Workcover Authority of New South Wales (Inspector Burt) v Joseph Patrick Attard [2006] NSWIRComm 359 (15 November 2006)

Last Updated: 24 November 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Burt) v Joseph Patrick Attard [2006] NSWIRComm 359



FILE NUMBER(S): IRC 5644

HEARING DATE(S): 2/11/2006

DECISION DATE: 15/11/2006
PARTIES:
PROSECUTOR:
WorkCover Authority of New South Wales (Inspector Burt)

DEFENDANT:
Joseph Patrick Attard

JUDGMENT OF: Staunton J


LEGAL REPRESENTATIVES

PROSECUTION:
Mr B Docking of counsel
SOLICITORS:
Criminal Law Practice Legal Group

DEFENDANT:
Mr S Meehan of counsel
SOLICITORS:
Mulally Mylott Solicitors



CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Ferguson v Nelmac Pty Limited (1999) 92 IR 188
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Markarian v The Queen [2005] HCA 25: 18 May 2005
R v Gallagher (1991) 23 NSWLR 220
R v Thompson; R v Houlton (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131
Thorneloe v Filipowski (2001) 52 NSWLR 60
WorkCover v Maine Lighting Pty Limited (1995) 100 IR 248
WorkCover Authority of New South Wales (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325
WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247

LEGISLATION CITED: Courts Legislation Amendment Act 2006
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Evidence Act 1995
Fines Act 1996
Occupational Health and Safety Act 2000



JUDGMENT:

- 25 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staunton J

DATE: 15/11/2006

Matter No IRC 5644 of 2005
WorkCover Authority of New South Wales (Inspector Burt) v Joseph Patrick Attard
Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT
[2006] NSWIRComm 359

1 The defendant in this matter, Joseph Attard, has entered a plea of guilty to an offence arising under s 8(1) of the Occupational Health and Safety Act 2000 (the Act).

2 The offence charged states that the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of his employees, particularly Daryle Audsley (Mr Audsley) and Clinton Stairmand (Mr Stairmand), contrary to s 8(1) of the Act, in that he failed to:

(a) Conduct any proper risk assessment of the risks involved when a vehicle, driven by an employee broke down;

(b) Provide a safe system of work with respect to vehicles which had broken down in that it:

(i) failed to specify what steps non-qualified employees should take in respect of broken down vehicles;

(ii) failed to ensure non-qualified employees did not do attempt or attempt to do any repair work on broken down vehicles;

(iii) failed to ensure non-qualified employees did not do or attempt to do any maintenance work on broken down vehicles.

(c) Ensure that plant provided for use by employees at work, namely the International Acco truck, registration VRB 387, was safe and without risks to health when properly used.

3 The prosecution has tendered an agreed statement of facts, which relevantly sets out:

[1] At all material times Joseph Patrick Attard (Date of Birth: 10 October 1962) of 180 Derwent Road, Bringelly in the State of New South Wales (defendant) traded under the following business names:

Go Gro Organics

Joe Attard Landscape Supplies

In addition, other words were used in or referred to in relation to the business including the terms ‘wholesale’ and ‘landscaping supplies’.

[2] At all material times the defendant was the proprietor of the businesses using those business names. The defendant was the legal entity or person in relation to each of those businesses.

[3] On 27 November 2003 the defendant employed people including Daryle Audsley (Mr Audsley) and Clinton Stairmand (Mr Stairmand).

The incident

[4] At approximately 10:30 am on 27 November 2003, Mr Stairmand was delivering a load of sawdust to Crown Lodge at 11 National Street, Warwick Farm. On arrival, Mr Stairmand unrolled a tarpaulin, reversed the truck up the driveway into a car-type garage, put the maxi-brakes (emergency brakes) on, opened the tailgate and pushed the load of sawdust out on to the concrete floor. When Mr Stairmand attempted to leave the property the front tyre would not move. He moved the truck approximately 3 metres and, in doing so, a black skid mark was left on the footpath by the front tyre.

[5] After the truck stopped, Mr Stairmand applied the emergency brakes on the truck. He then made a phone call to the yard (Joe Attard Landscape Suppliers). Mr Stairmand spoke to an employee of the defendant, Daryl Matthews (Mr Matthews) a loader/driver. When interviewed Mr Stairmand stated that Mr Matthews suggested that Mr Stairmand undo the slack adjuster on the truck and ring back in five minutes.

[6] Mr Stairmand attempted to ‘back off’ the brake on the front wheel but this procedure was unsuccessful.

[7] Mr Matthews telephoned Mr Stairmand’s mobile. Mr Stairmand advised Mr Matthews that the procedure did not work. Mr Matthews advised Mr Stairmand that he would get in contact with the defendant to find out what could be done.

[8] Mr Stairmand received a telephone call from Emma Brown who handed the phone to Mr Audsley. Mr Stairmand explained the situation, over the telephone, to Mr Audsley.

[9] There are competing versions as to what next occurred.

[10] Whilst Mr Stairmand was waiting for Mr Audsley he attempted to adjust the rear brakes by chocking up the back wheels with two bricks on the offside back wheels. He put the truck into reverse gear and released the emergency brakes. He attempted to adjust the back brakes by adjusting up the slack adjusters located on each rear wheel. Mr Stairmand explained that he did that “as the brakes were soggy when” he “ was driving to make the delivery. It was more for maintenance”.

[11] Mr Audsley arrived at 11 National Street, Warwick Farm at about 2:30pm. Mr Audsley immediately got under the truck. Mr Audsley did not carry out an inspection of the vehicle to ensure it would not move whilst on the incline. He did not put in place any other protective device to ensure the vehicle would not move whilst he was under the truck.

[12] Mr Stairmand had not put the emergency brakes on prior to Mr Audsley commencing work under the truck. Mr Stairmand explained that he did not have time to put the emergency brakes on prior to Mr Audsley working under the truck. He certainly did not warn Mr Audsley about any dangers in that regard. The bricks were still under the tyres and the truck was still in reverse gear.

[13] Whilst Mr Audsley was under the truck Mr Stairmand was in the wheel well watching Mr Audsley work.
[14] Mr Audsley had a 9/16th ring spanner in his hand when Mr Stairmand saw him under the truck. The 9/16th ring spanner is used to undo the slack adjuster. Mr Stairmand did not see what Mr Audsley was doing with it.

[15] Mr Stairmand told Inspector Burt that:

“Daryle Audsley told me the S cam had popped [sic] I turned around to put out my cigarette and I heard Daryle scream and the truck start to move”.

[16] Mr Stairmand chased after the truck, put his hand on the foot brake and pulled the emergency brake on. The truck stopped, however, Mr Audsley was trapped underneath. Mr Stairmand estimates the truck rolled approximately 6 metres.

[17] Mr Stairmand left the scene and went to Paul Cave Stables and asked to get an ambulance and a jack.
[18] On 27 November 2003, Inspector Flavin attended the location of the incident and undertook an inspection. A copy of his Factual Inspection Report is attached hereto and marked Annexure “A”.
[19] Inspector Flavin also took 13 photographs, which are attached hereto and marked Annexure “B”.

Systems of work prior to the incident
[20] Prior to the incident vehicles were maintained by a mechanic Sidney Jackson, various professional repairers, or the defendant. Drivers were required to check water, oil, tyre pressure, indicators, brakes and report any faults prior to leaving the yard.

[21] Any directions given to the drivers in relation to maintenance and/or repairs were oral. There were no written procedures in place as to what maintenance work was acceptable.

[22] There was no safe system with respect to what employees should and should not do when they were driving a truck and it broke down.
[23] There was no assessment of the risks confronted by a non-qualified employee when they were driving a truck and it broke down.
[24] There was no clear direction to employees as to what they should and should not do in such circumstances.

[25] There was no documentation in relation to such a situation.

[26] As a result of the said failures Mr Audsley and Mr Stairmand were placed at risk of injury and Mr Audsley suffered fatal injuries.

The truck

[27] Senior Constable Mason, Engineering Investigation Section of the NSW Police Service, examined the truck following the incident. A copy of his report dated 30 January 2004 is attached hereto and marked Annexure “C”.
[28] The truck was also taken to Tri-City Trucks Pty Ltd and an inspection was carried out. A copy of the inspection report by Derek Davis dated 18 December 2003 is attached hereto and marked Annexure “D”.

[29] Tri-City Trucks Pty Ltd replaced the steer drums.

[30] The emergency brakes operated prior to repairs but failed the brake test due to poor efficiency.

Systems of work since the incident

[31] Prohibition Notice No. 141802 regarding safe brake and driving operation of the truck involved in the incident was issued to the defendant by Inspector Flavin on 27 November 2003.
[32] The truck involved in the incident was taken to try City Trucks Pty Ltd for repairs. The Notice was complied with.
[33] According to the Autopsy Report dated 9 January 2004, Mr Audsley died from pneumonia as a result of hypoxic brain injury and pelvic fracture.

Prior convictions

[34] The defendant has no prior convictions under the Act.

Cooperation by defendant

[35] The defendant has co-operated with the WorkCover Authority and the Inspector.

4 In addition to the agreed statement of facts, the prosecution tendered, without objection, the following:

(i) A Factual Inspection Report compiled by WorkCover Team Coordinator, Mr Mark Flavin, dated 27 November 2003;
(ii) Statement of Senior Constable Peter Mason dated 3 January 2004 from the Engineering Investigation Section of the New South Wales Police. His report, accompanied by a Certificate of expert evidence pursuant to s 177 of the Evidence Act 1995, was a report in relation to the overall mechanical condition of the truck. Senior Constable Mason examined the truck on the day of the accident with particular attention to the condition of the braking system;

(iii) A letter from Tri-City Trucks Pty Limited addressed to Go Grow, with an attached service tax invoice. Go Grow is one of the trade names of the defendant's business. The letter and accompanying invoice dated 18 December 2003 identifies the truck involved in the incident on 27 November 2003 and the condition of the braking system at the time of initial inspection after it had been towed to the premises of Tri-City on 28 November 2003. The accompanying invoice identifies $6693 worth of work undertaken on the truck by Tri-City following that inspection.

(iv) A WorkCover NSW Witness Statement of Clinton Stairmand, subject in part to rulings by me, dated 21 January 2004. Mr Stairmand was the driver of the truck on the day of the incident. He was called in support of his statement. His evidence was particularly relevant to the factual dispute between the parties as to the extent or otherwise of directions given by the defendant to his employees in relation to minor repairs to be effected on the road in the event of a truck breakdown. That is a matter I will canvass in more detail later in this judgment considering the evidence of Mr Stairmand as well as that of the defendant on this issue.

5 Also tendered by the prosecution, without objection, were a number of photos which have assisted me in understanding the location of the truck involved in the accident.

6 On behalf of the defendant, a statement of Joseph Patrick Attard was tendered without objection and he was cross examined as to a number of matters. As earlier indicated, there was a factual dispute between Mr Attard and Mr Stairmand on a relevant matter.

Relevant principles

7 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.

8 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

9 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

10 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646.

11 On the issue of foreseeability, the Full Bench in Capral also stated:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

12 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

13 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

14 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:

... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.

15 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]:

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added)

16 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]:

... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

17 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

Relevant factual matters and considerations

18 Mr Attard's record discloses no prior convictions. As such, the maximum penalty which may be imposed on the defendant is $55,000.

19 Mr Attard's business primarily performs work supplying and delivering soil and organic landscaping products. The delivery of those goods necessarily involves the use of trucks. As such, it is important to ensure that trucks provided to employees to drive are safe to drive and fully functional.

20 The evidence of Senior Constable Mason and the Tri-City Trucks report establishes fairly conclusively that the truck being driven by Mr Stairmand on the day of the incident giving rise to the offence had a defective braking system. Senior Constable Mason's report stated, inter alia:

As a result of my examination and based wholly or substantially on my knowledge, I am of the opinion that the offside front wheel brake of this vehicle became locked due to S cam rollover, which resulted from brake wear.

...

S cam rollover on truck braking systems of this type can be avoided by routine inspection and maintenance.

21 The report from Tri-City also highlighted the deficiencies in the truck's braking system as follows:

An International was towed to our premises on Friday 28th November 2003.

The vehicle is identified as rego # VRB387.

...

The vehicle had been defected with brake faults.

On initial inspection it was found that both front and rear axle failed brake test. This test was carried out prior to any adjustment or any mechanical repairs to the vehicle. Both steer wheels were worn to wear limits. It appears possible that the brakes could have jumped the brake-actuating cam, however at time of inspection this had not happened. All wheels were removed and linings replaced. The 1/h steer required stub axle replacement due to excess wear on the outer bearing surface area.

The steer drums were replaced due to excessive glazing. All brake components were reassembled and brake test carried out (see brake test report attached).

The maxi brakes operated prior to all repairs however failed brake test due to poor efficiency. The dual brake circuit on the vehicle is operational. And complies with ADR35A, prior to any repairs.

All these observations were made impartially by qualified tradesmen. ...

22 It seems abundantly clear to me, given the above assessment of the truck's braking system, it was entirely foreseeable that braking problems would emerge while the truck was being used by the defendant's employees. What is not clear is the exact extent of the problem that would arise and the circumstances in which it would, although, as Senior Constable Mason reported:

On closer inspection of the offside brake assembly, I saw shiny scratch marks on the surface of the S cam. These were consistent with an attempt to move or lever the S cam with a screwdriver or similar tool. The purpose for this kind of action would be to dislodge the S cam from a state of 'rollover'. Rollover occurs when due to brake wear, the S cam continues to rotate on its axis past its normal applied position. The brake shoe rollers will ride past the peak of the S cam lobe and travel down the opposite side. The brake shoes will then remain in contact with the brake drum, locking the wheel. The brake shoe springs that normally pull the brake shoes back into a seated position are now keeping the S cam in a state of rollover. In worse cases of brake wear, the S cam will rollover and fail to even apply the brake. The brake will then be rendered useless and the wheel will continue to turn. (emphasis added)

23 For a braking system to fail on a vehicle while being driven, the consequences that could arise and the attendant risk to safety arising are obvious. As stated by the Full Bench in Capral at 650, ‘a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences’.

24 Further, as was stated in Capral, the presence of foreseeability ‘will necessarily result in the offence being more serious in nature’. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476).

25 Both Senior Constable Mason’s investigation and a post-accident assessment of the truck by Tri-City Trucks Pty Ltd revealed that the truck was suffering from brake wear. Tri-City Truck’s assessment of the state of the brakes also identified the risk of the brakes “jumping” the S-cam as a result of brake wear.

26 It is apparent, in my view, that the safety of the International Acco Truck was compromised by the absence of regular maintenance of trucks by qualified mechanics. It is impossible to come to any other conclusion given the Tri-City and Senior Constable Mason's reports. Clearly, had there been routine and systematic servicing of the brakes, the faulty brakes could have been addressed prior to the accident.

27 Mr Stairmand's main trade qualification for the job he had with the defendant was that he had held a HR (heavy rigid) vehicle license for about twelve years at the time of the incident.

28 As earlier indicated, there is factual disagreement between the defendant and Mr Stairmand as to Mr Stairmand's assertion, as a truck driver/roustabout, it was an accepted part of his work that he would undertake minor maintenance and mechanical work on the trucks. He explained that the type of activities such an expression covered involved 'greasing grease nipples and adjusting brakes and washing trucks' and that, prior to the incident involving himself and Mr Audsley on 27 November 2003, he had adjusted the brakes on the particular truck involved on a 'dozen' occasions. In order to make such an adjustment, he had to get underneath the truck. Mr Stairmand also gave evidence that he had seen Mr Audsley adjust the brakes on trucks prior to the accident on 27 November 2003.

29 The defendant disputed his employees were under any obligation to undertake mechanical maintenance work on the trucks. While there was no written direction to that effect, he stated in evidence as follows:

Q. In paragraph 11 of your affidavit you say this: "At the time of the accident there were no written procedures in place dealing with truck breakdowns. However, I am told every employee that drove trucks or equipment, they were not to conduct repairs, they were to contact me or Sid Jackson our mechanic." You refer to every employee, does that include Mr Stairmand?

A. Yes.

Q. Are you able to recall whether you spoke to Mr Stairmand in that regard on one or more than one occasion?

A. It would have been on more than one occasion.

Q. Are you able to recall on any of those occasions what you said to Mr Stairmand?

A. Not to carry out any mechanical work in a breakdown situation.

Q. Are you able to recall the actual words you used?

A. Not to attempt to make any repairs if there is a breakdown and to ring the office or me to be contacted as to what to do.

Q. Did you also have a discussion with Mr Audsley in that regard?

A. Yes.

Q. Are you able to say when you had a discussion with Mr Audsley?

A. The second week before the accident.

Q. Can you recall on that occasion what you specifically said to Mr Audsley?

A. Not to carry out any repairs if the vehicle was broken down.

30 According to Mr Attard, when asked what verbal instructions he gave about minor maintenance work to be undertaken by his employees on the particular truck in question, he responded thus:

Q. Can you say what you said?

A. In regarding?

Q. About minor maintenance work on international VRB.387?

A. To check the tyres. There was a policy there before a vehicle started by a driver the first thing that is checked is water and oil before the key is inserted. That is the first thing - the truck has to be checked for water. Second check would be tyre inflation and blinkers and brake lights before the truck is actually moved. They are the normal procedures that has been in place there since I have had trucks. You do not jump in a truck or vehicle without checking - especially blinkers, lights et cetera as that would ...

31 Further Mr Attard said, Mr Sid Jackson, a qualified mechanic, was responsible for on-site maintenance. He did concede Mr Jackson was only employed on a casual basis and was not always available to attend to repairs or maintenance. Further, he stated, if substantial repairs or maintenance was required on the trucks, he arranged for external subcontractors to carry out that work. Whether that was done routinely is unclear, but if the state of the brakes on the Acco International truck involved in the incident is any indication, it was unlikely.

32 Having considered the evidence from Mr Attard as well as that of Mr Stairmand on this issue, I have difficulty in accepting Mr Attard gave verbal directions that employees were not to undertake mechanical repairs in the explicit terms that he now asserts. I also believe there is a lack of clarity on his part as to what he meant when he said he told Mr Stairmand and Mr Audsley not to carry out any 'mechanical repairs' in a vehicle breakdown situation. I am not persuaded that minor maintenance work undertaken by employees on his trucks did not involve adjusting the brakes in the manner described by Mr Stairmand.

33 In other words, I accept Mr Stairmand's evidence on this issue that, prior to the accident involving he and Mr Audsley and the International truck, he and Mr Audsley did, from time to time and as part of what he described as minor maintenance work, adjust the brakes on the truck in question as well as others in the way he described.

34 Whether such an activity was something Mr Attard was actively aware of is not the issue in my view. In accepting Mr Stairmand's evidence on this issue, I have significant difficulty in coming to a conclusion that this minor maintenance work was going on around Mr Attard and he did not know about it. Mr Stairmand said he did not know if Mr Attard knew about such activity on the part of his employees. Whether Mr Attard subjectively knew is not the test but whether, in all the circumstances, as the employer, he should have known. If he did give the verbal directions in the terms he now says he did, then Mr Attard failed to ensure they were adhered to and simply turned a blind eye and a deaf ear to the way in which his business operated on a day to day basis as far as the work practices of his employees were concerned.

35 In short, whatever he now unequivocally asserts, Mr Attard permitted his employees to undertake work such as adjusting brakes on his trucks as part of the minor maintenance work they were expected to perform. In doing so, Mr Attard presided over an overall unsafe system of work by his essentially unskilled employees adjusting truck brakes in circumstances that were inherently dangerous.

36 In coming to that view, it is apparent I am not satisfied that Mr Attard directed Mr Audsley to go to Mr Stairmand's assistance simply to assess whether or not the truck could be driven or whether it had to be towed. Mr Stairmand had already conveyed the information that the truck could not be driven. It is incompatible with logic and commonsense that Mr Audsley would be sent out simply to do something that Mr Stairmand had already done over the telephone which was to assess the truck was not moving, that it would appear to be an issue with the brakes and “What do we do now?” In other words, why did it need a second employee to perform what Mr Stairmand was directly capable of performing unless there was something more to it as far as trying to get the truck back on the road.

37 Further, as Mr Stairmand gave evidence, as soon as he arrived at the site where the truck had broken down, Mr Audsley got under the truck and tried to free the brakes. This was not the action of a person who, according to Mr Attard, was simply sent out to assess the truck could be driven simply by looking at the truck and talking to Mr Stairmand. It is apparent that 'assessing if the truck could be driven' required some action on Mr Audsley's part. Clearly, as he perceived, that required him to get under the truck to examine and free the brakes.

38 In considering all of the evidence on this point, I believe the inference is overwhelming that Mr Audsley was sent out to the truck to assess the situation and that assessment included, as he understood, that, if possible, he was to effect minor mechanical work on the truck's braking system in order to try and get the truck to be moved and/or driven. I also accept that if his attempts failed, steps would have had to be taken to have the vehicle towed.

39 As I understand his submission, counsel for Mr Attard contended that the entry of the plea of guilty does not establish of causal connection between the failures particularised and the specific incident as it occurred. In my view, such a submission is misconceived.

40 For the purposes of the offence now before me, there needs to be established a causal relationship linking the defendant to the safety detriments particularised and the consequent risk to health and safety arising to the defendant's employees. By entering a plea of guilty, the defendant has done that. The issue of causation goes directly to the guilt of the defendant to the offence to which it has entered its plea of guilty. By entering its plea, the defendant has embraced without demur its failures as pleaded and, in doing so, has accepted the causal link between them and risks to the health and safety of its employees that arise as a result of the failures particularised. As was stated by Walton J Vice-President in WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325 at para [43]:

It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident.

41 Counsel for Mr Attard further contended there was no evidence to suggest, by reference to the particularised failure going to risk assessment, that if a risk assessment had been undertaken, it would have prevented the accident from occurring or the likelihood the accident would have occurred.

42 In my view, such a submission also misapprehends the nub of the offence and the principle established by the entry by the defendant of his plea of guilty. That is, the entry of the plea of guilty acknowledges the failure of the defendant to undertake a risk assessment in the work circumstances identified and that that failure caused a risk to the safety of the employees concerned.

43 The actions of Mr Stairmand in attempting to adjust the rear brakes prior to Mr Audsley's arrival by use of common house bricks as chocks and while the truck was on a slope was clearly dangerous. Senior Constable Mason noted in his report that the chocks were "doing little to secure the truck, the vehicle was still being held in position by the locked front wheel" and that:

Conducting any type of repairs or maintenance on a motor vehicle in an inclined position is dangerous and to be avoided if possible, however qualified persons using proper truck wheel chocks and the utilisation of the vehicle's parking/emergency brake, would have made the situation much safer.

44 While I accept that the actions of Mr Stairmand and Mr Audsley in climbing under the truck in the circumstances that they did was clearly evident of a foolish disregard for their own safety, their actions have to be viewed against the actions of the defendant in allowing the system of work that prevailed on the day to develop as it did, including the absence of a proper risk assessment of the task at hand. The defendant cannot avoid his obligations to provide a workplace free of risks to safety by simply pointing to the foolish and careless acts of his employees. As was said by Bauer J in WorkCover v Maine Lighting Pty Limited (1995) 100 IR 248 at 257:

... The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. ...

45 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

46 Following the accident, on 27 November 2003, WorkCover issued a Prohibition Notice to Mr Attard relating to the safe brake and driving operation of the truck involved in the accident. Mr Attard complied with the notice by sending the truck to Tri-City Trucks Pty Ltd for inspection and repairs. I have already referred to that inspection earlier in this judgment.

47 Mr Attard also arranged for a truck breakdown procedure as well as yard safety rules to be formally documented and adopted by all employees. With the assistance of Employers First, he has conducted a review of the safety procedures implemented following the accident. By seeking help from that organisation, Mr Attard has been able to assemble a comprehensive and detailed policy with respect to employee actions in the event of vehicle breakdown or accident.

48 The new vehicle breakdown safety procedure requires a truck driver to pull the truck off the road, place warning triangles around the vehicle and to turn the hazard lights on. Arrangements are then made for the truck to be towed.

49 Since March 2006, Mr Attard has only retained one truck driver. He has required that driver to read the Vehicle Breakdown and Accident Procedure and to sign and acknowledge that he has done so. As events have transpired, his employee has subsequently found himself faced with a vehicle breakdown and he has followed the new safety procedure requirements now in place.

50 Additionally, the new safety guidelines require truck drivers to perform a safety check of the truck before it leaves the yard. Items such as water, oil and truck lights are checked to ensure they function properly. Truck maintenance is now carried out by contractors to ensure that they are roadworthy and in good condition.

51 By all accounts, Mr Attard has endeavoured to ensure that the new safety procedures are followed and understood by his employees. However, these were steps that could have been easily implemented prior to the accident.

52 Taking into account all of the above matters, I assess the offence as being in the mid to upper range of seriousness and will assess penalty on that basis.

53 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that:

We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

54 In respect of specific deterrence, the Full Bench held in Capral at 644-645:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

55 General deterrence is a relevant consideration, given the obvious risks presented by the work undertaken in the defendant's business involving, inter alia, the driving of heavy duty trucks.

56 Specific deterrence is also a relevant consideration as Mr Attard continues to operate his business albeit in reduced form. Mr Attard stated he suffers from claustrophobia. That, he said, has impacted his ability to run the business viably and, as a result, his business has been wound down significantly. Mr Attard currently has two employees, an office worker and one truck driver.

57 In his evidence in chief, Mr Attard gave evidence that when compared to the situation prior to the accident, his business had declined by about seventy per cent. He expressed his position thus:

A. I am feeling mostly depressed functioning like we would be four years ago. There was nine employees at the time and since after the accident, I am not as motivated as I was then and more so encouragement to go to work to motivate my business is declined. I feel a deep sorrow to Darrell Audsley and it has effected me and my family in a very deep way. At the moment I employ one full-time driver and another driver as a casual for 20 hours a week. Me motivation towards me business is not what it was. It has effected me very dearly. I cannot motivate like I was back to four years ago. At the time there was nine employees and I employ two employees now.

Q. Can you indicate whether or not the business is performing in a financial sense better or worse than it was prior to this incident?

A. Compared to now what our workload is and the operations it would have to decline if I put it in a percentage ratio by 70 per cent if not more.

58 When questioned, counsel for Mr Attard stated he was not raising the financial circumstances of the defendant relevant to his ability to pay a fine but as a factor the Court would take into account as a subjective matter.

59 In all the circumstances, considerations of specific deterrence should be tempered somewhat having regard to the steps implemented by Mr Attard to improve his work systems.

60 To the extent that the financial circumstances of the defendant are a relevant consideration, they arise for consideration under s 6 of the Fines Act 1996 that provides:

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and

(b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount.

61 Apart from the limited evidence elicited in his evidence, particularly in cross examination, there was no documentary evidence by way of business or personal financial statements or tax returns to corroborate the defendant's evidence as to his financial affairs.

62 In WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [51] the Full Bench said:

... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion.

63 According to the limited oral evidence received, Mr Attard earns approximately $500 per week gross from his business. His home at Narellan is mortgaged in the sum of $40,000 to $50,000 but Mr Attard is not aware of it's current value. He has some additional assets by way of a truck and a front end loader but he is unsure as to their value.

64 Curiously for a person who would, on the face of his evidence, have relatively limited financial means, Mr Attard is negotiating to buy the yard where he operates his business. The approximate purchase price is $400,000 to $500,000. He stated he was proposing to take out a loan for that entire amount.

65 Overall, I found Mr Attard's evidence as to his financial circumstances unsatisfactory in a number of respects and of no real assistance to the Court. The course I propose to adopt is as cited by the Full Bench, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed:

... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence.

66 The defendant is entitled to have his early plea of guilty taken into account in determination of penalty. In assessing the impact of the plea, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I award a discount in favour of the defendant of twenty five per cent.

67 The prosecution has acknowledged there are additional subjective factors operating in favour of the defendant that should be taken into account in my penalty determination.

68 Mr Attard has cooperated with WorkCover in its investigation into the accident. He has also expressed contrition for the accident involving Mr Audsley and is deeply sorry for all that flowed from that by way of injuries and Mr Audsley's subsequent death.

69 Taking into account all the matters I have referred to, I determine a penalty in this matter of $19,500.

70 On the question of costs 'in and by a conviction or order', I note that s 253 of the Criminal Procedure Act 1986 has now been repealed as of 13 July 2006. On the question of costs to be awarded to the prosecutor, s 257B of the Criminal Procedure Act inserted by s 3 of the Courts Legislation Amendment Act 2006 and operative from 13 July 2006 provides:

257B When costs may be awarded to prosecutor

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if:

(a) the court convicts the accused person of an offence, or

(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

71 Further, s 257G of the Criminal Procedure Act now provides:

257G Calculation of costs

The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined:

(a) by agreement between the prosecutor and accused person, or

(b) if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004 (with or without modifications prescribed by the regulations).

72 Having regard to all of the above, I make the following orders:

(1) The defendant is convicted of the offence charged.

(2) I impose a penalty in this matter of $19,500.

(3) I allocate a moiety to the prosecutor on the usual terms.

(4) I order the defendant pay the costs of the prosecutor as agreed or assessed in accordance with the provisions of s 257G of the Criminal Procedure Act 1986.

LAST UPDATED: 15/11/2006