Inspector Chris Chadwick v B H MacLachlan

Industrial Relations Commission (NSW)|2004-11-02|Before: Haylen J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Chris Chadwick v B H MacLachlan (NSW) Pty Ltd. [2004] NSWIRComm 331 PROSECUTOR: Inspector Chadwick PARTIES : DEFENDANT: B H MacLachlan (NSW) Pty Ltd. FILE NUMBER: IRC 3973 of 2003 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 1983 - s 15(1) - system of mustering cattle on horseback - absence of safe system of work - equestrian helmet not provided - failure to provide training, information, instruction and supervision in mustering task carried out at remote locations - failure to provide effective communication systems - plea of guilty - workplace death of overseer - Coroner's Report unable to conclude death avoidable by use of helmet while mustering on horseback - objective seriousness of offence established by reference to system failures - substantial improvements made in safety system following accident - general and specific deterrence considered - subjective factors considered - early plea - first offence - penalty imposed

PROSECUTOR: Mr C Hoy of counsel SOLICITORS: WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANT: Mr J Dodd of counsel SOLICITORS: Piper Alderman

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No. IRC 3973 of 2003 Inspector Chris Chadwick v B H MacLachlan (NSW) Pty Ltd. Prosecution under s 15(1) of Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 331

A WORKPLACE DEATH 1 From January 2001 and until his death on 18 July 2001, Daniel Croker was employed by the defendants, B H MacLachlan (NSW) Pty Ltd, as an overseer having commenced employment in 1999 (at Merriwagga near Griffith). It was part of his duties to supervise the jackaroos at Gunbar Station, to plan the activities of the day and to allocate tasks to them. Mr Croker had succeeded in appointment to this position over a very experienced employee, having himself being employed as a jackaroo for over two years. There were no qualifications required for the work performed by Mr Croker but a jackaroo was groomed to take opportunities for higher positions such as overseer or station manager. A jackaroo's training was acquired on the job.

2 On 18 July 2001, Mr Croker was supervising the work of two jackaroos, Thomas Blackford and Edward Blackwell. The task was to separate bulls from cows in a very large paddock which was distant from the homestead. At the beginning of the day's work, Mr Croker used a motorcycle to locate groups of cattle in this large paddock while the two jackaroos rode their horses in order to separate the bulls. This method resulted in the jackaroos, from time to time, coming into contact with Mr Croker but when they returned to the place where they had left a four wheel drive vehicle, in order to have lunch, Mr Croker was not present. It was not until some time after that the jackaroos became aware of Mr Croker's horse standing by itself nearby. A search of that area led to the discovery of Mr Croker's body: he had suffered serious head injuries and no pulse was discovered.

3 This incident was investigated by Inspector Chadwick who subsequently brought proceedings alleging a breach by the defendant of s 15(1) of the Occupational Health and Safety Act 1983. The relevant particulars of the charge were that: the defendant had failed to provide and or maintain a system of work that was safe and without risk to health to its employees, and in particular the deceased, while undertaking cattle mustering and associated activities on horseback; the defendant had failed to provide such personal protective equipment as was necessary to ensure the health and safety of its employees and in particular the deceased, while undertaking cattle mustering and associated activities on horseback; and, had failed to provide training, information and instruction as was necessary to ensure the health and safety at work of its employees, and in particular the deceased, while undertaking cattle mustering and associated activities on horseback. It was also alleged that there was a failure to provide supervision, safety equipment and communication equipment as was necessary to ensure the health and safety of its employees and in particular the deceased, while undertaking cattle mustering and associated activities on horseback including those activities when undertaken in remote and isolated areas. It was alleged that as a result of these failures Mr Croker was placed at risk of injury.

PLEA OF GUILTY ENTERED 4 Although the defendant took some time to investigate the particulars of the charge, a plea of guilty was entered in circumstances where some of the factual matters relied upon by the prosecutor remained in dispute. Those few factual matters were addressed by the parties on the hearing of submissions on penalty with the prosecutor accepting that it bore the onus of establishing those disputed facts to the criminal standard.

The prosecutor tendered a comprehensive Statement of Facts, which, omitting formal parts, stated: . . . 3. At all material times the Defendant operated as a business with two rural Stations or properties, Gunbar Station, Merriwagga in the State of New South Wales and Tiarra Station which was approximately 180 kilometres to the north. 4. At all material times the Defendant's main business was that of a primary producer including wool growing and rural production of beef cattle and other agricultural enterprises. 5. At all material times, the Defendant was an employer, including amongst its employees, Mr Daniel Jason Croker ("the deceased"). 6. On 17 July 2001, the Defendant, through its Manager, Nicholas Ennis, of Gunbar Station, Merriwagga, directed the deceased to supervise and engage in the mustering of cattle and associated activities on horseback ("mustering") at Gunbar Station, Merriwagga in the State of New South Wales. The specific task was to remove the bulls from various paddocks including those known as "Pivot", "Cabbage Garden", "Biggars" and "Whealbah" paddocks. The bulls were to be herded into cattle yards and then returned to their usual or normal paddock. 7. The deceased was an overseer and supervising jackaroo employed by the Defendant. On 18 July, 2001 he was engaged in mustering as directed. 8. The mustering practice was that sheep would be mustered on motorbikes and cattle on horseback. Motorbikes were usually only used with cattle to spot and locate them in paddocks and they would then be mustered on horseback. 9. On 18 July, 2001 the weather was clear and dry. 10. On 18 July, 2001 the deceased was the supervisor of other staff of the Defendant. In respect of the mustering that day he was supervising two jackaroos, Edward Stewart Blackwell and Thomas Anthony Blackford ("the jackaroos"). 11. At approximately 8:00am to 8:38am on 18 July 2001, the deceased arrived at stockyards in Pivot paddock, Gunbar Station, Merriwagga, in the company of the jackaroos. 12. Thomas Blackford rode a motorcycle from the property homestead to Pivot paddock whilst the deceased and Edward Blackwell travelled in a utility. The utility was loaded with equipment for the day's work, including another motorcycle and horse riding equipment. "Pivot" paddock is approximately 7000 acres in size and is 25 kilometres from the homestead at Gunbar Station. 13. The task was to muster any cattle in the paddock to the yards and then "draft" or separate the bulls from the cows. The deceased instructed the jackaroos to saddle their horses, which had been mustered into the yards the previous day, and to begin to muster the cattle already located within the paddock. The deceased then unloaded his motorcycle with the intention of using it to conduct a reconnaissance of the paddock to find mobs of cattle which could then be brought into the yards by riders on horseback. The deceased wore a helmet whilst riding the motorcycle. All staff were trained to and did wear helmets whilst riding motorcycles. 14. The jackaroos headed to the southern end of the paddock on their mounts. About 2 km from the yards they encountered the deceased who was bringing in a mob of cattle. The jackaroos took over this mob and proceeded to herd them back to the yards while the deceased then headed off again on his motorcycle to search for more stock. 15. The jackaroos spoke to the deceased for the last time at approximately 10am when he rode up on his motorcycle to check on their progress before returning to his search of the paddock for further stock. The jackaroos continued to muster and draft bulls from the cattle during the course of the morning arriving at the yards with one mob of cattle around 12 noon. 16. At this time, they noticed that the deceased's motorcycle was parked at the yards and his horse and riding gear were gone. Both jackaroos assumed that the deceased had finished his searching and had taken his horse to bring a mob of cattle into the yards. After yarding their mob of cattle the jackaroos stopped for lunch at 12-30pm. During this break they noticed that the gate between the adjacent paddock to the north, known as "Biggars" paddock, was open. Assuming this to be to be [sic] the likely direction from which the deceased may be bringing more cattle to the yards, they rode their horses towards the open gate. 17. The open gate was approximately 200 metres to 250 metres from the cattle yards where the jackaroos were having lunch. While riding towards the gate they noticed the deceased's horse (named "Tricky") standing by itself off to the left. Upon investigation they discovered the deceased's body lying nearby. Thomas Blackford estimates the time of discovery of the deceased as being at about 12.45pm. Edward Blackwell checked the deceased for a pulse and did not find one. 18. The jackaroos rode their horses back to the utility vehicle which was fitted with a UHF radio. The jackaroos attempted to contact the homestead by use of the UHF radio but were unable to raise a response. It is unknown whether the lack or [sic] response was because the radio signal failed to reach the homestead or whether, alternatively, nobody at the homestead heard the call. It was however known to the defendant that the UHF radio although generally effective as a means of communication, was from time to time unreliable as the result of the interaction of distance, geography and prevailing weather conditions. 19. Subsequent to the accident to Mr Croker, employees of the defendant performing mustering duties were provided with personal UHF radios. 20. The jackaroos were aware of the presence of council workers on the main road however they were not aware of the workers' radio call-channel. They were also not aware of the call-channels of any of the neighbouring properties. The Defendant had not instructed or trained the jackaroos in relation to such matters. 21. The Station Manager, Mr Nicholas Ennis, was not present at Gunbar Station on the day in question. He was at another of the Defendant's properties, Tiarra Station some 180 kilometres away. The only persons present at the homestead were the cook and the gardener. . . . 23. The jackaroos were initially unable to drive the utility to obtain assistance as it had a flat tyre. The flat tyre had been discovered some hours earlier however was left unrepaired. The jackaroos had available to them the motorcycle ridden by the deceased earlier in the day to ride to obtain assistance but were aware that the deceased had died sometime earlier. After changing the tyre they drove to Crows Nest Road, towards Hillston, where they flagged down council workers in a vehicle at approximately 2.00pm. The council workers then radioed for assistance. Ambulance officers attended the scene approximately 45 minutes later. 24. There were no witnesses to the incident of injury to the deceased. 25. The riding equipment (bridle, saddle and reins) of the deceased was inspected after the incident and all was determined to be in good and operable condition. 26. The deceased's horse was regarded as being an excellent stock horse. 27. The deceased was well regarded as an overseer and jackaroo and considered to be a good rider and stockman and capable of handling horses. Police and WorkCover investigations have not revealed any specific reason for the deceased having fallen from his horse. 28. The post mortem report consequent to an autopsy conducted upon the deceased determined that the direct cause of death was "massive head injury with exsanguination" (ie head injury and loss of blood). 29. It is apparent that the deceased fell from the horse and as a result suffered fatal injuries. 30. It is apparent that the deceased died from his injuries on 18 July 2001 at Gunbar Station, Merriwagga. 31. The deceased was not wearing any personal protective equipment such as head protection equipment/helmet while mustering on horseback and no personal protective equipment such as head protection equipment/helmets had been provided to employees by the defendant. There were apparently two (2) equestrian-style helmets at the defendant's homestead on Gunbar Station however no instructions were apparently given as to their availability or use in respect of day to day work. Open-faced motorcycle helmets were used for motorcycle riding. 32. Whilst it is acknowledged that it was not common practice for horse riders in the cattle industry to wear protective head equipment/helmets, the risk to employees of injury whilst engaged in such activities ought to have been well known to the defendant. In 1988 there was released Australian Standard 2063.3 entitled "Equestrian Helmets". This standard was followed by the release in 1998 of a joint Australian and New Zealand Standard (AS/NZS 2512.1 / AS3838:1998) which applied specific requirements for protective helmets for horse riding and horse-related activities intended to mitigate the effects of an impact to the head. This joint Standard was released in its second edition in 2003. . . . 33. The defendant provided helmets for use by employees in the operation of motorcycles. There was no policy, requirement or obligation imposed upon employees to use protective head equipment/helmets whilst on horseback. 34. At no time prior to the deceased's accident did the defendant conduct any formal risk assessment in relation to the task the deceased and the jackaroos were undertaking. An assessment was undertaken following the deceased's accident. 35. At no time prior to the accident, did the defendant document any occupational health and safety policy or procedure. 36. At no time prior to the accident was there any documentation as to training and qualifications of employees. 37. The isolated areas that the employees including the deceased were employed required adequate means of communication with rescue and emergency services. 38. There was insufficient information and training provided to employees so as to facilitate an ability to communicate with and obtain assistance from other persons with the communication equipment that had been provided. 39. There was no instruction or training as to emergency procedures to be implemented in the event of an incident or emergency by employees other than an instruction to contact the manager in the event of a bush fire. 40. The Defendant had a limited system for the supervision or other safety-monitoring of the deceased and other employees during periods of sometimes-extended absence working in isolated areas. The system of communication between employees in the field was essentially visual in nature in that employees maintained direct line sight with each other and communicated by hand signals. 41. There was no system of supervision or other safety-monitoring for employees who were not in direct line of sight with other employees. 42. The defendant did not have in place any system of supervision or communication involving regular communication between the deceased and other employees such as the other two jackaroos and/or with persons at the homestead or elsewhere on the other for the purpose of checking the whereabouts and wellbeing of the former while working in areas of isolation. 43. At the time prior to the accident equestrian style safety helmets were available at a retail cost of approximately $40.00 to $50.00. 44. At the time prior to the accident and since 1995 sun shades were commercially available for affixing to equestrian style helmets. Such shades then costed between $18.00 - $27.00. More recently a flexible sun shade has become commercially available so as to allow the wearer to "personalize" the equestrian style helmet and sun shade. . . . 46. The Defendant has no prior convictions under the Occupational Health and Safety Act 2000 or the Occupational Health and Safety Act 1983.

6 The factual matters contested by the defendant were: the assertion in paragraph 22 that the jackaroos were unable to raise the alarm and seek immediate assistance; the assertion in paragraph 31 that equestrian style helmets were "available" at the homestead; the statement in paragraph 38 that there was insufficient information and training provided to the employees so as to facilitate an ability to communicate with and obtain assistance from other persons using the communication equipment provided; and the contents of paragraphs 40, 41 and 42 which broadly linked unsatisfactory communication systems with an non-existent system of monitoring employees working in remote parts of the property.

THE EVIDENCE 7 Edward Blackwell was 19 years old at the time of the incident when he was employed as a jackaroo at Gunbar Station. He had been a jackaroo for about one and a half years and had commenced at Gunbar two days prior to the incident. On 18 July 2001, together with Daniel Croker and Tom Blackford, he was to muster bulls from around the cattle yards located in a paddock about 25 kilometres from the homestead. He and Mr Croker had driven to the yards in a Toyota utility while Mr Blackford rode a motorcycle. The horses were already at the yard and the saddles were taken by utility: the young men arrived at the cattle yards at about 8.15 am.

8 During the course of the morning, Mr Croker had ridden the motorcycle to find and round up cattle while the jackaroos brought the bulls back to the yards on horseback. During the course of the morning, the jackaroos met Mr Croker who told them what further areas should be investigated.

9 The last time Mr Blackwell saw Mr Croker was at about 10.00 am. By 1.15 pm, the two jackaroos were back at the yard and noticed that Mr Croker had changed from his motorcycle to his horse as the saddle and gear was missing and the motorcycle had been left behind. It was assumed that Mr Croker was in an adjoining paddock where the gate to the yard was open. When they went over to that paddock looking for Mr Croker they noticed his horse standing by itself with the saddle and bridle still on. They started to search and soon found Mr Croker lying on the ground. Mr Blackford had checked for a pulse but none was found and they knew that Mr Croker was dead.

10 The jackaroos knew that no-one was at the homestead so there was no purpose in trying to call on the radio. They were aware that council workers were grading the road not far away so they drove the utility in that direction in order to obtain assistance. The utility had sustained a flat tyre which had earlier been noticed but had not been changed. The tyre was changed before they could set off to contact the council workers. There was no suggestion that Mr Croker had been drinking or that his riding gear had failed.

11 The council workers were only about four kilometres away and they used their radio to contact an ambulance. Prior to that day Mr Blackwell had not been instructed in what to do in the event of an accident or an emergency while working at Gunbar. He thought there had been no further instructions given since the accident. They had learned the radio call numbers for some of the neighbours and it was thought that the station manager knew those numbers but he was not around at the time of the accident. Mr Blackwell had been instructed by Mr Croker on his second working day in the operation of earthmoving machinery such as the bulldozer and the grader. There was no record of the training and it was on the job training by task allocation. The horses were allocated to staff according to riding ability but Mr Blackwell did not regard the horses at Gunbar as being wild.

12 Since the accident, they had been wearing riding helmets provided by the Station when mustering on horseback. Motorcycle helmets were always available and were worn. On his second day at the station, Mr Blackwell alone had ridden the motorcycle to check water levels mainly in dams and, having been supplied with a map, travelled about 50 to 60 kilometres: this task took about six hours and although nobody came to check on him, Mr Blackwell said that he was only ever approximately 15 kilometres from the homestead in a straight line.

13 Mr Blackwell gave oral evidence: he thought that, at about the time he started, he had been told that it was important to know where everybody was given the size of the paddocks in which they worked. He had noticed that the equipment at the property was in good condition. After the accident, hand held radios were introduced and they were as good as the radio in the vehicles. Mr Blackwell had stayed at the property for about 18 months after the accident but did not remember being given any work manual during that time. On the day of the accident, they had not tried to radio the homestead because they knew the manager was working on the other property owned by the defendant. Radio messages were received in the manager's office and they knew that nobody else would be around. He was aware that, after the accident, cards were introduced with printed channel numbers allowing radio contact with neighbouring properties but he was not aware of any such facility prior to the accident.

14 Mr Blackwell confirmed that at Gunbar Station the defendant was diligent about riding equipment, saddlery, bridles and gear for horse riding and there were motorcycle helmets to be worn when using motorcycles. At the time of the incident, there was no suggestion that employees had to wear equestrian style helmets when riding horses. Mr Blackwell was aware that there were two helmets in the saddle room but it was not a requirement to wear them. During the time he had been there, there was no formal training in relation to what to do in the event of an emergency or what to do to contact emergency services.

15 Mr Blackwell spoke of his experience of people not wearing helmets while riding horses and that when he was learning to ride a horse he had worn a helmet but did not wear one once he felt sufficiently confident. He agreed that if he was breaking in a horse an assessment might be made and a helmet worn, and the same would apply on an assessment of the area in which work was undertaken so, if it was sloping rather than flat country, a helmet might be worn. The paddocks that were being worked on the day of this incident were flat and he regarded Mr Croker to be a good horseman.

16 Thomas Blackford was 19 years of age and had been employed at Gunbar as a jackaroo for 12 months at the time of the accident. In a statement to the police, Mr Blackford spoke of Mr Croker organising work on the day and how cattle had been mustered by Mr Croker using a motorcycle and then taken for drafting by the jackaroos. He stated that it was about 1.30 pm that he was having lunch with Mr Blackwell in the cattle yard when he noticed that the gate in the adjacent paddock was open - he assumed that Mr Croker was in that paddock riding his horse to separate the bulls, as his motorcycle was left at the yard. After finishing lunch, he and Mr Blackwell rode to the paddock to give Mr Croker a hand and noticed Mr Croker's horse standing in the paddock. The two jackaroos then dismounted and commenced looking for Mr Croker, fearing that something was wrong and eventually found his body. Mr Blackford found Mr Croker lying on his back with his head to one side and blood coming from his head: he lifted his right hand, could not find a pulse and formed the view that Mr Croker had passed away. The two jackaroos then rode back to the yards, changed the flat tyre on the utility and drove to the road where they were aware that Council workers were working. When they reached the roadwork crew, they asked for an ambulance to be contacted by radio and then returned to the cattle yards.

17 Mr Blackford said that he had known Mr Croker for 12 months and regarded him as a good bloke and a mate: he was a very experienced horseman and had worked with stock at Gunbar for the last two and a half years. He expressed the opinion that Mr Croker's horse, while spirited and possessing a big heart, was one of the best horses on the station.

18 In late August 2001, Mr Blackford signed a six page statement regarding the incident. In that statement, he spoke of being instructed by Mr Croker on how to muster cattle while riding a horse and how to look after the horses and all his equipment. Gunbar Station had provided the jackaroos with saddles and reins and the jackaroos were required to put saddle wax on the them when they were dry, to wash the saddle blankets now and then, and to check the straps before the horses were saddled. He was shown how to ride horses for mustering so that he could place the cattle in the right direction. During his time at Gunbar, he had no problems with his horses or his equipment nor had he any accidents when riding the horses. In his view Mr Croker was very experienced and a good teacher. The jackaroos were told to wear cuban heeled boots they had to buy themselves because they were a narrow boot and did not stick in the stirrup so, if a rider had a fall, the boot would not stick in the stirrup and drag the rider.

19 In late September 2001, Mr Blackford was interviewed by WorkCover. In that interview, Mr Blackford spoke about the training he received as a jackaroo on how to ride, look after horses, how to muster, fence and do practical work - it was hands on training. The training was conducted by the overseer or the manager. At the time of the accident, the weather was clear and sunny although it became overcast in the afternoon. It had been dry, the ground was hard and there was some dust. There was nothing amiss with Mr Croker's horse or its gear. The manager had allocated horses according to his assessment of a jackaroo's riding ability. When mustering was conducted at Gunbar, the task was discussed between the overseer and the jackaroos before it was started and when there were bigger paddocks they worked in pairs or threes, but smaller paddocks, up to 2,500 acres, would probably be undertaken by one person. There was little difference between using a horse or a motorcycle but when motorcycles were used, crash helmets were worn because they could go faster and there was a greater risk of injury.

20 After the accident, the manager informed the jackaroos that there would be no horse riding until helmets were acquired. Nothing had changed much since the accident in terms of work methods. Prior to the accident the only instruction in relation to accident or emergency situations at the Station had been in relation to fires and the need to quickly contact the manager. There was no documentation of this instruction.

21 Mr Blackford provided a further witness statement to WorkCover in January 2004. In this statement Mr Blackford spoke about the high levels of safety in operation at Gunbar and how the manager, Mr Ennis, was diligent in ensuring that all staff had an adequate understanding of safety procedures. The manager would conduct regular checks on the horse riding and motorcyle equipment every few days, and in Mr Blackford's view the equipment was in good condition and well looked after. All jackaroos were required to be supervised by an overseer whilst on muster so that they were taught the appropriate and safest way of performing their tasks. Mr Blackford observed the manager communicating with the overseer each night and providing instructions as to the tasks to be carried out the following day. On the day of a muster the overseer would give instructions for tasks allocated to the jackaroo. Generally arrangements were made to meet on the job, usually about every two hours, to discuss the job and whatever issues were arising.

22 On the day of the accident, Mr Blackford could not remember Mr Croker issuing any particular instructions about where to meet or at what time they were to meet during the course of the morning. The two jackaroos assumed they would eventually meet at lunch time. While provided with no written documentation, Mr Blackford considered that he was taught all the relevant safety procedures within the first two times he was shown a task. There were equestrian helmets at the Station but they were not compulsory for horse riding. In Mr Blackford's view, it was general jackaroo practice throughout most stations in Australia not to wear a helmet when riding and he preferred not to a wear a helmet. After the accident, the defendant became very serious about improving safety conditions for employees and documented the procedures that they had practised for some time and implemented further procedures about chemical safety and hazardous substances, handling pesticides and providing further safety recommendations. Hand held radios became available for use when performing muster or working alone. On muster there was usually a team of three and visual signalling was the usual method of communication. The property was mostly flat and there was no difficulty in seeing where workers were placed if you knew their general location.

23 Mr Blackford stated that before the accident he knew the radio call signs to some of the neighbours but they were not written down - he just kept them in his head. He thought there was a list in Mr Ennis' utility but not in the one the jackaroos were using. Mr Blackford accepted that horses were unpredictable and, no matter what the standard of the rider, there was always a risk of being bucked off or falling off. His experience was that while riding horses people did not and did not like to wear helmets but it had become compulsory to wear a helmet when riding a motorcycle when performing work on a rural property.

24 There was trouble reaching the homestead using the radio from the paddock in which they were working on the day of the accident although driving on the nearby dam wall would help reception occasionally. On the day of the accident there was no point trying to reach the homestead because no one was there. Since the accident, a system was introduced whereby the jackaroos would check in with each other at regular intervals but there was no system or requirement for the overseer to check in with the jackaroos.

25 Mr Nicholas Ennis was employed by the defendant as manager of Tiarra and Gunbar Stations. In late November 2001, he was interviewed by WorkCover in relation to the accident. In his role as manager he had the general overview of training received by staff. He held no tertiary qualifications but had received on the job training in the rural industry. Mr Croker had been trained by Mr Ennis and the previous overseer at Gunbar but there was no written record of the training apart from daily job notes. On the day of the accident, Mr Croker was working independently and was the supervisor of the job - he had discussed the job with Mr Ennis the day before which was the usual practice. It had not been policy at the property prior to this accident to wear a helmet while riding a horse. Mr Ennis knew of no station in Australia that required their stockmen to wear a helmet while riding a horse although most stations did require helmets to be worn while riding a motorcycle. There was some work that required employees to work alone but communication was available through the radio and since the accident by the use of hand held radios.

26 Mr Ennis also gave a witness statement to WorkCover in December 2003. He expressed the view that Mr Croker was an exceptional horseman who had worked in the industry for three to four years: he was a good supervisor and well liked. Mr Ennis said that he personally assessed every new employee who arrived at Gunbar to ensure that they were competent to ride and handle horses. Until he was satisfied of their competency, these people were not allowed to ride on their own. The horses at Gunbar were well mannered and knew the terrain well. Staff were allocated horses that met their ability, their performance was monitored and a change in horse made if needed. When a horse was allocated to an employee it became the employee's responsibility to tend to that horse, including feeding and grooming but it remained Mr Ennis' responsibility to inspect the riding gear every few days. The equipment was always in excellent working order and was cleaned, greased and inspected. Employees were expected to wear appropriate clothing including cuban heeled boots with smooth soles which prevented the foot from being caught in the stirrup.

27 Hand held radios were not available until after Mr Croker's death, although Mr Ennis said that in his experience the more the hand held device was relied upon by a jackaroo the less able the person was to think for himself and it had the potential to disorient the person. He thought it promoted bad stockmanship and it would be negligent of the defendant not to train jackaroos to be able to conduct their work unsupervised and unassisted on the basis that one day communications may fail and the person would find himself unable to survive without it. He also spoke of a method of communication - an awareness by sight of other persons working in a paddock - and the instructions given in this regard. Mr Ennis thought that communication was available from just about anywhere on the property including the paddock where Mr Croker died.

28 Although there had been no documented system of safety there were always in existence safe systems of work at the defendant's properties. Since the accident, the occupational health and safety procedures had been reviewed and guidelines laid down in a comprehensive Gunbar Station Occupational Health and Safety Manual. This document covered the use of radio equipment, general safety procedures, requirements for wearing protective gear and a number of other matters. These policies were provided to employees upon commencement of their employment, they were expected to read the policy thoroughly and sign a declaration acknowledging their agreement to be bound by the guidelines. Also, since the accident the defendant had adopted as policy the compulsory wearing of helmets while horse riding. Employees were informed that a failure to comply with the guidelines may lead to instant dismissal.

29 In oral evidence, Mr Ennis confirmed that training in the rural industry was entirely on the job although there were now tertiary qualifications available. In 1999, he had completed the Farm Safe Australia Occupational Health and Safety course in South Australia which dealt with the correct procedures involved in identifying hazards and overcoming those hazards, whether in a woolshed, a workshop, on a motorcycle or in any situation in which employees might find themselves on a property. The property had been in the ownership of the defendant for 33 years.

30 In cross-examination, Mr Ennis said that, when the occupational health and safety manual came into operation, it was given to Mr Blackford although he did not appear to recall receiving it. He also stated that there were handwritten numbers on a card in each vehicle before the accident but he did not know where they were kept in all the vehicles. There was no instruction given to people like Mr Blackford showing them where the card was kept in each vehicle.

31 There could be difficulties with radio reception in the paddock where the accident occurred even when driving the vehicle onto the bank to obtain better reception. Employees were told about these difficulties although it was not written in the manual. At the station, there were times when there was nobody around to receive a message but, even if he was out of the office, Mr Ennis could hear a call coming in because there was an extension speaker. He agreed that if somebody was working in the shed or elsewhere around the homestead they may not hear the radio. If there was an emergency in a paddock in the absence of Mr Ennis, the overseer was in charge of everything - he knew where everybody was placed and gave instructions to the jackaroos or other workers, and people at the Station would get in contact with the overseer. Here, the person who was in trouble was the overseer and there had been no policy introduced to address that situation. The provision of hand held radios meant that there was a better chance of communicating with the overseer. In relation to helmets, there were two at the property, one which belonged to Mr Ennis, which he used for breaking young horses and he was not aware who owned the other helmet.

32 When working in the paddocks, all employees including the overseer were to tell the others where they were going, and that had always been the case. On this muster, as with all musters at the property, whoever was in charge of the muster ensured that the jackaroos report, so everyone knew where everyone else was all the time. How often they met would vary according to the job. Under the new system, if a person had not been heard from for an hour then the hand held radios would be used to contact them. It was not, however, a rule that everyone had to check in each hour. Mr Ennis also agreed that, no matter how experienced a horseman, horses could be unpredictable and a person could be dislodged.

33 The Report of the Coroner was tendered: it recorded that there was a fracture to Mr Croker's lower jaw and that the upper left second incisor was chipped with the crown of the tooth being removed, presumably associated with the fatal accident. There was extensive blood over the face that had come from both ears, the nose and the mouth. There were two marked indentations on the face, one over the front of the face just below the eyebrow extending across the nose and to the eyes with the second placed over the left side of the face. This indentation was arched with branches extending anteriorly, with the lower arch below the left ear and the upper arch just anteriorly to the hairline. These marks were both considered to be consistent with hoof marks. There was a fracture of the left clavicle. On internal examination, a haematoma was found spread over all the brain. There was very severe fracturing of the base of the skull extending on both sides. The cause of death was stated to be massive head injury with bleeding.

34 The Coroner forwarded a copy of his report to the Minister for Industrial Relations, noting there were no witnesses to the accident and that it remained a mystery, bearing in mind that Mr Croker was considered to be an extremely competent horseman, as to precisely how this accident occurred. It was pointed out that he was not wearing a helmet at the time of his death and, while it was not possible to say on the evidence that the wearing of a helmet would have saved his life, bearing in mind the serious head injuries sustained, it was clear that a helmet certainly would not have decreased Mr Croker's chances of survival. The Coroner had recommended that legislation be introduced so that persons carrying out horse riding activities on farms would be required to wear a safety helmet complying with the Australian Standard. The Minister had replied drawing attention to the need for a risk assessment and noting that the generality of the legislation was preferred to a model containing specific instructions.

DELIBERATION 35 It was common ground that the defendant, being a first offender, faced a maximum penalty of $550,000. In assessing the objective seriousness of the offence, it was pointed out for the defendant that the Coroner's Report did not make a finding that the wearing of a helmet would have prevented Mr Croker's death. The immediate circumstances surrounding the events leading to Mr Croker being dislodged from his horse were unknown and on the evidence I find it quite impossible to make a finding as to what the effect of wearing a helmet may have had in this particular accident. The particulars of the charge focused on the failure to maintain a safe system of work, especially while undertaking cattle mustering on horseback. Protective equipment was not provided while performing this task nor was proper training, information, instruction and supervision provided whilst performing this task. The communication system, especially in emergencies, was alleged to be deficient. These are the particulars to which the defendant has pleaded guilty and, while they represent a quite comprehensive failure in providing a safe system of work while mustering cattle on horseback, the reference to the accident involving Mr Croker is evidence of the seriousness of the risk and the seriousness of the injuries that might be suffered because of these numerous failures. It is on this basis that I approach the assessment of the objective seriousness of offence.

36 It is undoubtedly true that working in remote areas of the Australian outback presents different issues for systems of occupational health and safety to those which might be found in a city factory or workplace. By its very nature, the work is likely to be undertaken at a considerable distance from available emergency services and often the work will be undertaken alone, although systems for remaining in contact with a homestead or a fellow worker are able to be used. In this particular case, although the defendant had an undocumented system of safety, nevertheless, there was a system for addressing the various dangers which might arise considering the nature of the undertaking. Many people in rural industries learn their skills on the job and by word of mouth - the idea of a work manual would not only seem odd but may prove to be ineffective as an instrument to promote occupational health and safety. In other cases, the Court has noted that systems reduced to written format but not effectively enforced become mere paper systems which do not influence the actions of persons in the workplace. The evidence in this case suggests that the horses were appropriately selected having regard to the capacity of the person to ride and that the riding gear was properly maintained. This was all achieved by word of mouth without a written system but employees knew what was expected of them.

37 The defendant has pleaded guilty to a systems failure which includes a failure to provide a suitable helmet while mustering on horseback. I accept that there would be considerable cultural resistance to the wearing of such protective equipment in rural areas of Australia but there is force in the prosecutor's submission that the riding of a motorcycle while wearing a helmet was an achievement whose acceptance was obtained over time. Undoubtedly, there are many practices in rural Australia which now need to be reviewed because of the stringent requirements of the Occupational Health and Safety Act. The offence here, however, travels beyond the failure to provide a suitable protective helmet while mustering on horseback and goes to the instruction, training and supervision of young people working as jackaroos when performing a task which had well known dangers. The system of communication while mustering was more by chance than by arrangement: I do bear in mind that the photographs of this very large paddock make it clear that there was a capacity for visual contact over a very long distance because of the flat and open nature of the territory. Moreover, the emergency procedures appeared to lie in the hands of the overseer without any consideration being given to what should occur when the overseer became incapacitated.

38 On the evidence, I am satisfied that, contrary to the prosecutor's submission, the jackaroos were able to raise the alarm and seek immediate assistance in the circumstances of the risk exposed by this accident. It is true that the utility had a flat tyre and time was needed to replace that tyre, but there were horses and two motorcycles available to seek help for the injured employee. The Council workers were only a few kilometres away and there was no suggestion in the evidence that neighbouring properties were so remote that they could not have been reached in order to obtain assistance by using either the horses or the motorcycles. In relation to the two equestrian helmets kept at the homestead, I am unable to find that they were "available" to employees for their use rather than simply being present in the tack room. One helmet belonged to Mr Ennis and the ownership of the other helmet was unknown. No employee was instructed that they could use these helmets if they wished on muster and the prevailing culture would appear to have been against the use of such helmets while, on the other hand, accepting the use of helmets while riding a motorcycle in the mustering task. I accept that on the evidence, the prosecutor has made out the content of paragraph 38 such that there was insufficient information and training provided to employees to facilitate communication with others and to obtain their assistance. Similarly, in relation to paragraphs 40, 41 and 42, I am satisfied that the evidence shows there was a limited system for supervision or monitoring during extended absences working in isolated areas with no system of supervision or monitoring for those who were not in direct line of sight. There was no system involving regular communication between the overseer and the jackaroos or other persons in the homestead for the purposes of monitoring the whereabouts and wellbeing of the workers operating in isolated areas. A finding in relation to those facts and the comprehensive nature of the omissions to which the defendant has pleaded guilty results in a finding that this is a serious breach of the Act.

39 In this case, there is a proper role for considerations of general and specific deterrence. The evidence demonstrates the slow awakening of the rural community to its obligations under the Act and the need to rethink its everyday work practices. Performing work on the same basis that it has been traditionally done over many years will no longer meet those obligations. The defendant continues to be an employer operating two very large properties. I accept that the defendant had in operation a number of safety practices but they were deficient. It is in those circumstances that specific deterrence has a role to play.

40 In relation to subjective considerations, I accept that the plea of guilty was made at a sufficiently early stage to result in a significant utilitarian benefit. I am prepared to allow a discount of 25 per cent on the penalty on account of this aspect of the case. The evidence demonstrates that the defendant has taken a number of steps to address the detriment to safety exposed by the occurrence of this incident. The effectiveness of those steps may still warrant consideration but the starting point was the prohibition on mustering on horseback until suitable riding helmets became available. The introduction of hand held radios is a significant improvement which assists in keeping employees in contact with each other even when working alone. The provision of a manual and the requirement of employees to acknowledge that they have received and read the document, combined with the manager's attention to occupational health and safety, is a further significant improvement. The defendant has no relevant record over a very long period of operation although employment numbers appear to be modest. For these additional objective factors, I would allow a further discount of 5 per cent, bringing the total discount to 30 per cent.

41 In the course of submissions for the defendant, an application was made for the exercise of the discretion to not record a conviction in accordance with the provisions of s 10 of the Crimes (Sentencing Procedure) Act. On a number of occasions, the Court has stated that s 10 would be available in rare or limited circumstances in relation to strict liability offences under the Occupational Health and Safety Act. In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [26], a Full Bench stated that the exercise of the discretion under s 10 and its predecessor provision must be considered as extraordinary and highly exceptional: when a defendant seeks its exercise, cogent reasons must be provided by the defendant for the exercise of the discretion and also by the judge acceding to that submission. The Court has recognised that there are sometimes circumstances in strictly liability offences where there is, practically, little that could have been done by the defendant to address the risk. This is not such a case. The offence cannot be regarded as trivial (nor was it suggested by the defendant to be trivial) and there are no extenuating circumstances identified or other matters which would lead to the discretion being exercised in favour of the defendant. The consideration of the defendant's good record over a long period of time is more appropriately dealt with as a relevant consideration in assessing the subjective features relating to this offence. In the circumstances, the application under s 10 of the Crimes (Sentencing Procedure) Act is declined.

ORDERS 1. The defendant is convicted of the offence under s 15(1) of the Occupational Health and Safety Act 1983 to which it pleaded guilty in Matter IRC 3973 of 2003.

The defendant is fined the sum of $96,250 with moiety to the prosecutor.

The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as assessed in accordance with the Rules of the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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