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

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 - [2002] NSWIRComm 16 - NSWIRComm 2001 case summary — Zoe

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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;

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(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.

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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.

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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".

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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.

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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.

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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.

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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.

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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).

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