Inspector Warren Boyle v G C Maunder Custom Built Horse Floats Pty Ltd and Inspector Warren Boyle v Glenn Charles Maunder

Industrial Relations Commission (NSW)|2004-09-21|Before: Haylen J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Warren Boyle v G C Maunder Custom Built Horse Floats Pty Ltd and Inspector Warren Boyle v Glenn Charles Maunder [2004] NSWIRComm 271 PROSECUTOR Inspector Warren Boyle

PARTIES : DEFENDANTS: G C Maunder Custom Built Horse Floats Pty Ltd and Glenn Charles Maunder FILE NUMBER: IRC 5369 and IRC 5370 of 2002 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 15(1) and s 50(1) - pleas of guilty - some facts relied upon by prosecutor disputed by defendants - lack of satisfactory basis to make some findings of CATCHWORDS : fact against defendants - fatal accident resulting from method of towing very heavy cotton packing module - module clearly heavier than tractor used to tow it - lack of inquiry as to safe towing capacity of tractor - limited instruction and supervision provided - penalty imposed CASES CITED : WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd [2004] NSWIRComm 247)

HEARING DATES: 09/06/2004 DATE OF JUDGMENT: 09/21/2004

PROSECUTOR: Mr J Galluzzo of counsel SOLICITORS: WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANTS: Mr C Maunder in person for both defendants

JUDGMENT: - 1 - 4INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No. IRC 5369 of 2002 Inspector Boyle v G C Maunder Custom Built Horse Floats Pty Ltd. Prosecution under s 15(1) of Occupational Health and Safety Act 1983

Matter No IRC 5370 of 2002 Inspector Boyle v Glenn Charles Maunder Prosecution under s 50(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 271

INTRODUCTION 1 On 21 September 2000, a fatal accident occurred on the Coolah to Gunnedah Road approximately six kilometres out of Coolah. Mr Luke Van Den Hooff was driving a tractor and towing a large cotton compacting machine when the tractor was pushed off the road, breaking in two and leaving Mr Van Den Hooff with serious injuries from which he ultimately died. At the time of this accident, Mr Van Den Hooff was 19 years old, had farm experience including the towing of cotton and grain machinery, had performed this type of task on a number of occasions for his employer G C Maunder Custom Built Horse Floats Pty Ltd and had worked closely with that company's director, Mr Glenn Maunder.

2 Following an investigation by the WorkCover Authority and an inquest, G C Maunder Custom Built Horse Floats Pty Ltd was charged with a breach of s 15(1) of the Occupational Health and Safety Act 1983. Mr Maunder, as a director of that company, was charged under s 50(1) of the Act in relation to the s 15(1) offence.

3 A plea of guilty was entered in relation to both matters. Although previously legally represented, when the matter came on for hearing Mr Maunder appeared in person, gave evidence and made submissions on behalf of the defendant in both cases.

4 Counsel for the prosecutor tendered without objection a Statement of Facts as contended for by the prosecution but not totally accepted by the defendants. The matters in contention were outlined by counsel for the prosecution and later dealt with by Mr Maunder. Those matters seem to have been largely aired at the Coroner's Inquest. For present purposes, it is therefore appropriate to set out the substance of the facts as alleged by the prosecutor: 2. At all material times G.C. Maunder Custom Built Horse Floats Pty Ltd ('The Defendant') was a corporation whose registered office is situated at 105 Marius Street Tamworth in the State of New South Wales . 3. At the material times the defendant carried out a business of a cotton contractor. 4. At the material times Glenn Charles Maunder (DOB 7/7/1959) held the position of Director and Manager of the defendant Company. 5. At the material times the defendant was an employer. The defendant employed LUKE MARK VAN DEN HOOFF to drive farm equipment and to move agricultural implements from farm to farm and service the said equipment. 6. On 9 February 2000 the employer obtained a permit to operate an unregistered vehicle from the Roads and Traffic Authority. The vehicle was a Case International 5140 Series Tractor. This permit was conditional upon the vehicle being used solely for farming purposes. The permit expired on the 9th February 2001. The employer also obtained an Operator's Guide to Oversize Vehicle Movements (Permits for Agricultural Vehicles) from the Roads and Traffic Authority 7. On the 21st of September 2000 Luke Mark Van Den Hooff was assisting in the transfer of two Cotton Module Builders and a cotton picker from a farm property situate at Hillston New South Wales to a farm property owned by Glenn Maunder situate at Wallabadah near Quirindi New South Wales (the total travelling distance was approximately 550 kilometres.) 8. Luke Van Den Hooff's duties were to drive the Case International 5140 Series tractor (The Tractor") that weighed 5020 kg. Mr. Van Den Hooff also had to tow a cotton module builder and a load that weighed 12,995kgs. The manufacturer's specifications for the tractor allowed a maximum allowable towing/pulling load for the draw bar of 3,000kg un-braked towable mass. 9. At the relevant time the cotton module builder was carrying a load, which included two water tankers, this did not comply with Section 2 of the Roads And Traffic Authority Operator's Guide to Oversize Vehicle Movements Permit for Agricultural Vehicles, which prohibits carrying a load within the towed vehicle. 10. Travelling with Luke Van den Hooff, in convoy were Mr. Glenn Maunder, driving a Hydrostatic Cotton picker, Kathleen Maunder driving a pilot vehicle and another person, Luke Fellafi driving a Whyte tractor towing a cotton Module Builder. 11. The convoy had left Hillston at around 7.00 am on Wednesday the 20th of September 2000, stopped and camped the night about 30 kilometres south of Narromine. The convoy resumed its journey on the 21st of September 2000 at around 7.30am, stopping in Dubbo and Dunedoo. Each member of the convoy communicated with each other by radio. 12. During the journey between Hillston and Wallabadah, Luke Van Den Hooff informed Mr. Maunder that he had removed the front drive shaft from the tractor to prevent the front tyres from scrubbing and the differential from getting hot. However, by removing the front drive shaft of the tractor reduces its braking capability. 13. When approximately 6 Kilometres out of Coolah on the Coolah to Gunnedah Road the Cotton Module builder being towed by the tractor driven by Luke Van Den Hooff was seen to move from side to side when travelling downhill at around 20 kph. 14. The module builder pushed the tractor off the road and the tractor went into an embankment nose first and snapped in half. Luke Van Den Hooff suffered serious injuries. He was taken to Coolah Hospital by ambulance and later air lifted to John Hunter Hospital, Newcastle. Mr. Van Den Hoof died from injuries received from the collision shortly after arriving at John Hunter Hospital. 15. There was no information, instruction, training or supervision provided to the employee in the tasks of towing the cotton module builder behind the Case 5140 tractor. 16. The employer did not provide an adequate towing vehicle for the towing of the cotton module builder. 17. The employer allowed the towing vehicle to tow farm equipment that was in excess of the manufacturer's specifications. 18. The Defendant, GC Maunder Custom Built Horse Floats Pty Limited (ACN: 061 081 178) has pleaded guilty to an offence under section 15(1) of the Occupational Health and Safety Act 1983 that being an employer, on 21 September 2000 at approximately 6km from Coolah NSW on the Coolah to Gunnedah Road in the State of New South Wales, it failed to ensure the health, safety and welfare of its employees at work in particular, Luke Mark Van Den Hooff. 19. The defendant, Glenn Charles Maunder, date of birth 7 July 1959, has pleaded guilty as a director of the said company and is deemed to have contravened section 15(1) of the Occupational Health and Safety Act 1983 pursuant to section 50(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: (a) Custom Built Horse Floats Pty Ltd, at all material times, employed a number of persons, including Luke Mark Van Den Hooff; (b) Custom Built Horse Floats Pty Ltd, at all material times, carried on the business of a cotton contractor at various locations in New South Wales; (c) Custom Built Horse Floats Pty Ltd failed to provide or ensure use of an adequate towing vehicle for towing an agricultural implement being a cotton module builder ("The module builder"); (d) Custom Built Horse Floats Pty Ltd failed to provide or maintain a safe system of work for the towing of the module builder upon a public road; (e) Custom Built Horse Floats Pty Ltd allowed Luke Mark Van Den Hooff to use a Case International 5140 Series Tractor as the towing vehicle, which was not adequate for the purpose of towing the module builder; (f) Custom Built Horse Floats Pty Ltd failed to adequately supervise the employee by: (i) allowing the employee Luke Mark Van Den Hooff to remove the front drive shaft of the towing vehicle and thereby reduce the braking capability of the towing vehicle; (ii) not ensuring that the towing of the cotton module builder was carried out in a safe manner. (g) Custom Built Horse Floats Pty Ltd failed to comply with Section 2 of the Roads And Traffic Authority Operator's Guide to Oversize Vehicle Movements Permit for Agricultural Vehicles by allowing a load to be carried within the module builder; (h) Custom Built Horse Floats Pty Ltd failed to comply with manufacturer's specifications for the towing vehicle (Case International 5140 Series Tractor). (i) Custom Built Horse Floats Pty Ltd failed to provide an adequate braking system for the module builder vehicle; (j) Custom Built Horse Floats Pty Ltd failed to provide such information, instruction and training as were necessary to ensure the health and safety of its employees at the said workplace to ensure that the towing of the cotton module builder was carried out in a safe manner. (k) The defendant Glenn Charles Maunder, being a director of G C Maunder Custom Built Horse Floats Pty Limited and was present at the site of the accident near Coolah, in the State of New south Wales; (l) The defendant Glenn Charles Maunder, being a director of G C Maunder Custom Built Horse Floats Pty Limited, is deemed to have contravened section 15(1) of the Occupational Health and Safety Act 1983, pursuant to section 50(1) of the said Act. As a result of the said failures Luke Mark Van Den Hooff was placed at risk of injury .

5 In relation to paragraph 8 of the prosecution's Statement of Facts, it was accepted that the maximum allowable towing or pulling load of 3000kgs was not found in the manufacturer's manual. The prosecution also pointed out that the defendants contested paragraph 9 of the Facts, asserting that the cotton module was not carrying "a load" for the purposes of the Roads and Traffic Authority's Operators Guide - the water and fuel tanks were asserted to be part of the equipment used for bailing cotton. It was also clear from the defendants' evidence that there was no further training or supervision that, practically, could have been given to Mr Van Den Hooff since Mr Maunder's knowledge was gained from his father and by his long time participation in farming activities.

6 Inspector Boyle's Factual Inspection and photographs describe the state of the tractor which was torn into two parts by the impact. It was noted that in the cabin there were no seat belts fitted, that the overall length of the cotton module was 14 metres including the A frame, and its overall width was 3.7 metres. The height of the bin was 2.7 metres measured between the top and bottom rail of the module. It was noted that inside the module were two trailer combinations sitting on a platform that was part of the cotton pressing frame and contained within the module. The two trailers did not appear to be secured and appeared to be used to hold water or chemicals for the purpose of spraying crops. In evidence, it was confirmed by Mr Maunder that the tanks were used for holding water and fuel but were empty when being transported.

7 Mr Maunder had obtained a permit to operate an unregistered vehicle from the Roads and Traffic Authority: that permit was endorsed "vehicle must be used solely for farming purposes". The Roads and Traffic Authority "Operators Guide to Oversized Vehicle Movements - Permits for Agricultural Vehicles" was tendered by the prosecutor and it was noted that the defendants had obtained a general permit rather than a specific permit for "agricultural combinations". A note at the relevant part of the Operators Guide stated: "an agricultural implement must not carry loads". The Operators Guide did not appear to limit the distance over which "agricultural combinations" might be moved or towed although there was a reference to agricultural vehicles or combinations between 5 and 6 metres wide travelling from the western to the eastern zone to reach another property, or for servicing, and being able to do so under a general permit but for a distance not greater than a 20 kilometre radius from where the vehicle was usually kept. In terms, there seemed to be no prohibition or limitation on the length of distances that the module may be towed if the Operators Guide applied. In relation to the restrictions on agricultural implements carrying a load, the glossary within the Operators Guide defined "load" as: In relation to a vehicle or combination, includes anything that is normally removed from the vehicle or combination when not in use. It does not include: (i) tools, equipment or substances necessary for the vehicle or combination to function, or for any load to be restrained, or (ii) personal items used by the driver.

8 The prosecutor accepted that neither defendant had a previous conviction under occupational health and safety or associated legislation.

9 In his affidavit evidence, Mr Maunder noted that the tractor weighed 5,020 kilograms and that information was in the Operators Manual. However, when he bought the tractor second-hand it did not have a manual and he was unaware of its weight. He had used the tractor between February and June 1999 moving module builders and towing machinery from Emerald to Moree, Moree to Menindee Lakes and Menindee Lakes back to Wallabadah. The company had two cotton module builders and one "buggy" for 1999 and three tractors to tow this equipment over distances of about 2400 kilometres in a season. In the 2000 season, the tractor in question towed the same equipment between the same towns but had also travelled as far as Emerald from Wallabadah, travelling approximately 3,300 kilometres in total.

10 Mr Maunder was aware through WorkCover that the manufacturer of the tractor specified that the maximum load was 3,000 kilograms towable mass. Mr Maunder said he purchased the tractor relying on its horsepower as being adequate to tow the cotton equipment and said that, within the cotton industry, average horsepower was the standard for deciding what load could be pulled. In his view, towing capacities for tractors was a farming issue and was decided on the horsepower needed for pulling machinery or moving things about paddocks. Road towing, however, was an uncommon application for tractors with very limited safety information given in the handbooks and none given by the Road Traffic Authority. It was his experience that, when wheel slippage or hopping occurred while towing with a tractor, that meant that the load was too much. He had never been told that any tractor could safely pull only a certain or specified load.

11 Following the accident, Mr Maunder had located two manuals for the Case tractor but there were difficulties in determining which manual applied to his particular tractor. Both manuals referred to the maximum operating weight of the tractor (including the tractor, tractor equipment and ballast) but there was no reference in either manual to the maximum load that the tractor could tow. Mr Maunder also made enquiries about the weight of cotton module builders but was unable to find tractors weighing as much as the cotton modules. In his experience, very few contractors towed cotton module builders with trucks. It appeared to Mr Maunder that everyone towing cotton module builders on the roads with a tractor was therefore operating illegally, but the majority of operators still towed cotton module builders as he was doing when this accident occurred.

12 The tractor was not required to be registered and was not registered. Mr Maunder had obtained a permit from the Roads and Traffic Authority for his self-propelled agricultural vehicles. Thus there was no permit for the cotton module builder but one for the tractor. He noted that the permit limited the use of the tractor "... solely for agricultural purposes", which in his view was the way in which the tractor was being operated. The obtaining of the permit was what he believed was required of him and he always gave the Roads and Traffic Authority all the information they sought whenever questioned by the Roads and Traffic Authority.

13 The cotton module builder had been brought privately second hand and came without a handbook. There was no information about the weight of the module and Mr Maunder had never been asked the weight of it when seeking a permit. Indeed, he had never been asked the weight of any of the equipment to be towed when obtaining a permit. Following the accident, the Roads and Traffic Authority now required the weight of the equipment to be supplied. Although contesting the method of weighing accepted by WorkCover, Mr Maunder appeared to concede that the cotton module weighed 12,995 kgs.

14 Mr Maunder contested the proposition that the cotton module was carrying a load. He accepted that there were two trailers within the module and that they were secured. He had modified the module himself for this purpose. One of the trailers carried two plastic water tanks which were empty. There was also a fuel tank. Mr Maunder considered the water tanks as part of the equipment because they were used with the builder in the field and travelled with the module builder. This was because cotton was flammable and both the cotton module builder and the picker could easily catch on fire during the picking operation. Mr Maunder had experienced a number of fires in the module builder. In those circumstances, the water trailers were always in the vicinity to extinguish any fire. The other trailer was a small unregistered box trailer used to pick up excess spilt cotton from around the module builder. This trailer was used because the module builder was too high to allow cotton to be thrown back into the module without risk of injury. The cotton was put into the box trailer and its contents loaded into the back door of the module builder.

15 Mr Van Den Hooff had worked for the defendants from May 2000 to the date of the accident on a casual basis. He had driven the tractor involved in this accident in the field and helped operate the cotton module builder. He had moved the module builder and the buggy up and down paddocks for up to 8 kilometres over ditches and large dams and in difficult terrain, driving it at speeds up to 25 kilometres per hour. Mr Maunder could only remember Mr Van Den Hooff making one mistake, when he got bogged, but the tractor was extricated by using its four wheel drive without any damage. All the machinery was serviced on a daily basis including checking for hydraulic oil leaks and fatigue cracks. The machinery had been serviced by Mr Maunder and a licensed mechanic and the machines were fully serviced before the season started: Mr Van Den Hooff had also helped maintain the machinery in a reliable condition. Mr Van Den Hooff had told Mr Maunder that he had previous experience in driving a tractor and a bulldozer.

16 Mr Maunder described the training provided to Mr Van Den Hooff, which included showing him the operator's handbook for the tractor and telling him to always wear a seat belt and drive safely. He was told how to perform the tasks and they were observed so that Mr Maunder could assess his performance. He was shown areas of risk and the dangers to be avoided for his own safety and the safety of fellow workers. Amongst the things he was told was to leave the brake pedals locked together and to use the power shift gears to slow down, using the brakes last and only very lightly so no wheel skidding occurred. He was told that, if he felt unsafe with any task, he was not to carry it out. Mr Van Den Hooff appeared competent and keen to continue working with the tractors for the defendants.

17 In the events leading up to the accident, Mr Maunder said that he had a received a telephone call from Mr Van Den Hooff saying that he had removed the front tail shaft because the switch would not disengage and the front tyres were "scrubbing". Mr Maunder explained that the switch sometimes did not turn off because of dust clogging which resulted in the machine constantly being in four wheel drive. Removing the front tail shaft was a means of transferring the tractor to two wheel drive, and apparently Mr Van Den Hooff was aware of that fact from previous experience. Mr Maunder said they were both aware that being in four wheel drive meant that the front tyres wore dramatically, causing the tyres to "scrub" and run the risk of blowing out. This could occur in one journey over the distances travelled in this business. It was also said that four wheel drive could make the tractor feel slightly unstable because all four wheels influenced traction, causing it to move about a bit whereas two wheel driving felt more like driving a car. When told that the tail shaft had been removed, Mr Maunder asked if the tractor was safe, to which Mr Van Den Hooff replied that it was just like driving a two wheel tractor and that it had stopped scrubbing the front tyres.

18 Mr Maunder challenged the WorkCover assertion that using four wheel drive increased the braking capacity of the tractor. He stated that he always understood that four wheel drive had no impact on braking capacity, and indeed, at the Inquest the experts agreed that having the tractor in four wheel drive would not have increased its braking capacity.

19 The length of this particular trip had meant that there was a need to camp out overnight. He had urged the team, including Mr Van Den Hooff, that they should rest rather than try to rush home, especially in circumstances where the next job did not require that response. Mr Maunder also gave evidence of checks he had made with Mr Van Den Hoof about the balance of the load on the tractor and the steps taken to address that issue.

20 On the day of the accident, members of the team were in contact by radio. Mr Maunder was driving at the rear of the convoy of vehicles because he had the best rear vision mirrors and was able to radio those in front of him about what was coming so that they would have room to slow down and move over when necessary. Coming up to a hill at Coolah, the gearing of his machinery required that he pass the tractor driven by Mr Van Den Hooff and as he descended the hill he noticed his machine "leapfrogged over a hump in the road". Mr Maunder said he became concerned because Mr Van Den Hooff's tractor had a faster capacity: he was worried about the tractor coming down the hill faster, trying to catch up with the rest of the team, and hitting that bump at speed. Because of that concern, Mr Maunder radioed Mr Van Den Hooff telling him to slow down coming down the hill and to take it easy because there was a bit of a hump in the road. He could not remember Mr Van Den Hooff's response. Mr Van Den Hooff told Mr Maunder that he had changed down a gear going up the hill and that the temperature had gone up a bit but seemed to be okay. The team had got about 300 - 400 metres in front of Mr Van Den Hooff and had slowed down waiting for him to catch up. That had been communicated by radio between them, but a truck going past then radioed and told them about the accident.

21 Mr Maunder considered a number of possibilities which may have led to the accident such as whether the tractor was in gear and whether the smoking tyres meant that the brakes had been improperly applied whereas the gears of the tractor were to be used to slow it down. There were a number of matters he thought had not been considered in the investigation of the accident.

22 Mr Maunder believed that he was totally within the Roads and Traffic Authority's guidelines and had spent time and money to ensure he complied with the guidelines. He emphasised that, had he been driving the tractor in question, he would not have done anything different in terms of the load or even the four wheel drive being disengaged. He regarded Mr Van Den Hooff as competent by observing his previous trips and because of his farm experience and other experience before he started working for the defendants. Mr Maunder was unable to think of any other training that Mr Van Den Hooff could have received.

23 After the accident, the police kept the cotton module builder for several weeks in order to weigh and measure it, and for the WorkCover Authority investigation to be completed. When it was released by the police, Mr Maunder said he was able to use the other tractor and module builder for the rest of the journey and he was not informed that there was any problem with its weight. He remained unaware of that fact until notified of the problem a considerable time later by the WorkCover Authority.

24 Mr Maunder spoke of his liking for Mr Van Den Hooff and his distress at the accident: he retained a mental image of the accident every time he moved the tractor. He visited Mr Van Den Hooff's mother after the accident and still remembers vividly how upset she was. As a result of the accident, he was reluctant to take on younger employees or to train them. He expressed the view that the laws about moving agricultural machinery were so ill-defined that he had become stressed in attempting to work out the best way to perform the work.

25 The company G C Maunder Custom Built Horse Floats Pty Ltd was in debt before this accident because of the cost of machinery. It went further into debt to attempt improve the equipment but that did not bring in more income. In oral evidence, Mr Maunder said he had stopped using the tractors to tow the module and had moved to the use of trucks, which added to the cost of the job because more experienced drivers with heavy vehicle licences were required. He was still uncertain whether the trucks being used were suitable for towing the module. The company had also been affected by the drought. Financial returns for the previous two years disclosed that the company had suffered significant losses. Mr Maunder said he had no assets of any significance except his shares in the company.

26 The first matter to be considered is the objective seriousness of the offence. The prosecutor argued that, bearing in mind the size of the tractor, its specifications in relation to towing and the size of the module, it was clearly foreseeable that the vehicle being towed was far too heavy and that a serious accident could occur. I accept that submission. To the extent that reliance was placed on the conversion of the tractor from four wheel drive to two wheel drive thus decreasing the effective braking capacity of the tractor, I am not satisfied that the evidence before this Court supports such a proposition. The most important matter was the failure to check the tractor manual or to make enquiries of the manufacturer as to its towing capacity. Even without knowing the precise weight of the module, a fact which could have been established by reference to the manufacturer or a manufacturer's manual, it would have been obvious that the module far outweighed the tractor: this obvious fact should have placed the defendants on alert as to the towing capacity of the tractor.

27 The application of the Roads and Traffic Authority's Operators Guide and the permit which was limited to agricultural use only, is less clear cut. Mr Maunder believed he was doing all that was necessary of him by obtaining the permit from the Roads and Traffic Authority, but there was no discussion nor did he raise with the Roads and Traffic Authority the nature of the module to be moved nor the distance over which it was to be moved. From the tone of the comments made by the Coroner, the lack of knowledge within the Roads and Traffic Authority about these matters may have been such that Mr Maunder would not necessarily have been advised differently in relation to the use of this tractor in the operation. The Operators Guide does not appear to restrict the distances over which these agricultural vehicles were to be moved and I am unable to accept the prosecution case that the permit was effective only over relatively short distances and was not an approval for the continuous journeys of the type undertaken by the defendants. Further, the discussion before the Coroner indicated that other legislation possibly affecting the towing of this agricultural equipment was so complex that no easy answer as to the proper means of regulation of these movements could be forthcoming. On the material presented by the prosecutor in this case, I am unable to conclude that the defendants had not obtained a proper permit or that they had in some way exceeded the bounds of that permit by the frequency and distances of the journeys undertaken in towing the modules. Nor am I satisfied that the carrying of the empty water and fuel tanks on a trailer within the module was an impermissible "load" under the Roads and Traffic Authority's guide. The material presented and relied upon by the prosecutor suggests that these are complex questions: I am not prepared to rule authoritatively upon them without a thorough examination of the various pieces of legislation mentioned by the Coroner as being relevant to these issues but which remain unidentified in these proceedings.

28 In relation to the lack of supervision and training, the evidence disclosed that the defendants had a simple and uncomplicated system of work but one which did address safety issues. Mr Maunder was quite frank in stating that his training had come from his father and through his experience as a farmer, and that appears to have been the way in which Mr Van Den Hooff obtained his training and experience. Mr Maunder had told Mr Van Den Hooff about the peculiarities of the machine in a number of respects and had observed him operate the machines and towing them over distances and had satisfied himself as to the safe method of operation adopted by Mr Van Den Hooff. The failure to train and properly supervise in essence therefore focuses upon the failure to check the manual or make enquiries as to the towing capacity of the tractor and then to ascertain its capacity to haul such a significant weight as represented by the module. Otherwise, Mr Maunder's fairly rudimentary system of safety nevertheless involved communication by radio, regular stops, regular servicing of the machinery and discussions about the work to be performed: in these respects, for many of the tasks, that rudimentary system may nevertheless have been adequate to ensure the safety of employees other than in the actual towing of this module by this particular tractor. The inadequacy of instruction provided is highlighted by the fact that when Mr Van Den Hooff advised Mr Maunder that he had removed the front drive shaft, Mr Maunder asked if the tractor was safe. He should have been in a position to advise this young and relatively inexperienced driver of the consequences of such an action. Further, although Mr Maunder stated that he had instructed Mr Van Den Hooff to use seat belts the Inspector's report showed that no seat belts were fitted to the tractor.

29 Quite apart from the terrible consequences of this accident, the circumstances surrounding the towing of the module by this inadequately powered tractor results in a finding that this was indeed a serious breach of the Occupational Health and Safety Act. It was common ground that the maximum penalty in relation to the corporate defendant was $550,000 and that for Mr Maunder, as a director, the maximum penalty was $55,000.

30 The evidence in this case discloses that both general and specific deterrence have a role to play in the setting of a penalty. Mr Maunder's evidence and submissions demonstrated that this use of tractors remained widespread in regional and rural areas of New South Wales and posed an ongoing threat to the safety of employees. The Coroner had made recommendations in light of the complex legislative scheme surrounding the use of agricultural vehicles and this case should serve as an example to the rural community of the risks inherent in operations of this kind. In relation to specific deterrence, the defendants continue to operate their business using the modules, although now utilising trucks driven by experienced drivers possessing heavy vehicle licences.

31 Having regard to the nature of this matter, although it was mentioned on a number of occasions, the material before the Coroner suggests that there were reasons for the defendants to consider a number of the aspects of the charge before entering a plea of guilty. A plea of guilty was entered while the defendants were still legally represented and I regard the plea as being properly entered. That plea was re-affirmed at the beginning of the hearing on penalty. Considering all of these matters, I am satisfied that this plea was sufficiently early and its utilitarian value of such significance that the defendants should be entitled to a 25 per cent discount for their plea.

32 In the affidavit and in his presentation in Court, Mr Maunder stated that he was very shaken by this accident and the loss of a young man's life. He has shown contrition and has taken steps to address the detriment to safety exposed by the accident and has done so at considerable cost to his business in times when the drought has had its own effects. The defendants are also entitled to have taken into account their good industrial record. For these matters, the defendants are entitled to a further discount of 10 per cent bringing the total discount to 35 per cent.

33 Although the evidence was general and somewhat unsatisfactory the Court is required to consider such information as is available regarding the means of the defendants in fixing the amount of the penalty. Mr Maunder gave general evidence about increased expenditure in switching from the use of a tractor to the use of a truck with a licensed driver, although that additional cost was not quantified. The financial records of the company showed a loss for the last two financial years and bank statements showed a small amount of money available to Mr Maunder. He said his business had been affected by the drought and that his ability to continue in business depended substantially upon the continuation of support from lending institutions. Mr Maunder stated the only other assets he had were shares in the business but he did not mention the circumstances regarding the farming property he operated, its value or his share of it, if any. The prosecutor accepted that the defendants were in difficult financial circumstances but did not cross-examine to establish precisely what were the financial circumstances of each of the defendants. The Court is left in the unsatisfactory position of being unaware of the effect of a significant penalty imposed for a serious breach of the Act and whether it would be likely to lead to the closure of the business, a reduction in employment in a rural community, or any of the flow-on effects of steps that the defendants may take to cope with the obligation to pay a substantial fine. The Full Court has recently drawn attention to the need to establish a proper evidentiary basis when a defendant requests that its financial position be taken into account when setting a penalty (see WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd [2004] NSWIRComm 247).

34 In considering the financial position as disclosed by the evidence, I take into consideration the fact that Mr Maunder represented himself and the corporate defendant and could not be expected to present evidence of his financial affairs in the same detail and with the same focus as might be expected if he had been represented by counsel or a solicitor. I am prepared to set a penalty on the basis that Mr Maunder's and the company's financial position are such that some financial assistance is likely to be required from the lending institutions with which he deals. I have also concluded that it is appropriate in this case to specify a period over which the penalty may be paid. This course appears to be open to the Court having regard to the fact that the proceedings were commenced pursuant to the provisions of the Supreme Court (Summary Jurisdiction) Act 1967 and were able to be continued and finalised as if that Act continued to apply. Section 16 of the Summary Jurisdiction Act permits the Court, amongst other things, to make an order directing the payment of monies by instalments.

35 Bearing in mind the matters referred to above, the Court makes the following orders: In Matter No 5369 of 2002 relating to G C Maunder Custom Built Horse Floats Pty Ltd: (a) The defendant is convicted of the offence with which it was charged under s 15(1) of the Occupational Health and Safety Act 1983 and to which it pleaded guilty. (b) The defendant is fined the sum of $91,000 to be paid as follows: (i) a first instalment of $30,000 to be paid within four months of the date of this judgment; (ii) a second instalment of $30,000 to be paid within four months of the payment of the first instalment; and (iii) a final instalment of $31,000 to be paid within four months of the payment of the second instalment. (c) Moiety of the total penalty in favour of the prosecutor. (d) The defendant is to pay the costs of the prosecutor as agreed or assessed in accordance with the Rules of the Court. In Matter No 5370 of 2002 relating to Mr Maunder: (a) The defendant is convicted of the offence with which he was charged under s 50(1) of the Occupational Health and Safety Act 1983 in relation to the breach of s 15(1) of that Act by G C Maunder Custom Built Horse Floats Pty Ltd, a company of which the defendant was a director. (b) The defendant is fined the sum of $13,750 payable by instalments as follows: (i) a first instalment of $5,000 payable within four months of the date of this judgment; (ii) a second instalment of $5,000 payable within four months of the payment of the first instalment; (iii) a third and final instalment of $3,750 payable within four months of the payment of the second instalment. (c) Moiety of the total penalty in favour of the prosecutor. (d) The defendant is to pay the costs of the prosecutor as agreed or assessed in accordance with the Rules of the Court.

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At a glance

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Judgment (45 paragraphs)

Cases Cited (1)