanner when Stephen Tanner went with him to pick out the slabs. 62 Cooper was asked about shifting "A" frames short distances to gain access to other materials. Cooper indicated that the strapping requirement still prevailed. Whilst he was at the factory he did not move an "A" frame with unsecured slabs on it nor did he see anyone else do it. 63 The verbal instruction to strap was something that Stephen Tanner would always pass onto him when they looked at slabs that needed to be picked out. Cooper also gave instruction to people about strapping the slabs. 64 Cooper indicated that towards the end of his employment he started to teach Muscat his job which was the shift supervisors position. That he was training Muscat for about two weeks because Muscat knew most of the job anyway. Cooper indicated that he gave instructions to Muscat at the time concerning the movement of slabs on "A" frames, namely that they were required to be strapped. 65 Cooper recalled his last day in the factory and walking out with Muscat and that his last words to Muscat were reinforcing the need to strap "A" frames before movement. 66 Cooper indicated that even if slabs on "A" frames had to be moved from one place to another within the factory they still had to be strapped. 67 Cooper could not say that he had seen the document containing the standard operating procedure regarding the strapping of slabs actually being handed to Muscat. Cooper indicated he knew Muscat was aware of the procedure because he made Muscat aware of it. Cooper conceded however that Muscat may be right in saying that Cooper did not really teach him about "A" frames because Muscat learnt that on day shift. 68 Cooper however remained firm in his belief that on leaving the factory for the last occasion when he was ceasing his employment that he did refer to the need to strap "A" frames. 69 Having set out above a summary of the various witnesses and exhibits I turn now to analyse the evidence to see if the complainant has satisfied the onus. 70 Exhibit C3 the interview of Mr Chris Tillett managing director contains a statement from Mr Tillett that he and Stephen Tanner the operations manager were responsible for the safe working conditions of employees at the defendant's premises. Mr Tillett in that record of interview indicated that there was a company requirement to have material that was being moved secured and this was a standard operating procedure. Everybody was aware of it and it was drummed into employees continually. That to his knowledge this procedure of strapping was documented. 71 Leaving aside the evidence of Muscat for the moment the next witness was Harvey. Harvey indicated that he was aware of the requirement that "A" frames had to be strapped and that that instruction was received from Stephen Tanner through a memorandum. Harvey indicated that at the time of the incident there were two lots of strapping material one at the front and one at the back. That prior to the incident the rule was in place about strapping "A" frame pallets loaded with granite slabs however short the distance they were to be moved. He further indicated that apart from the memorandum, instructions were given to people as reminders concerning the strapping of "A" frame pallets. Such verbal information was conveyed to him by Stephen Tanner. 72 Wesley gave evidence that he understood that loaded "A" frame pallets when being moved were to be strapped and that knowledge came from a memorandum. That the memorandum was distributed before the incident. He agreed that by shifting an "A" frame pallet on the morning of the incident he was in breach of the strict policy of the company that the "A" frames with slabs on them had to be strapped. 73 Tanner indicated that an "A" frame pallet had to be strapped and that a document containing those instructions was prepared giving the direction that an "A" frame pallet had to be strapped before movement. He indicated that this reduced to writing the already existing requirement that slabs be strapped together with a further requirement being a new requirement that there should be an accompanying person when slabs were being moved in the factory. That he was the author of the memorandum. That the requirement was to strap it prior to any movement. That he recalls verbally reminding everybody about strapping "A" frames before moving them. Invariably Muscat was the last person he saw at night as he walked out to his car Muscat remaining on afternoon shift. He recalls on occasions reminding Muscat not to move an "A" frame without strapping it. 74 Radonga stated that an "A" frame loaded with slabs had to be strapped if it was to be moved. He learnt that by way of written instruction and by word of mouth. He knew of the document containing the instruction. Stephen Tanner verbally instructed him as to the requirement of strapping. He agreed that there was no exception to the rule that whenever a loaded "A" frame was to be moved the slabs must be strapped. He said this was made clear to him on repeated occasions by Stephen Tanner and Bill Loechel (the factory foreman). That the requirement of strapping before moving was a requirement that was in place before the incident. 75 Cooper stated that he knew of the requirement that granite slabs on "A" frames had to be strapped before they were moved and the speed was to be kept very low when transporting. He stated that when slabs were first being shifted around on "A" frames Stephen Tanner and himself made the decision before starting to move the "A" frames that the slabs had to be strapped. This was documented and the document was circulated at the time to all forklift operators. He indicated that there were no circumstances that "A" frames should be moved without prior strapping. That apart from the documentation the rule of strapping was enforced frequently. For example he would receive a job sheet detailing slabs that had to come inside the factory on "A" frames and it was always reinforced on the job sheets that slabs on "A" frames had to be strapped. Further Stephen Tanner verbally repeated the requirement to him when he went with Stephen Tanner to select certain slabs. Cooper indicated that whilst he was still employed at the factory he did not move an "A" frame with unsecured slabs. Cooper also gave verbal instructions to Muscat and he recalls that on leaving the factory when he ceased employment he referred to the need to strap "A" frames before movement in the presence of Muscat. 76 Muscat in evidence-in-chief indicated that he did not know of any rule of the company that indicated that "A" frame pallets that were loaded were not allowed to be moved unless they were strapped. He later changed his position still in evidence in chief and indicated that really the only time he would move an "A" frame without strapping it was when it was in the driveway and more room was needed. If "A" frames had to be moved outside they would be strapped. He changed his response regarding the number of times he had moved "A" frame pallets without strapping from his evidence-in-chief position 4 - 5 times in 3 - 4 years to between 1 - 5 times. Further he knew that "A" frames had to be strapped when they were being taken out into the yard which is contrary to his initial position that he knew nothing of a rule of the company indicating that workers were not allowed to move "A" frame pallets without strapping them. Exhibit D3 being a statement taken from him on 5 December 2001 was put to him. Muscat acknowledged that he was instructed that granite slabs on "A" frames had to be secured before they were moved and that he would strap such a load if he was taking it from outside to inside or from inside back outside to the yard. 77 Muscat stands alone when he disclaims in evidence-in-chief any knowledge of a rule that indicated that workers were not allowed to move "A" frame pallets loaded with granite slabs unless they were strapped. He backs down from this initial position that he occupied in evidence in chief to the position that he finally agreed with in cross examination and from the contents of Exhibit D3. Whilst he remained firm that he was not aware of any written procedure he acknowledged that he was instructed that granite slabs on "A" frames had to be secured before they were moved. That he would strap a granite load if he was taking the "A" frame from outside of the yard to inside or from inside to the yard back outside. However his position was that he did not strap "A" frames when moving short distances within the yard outside. Further I again highlight the fact that he changed his mind from the position of moving "A" frame pallets unstrapped 4 - 5 times to between 1 - 5 times. 78 It is my view that Muscat has tried to cover up the system of work that he adopted at the time of the incident. His denial of any rule about strapping loaded "A" frames is contrary to the evidence of all the other witnesses who were either former employees or current employees of the defendant. 79 I find in the circumstances that Muscat's evidence is unreliable as to the company rule that required loaded "A" frames to be strapped before any movement took place. Whilst the non-production of the memorandum troubles me its existence has been referred to by the witnesses except for Muscat and further there is a common thread through the evidence of those witnesses that there was a continuous verbal reinforcement of the requirement to strap loaded "A" frames. 80 Muscat's failure to strap the "A" frame pallet at the time of the incident is best summarised in his response to the question asked as to why he didn't strap the "A" frame pallet at the time of the incident such response being - "I thought, you know, just like moving it a short distance and it was like a flat surface, so it'd be okay; whereas if you went outside its all like uneven surface and that, and you get thrown around a bit on the fork". 81 The temptation was there to jump on the forklift and lift up the loaded pallet unsecured and move it forward approximately one and a half metres so he could gain access to the two granite slabs that he was required to work on. He failed to carry out the requirement of strapping which I find was well known to him and reinforced on a regular basis and further he proceeded to drive forward with the unsecured "A" frame loaded pallet on the forks of the forklift even though the deceased remained standing on the pallet on the same side as the unsecured slabs of granite. 82 The prosecution submitted that there were other things that could be done to ensure the safety of the employees. The suggestion was put forward that the procedure should be committed to writing. I find that despite the absence of the memorandum it had been committed to writing. The prosecution then indicated that such a document is to be distributed and a record made as to who received the document. This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees save and except for Muscat. As I have indicated I find that the evidence of Muscat is unreliable. It is understandable why his evidence is unreliable because he is trying to cover up his responsibility for the incident. The prosecution indicated that permanent signs erected in the appropriate area was something that could have been done. Having found that Muscat was aware of the rule to strap unsecured loads I consider that a sign wherever placed would not have dissuaded him from attempting to move the unsecured load the short distance that was required for him to access the two granite slabs. Muscat chose to adopt a system of work that was contrary to well known company policy and which resulted in the tragic death of Craig Anthony Bacon. 83 As to par 6 of the particulars which talks of a failure by the defendant to provide such information instruction training and supervision that was reasonably necessary to ensure that its employee was safe from injury and risks to health I find on the totality of the evidence the prosecution has failed to discharge the onus of proof with respect to all parts of par 6 of the particulars. Muscat was provided with adequate information instruction and training. There was adequate supervision in that Muscat was given directions both verbal and in writing (job sheets) by the operations manager Stephen Tanner and Frederick Harvey was readily available if there was a problem. There was adequate information instruction and training provided to the operations manager Stephen Tanner in relation to the loading and storage of granite sheets on "A" frames. Indeed I find that Stephen Tanner was the author of the memorandum as to the company procedure performing the movement of loaded "A" frames and that Tanner himself provided ongoing verbal instruction and reinforcement of the procedure. 84 I find on the totality of the evidence led by the prosecution that it has not discharged the onus of proving beyond reasonable doubt that there were one or more measures which the defendant may have reasonably practicably taken but did not take which would have eliminated or ameliorated the risk. 85 I find that there were constant verbal directions to strap loaded "A" frame pallets before any movement. The responsibility for the incident lies not with the defendant but elsewhere. 86 I therefore find the defendant not guilty.