Inspector Kenneth Vassell v Boral Construction Materials Limited [2004] NSWIRComm 29 (27 February 2004)

Last Updated: 4 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Kenneth Vassell v Boral Construction Materials Limited [2004] NSWIRComm 29

FILE NUMBER(S): IRC 1748

HEARING DATE(S): 12/03/2002, 13/03/2002, 14/03/2002, 04/11/2002, 15/11/2002, 27/11/2002, 28/11/2002, 25/03/2003, 04/04/2003, 20/06/2003, 27/08/2003, 29/08/2003, 16/12/2003, 18/12/2003

DECISION DATE: 27/02/2004

PARTIES:

PROSECUTOR:

Inspector Kenneth Vassell

DEFENDANT:

Boral Construction Materials Limited

(ACN 000 614 826)

JUDGMENT OF: Schmidt J

LEGAL REPRESENTATIVES

PROSECUTOR:

Ms PE McDonald of counsel

SOLICITORS:

Carroll & O'Dea

DEFENDANT:

Mr AL Hill of counsel

SOLICITORS:

Hunt & Hunt

CASES CITED: Caterpillar Inc. v John Deere Limited (No 2) (2000) 181 ALR 108

Ludowici Ltd v WorkCover Authority of New South Wales (Inspector Kalanithy) (2000) 102 IR 347

WorkCover Authority of NSW (Insp Egan) v ATCO Controls Pty Limited (1998) 82 IR 80

LEGISLATION CITED: Evidence Act 1995

Occupational Health and Safety Act 1983

JUDGMENT:

- 37 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Schmidt J

DATE: 27 February 2004

MATTER NUMBER IRC 1748 OF 2001

INSPECTOR KENNETH VASSEL v BORAL CONSTRUCTION MATERIALS LIMITED

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

1 This prosecution was brought under s15(1) of the Occupational Health and Safety Act 1983 (‘the Act’). The defendant entered a plea of not guilty. It concerned events which occurred on 10 March 1999, on the Hume Highway near Goulburn, where an employee of the defendant was killed while working alone, loading a steel roller onto a truck. The loader had fallen during the loading operation.

2 The charge was:

'BORAL CONSTRUCTION MATERIALS LIMITED [ACN NO: 000 614 826], a corporation whose registered office is situated at c/- Boral Limited, AMP Centre, Level 39, 50 Bridge Street, Sydney in the State of New South Wales ("the defendant"), being an employer, on 10 March 1999, at a section of the Hume Highway between Paddys River and Barkers Bridge, near Goulburn in the State of New South Wales

FAILED TO

Ensure the health, safety and welfare at work of all its employees, in particular Paul Urquart, in failing to provide and maintain a system of work for the loading and/or unloading of twin drum steel rollers onto and/or off steel deck low loaders that was safe and without risks to health contrary to Section 15(1) of the Occupational Health and Safety Act 1983.

The particulars of the charge are:

a. The defendant was at all material times an employer and employed Paul Urquart;

b. The defendant at all material times carried on a quarrying, concrete, transport, asphalt and cement business and was contracted by the Roads & Traffic Authority ("RTA") to carry out asphalt rehabilitation of three sections of the Hume Highway between Paddys River and Barkers Bridge, near Goulburn in the State of New South Wales;

c. The defendant failed to provide and maintain a system of work for the loading and/or unloading of twin drum steel rollers onto and/or off steel deck low loaders that was safe and without risks to health and in particular:

i. Failed to adequately provide a safe method or procedure for the loading and/or unloading of twin drum rollers onto and/or off steel deck low loaders in circumstances where:

(a) the seat belt on the roller could not be properly utilised during the loading/unloading with the resultant risk that if the roller veered to the side of the low loader or tilted, the driver of the roller was not secure within the roller's rollover protective structure;

(b) the metal to metal contact between the twin steel drum roller and the steel deck low loader produced inadequate traction with the resultant risk of the roller slipping on the low loader;

(c) the steel cleats on the steel deck low loader could cause the roller to bounce with the resultant risk of the roller veering to the side of the loader or tilting;

ii. failed to adequately assess the risks involved in the loading/unloading the twin steel drum roller onto the steel deck low loader;

d. As a result of the said failures Paul Urquart sustained fatal injuries.

3 Evidence was called from Inspector Kenneth Vassel, safety inspector, WorkCover Authority of New South Wales; John Goldie, retired Detective Sergeant of Police, Crime Scene Unit, Police Station Goulburn; John Gilbert, direct plant mechanic; Mario Grima, paver operator; William Jeffs, paver operator; Martin Jones, manager; Patricia Mace, New South Wales occupational health and safety manager for the Australian Industry Group; Steven Vella, heavy haulage supervisor; George Kriflik, student; Stephen Shepley, proprietor of a heavy haulage company; Robert Hindley, general manager, human resources for Boral Construction Materials Group; Neil Dodd, Company director-truck driver, Ian McKim, fleet engineering manager with Boral Transport; Graham Weeks, trainer action investigator for Decal Training; Robert Angus, General Manager of Boral Transport; Geoffrey Senz, freelance automotive consultant; Scott Yates, driver/operator for Kingston Heavy Haulage; Kevin McDonnell, engineering manager for J Smith & Sons Pty Limited. An inspection of the roller being loaded onto the low loader was also conducted, at one of the defendant's yards. I note that the low loader, which had been sold by the defendant prior to this inspection, had been modified after the accident, by the size of the cleats on the ramp being reduced. The roller was driven by Mr Yates.

4 The evidence was that the accident occurred on the side of the Hume Highway, south of Goulburn, in the northbound lane. Mr Urquart was discovered by Mr Jeffs, another Boral employee, who was returning to the site from Goulburn. He noticed the float, pulled over and heard the reversing beeper of the roller when he got out of his truck. He found Mr Urquart and alerted authorities. Whether or not the roller was reversing at the time it toppled from the loader, was not known and not an issue in the case.

5 Mr Urquart was found lying on the grass beside the loader, with his head and part of his shoulder under the top of the loader canopy. The seat belt was not buckled up. It was apparent from the evidence that Mr Urquart had not been wearing the seat belt when the accident occurred. Mr Gilbert, Mr Grima and Mr Jeffs, who were working about half a kilometre away, also attended the site of the accident, after having been alerted by a passer-by.

6 Mr Urquart had been employed by the defendant for over 20 years. He had been driving floats like that involved in the accident for some two years. Prior to that he had been employed by the defendant in various managerial capacities, for many years. He had originally been employed as a driver.

7 The accident occurred while Mr Urquart was driving the roller up the ramp of the loader. The roller toppled off the side of the loader. Mr Urquart was thrown off the loader and crushed by the rollover protection bars. Detective Goldie's evidence was that when he attended the site, he observed that the vibration settings of the two rollers indicated that the front roller was in vibration mode. The vibrations were activated by a control at the right of the driver's seat. Detective Goldie took various of the photographs in evidence and had prepared diagrams of the accident site.

8 An RTA report into the accident indicated that at the time of the accident, at about 8am, the temperature was 11.7 degrees, sky visible, fog at a distance and no wind. A heavy dew had been reported that morning, which Mr Jeffs confirmed. Mr Grima also confirmed that the grass was wet, when he arrived on the scene.

9 The preliminary RTA investigation suggested that the cause of the accident was operator error, even though the operator had safely completed this operation many times before and had already completed one loading operation that day.

10 The loader was found to have one ramp and all driver side wheels positioned on the road pavement. The other ramp had a small corner on the pavement and the remainder supported by a wooden block, on the road verge. All nearside wheels of the loader were on the verge. The RTA report noted that it could not be concluded whether this had allowed the loader to tip left, causing the roller to slide left. The airbag suspension on the driver side had been partly deflated, apparently in an attempt to compensate for the difference in the heights of the road and the verge. The ramps of the loader had fresh scrape marks, consistent with the steel roller sliding across them.

11 The RTA report also referred to the police report, in which it was suggested that Mr Urquart had attempted to jump from the roller, but was trapped by the rollover projection cage, thereby sustaining fatal injures. It was considered that this could not have occurred, if the seat belt was being worn. The RTA investigation suggested that it was common practice in the industry not to wear seat belts when loading, because of restricted visibility. It was noted that the 'movable seat should enable good vision of either side as needed'. Reference was also made to a practice of some organisations using rubber mats, when loading steel drum rollers. Investigations suggested that such mats did not improve safety, once wet. It was noted that there were conflicting opinions as to whether or not the use of timber ramps improved safety.

12 It was also noted that the RTA required seat belts to be worn if fitted and that there was a sticker on the dash of the roller stating 'Danger a rollover potential exists wear your seat restraint'. Inspector Vassel could not recollect whether or not the sticker was on the roller, when he saw it at the accident site. He was not looking for one and accepted that it could have been there.

13 The RTA report noted that further investigation was required, before a two-man operation was mandated. It was recommended that 'a discussion be initiated with the construction and transport industries to consider a general prohibition of steel drum rollers on steel ramps'. There was no evidence as to the outcome of such discussions.

14 The evidence showed that the defendant had earlier conducted some risk assessments of the loading work. Various risks had been identified and dealt with in a report. Operators such as Mr Urquart had been trained in such risks, as well as in other safety issues, such as in relation to the wearing of seat belts, while driving any vehicle. The defendant's seat belt policy was in evidence, as was a video which the defendant had produced, in order to encourage its employees to adhere to the policy. The policy was issued by the then managing director in December 1996. It required seat belts to be worn when driving or travelling on any of the defendant's vehicles, regardless of the law applicable to any particular vehicle. Mr Urquart had been a member of the defendant's Seat belt Policy Committee in 1996. He was involved in the production of the video.

15 The evidence showed that the seat belt had been found wrapped around the control lever. Inspector Vassel could not say whether this had been done before the accident, or whether it had fallen that way.

16 There was also evidence that the manufacturer of the roller had conducted an on-site training programme in its use at the time of its delivery to the defendant. There was no record of who had attended that training, but Mr Hindley, the defendant's General Manager Human Resources, had advised WorkCover after the accident, that it was highly likely that Mr Urquart had.

17 Mr Shepley advised Inspector Vassel by letter that when Mr Urquart had taken up his driver's position in April 1997, he had trained him in all aspects of float driver operations, including loading and unloading of loaders. The training involved day and night conditions. Mr Shepley then monitored Mr Urquart's activities and progress. Mr Shepley ceased his own employment at Boral in March 1998 and then regarded Mr Urquart as 'an extremely competent and reliable float driver, particularly in respect to safety'. The inspector did not interview Mr Shepley.

18 During his employment with the defendant, Mr Shepley was in charge of allocations and training of drivers. Training was both formal and practical, on-site and off-site, including on the road supervision, before drivers were allowed to work alone. The training took about 2 to 3 weeks, before Mr Urquart went on the road, where he was supervised for one to two weeks. No record of training was kept. Mr Shepley's evidence was that training was also ongoing, to deal with problems, as they emerged.

19 Mr Shepley described what was involved in loading the roller and how it was approached. His evidence was that on approach, visibility was 100%, but as the driver travelled up the ramp, 'you are up in the air you don't see anything'.

20 Mr Shepley described what was involved in lining up a roller, when preparing to drive up a ramp. His evidence was that if the roller started to slide, 'you have to stand up to see exactly where you were.' He also described the way in which the seat moved and swivelled and the effect which the cleats would have on the roller. He explained that the cleats were present on the ramp, because some machines relied upon them to climb up the ramp. In the case of the roller involved in the accident, if it was driven at high speed, it would jump over the cleats. Driving over them was like driving over a corrugated road, causing the driver to jump around.

21 The evidence was that after the accident, the size of the cleats was reduced and the steel ramp rollers were no longer used by the defendant for carrying steel drum rollers. As earlier noted, a demonstration of the loading and unloading operations using the modified roller was conducted at the defendant's yard, during the course of the proceedings.

22 Mr Shepley was aware that Mr Urquart had been involved in the design of the loader, while employed in a management position by the defendant.

23 Mr Shepley also described the effect of any dampness, oil or asphalt on the roller drum, as causing the roller to slide on the ramp. Drivers were taught to wipe down or broom the ramps if damp and to throw fine grain sand onto them. Sand was kept in a bucket at the front of the float. Mr Shepley's evidence was that Mr Urquart was particular about keeping sand in the loader. Mr Shepley also explained that if you slipped, you stopped the machine straight away.

24 Mr Shepley surmised that the timber found under the ramp at the site of the accident had been placed there, because without it, the ramp would only have been resting on the asphalt at one corner, causing the ramp to bend. The timber was placed there to stop this bending. The result was that the stabilising leg under the left ramp would not have been touching the ground, so that when the roller was half way up the ramp, its weight would have made the ramp dive to the left. This was the result of the effects of gravity.

25 In Mr Shepley's opinion, the need to use the chock could have been avoided, if the loader had been moved about 14 inches. The loader could also have been safely parked on the side street, where the roller was parked. The only explanation Mr Shepley had for the set up was that Mr Urquart was in a hurry. Mr Shepley found how it had been set up, hard to believe. It was not how Mr Urquart had been trained. Mr Urquart had never made a mistake in training. Mr Shepley found the accident inexplicable. Set up required both ramps to be on asphalt, with the deck height level. Here, the deck was visibly higher on the right, by 2 or 3 inches.

26 In Mr Shepley's opinion, the effect of the timber used to chock up the left hand ramp, would have increased the speed required in order for the roller to mount the ramp, over the height involved. It was not accepted practice to set up the ramp in this way. Mr Shepley described it as 'a disgrace'. Mr Shepley described loading as requiring a slow, constant speed. This set up would have required a pretty quick speed, just to mount the first drum onto the ramp. "It would have been like climbing a gutter, it would have bounced and there is no way a steel, you could not drive a steel roller that way. It would spin." ... "The faster you go, the slower it is to stop."

27 It was also Mr Shepley's opinion that the seat belt could not be worn to load the roller safely, even though it was the defendant's policy that it be worn. He did not believe that the roller's seat slid far enough. In his experience, the policy was not adhered to, with this piece of equipment. His own practice was to stand up when loading and then to sit down half way up the ramp. His evidence was that you could not put the seat belt on while doing so on this machine. You could not lean out far enough and see the drum on this machine, with the belt on.

28 Mr Shepley also explained that the line up had to be done beforehand. Approach was everything. In this case, if the roller had been driven from the side street at the accident site, to the ramp, it would still have been articulated. A straight approach was required. Otherwise, Mr Urquart would have to have been trying to correct himself, as he was going up the ramp.

29 Mr Shepley did not know why the reverse beeper on the roller might have been engaged. He surmised that it might have been bumped. As to the vibrator, the switch might also have bumped when the roller was bumped, as it went up the ramp. In his view, this could have contributed to what happened.

30 Mr Shepley had seen the site of the accident. It was also his opinion that the loader could not safely have been driven around the bend and onto the loader where it was parked. The loader should have been brought around to the highway, from where it was parked, in a three-point turn.

31 He also explained how a driver levelled the loader, using the airbags and sight. There was no machinery provided to help ensure it was level. There had been no risk assessment of this aspect of the work conducted by the defendant, prior to Mr Shepley leaving its employ.

32 Mr Gilbert's evidence was that he had 22 years' experience in the industry and had loaded rollers onto a float in that time. He was employed by Specmac Pty Ltd, which repaired and maintained machinery for clients, the defendant being a major client. He had encountered problems with rollers slipping or bouncing, but not sufficient to have alerted the defendant. The problem had mainly occurred when working with others. He had never gone close to putting a machine off the edge.

33 Mr Gilbert was aware of the defendant's seat belt policy, but he did not usually wear one, because 'you can't operate them and see what your (sic) doing at the same time'. He regarded the training which he had received from Boral to have been ample. He did not regard it practical to wear a seat belt, especially on older machines, where you need to lean right out. This was when the rollers were being rolled against a gutter. He had not seen enough people loading to know whether they generally wore a seat belt. He had done so both wearing one and not.

34 In cross examination, Mr Gilbert explained that he had loaded a double steel vibrating roller onto a float on many occasions. He had been trained to deal with the problem of slippage, by the defendant and others. He also explained that he did not wear a seat belt when operating the rollers with static seats. He had not had as much to do with the newer models, which did not break down as much. The roller involved in the accident was a modern one with a swivelling seat which put you as close to the edge as possible, on either side and you could see, without standing up. In his view nothing would prevent the operator wearing a seat belt on that machine.

35 In re-examination, Mr Gilbert explained that steel on steel was a problem, because it required consideration of a lot of factors, whether the float was steep or shallow, the ramps were steep or shallow, any angles of the float, whether it was wet, where it was parked and so on.

36 Mr Grima had been employed by the defendant for some 23 years. He was a paver driver and had also had experience in loading such rollers onto floats, some 11 years previously. His evidence was that while he had told the Inspector that he had encountered problems in loading them, he had in fact never put one onto a float. He had had experience with a two double drum steel roller, not a vibrating roller like that involved in the accident. In his experience those earlier models usually slid. The metal to metal contact did not result in as good a grip as on timber. He had drawn this to the attention of his supervisor. Mr Grima was aware of the defendant's seat belt policy, had been instructed to wear a seat belt and did so.

37 In cross examination, Mr Grima confirmed that he had only once loaded such a roller, about 15 years previously. He had driven a roller like that involved in the accident since then. The seat slid from side to side and you could also see the front of the roller. He could wear a seat belt when doing so. He was aware of the seat belt policy, that applied to the roller and that in his experience, if a supervisor saw a machine being operated without a seat belt being worn, 'they tell us to put it on'. In re-examination, he said that this had been his experience over the past five years, since the policy had been put out.

38 Mr Jeffs was also a paver operator. He had experience in driving a roller, but not in loading one onto a float. He had not noticed whether roller operators wore seat belts, but was aware of the seat belt policy, which was displayed on noticeboards at work and in the crib room. He was aware of roller operators encountering problems in loading them onto floats. He had seen them out of their seats, in order to see the edge of the float properly. In the case of the loader involved in this accident, the swivel seat would enable the driver to see either the left or right side. The seat belt policy was, however, not enforced in his experience with machines with fixed seats, which made it almost impossible to wear them, if the job was to be done.

39 Mr Jones was the defendant's project manager for this site, located at Goulburn for the duration. The accident occurred while the site of the major work was changing. Mr Urquart was not a member of the crew. He was based in Sydney and was called upon from time to time to move equipment from one site to another. Mr Jones had notified Mr Vella of the work required. He had seen Mr Urquart earlier that morning, when he had arrived to move other equipment. They had discussed the work to be done. He appeared fine and bright, as he usually was.

40 Ms Mace had been employed by the Boral group of companies as an OH&S adviser for almost 12 years prior to August 1999. She was instructed to conduct a risk assessment, after the accident, as the result of a WorkCover improvement notice. This was conducted on the low loader involved, not the 10 tonne roller, which was damaged in the accident. A six and a twelve tonne roller were used. There had been other assessments earlier conducted, but they had not looked at slippage of machinery in the loading process, or driver visibility in that process.

41 Ms Mace had regard to the Australian Standard and adopted a 'Job Safety Analysis' approach to the assessment. She was also at that time involved in an industry working group formed through the Australian Asphalt Pavement Association, looking at accidents in moving equipment in the road surfacing industry. Similar accidents in the industry were there considered. Ms Mace also wrote to float allocaters in relation to relevant statistics, but received no replies. She assembled a team to assist her and also went out with two float operators, to gain a first hand knowledge of what was involved in the work. She also spoke to employees and external operators. Both anecdotal information and industry standards were considered. The assessment was not conducted at the site where the accident occurred. It was not an accident investigation process, but a stand alone risk assessment process.

42 Ms Mace became aware that rollers slipping was a common occurrence in the industry, within the knowledge of drivers, including those employed by the defendant. She assessed that this was unlikely to have been known to the defendant's management, but was known to allocaters. Using the Australian Standard risk assessment classification approach, she assessed the likelihood of this occurring to be almost certain, if the loader were positioned unevenly, with the impact then resulting in major injury. The result was a high risk classification, requiring management planning at senior levels. Various sub-risks were also identified, such as the metal on metal contact. In cross examination, she explained that the greater the tilt of the ramp, the higher the risk and that other conditions on the deck could result in slippage. They included tilt, worn cleats and wet surfaces. She found that some drivers kept sand in their vehicles, but generally they relied on dirt or sand on the roadside. In re-examination, she explained that the presence of an uneven loader and wet conditions increased risks dramatically.

43 Ms Mace found that if ground was considered uneven by a driver, they would not load or unload. All drivers she spoke to said so. In some instances the normal camber of the road was regarded as a slope sufficient to prevent loading. This occurred with older roads, which had been built up. Loading was not conducted unless the driver regarded the ground to be even. Loading was conducted after a shift, outside peak hours if possible, usually at night, but they could be moved at any time. Winches on floats were not used to load loaders because of the danger posed, if a winch rope broke or became detached, given the heavy load. Ms Mace found this to be a big fear amongst drivers. Winch use also required a two-man operation.

44 In the investigation, there was no alternative material found suitable for the ramp and deck of the loader. Inquiries to the industry produced no responses. The loaders were used to transport various machinery and it was found that changes to suit one machine, increased risks for others. There was an industry practice of using sand on wet areas to increase traction, accepted by drivers as tried and true practice. No other research was done on the efficacy of this practice. There appeared to be a cut off point when conditions were damp, beyond which a driver would not load.

45 The risk assessment identified that drivers suffered jarring from the steel drums of the rollers driving over the metal cleats of the ramps. This was reduced by drivers standing while driving up the ramps, but a seat belt could not be worn in that position. Wearing a seat belt while the seat was located on one side of the machine placed significant physical stress on drivers, given the jarring motion of the roller. This aspect of the assessment flowed from Ms Mace's observations, as well as information from drivers. She observed loading while the driver was both sitting and standing. Sitting resulted in greater lower back impact, which standing cushioned the driver from, reducing jarring of the spine.

46 The risk assessment did not investigate the training given to drivers. It did recommend removing cleats and installing an alternative surface, to increase surface contact between the roller drum and the low loader. It was found that with cleats, at any one time there were only two providing traction, in the front and back.

47 In Ms Mace's opinion, training itself could not prevent rollers slipping. This required modification to the float. A recommendation was made as to the installation of a cross bar in the roller. This was an alternative designed to keep a driver in the cab area, if a seat belt was not worn. In cross examination, Ms Mace explained that she was aware of drivers parking loaders a kilometre away and driving the roller there, or coming back at other times to pick them up.

48 Ms Mace was not aware of the strategies implemented by the defendant after the risk assessment was conducted.

49 In re-examination, Ms Mace explained that the risk of slippage was minimised, if the loader was used when the ramp was even, the roller was driven on straight and when there were no external forces, such as rain or storm.

50 The assessment itself, dated April 1999, was in evidence. The loader here in question was one of the newer types, extensively used in industry, with metal ramps and decks, rather than a combination of metal and timber. It had inflatable air bags to provide for stable and level decks. In cross examination, Ms Mace explained that they did not affect the ramps. It had two metal, simultaneously operated, extendable ramps, attached by hinges to the rear of the loader, which provided for a longer gradual slope. The ramps were raised and lowered hydraulically. The hinged extensions were supported by a fixed metal pad.

51 The assessment identified numerous potential risks involved in the basic steps to the job, including the risk of the roller slipping/sliding/driving to the side and partway off the ramp, due to metal deck/metal roller causing slipping; damp surfaces exacerbating the risk of slipping; metal cleats not providing traction for the rollers and incorrect operation, causing the roller to skew. Poor visibility of the ramp and deck edges, as well as significant jostling of the driver, resulting from the roller jumping over the cleats onto the metal surface, both in a seated and standing position. This risk was less, if a driver was standing.

52 It is pertinent to observe, at this point, that evidence given by Mr Yates disagreed with a number of the conclusions reached in the assessment. His evidence was, for example, that metal cleats did provide traction for rollers and without them, it would be difficult to load a metal drum roller up a metal ramp. Given the evidence of other witnesses and the conclusions reached in the defendant's risk assessment, it was difficult to prefer this evidence, over that given by others, which was to contrary effect.

53 Mr Vella was the defendant's profiling and heavy haulage supervisor. He was Mr Urquart's supervisor. He gave Mr Urquart instructions to move the roller involved in the accident to another site. Mr Urquart was the defendant's most experienced driver and was experienced, trained and competent, when Mr Vella commenced working in his position. He had known him socially beforehand. He had observed Mr Urquart loading a roller onto a loader about a week before the accident. The loader he was driving was purchased new in 1997.

54 Mr Vella explained that while WorkCover had lifted the improvement notice it had imposed after the accident, three years after the accident the defendant was still not loading steel rollers onto such loaders. Various modifications were considered, but none were regarded as suitable. The size of the cleats were reduced by about 50 percent and the use of rubber mats and other coatings on the ramp were considered. Loaders with timber ramps were used. In cross examination, he disagreed that drivers regarded these ramps as dangerous. That would be the view of novices. He was aware of concerns that rubber became slippery when wet or greasy. In re-examination, he agreed that timber also became slippery when wet.

55 Mr Vella was aware that Mr Urquart had worked for Boral in management positions for many years before returning to driving work. He wanted a change of life. He was the main driver for this loader.

56 After the accident the defendant explored a number of options as to the best way to modify the loader in question. The defendant had no other loaders with the same specifications. The evidence of Inspector Vassel was that after the accident the defendant had been issued with a prohibition notice in relation to the loading and unloading of rollers upon floats. He had been informed that a timber inlay type ramp with a timber deck on the float was now used to transport the rollers. The notice was not in evidence, what it actually required was not clear.

57 In cross examination, Inspector Vassel said that he had investigated a number of things, apart from the wearing of seat belts; that he was not aware that one of the particulars of the charge laid asserted that the seat belt in the roller could not be properly used and that 'I am unaware that he' [Mr Urquart] 'could not use his seat belt while loading and unloading the roller'. He explained, that while he was the informant, this particular was made through statements from certain witnesses and certain people interviewed. He did not think it necessary to draw to the attention of the Court, in his evidence, that he was aware that it was asserted by the defendant, that Mr Urquart had participated in the seat belt policy committee. He was not aware of the policy, even though WorkCover appeared to have received it and he had seen it in the Coronial proceedings. He had also not investigated whether Mr Urquart had been trained by the manufacturer in the operation of the roller, although he had spoken to the manufacturer about other matters.

58 Mr Dodd's evidence was that he was a working director of Hirex Heavy Haulage Pty Limited, who also drove floats and loaded and unloaded equipment onto them. He had loaded equipment onto loaders on many occasions over many years. He had also loaded a roller of the type involved in the accident, but not that actual roller. In his experience, the problems encountered were that steel drum rollers slid back when it was wet. When this occurred, Mr Dodd used rubber belting over the ramps and back of the trailer. In his opinion, the ideal ramps would be inlaid with timber for traction. Such ramps would have no cleats. He was aware that others disagreed with him. Timber rails would involve a wear factor, requiring their regular replacement and would not suit other equipment.

59 Mr Dodd's experience was that if the floor of the loader was not level, the rollers slid to the lower side, even if dry. He agreed that it was imperative to have the ramps level.

60 Mr Dodd said that steel rollers have a tendency to slip as the drum travelled over the cleats. Even if level, the wheels had a tendency to spin, from the steel on steel contact. They rarely went straight up, without slipping and sliding. The result was that you have to be very careful to go up the centre of the ramp, otherwise the machine will slide off. If the ramps were not level, there was a tendency to slide to the side of least resistance. You needed to increase the speed to make it go up and to decrease a little, if it started to slide. You also needed to be able to look to either side, quickly. Mr Dodd agreed that the travel over cleats caused jarring.

61 Mr Dodd agreed that the effect of the timber chock used by Mr Urquart was to keep the ramp support off the ground, so that the ramp dipped towards the left, when the roller was put on the ramp. Drivers carried lots of blocks of timber and if a block was placed there, another would be placed under the leg of the ramp as well, so that there was no problem of the ramp dipping.

62 Mr Dodd was not aware of the circumstances in which this accident had occurred. He agreed that it was preferable to put the ramps on level hard ground, rather than to use chocks. He had, however, himself in the past used chocks to level a ramp. Without them, the ramp would be on an angle and the roller would start to slide off. As to where the loader was parked, Mr Dodd either parked where a supervisor directed, or where the roller was located, trying to ensure that he was safe there.

63 Mr Dodd agreed that some drivers did not like ramps with timber inlays because they slipped, but explained that this was because 'when you are putting tracks on they slip because there are no cleats running across there'. Steel rollers did not slip as much on timber, as on steel ramps. There was also slipping on rubber, if it was wet, but not as much. Sand was used on both rubber, steel and timber, to get a bit more grip. That practice had existed in excess of 40 years.

64 Mr Dodd also explained that he would not wear a seat belt to load the roller onto the loader. If they started to slide you needed to be able to lean to the side quickly. The seat belt restricted the driver too much. He did not wear a seat belt himself, when loading. He sat in the middle when he loaded. His drivers did the same. He preferred to be able to quickly lean in either direction as the roller was moving. Sliding was not adequate, because in 70% of cases, the seat did not slide properly. In the other 30%, it was quicker to do it the other way, if the roller started to slip and you had to increase, or decrease the throttle, to make the roller go up the ramps. He accepted that wearing the seat belt reduced jarring from the cleats.

65 The evidence of Mr Kriflik was that he was employed by the RTA as a continuous improvement manager at the time of the accident and had been involved in preparing the RTA report into the accident. The investigations were conducted by a team of people. It was his first accident investigation. In cross examination, he explained that they had investigated whether the block used to support the ramp was adequate, but found no evidence that it was inadequate. They could not ascertain whether the scrape marks on the ramps were caused by the roller or a rotomill earlier loaded. They were consistent with both, as they both had steel treads. Given where the roller was found lying, it was estimated that it had reached the body of the loader before toppling. Mr Kriflik was aware that the roller had a sliding seat, but had never sat in it. Some drivers claimed they could not wear the seat belt, because they could not then see the edge.

66 Mr Hindley's evidence was that there had been no formal training programme for loading rollers onto loaders. That training had been practical, one-on-one, training by experienced individuals. Mr Urquart had formerly been employed as State manager for Boral in Queensland and later as manager of the South West region in New South Wales for Boral Transport.

67 There had been no risk assessment in relation to loading plant onto floats before the accident. Such assessments were a fairly new concept, being at that time applied to the defendant's most dangerous activities. This loading was regarded as a fairly routine, low risk operation and not high on the defendant's priorities for such assessment.

68 Mr Urquart had been a member of the management team which had devised the defendant's company wide seat belt policy. He was also involved in the design to the float, ramps and cleats. The defendant had also involved the Dupont company in its safety training.

The evidence called by the defendant

69 The evidence of Mr McKim was that Mr Urquart's experience as a driver had given him practical experience which he utilised in his position as operations manager. Mr Urquart had been involved in the selection of seats and seat belts to be used in the defendant's truck. Mr McKim described him as a fastidious person, very practical and concerned with safety matters.

70 Mr Senz gave expert evidence as to the circumstances and likely causes of the accident. He had visited the site of the accident, some time later; had taken certain measurements and photographs there and had inspected the equipment involved in the accident. He had also attended the Coronial inquiry. He had also had access to various documentary material, including various statements made to the prosecutor and the photographs taken at the time of the accident, which were in evidence in these proceedings. He had also prepared a number of reports, in which various opinions were expressed. He also attended the roller demonstration.

71 Mr Senz estimated the speed that the roller had been travelling when it left the ramp and roller. He also explained how the laws of physics impacted upon the loading of a roller. The steeper the ramp slope, the more slippery it became, irrespective of what it was made of. A slope to one side would then affect the direction in which a roller was likely to slide. The design of the loader enabled the deck to be tilted sideways, by inflating the air suspension, so that unevenness could be compensated for. There was no method for so altering the ramp's position, other than by packing. The air suspension also enabled the height of the loader to be lowered, thereby reducing the angle of the ramp.

72 I again note, at this point, that Mr Yates' evidence was to different effect. His experience was that using the air suspension to compensate for unevenness was ineffective. The air bags were inevitably compressed by the weight of the machine being loaded.

73 Mr Senz described that the ramp had a bifold, to enable it to be transported. The ramp was supported at three points. At the end where it rested on the ground, by a pad at the end of the intermediate section and then, by the trailer wheels. Mr Senz had regard to certain photographs taken on the day of the accident, in preparing his evidence. He was not certain as to whether, on that day, any packing had been placed under the support pad, but noted a substantial height variation between the left and right hand pads. He also estimated that the slope between the left and right hand ramps was in the order of 14 to 19 centimetres. This variation would have permitted ramp twisting. The roller would have ended up being supported only by the left ramp, before it toppled off. The ramps would then have sprung back. I note, at this point, that this evidence accorded with that given by Mr Yates.

74 Mr Senz's measurement at the site showed that if the loader had been reversed about 3.8 metres, both the pad and ramp ends would have rested on asphalt. Mr Urquart had lowered the ramps and found that the corner of the left ramp was not resting on asphalt and so had raised the ramp to place a chock under the corner. The ramp may not have gone completely to the ground when lowered again, nor might the pad. The ramp may only have been lowered to the point where the corner rested on the chock.

75 Mr Senz used scuffing on the roller drums to help identify the roller's angle of slippage. It appeared that the roller had mounted at an angle, resulting in a 'rocking-rolling, rocking motion', as it travelled across the cleats, resulting in a sideways force acting on the roller as it climbed the ramp. It followed that two factors contributed to the accident, the sideways slope of the ramps and physics operating when slippage occurred, to slip the roller to the lower side. The result was a 6 to 8 degree slope. This suggested a safety margin of 1 degree, before slippage, expected at between 17 to 19 degrees. In Mr Senz's opinion, this margin would have been reduced however, by other factors such as the rocking force as the cleats were being negotiated and compression of the air suspension. The ramp misalignment also increased at the hinges, because the pads dropped with the roller weight, significantly reducing the available safety margin. The further up the ramp the roller was driven, the greater the side slope, even though it might have appeared level at the start. Any attempt to change direction would have increased side slippage and even if Mr Urquart decided to try and stop the roller, further slippage would have been generated, which would also drive the roller to the left. Dampness would have been another, negative effect.

76 Markings on the roller also suggested that the roller was turned to the left, while it was slipping, consistent with Mr Urquart having made a continuous left turn from the side road where the roller was parked, onto the loader parked on the Hume Highway. In Mr Senz's view, a three point turn would have been an awkward manoeuvre, given where the loader had been parked. Mr Urquart so loading the roller, would have increased the risk of slippage as the loader climbed the ramp. Any sudden change in steering would also have increased the risk of slipping. The speed that the roller was travelling could not be determined exactly, but the evidence did not suggest more than 7km per hour.

77 Mr Senz's conclusions were:

· "The roller fell from the trailer because of uneven ramp alignment.

· Uneven ramp alignment was caused by failure to pack the left-hand ramp pad or reposition the trailer to a level site.

· It is most probable that the roller was driven onto the trailer in a continuation of a left-hand turn from Barkers Lane. The approach speed was probably no faster than 7km/h."

78 Mr Senz also dealt with the use of sand to improve the friction co-efficient of the steel ramps and the use of the roller seat belt. Mr Senz noted 'almost a blanket refusal on the part of operators industry-wide to wear seat belts when loading machines of any type.' He dealt with two reasons advanced for this - visibility and the ability to jump clear of the machine in the event of a mishap.

79 Mr Senz concluded that visibility did not preclude a seat belt being worn, when this roller was loaded. I again note at this point that this was consistent with Mr Yates' evidence. He also discounted the possibility that a driver could jump to safety from a falling roller.

80 The evidence of Mr Weeks was in relation to the identification of certain photographs, taken at the scene of the accident and later, during the risk assessment conducted by Ms Mace, involving different rollers. One photograph showed a driver standing while on the roller, not wearing a seat belt.

81 The evidence of Mr Angus was that Mr Urquart had reported to him, while he occupied various management positions after February 1986. The seat belt policy had been developed by the defendant because in New South Wales, some heavy vehicle drivers were not covered by the requirement of wearing seat belts as was the case in other States.

82 Mr Yates had given the demonstration of the loader being loaded onto the trailer. He also gave evidence about that loader operating, including how a seat belt could be used and what vision the driver had; how it was loaded onto a low loader; the operation of the loader and how the trailer was set up to load. He emphasised the need for a driver to ensure that the trailer was level and to ensure that the ramps did not twist during the loading operation. He described the speed at which the loader should be driven as walking speed, in order to avoid the roller bouncing over the cleats.

The cases advanced

83 The prosecutor’s case, put by Ms McDonald of counsel, was that despite the roller being equipped with a seat belt and the defendant's policy requiring that it be worn, Mr Urquart was not doing so at the time of the accident. It was submitted that the prosecution had established that this was because it could not be properly utilised during the loading operation. The evidence of Mr Shepley and Mr Dodd was relied upon. Their evidence was corroborated by the risk assessment later undertaken by the defendant, which confirmed that poor driver visibility of the ramp and deck edges might cause skewed driving and that wearing the seat belt also caused driver jarring.

84 It was relevant that the charge did not allege that it was impossible to utilise the seat belt, only that it could not be properly utilised. This was confirmed by the RTA report. That investigation showed that operators needed to lean out to see where the wheels were.

85 It was argued that minimal weight could be given to Mr Yates' evidence, given the demonstration conducted in idealised circumstances where the ground had but a slight slope; it was located in a Boral yard, where there was no traffic and the area was cordoned off; the conditions were dry and Mr Yates knew that he was conducting a demonstration before a judge in ;legal proceedings. There was no fog or heavy dew, such as Mr Urquart was confronted with, when trying to load the roller on the edge of the Hume Highway. The evidence of experienced drivers such as Mr Shepley and Mr Dodd would have to be preferred in those circumstances, on points of difference, particularly given their very many years of experience.

86 As to Mr Senz's evidence, it was submitted that as an expert who had not himself loaded a roller, his opinions were based on demonstrations in idealised circumstances. The Court was not obliged to accept his opinions.

87 While the defendant had a seat belt policy, the evidence showed that it was not enforced and its dissemination was limited. The causal connection between the risk in question and the defendant's conduct had been established and any carelessness or negligence by Mr Urquart provided it with no defence.

88 The risk of the roller slipping had been established. It had been identified by employees and by Mr Dodd. The risk assessment conducted after the accident confirmed the existence of the risk. The steel cleats causing the roller to bounce had also been established in the evidence of a number of witnesses and had also been confirmed by the risk assessment. Mr Senz's analysis of the cause of the accident also assumed forward wheel spin as the roller travelled over the cleats. The risk assessment was also submitted to amount to an admission of the causal connection with the risks to safety in question.

89 It was also submitted that Mr Hindley's evidence confirmed that prior to the accident there had been no risk assessment of the loading operation. The causal connection between the absence of this assessment and the risks was demonstrated. The assessment later undertaken identified a number of different risk controls and the causal connection between the risk and the defendant's acts and omissions. Mr Senz's evidence in cross examination confirmed that his investigation had focussed on the cause of the accident. Liability was, however, concerned with risk and not the accident or its cause.

90 As to any defence, it was submitted that the evidence had demonstrated practical measures which the defendant could have undertaken to ensure safety. The cutting down of the cleats and the use of rubber matting to increase traction, was one example. Not using steel ramps, the measure implemented subsequently, was another. The defendant had not established that there was nothing reasonably practical for it to have done to have avoided the risks in question.

91 The case for the defendant put by Mr Hill of counsel was that the uncontradicted evidence showed that Mr Urquart was an 'intelligent, practical, safety conscious, trained and experienced employee who's (sic) employer could trust to follow correct safety procedures'.

92 The evidence of various of the prosecution witnesses was analysed and reference was made to the lifting of the WorkCover notice, in which it had ordered the defendant to cease the loading operation in question. It was observed that the defendant had not resumed the practice, despite the lifting of the notice and the fact that it continued elsewhere in industry. It was submitted that there had been no explanation to the Court or the defendant as to why the notice had been lifted and that this amounted to 'an acknowledgement that provided the appropriate set up of the trailer is used there is no risk in loading or unloading a steel drum roller on the float in question. Otherwise the notice would have been continued.'

93 It was also submitted that as there were no witnesses to what had happened to Mr Urquart, a reconstruction based on known facts was the only way of coming to a conclusion as to what had happened. The evidence showed two or three errors by Mr Urquart, contrary to his training. He did not wear his seat belt. He set up his trailer ramps contrary to his training and he may have approached the ramps at excessive speed.

94 The evidence had demonstrated that a seat belt could be worn during the loading operation. Why Mr Urquart had not done so was unknown. The set up could have been done safely, on Mr Shepley's evidence. The use of the chock may also have led to excessive speed, necessary to mount the ramp and causing wheel spin. Mr Yates' evidence showed that with proper set up, there was no risk of losing traction and the risk assessment showed that metal to metal contact alone was not a risk, without other factors, such as damp ground, speed or incorrect set up.

95 It followed that the prosecution had failed to show that the loading was an unsafe work practice per se and that there was no causal connection between what Mr Urquart did and the defendant's loading methods.

96 In the alternative, it was submitted that the defences under s53 were established. The defendant had no control over the cause of the accident, nor was it reasonably practicable to comply with the requirements of the Act. It was further argued that 'it is not practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee from departing from a known safe procedure and there are limits to the degree of instruction which can be expected to be provided to an experienced employee.'

97 As to the defences, the prosecutor submitted that the evidence showed that there had been no safe system of work established by the defendant, in which it had trained its employees and ensured that they were proficient. No risk assessment of the work had been conducted and other employees who had attended the accident site had been unable to identify the deficiencies in set up, here sought to be relied upon by the defendant. The evidence also showed that drivers were obliged to visually assess a number of variables present at a site, which could impact upon safe set up, in the particular circumstances.

98 The evidence in relation to the application of the seat belt policy showed similar deficiencies. The video in evidence did not include machines such as that here in question. The defendant was plainly not ignorant of the fact that some of its employees did not wear seat belts when moving rollers. Certain people in management plainly were.

99 Mr Senz's evidence referred to a debate in industry as to the use of cleats on such loaders. It followed that the evidence could only establish the existence of an ad hoc system of work, not a known and safe one. There was no evidence of the existence of a formally established and safe system of work, in which employees were trained and which was reinforced by the employer.

100 The evidence did not leave open the conclusion that the detriment to safety had resulted by the employee's departure from the defendant's ordinary procedures. Here, the risk of a crushing injury from the roller falling and the driver not wearing a seat belt were plainly foreseeable. The risk assessment identified that the repercussions of such an event were major, including death and serious injury. The evidence showed that there were measures available to the defendant which were later undertaken, to exclude these risks. This did not require constant supervision of the employee.

Consideration

Mr Dodd

101 I deal briefly with reasons for a decision given during the hearing, that it had not been established that Mr Dodd, a person who had given a statement to the prosecutor, was not available to give evidence in the sense discussed in s65 of the Evidence Act 1995, nor that he was unavailable, in the sense discussed in ss41E and F of Part 2 of the Dictionary to that Act.

102 The prosecutor had made an application that Mr Dodd's statement be received, without him being made available for cross examination. I declined that application and after an adjournment, he was called to give evidence.

103 These conclusions flowed from evidence that contact had been made with Mr Dodd, by mobile phone, shortly prior to the hearing, at a time when he had not received any written notice of the hearing, or any other advice that he was required to give evidence. When so advised, his attitude was that he was conscious that someone had died and he wanted to give evidence at the trial, but it was not possible for him to attend when the matter was listed, as he was then working interstate in his own trucking business. Hearing dates in April 2002 had been fixed in August 2001 and in November, summonses to give evidence were issued. A process server was engaged, who was unable to locate Mr Dodd. A private investigator was engaged in January 2002, who obtained Mr Dodd's mobile number, but no contact was made with Mr Dodd until shortly prior to the hearing.

104 In those circumstances, it became clear that the requirements of s65 and s41E had not been met. The sections did not require that all possible steps be taken to call Mr Dodd, but all reasonable steps. The prosecutor had not written to Mr Dodd about giving evidence at the hearing, nor spoken to him, even though his mobile phone number and address were known, until days before the hearing. When the number was used, contact was made with him and he indicated that he was willing to give evidence, but in the circumstances then prevailing, was unable to do so on the days fixed. It followed that it could not be concluded that the prosecutor had taken all reasonable steps to find Mr Dodd and to secure his attendance, or that he was unavailable. (See Ludowici Ltd v WorkCover Authority of New South Wales (Inspector Kalanithy) (2000) 102 IR 347 at 354 and Caterpillar Inc. v John Deere Limited (No 2) (2000) 181 ALR 108 at 112-3.)

The charge

105 I am satisfied that the charge was made out. Apart from Mr Yates, the evidence given by the witnesses who had experience in loading rollers of this kind, well demonstrated the high risk of such rollers slipping, when being loaded onto the loader involved in the accident. As I earlier noted, his evidence could not be preferred. The risk assessment conducted by the defendant after the accident confirmed the presence of such a risk, as did that of Mr Senz. The steel on steel contact described in the evidence, exacerbated by the effect of driving the roller over the steel cleats, undoubtedly exacerbated this possibility. Wet or damp conditions also exacerbated this tendency. Any set up error also increased this risk.

106 Drivers were trained by the defendant in how to set up the loader and how to approach and drive the roller, in order to minimise such risks. Mr Shepley's evidence was that the way in which the loader involved in the accident was set up, was inconsistent with that training. The evidence given by Mr Senz, demonstrated how the approach adopted by Mr Urquart on the day in question, particularly the use of chocks, rather than parking the loader so that the ramps firmly rested on level ground, exacerbated the risks inherent in the loading operation.

107 The evidence also suggested that it was Mr Urquart's failure to wear a seat belt, which tragically resulted in the accident proving to be fatal. Had the seat belt been worn, he would not have been thrown from the roller as he was. The evidence also showed that the defendant had a policy which required the wearing of the seat belt and that Mr Urquart had been involved in its development, in the period during which he had been employed in managerial positions by the defendant.

108 There was evidence that the policy was enforced by the defendant. Despite this, the evidence also showed that it was not universally obeyed, a problem which occurs elsewhere in this industry.

109 The demonstration of the loading operation had somewhat restricted relevance, given that the size of the loader's cleats had been reduced after the accident. The jarring which resulted for drivers, as the roller travelled over the cleats, was thereby undoubtedly reduced. The evidence showed that such jarring caused lower back pain for drivers and was one reason why drivers preferred to stand during the loading operation. It also added to the risk of slippage. Another apparent reason for some drivers not wearing seat belts was because of a belief that it increased visibility during the loading operation, especially if slippage occurred.

110 While Mr Yates had no problem in sliding the seat of this loader during the demonstration, so as to obtain visibility to either side, other evidence suggested that this was not always other driver's experience. The mechanism did not always operate smoothly and importantly, Mr Shepley, who trained the defendant's drivers in the safe operation of the rollers during the loading process, himself stood during the loading operation, because of concerns that otherwise, there was not sufficient visibility, especially if the loader began to slip. He did not wear a seat belt when doing so.

111 The possibility that a roller might slip during the loading process, was clearly not one which could be precluded by training. Given the design of the rollers and the loader in question; the effect of metal on metal contact between the ramps and the roller drums; the jarring which resulted from the steel drum travelling over the cleats and the consequences of any poor ramp set up, there can be no doubt of this.

112 Given these physical aspects of the work, the importance of adherence to the seat belt policy, which would safely have kept the driver of the roller inside the cage, if the loader toppled from the ramp, was apparent. There can be no doubt that this was appreciated by the defendant, given its policy and the evidence as to the steps taken to enforce it.

113 Unfortunately, however, the evidence showed that the policy was not uniformly enforced by the defendant, nor adhered to by all of the defendant's employees. Mr Shepley, Mr Urquart's trainer, was one of those who did not do so. Nor did Mr Urquart on this or other occasions. It is not necessary for the prosecution to prove all particulars of a charge. It follows that even if the view is taken that the prosecutor did not establish, beyond reasonable doubt, that the seat belt on the roller could not be properly used during the loading process, as alleged in particular c.i (a), the other particulars of the charge were plainly made out.

114 That included particular c. ii, that there had been a failure to adequately assess the risks involved in the loading process. Ms Mace's evidence as to what was uncovered by the defendant in the risk assessment conducted after the accident, put this beyond doubt. That assessment also revealed the risks accompanying the approach adopted by Mr Shepley and others, who did not wear a seat belt during the unloading process. Regrettably, that risk materialised for Mr Urquart. The risk assessment also highlighted the risks which flowed from the use of a steel ramp with metal cleats, when loading a steel drum roller. The conclusions reached in the risk assessment were confirmed by Mr Senz's analysis of the causes of this accident. In the light of that assessment, it was hardly surprising that the defendant did not revert to that type of loading operation, even after the removal of the WorkCover notice, but used a loader with a timber ramp and also modified the cleats on the steel ramp in question.

115 Mr Senz's evidence as to the effects of any attempts made by Mr Urquart to arrest the sliding roller, which in his view, would only have exacerbated the problems, rather than addressing them, also well showed the defendant's failure to provide a safe system of work, as alleged in the charge.

116 I am well satisfied that the evidence established particulars c.i (b) and (c) of the charge. The evidence established the problems of inadequate traction which existed, giving rise to the risk that the roller would slip while being loaded onto the roller. The higher the incline of the ramp, the greater the risk of slipping. The cleats plainly caused the roller to bounce, also giving rise to the risk of veering and tilting. Incorrect set up, with any tilt present, further exacerbated these risks.

117 The evidence showed that all of these risks were sought to be managed by the defendant, in the training which it gave its drivers in correct set up. Such training could only ever be directed to minimising these risks. It could plainly not exclude them. That approach left open the possibility that driver error or negligence in set up, would result in the risks materialising.

118 On the evidence there can be no doubt that such an approach was not adequate to exclude the risks in question, as the obligations which the Act imposed upon the defendant required. This conclusion was inevitable, given what the defendant's own risk assessment had revealed. It follows that there is no option other than to conclude, on the evidence, that the prosecutor has met the obligation to prove the offence as charged, to the requisite degree.

119 As Hill J observed in WorkCover Authority of NSW (Insp Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at p85:

‘This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. I am satisfied that the defendant approaches its duties under the Act on that basis. But it is always possible to achieve greater effectiveness and success as this case demonstrates.’

120 I accept the defendant's submission that experienced staff must undoubtedly be given a measure of discretion and judgment in their work. This has oft been accepted in the authorities. Nevertheless, an approach which involves warning employees of risks and training them in how to avoid them, may well not prove to be sufficient to ensure that accidents do not occur and that the obligations imposed by the Act upon employers such as this defendant, to ensure safety at work, are met. On the evidence, this was such a case.

121 In coming to that conclusion I considered, but rejected, the submission that WorkCover's lifting of the improvement notice, as acknowledging the absence of any risk in the loading operation in question. Why the notice was lifted was not explored in the evidence. What it actually provided, was also not revealed. The lifting of the notice may well have been a serious error, reflected perhaps in the actions taken by the defendant, after the lifting of the notice. It did not revert to its previous loading operation. WorkCover's actions cannot, however, overcome the deficiencies which the evidence here revealed in the defendant's approach to the obligations which the Act imposed upon it. Under the scheme of the Act, the conduct of the WorkCover Authority could not affect those obligations, either retrospectively or prospectively.

122 I also reiterate at this point, that the proper inference from the evidence was that the seat belt policy was not universally enforced by the defendant. Despite his involvement in the development of the defendant's seat belt policy and the defendant's understanding of his general approach to safety, Mr Urquart's approach to the wearing of seat belts appeared to be consistent with Mr Shepley's evidence as to his own approach. That is hardly surprising. Mr Urquart had been trained by Mr Shepley. Mr Shepley did not wear a seat belt when loading such rollers, because of the opinion which he had as to the difficulty in adequately seeing to either side of the roller, when loading the roller, especially if it slipped. Mr Weeks' evidence showed an awareness that other drivers adopted a similar approach. Mr Jeffs had seen Mr Urquart also loading floaters while standing.

123 Given the evidence as to the well known propensity of these rollers to slip and Mr Senz's evidence as to what occurred when a roller started to slip and how quickly that could happen and how difficult it was to arrest a slide once it started, a concern by drivers that they have as clear a view as possible, as quickly as possible, without needing to slide a seat, encumbered by a seat belt, was perhaps understandable. On the evidence however, and most regrettably, such an approach also involved a failure to appreciate that wearing a seat belt, in the event that a roller did topple, once it had started to slide, was essential to ensuring driver safety.

124 The evidence was that had Mr Urquart been wearing a seat belt, he would have survived this accident. The evidence also showed that despite its seat belt policy, in practice the defendant's trainer and other employees adopted an approach inconsistent with that policy. The evidence made it extremely doubtful that the defendant was not aware of this situation. If it was not, it obviously should have been, given the obligations which the Act imposed upon it and the evidence that not only some of its own employees, including Mr Shepley, its trainer, did not adhere to the policy, but that it was a persistent, industry-wide problem. A proper assessment of the risks involved prior to this accident, would also have made clear the consequences of not wearing a seat belt, in the event of a roller slipping off a loader. Such an assessment had not been undertaken.

125 As to the defences, I have concluded that they were not made out. There is no doubt that the defendant had control over the causes of the accident. It required Mr Urquart to perform the loading operation, which was accompanied by obvious risks that the roller might slip, given the nature of the operation. After the accident it removed that risk by use of a timber ramp loader. Beforehand, the risks present were only sought to be managed by training employees in loader set up. On the evidence, that approach could not have ensured safety, especially in the event of employees not dealing adequately with adverse conditions such as damp, or if they failed to adhere strictly to proper set up procedures, or drove a roller with excessive speed.

126 As the authorities have long observed, employers must also ensure the safety of careless or negligent employees. Merely training employees as to the existence of safety risks and in how they may be avoided, will not necessarily put an employer in the position where it has met its obligation to ensure safety. Here, the defendant's failure to enforce its seat belt policy, also confirmed that the defence was not made out.

127 Nor was it possible to conclude that it was not practicable for the defendant to guard against these risks, because they were not foreseeable. The results of the defendant's own risk assessment demonstrated that this submission was not made out. The submission that the defendant could not have guarded against a departure by Mr Urquart from a known safe procedure, was also not made out. The evidence certainly did not establish the existence of such a safe procedure, given the approach adopted to the risks flowing from the loading operation. Furthermore, the seat belt policy was not strictly enforced by the defendant. It follows that the submissions in relation to the defences must be rejected.

Orders

128 For all of the reasons given, I find the defendant guilty of the offence charged. The matter will now be listed for sentencing.

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LAST UPDATED: 27/02/2004