Inspector Covi v The Crown in the Right of the State of NSW

PROSECUTOR Mr M P Cahill of counsel Solicitor: Mr J O'Connell WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson SC with Mr M Shume of counsel Solicitor: Mr E Lynch NSW Police

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 28 May 2004 Matter No IRC 2013 of 2002

INSPECTOR PAUL COVI v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (NSW POLICE)

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 128

1 On 18 May 2000, Mark Wayne Johnson, a sergeant of police at the time and Glenn John Hartley, then a senior constable, were conducting a speed detection and enforcement operation on Budgewoi Road at Noraville, in the State of New South Wales using a laser speed detection unit set up on the side of the road. At about 5.00 pm Mr Johnson detected a vehicle exceeding the speed limit. Mr Johnson stepped onto the roadway and signalled the driver of the vehicle that he wanted the vehicle to stop. The vehicle continued to proceed towards Mr Johnson, increasing its speed as it did so. Mr Johnson tried to avoid the vehicle but it swerved towards him and the front right corner of the vehicle struck Mr Johnson throwing him into the air and causing serious injuries.

2 The vehicle did not stop but police later apprehended the driver, Gregory Paul Dalton. Mr Dalton had an extensive criminal history including numerous serious traffic offences, armed robbery, assault, and drug and alcohol offences. At the time of the incident involving Mr Johnson the vehicle driven by Mr Dalton was unregistered and uninsured. Mr Dalton was a disqualified driver driving under the influence of alcohol.

3 Arising out of the incident on 18 May 2000 the Crown in the Right of the State of New South Wales (New South Wales Police Service) ("the defendant") was charged with an offence under s 15(1) of the Occupational Health and Safety Act 1983. Section 15(1) provides: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

4 The charge alleged that the defendant, being an employer: On 18 May 2000, in the vicinity of the intersection of Budgewoi Road & Gomul Street at Noraville, in the State of New South Wales, did fail to ensure the health, safety and welfare at work of all its employees, in particular, Mark Wayne Johnson and Glenn John Hartley, whilst undertaking Lidar Speed Detection Operations, contrary to section 15(1) of the Occupational Health and Safety Act, 1983. The particulars of the charge are:

(a) The defendant, at all material times, employed a number of police personnel including Mark Wayne Johnson and Glenn John Hartley. (b) The defendant, at all material times, conducted Lidar Speed Detection Operations on New South Wales roads. (c) The defendant failed to maintain a system of work for the conduct of the Lidar Speed Detection Operations that was safe and without risk to the health and safety of its employees. (d) The defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees whilst conducting Lidar Speed Detection Operations. (e) The defendant failed to provide such adequate instructions and training to its employees as was necessary to ensure their health and safety whilst conducting Lidar Speed Detection Operations. (f) The defendant failed to provide such adequate supervision of employees as was necessary to ensure their health and safety whilst conducting Lidar Speed Detection Operations. It is to be noted that the prosecutor did not press particular (f).

6 Neither Mr Johnson nor Mr Hartley is any longer with NSW Police. At the time of the incident, however, both were experienced and competent highway patrol officers. Mr Johnson joined the police service in 1986 and was transferred to the highway patrol in about August 1987. He had attained the rank of sergeant. He was a trained field supervisor and competent to allocate and supervise highway patrol tasks within his patrol including the allocation and supervision of speed detection and enforcement duties such as those he and Mr Hartley were undertaking on 18 May 2000. Mr Johnson had also obtained experience as a "forward commander" in association with a road safety program in the Cooma district known as "Operation Snowsafe". Mr Hartley had joined the service in 1984 and transferred to highway patrol in 1997.

7 The speed detection unit used by the two officers on 18 May 2000 was a "Pro Laser II" laser based, speed measurement "LIDAR" system. Mr Johnson had been trained in its use in March 1997 and Mr Hartley in May 1997 and there was no issue that both men were experienced and competent in the unit's use. The Pro Laser II is a hand held or tripod mounted device that utilises a laser beam to locate and track vehicles. The speed and range of a vehicle is ascertained from computer calculations based on the time of flight of the laser beam to the vehicle and the laser beam's reflection back to the unit. A clear line of sight from the unit to the target vehicle is essential. The police officer using the unit will make a judgment about the speed of the vehicle if it is suspected of exceeding the speed limit, point the Pro Laser II unit at the vehicle using a sight on the unit, depress a trigger button for a period of not less than three seconds and the unit will record the range and speed of the vehicle. In the case of the vehicle driven by Mr Dalton on 18 May 2000 it was detected travelling at approximately 84 km per hour and was some 193 metres to the south of the Pro Laser II unit on the north bound carriageway of Budgewoi Road.

8 The training course for the Pro Laser II unit was a one-day course the basis of which was a resource manual. Compliance by operators of the unit with the "operational guidelines" set out in the manual was mandatory. The evidence was that the operational guidelines were part of a policy "in regards to the best way for that equipment to be used in regards to obtaining a conviction at court …" There was nothing in the manual regarding the safe operation of the Pro Laser II unit when conducting roadside speed detection and enforcement duties. As for the training course, officers were exhorted to "consider carefully the stopping procedure before operating the Laser, if in doubt about safely stopping an offender let him go - your safety is more important". This quote was part of an overhead transparency slide used at the training course. There were no other policies or guidelines or training provided by the defendant to its employees regarding the safe use of the Pro Laser II unit in roadside speed detection and enforcement duties. In his evidence Mr Hartley was asked whether prior to the subject incident anybody had ever provided him with any documents or any training about identifying escape routes off roadways when conducting speed detection and enforcement duties and his answer was "no".

9 Closely associated with the operation of the Pro Laser II was the procedure used by police for stopping vehicles found to be exceeding the speed limit. The evidence reveals that the customary stopping procedure adopted by police in roadside speed detection and enforcement duties involved the wearing of a reflective vest, stepping onto the carriageway and, using a reflective sign or hand signals, signalling the driver of the target vehicle to stop and pull over to a location on the side of the road. It is common when signalling a driver to stop to hold up a hand, palm outwards and then point to the driver before pointing to the location at the side of the road where the driver is to bring the vehicle to a halt. Pointing to the driver assists in ensuring the particular driver knows that it is he or she who is being targeted.

10 Mr Johnson and Mr Hartley were both trained in the use of traffic control hand signals. This was largely accomplished by observing experienced officers engaging in traffic control. The procedure invariably adopted was that described above, including stepping onto the carriageway.

11 Mr Johnson's evidence regarding his training on stopping procedure was as follows: Q. In the course of training at the academy initially and highly (sic - while) you were doing general duties, did you receive training on what might be described as traffic stopping procedures? A. I can't remember any part of that, no.

Q. In your job as a highway patrol officer after you started duties in August 1987 did you get training with respect to the conduct of roadside traffic operations? A. The only thing I can recall, and I can sort of remember it hundred per cent, is the corridor of safety which only occurs when you stop another vehicle and it had nothing to do with stopping vehicles on the side of the road coming in the same direction. Never been trained in that at all.

Q. Were you shown a procedure for signalling to drivers that you wanted them to stop when you were doing roadside duties? A. Only by senior constables and constables of a higher rank than me, they told us what to do.

Q. And in what circumstances did you receive those directions? A. On the side of the road.

Q. Can you tell his Honour what the nature of those directions were? A. Senior constables and that used to say 'stop police' sign and at the time we didn't have green vests we had orange vests inside antron jackets, walk out to the centre of the road, point out the vehicle and tell it to stop. That's was it, that was all I was ever told.

Q. In so far as those instructions were concerned did you see other police officers conduct stopping operations in that way? A. That's the only way I've ever done it. I've seen numerous.

Q. In so far as that was concerned were you told about how far you were to walk onto the roadway or given any directions about safe distances? A. No.

Q. Did you have any discussions with the officers from whom you received those instructions about escape routes or getting off the road? A. No, that was unheard of until I got hit, that all came out in SOPS, standard operation procedures, nothing on being hit at all.

12 Mr Hartley's evidence regarding stopping procedure training was as follows: Q. Can you tell his Honour whether you ever received any formal, that is classroom type training or documented training on techniques for stopping vehicles for roadside radar or Lidar operations? A. The only training I can recall was an initial training. The instructor stood out the front and did that action (indicates) and said that is how you stop vehicles. That's the only training I can recall.

CAHILL: For the record, I indicate the witness held his left hand up about shoulder height or a little higher, with his palm facing outwards in what might otherwise be described as a stopping signal. … Q. When you say he would pull the vehicle in, can you describe the physical way in which the officer went about the task of indicating to the vehicle it was to pull off to the side of the road?

HIS HONOUR: (To witness) You can stand up to demonstrate.

A. Generally, the officer would walk out in the middle of the road and point to the vehicle and to the side of the road, indicating where he would like the vehicle to stop.

CAHILL: For the record, the witness stood up and pointed with his left hand, his index finger parallel to the floor, and his other three fingers pulled back in a pointing action and indicating the car move off to the side of the road.

Q. You said you saw officers step out into the middle of the road. Can you explain what you mean by that? A. Into the line of traffic that the vehicle was travelling in. Different officers used different methods.

Q. Insofar as stepping out onto the roadway was concerned, was that something you saw commonly in stopping activities? A. Very common, yes.

Q. Was that a mode of stopping you adopted? A. Yes.

13 Mr Hartley was asked some questions in cross examination regarding stopping procedure as follows: HODGKINSON: Q. When you signal as a police officer, you are signalling to the driver, aren't you? A. Yes.

Q. The car doesn't operate independently of the driver, does it? A. No.

Q. So when you give a signal, you expect the driver to react? A. Yes. Q. That is one reason why you point directly at the driver, isn't it? A. Yes.

Q. In a speed detection operation involving two people, two officers, if you detected a vehicle that had exceeded the speed limit but for some other reason associated with the traffic you assessed that it would be unsafe to go on that road, what would you do? A. You'd let the vehicle go or jump into the police car and chase it.

Q. But you certainly wouldn't go out the front of the vehicle on the road, would you? A. No.

Q. And nothing compelled you to do that? A. No.

Q. In this process of pulling over, as you said, you used these signs, the stop sign and the pointing at the driver, you look, you are always looking at that driver too, aren't you, to see what the driver's reaction is? A. Yes.

Q. You keep your eye on that driver because you want to know that they are going to react to you appropriately? A. Exactly, yes.

Q. Otherwise you have to take some sort of evasive action? A. Yes.

Q. That is you have to get out of the way of the car? A. That's correct.

Q. But if you are standing on the road there pointing to the driver and he doesn't seem to be acknowledging you either by his body language or the car slowing down or some other aspect of his behaviour, you move out of the way of the car, don't you? A. If you can, yeah, for sure.

Q. That is what you do? A. Yes.

Q. And if that means that he goes off down the road, so be it? A. Yep.

Q. If you can chase him, you will? A. Yes. Q. If you can't chase him, he's just lost? A. Yeah.

14 John Gerard Gardiner gave evidence. Sergeant Gardiner is attached to education services at the Police College at Goulburn. Sergeant Gardiner was asked questions about stopping procedure: Q. With the training, the practical part, was there any practice or practical training with respect to making signals to cars that you wanted them to stop? A. I cannot remember whether I received practical hand signal training at recruit or at the start of the highway patrol course but I did receive training in how to stop a car.

Q. What was that training? A. It was in the use of hand signals in relation to holding up your palm forward to the traffic as in the traffic rules for hand signals for vehicles, how to stop multi-lane traffic and how to get them into the lane.

Q. You have indicated holding up your right arm with palm forward; you indicated that was what you were taught as a stop signal? A. I don't think it involved only the right hand, but was a signal like that.

Q. Insofar as giving that signal, can you tell us did you receive any training where you were to locate yourself either on the side of the road or the carriageway when giving such signal? A. Again I couldn't say for all certainty what was taught at the time but from recollection it was in a place where I could be clearly seen and if that involved stepping out into traffic it was done that way with care.

Q. Have you seen other officers do that? A. Yes.

Q. Did you ever receive any training in respect of multi-lane highways or roadways as to how you should go about stopping vehicles on those roads? A. Yes.

Q. How were you trained to do that? A. You would stop the traffic if it was a multi- lane traffic highway, signal that way and direct a number of cars to a safe stopping destination away from where you were placed to stop them, work your way out to the centre and if you needed to go back, you would go back if you needed to.

If you started from the end of the road closest to the kerb, and you were stopping cars in the lane a number of cars, to become safe, stop them a distance from where you were standing, you could right out until you get to the centre of the road or in the position of stopping them and if you needed to stop the whole road you would stand there and direct them.

Then to restart that traffic, you would do the same as for the initial actions.

To restart the traffic, you would start from the first exit point wait and work your way back starting from each lane back from that.

Q. I think you indicated to his Honour that that was a mode of practice that you actually used yourself once you returned to work with the highway patrol at Albury? A. Yes I did.

Q. And you saw other officers operating that function? A. Yes I have.

Q. Did you ever receive any instructions not to stop motor vehicles by stepping on to the carriageway? A. No, not that I'm aware of.

15 In conducting roadside speed detection and enforcement duties, officers were not at liberty to set up a Pro Laser II unit in whichever location was convenient. Sites were identified and scheduled in advance and might depend on police intelligence as to speeding motorists, black spots or in accordance with operations or programs designed to enhance road safety. Policy also played a part. For example, the resource manual stated: Lidar must not be used at any location which would engender legitimate criticism or give rise to the complaint that Lidar is a means of raising Government revenue.

16 Of course, the precise location to set up the laser unit on a road identified for attention by police in relation to speeding would depend on the officers conducting the operation because the unit required a clear line of sight and there needed to be an "area of safety" where a police officer could stand by the side of the road without being struck by a moving vehicle.

17 Whilst the conduct of a speed detection and enforcement activity is a pre-planned event there was no evidence that such an activity involved a written risk assessment or work method statement. Any assessment as to risk, it was said, was made by the officers conducting the operation at the site based on their skill and experience. It was contended for the prosecution that: · There is no evidence as to why sites nominated for Lidar speed detection and roadside enforcement can not be assessed in advance of any operational activity, not only for their suitability for operational and policy reasons, but also for safety.

· There is no evidence why the NSW Police cannot undertake formal written risk assessments at the sites for the purpose of nominating the sites suitability for tasking to 'individual policing units' [ie marked cars; motor cycles] based on the physical lay out of the proposed site and the availability of "cover" at the site - such as Armco railings, roadside furniture etc].

· There is no evidence as to why the NSW Police cannot develop and provide work method statements based on such assessments, including directions as to the location and use of a marked police vehicle as cover etc.

· There is no evidence as to why alternatives to roadside enforcement, such as the use of the Lidar Unit in co-ordination with a camera could not be undertaken in circumstances where speed detection activities at a given site could not be combined with the use of marked police cars, or other barriers such as those nominated in the SOP [standard operating procedure].

18 The prosecution drew a distinction between pre-planned activities such as speed detection and enforcement activities using a laser unit and other activities associated with a police response or an emergency such as a traffic accident or traffic light malfunction. The latter, it was submitted, may be unforeseen and required to be dealt with quickly without the opportunity to plan for risks. The former, it was submitted, were within the control of police and risk avoidance measures could be put into place.

19 It was also submitted for the prosecution that there was no evidence of any detailed review or assessment at a managerial level of the practice of police officers stepping onto a carriageway for the purpose of signalling drivers to stop as part of LIDAR speed detection and enforcement activities prior to the general introduction of the Pro Laser II unit into the operational activities of the highway patrol and/or before the subject incident. It seems to me this was so. No consideration had been given by the defendant, for instance, to the possibility arising of circumstances such as those that confronted Mr Johnson on 18 May 2000 and what risk avoidance measures were appropriate; the question of safety was left to the officers themselves, relying on their experience and wits. This was reflected in the evidence of Inspector Evans of the Traffic Services Branch of NSW Police in one of his answers in examination in chief: Q. There are a number of factors, are there not, as a matter of your understanding, indeed commonsense, over which an officer called upon to stop a vehicle stepping on to that roadway has no control, you would agree with that? A. I would not agree they would not have no control; there is certainly a degree of risk which they need to be aware of it and to certainly be able to manage as best they can (my emphasis).

20 On 18 May 2000 at about 4.15 pm Messrs Johnson and Hartley proceeded in a fully marked highway patrol car fitted with a roof message bar and warning lights to Gomul Street at Noraville. Mr Johnson parked the highway patrol car in Gomul Street, on the southern verge of that street, facing towards the intersection of Gomul Street and Budgewoi Road. The two officers had intended to carry out speed detection areas on the F3 freeway (110 km/h zone) but because of heavy traffic a decision was made to change the location to Budgewoi Road and undertake speed detection duties in a 60 km/h speed zone.

21 The Pro Laser II unit was set up on a tripod on the grassy verge adjacent to the western edge of the northbound lane or carriageway of Budgewoi Road. The unit was set up so as to obtain measurements of the speed and range of vehicles travelling in a northerly direction on Budgewoi Road. Budgewoi Road consisted of a single lane for traffic in either direction. The opposing traffic flow was separated by double unbroken, white painted lines. The edges of the north and southbound carriageways were marked with a single unbroken, white painted line. The northbound carriageway was 2.9 metres wide with a fine gravel and bitumen shoulder measuring 2.1 metres wide. The laser unit was set up 1.6 metres from the edge of the sealed road shoulder. That is, 3.7 metres from the single unbroken, white painted line that marked the edge of the north bound carriageway.

22 Mr Hartley gave evidence about the nature of the location where the laser unit was set up: Q. In terms of the aspect of this spot it had all the desirable features for carrying out radar detection work, didn't it? A. It did.

Q. There's a long clear view from where you set up that Lidar to the top of the hill, at the southernmost point that you could see? A. Yes.

Q. And the road is not perfectly straight, but it's very close to being perfectly straight? A. Yes.

Q. From the top of that hill? A. Yes.

... Q. If you are in a vehicle you have got the same clear sight down that roadway as you have if you are looking up from the side of the road, haven't you? A. I assume so, yeah.

Q. When you have driven down the road, it is not a road that you think is - there are overhanging trees or anything in the line of sight, is there? A. No.

Q. It's a clear way for the motorist? A. Yes.

Q. It is also a clear road for you as a police officer running a radar detection unit? Q. The approximate distance from the point of setting up the Lidar radar to the top of that hill, the southernmost point you could see, is about 550 to 600 metres? A. That's correct.

Q. When you use a Lidar you can measure distances with the Lidar itself, can't you? A. Yes.

23 At about 4.50pm Mr Hartley, wearing a reflective vest, detected a vehicle travelling in the northbound carriageway with a speed in excess of the applicable limit. Helen Anne Robinson Styan was driving the car. As she approached the intersection of Budgewoi Road and Gomul Street Mrs Styan saw a police officer (Mr Hartley) standing in the vicinity of the unbroken white edge line on the north bound carriageway. Mr Hartley signalled Mrs Styan to stop and pull over to the side of the road, which she did so "without difficulty or concern". In this respect, the following exchange took place in the cross examination of Mrs Styan: Q. So he made two sets of hand signals to you, each set including the pointing directly at you, and, a stop; palm extended indicating he pointed to you, stop stop? A. Yes, that's right.

Q. And did he, when you first saw him make these signals, were you sufficiently at a distance from him to be able to observe the signal and think about it and work out what he was telling you? A. Yes, it was pretty obvious.

Q. You said in your statement at paragraph number 7, and please feel free to refer to any paragraph in the statement in answer to my questions and answers, don't be limited at all, that you were able to pull over to stop, "stopping my vehicle without difficulty or concern"? A. Yes.

Q. And do we take it that is an indication that you saw these signals at sufficient distance to realize what the police officer wanted you to do, to commence slowing your vehicle and for him, and for you to have room to move left the road? A. That is true. But I just remembered another hand signal that he used. And that was indicating for me to move to the side of the road.

Q. So he pointed at you that is the one handed signal that you told us about earlier, did he use the same what my children refer to as 'pointing finger'? A. No.

Q. It was just a hand signal? A. It was (indicated) a pointing finger, and a stop and then the more to the side of the road.

Q. Almost like an invitation? A. No, it wasn't really (witness stood). Q. So he indicated you to you that he wanted you to stop, made that clear, and told you where he wanted you to stop? A. That's right.

Q. Now, please feel free to resume your seat. (Witness sat down) When you saw these signals you had plenty of time to slow your vehicle down to an appropriate speed to leave the roadway and move to the area he had indicated? A. Yep.

Q. So it was well in advance of that area that he first started to make signals to you? A. Say that again? Q. It was well in advance of the area you actually drove to? A. Yes.

Q. That is on the side of the road where you came to a stop that you first started to see him make these signals? A. Yes, that is true.

Q. And at no stage did he sort of pop out just as you were being about to pass him or anything like that, did he? A. No. … Q. What I am putting to you is that at no time did you have to jam on your breaks (sic -brakes) or take an evasive action? A. That's right.

Q. At no time was the presence of the police officer on the road something that put you in fear that you might come into collision with him? A. No.

Q. You had sufficient time to react appropriately in slowing your vehicle down in a normal sensible way? A. That's right.

Q. And without any need for excessive braking or quick reduction in speed? A. That is true.

24 Having pulled Mrs Styan over, Mr Hartley found it necessary to use the police car radio and he went over to the car parked in Gomul Street. Mr Johnson, also wearing a reflective vest, then detected another vehicle exceeding the speed limit as it travelled in a northerly direction toward the intersection of Gomul Street and Budgewoi Road. As mentioned earlier, the target vehicle, one being driven by Mr Dalton, was travelling at approximately 84 km per hour and, at that point in time, was 193 metres to the south of the laser unit on the north bound carriageway of Budgewoi Road.

25 Mrs Styan in her evidence said that she saw Mr Johnson signalling a "red car" to stop by holding up his hand palm outwards and pointing to the driver of the car. Mr Johnson signalled four times. Mrs Styan then gave the following evidence in cross examination: Q. And when you first saw this happening, was the red car in a position as you had been when you first saw a signal to commence slowing down appropriately without any need for heavy braking and the like? A. Yes.

Q. So, it had plenty of time to obey the police officer's signal, as you had done, and pull over to the side of the road? A. That's correct.

Q. And you say then in paragraph 13: "The officer moved further out in the middle of the road". By the middle of road, do you mean at this point he had gone to the broken white lines or was he in the middle of the lane? A. When I wrote that, I meant towards the line that goes down the middle of the broken line, down the middle - the only other line painted on the road. Q. And when you first saw this happening, was the red car in a position as you had been when you first saw a signal to commence slowing down appropriately without any need for heavy braking and the like? A. Yes.

Q. So, it had plenty of time to obey the police officer's signal, as you had done, and pull over to the side of the road? A. That's correct.

Q. And you say then in paragraph 13: "The officer moved further out in the middle of the road". By the middle of road, do you mean at this point he had gone to the broken white lines or was he in the middle of the lane? A. When I wrote that, I meant towards the line that goes down the middle of the broken line, down the middle - the only other line painted on the road [that is, the middle of the roadway]. … Q. And was it clear to you that he was pointing to the driver of the red car? A. Yes.

Q. And when it had become a more obvious signalling gesture, he was pointing to the driver of the red car? A. Yes.

Q. And also holding his hand up in the stop signal? A. Yes.

Q. You say that the red car - you have just said in your answer that the red car didn't slow down? A. No.

Q. You have said in your statement he didn't stop, but accelerated (paragraph 13)? A. Yes.

Q. Do you recall him speeding up, that is, the driver of the red car? A. (Witness indicated).

HIS HONOUR: Q. You need to say-- A. Yes, he did. … HODGKINSON: Q. And from your observation, you were able to tell that this red car accelerated or sped up? A. Yes.

Q. So, when that happened, was the car - I'm sorry, was officer Johnson looking at the car? A. Yes. Q. The red car? A. Mm hmm.

Q. And then you say you saw the police officer skip backwards moving towards the centre of the road? A. Yes.

Q. What did you mean by "skip backwards"? A. Well, he didn't want to turn his back on the car. So he kept looking at the car, but he was moving, trying to move out of the way.

Q. So, he was moving backwards and towards the centre of the roadway, is that right? A. Yes.

Q. Backwards, of course, was towards where you were parked? A. Yes.

Q. And towards the centre of the roadway was the broken white lines that you have identified for me earlier in photograph number 1? A. Yes. … Q. You tell us in paragraph 16 that the red car swerved towards officer Johnston? A. Yes. … Q. By that do you mean that the red car diverted from the path it was travelling in, in the direction that officer Johnson had moved in order to get out of the car's way? A. Yes, that's what I saw.

Q. Officer Johnson moved to his left or to the opposite side of the road from which you were parked-- A. Yes.

Q. --to get out of the way of the car, didn't he? A. Yes.

Q. And he moved in fact across those broken white lines? A. Yes.

Q. And you observed him doing that? A. I did.

Q. And he moved into the lane travelling on the other side of the road in which vehicles travelled in the opposite direction? A. That's correct.

Q. Was officer Johnson already in that lane, the lane on the opposite side of the roadway, where vehicles are travelling in the opposite direction, when you saw the red car swerve towards him? A. Probably.

Q. And certainly you tell us here that you actually saw the impact, don't you? A. Yes.

Q. And at the point of impact that you observed it was definitely in the lane, the opposite lane of traffic in which vehicles travelled in a southerly direction? A. Yes.

Q. There's no doubt about that, is there? A. No.

Q. He was in fact well into that lane, wasn't he? A. That's what I remember, yes.

Q. And you have also got no doubt, have you, that the red car swerved, as you have described it, in the direction of officer Johnson? A. That's right.

Q. The red car had not, to your observation, travelled on the wrong side of the road at any point during the time that you had been watching the red car until it swerved towards officer Johnson? A. That's right. … Q. Did you continue to observe the red car after the point of impact with officer Johnson? A. A tiny bit may be. Q. Did you observe the red car to come back onto the correct side of the road and keep going? A. Yes.

Q. And did that appear to you to be a continuous movement, that is, one movement back onto the correct side of the road? A. Yes.

Q. And then the red car proceeded in the correct lane away from the accident scene? A. That's right.

Q. Did you continue to observe the car as it drove off for a short period of time? A. Only to see that it was gone.

Q. You were, of course, very concerned for officer Johnson and participated in assisting him immediately? A. Yes.

26 Ms Suzanne Fancourt who, at the time, was travelling by car on Budgewoi Road in a southerly direction, corroborated Mrs Styan's evidence regarding the movements of Mr Johnson and the red car and its contact with Mr Johnson. Mr Hartley was in the police car and was busy with his head down writing. He heard a screech of tyres, looked up and saw Mr Johnson attempt to run in the direction of the police vehicle and was hit by a red Commodore.

27 It should be recorded that Mr Johnson had no recollection of the events of 18 May 2000 but his memory prior to that date was not impaired.

28 The prosecution submitted that: Whilst the marked police vehicle was parked in Gomul Street, there were no physical reasons, or any reason associated with the operation of the Pro Laser II/Lidar unit, why the police vehicle could not have been parked on the verge or shoulder of the northbound carriageway of Budgewoi Road in the vicinity of the Lidar unit so as to provide a barrier or cover from behind which Mr Johnson and Mr Hartley could conduct the speed detection and roadside enforcement activity. Similarly, there appears to be no reason why Mr Hartley and Mr Johnson could not have carried out the "stopping procedure" and "the issuing of infringement notices" whilst using the marked police vehicle as a safety barrier.

29 Reference was made to the evidence of Sergeant Gardiner in this respect: Q. Insofar as the utilisation of the scroll bar on a car parked at the side of the road for the purpose of indicating to traffic, that is to a vehicle that you wanted to stop, you wanted to be visible, that is correct isn't it? A. That's correct.

Q. That is the purpose of turning the sign on? A. It is, the problem - all right, it is.

Q. And the vehicles on the side of the road you want it to become visible so the sign can be seen by the cars coming up the roadway for safety reasons? A. That's correct.

Q. To increase the visibility of the officers on the road? A. That's correct.

Q. And to provide a clear indication of their presence? A. That's correct.

Q. For safety reasons? A. Yes. Q. Are there any reasons as to why you wouldn't want that to be the case in accordance with the directions or training that you received from your employer with respect to LIDAR operations? A. I certainly wouldn't want it as a prewarning prior to the detection of the speeders, otherwise they just slow down, the same as they do for cameras.

30 As to pre-warning, however, Inspector Evans said in his evidence that there was no policy reason why drivers could not be warned about the existence of a police presence, stating: [T]he former Commander of Traffic Services, Chief Superintendent Sorrenson, took great pains to ensure that in the main that highway patrol duty was carried out in highly visible marked police vehicles and in uniform.

31 Inspector Evans said, however, that whether or not a marked police car was utilized in coordination with a laser unit was a matter for the discretion of the police officer involved.

32 The issue in these proceedings is whether the defendant failed in the manner particularised to ensure the health and safety of its employees, in particular, Mr Johnson and Mr Hartley, on 18 May 2000 whilst they were conducting speed detection and enforcement duties in the vicinity of the intersection of Budgewoi Road and Gomul Street at Noraville.

33 I will come to deal with the elements of the alleged offence and particulars shortly, however, one of the two principal contentions put by Mr B D Hodgkinson SC for the defendant in pleading not guilty was that although the Occupational Health and Safety Act imposes upon employers very high standards, it does not impose upon an employer obligations of a perfect world. It was submitted that the Act must operate "in the general circumstances that we find ourselves in day to day activities in society" and that many of those circumstances involve some element of risk. Mr Hodgkinson referred to the decision of Fisher CJ in Inspector Anthony John Davies v Prospect Electricity (unreported, CT747 of 1991, 9 November 1992) at 8-9 where his Honour said: The 'lack of instruction' submission relied upon founders on the same practical argument. No fully trained and experienced tradesman needs to be told to cross the road safely, or to be accompanied by a supervisor to ensure that he does so. Similarly, a thoroughly trained and qualified tradesman, employed after extensive instruction, the adequacy of which again is not criticised, does not need to be advised not to grasp an unprotected wire energised by 11KCV, nor in the real world, should supervisors be on stand by in case he does.

34 As I understand the defendant's submission in this respect it was that the act of a fully trained and competent police officer stepping onto a roadway to stop traffic was no more at risk than a person crossing the road. Indeed, it was argued the police officer, because of his training and experience, was at less risk than the pedestrian. The risk arose, it was contended, out of the aberrant, criminal conduct of Mr Dalton and not from Messrs Johnson and Hartley stepping onto the carriageway of Budgewoi Road in the performance of their duties.

35 The submissions by senior counsel for the defendant in relation to the nature of the risk were along lines similar to that put on behalf of the defendant in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 where it was submitted the Occupational Health and Safety Act was not directed to the responsibilities of employers to control risks created by the unpredictable and unlawful actions of third parties and that an employer should not be criminally liable for the consequences of criminal actions of a third party over whom they have no control.

36 In WorkCover v Police Service (No 2) Hungerford J observed at [23]-[24] the following: 23 I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say, but as did Mr Hastings , that "the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of McGowan, with which there was no causal connection to the employer" and "it is impossible to guarantee or to ensure the health and safety of police officers, and you can provide them with all the equipment under the sun short of an armoured vehicle and they will always be exposed to risk. Even if you did all the things that the prosecution has alleged were not done here & those things had absolutely no bearing on the safety of Senior Constable Spears because he was simply surprised and ambushed before any of these factors had any capacity to come into play". Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees, the legislature has created the absolute duty on employers in s 15, subject to the s 53 defence, to ensure the health, safety and welfare of those employees at their place of work … 24 Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. In the same way, and notwithstanding the submissions of Mr Hastings to the contrary, comparable steps should be taken by employers in satisfying the statutory duty in respect of their employees liable to the effects of unlawful action by criminals, such as, as identified by Mr Hastings , those employees engaged in "service stations, pharmacies, shops, banks, cash delivery, cigarette trucks, buses and taxis". In identifying those occupations, Mr Hastings submitted as to them that "there is a known history of violent and unlawful attacks by criminals, for which negligible precautions are provided by employers". Senior counsel added that in the emergency services (fire brigade, bush fire brigade and emergency services) the " employees are inevitably exposed to the risks of injury and death by the very nature of their duties" so that "employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken". There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety. The submission is no answer to the present charges. I reject it.

37 I respectfully agree with his Honour's observations. There is no doubt in the present case that the immediate cause of Mr Johnson's injuries was the conduct of Mr Dalton in apparently deliberately running the officer down. The defendant had no control over the actions of Mr Dalton. It is, however, necessary to go behind the immediate cause of the incident and ask whether the defendant placed Messrs Johnson and Hartley at risk in the first place in the manner alleged in the charge.

38 In other words, although the immediate cause of the injuries to Mr Johnson was beyond the defendant's control, by providing a system of work, for instance, that permitted officers to step onto the carriageway for the purpose of signaling the driver of a motor vehicle to bring their vehicle to a stop at the side of the carriageway, did the defendant expose the officers to a risk of being struck by a moving vehicle? This involves, inter alia, a consideration of whether there was a causal relationship or nexus between any alleged failure and the consequent risk to the safety of the two officers. The defendant contended there was no causal connection.

39 The elements of the offence to be proved by the prosecution beyond reasonable doubt are as follows: (1) The defendant was an employer for the purposes of the Occupational Health and Safety Act ; (2) The defendant failed to take steps, as exemplified or particularised in s 15(2) of the Act, to ensure the health, safety and welfare at work of all its employees; (3) One or more of the defendant's employees was exposed to a risk to their health, safety or welfare, whilst at work; and (4) There was a causal relationship between the facts causing the detriment to safety and the defendant's acts or omissions.

40 As to the first element, there was no issue that the defendant was the employer of Messrs Johnson and Hartley. As to the second element it was alleged that the defendant failed in three respects, namely: (1) To maintain a system of work for the conduct of the LIDAR speed detection operations that was safe and without risk to the health and safety of its employees. (2) To provide such information as was necessary to ensure the health and safety at work of its employees whilst conducting LIDAR speed detection operations. (3) To provide such adequate instructions and training to its employees as was necessary to ensure their health and safety whilst conducting LIDAR speed detection operations.

41 I note that the prosecutor, in providing further and better particulars, alleged that the system of work was not safe in that the defendant's employees were permitted, whilst undertaking Lidar operations, to step onto the carriageway for the purpose of signalling [a] driver[s] to bring their motor vehicle[s] to a stop at the side of the carriageway, thereby exposing the relevant officers to a risk of being struck by [a] motor vehicle[s]" and that the instructions provided by the Defendant to\its employees, permitted those employees, whilst undertaking Lidar operations, to step onto the carriageway for the purpose of signalling [a] driver[s] to bring their motor vehicle[s] to a stop at the side of the carriageway, without specifying any or any adequate safety measures to reduce or eliminate the risk of those officers being struck by a moving motor vehicle.

42 Further, that in answer to a question from the defendant, "[p]lease identify whether it is alleged that the employees of the Defendant were at risk whilst standing on the side of the carriageway [?]", the prosecutor replied: The Prosecutor alleges that the Defendant's employees were relevantly at risk whilst present on the carriageway for the purpose of signalling the driver[s] of [a] motor vehicle[s] to move to the side of the roadway and bring their vehicle[s] to a halt in circumstances where inadequate steps had been taken to reduce - let alone eliminate, the risk of those officers being struck by a motor vehicle (prosecutor's emphasis).

43 As to these failures alleged in the particulars, the evidence revealed that LIDAR speed detection operations involved the following: (a) A resource manual containing operational guidelines relating to the use of the Pro Laser II unit and a list of restrictions concerning the location and operation of the unit, none of which relate to safety considerations. There was no written risk assessment or work method statement as to the risks associated with stepping onto the carriageway. There was no indication that in compiling the resource manual the defendant had turned its managerial mind to the risks associated with the conduct of roadside speed detection and enforcement duties. The officers conducting the operation at the site made any assessment as to risk based on their skill and experience. (b) The use of police officers trained in the use of the unit and trained in stopping procedures described earlier in this judgment. Stepping onto the carriageway was a matter left to the discretion of the individual police officer; it was not a requirement but it had clearly developed into a common practice known to the defendant and permitted by the defendant. (c) Officers were advised they should "consider carefully the stopping procedure before operating the Laser, if in doubt about safely stopping an offender let him go - your safety is more important". Apart from this general exhortation, no training was provided with the objective of ensuring the health and safety of officers conducting roadside speed detection operations and in particular, no training was provided in relation to: (i) the conduct of the LIDAR operations apart from a one day course that contained no substantive materials regarding the planning or safe conduct of a LIDAR operation; (ii) where officers were to stand when directing the drivers of vehicles to stop their vehicles; (iii) the use of early warning signs in conjunction with LIDAR operations for the purpose of alerting drivers to the possible presence of police officers on the carriageway.

(d) The use of reflective vests, which was obviously a safety measure. (e) Determining the general location of the speed detection activity, a matter not driven by safety considerations and, therefore, no instructions or information were issued by the defendant relating to safety in this respect. (f) Locating the unit by the roadside. The imperative was to have a clear line of sight from the unit to the target vehicle and to have a safe area by the roadside to avoid being struck by moving vehicles. Locating the unit was a matter left to the discretion of the individual officer. There was no requirement to place signs on the roadway or use a police vehicle's flashing lights or message bar indicating the presence of police and no requirement to erect barriers to provide protection or act as a refuge if it became necessary to step back from the carriageway if a vehicle threatened not to stop. Consequently, the defendant promulgated no information and issued no instructions in this respect.

44 It is fair to say that in relation to the safety of Mr Johnson and Mr Hartley on 18 May 2000 the defendant relied almost wholly on the skills and experience of these two men acquired over their time as police officers. As Inspector Evans acknowledged in his evidence, there was risk associated with stepping onto a roadway in order to stop a vehicle but it was something officers had "to manage as best they can". It could not be said that there was any system of work in place that was directed to or had an emphasis on safety. Further, it could not be said that there was any adequate information or instruction issued by the defendant to these two officers that would ensure their safety in carrying out duties where they were permitted to step onto the carriageway for the purpose of signalling drivers to bring their vehicle to a stop on the roadside. Equally, there was no evidence of any adequate training directed to carrying out their roadside speed detection duties.

45 The system of work relating to safety may properly be described as "skeletal" and as Haylen J said of such a system in Inspector Kenneth John Barnard v Rail Infrastructure Corporation (2001) 109 IR 209 at [109], it "is not a provision of system at work at all and is certainly not the provisions of a safe system of work". His Honour also observed at [107] "It is difficult to accept that a system that leaves to employees, even trained employees, to look after themselves can be described as a 'safe system of work'".

46 As to the third element of the offence, there does not appear to be an issue about whether Mr Johnson was exposed to risk in stepping onto the carriageway on 18 May 2000. It seems to me that Mr Hodgkinson acknowledged the existence of risk if only a risk akin to that encountered by someone crossing the road. Moreover, the defendant was aware of the risk by virtue of the warning "consider carefully the stopping procedure before operating the Laser, if in doubt about safely stopping an offender let him go - your safety is more important". What the defendant did contend, however, was that there was no causal nexus between the failures of the defendant and the risk to the safety of Mr Johnson.

47 In so far as Mr Hartley is concerned, because it was alleged in the further and better particulars that " the Defendant's employees were relevantly at risk whilst present on the carriageway …" I have some doubt that Mr Hartley was in fact on the carriageway on 18 May 2000 for the purpose of signalling drivers of motor vehicles to move to the side of the roadway and bring their vehicles to a halt. The understanding that I have from Ms Styan's evidence is that Mr Hartley was standing in the vicinity of the white line marking the edge of the northbound carriageway but to the left of the white line when he signalled her to pull over and that he did not go to the right of the line onto the carriageway. Mr Hartley said in his evidence he usually stepped onto the "roadway" when signalling drivers to pull over but on 18 May 2000 he could not recall exactly what he did.

48 I consider there is reasonable doubt at to whether Mr Hartley was exposed to risk in the manner particularised by the prosecutor.

49 In relation to Mr Johnson, the defendant submitted that he was an experienced highway patrol officer and very accomplished in being able to judge speed, distance and driver reaction in order that he might allow a reasonable margin to escape if the driver of a vehicle did not react appropriately to his signals to stop and pull over. It was submitted, however, that on 18 May 2000 no system of work, instructions, information or training regarding safety would have avoided the risk of Mr Johnson being hit whilst on the carriageway. Mr Dalton was apparently intent on hitting Mr Johnson and despite Mr Johnson's attempts to evade the vehicle - even crossing the centre line of the roadway to do so - he was unsuccessful.

50 It was submitted that confronted with the situation in which Mr Johnson found himself, there were only two ways of avoiding the risk of being hit - either move to the left or the right. Either way, given Mr Dalton's apparent intent, Mr Johnson remained at risk in the face of a person seemingly intent on running him down. Given the apparent intent of Mr Dalton it was submitted to the effect that if there was any link in a chain of causation between the defendant's alleged failures and the risk to Mr Johnson's safety, the link was demonstrably broken by the conduct of Mr Dalton.

51 This submission begs the question of whether Mr Johnson should have been on the carriageway in the first place given the obligations on the defendant to ensure the safety of its employees. It is accepted that policing is a dangerous occupation, highway patrol duties no less so. Standing on a roadway signalling drivers to pull over is patently a hazardous operation. Putting aside the obvious risk of the miscreant who may have a grudge against police and who might take the opportunity to exact retribution for some perceived past wrong by running a police officer down, even the normally responsible driver may present a risk to police involved in roadside detection duties. This could occur either through inattention or carelessness or because the vehicle being driven was mechanically defective. The defendant may not be able to control the miscreant or even the responsible driver who may have lapsed momentarily. But as Hungerford J observed in WorkCover v Police Service (No 2) at [24]: [T]he defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers.

52 Turning to each of the failures described in the particulars and expanded upon in the further and better particulars provided by the prosecutor, the first was a failure to maintain a system of work that was safe in that Mr Johnson was permitted, whilst undertaking LIDAR operations, to step onto the carriageway for the purpose of signalling drivers to bring their motor vehicles to a stop at the side of the carriageway, thereby exposing him to a risk of being struck by a motor vehicle.

53 A system that relies almost exclusively on an employee's skills and experience to ensure safety is no system at all especially given that in this case, although the defendant had identified the risk to safety involved in the stopping procedure, it took no steps to manage the risk in an effective manner. The defendant failed to maintain a system of work that was safe and without risk to health and safety of its employees, in particular Mr Johnson.

54 There is no reason that I can discern that would make it imperative for a police officer involved in speed detection and enforcement duties using a Pro Laser II unit to step onto the carriageway to signal a driver to stop. If one accepts the evidence of Ms Styan, and I do, Mr Hartley did not step onto the carriageway when he signalled her to stop and she had no difficulty at all in obeying the officer's directions. But putting that aside, I agree with the prosecutor that: [T]here appears to be no reason why the marked police car could not have been used at the subject site as a barrier to northbound traffic. Nor does there appear to be any operational or physical reason why Mr Hartley and Mr Johnson could not have signalled to the drivers of targeted vehicles from behind the relative safety of the marked police car - activating the lights of the vehicle in the manner described by Sergeant Gardiner …There is no evidence that operating in this fashion would reduce the effectiveness of the stopping activity and to the contrary, the evidence (as well as common sense) suggests that the presence of the marked police car with activated lights would increase "the visibility" of the officers.

55 The defendant submitted that a marked police car on the side of the road did not necessarily constitute a barrier against the prospect of police officers being injured by a moving vehicle. In this respect, Mr Hodgkinson referred to evidence of an incident whereby a vehicle slammed into a police car on the roadside pinning an officer against another vehicle. The Court is not advocating what the safe system of work should be; that is not its task. But is seems to me that if it is necessary for police officers to engage in stationary roadside speed detection and enforcement and there is no reasonably practicable alternative, a system that provided for a barrier or buffer zone between police and oncoming vehicles, whether that is a police car or some other physical barrier, together with appropriate signs indicating a police presence, this is a significantly safer arrangement than a police officer standing on the roadway without a shred of protection other than the officer's wits and quick physical reactions.

56 The defendant referred to the statistic that between July 1999 and June 2000 the Police Service conducted some 77,000 LIDAR operations where drivers were pulled over safely. I understand the point of this to have been to support the proposition that the "system" used in LIDAR operations was, therefore, demonstrably safe and that what happened to Mr Johnson was an aberration.

57 I do not accept the defendant's submission in this regard. It is like saying that because an employer operated a dangerous machine for twenty years without incident and in the twenty-first year an employee was exposed to risk using the machine that the risk was an aberration. What has to be considered is whether, on the facts, that employer failed in the twenty-first year to ensure the health and safety of the employee concerned.

58 By failing to maintain a system of work on 18 May 2000 for the conduct of the LIDAR speed detection operation that was safe, in that Mr Johnson was permitted to step onto the carriageway for the purpose of signalling drivers to bring their motor vehicles to a stop at the side of the carriageway, there arose the necessary causal connection with the risk experienced by Mr Johnson, namely, being struck by a motor vehicle.

59 The second failure particularised was that the defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees. I have found that no risk arose in relation to Mr Hartley, which leaves only Mr Johnson. In providing further and better particulars regarding the failure to provide the necessary information the prosecutor said: [T]he prosecutor alleges that the information concerning the conduct of Lidar operations provided by the defendant to its employees, in particular the named officers, contemplated officers stepping on to the carriageway into the path of moving vehicles for the purpose of signalling a driver[s] to bring their motor vehicle[s] to a stop at the side of the carriageway without specifying any or any adequate safety measures to reduce or eliminate the risk of the officers being struck by a moving vehicle.

60 Before taking the second failure any further I should refer to the third failure, which was a failure to provide such adequate instructions and training. In relation to "training" it was the prosecutor's case that the defendant: · offered no formal training with respect to the conduct of the Lidar operations apart from a one day course that contained no substantive materials regarding the planning or safe conduct of a Lidar operation;

· provided no formal training in relation to where officers were to stand when directing the drivers of vehicles to stop their vehicles;

· provided no training with respect to the use of early warning signs in conjunction with Lidar operations for the purpose of alerting drivers to the possible presence of police officers on the carriageway. 61 In relation to "instruction" the prosecutor alleged that: [T]he instructions provided by the defendant to its employees, in particular the named officers, were inadequate because those instructions did not deal adequately [or at all] with the risk of those employees being struck by a moving vehicle whilst undertaking Lidar operations. In particular, the prosecutor notes that the instructions provided by the defendant contemplated those officers stepping on to the carriageway[s], into the path of moving vehicles, for the purpose of signalling driver[s] to bring their motor vehicle[s] to a stop at the side of the carriageway without specifying any or any adequate safety measures to reduce or eliminate the risk of the officers being struck by a moving vehicle.

62 The evidence was that the defendant was aware of the practice of stepping onto the carriageway and, indeed, permitted that practice. Mr Johnson learned the stopping procedure to be adopted by way of demonstration from senior constables and this involved walking "out to the centre of the road, point out the vehicle and tell it to stop." Mr Johnson said in his evidence "that was all I was ever told."

63 The demonstration to Mr Johnson of the stopping procedure could be regarded as information imparted to him or, alternatively, training and instruction and the absence of any specification of "adequate safety measures to reduce or eliminate the risk of the officers being struck by a moving vehicle" applies to both the second and third particulars. There was no material differentiation made by the prosecution between "information" and "instruction" and it seems to me there is duplication. In other words, it would be quite wrong to find that the defendant failed to provide information and training and instruction when the two failures are most likely one.

64 In my opinion, the preferable course is to regard the demonstration given to Mr Johnson as to how stopping procedures were to be conducted, as training and instruction and the failure to specify adequate safety measures to reduce or eliminate the risk of the officers being struck by a moving vehicle as a failure to provide adequate instructions.

65 The failure to instruct Mr Johnson as to any or any adequate safety measures to reduce or eliminate the risk of the officers being struck by a moving vehicle was causally connected to the risk experienced by Mr Johnson. The measures that might have been available have already been canvassed and need not be repeated. It is clear that if Mr Johnson had been instructed by his employer not to step on to the carriageway and to place himself behind a barrier when engaged in roadside speed detection and enforcement operations using the Pro Laser II unit, it is beyond reasonable doubt that Mr Johnson would have followed those instructions and, therefore, would not have been exposed to the degree of risk that he experienced on 18 May 2000.

66 As to training specifically, in Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 the Full Bench made some pertinent observations about the importance of training in the context of an employer's obligations under the Occupational Health and Safety Act. The Full Bench said at [57] to [59]: [57] The appellant pointed to the evidence of Mr Genner to the effect that he had provided regular "on-the-job" training and instruction to Mr Ingram over many years. The evidence of Mr Genner was that this training encompassed issues of safety, including methods of directing vehicles entering and leaving worksites. Inspector Chadwick of the WorkCover Authority and Mr Johnson, an expert called by the appellant in the proceedings at first instance, agreed that "on-the-job" training can be a very effective method of training workers. However, whilst such training may, with respect to particular work, be sufficient to ensure a safe workplace, there will be many cases in which more detailed, comprehensive or systematic training and instruction will be required: see, for example, WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24]-[25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71].

[58] The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education). [59] In this case, we are satisfied beyond reasonable doubt that the training provided to Mr Ingram was not adequate to ensure he was not exposed to risks to his health and safety in relation to the control of vehicular movements onto and off the worksite. The training received by Mr Ingram over the years he had been working for the appellant was solely informal, ad hoc training and provided directly by Mr Genner. The training was not documented and the appellant's procedure for controlling vehicles entering and leaving a worksite were not recorded or refined. In our view, it is proper to conclude there was not sufficiently systematic or comprehensive training so as to ensure that Mr Ingram, who was left in control of the worksite, was sufficiently trained to react to changing circumstances and at the same time to ensure the site remained safe.

67 In the present case I accept the prosecutor's submissions regarding the nature of the defendant's failures. The training Mr Johnson received in relation to safety in connection with speed detection and enforcement operations using Pro Laser II was negligible. Indeed, what little on the job training he did receive regarding stopping procedure actually placed him in a situation of risk.

68 If Mr Johnson had been trained by the defendant with respect to the use of early warning signs for the purpose of alerting drivers to the possible presence of police officers on the carriageway, if he had been trained not to step on to the carriageway and trained to place himself behind a barrier when engaged in roadside speed detection and enforcement operations using the Pro Laser II unit, it is beyond reasonable doubt that Mr Johnson would have complied with that training and, therefore, would not have been exposed to the degree of risk that he experienced on 18 May 2000. The failure to adequately train Mr Johnson was causally connected to the risk experienced by him on 18 May 2000.

69 I find that the defendant failed in the manner particularised in particulars (c) and (e) of the charge to ensure the health, safety and welfare at work of Mark Wayne Johnson whilst conducting LIDAR speed detection operations on 18 May 2000 contrary to s 15(1) of the Occupational Health and Safety Act 1983. Accordingly, I find the defendant is guilty of an offence under s 15(1) of the Act unless it establishes a defence under s 53 of the Act.

70 Section 53 of the Act provides: 53. Defence

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

71 The defendant pleaded a defence under s 53(a) of the Act. In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 the Full Bench considered the requirements of s 53 as follows: 83 There was no question that the respondent had the requisite control over the worksite and, therefore, s53(b) does not arise. Rather, the respondent submitted it had done all that was reasonably practicable. As to what is required when considering a defence under s53(a), regard should be had to the judgment in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182: [87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 84 Those passages were subsequently approved by the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [38] and in Bultitude v Grice at [71]. 85 It may well arise that due to the exigencies of a particular work situation, it may have been impractical to have developed a safe system of work in advance. The particular circumstance may not have been a matter that was reasonably foreseeable in the way that phrase has been used in the authorities: see Bultitude v Grice (at [68]): Reasonable foreseeability of a risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. 86 Regard should be had in this respect to the judgment in Kellogg (No.1) (adopted by the Full Bench of the Court in Kennedy-Taylor v WorkCover Authority (at 82), Genner Constructions (at [67] - [68]) and Bultitude v Grice (at [68])): To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case.

It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight.

This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have.

72 In the present case, the defendant knew of the risk to police officers engaged in roadside speed detection and enforcement duties. In the training relating to the use of the Pro Laser II unit the defendant said: Consider carefully the stopping procedure before operating the Laser, if in doubt about safely stopping an offender let him go - your safety is more important.

73 The question, therefore, becomes whether the costs, difficulty or trouble necessary to eliminate the risk significantly outweigh the risk. It is clear from the evidence that roadside speed detection and enforcement activities using LIDAR are considered by NSW Police to be a vital function undertaken by the highway patrol in the interests of road safety and it attracts important public interest considerations to the extent that any restrictions on the defendant in relation to the carrying out of this function would need proper justification.

74 The defendant's case, in the context of the s 53 defence must be that the considerations restricting the ability of police officers to step onto the carriageway in carrying out speed detection and enforcement duties outweigh the risk occasioned by such an activity.

75 The risk to officers involved in stepping onto a roadway is, in my opinion, enormous. The risk is such that injuries sustained could easily be fatal. That officers are rarely run down does not lessen the risk. As the defendant submitted, an officer in danger of being run down has two escape routes - left or right. In Mr Johnson's case he chose right which led him onto the other side of the carriageway thereby potentially placing himself in fresh danger of vehicles that may be travelling south. If he had chosen left, in the circumstances he found himself, Mr Johnson may well have still been hit by the car driven by Mr Dalton given that person's apparent intent. But if at the side of the road there had been some form of substantial barrier behind which Mr Johnson could retreat and that was part of his instructions and training, Mr Johnson may well have not been injured to the extent that he was, or at all.

76 As I earlier observed, I can see no reason that would make it imperative for a police officer involved in speed detection and enforcement duties using a Pro Laser II unit to step onto the carriageway to signal a driver to stop. I note that Mr Hartley went no further than the edge line of the northbound carriageway of Budgewoi Road in successfully pulling over Ms Styan.

77 I am not satisfied on the balance of probabilities that it was not reasonably practicable for the defendant to comply with s 15(1) of the Act. I do not consider that the defendant has established a defence under s 53 of the Act.

78 I am satisfied beyond reasonable doubt that on 18 May 2000 the defendant failed to ensure the health, safety and welfare of Mark Wayne Johnson whilst he was engaged in LIDAR speed detection and enforcement duties in the vicinity of Budgewoi Road and Gomul Street at Noraville in the State contrary to s 15(1) of the Occupational Health and Safety Act 1983 as particularised in particulars (c) and (e) of the charge.

79 I will hear submissions on penalty and costs on a date to be fixed.

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