The High Court Decision in Baiada Poultry Pty Ltd v The Queen [2012]  HCA 14

Baiada was prosecuted, in Victoria, for breaches of the OHS Act and was found guilty at first instance because it had control of the workplace and had failed to implement a safe system of work.   

The High Court quashed the original sentence and decision after unanimously finding that the trial judge had erred in failing to expressly direct the jury to consider  whether Baiada had, beyond reasonable doubt, done all that was reasonably practicable to provide a workplace that is without risk to health or safety.   

The Case 

Baiada Poultry Pty Ltd (Baiada) runs a chicken processing plant and has in place contracts for the raising, catching, crating, loading and delivery of chickens to that plant.  

Baiada engaged DMP Poultech Pty Ltd (DMP) to catch and cage chickens at a farm and then load the cages onto a trailer using a forklift, and also engaged Azzopardi Haulage to providetransport.  A Azopardi driver and truck to take an empty trailer of chicken cages, supplied by Baiada,  first to the farm where DMP would fill them and then to Baiada’s chicken processing plant.  No employee of Baiada was present on the farm during this process. 

An unlicensed fork lift driver was loading the cages onto the trailer once they had been filled when one of the cages fell from the trailer onto Mr Azzopardi, killing him.  

At trial Baiada argued, firstly, that it did not have control in relation to the traffic management employed by DMP at the time of the incident and so did not owe a duty with respect to that issue. Secondly, if it did have control in relation to the matter, it was entitled to rely upon the expertise of its sub-contractor (DMP), whose direct employee and forklift were involved in the incident. 

WorkSafe Victoria alleged Baiada should have, but had not: 

1. provided an adequate system of work that was to be followed at grower farms or broiler sheds;   
2. ensured that the forklift was operated by a properly trained employee; and   
3. identified and eliminated or controlled the risks associated with the system of unloading and loading live birds for transport at night.   

Baiada were found guilty at trial and the issue on appeal was whether the inadequate direction of the jury at trial had led to a substantial miscarriage of justice and so required a retrial to be held. In considering this procedural issue the High Court examined the nature of the duty owed by a Principal when engaging expert contractors. 

The court found that there had been a substantial miscarriage of justice because the trial judge failed to direct the jury that the prosecution had to prove beyond reasonable doubt that the appellant’s engagement of apparently skilled sub-contractors to perform the work did not discharge its obligation, so far as was reasonably practicable, to provide and maintain a safe working environment. 

In reaching its finding the court commented that the fact the prosecution had pointed to additional steps Baiada could have taken did not mean these steps were reasonably practicable.