Inspector William Hopkins v Michael Wherritt t/as M J Wherritt Concrete Pumping Services. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

Evidence - s 184 and s 191 Evidence Act - status of agreed facts LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) Evidence Act 1995 s 184 s 1991 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Haynes v CI & D Manufactruing Pty Ltd & anor (1995) 60 IR 45 R v Olbrich (1998) 45 NSWLR 538 R v O'Neill [1979] 2 NSWLR 582 at 580 CASES CITED : R v Smith [1981] 1 NSWLR 193 WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Training Co Pty Ltd WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Ltd [2001] 106 IR 258 WorkCover Authority of New South Wales (Inspector Dall) v R R & D Enterprises (Newcastle) Pty Ltd [2001] NSWIRComm 329 HEARING DATES: 12/03/2001 EXTEMPORE JUDGMENT DATE : 02/15/2002

PROSECUTOR: Mr P Skinner of counsel SOLICITORS: Gordon Henderson PriceWaterhouseCoopers LEGAL REPRESENTATIVES:

DEFENDANT: Mr J Phillips of counsel SOLICITORS: Glasheen & Quilty

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 15 February 2002

Matter No. IRC 673 of 2001 Inspector William Hopkins v Michael James Wherrit t/as M J Wherrit Concrete Pumping Services. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2002] NSWIRComm 16

1 In February 1999, the defendant, Mr M J Wherrit, operated a concrete pumping business and employed Mr John Vincent Said. In the course of removing a concrete pumping unit from an imported truck, which was otherwise unfit for use in New South Wales, Mr Said disconnected the drive shaft whereupon, it seems, the brakes disengaged and the 17.5 tonne truck moved forward crushing Mr Said and killing him.

2 On 12 February 2001, Mr Hopkins, an Inspector for the WorkCover Authority of New South Wales, applied for an order requiring Mr Wherrit to appear before the Commission in Court Session to answer a charge under s 15(1) of the Occupational Health and Safety Act 1983. The matter was first mentioned in March 2001 and, by 17 May 2001, it was indicated at a further mention that a plea of guilty was to be entered.

3 At the hearing to receive the evidence and submissions on the plea of guilty the parties tendered an Agreed Statement of Facts. It was accepted that Mr Wherrit was an employer and thereafter the relevant Agreed Statement of Facts provided as follows: 3. At all material times the Defendant: (a) was engaged in the business of servicing, deconstruction, reconstruction and maintenance of concrete pumps; (b) had an imported 17.5 tonne Hyundai bogie drive rigid truck ("the truck") which was to be decommissioned at the premises after the removal of a Schwing concrete pumping unit, Serial Number 70215273, ("the pumping unit") from the truck;. (c) employed John Vincent Said as an auto-dismantler and as a fitter at the premises: 4. On 12 February 1999 the Defendant arranged for Mr Said to remove the pumping unit from the truck. 5. The pumping unit was to be removed from the truck, stripped, sand blasted, repaired and then mounted on to a new truck. 6. At about 6.30 a.m. on 13 February 1999, Mr Said arrived at the premises for his first day of work and shortly afterwards he commenced on work on the truck by proceeding to remove the tailshaft. The truck rolled forward, down the sloped concrete ramp on which it was located ("the concrete ramp") and trapped Mr Said under the rear bogie wheels causing fatal crush injuries to Mr Said. 7. On 13 February 1999, Inspectors of WorkCover Authority of NSW attended the premises and observed the following: (a) the scene of the accident and the heavy haulage transport company yard signed as "Blue Line Transport"; (b) a driveway leading into the yard; (c) fine weather conditions with little to no wind: (d) a yellow coloured bogie drive rigid chassis truck ('the truck') parked on a sloping concrete apron; (e) a yellow coloured articulated chassis tractor crane parked immediately in front of the truck; (f) the letters "Schwing Concrete Pump" in black lettering on the off-side of the truck which was a left hand drive truck; (g) the letters "Hyundai" in white lettering between the headlights of the truck; (h) the letters 'No. 1 and International" on the tractor crane; (i) all four outriggers of the truck were extended approximately one metre with all outrigger jacks retracted, not touching the ground; (j) the truck was facing down the slope of the concrete apron with the rear of the truck approximately 7.5 meters from a metal clad workshop; (k) a workshop directly behind the truck with a sign mounted on it "Markham Whaler" written in blue on a red background; (l) a black metal plate attached to the near side (near side of the left hand drive truck is the truck closest to the kerb when driving on roads in New South Wales) of the concrete pump unit mounted to the truck bearing the letters "Schwing" and serial number 70215273; (m) Mr Said, the deceased employee, lying on the ground under the truck on the near side, immediately in front of the rear bogie, covered with a white blanket; (n) the mudguards for the truck had been disconnected and were lying on the concrete approximately four metres away from the rear bogie on either side of the truck; (o) an inverted milk crate on the ground was adjacent to the offside of the truck between the bogie and the front wheel; (p) a piece of timber approximately 900 x 150 x 75 millimetres was jammed under the front of the rear tyres of the bogie on the off side; (q) a piece of timber approximately 1060 x 100 x 50 millimetres was jammed under he front of the tyres of the bogie on the off side of the truck; (r) a piece of timber approximately 1060 x 100 x 50 millimetres was located approximately 600 millimetres in front of the front tyre on the near side of the truck; (s) there was a circular object measuring approximately 175 millimetres in diameter and 100 millimetres high at the edge with the hub raised a further 45 millimetres, of a material similar to rubber, the metal hub of which was jammed under the front of the front tyre of the truck on the off side; (t) there were skid marks on the concrete in front of the off side front tyre approximately 130 millimetres wide, starting at the circular rubber object and running forward approximately 420 millimetres to a circular mark which measured 140 millimetres in diameter; (u) the distance from the off side front tyre to centre of circular mark was approximately 700 millimetres; (v) two ring spanners, a hammer, approximately 6 bolts, four spring washers and a length of pipe were lying under the truck at the rear of the near side bogie; (w) the truck was left hand drive; (x) the gear shift lever of the truck in the cabin was in the reverse position as indicated by the schematic on top of the gear knob; (y) the parking brake lever to the left of the driver's side was in a raised position approximately 410 millimetres from the floor to the ratchet release button; (z) approximately 13 teeth of the ratchet rack were exposed beneath the parking brake, with the ratchet pawl inside the ratchet mechanism of the parking brake; (aa) the power take off level tilted to the right looking forward from the driver's seat of the truck; (bb) an air receiver and brake hydraulic master cylinders were mounted on the off side of the truck; (cc) the rear drive bogie of the truck was fitted with hydraulic oil bleed off valves at the top of the brake backing plates; (dd) a parking brake hub approximately 300 millimetres in diameter was mounted at the rear of the gear box, connected to drive shaft leading to the transfer box; (ee) there was a drive shaft coming from and mounted to the transfer gear box at one end with the other end laying on the ground beneath the truck; (ff) the universal joint was still intact on both ends of the drive shaft; (gg) the front differential of the bogie drive showed a four bolt drive shaft connection point and recessed face with no connection made;

(hh) the buttocks of the deceased employee were lying on a red coloured creeper trolley beneath the truck, a double open end spanner in his right hand;

(jj) black marks or stains resembling grease were on the palms of the deceased employee;

(jj) the head of the deceased was approximately 1100 millimetres away from the Perigee of the front tyre on the near side bogie;

(kk) blue overalls worn by the deceased torn at the right shoulder to the groin;

(ll) dust or dirt marks on the overalls resembling the pattern in the front inside tyre of the near side bogie;

(mm) the slope of concrete adjacent to the near side bogie was equivalent to a 44 millimetre fall in a length of 1320 millimetre run (1.95 degrees or 1:30). 8. On 13 February 1999, Inspector Kathy Maltby, an Inspector of the WorkCover Authority of NSW issued Prohibition Notice 108018 to the Defendant requiring him to provide a system of work to ensure that no persons other than authorised officers or police disturb the concrete pump truck until such time as authorisation was given by her or the police. 9. On 18 February 1999, the Prosecutor issued Prohibition Notice 111326 to the Defendant providing that the following measures be taken to: (a) provide and maintain a system of work that ensure the health and safety of employees by eliminating or controlling the risks arising from the removal and replacement of concrete pumps on truck bodies; (b) be aware of Australian Standard 4360/1995; (c) adequately train and supervise all persons involved in the removal and replacement of concrete pumps on truck bodies. 10. The observations and investigations conducted by the Prosecutor found as follows: (a) Mr Cooper parked the truck on the concrete ramp in the position on which Mr Said was carrying out work when the accident occurred on the night before the accident. (b) Mr Cooper left the truck in gear and placed a piston cup as a chock under the offside front wheel and a timber chock under the near side front wheel. (c) The piston cup measured approximately 175 mm in diameter by 100 mm high at the edge with the hub of the cup raised a further 45 mm. (d) The timber chock placed under the near side front wheel measured approximately 1500 mm x 150 mm x 75 mm. Skid marks indicated that the chocks placed under the front wheels had not restrained the truck and it had moved approximately 700mm down the slope of the concrete ramp. (e) The movement of the truck down the slope of the concrete ramp caused Mr Said to be trapped under the rear bogie wheels of the truck, resulting in his fatal injuries. (f) Mr Said had commenced work at approximately 6.30am on the date of the accident. He commenced to remove the tailshaft of the truck. The removal of the tailshaft of the truck would have rendered ineffective any resistance to movement of the truck caused by having the truck in gear or by having the parking brake of the truck engaged. (g) There were no chocks other than those referred to in sub paragraph (b) above preventing movement of the truck at the time of the accident.

(h) Mr Cooper had assumed, when placing the truck in the position on the concrete ramp on which Mr Said commenced work to remove the tailshaft, that the truck was made secure by leaving the truck in gear, placing the two chocks under the front wheels and applying the parking brake.

(i) The measures taken (including the wheel chocks used) to prevent movement of the truck on the concrete ramp while Mr Said carried out the removal of the truck's tailshaft were inadequate for this purpose.

(j) The accident would have been prevented if the truck had been secured properly by using adequate wheel chocks.

(k) Mr Said had not been sufficiently warned of the hazard posed by the truck not being adequately secured on the concrete ramp before carrying out the procedure of removing the truck's tailshaft.

(l) Mr Cooper had not been properly trained concerning safe procedures for the stabilisation of the truck for the removal of the pumping unit from the truck. 11. It is alleged that the Defendant, Michael James Wherrit trading as MJ Wherrit Concrete Pumping Services, an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 13 February 1999 at premises located at 28 Justin Street, Smithfield in the State of New South Wales, in that he failed to ensure the health, safety and welfare of his employees at work, in particular, John Vincent Said. In particular, the Defendant failed: (a) to provide a system of work for the removal of a Schwing Concrete Pumping Unit ("the pumping unit") from a Hyundai truck ("the truck") that was safe and without risks to health;

(b) to carry out a proper assessment of the risks and hazards associated with the removal of the pumping unit from the truck;

(c) to adequately stabilise the truck during the removal of the pumping unit from the truck;

(d) to provide adequate information (including providing warnings in the removal procedure) to John Vincent Said concerning safe procedures for the removal of the pumping unit from the truck;

(e) to provide proper training concerning safe procedures for the stabilisation of the truck for the removal of the pumping unit from the truck.

4 It was also agreed that the defendant had no prior convictions. In addition, the prosecution tendered, without objection, a number of statements and records of interviews and without calling those who made the statements. In an interview with Inspector Hopkins in March 1999, Mr Wherrit said he was not able to say who had instructed Mr Said to remove the tail shaft from the truck. He had discussed the work that had to be done on the truck the day before with George (Cooper) and Johnny (Said). When asked what procedure was in place to ensure that the truck was set up in a safe and secure manner before allowing Mr Said to disconnect the tail shaft, Mr Wherrit said the wheels were chocked - he had seen one chock under the first double bogie on the left hand side on the night before the accident. When asked what was the system of work implemented to ensure that the truck was set up in a secure and safe manner Mr Wherrit replied: "Park the truck on the concrete slab and chock the wheels". He said there was no documented safe system for working on concrete pumps prior to 13 February 1999. He said that he was responsible for ensuring that the system of work carried out on the concrete pump was safe and without risk and that he had inspected the truck the night before to check to see that the wheels were chocked. Mr Wherrit said that the business had carried out reconstruction on concrete pumps approximately 30 or 40 times over the previous ten years. On those occasions he ensured that the trucks were safe and secure by chocking the wheels so that the truck could not move.

5 Prior to February 1999, Mr Wherrit had worked with Mr Said at two other companies operating, repairing, manufacturing and re-constructing concrete pumps. When working with those companies, Mr Wherrit thought that Mr Said would have removed the tail shaft from trucks. In performing that work for the other companies the procedure he used for ensuring that trucks were safe and secure was to apply the parking brakes and chocking the wheels. 6 When asked what steps had been taken to ensure that a similar accident would not occur in the future, Mr Wherrit replied: "We chock the wheels, I double and triple check and there is a written procedure in place. This is also the last truck I will be doing."

7 In February 1999, Inspector Hopkins conducted a record of interview with Mr George Cooper who, at the date of the accident, had worked for M J Concrete Pumping Service for approximately two years. He was employed as a fitter and performed duties reconstructing concrete pumps. Mr Cooper said that Mr Said had been employed by the business "about three quarters of an hour" before the accident. Mr Said had arrived at the premises about 6. 30 am and had introduced himself to Mr Cooper and they discussed the work to be done on the truck. Mr Wherrit had told Mr Cooper the night before that Mr Said was coming in to do some work. Mr Wherrit and Mr Cooper discussed Mr Said's previous experience and the work that had to be done on the truck. Mr Cooper had already started removing the mud guards and Mr Said said that he would remove the tail shaft. He started that work at about 6.45 am. At about 7.15 am Mr Cooper was working at the back of the truck and he felt the truck move forward and heard Mr Said call out. Mr Cooper ran down the right hand side of the truck and "put the wood back under the tyres. I then went to the left hand side and saw Johnnie trapped under the other set of tyres".

8 Mr Cooper said that while he had been with the business he had carried out this conversion on the trucks on six to eight occasions. He believed that Mr Said had performed this task before with other employers. When asked what safety precautions were taken prior to the task beginning, he said: "chocking of the wheels". The procedure used to ensure that the truck was secure before work commenced was to make sure the truck was safe by chocking the wheels and that the brakes were applied. Mr Cooper said that on the night before the accident he had parked the truck on the concrete slab step. He said he would have left it in gear and he put a chock under the rear bogie wheel and a piston cup under the front wheel.

9 He was then asked the following questions by Inspector Hopkins: Q. From your experience gained by working on similar trucks, performing a similar task, if you disconnect the tail shaft does the parking brake still work? A. I do not know. Q. From your experience gained by working on similiar trucks, performing a similar task, if you disconnect the tail shaft would the fact that the truck was in gear stop it from rolling? A. In normal circumstances the hand brake should hold it. I have had that truck running in neutral with the hand brake on and it would hold it. The trucks are always blocked with pieces of timber before we start work on them because we never trust the hand brake.

10 The next answer given by Mr Cooper is relied upon by the defendant as giving a clue as to what might have happened on the day of the accident: When I went down the right hand side of the truck after I had heard Johnnie cry out, I put a timber chock under the right hand side bogie wheels. This was the same piece of timber I had put under the night before. It was under the wheels before I commenced work on the truck that morning. I started work at 6 am. The pieces of timber were approximately 300mm x 300mm x 700mm long.

11 A record of interview was conducted by Inspector Hopkins with Mr B J Hamilton who was assisting a friend in the vicinity on the day of the accident. He had rendered assistance in trying to move the truck off Mr Said immediately after the accident and gave this account of those circumstances: I seen someone in blue overalls trapped under the first set of bogie wheels. I started pushing with George, we could not move the truck, it was too heavy. George went and got a crowbar, we were moving it about half an inch at a time. As we were doing the crow-barring Mick came out and started giving the person under the truck mouth to mouth. Mick went to the forklift truck. It started but it kept stalling. Mick yelled at George to call 000 quick, as he got out of the forklift. Mick then got a mobile crane. He drove to the front of the truck. He said get some chocks. He pushed the truck back with the crane. I called out he was clear and I put the chock in a set of rear wheels. Mick said to George get something to put under his head. George went into the office to find something. …

12 Inspector Hopkins also conducted a record of interview with Noel Edward Watson who in February 1999 had worked with Mobile Concrete Pty Ltd for just on 11 years. He held the position of field supervisor and had previously worked with Mr Said between 1988 and 1996. During this period the employer was Mobile Concrete Pumping that later changed its name to Mobile Concrete Pty Ltd. When asked what type of work Mr Said was performing with that company, Mr Watson answered: When I first started Johnnie was operating a concrete placing boom. He did all his own repairs and servicing on the whole unit. He was responsible for the setting up of his own unit. He was a certificated operator. He was operating a 36 metre pump, the biggest one we have. I knew before we started that he was a boilermaker. If we were quiet he would do some boilermaking work in the yard. 13 Mr Watson had previously seen Mr Said perform the task of removing tail shafts from trucks. On those occasions he was asked what procedure did Mr Said use for ensuring that the trucks were safe and secure. He replied: I cannot remember the exact procedure he used. The normal procedure was to chock the wheels with timber. The normal procedure was to use the outrigger blocks as chocks. These outrigger blocks are carried on trucks. Mr Watson said he had performed the task of removing the pump unit from a truck body and the procedure he used to ensure that the truck was safe and secure while performing the task was to chock the wheels with timbers. In some cases, he said, depending on what was being done, he would have the outriggers in the down position to help secure the truck and then roll the truck out from underneath the boom. Mr Watson then made the following statement: I could not give you a date or time but Brian Callaghan of Mobile Concrete Pumping had brought out similar trucks to the one Johnny was working on at the time of his accident in the mid eighties. Johnny would have assisted in the removal of the pump from those trucks. Johnny was also used to commission pumps in other countries. This involved him putting the pump unit that was manufactured in Australia on other trucks. I am sure that some of those trucks would have the same braking systems as the one he had his accident on.

14 The prosecution tendered, without objection, an expert engineering report prepared by Bill Chachaty. Mr Chachaty had visited the premises of Wherrit Pumping Services on 18 February 1999 to assist Inspector Hopkins in his investigation of the accident. He had been advised that when the deceased removed the tail shaft the truck had rolled forward crushing his body. He said that at the time of the accident "it appears that only the front wheels were chocked with a 100mm x 45mm length of timber for the off side wheel and a cylindrical piece of rubber for the near side wheel."

15 Mr Chachaty noted that the truck was fitted with outriggers that were off the ground and that the concrete boom was not attached. The ground grading appeared to be four per cent and the wheels were chocked with five pieces of 150mm x 75mm lengths of timber. Near the off side "steering wheel" a 100mm x 45mm length of timber lying on its 100mm side was observed. He also observed that near the near side "steering wheel" was a piece of rubber having dimensions shown in an appendix to his report. He saw approximately 500mm skid marks apparently caused by the skidding of this piece of rubber.

16 He said that from information he had, about 72 per cent of the weight of the truck was carried by its rear axles. The centre of gravity of the truck was approximately 3.62 metres from the front steering axle. Mr Chachaty said the height of centre of gravity of the truck above the ground had a significant effect on the resulting truck forces on the chocks. The higher the centre of gravity the higher the forces. 17 There was no Australian standard or guidelines covering the design of wheel chocks. However, in 1990, the American Society of Automotive Engineering published a revised standard SAE J348, surface vehicle standard, wheel chocks, which "presents the basic information required for the design and manufacture of a wheel chock". In an appendix, Mr Chachaty had sketched what he described as "the larger wheel chock profile required by that Standard compared to the one used at the time of the accident". He noted that the contact surface was not concave as required by the Standard and that the concavity of the chock assists in the effectiveness of the chock. Mr Chachaty then stated: I have estimated that for a 4 per cent grading of the road each front wheel should be chocked with a 100mm x 100mm length of timber in order to restrain a truck from creeping downwards. This estimate is based on the assumption that the chocks are initially hard against the wheels. The two wheel chocks provided at the time of the accident are incapable of holding the truck. They are much less effective than the two 100mm x 100mm length of timber. Further, this unsafe situation may have been aggravated if they were not initially pressed hard against the tyres. The truck should have been equipped with wheel chocks capable of withstanding the maximum possible grading of public roads. In relation to the brakes, Mr Chachaty said that they were not applied at the time of the accident. He further noted that the truck was equipped with a transmission handbrake that became ineffective once the tail shaft was removed. He believed that this might have acted as a "killer trap to the deceased who may have been unaware of the dangers of removing the tail shaft".

18 In his report Mr Chachaty made the following recommendation, amongst others: Reliance on only a pair of front wheel chocks to safeguard against the risk of a roll away of the truck is an unsafe system of work. Normally, additional safeguards in the form of an effective wheel applied handbrake and a gearbox engagement are provided. In this instance, however, neither the handbrake or the gearbox provided any safeguard once the tail shaft was disconnected. Alternative additional safeguards could have been in the form of substantial wheel chocks for all wheels coupled with a testing of their effectiveness prior to proceeding with the work.

19 Counsel for the defendant relied on an affidavit sworn by Mr Wherrit who also gave oral evidence and was cross-examined by counsel for the prosecutor. Mr Wherrit said that the business had been in operation for some 12 years prior to the death of Mr Said. Within six months of the accident the business "ceased" and the company "M J Wherrit Pty Ltd was incorporated". Mr Wherrit was a director and shareholder of that company.

20 Prior to conducting his own business, Mr Wherrit had worked for both Mobile Concrete Pumping Pty Ltd and Callaghan Placing Systems Pty Ltd. His employment for the past 20 years or so had been in the Concrete Pumping Industry, advising, operating and training people to use concrete pumping equipment and generally doing anything associated with concrete pumping. 21 When he started the business he had only one employee but for approximately five years before the accident he had two full time employees and a secretary as circumstances demanded.

22 Prior to the accident Mr Wherrit had known Mr Said for about 20 years. He knew he was a boilermaker and welder and they had both worked on numerous occasions on concrete pumping equipment with Mobile Concrete Pumping Pty Ltd and Callaghan Placing Systems Pty Ltd. Mr Said was known to Mr Wherrit to be good at his job, was conscientious and most reliable and totally trustworthy and a very industrious worker. He was "very familiar with the type of work he was doing on the day of the accident and based on my knowledge of Johnny it was my belief that he was capable and well able to properly and safely perform the work he was undertaking on 13 February 1999".

23 Mr Said had attended the business premises on Friday, 12 February looking for casual work. Mr Wherrit had a truck in the yard that had to have a concrete pump removed which was to be sand blasted and cleaned and the pumping equipment was to be mounted on to a new truck. On that Friday, the truck was at the premises and had timber chocks under some of the wheels including the front bogie (driver's side). The chocks of wood were about 700ml (sic) long and otherwise were approximately 100ml x 100ml (sic).

24 After apparently agreeing to give some casual work to Mr Said on Friday, 12 February, Mr Wherrit said he generally told Mr Said what had to be done. He told him, and he could see, it was a Korean truck, and Mr Said was told it did not have a maxi brake and was a left hand drive. Mr Wherrit said that Mr Said replied: "Yeah, I know about these trucks. I have worked on them and I am familiar with their braking systems." Mr Wherrit said that during this conversation Mr Cooper was present at the business but did not take part in the conversation which was only between Mr Wherrit and Mr Said. 25 It was agreed that Mr Said would start work at about 6.30 am. When Mr Wherrit left the premises that night there was a chock under the left hand front bogie and a piston cup under the right hand front bogie.

26 As spoken about on the previous evening, Mr Said arrived before Mr Wherrit on the Saturday morning. Mr Wherrit understood that Cooper and Said had agreed between them what work would be carried out. Mr Cooper in fact carried out work on the top of the truck unbolting the pumping equipment from the chassis of the truck and Mr Said was unbolting the drive shaft. Mr Wherrit said that he and Mr Said had done this type of work on many occasions before and that Mr Said was familiar with the type of work and was good at the task.

27 Mr Wherrit attended the premises at about 6.50 am on Saturday, 13 February. He noticed the truck was generally in the same position as it was on the previous evening. He said hello to Mr Said and then proceeded to work in his office and did not see the accident.

28 Mr Wherrit gave evidence about the financial status of the company, his personal financial position and his own health which is said to have suffered following this accident. Mr Wherrit produced a copy of financial statements and his tax return for the business for the year 1999/2000. He also produced a Profit and Loss Statement for the 1999/2000 tax year. He gave evidence that for the 1997/1998 financial year his net income was $18,908 and in the following year was $26,668. For the 1999/2000 financial year there was a loss of $2,368. Mr Wherrit said that from 1 July 2000 to the present time he had drawn wages from the company in the sum of $5,100 gross and director's fees in the sum of $13,600.

29 Mr Wherrit gave evidence that he was presently on sickness benefits and received $332 per fortnight. He said that, apart from the very odd occasion of selling mechanical parts on behalf of the company and doing consulting work for the company, he was not working and there was no money to draw from the company to meet any payments due to him. In relation to his personal finances, he rented a property, paying $275 per week. His wife was working and received a net weekly salary of $305. His only asset was a block of land at Taree worth approximately $140,000. It was a 12 acre rural property on which he eventually hoped to build a house in order to live there. He was in the process of constructing a shed on that property and hoped to live in a caravan on the land "in the not too distant future".

30 He had total debts of approximately $74,000 which were owed to the National Australia Bank. Approximately $50,000 - $54,000 of this debt was related to the business and the remainder was related to the purchase of the block of land at Taree and other personal debts. His wages had stopped in approximately March 2001 when he went on to sickness benefits and he was still on those benefits.

31 Mr Wherrit was able to produce a letter from his accountant showing that, although his taxation return had not yet been completed from documents provided to him, Mr Wherrit had a taxable income for the year ended 30 June 2001 of approximately $18,500 which comprised solely of wages received from M J Wherrit Pty Ltd. M J Wherrit Pty Ltd would not have a trading profit for the last financial year but was likely to incur a trading loss of between $10,000 and $15,000. There was some cross-examination on the taxation return which was prepared by Mr Wherrit's accountant, the detail of which Mr Wherrit was unaware. He had relied on his accountant to prepared the return but whatever the turnover of the business he confirmed that the figures set out in his affidavit and referred to in his accountant's letter were the true amounts he had earned and the losses incurred by the company were also accurate.

32 In relation to his health, Mr Wherrit had undergone surgery in February 2001 and was later admitted to hospital in March where he remained in a coma for four days before being released from hospital. He stated that as a consequence of the surgical procedure and his subsequent hospitalisation, his condition was such that he had been extremely restricted in his general physical activities.

33 Annexed to Mr Wherrit's affidavit was a report from Dr S Rastogi of the Smithfield Family Medical Practice. Dr Rastogi had known Mr Wherrit for over nine years and had treated him for a variety of medical conditions. In the course of giving details about his general medical condition and how it was affecting his capacity to work the report contained the following paragraph: In February 1999, Mr Michael Wherrit was involved in a workplace accident when one of his co-workers was killed. Mr Michael Wherrit has been suffering from post-traumatic stress disorder mainly of the depression kind. He has at times been teary and remorseful and carries an immense sense of guilt for what happened at his workplace. He has received supportive counselling from me. Dr Rastogi stated that Mr Wherrit's other health conditions rendered him unable to continue his work and had reduced his capacity to maintain full time work. The medical practitioners who had provided reports were not required for cross-examination by the prosecutor.

34 Three references, in the form of statements, were tendered on behalf of the defendant supporting his honesty, diligence, responsibility and also his care in performing work in safe conditions. One of the statements spoke of how Mr Wherrit appeared to be devastated and distressed about the accident and how badly it had affected him. In his affidavit Mr Wherrit said that he had known Mr Said both personally and in the work sense for 20 years and also knew his wife reasonably well. Mr Said had asked him for casual work as he was not getting any overtime and Mr Wherrit thought he was doing him a favour by offering the work on dismantling the pumping unit from the truck. He said he knew Mr Said and the quality of his work and was happy to offer him the work on the truck. He said that the fatality in February was the first accident that had occurred while anyone had worked for him or with him and that Mr Said's death … "has had a profound effect on me. I was shattered by his death, as he was a friend, a solid worker, very much a family man like myself. … I am deeply saddened that this tragedy happened whilst Johnny was working with me … I have visited Johnny's grave at Pine Grove Cemetery at Minchinbury probably on half a dozen occasions …".

SUBMISSIONS 35 It was submitted by the prosecutor that the defendant had approximately twenty years' experience in the concrete pumping industry having experience of the particular job that was being performed by Mr Cooper and Mr Said. Mr Wherrit well knew that the truck did not have a "maxi brake" and that therefore, when the drive shaft was disconnected, there was no parking restraint or gear restraint at all and that is why the chocks were necessary.

36 The chocking system here was shown to be inadequate, which should have been known to the defendant. In the application of sentencing principles, foreseeability was relevant because "to some extent this tragic accident was foreseeable".

37 It appeared, according to the prosecution, that Mr Cooper did what he usually seems to have done. He said nothing in his statement to indicate he was unhappy with the way this vehicle had been chocked. It appeared to be normal to put a piece of timber on one wheel on one side of the vehicle and a piston cup, comprising of metal and rubber compound, on another wheel on the other side of the truck.

38 Counsel for the defendant concentrated on what he submitted was a clear inference from the evidence that somebody, and most probably Mr Said, removed a large piece of wood chocking a rear bogie tyre and that this step was a significant cause of the accident.

39 It was noted that Mr Wherrit had discussed the work to be done with Mr Said. Mr Cooper's statement was that immediately after the accident he had replaced the wood that was chocking the rear bogie tyre. It was submitted for the defendant that that piece of wood moved and it was not clear that it had moved by reason of the weight of the truck. It was said to have appeared to have moved because of some other intervention. It was an open inference that the chock near where the deceased was working had been removed and was removed by human intervention, namely, that Mr Said moved the chock in order to do the work. 40 Mr Chachaty's report was based on an assumption that the chocks on the front tyres had been there the night before and had remained there up until the time of the accident. That was not necessarily so, especially in light of Mr Cooper's statement. In addition, it was accepted that there was no Australian standard guideline covering the design of wheel chocks.

41 It was accepted by the defendant that there were obviously better ways to chock the tyres but the issue as to what tyres were chocked went to the question of the nature and quality of the offence. It was submitted that it was not clear, had the two chocks remained in place, whether they would have prevented this accident, even though it was not an ideal system. The defendant accepted that it was clear that supervision was lacking because, had there been proper supervision, it would have been immediately recognised that once the timber chock had been removed the whole stability of the vehicle was severely impaired. Mr Wherrit believed the chocking system was adequate and therefore this was not a case where a known hazard was left unchecked. It seems clear that something happened the next day. What Mr Wherrit had observed the night before appeared to be adequate. From what Mr Cooper said it is apparent that the truck was not necessarily chocked at the time of the accident as it was the previous night. Nevertheless, the defendant accepted that other adequate measures should have been taken: it was not a case where no measures had been taken and where it was "totally perceivable it was an accident waiting to happen". The defendant's real error was a lack of supervision to make sure that the two chocks were not moved at all during the operation and the other error was not to have used a system to have all wheels chocked. Mr Wherrit had been working on this type of truck for many years but he should have made it his business, it was accepted, to ensure that the truck was properly chocked when Mr Said was working on it.

42 The statements tendered in support of the defendant showed that he had conducted this business for approximately 12 years and that within the industry he was regarded has having run a very good operation and to have been a conscientious person who had been safety conscious. It was clear from the evidence that the accident had a severe impact upon Mr Wherrit and that there was real contrition. He had entered a guilty plea, which was to be taken into account, and had done so at an early stage, which was accepted by the prosecutor.

43 It was submitted that there was authority for the proposition that the personal financial circumstances of the defendant were able to be taken into account. The business operation was now minimal and Mr Wherrit was receiving sickness benefits. It would appear from medical reports that there was no early end to his condition. His financial position was precarious, he was indebted to the bank and only his wife was working and bringing in a very modest income. DELIBERATIONS 44 I commence a consideration of the penalty to be imposed by accepting that the primary factor is the objective seriousness of the offence. In this regard it is to be borne in mind, as accepted by the parties, that this prosecution involves an individual and the maximum fine is $55,000.

45 In light of some of the submissions made for the defendant it is appropriate to note that the defendant has pleaded guilty to a charge under s 15(1) of the Act which was particularised in five paragraphs: a failure to provide a system of work for the removal of the pumping unit that was safe and without risk to health; a failure to carry out the proper assessment of the risks and hazards associated with the removal of the pumping unit; a failure to adequately stabilise the truck during the removal of the pumping unit; a failure to provide adequate information including providing warnings of hazards involved in the removal procedure to Mr Said concerning safe procedures for the removal of the pumping unit; and to provide proper training concerning safe procedures for the stabilisation of the truck and for the removal of the pumping unit from the truck. In submissions for the defendant, some little time was spent dealing with the fact that, on the evidence, there was a practice of chocking the wheels of a truck where the pumping unit was being removed and that, in fact, there was sizeable chocking of the truck involved in this accident on the day prior to the accident and on the morning of the accident. It was submitted that the evidence showed that somehow someone, and probably Mr Said, removed the chocking, and this was a factor to be taken into account in assessing the culpability of the defendant.

46 The Factual Report of Inspector Sharpin, who attended the scene with Inspector Maltby approximately two hours after the accident noted, amongst other things, the following matters: (a) a piece of timber approximately 900 x 150 x 75 mm jammed under the front of the rear tyres of the bogie on the off side; (b) a piece of timber approximately 1060 x 150 x 75mm jammed under the front of the front tyres of the bogie on the off side. (c) a piece of timber approximately 1160 x 100 x 50mm located approximately 600mm in front of the front tyre on the near side. (d) a circular object of a material similar to rubber with a metal hub jammed under the front of the front tyre of the truck on the off side. Circular object measuring about 157mm in diameter and 100mm high at edge. Hub raised a further 45mm. (e) Skid marks on concrete on front of the off side front re approximately 130mm wide starting at the circular rubber object and running forward approximately 420mm to a circular mark which measured 140mm in diameter.

47 The submissions of counsel for Mr Wherrit, in summary, were as follows: · Someone had taken out the wood that was chocking a rear bogie. Based on Mr Cooper's statement and based upon opportunity, it can only be assumed that it was the deceased who took out this wooden chock. · Mr Cooper did not say the chock "moved" at the time of the accident - he had put it there prior to the accident and the only inference was that it was gone at the time of the accident. · Mr Cooper put the wooden chock back under a rear tyre. · It was not clear that the wooden chock on the rear bogie moved by reason of the weight of the truck - it appeared to have been moved by some other intervention. · Mr Said was working where the wheel had previously been chocked. · It may not be correct, as the expert Mr Chachaty says, that only the front wheels were chocked - Mr Chachaty assumes the front wheel chocks stayed there up until the time of the accident. · Perhaps the assumption of the expert cannot be accepted and what he says about chocking of the front wheel does not necessarily follow from the evidence.

48 This submission by counsel for the defendant has caused me some concern in light of the fact that there was tendered an Agreed Statement of Facts and a plea entered to a specific charge with five specified particulars. The submissions calling into question the assumption of the expert witness were made in circumstances where the report was tendered without objection and the submission as to whether or not there were effective pieces of wood chocking the rear bogie was made in circumstances where there was no oral evidence or cross-examination of the various witnesses whose statements had been tendered - they were not called.

49 In some respects, the submission by counsel for the defendant regarding the evidence appears to be misconceived. In relation to the suggestion that the thinnest piece of wood may not have been chocking a front tyre, Mr Wherrit's affidavit in the proceedings accepted that, on the Friday night before the accident, the truck had timber chocks under some of the wheels including the front bogie, meaning the driver's side on the left hand drive vehicle. His affidavit also stated that on Friday night the wooden chock was under the left hand front bogie and that the piston cup was under the right hand bogie. There seems little doubt therefore that, on the night before the accident, the front wheels of the vehicle where chocked by a piston cap and the thinnest piece of wood - these items were on or near the front wheels at the time of an inspection which took place shortly after the accident; it also follows from the uncontradicted report of the expert and the measurements taken by the inspectors who attended at the scene that the thinnest piece of wood was, in fact, much thinner than both Mr Wherrit and Mr Cooper stated and that on the expert's report was insufficient to hold the vehicle. In his interview with officers of the prosecuting Authority, Mr Wherrit said he had seen one chock under the first double bogie on the left hand side on the night before the accident - that is, a reference to a rear tyre and not the front wheels. In this interview, he made no reference to the front tyres being chocked and made no reference to the presence of the piston cup and the thinnest piece of wood used as a chock. In his statement, much relied upon by counsel for the defendant, Mr Cooper said that he ran down the right hand side of the truck after the accident and "… put the wood back under the bogie". He then went to the left hand side and saw the deceased trapped under the wheel. He said the night before he had placed the truck in gear and had put a chock under the rear front bogie and a piston cup under the front wheel. He made no mention of the thinnest piece of wood chocking the other front wheel, as Mr Wherrit does in his affidavit, but does refer to a chock under a rear bogie: this appears to be only one chock using a piece of timber. If Mr Cooper had chocked again a rear bogie immediately after the accident, as stated in his interview, it is surprising that Mr Wherrit told Mr Hamilton after the truck had been moved off the deceased to "get some chocks". It is also surprising that Mr Hamilton stated that after the deceased was clear of the wheels that he then put a chock "in a set of rear wheels". That statement appears to proceed on the basis that chocks had to be obtained away from the vehicle and were placed by Mr Hamilton under the rear bogie after the vehicle was shifted off the deceased by Mr Wherrit using the fork lift. It does not appear to be consistent with Mr Hamilton merely re-positioning a chock already placed there immediately after the accident by Mr Cooper but now some short distance away from the rear bogie after the vehicle had been moved off the deceased. Counsel for the defendant also seemed to submit that the thinnest piece of wood found in front of the front tyre had not been used as a chock. Again, this submission is surprising in light of the fact that par 10 of the Agreed Statement of Facts accepted that the observation and investigations conducted by the prosecutor found that Mr Cooper had left the truck in gear and placed a piston cup as chock under the off side front wheel and a timber chock under the near side front wheel; that the skid marks indicated that the chocks placed under the front wheels had not restrained the truck and it had moved approximately 700mm down the slope of the ramp; that there were no chocks, other than those on the front wheels, preventing the movement of the truck at the time of the accident, and that Mr Cooper had assumed that the truck had been made secure by leaving the truck in gear placing the two chocks under the front wheels and applying the parking brakes. Further, in his affidavit, Mr Wherrit stated that the front wheels were chocked using a piston cup and a piece of wood. It now appears that counsel for the defendant wishes to call into question those matters dealt with in the Agreed Statement of Facts and the defendant's affidavit. This challenge raises the issue of the status of an Agreed Statement of Facts in a prosecution such as this and the nature of the duty cast upon the defendant, if any, to demonstrate and prove the existence of circumstances not conceded by the prosecution.

50 It can be accepted that a plea of guilty only establishes the essential legal ingredients of the offence and that any other facts relevant to sentencing have to be established, either by way of submission from counsel on matters not in dispute, or by evidence on matters which are in dispute (R v Olbrich (1998) 45 NSWLR 538 per Spigelman CJ). That case drew attention to the need for the sentencing judge to find facts about the context of the offence - there the Court was faced with an offence of importing drugs and a debate as to whether the offender was a mere courier or a principal in the scheme and whether establishing the offender as a "courier" was a matter of mitigation, and whether establishing him as a principal was a matter of aggravation. The Court of Criminal Appeal repeated authority establishing that the onus of proof going to aggravation was on the Crown and was to be proved beyond reasonable doubt: the onus of proof going to mitigation was on the accused who must establish such matters on the balance of probabilities. The court also rejected the notion that once matters were raised in mitigation the onus shifted to the prosecution to negative the allegedly mitigating factors and to do so beyond doubt. In relation to the issue of "courier or principal" in the importation, the court considered that the degree of involvement of the accused was a matter akin to aggravation rather than mitigation. The plea of guilty involving only the act of importation carried no implication of any character with respect to the degree of involvement of the accused in any overall scheme for importing drugs. The involvement of the importer was a matter for the Crown to prove beyond reasonable doubt.

51 In the present case, the issue as to the number and size of the chocks put in place prior to the accident, and whether any of the chocks were moved is said by counsel for the defendant to go to the seriousness of the breach - the nature and quality of the offence. The presence of such chocks was said to demonstrate an awareness of the necessity to stabilise the vehicle and also demonstrated that this was not a case where there was no system of safety at all or an absence of any realisation of the need for a safe system of chocking. Approached in this way, the issue of the number and size of the chocks used and whether any were removed prior to the accident by the deceased, appears to be an issue going more to culpability rather than mitigation, although the distinction is not crystal clear in this case. In applying the approach adopted in R v Olbrich , the question immediately arises as to what status is to be accorded the Agreed Statement of Facts and the tender, by consent, of statments, records of interview and an expert's report.

52 In R v O'Neill [1979] 2 NSWLR 582 at 580, Moffitt ACJ stated: I think elemental matters can be stated. First, a plea of guilty in itself carries with it an admission of the essential legal ingredients of the offence [admitted by the plea], and no more. Second beyond that any facts relied on by the Crown and, in particular, any that aggravate the offence must be established by the Crown by some acceptable procedure. Third, any dispute as to matters beyond the essential ingredients of the offence admitted by the plea must be resolved by ordinary legal principles including resolving relevant doubt in favour of the accused. In practice, the difficulty will be to supply the answer to the question as to what is the acceptable procedure to establish the facts. This may depend upon the particular procedures which precede and lead to the exercise of the jurisdiction to sentence and, indeed, upon the course then adopted by the legal representatives of the Crown and the accused. However, it is possible to make some general observations as to what ought or ought not be done if the accepted principles for the proper administration of the criminal law are followed. The question as to what procedures are appropriate does not appear to have been the subject of any authoritative decision in this State; but see R v Warman (unreported, NSW CCA, 2 June 1978). At least, we have not been referred to any such decision. The matter has been dealt with in a series of helpful decisions in South Australia which deal with sentence by a magistrate upon a plea of guilty where there is no sworn evidence, and more relevant for present purposes, sentenced by Judge on a plea of guilty following committal proceedings: R v Maitland [1963] SASR 332; Law v Deed [1970] SASR 374; Weaver v Samuels [1971] SASR 116; and see R v Riley [1896] 1 QB 309 at 318; R v Henry [1970] VLR 525 and R v Huchison [1972] 1 WLR 398 1 All ER 936. The foregoing decisions accept or are consistent with the three preliminary matters which have been stated. In summary at least, they provide authority for the following propositions which I think should be accepted. Where there are depositions and these are tendered by the Judge and admitted, [the Court] is entitled to determine the nature of the offence by reference to the depositions. Where the accused disputes the facts, the appropriate course is for the accused to give evidence on oath and for the Crown to call before the Judge any contrary evidence, except so far as [the Court] properly has before [it] admissions of the accused or evidence given on some other occasion, eg committal depositions sufficient to enable [it] to resolve the disputed facts. Where the Crown relies on matters which are disputed and are the subject of evidence given on oath before the Judge or of depositions on oath admitted before the Judge, they should not be brought to account unless the subject of further evidence on oath. Practices at times adopted in sentencing are capable of leading to misunderstanding.

53 In the present matter, the complicating factor is that the defendant has pleaded guilty to a charge under s 15(1) of the Act as particularised in five paragraphs and has agreed with the prosecutor to a Statement of Facts for the purposes of tendering to the Court and thus enabling the Court to proceed to consider the plea on the basis that those matters are not in dispute between the parties. It may well be the case that, on some occasions, the defendant can agree to some facts but not all of the facts relied upon by the prosecutor, in which case the prosecution may have to establish those facts; where the defendant wishes to establish certain facts to which the prosecutor will not consent, the defendant is then put to the task of establishing those facts by an appropriate procedure as referred to by Moffitt ACJ in R v O'Neill. That was not a course followed in the present case and, although no complaint was made by counsel for the prosecutor, it appears that there was no prior warning to the prosecutor that counsel for the defendant would attempt to establish facts inconsistent with the thrust of the charges particularised and, more particularly, inconsistent with the Agreed Statement of Facts. In my view, this is not an appropriate course and a clear statement should be made at the outset of proceedings on a plea if there is some disagreement as to any facts relating to the incident which either the prosecution or the defendant wishes to establish. It is regrettable that this position was not made clear in the present case.

54 Consideration also needs to be given to the provisions of s 184 and s 191 of the Evidence Act 1995: [184] Accused may admit matters and give consents 184. In or before a criminal proceeding, a defendant may, if advised to do so by his or her lawyer : (a) admit matters of fact; and (b) give any consent that a party to a civil proceeding may make or give. [191] Agreements as to facts 191. (1) In this section: "agreed fact" means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed. (2) In a proceeding: (a) evidence is not required to prove the existence of an agreed fact; and (b) evidence may not be adduced to contradict or qualify an agreed fact unless the court gives leave. (3) Subsection (2) does not apply unless the agreed fact: (a) is stated in an agreement in writing signed by the parties or by lawyers representing the parties and adduced in evidence in the proceeding; or (b) with the leave of the court, is stated by a party before the court with the agreement of all other parties . The common law would allow evidence on the facts admitted ( R v Smith [1981] 1 NSWLR 193) but it seems that an agreement under s 191 would preclude evidence being adduced to contradict or qualify an agreed fact unless the Court gives leave. On its face, the Agreed Statement of Facts, tendered by consent as an exhibit in these proceedings, was one falling within the provisions of s 191. The tendering of the statements and records of interviews could not properly have taken place if they were to be used to contradict or call into question the Agreement Statement of Facts. If counsel for the defendant was to challenge the agreed facts that only the front wheels of the vehicle were chocked, and no other wheels were chocked, then notice of that challenge should have been given to the prosecutor and to the Court. As I have dealt with the submission and the evidence and resolved against the defendant the matters raised by his counsel, it is unnecessary to deal further with the effect and operation of s 191.

55 On the totality of the evidence, I am satisfied that, on the night before the accident, the front wheels of the vehicle were chocked by using a piston cup and the thinnest piece of wood referred to in the evidence. It is not clear to me on the evidence that any rear bogie was chocked on the night before the accident, but I am satisfied that there was no chocking of the rear bogie at the time of the accident. The evidence is contradictory as to chocking seen on the night before the accident: Mr Wherrit saw chocking of a rear bogie on the left side; Mr Cooper said he placed a wooden chock on the right side; Mr Cooper does not mention any wooden chock on the front wheel; Mr Wherrit says there was a wooden chock on the front wheel; and no-one suggests that the two rear bogies were chocked. Further, in his affidavit Mr Wherrit stated that on the morning of the accident he had observed the truck to be generally in the same position as the night before. In observing the truck, Mr Wherrit apparently did not notice anything unusual about the way the truck was chocked that morning - if he had noticed anything unusual it is to be expected that he would have said so and that he would have done something about it. Counsel for the defendant asked me to infer that chocking of a rear bogie was removed by the deceased because he had opportunity to do so and it was in the area in which he was working. However, the unsworn evidence of Mr Cooper was that the chocking he believed to be in place in relation to the rear bogie the night before and which he said he replaced immediately after the accident, was chocking on the right hand side of the vehicle, when the deceased was working on the left hand side of the vehicle and was crushed by the rear wheels on the left hand side of the vehicle. It does not follow that the deceased removed the chocking on the right hand side of the vehicle in order for him to perform work from the left hand side of the vehicle and in the position in which he was working on the left hand side of the vehicle. The presence of chocking on or near the rear bogie at the time of the accident does not appear to be consistent with Mr Hamilton's statement that he was told by Mr Wherrit, when they were trying to move the vehicle off the deceased, that he should get some chocking and that Mr Hamilton duly obtained a piece of wood and chocked the rear bogie. On the evidence, such as it is, I am unable to make the inference as requested by counsel for the defendant, namely that the deceased moved a wooden chock from the rear bogie in order to perform his work on the morning of the accident. Further, I am not able to conclude that the rear bogie at any relevant time was chocked by a piece of the timber placed there for that purpose. It follows that the nature and quality of the offence cannot be viewed in any light more favourable to the defendant and his culpability as his counsel submitted.

56 In light of the different nature of the present business conducted by the defendant, specific deterrence is really not an issue in this case but general deterrence is a factor to be considered. It is clear from the evidence that there are a number of individual businesses and companies involved in this type of work and it also appears from the evidence that those who work in the industry maintain contact and are well known to each other. The fact of this fatal accident and the bringing of this prosecution and the penalty to be imposed will be of significance to the industry and assist in raising the level of awareness of the need for commonsense steps to be taken in ensuring the safety of employees when performing this type of work.

57 As to the subjective factors, the defendant is entitled to have the benefit of a discount for his early plea. On a consideration of the processes prior to the hearing on the plea I am satisfied that there was an early plea which warrants a discount of 25 per cent.

58 The defendant has also worked in this heavy industry for a period of 12 years prior to this accident and had suffered no workplace injuries. He appears to be well regarded by others in the industry as not only a diligent worker but a person who was "fussy" about safety. Perhaps it was his lack of direct involvement in this particular task that allowed a sloppy and inadequate system of chocking to result in this tragic accident. It reflects on the lack of instruction that Mr Cooper did not know that when the tail shaft was disconnected the brake became inoperative. This is of even more concern when it is realised that Mr Cooper has participated on eight or ten occasions in performing tasks associated with removing a pumping unit from a truck.

59 A further matter is Mr Wherrit's personal financial position and his capacity to pay a substantial fine. The evidence demonstrates that he is currently on sickness benefits and is performing very few duties associated with the business. In recent years, he has made relatively small amounts of money from the business as income and that the business is losing money. It is clear that Mr Wherrit will pay the penalty imposed from his own meagre and stretched financial resources. In a number of cases, the Court has given consideration to the appropriate approach to the fixing of a penalty in circumstances where the defendant is in financial difficulties. In WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Ltd [2001] 106 IR 258, the President Wright J, noted that s 5 of the Fines Act 1996 makes it plain that, in the exercise by this Court of its discretion to fix the amount of any fine, it is required to consider, inter alia, such information regarding the means of the accused as is reasonably and practically available to the Court for consideration. His Honour also stated that a consideration of the means of the defendant with a conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty. His Honour drew attention to the fact that to impose a penalty entirely out of step with the objective circumstances of the offence by having regard, as the crucial consideration, the evidence as to the defendant's financial circumstances would be inconsistent with the role of the Court and would, in particular, represent a failure to impose a sentence with appropriate regard to the importance of deterrence in the sentencing process. Similar approaches have been taken by the Court in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 and in WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Training Co Pty Ltd (2000) 95 IR 462. In the last case, the Vice-President, Walton J, said: Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 and 86 (at 476).

60 In Workcover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Ltd [2001] NSWIRComm 329, Hungerford J spoke of the difficult task of determining an appropriate penalty in circumstances where the evidence disclosed that economic pressures on the defendant were heavy. His Honour stated: In R v Rushby (1977) 1 NSWLR 594 at 598, the balancing process involved in sentencing was dealt with by Street CJ by reference to what the Court of Appeal in New Zealand said in R v Radich [1954] NZLR 86 at 87 as follows: On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.

The Full Court of the Industrial Court also gave consideration to the proper approach in relation to a corporation, rather than an individual, where the imposition of a heavy fine would be likely to add significantly to the financial difficulties of the company ( Haynes v CI & D Manufacturing Pty Ltd and anor (1995) 60 IR 455). I propose to apply the approach referred to in those cases and to further significantly discount the penalty in light of all the circumstances of this case, including the financial position of the defendant but keeping firmly in mind the seriousness of the offence and the fact that it resulted in the loss of life. 61 I am also of the view that the defendant has demonstrated contrition in relation to this breach. The evidence shows that he was deeply shocked by the accident and the loss of a person who was both a work mate and a social contact. Mr Wherrit's affidavit evidence was quite moving as to his attendance on several occasions at the grave of Mr Said. Quite apart from his difficulties with his own health I think Mr Wherrit is to be believed when he spoke to the Inspector and said that he would not be performing this type of work again.

ORDERS 62 I make the following orders: 1. I convict Michael James Wherrit of this offence with which he is charged under s 15(1) of the Occupational Health and Safety Act 1983. 2. Michael James Wherrit is fined an amount of $10,000 with moiety therefore to the prosecutor. 3. Michael James Wherrit shall pay the costs of the prosecutor as agreed, or failing agreement, as ordered by the Court.

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