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

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 [2004] NSWIRComm 78

1 Nowra Truck & Farm Equipment (Holdings) Pty Limited, Brunning Investments Pty Limited and Nubley Bros Service Pty Limited ("the defendants") in partnership own two rural properties known as "Banoon" and "Bundabindi". The partnership trades under the name "Banoon Pastoral Company". On 19 October 2000 an employee of the defendants, Raymond John Philpott, was fatally injured when the vehicle he was travelling in overturned in a paddock on the Bundabindi property. The defendants were each charged with an offence under s 15(1) of the Occupational Health and Safety Act 1983.

2 In Inspector Russell Webb v Nowra Truck & Farm Equipment (Holdings) Pty Limited/Brunning Investments Pty Limited/Nubley Bros Service Pty Limited [2003] NSWIRComm 340, each of the defendants were found guilty of the offence with which they were charged.

3 The charge in each case was that: [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.

4 The circumstances leading to Mr Philpott's death were described in the previous judgment as follows: 3 On 19 October 2000 Mr Simpson [the manager of the properties and an employee of the defendants] 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.

5 The Court found as follows: 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.

7 In the earlier judgment the Court found that the use of the four-wheel drive (4WD") vehicles supplied to employees by the defendants on the properties included their use "off-road", both on and off "tracks". However, the Court found none of the defendants' employees had undertaken any form of training in four-wheel driving. Nor did the defendants provide their employees with any training or information relating to the use and operation of 4WD vehicles. The Court found there was no evidence that Mr Simpson put in place a safe system of work. The Court said at [41]: 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.

8 At best the defendants' employees were told that "...they should not do anything stupid" and the wearing of seatbelts whilst travelling in the 4WD vehicles was left to the discretion of the individual employees.

9 Both Mr Lord, the managing director of Banoon Pastoral Company and Mr Simpson were aware prior to the subject incident that the operation of 4WD vehicles involved safety considerations, including the risk of "roll-overs" in "steep terrain". Both Mr Lord and Mr Simpson knew prior to the subject incident that it was the practice of the defendants' employees not to wear seatbelts whilst driving on the properties even at speeds of up to 60 kilometres per hour on dirt roads and whilst they were operating 4WD vehicles off road. No steps were taken to assess and/or to control these risks.

10 I agree with the submission by the prosecutor that there were no practical reasons why the defendants could not have required their employees to wear seatbelts when operating in circumstances of increased risk, such as when travelling at speed, or operating off road in steep or hilly country.

11 In assessing the objective seriousness of the offence the Court is required to have regard to, amongst other considerations, the nature and quality of the offence and whether it involved obvious and foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. 12 The failure of the defendants to provide any of the basic elements of an occupational health and safety system, such as a safe system of work and/or safe work methods, together with basic training and information, represents, as Mr M Cahill of counsel for the prosecutor submitted, an abrogation of their obligations as employers under the Act.

13 It was not sufficient for the defendants to leave it to employees, no matter how long they had been driving 4WD vehicles, to determine how best to ensure their safety. As the Full Bench in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Construction Australia Limited (2002) 123 IR 121 observed at [78]: Thus, in order to meet the requirements of s15 of the Act, 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. That is, to reiterate what was stated by the majority in Cullen v State Rail Authority (at 219): In order to ensure such a system was safe as required by s15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case."

14 It was, in my opinion, reasonably foreseeable, that if employees did not wear seat belts when operating 4WD vehicles in steep and rocky terrain, the vehicle might roll over and put driver and passenger at risk of injury. 15 I agree with the submission put by the prosecution that had the defendants' put in place the simple precaution of requiring its employees to wear a seatbelt whilst undertaking off-road hill climbs in 4WD vehicles, the risk of injury from roll-overs to its employees, in general, and in particular the risk of injury to Mr Simpson and Mr. Philpott, would have been greatly reduced and possibly avoided.

16 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case Mr Philpott suffered fatal injuries manifesting in my view the serious risk associated with not ensuring employees were properly trained and instructed in the operation of 4WD vehicles including the use of seat belts.

17 A further consideration is whether and to what extent any penalty should reflect the need for general and specific deterrence. In relation to the question of general deterrence it was said in the earlier judgment at [18] and [33] that: 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. … 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.

18 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. In this case I accept what was said in evidence by the defendants that the non-use of seat belts was a universal and accepted practice within the farming community and environment. In those circumstances, any penalty must reflect the need for general deterrence.

19 As to the question of specific deterrence, evidence was given by Mr Lord that the defendants have upgraded roads and access to paddocks on the property; instructions have been given to employees to wear seatbelts at all times; employees have been given expert instruction in the operation of 4WD vehicles and occupational health and safety practices generally; and, an occupational health and safety committee has been established that meets monthly. The defendants have taken appropriate steps to avoid the prospect of re-offending. Therefore, any penalty should not reflect a significant amount for specific deterrence.

20 The maximum penalty prescribed for an offence is also a consideration when assessing the objective seriousness of the offence. In this case it is $550,000 for each defendant.

21 The defendants are entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the subject offence. The defendants co-operated with the WorkCover Authority in its investigation of the subject incident and the partnership made its employees, together with Mr Lord, available to be interviewed by the Authority. The defendants have no prior convictions and have taken prompt and appropriate steps to avoid a re-occurrence of the incident as well as steps to improve occupational health and safety policies and practices generally.

22 The question of parity in sentencing arises. In the present case, the objective features of the offences are identical, as is the maximum penalty applicable in each case. Any sentence should reflect these circumstances.

23 The interrelationship of the three defendants is a matter to be taken into account. The shareholdings in the three defendants are as follows: · Nowra Truck and Farm Equipment (Holdings) Pty Ltd: Mr Lord (or his family); Mr David Daley, Mr Lord's brother.

· Nubley Bros Service Pty Ltd: Mr Lord, Mr Daley, Mr Tony Donnelly and Mr Brian Nubley. 24 As the Full Court found in Haynes v C I & D Manufaturing Pty Limited (No 2) (1995) 60 IR 455 at 458 I also consider there was a close relationship between the three defendants such that I should view the offence in a global way. It may be seen that there was a significant overlapping of shareholdings and the three defendants operated Banoon Pastoral Company in partnership. I am of the view that the objective seriousness of the offence calls for a penalty of $180,000. This should be discounted by 10 per cent for subjective factors resulting in a penalty of $162,000. The three defendants should bear the fine equally so that each defendant is fined $54,000.

25 Each of the defendants is convicted of the respective offences; Nowra Truck and Farm Equipment (Holdings) Pty Ltd, Brunning Investments Pty Ltd and Nubley Bros Service Pty Ltd is each fined $54,000.

26 The prosecutor is to have a moiety of each of the fines.

27 The defendants shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to any of the parties to approach the Court for final orders as to costs.

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