DPP v Hungry Jacks, Visy & Veolia [2018] VCC 1454
Keywords: Reasonably Practicable; Control; Contractor Safety Management
The Hungry Jacks case is another contractor management case, but not in the construction industry. The case considers the question of expertise in the context of contractor safety and offers a good contrast with an early decision we discussed, ACR Roofing, while at the same time affirming the principles from that case.
The Case
Hungry Jacks engaged Veolia Environmental Services (Aust) Pty Ltd (Veolia) to empty the waste and recycle bins at one of their restaurants. Veolia engaged Visy Paper Pty Ltd (Visy) to collect the waste.
Visy collected the waste with an industrial rubbish truck, which used an attachment to lift large industrial bins up over the cab of the truck and dump the rubbish into the rear compartment of the truck. Once the bin was empty, it would be lowered back over the front of the truck to the ground.
The driver of the truck worked for Visy but was employed by a labour hire agency since May 2012. The accident occurred on 8 March 2013.
Prior to the accident, the driver had attended the Hungry Jacks store 70 or 80 times.
Early in the morning on rubbish collection days, the Hungry Jacks manager and an employee would move the bin to the end of the loading bay area where it meets the driveway. When the bin was emptied, the driveway used to enter the drive-through service area was blocked by the collection truck. There was no designated footpath in that area.
The driver of the truck gave evidence he would collect the rubbish between about 12 and 12:30 PM. He also gave evidence that emptying the bin at the site was difficult “because there were people walking around with cars coming in and out”. [11]
On the day of the accident, the driver arrived at the store at about 12:00 pm. According to the case, the driver followed his usual procedures and did the required checks before lifting the bin to empty it and again before lowering it after emptying.
While the driver was emptying the bin, two people were standing at the front passenger side of the truck just as the bin had been raised. After the bin had been emptied and was being lowered over the front of the truck, they walked past the front of the truck and were hit by the bin. One of them later died from their injuries.
The Findings
The published case is a sentencing decision and does not contain a detailed discussion about, or analysis of, the facts of the case. Because of this, it is difficult to understand all the arguments presented, however it is possible to draw some conclusions from the information provided.
The prosecution case was that the location of the bin and the time when they were emptied were the “matters that needed to be addressed in order to reduce the risk of interaction between trucks and pedestrians at the car park at the time the bin is emptied”. [18]
Relevantly, it was accepted:
The risks arising from pedestrians interacting with vehicles in the car park were ever present and obvious; but
The specific risk of being struck by the bin was unlikely, and at the outer limits of foreseeability.
However, Hungry Jacks argued they were not experts in waste collection and the engagement of external contractors to empty the bins was enough to discharge its statutory obligations under health and safety legislation. This argument was rejected by the jury in convicting Hungry Jacks, and on sentencing the Court recognised the merits of the argument, but accepted the position of the jury:
While I accept that submission has merit, ultimately, these were the very matters the jury were asked to consider. Clearly by its verdict, the jury did not accept the position taken by Hungry Jacks that it had discharged its statutory duties by engaging expert contractors and were in a position to do more to ensure the safety of persons other than employees at their site. Further, the evidence called on behalf of Visy from Robert Gajdek - the Visy Victorian fleet manager at the time with vast experience in logistics - stated that Visy can only make recommendations and that it is the customer that needs to maintain safety on their own site. [37]
Hungry Jacks had also argued that their lack of expertise should be taken into account by the court when determining penalty. The Court did not accept that, saying there was insufficient evidence to distinguish between the three companies in terms of responsibility for the incident.
The Court said that the companies were good corporate citizens, with established health and safety systems and the case was not an example of a “serious disregard to the safety of persons other than employees”. [48]
In the end, each of the three defendants was fined $275,000.
Comments
On its face, the decision seems to call into question the reliance a principal can place on an expert contractor. However, I think the case is consistent with decided authority, and the principle is still valid.
As discussed in the ACR Roofing case, there is a distinction between technical work wholly within the expertise of a contractor, and general, commonly understood hazards associated with work being performed by the contractor. For example, on most business premises traffic management and vehicle/pedestrian segregation is usually a matter within the control of the owner of the premises. If I drive onto a business premises, of course I have to pay reasonable care and attention as a driver, however, it is the owner of the business premises who manages traffic control including things like pedestrian walkways, speed bumps, signage and so on.
While Hungry Jacks might have been entitled to rely on the technical expertise of the other companies to deliver their services, this does not excuse or diminish Hungry Jacks’ obligation to things within their control – particularly commonly understood hazards, such as pedestrian/vehicle interaction.
While not expressly discussed in the case, it does seem things like the location of the bins, the thoroughfares around that area and control of traffic around the store were relevant matters within both control and expertise of Hungry Jacks. In other words, they were hazards which Hungry Jacks ought to have identified and addressed. It seems from the case, they had not.
Part of the argument in the case consider the issue of reliance on expertise more broadly:
… it was accepted by the prosecution that each of the defendant companies relied on the expertise of the truck drivers with respect to looking out for pedestrians. That said, he submitted that each of the defendant companies failed to have regard to the risks associated with the positioning of a large truck in a confined car park area at a time when pedestrian traffic was at its peak, in circumstances where the recycling bin was in a location accessible to pedestrians. [85]
In my view, this is the key issue in the case, and something which employers generally need to pay attention to. While Hungry Jacks was entitled to engage an expert contractor to perform the waste removal services – and probably had to in order to meet its own obligations under health and safety legislation – it still had its own obligations to understand the risks associated with that task on its premises, and how the performance of that task might impact on its own employees and members of the public.
This does not mean Hungry Jacks would have to understand the detail of how Veolia and Visy would perform the task. Hungry Jacks would not have to review their job hazard analysis or safe work procedures or anything like that. But, I think it would be reasonable, Hungry Jacks would have some general level of understanding about the task, and how that might contribute to existing risks, or create new risks, at the workplace.
You can read more articles in the Safety Case(s) series HERE.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.