Inspector Campbell v James Gordon Hitchcock - [2004] NSWIRComm 87 - NSWIRComm 1996 case summary — Zoe

NSWNSWIRComm

Inspector Campbell v James Gordon Hitchcock

[2004] NSWIRComm 87

Industrial Relations Commission (NSW)|1996-03-29|Before: Walton J, Hungerford J, Fisher CJ, Fisher P, Peter J, Peterson J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1996-03-29

Before

Walton J, Hungerford J, Fisher CJ, Fisher P, Peter J

Source

Original judgment source is linked above.

Judgment (435 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 PROSECUTOR Inspector Stephen Campbell PARTIES : DEFENDANT James Gordon Hitchcock FILE NUMBER: IRC 5660 & 5661 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - s50 Occupational Health and Safety Act 1983 - deemed offence - fatal truck accident - charges as to failures in relation to fatigue management systems - rest-stops - driving hours - driving rosters - warnings of the hazards of fatigue - warnings of the hazards of taking drugs - information, instruction, training and supervision - plea of not guilty - circumstantial evidence - findings of fact - risk of fatigue whilst driving - effects of night driving on fatigue - fatigue alleviated only by adequate sleep - driver fatigue a risk to health and safety - assumptions made in favour of defendant - actual fatigue on several occasions including date of accident - accident caused by fatigue - log-book regulations - payment structure encouraged excessive driving - pressure to meet delivery deadlines - relevant general principles - contention "risk of a risk" not sufficient to found a charge under Occupational Health and Safety Act 1983 - nature of risk - distinguish present and potential danger - speculative or unduly remote risks - causal nexus - risk caused by employer's failures - meaning of "employer's place of work" in s16(1) Occupational Health and Safety Act 1983 - defences - offences in Matter Nos. IRC5660 and 5661 of 2001 proven - matter to be set down for sentence. LEGISLATION CITED : Coroners Act 1980 Occupational Health and Safety Act 1983 Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 Chamberlain v. The Queen (No. 2) (1984) 153 CLR 521 Craig Andrew Corbett v Raymond Borg (unreported, Hungerford J, 29 March 1996) Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 Haynes v C I & D Manufacturing (1994) 60 IR 149 at 152 Inspector Clarke v W L Meinhardt & Partners Pty Limited (unreported, Fisher CJ, 30 June 1992) Insp Hardman v Allied Construction Pty Ltd (Fisher P, unreported, 21 December 1990) Inspector McColl v Combined Crane Rigging & Arthur Didovich [2004] NSWIRComm 48 Insp Mobbs v Air Liquide Australia Ltd (Fisher P, unreported, 9 April 1998) Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators (unreported, 8 August 1996) Insp Plowright v Peter J Davis (Newcastle) Pty Limited [2001] NSWIRComm 269 Inspector Stephen Campbell v James Gordon Hitchcock [2003] NSWIRComm 148 CASES CITED : Inspector Stephen Campell v James Gordon Hitchcock [2003] NSWIRComm 436 Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 Martin v.Osborne (1936) 55 CLR 367 O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 Shepherd v The Queen (1990) 170 CLR 573 WorkCover Authority of New South Wales (Inspector Barry Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 WorkCover Authority of NSW (Inspector Dubois) v Concrete Constructions Group Ltd (No 1) (1999) 98 IR 362 WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997) WorkCover Authority of NSW (Inspector Keenan) v Technical & Further Education Commission (1999) 92 IR 251 WorkCover Authority of NSW (Inspector Page) v Woolworths Ltd (unreported, Peterson J, 9 September 1994) WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121

[15]

5 The particulars of that charge were: 1. The defendant was at all material times a director of Sayogi Pty Limited (ACN: 002 732 345), a corporation whose registered office was at Arthur B Booth & Co, 52 Osborne Street Nowra in the State of New South Wales ("the said corporation"). 2. At all material times the said corporation conducted business at 15 Concorde Way Bomaderry in the State of New South Wales as a road freight transport contractor under the name or style "Jim Hitchcock Haulage". 3. At all material times the said corporation carried on business in its undertaking of the carriage of freight within Australia for fee or reward. 4. At all material times Darri Haynes was an employee of the said corporation. 5. On or about 1 September 1999, ("the said date"), Darri Haynes was driving a semi-trailer registration number TWW-240 along the Pacific Highway at Tyndale in the State of New South Wales ("the said location") when it collided with a semi-trailer driven by Neville Walker. Mr Haynes was killed when the cabin of his truck ignited following the crash. Mr Walker escaped injury, but was placed in risk of injury. 6. On the said date at the said location the said corporation did contravene Section 16(1) of the Occupational Health and Safety Act 1983 ("the said Act") in that being an employer, it failed to ensure that persons not in its employment using the said Pacific Highway, and in particular, Neville Walker, were not exposed to risks to their health or safety arising from the conduct of its undertaking, namely the carriage of freight, while they were at its place of work, in that it: (a) Failed to ensure that long haul truck drivers in its employ took sufficient rest stops whilst they were driving to counter fatigue, lack of alertness or drowsy driving. (b) Failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation in respect of the conduct of the employer's undertaking of road freight haulage. (c) Failed to ensure that driving hours of employees were properly recorded and audited to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. (d) Failed to adequately warn employees of the hazards of fatigue involved in long haul truck driving. (e) Failed to adequately warn employees of the hazards of taking drugs to counter fatigue whilst involved in long haul truck driving. (f) Failed to provide such information, instruction, training and supervision of its employees as may be necessary to ensure the health and safety of other persons not in its employment. (g) Failed to provide a safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. As a result of the said failures, Neville Walker was placed at risk of injury. 7. The defendant, being a director of the said corporation, is deemed to have contravened section 16(1) of the said Act pursuant to Section 50(1) of the said Act.

[17]

7 The particulars of that charge were: 1. At all material times the defendant was a director of Sayogi Pty Limited (ACN: 002 732 345), a corporation whose registered office was at Arthur B Booth & Co, 52 Osborne Street Nowra in the State of New South Wales ("the said corporation"). 2. At all material times the said corporation conducted business at 15 Concorde Way Bomaderry in the State of New South Wales as a road freight transport contractor under the name or style "Jim Hitchcock Haulage". 3. At all material times the said corporation carried on Business [sic] in its undertaking of the carriage of freight within Australia for fee or reward. 4. At all material times Darri Haynes was an employee of the said corporation. 5. On or about 1 September 1999, ("the said date"), Darri Haynes was driving a semi-trailer registration number TWW-240 along the Pacific Highway at Tyndale in the State of New South Wales ("the said location") when it collided with a semi-trailer driven by Neville Walker. Mr Haynes was killed when the cabin of his truck ignited following the crash. Mr Walker escaped injury, but was placed in risk of injury. 6. On the said date at the said location the said corporation did contravene Section 15(1) of the Occupational Health and Safety Act 1983 ("the said Act") in that being an employer, it did fail to ensure the health safety and welfare at work of its employees at work and in particular, Darri Haynes, in that it: (a) Failed to ensure that long haul truck drivers in its employ took sufficient rest stops whilst they were driving to counter fatigue, lack of alertness or drowsy driving. (b) Failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation in respect of the conduct of the employer's undertaking of road freight haulage. (c) Failed to ensure that driving hours of employees were properly recorded and audited to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. (d) Failed to adequately warn employees of the hazards of fatigue involved in long haul truck driving. (e) Failed to adequately warn employees of the hazards of taking drugs to counter fatigue whilst involved in long haul truck driving. (f) Failed to provide such information, instruction, training and supervision of its employees as may be necessary to ensure the health and safety at work of its employees. (g) Failed to provide a safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. As a result of the said failures, Darri Haynes was placed at risk of injury. 7. The defendant, being a director of the said corporation, is deemed to have contravened section 15(1) of the said Act pursuant to Section 50(1) of the said Act.

[29]

19 According to the prosecutor, the relevant risk to safety was the risk that Mr Haynes would "fall asleep while driving a heavy vehicle at speed on the highway". In summary, the prosecutor made the following submissions concerning the particulars in the charges: 1 Rest-Stops It is a matter of common and industry knowledge, substantiated by the expert evidence of Dr Williamson, that long driving hours, particularly at night, cause fatigue. Mr Haynes had been driving for long hours over long distances during his employment with the Company, particularly in the final week, and was almost certainly fatigued at the time of the accident. Long-haul truck drivers need to counter fatigue by taking sufficient rest-stops. The Company failed to ensure that its employed drivers did so. On the contrary, the drivers employed by the Company worked to delivery and pick-up times. Mr Haynes was under pressure to deliver his final load at a particular time and this prevented him from taking an urgently needed sleep. The Company did not monitor its drivers' log-books. There was no evidence that the Company monitored rest periods in any way. 2 Rosters The evidence established that the Company's allocation of jobs was piecemeal. There was no evidence to suggest that the Company prepared any kind of roster, let alone a roster to manage driver fatigue. 3 Driving Hours The only system used to monitor driving hours was the completion by drivers of their log-books. On the defendant's own case, the Company did not even collect duplicate copies of log-books (in breach of a clear legislative requirement that it do so); other evidence suggested that it did collect the duplicates, and not only knew that they were falsified but regularly caused them to be falsified. 4 Warning of the Hazards of Fatigue It is beyond doubt that fatigue is a hazard in long haul truck driving, but there was no evidence that the Company warned, let alone trained, any of its drivers to manage fatigue. 5 Warning of the Hazards of Drugs to Counter Fatigue The Company was aware (through the defendant at least) of the widespread use in Australia of illegal amphetamines by long distance truck drivers and that there was a high risk that its drivers would follow suit. However, it did not pursue Mr Haynes's failure to answer a question about drug charges on its employment application form. In fact, Mr Haynes used amphetamines and drugs were found in his remains. Notwithstanding the defendant's assertion that drug use was "totally against company policy" there was no evidence of any education or warnings provided by the Company. 6 Training On the evidence of drivers employed by the Company, the training provided was not documented and only related to a particular system of business operations; tying down loads; and tyre maintenance. There was no training for fatigue management, Mr Haynes had no supervisor, and no-one from the Company ever discussed with him the length of time he spent driving. 7 System of Work The only review of the drivers' work conducted by the Company was a weekly kilometre check. At best, this was a broad review of driving distances, assessed a week at a time, and gave no indication of rest-stops or driving time. Further, it was conducted in the context of a clear monetary incentive to drive for excessive hours (drivers were paid by the kilometre); excessive workloads and directed delivery and pick-up times; and the Company's negligent attitude to log-books. Although the prosecutor need not prove what system should have been in place, he submitted that a safe system should have ensured the proper recording of working hours (including driving, loading, unloading and truck washing); those records should have been reviewed by the Company; and the Company should have used appropriate measures to prevent excessive driving and work times. Additionally, the Company could have sought accreditation through the professional fatigue management system. In fact, it did none of these things.

[35]

25 On the defendant's submissions, the evidence did not establish beyond reasonable doubt that Mr Haynes was fatigued at the time of the accident. Specifically: 1 On 1 September 1999, between leaving the Coca-Cola depot at 3.28pm and being recorded by the Safe-T-Cam at Harwood at 11.35pm, there was approximately "4 plus hours" of non-driving time during which Mr Haynes could have rested; 2 There was no evidence of Mr Haynes's actions during this time. If he did not rest, there was no basis for the suggestion that consequent fatigue was caused by his employer; 3 Even if one reviewed Mr Haynes's driving schedule in the days before the accident to assess whether he was fatigued, such a review could not precede 28 August 1999 because it was clear that Mr Haynes was at home that weekend before the accident and had substantial periods available for rest. Between the weekend and the accident, he had "more than sufficient time during which he was able to rest" in periods which were "significant in number and length"; 4 The evidence of Mr Haynes's activities in the days preceding the accident is too disjointed for the Court to infer that, cumulatively, he was suffering from fatigue. To establish fatigue, the prosecution has relied upon hearsay evidence of Ms Campbell and Mr McKellar which is contradicted by other evidence and in the latter case was unable to be tested; and 5 The Court cannot conclude beyond reasonable doubt that the accident was caused by fatigue. Mr Anthony Martin, Inspector in the Vehicle Regulation division of the Roads and Traffic Authority ("the RTA"), who inspected the accident site at the time, could not determine what caused the vehicle to swerve across the road. Associate Professor Williamson conceded that there were circumstances other than fatigue that could result in a similar crash. Moreover, there were other reasonable possibilities: Mr Haynes may have been distracted or suffered from some incapacitating medical problem. Alternatively, there may have been some mechanical failure of the truck.

[37]

· 26 August 1999 - 13 hour rest period; · 27 August 1999 - 13.63 - 16.74 hours of rest period; · 28 August 1999 - 8 hour sleep (at least); · 29 August 1999 - non-driving time of approximately 38.3 hours between Kew on 28 August 1999 and Harwood 9.24pm on 29 August 1999 (but this includes the 8 hour sleep referred to above); · 30 August 1999 - between 12.71 and 15.1 hours of rest; · 31 August 1999 - 10.29 non-driving hours; and · 1 September 1999 - approximately 10.64 non-driving hours. Professor Williamson's evidence must be regarded with caution. She failed to include a number of significant rest periods in her analysis of the days before the accident without justification, apparently on the basis that the only opportunity for rest during these periods was in the sleeping quarters attached to the truck. 2 Rosters Mr Haynes had ample opportunities for rest periods in the week preceding the accident, and the Court may infer from this that, in the allocation of work, the Company took into account the effect of sleep deprivation and fatigue. 3 Driving Hours The Company required Mr Haynes to record driving time in his log-book and reviewed daily work sheets each week to see if the kilometres were "within limits". There was no evidence to suggest that Mr Haynes did not keep an accurate log-book, nor that it did not accurately reflect the periods of rest available to him. Given that trips were allocated to drivers one at a time, the log-books are not relevant to the questions raised in this prosecution, regardless of whether they were collected by the Company. 4 Warning of the hazards of fatigue When he started work with the Company, Mr Haynes was directed to comply with his log-book. 5 Warning of the Hazards of Drugs to Counter Fatigue The Company had a "no drugs policy" and there was evidence that this was communicated to employees (in Mr Haynes's case, by his application for enrolment form). Dr Perl could not determine whether methamphetamine played any particular role in Mr Haynes's accident and the Court could not conclude that Mr Haynes took methamphetamine proximate to 1 September 1999. In any event, the prosecution did not establish that the taking of the drug was caused by an act or omission of the Company or that the alleged failure was causally related to the alleged detriment to safety suffered by Mr Haynes on 1 September 1999. 6 Training The Company had an Occupational Health and Safety Management System in place at the time of the accident and there was no evidence to suggest that the system was inadequate. 7 System of Work There was a system of work (the weekly checking of daily work sheets) and the evidence showed that Mr Haynes had appropriate rest periods. It was appropriate for the Company to rely upon the fact that its employees were required by clause 60 of the Motor Traffic Regulations 1935 (NSW) to keep accurate log-books.

[44]

31 Shepherd v The Queen has also been applied by this Court on several occasions, including by Hungerford J in WorkCover Authority of New South Wales (Inspector Peter Hannan) v Bitupave Limited, trading as Boral Asphalt [2000] NSWIRComm 50. In the following passage from Haynes v C I & D Manufacturing (1994) 60 IR 149 at 152, the Full Court of the Industrial Court of New South Wales referred with approval to the judgment of Dixon J in Martin v Osborne: Her Honour approached the assessment of such evidence [circumstantial evidence], correctly in our view, by reference to what was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne (1936) 55 CLR 367 at 375 - "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference." For ourselves, we would only add what Dixon J further said in that respect in the same passage (at 375): "In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued . The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed ." [Emphasis added]

[50]

37 Associate Professor Williamson gave further evidence about the shortcomings of day-time sleep, or the reliance upon long recovery rest periods during the day: it does not coincide with our circadian rhythm. In particular, people find it very difficult to get to sleep in the morning (even if they have been up all night and are tired) and what sleep they do get at that time is very disrupted and comparatively short. Under cross-examination, she stated: Q. When you say the most important period, the question is whether or not he's got the opportunity to rest, isn't that it? A. I'm talking physiologically, it is between midnight and dawn at which your circadian rhythm is at your low point at which period you gain the most benefit from the rest and it's the period in which you are most likely to obtain rest. Just because you want to sleep at ten o'clock in the morning, doesn't mean that you will. In fact, in terms of what we know about propensity to sleep, it isn't uniform across a 24 hour period. We know there are periods of times when you're mostly going to sleep and the sleep is of a better quality and that's mostly 11, midnight and dawn, later in the evening. Somewhere between 8 pm to 12 am also is a high time when people are likely to sleep, but people are very unlikely to sleep at say 10 am, 8 am, 11 am, that period in the morning where most people find it very difficult to sleep unless you're very tired, and even when you do obtain sleep, it tends to be more much poorer quality and shorter duration. Q. But it depends also [on] your own capacity? A. Unfortunately it depends on being a human being. It's a physiological phenomena, we're not talking about what we want to do at will. Everyone will have a problem trying to get to sleep in the early morning, that is, when I say the mid morning period of 6 am to 12 pm period, no-one one [sic] sleeps it isn't what we're made to do. Even shift workers who've been on night shift, they will sleep because they're tired and it's been a long time since they've slept. Night shift workers are chronically unslept-undersleeped [sic]. They also tend to need longer to get the same amount of sleep, and the sleep they obtain is of poorer quality. So shift workers really do have sleep problems.

[62]

41 Even more dangerous is the effect that fatigue has on drivers' abilities to recognise that they are engaging in a risky activity and that they should stop: A. [Associate Professor Williamson under cross-examination] We have a difficulty, we human beings, about dealing with fatigue because the more tired you become the less likely it is that you will be able to report and respond to that increasing fatigue. We know this very well. We see it when we ask people to rate their own fatigue and you find, as we have now with hundreds of truck drivers measured their self-estimated fatigue and we find out a number of things happen. You can see a truck driver who has just done many hours of truck driving without a break and he is still on a scale of zero to a hundred with the hundred being as tiredest as you possibly can be. You can still get many truck drivers who only count themselves at around 60 for example and lose the ability to differentiate that I am really much much tireder than I was before. It seems, and I am emphasising here, it seems that people, as they get more tired, sort of start to not really use the scale if you like. They will acknowledge that I am tired but I can continue. They lose the ability to really respond appropriately to the amount of fatigue that is warranted, so the more tired you become the less reliable you are as someone who can respond safely to that fatigue and do things like stop and take a break and quite often what people will do, because it's aversive, it's not a pleasant experience to be very tired, you want it to finish. What often happens is that people try harder and go a little further despite the fact they are fatigued, thinking they can manage, whereas because they are fatigued we know they can't. 42 It is clear from Associate Professor Williamson's expert evidence, and I have no hesitation in finding beyond reasonable doubt, that driving whilst fatigued is a risk to health and safety. In particular, I find that: (a) Long hours of working, especially at night, lead to fatigue; (b) Six hours of sleep during the core period of midnight to 6am (or an equivalent restorative sleep during day time, which may take longer due to the deficiencies of day time sleep) is the bare minimum to manage fatigue appropriately; (c) The high levels of attention required for driving will also contribute to fatigue; (d) Chronic fatigue can develop over a series of long work days in the absence of adequate rest; (e) Sleep is the only way to effectively alleviate fatigue; (f) The most beneficial, restorative sleep is taken between midnight and 6am. Longer periods of day-time sleep are necessary to reduce a build-up of fatigue; (g) Driving when fatigued is extremely dangerous because the skills necessary for driving - paying attention moment by moment - are significantly impaired by fatigue; (h) The nature of fatigue makes this situation even more dangerous: the more tired a driver becomes, the less able they are to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop; and (i) Fatigued drivers have a higher risk of crashing.

[183]

142 This statement formed the basis for the following evidence in chief given by Mr McKellar in the coronial inquiry nearly three years later on 12 June, 2002: Q. And when did he tell you that? A. Monday morning I was talking to him. I knew he left Sunday night to go to Brisbane. I talked to him Monday morning in Brisbane and I was talking to him when he was going to Kempsey to load bricks and I talked to him - actually I rang - I was talking to him Tuesday to when he was in Nowra - oh actually he was at the top of Mount Ousley half past ten Tuesday night to go to Brisbane. .... Q. Now he indicated to you, did he, that he had - he was going to Coca Cola to load up - - A. Yeah. Q. - - for a trip back to Sydney? A. Yeah. Q. And in fact you talked for 20 minutes and he said he had no sleep all that day and the night before? A. Well the Tuesday and the Monday, yes. Q. What did you say to him about that? A. Particularly oh well - I knew what Darri was like and what he did but he - there was one, one part of the statement he, he told me he was talking to himself. Like was tired and he had a big week the week before and the week before that, like what he actually done them weeks I, I know he worked hard but he was talking to himself and he asked me did I ever get in that situation and I said as a joke, "As long as you don't answer yourself back." or - we had them kind of jokes but - and I, and I wasn't working that week at the time and I said, because I knew he was tired, I said come by - because I was going to go down with him for a week and I said come by - Q. Down, where's that? A. With him in the truck. Q. Down to Sydney or - - A. Yeah and I said "Come by Glen Innes.", he said "No I'm already at Ben Lea, I said "I'll pick you up on the way back." and oh no he's, he was tired and I said "Just go to bed." and he said "No I can't go to bed because Jim's going load me Coca-Cola back out of Sydney in the morning and I've got to me in.", yeah and I said "Well just go to bed.". .... Q. Now did he say anything about traffic conditions at the time, did he say what the - - A. Conditions? Q. Yeah, the traffic at the - - A. No, no, no conditions. Q. No, didn't talk about that sort of thing? A. No. .... Q. So when you spoke to Darri, you tried to convince him to have a sleep-- A. Yeah. Q. --is that the case on this particular evening? A. Yeah, yep. Q. And what did he say about that? A. [...]..and to try and tell Darri just go to bed, if you wake up you wake up, like the Coca-Colas are going to get put in the storage room, there's no hurry for it, you know, but Darri, Darri didn't know nothing about that kind of stuff and the more you told Darri to do something, like he'd go, he'd work harder. [...] I got up him, he'd work harder just to prove a point, you know. He had a lot of pride and I think that pride just got him in trouble, you know, in my opinion.

[185]

144 I agree with the defendant's submissions that Mr McKellar's evidence, untested by cross-examination in these proceedings (although questioned by counsel for the defendant in the coronial inquiry), and (in the case of his oral evidence to the coronial inquiry) at times inconsistent with other evidence, must be treated with great caution and that the weight to be attached to it depends upon whether it is supported (or contradicted) by some other evidence. In this case, Mr McKellar's evidence of Mr Haynes's movements on 1 September 1999 is partly corroborated by other evidence and, to the extent that it is not, it is consistent with other evidence in such a way as to make it likely: the telephone records show an 11 minute conversation between Mr McKellar and Mr Haynes at 5.11pm (I infer, from the lack of any other telephone calls at that time that this is the telephone conversation Mr McKellar described as having taken place at 6.30pm); Mr van den Dool estimated the distance between Richlands and Beenleigh to be 55km; and Beenleigh was on a convenient route from Sydney to Brisbane. Using Mr van den Dool's estimate for this travel time (1 hour 3 minutes), if, as Mr McKellar stated, Mr Haynes in fact left Coca-Cola at 4pm, he would have arrived at Beenleigh at approximately 5pm in time to refuel between 5pm and 5.30pm: the time of his telephone conversation with Mr McKellar. I further note that Mr McKellar's statement, which contains this evidence, was made within two days' of the death of his best friend: as in the case of Ms Campbell (which I discuss below), one would expect him to have a clear memory at that time of the relevant aspects of any lengthy conversations he had with Mr Haynes in the hours preceding the accident. The contemporaneous nature of the evidence lends it some greater weight (although not so much as to displace my general view of Mr McKellar's evidence in the absence of corroboration). I accept, on the balance of probabilities, (despite the absence of a refuelling record) that Mr Haynes left Coca-Cola and drove to Beenleigh where he refuelled and spoke to Mr McKellar for some time. However, I note that the question of whether Mr Haynes left Richlands at 3.30pm or 4pm is immaterial to my ultimate findings in this case: according to Associate Professor Williamson, the fatigue necessarily attained by Mr Haynes at this point would not have been affected by an additional half hour of rest. Indeed, in this vein, neither does the additional half hour of work represented by the refuelling make any difference: Associate Professor Williamson gave clear evidence (which I discuss below) that, assuming a departure of 3.30pm and making no allowance for refuelling, the resultant 4 hours 30 minutes available for rest would not have been sufficient to overcome Mr Haynes's fatigue.

[201]

155 Ms Campbell gave detailed evidence of the conversation she had with Mr Haynes at 7.30pm during which he said that he was at Tweed Heads. The telephone records show a telephone call of 9 minutes at 7.12pm and a call of 1 minute 51 seconds at 9.33pm and I infer that these are the calls Ms Campbell referred to. The location of Tweed Heads, a 40 minute drive from Beenleigh, is consistent with Mr Haynes having a one hour break, coinciding with dinner time, at either Beenleigh or Tweed Heads, and I accept on the balance of probabilities that this is what happened. I also note that although Ms Campbell was unsure whether Mr Haynes was at Tweed Heads during their conversation at 9.33pm (see her answers below: in fact, this would be inconsistent with her certain evidence that at 9.33pm the truck was moving), she did not qualify her evidence that he was at Tweed Heads during the first conversation, and she later volunteered, in cross-examination, that Mr Haynes told her he had a break at Tweed Heads. Her evidence as to the two conversations continued: Q. Did he tell you anything about how he felt? A. He was tired. … Q. Was there something you observed in relation to the way in which he was talking to you as well which allowed you to form an opinion as to whether he was tired or not? [Objection] A. Just the way he was acting, he was just - well, he said he was tired but. Q. Did you say anything to him about that topic? A. I told him to go to sleep. Q. Why did you say that? A. Because he was tired; that was it, "Go to sleep". Q. Did he respond to you when you said that, when you told him to have a sleep? A. Yes, "The load has to be there otherwise I'll get the sack". Q. Do you remember anything else you said to him or he said to you about that topic about him having a sleep? A. I don't think so, I can't remember. Q. Was that the last telephone conversation you had with him or did you speak to him again that evening? A. Um, 7.30; another one at 9.30. Q. In that conversation did he say to you anything about his state of tiredness? A. Um, he was supposed to have a sleep. He said to me he was going to have an hour's sleep. I was supposed to wake him up at 9.30 but when I woke him up I could hear the truck going. I told him, "Haven't you been to sleep?" He said, "No, I can't go to sleep, I have to get down there." I just abused him, I told him he had to have a sleep. Q. Did he tell you where he was at that time? A. Tweed Heads, I think Tweed Heads. I'm not real sure. At the time I don't think he really said. … Q. Did he say anything else in that conversation that you can recall about how he felt at the time? A. Not how he felt, no, but he was coming home for a cup of coffee. Q. When did you expect him? A. Around midnight.

[272]

215 The defendant's answer at A.89 to the effect that he checked log-books to monitor whether driving hours were within the RTA limits is clearly inconsistent with his answers to questions 76, 99 and 150 of the WorkCover interview (extracted later in this judgment), and with his answer to question 103 above, which suggests that (as far as the defendant was concerned) the only consequence of a driver breaching the log-book hours would be that "the RTA would do something about him", provided of course that they caught him. It is implicit in the answers to questions 76, 99, 103 and 150 and the defendant's evasive responses to questions 100 and 101 that the defendant did not check the log-books, or monitor whether the drivers complied with the log-book regulations. In short, I do not accept the defendant's answer to question A89, and note that despite its obvious utility (were it believable) in answering the particulars of the charges, it was never referred to in the defendant's submissions which referred exclusively to the Company's review of the daily worksheets. In fact, in written submissions the defendant asserted that "there can be no suggestion that the log-books required to be kept by the driver were relevant to the questions raised in this prosecution" and failed to address the Court at all on whether or not duplicate pages were handed in, or whether or not they were reviewed by the defendant or any other officer or employee of the Company. 216 I have already noted that the defendant did not produce any duplicate log-book pages in answer to an Order for Production under the Coroners Act 1980 (despite the fact that it specifically compelled the production of these particular documents) and that according to Mr May's evidence the defendant stated that he did not have duplicate copies of log-books for any of his drivers. Nor were any log-book pages ever produced to Inspector Templeton, despite the defendant's comment in the WorkCover interview that he would check whether Mr Haynes in fact handed in his duplicate log-book pages as required, and despite a letter from the defendant to Inspector Templeton purporting to enclose the information requested by the Inspector as a result of incomplete answers given in the interview, which the defendant asserted would "fully answer the questions".

[292]

231 The following two passages of the WorkCover interview further highlight the ineffectiveness of the "weekly kilometre check" in the context of arranging driving rosters and in fact suggest that, inadequate as it was, it was seldom applied (the Company instead relying on the drivers' self-regulation) and that if it was applied, it was patently ineffective: Q.125 [Showing the defendant Mr Haynes's daily work sheets for 2 and 3 August 1999] If I provide you with a calculator do you agree that the total kilometres travelled [by Mr Haynes] on Monday 2/8/99 and through to and including Tuesday 3/8/99 as indicated on the sheets add up to 2286? A.123 [sic: should be A.125] Yes. Q.126 You earlier estimated that Darri would have arrived back in Nowra on Monday 2/8/99 having completed a trip from Grafton recorded as 781km. A.124 [sic: should be A.126] He should have been at Nowra on Sunday I would presume Sunday afternoon. According to the safety cam information you have just given me he didn't leave Grafton until late Sunday. Q.127. When I asked you earlier to estimate the arrival time of Darri at Nowra given he was sighted by safety cam at Kew at 8.26pm you estimated it would take approximately 10 hours minimum. Is that correct? A.125 [sic: should be A.127] His travel time from Grafton to Nowra would have been 10 hours or less. Q.128. If he was sighted at Kew at 8:26pm what would your estimate be for his arrival time at Nowra? A.126 [sic: should be A.128] About 1.30am but I would have presumed that he would have left home a lot earlier than he indicates. I [sic] indicates that he didn't leave until late on Sunday. Q.129. Given that he completed a trip of 781km on the Sunday evening and into the early hours of Monday was it then in accordance with RTA regulations for Darri to be scheduled to then complete a further 2286km over that Monday 2/8/99 and Tuesday 3/8/99? A.127 [sic: should be A.129] No. Q.130 Who gave Darri the instructions and information relating to the job he was undertaking at the time of his accident? A.128 [sic: should be A.130] Our despatch office. Q.131. Do you know who that was? A.129 [sic: should be A.131] I think ti [sic] would have been Allan Turner. Q.132. When was Darri informed about this job? A.130 [sic: should be A.132] I guess about 10am on 1/9/99. Q.133. How was a reasonable assessment of the hours worked by Darri undertaken by Sayogi Pty Ltd if all the information relating to the days and hours travelled was not recorded on the daily working sheets? A.131. [sic: should be A.133] We presumed that the driver was working with the log book hours and if he wasn't he should tell us. We do not direct our drivers to work out of log book hours.

[294]

233 In conclusion, I am satisfied beyond reasonable doubt that the Company failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation. I reject the defendant's submission that "the driving duties of Mr Haynes gave him ample opportunities for rest" and that "the court may infer from this that it is implied that the effect of sleep deprivation and fatigue was taken into account". This submission is incorrect for several reasons, some of which I will mention here (noting that my later observations in relation to delivery times also put paid to it): first, it is limited to driving duties - the evidence clearly established that drivers had other, time-consuming work duties (such as loading, unloading, queuing, washing the truck) which must be taken into account when assessing fatigue. So much is apparent from the log-book definition of "work", even without the combined evidence of the drivers and Associate Professor Williamson. Secondly, it is not pertinent whether Mr Haynes had "ample opportunities for rest" (which I do not accept, based on my earlier findings in relation to his last week): the Company could not discharge its duties simply by expecting the drivers to manage their own affairs in compliance with the log-book regime, as I have discussed earlier. Apart from the fact that this proposition is inconsistent with employers' duties for proactive management and supervision of health and safety under the Act, (and I have already noted and accepted Associate Professor Williamson's evidence that fatigued drivers cannot be relied upon to make sensible decisions in relation to rest-breaks), the overwhelming evidence that Mr Haynes was dangerously fatigued on two occasions in a period of just one week shows that whatever the theoretical flaws of self-regulation (which are themselves persuasive), it patently did not work in practice. Rest-breaks were not taken in a manner to prevent or cure fatigue (nor indeed were they required by the supervision or enforcement of an appropriate system) and each driver gave evidence of regularly flouting the breaks prescribed by the log-book regime, as I discuss below. Delivery Times

[370]

283 I do not consider that it is necessary to discuss the submission further in order to dispense with it, other than to note that the concept of risk under the Act has been examined at length recently in WorkCover Authority of New South Wales (Inspector Barry Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207, a case which concerned the risks of driving an "all terrain vehicle" off-road and in which liability was established. I adopt the discussion of principle in WorkCover v Kirk Group Holdings Pty Limited in relation to risk and causation (notably paragraphs [141]-[143]) and draw particular attention to paragraphs [131] and [133] in relation to risk: [131] It is worth stressing the frequently repeated principle that the duty is one to prevent risks to safety, not to prevent the risk of injury. This was vividly illustrated by Hill J's description in Atco Controls Pty Limited of the duty (quoted in WorkCover v Fletcher Constructions , extracted above): "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" (emphasis added). As noted in Haynes v C I & D Manufacturin g and subsequent authorities, it follows from the correct interpretation of the duty as one to prevent risks to safety, that (defences aside) liability will ensue if an employer's act or omission "created a situation of potential danger to the health and safety of people at its workplace". [132]The Court analysed the nature and meaning of risk and attendant issues of causation in detail in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 at 393, in the context of risks which arise independently of the defendant (in that case, aggressive or violent behaviour by a student) and which cannot be completely eliminated: [136] The legal issues raised by the two cases [ O'Sullivan and WorkCover Authority of New South Wales (Inspector Keelty) v Police Service of New South Wales (No 2) (2001) 104 IR 268] are similar. In this case (in addition to its temporal argument in relation to manifestation of risk), the defendant has argued that the violent acts of severely intellectually disabled students cannot be accurately predicted, cannot be completely eliminated and are due to unknown causes independent of the defendant. Accordingly, the defendant submitted, they cannot give rise to liability under s15 of the Act. In WorkCover v Police Service (No 2) the defendant put similar arguments based upon the unpredictability and uncontrollability of a violent, armed member of the public. The similarity of arguments and issues between the two cases (and consequently the relevance of his Honour's reasoning, with which I agree) is best illustrated by the defendant's formulation of the tests to establish liability in WorkCover v Police Service (No 2) at [8]:

[371]

· '' Would the act or omission alleged in each summons have ensured the health, safety and welfare at work of the officers? · Would the act or omission have provided plant or systems of work that were safe and without risks to health? · Did the acts or omissions alleged create a situation of potential danger to the health or safety of the officers? · What were the objective facts causing detriment to safety and was there a causal connection therewith of the employer? · Has the prosecution proved beyond reasonable doubt that the events were caused by the failure of the employer and not some other unrelated factor?''(Emphasis added.) and the prosecutor's response (at [12]): (1) The relevant failure by the defendant the subject of the charge in each summons was not the risk created by Mr McGowan but the risk arising from its various failures in a situation where the two police officers were working in an environment where they were at risk of being shot or experiencing physical harm; the relevant risk, therefore, was that brought into existence by the defendant. (2) Whilst the defendant was not aware Mr McGowan posed the specific risk which occurred, the defendant was well aware of the type of risk which could arise for police officers engaged on operational duties; it was not a question of the defendant being responsible for the actions of Mr McGowan. The defendant should be held responsible for its acts or omissions in circumstances where the type of risk posed by Mr McGowan was well known to it. (3) To interpret s 15, as did the defendant, as not extending to any risks to employees arising from the unlawful actions of third parties would be a mandate for employers to ignore such risks and there was no basis in the legislation for such a narrow approach. That was especially the case with police officers whose main role was to deal with unlawful activity and, given the intention of the statute to improve the safety of the working environment, no such narrow view should be accepted. (4) The defendant's submission that the prosecutor must prove that the absence of the act or omission allegedly creating the risk to safety would have ensured the health and safety of the two officers misapprehended the statutory duty on the employer pursuant to s 15(1) - rather, the duty was to show that the act or omission amounted to a failure by the employer to ensure or provide for the safety of the two officers; the prosecutor must show an act or omission which detracted to the relevant degree from the obligation to ensure safety in the workplace.

[374]

Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. [138] Hungerford J then rejected the defendant's general submissions in avoidance of all the charges that the relevant risk was created externally from the defendant by unpredictable and criminal conduct over which the defendant had no control, preferring instead the prosecutor's stance. Due to the importance of his Honour's analysis in this aspect of his judgment I shall set out in full the relevant passages (at [22]-[24]) as follows: [22] The general submission made by Mr Hastings on which his no-case application was based as to all charges was that the relevant risk to safety here was Mr McGowan over whose unpredictable and unlawful conduct the defendant had no control; and, so senior counsel submitted, there was no causal nexus of the defendant to the detriment to safety of the two officers. In my view, that submission cannot be sustained. Mr Hastings went further and submitted that the significance of Mr McGowan's role was such that there was nothing the defendant could have done to obviate the risk caused by Mr McGowan; as senior counsel said - "There is nothing to provide the employees with safety in those circumstances". Even given, which I think clearly was the case, that Mr McGowan presented as a risk to the officers' safety, that is not what any of the charges were directed to. The charges identified what were alleged to be risks existing to the safety of the two officers apart from the ultimate actions of Mr McGowan in causing their deaths. The answer to Mr Hastings' submission in this respect is simply that it concentrated on the incident itself, that is the fatal shooting of the two officers by Mr McGowan, rather than the situation in which the officers were placed while performing operational duties at the time and place of the incident in terms of risks to their health and safety occasioned by the particular detriments identified in each of the charges. In other words, the defendant's submission fell into the same vice by concentrating on the incident itself as the Full Court in Haynes v C I & D Manufacturing found occurred there at first instance.

Inspector Campbell v James Gordon Hitchcock

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Judgment (435 paragraphs)

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