Inspector Russell Webb v Nowra Truck & Farm Equipment

PROSECUTOR Mr M Cahill of counsel Solicitor: Mr N A Correy Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT Mr G Butler of counsel Solicitor: Mr J Bisley Thomas & Bisley

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR RUSSELL WEBB v NOWRA TRUCK & FARM EQUIPMENT (HOLDINGS) PTY LIMITED T/AS BANOON PASTORAL CO Prosecution under s 15(1) of the Occupational Health & Safety Act 1983

INSPECTOR RUSSELL WEBB v BRUNNING INVESTMENTS PTY LIMITED T/AS BANOON PASTORAL CO Prosecution under s 15(1) of the Occupational Health & Safety Act 1983

INSPECTOR RUSSELL WEBB v NUBLEY BROS SERVICE PTY LIMITED T/AS BANOON PASTORAL CO Prosecution under s 15(1) of the Occupational Health & Safety Act 1983

JUDGMENT [2003] NSWIRComm 340 1 "Banoon" and "Bundabindi" are large rural properties near Barraba in New South Wales. Cattle and sheep are grazed there and some crops are grown. The terrain is mainly undulating with about 10 per cent classified as steep and inaccessible by four-wheel drive vehicle.

2 Nowra Truck & Farm Equipment (Holdings) Pty Limited, Brunning Investments Pty Limited and Nubley Bros Service Pty Limited ("the defendants") own the properties in partnership. The partnership trades under the name "Banoon Pastoral Company". Peter Roy Simpson was the manager of the properties and an employee of the defendants. The defendants also employed Raymond John Philpott as a farm hand. Colin Stanley Lord is the managing director of Banoon Pastoral Company.

3 On 19 October 2000 Mr Simpson and Mr Philpott proceeded from Banoon to Bundabindi in a Daihatsu four-wheel drive farm utility vehicle owned by the defendants and provided for the purpose of carrying out farm work, including off-road driving. Mr Simpson was driving. The men were to count cattle and inspect/repair a floodgate through which the cattle were escaping. After entering a paddock at Bundabindi, the men alighted from the vehicle to lock in the front hubs on the four-wheel drive. They returned to the vehicle and commenced their journey across the paddock in four-wheel drive mode. 4 Mr Simpson drove up the spur of a hill on the other side of which was the floodgate. The spur ran from the base to the plateau of the hill. Cattle were scattered over the hill and the two workers were to count them as they proceeded over the hill towards the floodgate. There had been a shower of rain earlier in the day but as Mr Simpson was proceeding up the spur following a cattle track it was not raining. Mr Simpson's direction of travel was southwest.

5 At a point on the hillside, Mr Simpson turned the vehicle to the left, facing across the gradient of the spur. The hill had a mean gradient of 21.78 degrees. The vehicle travelled a short distance before it overturned and commenced to roll over down the hill. The vehicle rolled over five times before coming to rest some 38 metres from the point it began to tip. At some point as the vehicle rolled over Mr Philpott was ejected from the cabin of the vehicle. Mr Philpott sustained injuries that ultimately proved to be fatal. Neither Mr Simpson nor Mr Philpott was wearing a seat belt.

6 The defendants were prosecuted by Inspector Russell Webb of the WorkCover Authority of New South Wales under s 15(1) of the Occupational Health and Safety Act 1983. Section 15(1) provides: Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

7 It was alleged by the Inspector that the defendants failed to ensure the health, safety and welfare at work of its employees, and in particular Raymond John Philpott, contrary to section 15(1). Each charge alleged that the defendant: [B]eing an employer at a rural property known as "Bundabindi" in the state of New South Wales ("the farm") on the 19 October 2000 DID FAIL to ensure the health, safety and welfare at work of its employees and in particular, Raymond John Philpott ("the deceased worker"), contrary to section 15(1) of the Occupational Health & Safety Act, 1983, in that the deceased worker sustained fatal injuries when, being a passenger in a Daihatsu four-wheel drive farm utility ("the motor vehicle") being driven by Peter Roy Simpson ("the driver") on the farm, the deceased worker was thrown from the motor vehicle when it was involved in an accident involving it overturning a number of times by reason that: (a) The defendant failed to provide and maintain a safe system of work in that: (i) The work being carried out at the particular time and place involving the use of the motor vehicle in the circumstances was unsafe. (ii) The practice of the defendant's farm employees, including the deceased worker, travelling in farm vehicles when unrestrained by seatbelts, was unsafe. (iii) The route taken by the motor vehicle to carry out the work in the circumstances was unsafe. (iv) The route taken by the motor vehicle to access a flood gate/flood fence area instead of the defined bulldozed track was unsafe. (b) The defendant failed to provide and/or maintain a means of access to or egress from a place of work under its control, to wit an area on the other side of the hill from where the said vehicle overturned, that was safe and without risk in that: (i) The route taken involved the motor vehicle being driven across the slope of a hill. (ii) The slope of the hill at the route taken by the motor vehicle had a gradient which rendered it unsafe to traverse in the prevailing conditions. (iii) A planned track on the side of the hill where the accident occurred to provide safe access to the flood gate/flood fence area on the other side had not been constructed at the date of the accident. (c) The defendant failed to provide such information, training, instruction and supervision in relation to the work involving use of the motor vehicle as may be necessary to ensure health and safety in that: (i) The driver had not received accredited instruction and assessment in the safe operation of four wheel drive vehicles under varying conditions and situations. (ii) No instruction or training was provided to its employees, including the deceased worker, in relation to the wearing of seatbelts at all times where practicable when engaged in farm work from motor vehicles. (d) The defendant failed to take such steps as were necessary to make available in connection with the use of the motor vehicle on the spur of the hill where it overturned adequate information about the use for which the motor vehicle was designed and about conditions necessary to ensure that when put to that use the motor vehicle would be safe and without risk.

8 The defendants pleaded not guilty to the charges against them. 9 The prosecutor must prove the essential legal elements of the offence beyond reasonable doubt. In these proceedings the prosecutor must prove: 1. The defendants were employers; 2. The defendants failed to take steps to ensure the health, safety and welfare at work of all their employees; 3. One or more of the defendants' employees were exposed to a risk to their health, safety or welfare whilst at work; 4. A causal relationship between the conduct of the defendants and the consequent risk to health, safety or welfare of the employee or employees.

10 There is no doubt, and it was not contested, that each of the defendants was an employer for the purpose of s 15(1) of the Act and in partnership they employed, amongst others, Mr Simpson and Mr Philpott. It was also not contested that on 19 October 2000 Mr Simpson and Mr Philpott were at work on the defendants' property of Bundabindi.

11 The evidence was that the vehicle involved in the accident was appropriately maintained prior to the accident and a post-incident examination by a police officer who was also a qualified motor mechanic did not disclose any defect that might have contributed to the vehicle rolling over. The vehicle was fitted with retractable seatbelts that were in proper working order. There was also evidence that Mr Simpson had been driving four-wheel drive vehicles for many years in both on-road and off-road conditions. He could be considered to be an experienced driver of such vehicles. Mr Simpson said in his evidence that he had driven a four-wheel drive vehicle up the particular track on the spur of the hill on a previous occasion and had ridden a motor cycle and horse up it on numerous occasions. He said he was very familiar with the terrain. Mr Simpson said it was necessary to follow the route he had chosen in order to carry out the work of counting cattle.

12 Mr Lord has been managing director of Banoon Pastoral Company since 1989. He gave evidence that he had many years of practical experience in the off-road operation of four-wheel drive vehicles. This included the operation of four-wheel drive vehicles on rural properties for in excess of forty years and demonstrating a wide range of four-wheel vehicles to members of the public contemplating the purchase of four-wheel drive vehicles from the "family dealership". Mr Lord said in an interview on 22 November 2000 undertaken by the initial investigating inspector from WorkCover, Inspector Brian Parfitt, that: I have been running rural properties for in excess of 40 years and my knowledge and experience gives me the capacity to assess competency in operating all farm machinery, not only 4 wheel drives.

13 Mr Lord said that he had assessed the four-wheel driving skills of Mr Simpson as well as those of Mr Gene Robinson and Mr Kenneth Faulkner, station hands employed by the defendants. He said that he had undertaken informal assessments of Mr Simpson's driving competency when Mr Simpson had driven him around the property, especially on one occasion for three and a half hours in 1989 when the defendants were contemplating the purchase of Banoon.

14 It is to be noted, however, that none of the defendants' employees had undertaken any training course in four-wheel driving nor were they provided with training or information manuals nor other material relating to four-wheel driving. The employees' skills and knowledge had come entirely from their own learning on and off the job. 15 Both Mr Lord and Mr Simpson acknowledged that the operation of four-wheel drive vehicles gave rise to considerations regarding safety. Mr Simpson gave evidence regarding the use of such vehicles in "steep" country as follows: Q. So far as the use of and operation of four-wheel drives is concerned, do you give any instructions to your employees about whether they should or should not drive a four-wheel drive? A. Yes there is.

Q. Again in what context of that discussion is it formal direction you give or is it the formal direction you give or it is something that is said in passing throughout the day when you are working with them? A. Just not to anything stupid. Safety is a factor.

Q. When you say that safety is a factor, what do say or about ensuring the safe use of four-wheel drives? A. Not to put it into a steep area.

Q. That is something that is discussed from time to time? A. Yes it is.

16 Similarly, Mr Lord agreed in cross-examination that, prior to the accident he was aware of the risk of "roll-over" associated with the operation of four-wheel drive vehicles "off-road" in "steep country". However, in his opinion, safety only dictated wearing a seatbelt when driving a four-wheel drive vehicle in country where the ascents and/or descents involved grades exceeding 30 degrees.

17 The defendants' attitude to safety in connection with four-wheel driving as reflected in the evidence of Mr Lord and Mr Simpson was, apart from saying to employees they should drive safely and "they should not do anything stupid", to rely on what they regarded as the individual competence and judgment of employees, which was assessed on an informal basis by observation. The evidence revealed that no training, instruction or information was provided to employees in relation to the operation of four-wheel drive vehicles, notwithstanding that it was recognised by the defendants that the operation of four-wheel drive vehicles gave rise to considerations of safety; no inquiry was made of employees as to whether they had undertaken training or instruction in four-wheel driving. 18 The wearing of seatbelts was a matter left to the discretion of individual employees. Mr Lord and Mr Simpson were aware that the practice of employees was not to wear seatbelts whilst driving on the properties even up to speeds of 60 kilometres per hour on dirt roads or whilst operating off-road. The reason given for not wearing seatbelts was that it was inconvenient or impractical because workers were constantly getting into and out of the vehicle. It was contended by the defendants that the non-use of seat belts was a universal and accepted practice within the farming community and environment.

19 It was conceded, however, by Mr Lord that there were circumstances where it would not be impractical to require employees to wear seat belts. In cross-examination the following exchange occurred: Q. You were present in the Court room and heard the evidence given by Mr Simpson when he described the vehicle being brought to a halt on one occasion at which point in time the vehicle's front wheel hubs were put into four wheel drive? A. Yes.

Q. You agree with that? A. Yes, I do.

Q. Can you explain to his Honour what it was that was impractical about requiring employees on reentering vehicle to secure their seatbelts. A. On that occasion I can't, no.

Q. Indeed that would apply in relation to any situation where one was dealing with going about the process of undertaking a steep climb or a climb in country that could involve the risk of a roll over; would you agree with that? A. Yeah, I agree but that's their choice.

20 Notwithstanding Mr Lord's opinion about when it was appropriate to wear a seat belt on steep slopes (grades exceeding 30 degrees) no direction was given to employees to do so and no attempt was made to convey to employees what constituted a steep slope.

21 Inspector Brian Dell of the WorkCover Authority, a civil engineer by training, gave evidence. Inspector Dell had been employed in the early 1980s by the National Parks and Wildlife Service ("NPWS") as a senior field supervisor for six years. In 1981 Inspector Dell had undertaken a four-wheel driving instructor's course conducted by the Forestry Commission of New South Wales and in 1992 he qualified as a senior instructor. In the course of his employment with NPWS he had conducted training courses in four-wheel driving and had gained expertise in that area. Inspector Dell gave evidence of a 43-page document entitled "The art of four wheel driving under all conditions" which had been produced by NPWS and the Forestry Commission of New South Wales. In the context of four-wheel driving, the document defined a steep slope as having a grade in excess of 25 degrees. This compares to Messrs Lord's and Simpson's definition of 30 to 35 degrees. The document described in detail the approach to be taken to negotiating steep slopes. It warned against traversing a slope and referred to the need to wear a firmly adjusted seat belt.

22 I turn to the accident itself. On the day of the accident Mr Simpson said the ground was firm and he considered it to be safe to drive on. He said he proceeded in low range, four-wheel drive mode at less than walking pace and that he kept a careful lookout. He said he proceeded directly west up the spur of the hill. Some distance short of the plateau of the hill, following a "similar path" to the route he had taken on the previous occasion he had driven up the slope in a four-wheel drive vehicle, Mr Simpson said he deviated to the left only about 5 to 10 degrees to avoid some surface stone. A very short distance after deviating to the left, Mr Simpson said he felt the right-side front wheel of the vehicle lift and he next remembers being outside at the rear of the vehicle with the vehicle on its side. Mr Simpson found Mr Philpott lying on the side of the hill injured and went for help. He returned to the accident scene to comfort Mr Philpott and to wait for the ambulance. Despite attempts by ambulance officers to keep him alive Mr Philpott died from his injuries shortly after their arrival.

23 There were a number of other witnesses who gave evidence in the proceedings. These included Detective Sergeant (now Detective Inspector) P A Baines of the Tamworth Crime Scene Group and Senior Constable P J Ryan of the Tamworth Crash Investigation Unit who attended the scene. Detective Inspector Baines holds a Diploma of Applied Science and Forensic Investigation that involved courses in the collection of forensic evidence and crash investigation. Senior Constable Ryan had been a member of the Crash Investigation Unit since 1992. He had undertaken an advanced traffic accident investigator's course and a traffic accident reconstruction certificate course. There was no challenge to Constable Ryan's expertise.

24 In the course of the police investigations, a number of photographs were taken, measurements of the scene were undertaken and maps containing points of interest were drawn. This material was put into evidence. Mr G Robinson and Mr K G Faulkner also gave evidence. The defendants employed these two men as station hands. After being notified of the accident Mr Robinson and Mr Faulkner proceeded to the accident site and as they arrived at the foot of the hill they met the ambulance arriving. The ambulance became bogged and Mr Faulkner transported one the officers up the hill in his vehicle. Mr Robinson stayed with the ambulance to help free it from the bog. Mr Robinson later proceeded up the hill to the accident site.

25 Mr Lord arrived at Bundabindi on 20 October 2000 and inspected the accident site. Inspector Parfitt visited the site on 20 October 2000. He was unable to give evidence due to serious injuries suffered in a motor vehicle accident. However, his factual inspection report into the accident was tendered into evidence.

26 Detective Sergeant Baines, Senior Constable Ryan, Mr Robinson, Mr Lord and Inspector Parfitt all inspected the accident site including the area where the vehicle commenced to overturn. Their evidence as to the direction and progress of the vehicle was largely consistent.

27 My view of this evidence is that Mr Simpson was proceeding up the hill in a south-westerly direction. Some 33 metres from the plateau of the hill, which Inspector Parfitt described as the steepest part, were skid marks indicating the vehicle was unable to maintain traction and unable to continue directly on its previous course. The vehicle then reversed back in the direction it had come. The driver of the vehicle then attempted to travel in a more southerly direction across the gradient of the hill. The left wheel of the vehicle hit a depression or small washout. At this juncture, due to the physical forces placed on the vehicle, a combination of a significant weight transfer and shifting of the centre of gravity would have caused the vehicle to "trip" over the berm in the soil that its left-side wheels had created as it slid laterally to the left and commence its rolling motion. It was the evidence of the police crash investigators that the physical forces exerted upon the vehicle may have been intensified by having unrestrained passengers and material in the tray (i.e. fencing wire, tyre etc.) moving to the left of the vehicle.

28 The evidence of Detective Sergeant Baines and Senior Constable Ryan supports my opinion of how the accident occurred. I have no reason to question or doubt their evidence. Detective Sergeant Baines expressed the opinion that a number of factors combined to cause the vehicle to overturn: Q. Can you tell his Honour how all those factors associated with the observation by way of physical examination and so forth, come together in your opinion to play a role in what occurred in terms of the vehicle rolling down the hill? A. Yes. It was my opinion that there were a number of matters which combined to cause the collision. This included the direction of travel of the vehicle across the gradient, the nature of the surface the vehicle was travelling across and the presence of the depression in the surface of the hill that the vehicle as I indicated earlier entered with the front left wheel. … Q. Just in terms of the forces that were acting on the vehicle at the point that it began the process of tripping, as you have described it, can you just explain to his Honour the forces in terms of gravity and centre of gravity that were acting on the vehicle? A. There would have been a significant transfer of weight because we have a 21 degree gradient. We would have already had a lot of weight on the left side of the wheels because he is moving across the hillside, but what would have been the unexpected dropping of the front of the vehicle into this little wash out. So that would have created more weight, particularly on the left front of the vehicle and that weight, with the damp, wet conditions, would have caused a lateral slide, lateral being in this case from right to left and weight transfer, and in conjunction there would have been instability by the very nature of the fact that initially there would have been only three wheels until it toppled into the actual hole and the left wheel dug in and then would have had more weight, particularly focused on the left front corner of that car.

29 Senior Constable Ryan said the soil at the site of the accident was "soft and wet". Relevantly, Constable Ryan gave the following evidence: CAHILL: Q. At the time of your investigation at the site did you form a view as to whether or not the vehicle moved to any extent beyond the wash out? A. I think that the actual south progress of the vehicle did not go beyond that wash out.

Q. From at the point of the wash out did you make any observations with respect to the progress of the vehicle in terms of its movement or change of direction in any way? A. I had an - I interpreted at the time certain things, yes, sir.

Q. What was it that you interpreted? A. I interpreted that the left front wheel of the Daihatsu Scat has entered into this cause way and that left wheel has dropped into the cause way and has started to slide laterally down the hill and that has caused or did cause the loss, damp soil to build up in the form of what would be a berm or a slight hill. What has happened from there, from my interpretation, is that could only go for so far to the point where the berm would cease, the build up of soil could only amount to so much. The Daihatsu continued to slide because of the gradient. The left front tyre dug in because of the berm and, as a result, the vehicle tripped, as a human can trip, and the vehicle has tripped and it commenced its roll overs. Momentum of the highly - the gradient has then allowed it to continue for that 38 metres to a point where it stopped.

Q. Just in terms of the forces that were acting on the vehicle at the point that it began its process of tripping, as you have described it, can you just explain to his Honour the forces in terms of gravity and centre of gravity that were acting on the vehicle? A. There would have been a significant transfer of weight because we have a 21-degree gradient or expressed as a percentage 38 per cent gradient. We would have already had a lot of weight on the left side of the wheels because he is moving across the hillside, but what would have escalated that situation would have been the unexpected dropping of the front end of the car into this little wash out. So that would have created more weight, particularly on the left front of the vehicle, and that weight, with the damp, wet conditions, would have caused a lateral slide, lateral being in this case from right to left and a weight transfer, and, in conjunction there would have been instability by the very nature of the fact that initially there would have been only three wheels until it toppled into the actual hole and the left wheel dug in and then we would have had even more weight, particularly focussed on the left front corner of that car.

Q. In terms of load in the vehicle, that is both a passenger load and material load, would that have an effect? A. Well, unless those loads that you mentioned are secured, fixed in their positions, there would be far greater effect if, for example, the load we are talking about, the fencing wire and the wheel, if they had moved across towards the left side of the car with gravity that would have put more weight on to the left side of the car. Of course as would passengers; if the passengers were fastly (sic) strapped in, there wouldn't have been a significant change, but if they were to have gone heavily against the door or heavily to the left, that would have transferred even more weight towards the left side of the vehicle.

30 Mr Simpson said he drove up the hill "square on" to the gradient and only deviated 5 to 10 degrees to the south. Whatever might have been his deviation - and I consider it was more than he claimed - it was sufficient to create a risk to safety constituted by the prospect of the vehicle overturning on what was undeniably a steep - and at the time slippery - slope. And indeed, that is what occurred in the manner described by the two police officers.

31 The alleged failures on the part of the defendant are set out in the particulars. I will deal with each of these in turn.

Particular (a): Alleged failure to provide and maintain safe system of work

32 Particular (a) alleged that the defendants failed to provide and maintain a safe system of work in that: (i) The work being carried out at the particular time and place involving the use of the motor vehicle in the circumstances was unsafe. (ii) The practice of the defendant's farm employees, including the deceased worker, travelling in farm vehicles when unrestrained by seatbelts, was unsafe. (iii) The route taken by the motor vehicle to carry out the work in the circumstances was unsafe. (iv) The route taken by the motor vehicle to access a flood gate/flood fence area instead of the defined bulldozed track was unsafe.

33 I had the impression from certain of the defendants' evidence and their submissions that somehow the obligations falling on employers who operate rural properties or farms in respect of occupational health and safety should be viewed differently from employers in other industries; that there was not the same obligation on farm owners to provide a system of work or information, training, instruction or supervision of employees regarding the safe operation of farm vehicles. This was because employees had been working on the property for many years; they had learned to drive farm equipment even as children and they knew the risks and how to avoid them.

34 Section 15 of the Occupational Health and Safety Act makes no distinction between the industries carried on by employers; all employers carry the same obligations. The nature of the obligation imposed under the section is absolute; the employer is required to ensure the health, safety and welfare at work of all its employees.

35 An employer contravenes s 15(1) if it fails to provide or maintain plant and systems of work that are safe and without risks to health: s 15(2)(a). In the present case there was no system of work in place in relation to the safe operation of farm vehicles. By observation only - no inquiry was made of Mr Simpson, for example, as to whether he had undertaken any training or instruction - Mr Lord considered employees such as Mr Simpson were competent. Mr Lord was not presented as an expert in four-wheel driving. There was no evidence that the defendants gave any directions resembling the setting up of a safe system of work in relation to the operation of farm vehicles. The defendants left the regulation of safety to the employees themselves.

36 As Haylen J observed in Inspector Kenneth John Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255 at par [107]: It is difficult to accept that a system that leaves it to employees, even trained employees, to look after themselves can be described as a safe system of work.

37 The comment by Peterson J In Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286 at par [29] is also apposite: One can understand a developed perception that experienced bushmen might be resistant to instructions relating to how their work is to be done safely but this cannot remove the absolute obligation imposed by the Act upon an employer or contractor or other relevant person on whom the duty is imposed to ensure work is carried out in a safe manner. It is simply insufficient to give general directions and to, effectively, hope for the best.

38 Even if one accepts that Mr Simpson was an appropriately qualified person in a position to supervise or manage the safe operation of four-wheel drive vehicles, there was no evidence that Mr Simpson put in place a safe system of work apart from issuing a general direction to employees not to do anything stupid.

39 In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 Walton J Vice President, with whom Wright J, President agreed, held at par [78] that "the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them". However, given the prior discussion in that case at pars [73] to [75] relating to Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 I understand that this requirement is to be interpreted according to the nature of, and circumstances under which, work is performed. But even placing the loosest interpretation on the meaning of "coherent and systematic" there was nothing resembling either coherency or a system in the defendants' approach to the safe operation of farm vehicles.

40 Returning to the terms of particular (a) it is convenient to deal with par (a)(i) and (iii) together. Particular (a)(i) alleged that the work being carried out at a particular time and place was unsafe because the defendants failed to provide and maintain a safe system of work. Particular (a)(iii) alleged that the route taken by the vehicle driven by Mr Simpson to carry out the work was unsafe because the defendants failed to provide and maintain a safe system of work.

41 As I have already found there was no system of work in relation to the safe operation of farm vehicles, including four-wheel drive vehicles. The defendants relied on the employees to carry out their work safely. It was clearly open to the defendants to lay down a safe system, which may have included directions or instructions on the avoidance of risk associated with negotiating steep slopes including the need to carefully assess the conditions of the slope, the need avoid traversing the slope, the need to choose a suitable route, and the need to wear safety belts. As Walton J observed in Fletcher Constructions at par [101]: As the Full Bench was at pains to point out in Ridge Consolidated Pty Ltd v Mauger, the Act is designed to protect against human errors (including foolish disregard for personal safety) as well as technical risks. Appropriate established systems or procedures known and understood in advance by the workforce, together with a clear, practical, chain of supervision or management, go some considerable way to achieving this aim. The mistakes of an individual are less likely to be made, or left unrectified, if that individual is accountable or if an appropriate system of checks and balances has been instituted.

42 The defendants insisted that in the context of the farming environment the system of work was safe and that but for the vehicle striking the washout, an unavoidable occurrence despite the careful lookout being maintained by Mr Simpson, the accident would not have occurred. The "system", for the reasons I have already explained, was demonstrably unsafe.

43 Particular (a)(ii) alleged that the practice of the defendants' employees travelling in farm vehicles when unrestrained by seatbelts was unsafe. The defendants contended that no causal connection had been established between the practice of not wearing seatbelts and the injuries to Mr Philpott causing his death. It is correct that there was no evidence that if Mr Philpott had been wearing a seatbelt his life would have been saved. In this connection there was no evidence that Mr Philpott's injuries were caused by the vehicle rolling on top of him after being thrown from the vehicle.

44 In my opinion, however the defendants' submission is misdirected. What has to be considered is whether there was a causal relationship between the acceptance by the defendants of the practice of not wearing seatbelts whilst travelling in farm vehicles and the consequent risk to injury that arises from the failure to prevent such a practice. The detriment to safety in this case was that in ascending a steep slope in slippery conditions the vehicle might overturn and, in the absence of any restraint, both passenger and driver might be thrown from the vehicle and sustain injury. It is the risk that must be considered in the context of whether a causal nexus exists, not the actual injury.

45 The other risk that arose more generally was that the practice of not wearing seatbelts in farm vehicles, according to the evidence, was universal; that is, it did not matter at what speed the vehicle was travelling or what the conditions were, the usual practice was that seatbelts were not worn. It may be that, in certain circumstances, the wearing of seatbelts would not be unsafe. But in my opinion, the practice prevailing on Banoon and Bundabindi relating to the wearing of seatbelts - a practice sanctioned by the defendants - was unsafe.

46 It was contended for the defendants that the evidence of Mr Simpson and Mr Lord, being experienced operators of four wheel drive vehicles and very familiar with the farming environment, should be preferred over other witnesses for the prosecution, including Inspector Dell. It does not seem to me that in considering the safe operation of four-wheel drive vehicles there is any difference between driving the vehicles off-road in open country, which was Inspector Dell's experience, or off-road on a farm. A steep and slippery slope on a rural property is no different to a steep and slippery slope in open country. The same safety considerations apply.

47 In relation to the safe operation of four-wheel drive vehicles, I prefer the evidence of Inspector Dell to that of either Mr Simpson or Mr Lord. Inspector Dell's evidence regarding the use of seat belts was as follows: Q. In terms of preparing to undertake four wheel drive operations, is it your understanding that as part of the training that is provided in four wheel drive courses, that drivers are given - as well as very specific safety instructions - drivers are given more general safety instructions relating to the operations of four wheel drives and the use of safety equipment? A. Yes, that's correct.

Q. And does that include the use of ubiquitous items such as seatbelts and the like? A. Yes it does.

Q. And can you tell his Honour, as a result of both your training and your experience, do you have a view about the use of seatbelts when one is undertaking off road driving in a four wheel drive vehicle? A. Yes. It's my view and it was the view of the National Park and Forestry Commission that seat belts should be worn at all times because generally you are in fairly rough conditions getting bounced around. It helps to - firstly it prevents you getting thrown around the vehicle and in particular for passengers who do not have hold of a steering wheel and also the operator needs it and if the vehicle rolls over it helps - it may help them save their life and save them getting thrown from the vehicle or being thrown out.

Q. … Can I take you to page 13 of exhibit 23. There is a reference there to driving position, about which instructions are given in terms of this particular manual? A. Yes.

Q. In that regard one of the observations is made that the seat belt should be firmly adjusted? A. That's correct.

Q. Insofar as that is concerned, is that consistent with the type of instructions that you provided - and to your knowledge - is provided in driving courses of this type? A. Yes, it was one of the instructions and it was mandatory in the course and it was an instant failure if it wasn't undertaken.

48 In my opinion, the practice allowed by the defendants of travelling in farm vehicles unrestrained by seatbelts was an unsafe practice. Further, I consider that there is a causal relationship between such a practice and the risk of being injured in circumstances where a vehicle is travelling up a steep, slippery slope. If a vehicle were to roll over in such circumstances, as Inspector Dell said in his evidence, the wearing of a seatbelt may prevent persons from being thrown from the vehicle - it may save their life.

49 Particular (a)(iv) alleges that the route taken by Mr Simpson's vehicle to access a floodgate/flood fence instead of a defined bulldozer track that was available was unsafe. I have already found that the route taken by Mr Simpson was unsafe. I am not prepared to find that it was also unsafe because an alternative, safer route was available. The purpose in Mr Simpson taking the route that he did was to undertake the work of counting cattle on the way to the floodgate. The work of counting cattle could not have been undertaken if the alternative route was taken.

50 I find particular (a)(i), (ii) and (ii) have been made out.

Particular (b): Alleged failure to provide and/or maintain a safe means of access to or egress from a place of work under the defendants' control.

51 This particular raises an interesting question: In driving up the hill was Mr Simpson using a means of access to or egress from a place of work under the defendants' control or was he at the place of work? The defendants contended that Mr Simpson was at a place of work, therefore, the particular could not be made out. The defendants relied on Australian Iron and Steel Pty Limited v Luna (1968) 123 CLR 305.

52 The evidence was that Mr Simpson and Mr Philpott set out from Banoon with the purpose of repairing the floodgate. On the way to the floodgate it was intended that they would also carry out the work of counting cattle that had been sold and which needed to be transferred out of the paddock in which they were being held. The cattle were located on the hill where the accident occurred. The counting of the cattle had commenced when the accident occurred.

53 Particular (b) is derived from s 15(2)(d) (ii) of the Act which provides: (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: d) as regards any place of work under the employer's control: … (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks …

54 "Place of work" is defined in s 4(1) of the Act as meaning "premises, or any other place where persons work". "Premises" is defined to include: (a) any land, building or part of any building, (b) any vehicle, vessel or aircraft, (c) any installation on land, on the bed of any waters or floating on any waters, and (d) any tent or movable structure. 55 "Place of work" is to be given a "broad construction": Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at pars [48] to [52]. 56 On one view of it, it is arguable that the whole of Bundabindi, being the defendants' property on which they required work to be done, was a place of work within the meaning of the Act. Thus, on entering the paddock where the cattle were to be counted, it is arguable that Mr Simpson and Mr Philpott were not using a means of access but were at a place of work and continued to be at the place of work as they travelled over the paddock on their way to the floodgate, which was also located on the defendants' property. If this be correct the prosecutor cannot make out particular (b).

57 The alternative approach is that exemplified by the considerations in such cases as: Australian Iron and Steel Pty Limited v Luna; Australian Bronze Company Pty Limited v Ajaka (1970) 44 ALJR 155; Hopwood v Rolls Royce Ltd (1947) 176 LT 514; Rolland v United Glass Manufacturing Co Ltd [1959] SLT (Notes) 10 and, Dorman Long & Co v Hillier [1951] 1 All ER 357.

58 In Australian Iron and Steel Pty Limited v Luna the High Court was concerned with s 40 of the Factories, Shops and Industries Act 1965 (NSW) which provided: There shall so far as is reasonably practicable in every factory be provided and maintained safe means of access to every place at which any person has at any time to work.

59 A worker was required to wheel a barrow to a bin of fire clay, load it with clay, wheel it some fifty yards to a long chain of bogies and apply clay to the couplings between each bogey. Having applied clay to a number of couplings the worker stumbled and was injured while wheeling his barrow to the next bogey. The question for the Court was whether there was any evidence on which it could reasonably be held that at the time the worker was injured he was going by a means of access to a place at which he was going to work within the meaning and operation of s 40 of the Act.

60 By majority (Barwick CJ, Windeyer and Owen JJ, Kitto and Menzies JJ dissenting) the Court held that at the time of the accident the worker was not using a means of access. It is not so much the Court's decision in the matter that is of interest here but rather the discussion in the leading judgment of Barwick CJ. Firstly, his Honour considered that the statute under consideration depended for its operation upon the maintenance of the distinction between the place at which work was to be done and the means of access to that place. The Chief Justice could not conceive a case where the area or place at which work was to be done was the same as a means of access to the place.

61 Secondly, the Chief Justice said at 310: As the contrast for which the section calls is between the place at which a job of work is to be performed and the means of access to that place, it follows, in my opinion, that for the purpose of applying this section, it is necessary to determine what was the job of work currently to be performed. The area over which the employee will reasonably be expected to range in the performance of that job of work will, in my opinion, be the place at which he is to work within the meaning and for the purpose of the application of s 40. Having thus delineated the place at which he is to work, the question whether or not means of access have been provided to that place, and if so, whether that means of access is safe so far as is reasonably practicable can be resolved.

62 Barwick CJ went on to hold at 310-311: In my opinion, the facts of this case will not support a conclusion of fact that the respondent in wheeling the barrow containing clay from the position of one coupling which he had clayed up to the position where he could clay up the next coupling in the line of buggies was using a means of access to a place at which he was to work within the meaning and operation of s 40. In my opinion, it could not be held on those facts otherwise than that he was currently doing one job of work, namely, claying up the couplings of the line of buggies and that the whole area traversed by him in performing this task, including obtaining and wheeling the clay as well as applying it to the couplings was, in relation to the statutory provision, a place at which the respondent was to work. It could only be concluded, in my opinion, that he was as much at the place at which he was to work when wheeling the barrow from one coupling to another as he was when he was applying the clay to the coupling. I therefore agree with the conclusion of the trial judge and with the direction which he gave.

63 His Honour's reasoning could be seen to provide support for the view that the area over which Mr Simpson and Mr Philpott would reasonably be expected to range in the performance of their jobs of work, namely, the property known as Bundabindi, would be the place at which they were to work and not a means of access. Barwick CJ, however, went on to consider a number of English cases including Hopwood v Rolls Royce Ltd, Rolland v United Glass Manufacturing Co Ltd and Dorman Long & Co v Hillier. Each of the English cases concerned the provisions of s 26(1) of the Factories Act 1937 (UK), a provision Barwick CJ considered to be in like terms to s 40 of the NSW Act.

64 In Hopwood a fitter was to work on a cylinder head of an aeroplane engine at his own workbench and then carry it to an inspector's bench. The fitter was injured in attempting to place the cylinder head on the inspector's bench. As Barwick CJ noted, their Lordships decided that each stage of work on the cylinder block was, to use his Honour's expression, "a separate job of work to be done at a place as distinct from 'one set of operations' as if it were continuously performed although not all at the same place."

65 In Rolland the worker's task was to load a barrow with crushed glass at a chute, wheel it to a mixer and there empty the load into the mixer. The worker was injured whilst wheeling the barrow between chute and mixer. Barwick CJ made the following observations at 312: Reliance was placed on Lord Greene's judgment in Hopwood v. Rolls Royce Ltd (1947) 176 LT 514 and on the judgments in Dorman, Long & Co. Ltd. v. Hillier (1951) 1 All ER 357 to conclude that a place of work could be a means of access to another place of work. This, it seems to me, could only be true where the work to be done in the first place was not the work to be done at the second place. Lord Greene's remarks quoted in this case were as follows: "There must be a safe means of access to the particular branch of the man's work on which at the moment he is about to engage himself. That would exclude movements take while doing one operation or one set of operations and would confine the section to cases where it can truly be said that a man is moving from one branch of his work to another branch of his work, his route in so doing is a means of access." (1947) 176 LT, at pp 517, 518

The Master of the Rolls in this remark seems to treat the branch or stage of work as distinct jobs of work though all directed to the accomplishment of a single result. Lord Guest's use of this quotation seems to me to indicate that his Lordship treated the work of receiving the crushed glass as one job of work and the placement of the glass in the mixer in another department of the factory as another job of work. On that footing the factory floor traversed from the chute to the mixer could be regarded as a means of access to the place where the mixer was: and nonetheless so, as Lord Guest thought on the authority of Hopwood v. Rolls Royce Ltd. (1947) 176 LT 514 because in traversing that floor the workman was doing work though a separate job of work from that which he was to do at the place to which he was gaining access. Lord Guest, consistently with the remarks of Lord Greene on which he relied, could not have considered the receipt, wheeling and delivery of the crushed glass as one set of operations. If the workman's task had been so regarded, the movement over the factory floor would not be a use of a means of access.

66 In Dorman a worker had to remove four corrugated iron sheets from a roof and it was held that a step on to one of the sheets while the worker was passing down another after its removal was a step not upon a means of access but upon a part of the place where the work was being done. In allowing the appeal Lord Goddard CJ, who gave the leading judgment, referred (at 359) to what Lord Greene MR said in Hopwood: There must be a safe means of access to the particular branch of the man's work on which at the moment he is about to engage himself. That would exclude movements taken while doing one operation or one set of operations, and would confine the section to cases where it can truly be said that if a man is moving from one branch of his work to another branch of his work, his route in doing so is a means of access. 67 Barwick CJ considered that his approach in Australian Iron and Steel v Luna was not inconsistent with Hopwood, Rolland or Dorman. This was essentially because the factual situation in Australian Iron and Steel v Luna constituted what his Honour considered to be "one set of operations" whereas in Hopwood and Rolland this was not so. Barwick CJ considered that Dorman involved, in effect, " one set of operations" and was, therefore, conformable with Hopwood and Rolland.

68 In Australian Bronze Company Pty Limited v Ajaka the factual situation was that: [T]he injury occurred when the bearing was placed on the trolley after the work of repair had been completed. Although the injury occurred after the work of transferring the bearing from a work bench to the machine had begun, the appellant had not moved from the work bench area, nor had the trolley commenced its journey back to the machine.

69 Barwick CJ with whom Kitto, Menzies, Owen and Walsh JJ agreed, said at 156: I am of the opinion that even if the respondent were engaged on a series of jobs of work, it could not be held upon the facts I have quoted that the respondent had begun to use a means of access to a place other than that at which he had performed the work of repairing the bearing. The appeal was allowed.

70 Turning to the circumstances in the present proceedings and having regard to the foregoing discussion, it is apparent that Mr Simpson and Mr Philpott were at a "place of work" when they were driving up the hill in the defendants' paddock counting cattle. That is, when the accident occurred the two men were involved in work. Once they had completed that work they intended to proceed to the floodgate in order to arrive at another place of work. In other words, the two tasks were quite different and did not constitute "one set of operations".

71 The route they were to take to the floodgates would be the means of access to that other place of work. However, given they were still counting cattle at the time of the accident, and absent evidence to the contrary, there must be reasonable doubt that the men had commenced their journey to the other place of work - the floodgates. Consequently, there must be reasonable doubt Mr Simpson and Mr Philpott were using a means of access to the floodgates or a means of egress from the place of work where cattle were being counted.

72 As to the access to the hill on which the accident occurred, it seems to me that once Mr Simpson and Mr Philpott entered the paddock where the cattle were, they were at a place of work. Mr Simpson's evidence was that the cattle to be counted "were all in the area of the paddock", not just on the plateau of the hill. So it could not be said that in taking a route up the hill Mr Simpson was using a means of access to a place of work, because he was already in the place of work. There was no issue about the means of access to the paddock gate where the cattle were to be counted.

73 Whether one regards the whole of the Bundabindi property as a place of work or the alternative approach is taken of regarding the paddock where the accident occurred as a separate place of work to the floodgates, the conclusion is the same. Mr Simpson and Mr Philpott were not using a means of access to or egress from a place of work under the defendants' control.

Particular (c): Alleged failure to provide information, training, instruction and supervision in relation to use of motor vehicle

75 Here it was alleged that the defendant failed to provide such information, training, instruction and supervision in relation to the work involving use of the motor vehicle as may be necessary to ensure health and safety in that: (i) The driver had not received accredited instruction and assessment in the safe operation of four-wheel drive vehicles under varying conditions and situations. (ii) No instruction or training was provided to its employees, including the deceased worker, in relation to the wearing of seatbelts at all times where practicable when engaged in farm work from motor vehicles.

76 In Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 at pars [58] and [59] the Full Bench made a number of observations regarding the obligations on employers to provide adequate training in order to equip employees to safely carry out their work: [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.

77 Notwithstanding that the employee in Genner Constructions had received training over a number of years, albeit informal and ad hoc, the Full Bench considered that it was not sufficiently systematic or comprehensive. This may be contrasted with the present case where there is no evidence whatsoever of what could remotely be described as training or instruction on the safe operation of farm vehicles, including four-wheel drive vehicles. As to the question of seat belts, I dealt with this earlier in the judgment.

Particular (d): Alleged failure to make available adequate information

79 Under this particular it was alleged that: The defendant failed to take such steps as were necessary to make available in connection with the use of the motor vehicle on the spur of the hill where it overturned adequate information about the use for which the motor vehicle was designed and about conditions necessary to ensure that when put to that use the motor vehicle would be safe and without risk. 80 The evidence was that there was no information made available to employees as described in particular (d). Particular (d) is made out.

81 I have already dealt with one aspect of the defendants' contentions regarding causation and that was in respect of seatbelts. However, a central plank of the defendants' case was that the provision and maintenance of a safe system of work and the provision of information, training, instruction and supervision would not have avoided the accident and that therefore, the "ingredient of causation had not been made out."

82 As I understand this contention it was that Mr Simpson had a high degree of experience and knowledge in the operation of four-wheel drive vehicles including their operation in steep country and that Mr Lord was aware of this. Consequently, this made any system of work or training, instruction or supervision superfluous to the extent if it had been provided it would not have prevented the accident occurring. To accept this proposition would be tantamount to accepting that any employee with knowledge and experience of a particular task or operation is not required to be provided with a safe system of work nor any training, instruction or supervision.

83 In any event, the issue is not whether the provision of such matters would have prevented the accident from occurring. What is necessary for the prosecution to establish is both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees: State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110 and particularly at 120-121; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 1R 432 at 449-450.

84 The risk to safety in this case was the prospect that the vehicle in which Mr Simpson and Mr Philpott were travelling might overturn on its ascent up what was, on the evidence, a steep and slippery slope and that as a consequence, the occupants of the vehicle might suffer injury. The failures of the defendants are as I have found them to be. However, in the context of determining this issue of causation these were a failure to provide and maintain a safe system of work and a failure to provide information, training, instruction and supervision. The issue is whether there was a causal relationship between the risk or detriment to safety that I have identified and the failures of the defendant.

85 It is a trite observation that employees in a familiar environment may become complacent about workplace risks. Employers are obliged to guard against such complacency by regularly and consistently reminding their employees of the risks. Mr Simpson had been the manager of Banoon since 1989. Not once in the period between 1989 and 2000 was he made aware or reminded by the defendants of the risks associated with operating four-wheel drive vehicles in steep country.

86 Nevertheless, as Fisher CJ observed in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209: In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged.

87 In the present case, as I have already observed, there was no system of work in relation to the safe operation of farm vehicles. Nor was there any training or information provided to employees in relation to such safe operation, nor any supervision, nor any instruction. If employees, including Mr Philpott and Mr Simpson, had been provided with training or information about the dangers of ascending steep and slippery slopes, about the need to avoid traversing across such slopes and or if they had been instructed about such matters and if the training, information or instruction had been provided in a coherent and systematic way throughout the course of the employee's employment, I consider the risk to safety would have been avoided. Accordingly, I consider a causal relationship existed between the defendants' failures and the risk to safety.

88 I am satisfied beyond reasonable doubt that on 19 October 2000 the defendants failed in the manner particularised in particulars (a)(i), (ii) and (iii) and particulars (c) and (d) in each of the charges to ensure the health, safety and welfare at work of their employees and in particular, Raymond John Philpott.

89 I find the offences under s 15(1) of the Act proven. I will hear submissions on penalty on a date to be fixed.

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