SafeWork NSW v KD & JT Westbrook Pty Ltd

District Court of NSW|2018-06-19

y Ltd v Kirwin [2011] WASCA 117 at [33] Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 R v ACR Roofing Pty Ltd (2004) 11 VR 187 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Rech v F M Hire Pty Ltd (1998) 83 IR 293 Royall v The Queen (1991) 172 CLR 378 SafeWork NSW v Wagga Motors Pty Ltd [2018] NSWDC 242 Shepherd v The Queen (1990) 170 CLR 573 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67] WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 Texts Cited: Reducing Risk of Injury Associated with Farm Vehicles in Australia Farm Vehicles 2 and 4 wheeled Motorbikes Vehicle Injury associated with Australian Agriculture: The Facts 2008 Good Practice Guidelines on the Safe use of two-wheeled motorbikes on farms Managing the Risks of Plant in the Workplace Guidance Note on Ag bike safety Category: Principal judgment Parties: SafeWork NSW v KD & JT Westbrook Pty Limited Representation: Counsel: M Moir (SafeWork) D Nagle with A Guy (Defendant)

Introduction

KD & JT Westbrook Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Ethan Staker, a worker at work in the business or undertaking, to a risk of death or serious injury contrary to section 32 of the Act.
Mr Staker was engaged by the defendant as a contract musterer to muster sheep on a rural property about 100km west of Tibooburra, known as Lake Stewart Station (Lake Stewart). On 22 September 2014 Mr Staker was riding his Suzuki DR-Z400 motorcycle (the motorcycle) in the Old Woolshed paddock. Mr Staker fell from the motorcycle and was fatally injured. He was not wearing a motorcycle helmet approved under Australian Standard 1698:2006 (helmet).
The prosecution case is that Mr Staker should have been required by the defendant to wear a helmet.
The defendant's case is based on the following contentions: 1. The prosecution is required to establish all facts relevant to the offence, beyond reasonable doubt, citing State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 (Contention 1); 2. The offence is particularised in the Summons to have occurred on 22 September 2014 and I must be satisfied that any acts or omissions occurred on that day (Contention 2); 3. The risk particularised was a risk involved in mustering work. Chasing dingoes was not part of the mustering work or part of the pleaded case, and thereby the pleaded risk did not arise. The risk of death or serious injury did not arise at the speeds ridden in the usual course of mustering work of between 30 and 40 kph. At the time of falling off the motorcycle Mr Staker was riding the motorcycle in a dangerous fashion for his own enjoyment (Contention 3); 4. Wearing a helmet whilst mustering was not reasonably practicable (Contention 4); 5. The pleading stated that the manifestation of the risk caused Mr Staker's death. The evidence could not prove beyond reasonable doubt that Mr Staker's head injury was fatal, or that if he was wearing a helmet his death would have been prevented (Contention 5); 6. Mr Hill was a specialist contractor (and not pleaded to be an agent of the defendant) in charge of other specialist contractors (the musterers) and it was not reasonably practicable for the defendant to have taken the steps particularised in the summons, because Mr Westbrook was geographically isolated from the day to day control of the mustering work and Mr Hill was providing specialist services (Contention 6); 7. The objective evidence of the risk relied by the prosecution was not readily available to the defendant before 22 September 2014 (Contention 7).
I will identify each of the defendant's contentions when dealing with the elements of the offence. However, Contentions 1 and 2 can be shortly disposed of.
Contention 1 is an incorrect statement of the law and the authority cited does not support it. The prosecution must prove beyond reasonable doubt the elements of the offence and any essential or intermediate fact in the reasoning process towards an inference of guilt: Shepherd v The Queen (1990) 170 CLR 573 at 579-580 per Dawson J (Mason CJ, Toohey and Gaudron JJ agreeing).
If Contention 1 was to be understood as stating that the prosecution must prove each fact pleaded in the Summons beyond reasonable doubt, I would still reject it for two reasons. First, the authority cited does not support the contention in that form and second, section 20 Criminal Procedure Act 1986 precludes the defendant from raising objection to any variance between the pleading and the evidence adduced in the proceedings.
Contention 1 was repeated in relation to many of the factual issues, most of which did not have to be proved beyond reasonable doubt.
Contention 2 is not controversial. The defendant accepted that the prosecution could lead evidence of events before 22 September 2014 to prove the system of work on that day. The crux of the prosecution's case was that on 22 September 2014 the defendant had omitted to require Mr Staker to wear a helmet. The defendant admitted that it had not required Mr Staker to wear a helmet at any time before the incident. In other words, the omission was a continuing one as at 22 September 2014. It is otherwise open on the evidence to find, if I am so satisfied to the criminal standard, that the other elements were present on 22 September 2014.

Events prior to 22 September 2014

The defendant was incorporated in June 2008. From about that time it operated a livestock business from Lake Stewart (168,000 acres) and an adjoining property Waka Station (Waka) (130,000 acres), raising sheep for wool and meat as well as some cattle. The homesteads at Lake Stewart and Waka were about 8km apart.
Lake Stewart is located in far north-west New South Wales and is in close proximity to the dingo fence on the Queensland and South Australian borders. The dingo fence was intended to keep dingoes and wild dogs (collectively dingoes) out of New South Wales, but was not completely effective. Dingoes were feral animals and there was a bounty payable on presentation of a scalp. When working in packs, dingoes could destroy as many as 50 - 100 sheep in one night.
Dingoes would be shot at Lake Stewart, if that was possible. On other occasions they were destroyed by more primitive means, including hitting them with vehicles or chasing them on motorcycles until they were tired before hitting them with sticks or rocks.
From about September 2008 Bodie Hill was employed by the defendant as the manager of Lake Stewart and Waka.
Mr Hill reported to Kelvin Westbrook, the director of the defendant. Mr Westbrook lived in Loxton, South Australia, where the defendant operated a feedlot (the feedlot). Mr Hill would discuss what was happening at Lake Stewart with Mr Westbrook on a regular basis on the telephone and Mr Westbrook visited Lake Stewart a few times a year.
Mr Hill was responsible for the day-to-day running of Lake Stewart. He determined what work needed to be done, engaged contractors as required to undertake that work, allocated tasks and supervised the work undertaken. Mr Hill discussed with Mr Westbrook matters that required the expenditure of money, including significant repairs and the engagement of contractors to undertake work. They also discussed the transport arrangements for stock between Lake Stewart and the feedlot.
In December 2013, Mr Hill purchased Waka from the defendant and began to operate his own livestock business from Waka. At about that time, Mr Hill ceased employment with the defendant and was engaged by it as a contractor to manage the livestock business at Lake Stewart. As a contract manager, Mr Hill undertook the same duties he had performed as an employee of the defendant. Mr Hill owned and was licensed to operate a gyrocopter, which he used on Lake Stewart for mustering work and to get from one place to another. Mr Hill charged himself at a daily rate for his services to manage Lake Stewart and at an hourly rate for time spent flying the gyrocopter, which included a component for the hire and operating costs of the gyrocopter. Mr Hill issued invoices under the name Bora Pastoral Rural Contracting to the defendant that were paid into his bank account.
Between about 2010 and 2013, Mr Staker was employed as a station hand at Lake Stewart and Waka by the defendant. Mr Staker reported to Mr Hill. In that period, Mr Staker performed mustering work as well as general duties such as repairing fences and checking the water and feed supplies for the stock.
From May 2013, Mr Staker resigned his employment with the defendant to take up contract mustering work with Andrew Killeen on various properties. Mr Staker and Mr Killeen were related by marriage. Between May 2013 and the date of the incident, Mr Staker worked at Lake Stewart on about 6 occasions. Mr Staker was described as a very proficient musterer and a competent motorcycle rider. Mr Staker issued invoices to the defendant that were paid into his bank account. He provided the invoices to Mr Hill for forwarding to the defendant.
Mr Killeen was a 21 year old contract musterer, who was engaged to perform mustering work at Lake Stewart and Waka stations. Mr Killeen generally used a motorcycle supplied by Westbrook to perform mustering work at Lake Stewart. Mr Killeen issued invoices to the defendant that were paid into his bank account. He provided the invoices to Mr Hill for forwarding to the defendant.
Leon Booth worked at Lake Stewart from about October 2012 as a grader and loader operator. Dylan Wedding was employed by the defendant in 2010 at the feedlot and started working at Lake Stewart in 2012 for a few months at a time. He carried out mustering work on a motorcycle that belonged to Lake Stewart, as well as other station hand duties. Benjamin Crozier was engaged as a contract musterer to muster cattle on 12 and 13 August 2014. On that occasion he worked with Mr Staker. Mr Crozier had worked on about 15 properties in the Tibooburra area as a contract musterer. Mr Killeen, Mr Wedding, Mr Crozier and Mr Booth all reported to Mr Hill when they worked at Lake Stewart.
On or about 10 September 2014 Mr Hill engaged Mr Staker and Mr Killeen as contract musterers for the purpose of lamb marking. Lamb marking involved mustering the sheep from a paddock and putting them into a stock yard. The sheep were located in the paddock by Mr Hill flying the gyrocopter. The workers also had a good idea as to where the sheep would be according to the prevailing wind conditions. Mr Hill would direct Mr Staker and Mr Killeen to the stock by UHF radio communication. Mr Hill flew in a grid pattern to put the sheep into a mob. The musterers worked their way through the paddock on motorcycles to assist with forming the mob. The musterers would then ride behind the mob to direct them to the stock yard. Once in the stock yard, the lambs would be drafted (separated from the sheep in a race). The lambs would then be marked for the purpose of identification, as belonging to Lake Stewart and the defendant. The stock would be counted and those numbers recorded. Lamb marking was ordinarily conducted from about mid-September for 2-3 weeks, depending on stock numbers.
The sheep were mustered at other times during the year for different purposes, including shearing, drenching or backlining (the process of applying pesticides to the back of the animal) and taking to the feedlot or to market. Shearing usually took place in March or April.
Mr Hill directed the musterers to a particular paddock for the day's work. He would tell them in the morning or the night before which paddock they would be mustering from the next day. The musterers would go to the paddock and wait for Mr Hill to arrive in the gyrocopter. How long it took for Mr Hill to arrive depended on the distance he had to fly and the time it took him to conduct the pre-flight checks on the gyrocopter. Mr Hill gave instructions to the musterers via UHF radio. Those instructions included matters relating to the safe use of the motorcycles.
There were helmets available to be used by the musterers at Lake Stewart. They were motocross helmets and were stored in the shed. Mr Hill told Mr Killeen about the helmets and advised him to wear one while riding a motorcycle at Lake Stewart. Mr Killeen chose not to. Mr Westbrook informed Mr Wedding about the helmets and advised him to wear one. Mr Wedding wore a helmet for about 1 week in November or December 2012 when he first worked at Lake Stewart. He ceased wearing a helmet because he felt faint and dizzy in the heat.
Mr Staker and Mr Killeen did not wear helmets whilst performing mustering work and generally wore wide brimmed Akubra hats.
The defendant did not have in place a safe work method statement (SWMS) in relation to the performance of mustering work at Lake Stewart.
On or about 14 September 2014 Mr Staker and Mr Killeen arrived at Waka and stayed with Mr Hill and his family for the lamb marking work at Lake Stewart.

The incident on 22 September 2014

On or about 22 September 2014 Mr Hill directed the musterers to the Old Woolshed paddock to muster the sheep in that paddock for lamb marking.
At about 6.30am on 22 September 2014 Mr Staker and Mr Killeen left Waka to head to the Old Woolshed paddock. It was a cold morning and they rode their motorcycles slowly to avoid getting colder. When they arrived at the gate to the paddock they lit a fire and waited for Mr Hill to arrive.
The Old Woolshed paddock was approximately 6 kilometres long and 7 kilometres wide or about 18,000-20,000 acres, and consisted of sandy terrain, with open flats between the hills. There were low level mulga and salt bushes, and the ground was somewhat uneven, with mounds and 'washout areas' where water had run away leaving compacted dirt.
When Mr Hill arrived he began to fly over the paddock in a grid pattern to locate the sheep and to start them moving. Mr Hill noticed two dingoes on the western edge of the paddock. He radioed Mr Staker and Mr Killeen, saying words to the effect of 'I have two dogs underneath me'. Mr Staker and Mr Killeen rode towards the gyrocopter. When the musterers approached the dingoes they ran in separate directions. Mr Killeen pursued one dingo and Mr Staker pursued the other.
Mr Killeen chased his dingo with the intention of destroying it. He intended to follow it until it tired and so that he could hit it with a rock or a stick. He eventually deliberately collided with the dingo whilst travelling at about 70 kph, causing him to fall off his motorcycle. The dingo then bit him on the leg before escaping through a fence. Mr Hill saw Mr Killeen pick up his bike and presumed that he had fallen off it in the chase. Mr Killeen estimated that the chase lasted for about 30 minutes.
Meanwhile, Mr Staker radioed Mr Hill and told him that he had lost his dingo in a swamp area. Mr Hill told Mr Staker to leave it and come over to where Mr Killeen was. A short time later, Mr Hill could not raise Mr Staker on the radio. He flew back towards the swamp area and saw Mr Staker lying face down on the ground next to his bike. Mr Hill radioed Mr Killeen and told him to come to where he was hovering.
When Mr Killeen arrived, he observed that Mr Staker was lying face down, and his head looked like it had been pushed back into his shoulders. He had no pulse and was not breathing. Mr Killeen performed cardio pulmonary resuscitation (CPR) alone for around an hour until Mr Crozier arrived. During this time, he observed a female dingo sitting under a tree about 100m away that was not the dog he had been chasing.
Mr Hill remained in the air and radioed the homestead at Waka to contact emergency services. The NSW Ambulance Service recorded the call as being received at 8:05am.

Events after the incident

Rusty Forbes, a volunteer ambulance officer and registered nurse, attended the incident scene at 10:05am. She conducted an examination of Mr Staker, observing deformity to the right side of his face and skull. Ms Forbes felt Mr Staker's skull and described it as 'extremely mushy'. Ms Forbes was in contact with a doctor who pronounced Mr Staker dead at the scene.
Police arrived at the incident scene at approximately 3:00pm. Sergeant Kathy Ackers of the NSW Police Force Forensic Services Group undertook an examination of the scene. She observed tyre marks where Mr Staker's bike had probably travelled. Sgt Ackers opined that Mr Staker was travelling in a southerly direction. Mr Staker appeared to have been travelling in an arc through an area of compressed dirt referred to as a 'washout'. There was a small hill or mound around 40cm high at the edge of the washout after which there were no tyre tracks for about 10m and then what appeared to be a heavy impact impression in the dirt followed by a single tyre track. Sgt Ackers observed that when she walked across the section where there were no tyre tracks, she left footprints. Based on these observations, Sgt Ackers hypothesised that Mr Staker's motorcycle became airborne after travelling over the mound for a distance of about 10m, coming down to the ground heavily before continuing for some distance.
Detective Senior Constable Daniel Crowley assisted in the examination of the scene and prepared a report for the Coroner dated 23 September 2014. He held a certificate of accreditation in traffic accident investigation. Based on his examination, he concluded that Mr Staker's motorcycle hit the mound and was airborne for approximately 10m. Assuming Mr Staker was airborne, DSC Crowley believed he was travelling at between 60 and 80 kph. It was not possible to determine when or where Mr Staker fell from his motorcycle. Mr Staker's body was located about 4m away from the motorcycle, which appeared to be pointing in the opposite direction to that in which Mr Staker had been travelling. DSC Crowley accepted that his estimates regarding the speed and trajectory of the motorcycle were speculative, and subject to a number of variables for which he did not have relevant information.
The scene was contaminated with other tyre tracks before police were able to conduct an examination of the area, making it difficult to reconstruct the trajectory of the motorcycle. The inspection of the scene was carried out some 7 hours after the incident occurred, and the wind may have blown away evidence of tyre marks in the intervening period. The police officers placed numbered markers at the scene and took a number of photographs of what they presumed to be the tyre tracks of the motorcycle and any other relevant marks on the ground. DSC Crowley recorded video footage of a walk through along the presumed tyre tracks that the police officers had mapped. Sgt Ackers produced a sketch of the scene noting the location of the numbered markers and the distances between them.
DSC Crowley's estimate of speed was supported by Dr Thomas Gibson, a consulting engineer with expertise in accident reconstruction, biomechanics and injury causation. Dr Gibson relied on the statements of the police officers, the photographs and the map sketch as the factual basis for his opinion. Dr Gibson calculated the throw distance of the rider and the motorcycle. Dr Gibson accepted that as an 'off road' incident it was difficult to reconstruct with precision.
At the direction of the Coroner, DSC Crowley (who was also a qualified motor mechanic) conducted an examination of Mr Staker's motorcycle. There was no evidence of malfunction or breakage of any component of the motorcycle that may have contributed to the accident. DSC Crowley observed a compression in the boot of the front fork of the motorcycle. This may have been caused by a heavy impact on the front wheel, such as when the motorcycle landed after being airborne, or may have existed before the incident.
Dr Andrew Olesnicky, a qualified medical practitioner, conducted an external examination of Mr Staker's body on 24 September 2014. He found that there were extensive injuries to the skull, face and cervical spine. He felt fractures of the right zygoma (cheekbone), orbit frontal and parietal bones (which are located around the front and top part of the head). He opined that the first part of Mr Staker's body to contact the ground was likely the right side of his head and face. He opined it was likely that Mr Staker sustained a fracture or significant ligament injury to the cervical spine.
In his report, Dr Gibson stated that the impact to Mr Staker's head occurred in the protective coverage region for an AS/NZS 1698 compliant helmet. Dr Gibson quoted an American study of fatal motor vehicle accidents over a 12 year period that concluded that wearing a modern helmet reduces the risk of death by 51% for motorcycle users involved in on-road accidents. Dr Gibson gave evidence that travelling at higher speeds increases the impact force, resulting in a higher likelihood of injuries occurring.
Following the incident, the defendant introduced and enforced a requirement that employees and contractors wear helmets at all times while riding motorcycles at Lake Stewart. This policy was implemented at minimal cost to the defendant. All workers riding motorcycles at Lake Stewart after the incident complied with this requirement.
Mr Hill ended his contract with the defendant after the incident. Mr Killeen and Mr Wedding worked at Lake Stewart by themselves during different periods. Mustering was done by them on motorcycles, without the use of Mr Hill's gyrocopter.
Gary Crilly, the product manager of a motorcycle helmet importer, gave evidence about the availability, types and cost of helmets that were available in the Australian market in 2014.

The elements of the offence

The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and prove it beyond reasonable doubt.
Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
The elements of the offence are:
Element 1 The defendant was conducting a business or undertaking;
Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; 1. workers engaged by it or workers whose activities are influenced or directed by the defendant;
(ii) while the workers were at work in the business or undertaking;
Element 3 The defendant failed to comply with its health and safety duty; and
Element 4 The failure exposed an individual to a risk of death or serious injury.

The relevant law

The offence is one of strict liability: section 12A of the Act.
A person can conduct a business or undertaking alone or with others and it does not need to be for profit or gain: section 5 of the Act.
A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act.
A duty provided for by the Act is not transferable: section 14 of the Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: section 16 of the Act.
The content of the duty is set out in section 19 of the Act, which relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law.
A self-employed person must ensure, so far as is reasonably practicable, his or her own safety while at work: section 19(5) of the Act.
The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.
Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury.
The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].
An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 [3]-[6].
A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it, or minimise it.
"Reasonably practicable" is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about; 1. the risk, and 2. ways of eliminating or minimising the risk, and 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.
The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity, and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The phrase "exposed to risks" contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.
The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
The use of a contractor with specialist skills or knowledge is a relevant consideration: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. Where a contracting party relies on a specialist contractor to perform a task demonstrably within the contractor's area of expertise, it would not ordinarily be practicable for it to do more, provided that the task undertaken reasonably appeared to have been carefully and safely performed by the contractor: Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998).
A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].
A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers, but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.
The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.
Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

consideration

Contentions 3-7 require consideration when dealing with Element 3. Contentions 4 and 5 will also be addressed in Element 4.

Element 1 - Was the defendant conducting a business or undertaking?

The defendant, in the course of the hearing, did not admit any facts or elements of the offence, notwithstanding that it made a number of admissions in the answers it provided to section 155 notices served by the Regulator.
Whilst I must be satisfied beyond reasonable doubt of the elements of the offence, the admissions of the defendant allow me to deal with Element 1 briefly.
In question and answer 11 provided in response to the section 155 notice on 29 July 2015, Mr Westbrook, on behalf of the defendant, admitted that the defendant was conducting a livestock business at Lake Stewart on 22 September 2014.
I am satisfied beyond reasonable doubt that the prosecutor has established Element 1.

Element 2 - Did the defendant owe Mr Staker a health and safety duty?

In response to the section 155 notice on 29 July 2015, Mr Westbrook on behalf of the defendant admitted that: 1. Mr Hill engaged Mr Staker on behalf of the defendant as a contract musterer on or about 10 September 2014; 2. Mr Staker was engaged for the period required to undertake the mustering work which was to be determined by Mr Hill; 3. Mr Staker issued invoices to the defendant that were paid by it; 4. Mr Staker reported to Mr Hill while undertaking the mustering work; 5. Mr Hill was required to direct the contract musterers to complete the mustering work and was very experienced on the property, having been employed as the full-time station manager between 11 February 2008 and 26 September 2013; 6. Mr Hill reported to Mr Westbrook by telephone; 7. Mr Westbrook did not have any day-to-day involvement with the mustering work.
Based on the evidence, I am satisfied beyond reasonable doubt that Mr Staker was engaged by the defendant as a contractor to provide services at Lake Stewart. I am also satisfied beyond reasonable doubt that in the course of providing those services Mr Staker's activities were influenced and directed by Mr Hill on behalf of the defendant.
By Contention 3 the defendant submitted that Mr Staker was 'not at work in the business' at the time of the incident, because chasing dingoes was not part of mustering and/or that Mr Staker was riding the motorcycle for his own enjoyment at the time of the incident. I am not satisfied for the reasons expressed at [93] to [98] below that the pleaded risk should be construed narrowly as contended for by the defendant. I am satisfied for the reasons expressed at [114] to [122] that chasing dingoes was part of mustering work. I am not satisfied for the reasons expressed at [123] to [133] that the defendant was riding the motorcycle in a dangerous fashion for his own enjoyment.
I would not interpret the words 'while at work in the business or undertaking' used in section 19(1) to require that Mr Staker was actually carrying out work at the time of the incident. Section 19(3) of the Act requires that a PCBU must, so far as is reasonably practicable, protect workers from risks associated with being present at a workplace, the system of work and risks arising from work. The risks 'arising from work' do not require a geographical or temporal connection to the work performed: Boland v Safe is Safe Pty Ltd and Munro [2017] SAIRC 17 at [29] and [32] and SafeWork NSW v Wagga Motors Pty Ltd [2018] NSWDC 242.
Of specific relevance in this case was the defendant's obligation to ensure, so far as was reasonably practicable, the safe use of plant by Mr Staker, in accordance with section 19(3)(d) of the Act. Plant is defined in section 4 of the Act to include any machinery, equipment, appliance, container, implement and tool and includes anything fitted or connected to any of those things. A motorcycle comes within this definition. The defendant's obligation to take all reasonably practical steps to protect Mr Staker from the risks associated with riding the motorcycle arose at the time he was first required to ride it on 22 September 2014 for the purpose of undertaking the mustering work.
I am satisfied that Mr Staker was present in the paddock riding a motorcycle for the purpose of commencing the mustering work at a workplace, as defined by section 8 of the Act, and it did not matter that no mustering work actually took place on the day of the incident: Bolton Metropolitan Borough Council v Malrod Insulations Ltd [1993] ICR 358 and Rech v F M Hire Pty Ltd (1998) 83 IR 293.
I am satisfied beyond reasonable doubt that the prosecution has established Element 2.

Element 3 - Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [7] of the Summons?

Introduction

The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].
In order to find Element 3 established I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take one of the steps set out in the particulars of breach in 7-(d) of the Summons and that the step was reasonably practicable.

The pleaded risk

Contention 3 raises the following issues relevant to the pleaded risk: 1. the proper construction of the pleading and the prosecutor's case as to the risk; 2. whether the pleaded risk was present on 22 September 2014, including by reference to the availability of the objective evidence (Contention 7); 3. the factual issue of whether chasing dingoes was part of mustering work; and 4. the factual issue of whether Mr Staker was riding the motorcycle in a dangerous manner for his own enjoyment.

The proper construction of the pleading as to the risk and the prosecution case

The Summons pleaded the issue of risk as follows: Particulars of the risk to the worker 5 Mr Staker was performing mustering work involving riding a motorcycle. In performing such work Mr Staker was not wearing a helmet. 6 Mr Staker was exposed to the risk of death or serious injury to his head as a result of impact subsequent to being thrown from or falling from the motorcycle or as a result of a collision while riding the motorcycle. … 8 Mr Staker was placed at a risk of death or serious injury. 9 On 22 September 2014 Mr Staker suffered a fatal injury to his head. The injury sustained by Mr Staker was a manifestation of the risk.
The pleading did not limit the circumstances in which the risk arose. The clear words of the pleading convey that Mr Staker was put at risk if he fell from the motorcycle whilst riding it, including as a result of a collision. The particularised risk did not mention speed or the manner of riding the motorcycle as factors relevant to the creation of the risk.
The defendant cited the prosecutor's opening, which provided at T5 lines 15-21: It is also anticipated that the evidence will show that the musterers working at Lake Stewart rode their motorcycles at varying speeds. There was no restriction placed on the speed at which musterers could and did ride their motorcycles prior to the incident. On occasions, musterers were required to ride their motorcycles aggressively at speed to chase after or deter or eradicate dingoes that were in the vicinity and posed a threat to sheep. Many areas where the mustering work was undertaken at the property were paddocks containing uneven terrain, dirt tracks, hills, mounds and washouts.
I do not read this passage, or any of the prosecutor's opening, as limiting the case to a risk to Mr Staker that arose only while riding the motorcycle 'aggressively at speed' to chase dingoes.
In the prosecutor's Written Submissions in closing (PWS) at [151]-[152] the prosecutor submitted that the use of the motorcycles in mustering work at speeds of approximately 40kph across uneven terrain and in the vicinity of livestock created an obvious risk, and that the practice of chasing dingoes to destroy them as a stock protection measure was likely to increase the risk and the degree of harm that might be occasioned. I did not understand anything that counsel for the prosecutor said in his oral address to contradict those submissions.
The defendant complained that chasing dingoes was not part of the pleaded case. In my view, it did not have to be because the prosecution case was clear on the pleading that the risk to Mr Staker arose by reason of the fact that he was required to ride the motorcycle in the paddock, for the purpose of the mustering work. If he was required to ride faster than 40kph in the course of performing the work, the risk and gravity of the likely consequences were increased.

Was the risk present on 22 September 2014?

The defendant's contention that the risk of death or serious injury did not arise at the speeds travelled during mustering work (30-40kph) was based on selective parts of the evidence given by the workers at Lake Stewart. It was inconsistent with admissions the defendant made to the prosecutor in the course of the investigation, ignored the balance of the evidence of the workers at Lake Stewart and did not refer to the objective evidence about the risk.
In response to a section 155 Notice on 29 July 2015, Mr Westbrook on behalf of the defendant gave the following answers: Q61 Prior to the incident had KD & JT Westbrook Pty Ltd ever identified the risk of workers/contractors at the Lake Stewart Station sustaining head injuries from falling off or being ejected from a motorbike while doing mustering work? A61 The risk is so known and obvious that it would have been identified by anyone using a motorbike. Q63 At the time of the incident what measures had KD & JT Westbrook Pty Ltd put in place to minimise the risk of workers/contractors at the Lake Stewart Station sustaining head injuries from falling off or being ejected from a motorbike while doing mustering work? A63 Helmets were made available. Q66 At the time of the incident did KD & JT Westbrook identify a motorbike helmet (compliant with Australian Standard 1698:2006 Protective Helmets for Vehicle Users) appropriate personal protective equipment for contract musterers to wear while riding motorbikes at the Lake Stewart Station? A66 Yes - AS/NZS 1698 Q69 At the time of the incident were any helmets made available for workers and/or contractors to wear when they were required to ride motorbikes at the Lake Stewart Station? A69 Yes Q70 If so, for which workers and contractors at the Lake Stewart Station were these helmets made available to wear? A70 Any worker or contractor riding a motorbike. Q71 If so, describe how many and what type of helmets were made available for these workers and/or contractors to wear? A71 2 helmets - AS/NZS 1698 Q76 At the time of the incident who was responsible for informing workers and contractors about the availability of these helmets at the Lake Stewart Station? A76 Workers & contractors were told verbally availability of helmets (sic) Q77 At the time of the incident who was responsible for informing workers and contractors about the availability of these helmets at the Lake Stewart Station? A77 Bodie Hill. Q80 At the time of the incident was it a requirement for workers and/or contractors working on the Lake Stewart Station to wear a helmet while riding a motorbike? A80 It was left up to the individual.
The evidence of the workers at Lake Stewart demonstrated that the pleaded risk was known and obvious. Mr Hill gave evidence that the varying terrain in the paddocks at Lake Stewart was hazardous to riding motorcycles and presented a risk of the rider falling off the motorcycle. Mr Hill had fallen off a motorcycle at Lake Stewart and was aware that others had done so too. Mr Hill had purchased a motocross helmet for use by a German worker at Lake Stewart, who did not have much experience with riding a motorcycle. The helmet was purchased from a motorcycle dealer in Broken Hill and paid for by the defendant. Mr Hill instructed Mr Staker to wear a helmet when riding his 'race bike' but this occurred outside of work hours.
Mr Killeen had been required to wear a helmet whilst undertaking mustering work for a former employer in the Northern Territory. He owned a motocross helmet, which he always had with him in the car and wore when racing at Broken Hill or mustering after the incident.
Mr Crozier had worn a helmet when using a motorcycle at the direction of his father. He had fallen off a motorcycle on a number of occasions. He was mostly uninjured, but broke his wrist once. Mr Crozier had seen other people fall off their motorcycles during mustering work and had seen people sustain minor injuries. Mr Crozier wore a helmet during mustering work. It was a mountain bike helmet that looked the same as a motocross helmet, but was not as heavy and was not an approved motorcycle helmet.
The defendant had helmets available for use at Lake Stewart. Mr Hill had advised Mr Killeen to wear one and Mr Westbrook had advised Mr Wedding to wear one. The defendant was also aware that on occasions the contract musterers rode in a manner that presented a risk to their own safety. Mr Hill had on occasions instructed the contract musterers not to act unsafely, such as when he spoke to Mr Killeen about doing 'doughnuts' on his motorcycle in a paddock. Mr Killeen understood that he was being spoken to because what he was doing was unsafe. The workers all knew that the purpose of wearing a helmet was to minimise the risk of serious head injury or death and that it was necessary to wear a helmet at times for this purpose including when motorcycles were ridden on a public road and during the 'bike-khana' events (a motorcycle gymkhana).
The evidence established that there were occasions when the musterers would be required to ride their motorcycles at speeds greater than 40kph during the course of mustering work. DSC Crowley gave evidence that in his experience of mustering over 35 years it may be necessary to ride as fast as 80kph chasing wayward animals. Mr Killeen gave evidence that on 22 September 2014 during his chase of the dingo he reached speeds of between 70 and 80 kph. The defendant admitted in response to a section 155 notice that it did not impose or enforce any speed restrictions on the musterers.
The defendant ought to have known of the pleaded risk. There was other objective evidence of the risk involved in riding motorcycles on rural properties in the safety publications published by the Australian Centre for Agricultural Health and Safety (Farmsafe), WorkSafe Victoria and WorkSafe New Zealand.
In November 1999, Farmsafe published a paper entitled, 'Reducing Risk of Injury Associated with Farm Vehicles in Australia'. As at June 2014, the document was available on the internet. The salient points from the paper are as follows. The paper recommended emphasising to farm workers the importance of wearing a helmet when riding a motorcycle, for tasks such as mustering (recommendations 3 and 4, p v-vi). There were 24 recorded farm motorcycle fatalities between 1989 and 1992, of which 22 riders were male. Young males had a higher percentage of injury compared to any other group. Riding in a paddock and hitting a stationary object was the major cause of two-wheeled motorcycle accidents, and accidents occurred at speeds of less than 50kph with the majority occurring at between 11-30kph. Head injuries accounted for a small fraction of the injuries overall, but severe head injuries accounted for nearly half of all deaths. Head injury was the main cause of death in two-wheeled motorcycle accidents, accounting for 42% of fatal accidents. Fatal head injuries involved skull fractures and the majority involved lacerations or bruising to the frontal sections of the brain. The majority of head injuries occurred to the front, side and top of the head and the helmet used should be designed to protect these regions. The majority of head injuries were caused as a result of the rider's head coming into contact with the ground.
In 2008, Farmsafe issued a farm safety checklist entitled 'Farm Vehicles 2 and 4 wheeled Motorbikes'. As at June 2014, the document was available on the internet. The checklist stated that about '35% of all injury deaths on farms from 2001-2004' occurred involving farm vehicles, which included two-wheeled motorcycles. The checklist recommended in bold 'Always wear an approved helmet".
In June 2009, Farmsafe published a paper entitled 'Vehicle Injury associated with Australian Agriculture: The Facts 2008'. As at June 2014, the document was available on the internet. The Summary to the paper recorded 17 motorcycle rider fatalities on farms in Australia in the period 2001-2004. Two cases were associated with mustering work and 10 cases when the motorcycle was most likely being used for leisure activities. In five cases there was no information to determine the activity being undertaken at the time of death. The greatest number of deaths associated with two-wheeled motorcycles occurred in young adults. The survey data indicated that 60% of riders never wore a helmet. Young males had a higher percentage of injuries than any other group. Research conducted in 1994 concluded that inexperience, inadequate training, impatience and risk-taking behaviour such as speeding was common in farm workers aged 15 to 24. Motorcycles were identified as a major agent of injury risk in that group.
WorkSafe Victoria published a Guidance Note on Ag bike safety in November 2009. The term 'Ag bike' was defined to include a two-wheeled motorbike. The Guidance Note stated that the lack of use of proper protective equipment contributes to the severity of injuries. It included the statement, 'Wear an approved motorcycle helmet as you would when driving on the road'.
WorkSafe New Zealand published Good Practice Guidelines on the Safe use of two-wheeled motorbikes on farms in June 2014 (the NZ Guidelines). The purpose of the document is expressed in the following terms: 'to help reduce the risk of injuries and fatalities by providing practical guidance on how to manage various two-wheeled motorbike hazards'. The document records as a key point, 'Always wear a helmet'.
To establish Contention 7, the defendant relied on the inability of Mr Hill to find similar objective guidance material on the internet after the incident, to argue that it was not reasonably available to PCBUs in the defendant's position. Mr Hill's evidence was that he searched the internet to determine if the law required a worker on a property riding a motorcycle to wear a helmet. The defendant admitted that before the incident it had not conducted a risk assessment relating to the mustering work. In my view, Mr Hill's enquiries were too specific, fell well short of the type of risk assessment required to be conducted by a PCBU and were unlikely to discover the objective guidance material. I am not persuaded that Mr Hill's failure to locate such guidance material demonstrated that it was not readily available before the incident on the internet.
Each of the publications referred to in [107] to [111] above (the publications) were referred to in the bibliography of the NZ Guidelines, by reference to a web address where they could be accessed. The NZ Guidelines were published in June 2014. I am satisfied that the publications were available on the internet as at June 2014 and I infer before that date for a number of years in relation to each of them. For these reasons, Contention 7 is rejected.

Was chasing dingoes part of mustering work?

Mr Hill gave clear and unequivocal evidence that if there were dingoes present, any other work ceased until the dingoes were destroyed or chased away.
It was known by the workers at Lake Stewart that dingoes presented a significant danger to the sheep and the eradication of dingoes was regularly discussed. Workers would track and hunt dingoes at Lake Stewart from time to time.
Dingoes were destroyed on occasions by any means available. Mr Crozier gave evidence that he had chased dingoes on a motorcycle while mustering on other properties in the Tibooburra area. He described riding behind a dingo to tire it out, before hitting it with a rock to kill it. He had done this on a couple of occasions. Mr Killeen's evidence was that on 22 September 2014 he intended to adopt this method to kill the dingo he was chasing.
Mr Hill gave evidence that he expected that the musterers would destroy the dingoes by riding behind them, tiring them out and then hitting the dingo with a stick or a rock or running over the dingo with the motorcycle. Mr Hill had on one occasion seen a worker at another property deliberately hit a dingo with a motorcycle or a quad bike to destroy it; he could not remember which.
On 22 September 2014 when Mr Hill alerted Mr Staker and Mr Killeen to the dingoes they responded by chasing them. Mr Killeen gave evidence that he chased the dingo with the intention of destroying it in the manner described by Mr Crozier and envisaged by Mr Hill. He acted consistently with that intention by chasing the dingo and using the motorcycle to deliberately collide with it. Mr Hill did not direct Mr Killeen or Mr Staker to stop chasing the dingoes and return to the mustering work. Mr Hill did not instruct Mr Killeen to desist from using the motorcycle to collide with the dingo, because that is precisely what he expected might occur.
The defendant relied on the evidence of Mr Killeen describing what he did on 22 September 2014 as "silly". There were parts of Mr Killeen's evidence that were reconstructed and this was one such example. He agreed in the course of his evidence that some of his responses to the section 155 notice were intended to protect Mr Hill, and he sought to withdraw those responses. The description of his actions as "silly" was inconsistent with his evidence about the extent of the danger posed by the dingoes to the sheep. I am satisfied that I should reject this part of his evidence. I am satisfied that Mr Killeen did what he did on the day because he knew that the mustering work would not start until the dingoes were eradicated or chased off, and he knew that what he did was what was expected of him.
The defendant also relied on the evidence of Mr Wedding that in his opinion chasing dingoes was not part of the mustering work on the foundation that the workers were there to work. The foundation for Mr Wedding's opinion begged the question. If I accept the evidence of Mr Hill, which I do, chasing and eradicating dingoes was an integral part of the work. Mr Wedding was the least experienced of the workers called to give evidence and he appeared to have a close relationship with Mr Westbrook as a result of being employed by the defendant for some time. I got the impression from his evidence that he would do anything he could to assist Mr Westbrook. I am satisfied that I should give very little weight to Mr Wedding's opinion because of his lack of experience, his close relationship with Mr Westbrook and because his opinion was ill-founded and against the weight of the evidence.
Mr Hill gave evidence that Mr Staker was a good worker and a very proficient musterer, who required very little direction. I am satisfied by reason of his experience working at Lake Stewart under the supervision of Mr Hill that Mr Staker knew what was expected of him whilst undertaking mustering work. I am satisfied that Mr Staker pursued the dingo on 22 September 2014 because he knew that was what was expected of him and that the dingo needed to be destroyed or chased away.
I am satisfied that on 22 September 2014 the chasing of dingoes by the musterers to eradicate them or chase them away was part of the mustering work.

Was Mr Staker riding the motorcycle in a dangerous manner for his own enjoyment?

The defendant relied on the reconstruction evidence to contend that at the time of the incident, Mr Staker was riding quickly and hit the mound with the intention of performing a jump, after which he lost control of the motorcycle and fell off it.
I have carefully considered the evidence of the police officers, the photographs and video footage of the scene and the map prepared by Sgt Ackers. There are considerable difficulties with this evidence.
The incident scene was contaminated by other vehicle tracks of both motorcycles and four-wheel drive vehicles. The evidence that the mapped tyre track belonged to the motorcycle was based on supposition and speculation. DSC Crowley recorded some video footage at the scene and recorded his oral observations. In so doing, DSC Crowley mistook a motorcycle track for the mapped track alleged to have been travelled by Mr Staker. The police selected the mapped track in part because there was a piece of black plastic tubing consistent with a motorcycle brake line in close proximity to the mapped track at marker 8. However, DSC Crowley did not find any damage to the motorcycle consistent with the black plastic tubing coming from the motorcycle during his mechanical inspection of it. There was an alternate motorcycle track about 1m to the right of markers 16 and 17, which is clearly visible in the photograph of those markers. The photograph depicts a track within a short distance of the mound. It is possible that this tyre track belonged to the motorcycle and that the motorcycle did not travel over the mound at all.
The conclusions reached on the basis of the observations of the mapped tyre track are speculative. The police observed that there was a 10m gap in the mapped track and an impression consistent with the motorcycle being airborne for that distance and landing heavily, possibly on the front wheel, at the end of the gap. I would make the following comments. First, the photograph of the 'landing impression' at marker 15 does not persuade me that the motorcycle came down heavily at that point. Second, if the motorcycle track was that depicted to the right of markers 16 and 17 it would be open to find that the motorcycle was not airborne at all. Third, the motorcycle tyre tracks were not continuous between markers 14 and 13. From the video footage, the tyre tracks at marker 14, and those at marker 13 proceeding to markers 12 and 11, were not laid down by the same motorcycle. Overall I am satisfied that there were observational errors made by the police during the course of mapping the motorcycle track, of which this is a demonstrable example.
There were other gaps in the mapped track that were unexplained by any hypothesis consistent with the jump. The mapped track was incomplete at different places in the sand after marker 14. This was either a result of the tyres of the motorcycle not being in contact with the ground, the tyres not leaving impressions in those areas, the impressions being blown away by the wind or observational errors in mapping the track. It was suggested to witnesses that the motorcycle rolled or flipped, but there were no impressions on the ground or damage to the motorcycle consistent with those suggestions. Mr Staker's body was found some 40m from marker 16. The observations of the ground along the mapped track do not indicate where it was that Mr Staker lost control of the motorcycle and they do not support the conclusion that the loss of control was a result of the motorcycle being airborne. It cannot be said with any certainty where Mr Staker was ejected from the motorcycle. The motorcycle was found facing in the opposite direction to the direction of travel hypothesised by the mapped track.
Dr Gibson conceded that his two methods of estimating speed were based on road accidents, where there are fewer variables. DSC Crowley agreed that his estimates of speed and how the incident occurred were based on speculation.
There was no evidence to enable me to conclude whether a 10m jump, if it was a deliberate manoeuvre by Mr Staker, was significant or not. DSC Crowley gave evidence that such a jump could have been done at different speeds. The evidence was that Mr Staker was an experienced motorcycle rider and had performed jumps in 'bike-khanas'. It is not apparent, nor can it be inferred, from the objective evidence that Mr Staker lost control of the motorcycle as a result of it becoming airborne, if it was airborne at all.
The reconstruction evidence can be afforded very little weight. It is based on speculation and not fact. There are very few primary facts from which I could draw any inferences. Further, I would not accept the expert evidence of DSC Crowley or Dr Gibson as to their opinions about how the incident occurred because I am not satisfied that the factual bases for those opinions have been established.
I do not need to be satisfied beyond reasonable doubt of how the incident occurred because causation of the injury is not an element of the offence. The evidence does not allow me to establish what occurred and that is not an unusual feature of these cases, particularly where the worker has died: Thiess.
The defendant submits that Mr Staker was on a frolic of his own by riding the motorcycle at between 60 and 80kph and hitting the mound with the intention of performing a jump for his own satisfaction. As a result of performing the jump he lost control of the motorcycle and fell off, sustaining fatal injuries. I am not satisfied on the evidence that is what occurred.
Even if I was satisfied that was what occurred, it would not mean that the defendant did not owe Mr Staker a section 19(1) duty. The authorities are clear that the duty holder must have regard for careless and disobedient workers. The fact that the contract musterers acted unsafely when using motorcycles on occasions was known to the defendant and Mr Hill instructed them not to do so. The defendant knew or ought to have known that the contract musterers during mustering work rode their motorcycles at varying speeds over uneven terrain and on occasions unsafely. It knew or ought to have known there was a risk they could fall off and sustain a head injury.
Contention 5 is also relevant to the pleaded risk.
If the prosecution alleges that the offence caused injury, the tribunal of fact should consider the injury if it is relevant to an issue in the case. It may be evidence of a risk by demonstrating what might happen, or evidence relevant to the issue of reasonable practicability by demonstrating how serious the possible consequences may be if precautions were not taken. But even if it is relevant for these or other reasons, causation of the injury does not become an element of the offence or an essential fact in the prosecution's case: Tangerine Confectionery at [15].
The defendant submitted that the Court could not be satisfied beyond reasonable doubt that the skull fractures sustained by Mr Staker were the cause of his death, because it was reasonably possible that Mr Staker sustained a broken neck that severed his spinal cord. Dr Olesnicky only performed an external post mortem examination on Mr Staker's body. Dr Olesnicky concluded in his report to the Coroner that Mr Staker had suffered multiple skull fractures that had led to intracranial haemorrhaging resulting in his death. In cross-examination, Dr Olesnicky conceded that he could not exclude the possibility that Mr Staker suffered a severing of his spinal cord that would also have been fatal.
On a similar theme, the defendant submitted that even if Mr Staker had been wearing a helmet, I could not be satisfied beyond reasonable doubt that it would have prevented the skull fractures. Approved motorcycle helmets are tested by the application of force colliding with the helmet at 21kph. Dr Gibson agreed that at 60-70kph the applicable force would be about 10 times of that applied in the testing regime. Dr Gibson could not exclude the possibility that a helmet could have failed at those forces, but did not accept that the helmet would not have provided protection.
I cannot be satisfied beyond reasonable doubt that the skull fractures sustained by Mr Staker as a result of the fall from the motorcycle caused his death, or that if he had been wearing a helmet the fractures would not have occurred. However, nothing turns on those matters and those findings do not mean that the prosecution's case must fail.
The evidence about Mr Staker's injury establishes that if he fell off his motorcycle he was at risk of suffering multiple skull fractures, because this was what actually occurred and, in the opinion of Dr Olesnicky, those injuries could be fatal.
The evidence establishes that the skull fractures suffered by Mr Staker would have been under the coverage of a helmet, had he been wearing one. The questions of whether Mr Staker would have survived or whether he would not have sustained the skull fractures if he was wearing a helmet do not fall to be answered, because the causation of Mr Staker's injury is not an element of the offence.

The particulars of breach of the section 19(1) duty

I will now turn to the pleaded particulars of breach pleaded in [7] of the Summons.

(a) The defendant should have implemented and enforced a requirement that all workers at the Station, in particular Mr Staker, wear a helmet complying with Australian Standard AS 1698:2006 Protective helmets for vehicle users ("AS 1698") while riding motorcycles

In summary, for the reasons already expressed, the defendant has admitted that it knew of the risk of musterers falling from their motorcycles during mustering work, and that approved motorcycle helmets were available for their use at Lake Stewart as a means of controlling the risk.
I now turn to deal with Contention 6.
On the evidence, I am not satisfied that Mr Hill was a contractor with specialist or superior skills to the defendant. Mr Hill had previously been employed by the defendant and resigned that employment when he purchased Waka from the defendant. When he was engaged as a contractor to manage Lake Stewart, his duties remained the same and his system of reporting to Mr Westbrook was unchanged. The same observations can be made about the employment of Mr Staker and his later engagement as a contractor.
Mr Westbrook had sufficient knowledge of the operations at Lake Stewart and the risks involved in the work to advise Mr Wedding to wear a helmet whilst riding a motorcycle. The defendant was also aware that it was necessary to purchase a helmet for the German worker and to have helmets available as a control measure against the risk. The evidence establishes that Mr Westbrook was able to instruct the workers directly, such as when he spoke to Mr Wedding, or he could have directed Mr Hill to instruct the workers about any relevant matter during his regular telephone contact with him. The imposition of the requirement to wear a helmet did not necessitate a greater degree of involvement in the business by Mr Westbrook sufficient to render the control measure reasonably impractical.
After the incident involving Mr Staker, the defendant admitted in response to the section 155 notice that it required all workers (including contractors) to wear an approved motorcycle helmet whilst riding a motorcycle. The policy was communicated verbally by Mr Westbrook due to concerns about the literacy of the workers. The defendant admitted that the costs involved in implementing the policy were minimal. The evidence was that the requirement was followed. I infer that the workers complied with the requirement because they understood there would be consequences if they did not obey it. The actions of the defendant after the incident can be considered in determining if particular (a) was reasonably practicable.

Practical issues with wearing an approved motorcycle helmet

I will now turn to deal with Contention 4.
The evidence of the workers was that wearing helmets during mustering work caused them some difficulties. Each of the workers gave evidence relating to motocross helmets, which was the type of helmet available for use at Lake Stewart and which each of the workers owned or had used.
A motocross helmet has enclosed protection for the chin and mouth area and is fitted as standard with a visor, which is available in varying lengths. The weight of a motocross helmet ranges between 1300 and 1800 grams. Motocross helmets are designed for more extreme conditions encountered in off-road or trail riding. Motocross helmets have vents at the front to take in fresh air and exhaust vents at the rear to allow the air to flow through them. A motocross helmet restricts the rider's downward vision as a result of the position of the chin bar. Mr Crilly's evidence was that a rider's sideways or peripheral vision was not impeded by a motocross helmet.
Mr Wedding gave evidence that he wore a helmet for about one week when he first started at Lake Stewart in about November or December 2012 on the advice of Mr Westbrook because he did not have much experience of riding a motorcycle. He experienced dizziness and felt faint because of the heat. He was not used to the heat that he first experienced at Lake Stewart, which was a dry heat and around 40 degrees Celsius. He reverted to wearing a cowboy hat when riding a motorcycle. After the incident, Mr Wedding wore a helmet because Mr Westbrook instructed him to do so. He did not experience the same symptoms at that time, because the weather was cooler.
Mr Killeen gave evidence that wearing a helmet was an obvious safety measure and he accepted that helmets saved lives. He believed that wearing a helmet in 40 degree heat was dangerous and could lead to overheating. He described it as 'like wearing two jumpers'. On one occasion after the incident he had been riding a motorcycle wearing a helmet and was required to stop work because he got too hot. He returned to the homestead and laid down for a few hours before resuming other duties. He gave evidence that wearing a helmet while riding through scrub caused sticks to hit him in the face and there was a risk of losing an eye. He said the sticks became lodged between the helmet and his face, causing facial cuts. He described a motocross helmet as limiting his vision when riding a motorcycle and in the paddocks at Lake Stewart the terrain was varying to the extent that there could be a 20m drop off one of the hills. Mr Killeen wore his Akubra hat while riding a motorcycle to provide sun protection, especially for the back of his neck and allowing for peripheral vision.
Mr Crozier gave evidence that wearing a motocross helmet caused fatigue by reason of its weight, created a high risk of heatstroke, hampered the rider's visibility and limited their hearing. He did not believe that a motocross helmet was a viable safety option for use whilst mustering. He wore a mountain bicycle helmet because it was lighter, but had the same appearance as a motocross helmet. To Mr Crozier's observation, musterers wearing a helmet usually opted for a motocross helmet. In Mr Crozier's experience some property owners limited activities such as mustering during the hotter period of the year, between October and February. Mr Crozier did not accept that it was practical to wear a helmet whilst mustering even when the temperatures were lower.
Mr Hill gave evidence that helmets were heavy and could cause difficulties in 40 degree heat. He described wearing a helmet as very uncomfortable. Mr Hill accepted that there were cooler times of the year when wearing a helmet was not an issue.
Mr Crilly gave evidence that there was no approved motorcycle helmet designed specifically for use on rural properties, but that there were a number of available helmets that would be suitable, including motocross helmets, jet helmets and shorty or half helmets. The prosecution tendered a number of catalogues of the helmets available in 2014 (Exhibit 7).
A jet helmet covers the ears and limits a rider's hearing. A jet helmet can be fitted with a visor. A half helmet does not cover the ears and can be fitted with a visor. Mr Hill described a half helmet as similar to a horse riding helmet.
The evidence of the workers about the impracticality of wearing a motocross helmet while mustering was exaggerated.
I prefer the independent evidence of Mr Crilly that a motocross helmet does not limit a rider's sideways or peripheral vision. Further, that fact can be observed in the pictures of motocross helmets when they are being worn by the models in the catalogues (Exhibit 7). A half helmet provides unlimited peripheral vision.
I accept that in hot weather conditions the wearing of a helmet may cause a worker to overheat. However, those weather conditions were not constant and were not a factor on 22 September 2014 or in the week leading up to that day. The evidence was that the weather was cold, and the workers were wearing a couple of jumpers and rode out to the paddock slowly to avoid the cold conditions. The temperature at the time of the incident was 16 degrees Celsius at Tibooburra airport, which was the closest Bureau of Meteorology weather reporting site (Exhibit 6).
Sun protection was capable of being achieved through means other than wearing a broad brimmed hat, including by the use of appropriate clothing and sunscreen. If it was necessary to have a hat available to use at the stock yard during the course of the lamb marking work, the musterers could have left a hat at the stock yard before proceeding to the paddock. It would also have been possible to buy or make a broad brim to fit on the top of a helmet.
The injury that could be sustained by the lodging of sticks between a rider's face and a helmet as a result of riding through scrub was minor. The risk of serious injury such as an eye injury was negligible, and could be prevented by wearing sunglasses or eye protection. Similar injuries were likely to occur as a result of riding through scrub, even if the rider was not wearing a helmet.
In July 2014, WorkCover NSW (the predecessor to the prosecutor) published an approved code of practice entitled 'Managing the Risks of Plant in the Workplace' (the Code). Plant is defined in the Code in the same terms as the Act and a motorcycle comes within this definition. Section 2.3 of the Code provides that a risk that cannot be eliminated by the use of elimination, substitution, engineering or administrative controls must be minimised by providing workers with suitable personal protective equipment (PPE).
Mr Staker was at risk of falling off the motorcycle in the course of the mustering work. He was at risk of sustaining a serious head injury or dying as a result of the fall; a risk that actually came home. The likelihood of the serious consequences increased by reference to the speed at which he was required to ride the motorcycle in the course of the work. The risk of death or serious injury could not be eliminated. However, the risk of a serious or fatal head injury could be minimised by requiring him to wear a helmet, which in the circumstances was suitable PPE. PPE is often uncomfortable and inconvenient, but may be required to minimise a risk arising from work. If the provision of suitable PPE creates other risks to the health and safety of a worker then the PCBU must control those risks. In this case, the risks created by the requirement to wear a helmet, other than the risk of overheating, were relatively insignificant.
The risk of overheating did not arise on the day of the incident because of the cooler weather conditions. In those circumstances I am satisfied that it was reasonably practicable to require Mr Staker to wear a motocross helmet. Even if that was not the case, the risk of overheating was capable of being controlled by other means. The defendant could have limited the use of motorcycles by workers at Lake Stewart to the cooler months or used four- wheel drive vehicles to conduct the mustering work. Mr Booth gave evidence that he had been involved in mustering work using a four-wheel drive utility.
The evidence did not suggest that the wearing of a helmet would have precluded use of the UHF radios. The musterers often acknowledged Mr Hill's instructions by 'clicks' on the radio. If the musterers hearing was impeded by wearing a motocross helmet there were options available, such as the use of half helmets, or earpieces for the radios.
The prosecution's case was that Mr Staker should have been required to wear an approved helmet. It did not specify which type of helmet and it was not required to do so. The effect of the pleading was to specify that the defendant had to require the workers to wear a helmet meeting the Australian Standard. The selection of an appropriate style of helmet would have been entirely a matter for the defendant to decide, after consultation with the workers.
Nothing in Kirk makes it necessary for the prosecution to specify which type of helmet was required. The purpose of the pleading was to identify the case that the defendant was required to meet and it adequately did that: Archer v Simon Transport Pty Ltd [2016] QCA 168 and Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344.
The defendant admitted that requiring the workers to wear a helmet was an appropriate control measure. It made available motocross helmets, which were reasonably practicable to minimise the risk. A jet helmet or a half helmet would also have been reasonably practicable to minimise the risk.
The cost of implementing and enforcing the requirement to wear a helmet was not grossly disproportionate to the risk.
I am satisfied beyond reasonable doubt that the defendant breached the section 19(1) duty by failing to require Mr Staker to wear a helmet in terms of [7(a)] of the Summons.

(b) The defendant should have prepared a safe work method statement requiring the wearing by workers of a helmet complying with AS 1698 while riding motorcycles.

The need for PCBUs to record safe systems of work in writing is an important one. The existence of a safe work method statement (SWMS) proves that one exists, but may not prove that a safe work method has been implemented, enforced or properly communicated to the workers.
Mr Killeen's responses to the section 155 notice served on him demonstrated that he had some literacy difficulties. The relevant workers were all young and had started work on rural properties at about age 16. Mr Westbrook had concerns about the literacy levels of the other workers.
The important thing was that the requirement to wear a helmet was communicated effectively to the workers. In this case that was more likely to be achieved by communicating with the worker verbally in terms that the worker understood.
In the course of his work in the Northern Territory, Mr Killeen was told 'to wear the helmet or [his supervisor] would be on him like dog shit on a shovel'. By that colourful direction, Mr Killeen understood that he was required to wear the helmet at all times or face disciplinary consequences.
I am not satisfied beyond reasonable doubt that the defendant breached the section 19(1) duty by failing to prepare a safe work method statement in terms of [7(b)] of the Summons.

(c) The defendant should have provided information, instruction and training of the workers at the Station, in particular Mr Staker, in relation to the need to wear a helmet complying with AS 1698 while riding motorcycles.

Mr Crozier gave evidence that no-one at Lake Stewart discussed with him the risk of head injury when not wearing a helmet in the course of mustering work.
Mr Wedding and Mr Killeen gave evidence to the effect that they were advised to wear a helmet, but that the choice was left up to them and that the defendant could not force them to wear one.
Section 3.3 of the Code provides that a PCBU must, before plant is used in the workplace, provide workers who are to use the plant with information, training, instruction or supervision that is necessary to protect them from risks arising from the use of the plant.
The defendant was aware that the workers did not want to wear a helmet even though they were advised to do so. The defendant knew that the workers were at risk of a head injury by declining to wear a helmet. Information was readily available about the likely consequences of that risk if a worker fell off a motorcycle. The defendant also knew or ought to have known that the workers were young men who were more likely to take risks without proper regard to their own safety or the likely consequences.
The workers could have been provided with information, instruction and training about the extent of the risk and the consequences. The provision of that training could have been provided at little cost to the defendant. The provision of that information would have put the workers, such as Mr Staker, in a position to make a more informed decision about whether or not to wear a helmet.
The cost of providing information, instruction and training about the need to wear a helmet was not grossly disproportionate to the risk.
I am satisfied beyond reasonable doubt that the defendant breached the section 19(1) duty by failing to provide information, instruction and training in terms of [7(c)] of the Summons.

(d) The defendant should have provided supervision of workers at the Station, in particular Mr Staker, that implemented and enforced the requirement for them to wear a helmet complying with AS 1698 while riding motorcycles.

The evidence of Mr Wedding and Mr Killeen established that the workers complied with the requirement to wear a helmet after the incident. There was no evidence that the requirement was enforced by supervision because after the incident, there was no other person at Lake Stewart to observe the work on a day to day basis.
If the requirement had been implemented before the incident, it would have been rendered useless if it was not enforced by supervision. At the relevant time, Mr Hill was in a position to supervise the workers on a daily basis. It would have required little effort from him to ensure that the workers were complying with the requirement. The required supervision could have been provided at little, if any cost to the defendant.
The cost of providing supervision was not grossly disproportionate to the risk.
I am satisfied beyond reasonable doubt that the defendant breached the section 19(1) duty by failing to provide supervision in terms of [7(d)] of the Summons.

Conclusion on Element 3

I am satisfied beyond reasonable doubt that the prosecution has established Element 3.

Element 4 - Did the defendant's breach of duty expose Mr Staker to a risk of death or serious injury?

By the defendant's established breaches of the section 19(1) duty, it failed to require Mr Staker to wear a helmet or failed to give him sufficient information to make an informed choice to wear a helmet.
Those failures exposed Mr Staker to the risk of serious injury or death. As a result of falling off the motorcycle, Mr Staker received multiple skull fractures in the area that would have been covered by a helmet. Those fractures were capable of causing death, if they were accompanied by intercranial haemorrhage. In the alternative, they themselves constituted serious injury as defined in section 36 of the Act.
Mr Staker was exposed to the risk on 22 September 2014 when he was required to ride the motorcycle in the paddock.
For the reasons expressed at [135] to [140] I do not have to be satisfied beyond reasonable doubt that the head injuries sustained by Mr Staker caused his death or that wearing a helmet would have prevented his death.
For the reasons expressed at [123] to [133] I am not satisfied on the evidence that Mr Staker was riding in a dangerous manner for his own enjoyment.
The defendant also placed reliance on Mr Staker's blood alcohol level (BAL) of 0.028g/100ml of blood and that Mr Staker was not licensed to ride a motorcycle. I accept the evidence of Dr Olesnicky that the BAL would not have impacted Mr Staker's ability to operate the motorcycle on the day of the incident. Second, the evidence established that Mr Staker was a proficient motorcycle rider and the lack of a licence entitling him to ride a motorcycle on a public road does not change that.
For the reasons expressed, I am not satisfied on the evidence that Mr Staker's conduct severed the chain of causation.
The evidence was that Mr Staker was a good and diligent worker. There was a dingo seen in close proximity to the site of the incident after it occurred. I am satisfied that Mr Staker was chasing that dingo at the time of the incident, in the course of his duties.
Even if Mr Staker was 'skylarking' at the time of the incident, which I do not find that he was, this was something that was known to the defendant that the workers sometimes did and was within the scope of the duty owed to him.
I am satisfied beyond reasonable doubt that there was a causal relationship between the defendant's failures and the pleaded risk to which Mr Staker was exposed.
I am satisfied beyond reasonable doubt that the prosecution has established Element 4.

Conclusion

The elements of the offence have been proved beyond reasonable doubt.
I find the defendant guilty of the offence.
I will list the matter for a sentence hearing at a date convenient to the parties.
I intend to consider the making of an adverse publicity order pursuant to section 236 of the Act. The parties should be in a position at the sentence hearing to adduce evidence on: 1. the information to be published; 2. the medium or media by which the information should be published; 3. the likely reach of the publication(s); and 4. the costs involved with such publication(s).

Amendments 14 February 2019 - The word "not" deleted from the first line of paragraph 190. 20 November 2019 - Catchwords added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2019

[1999] NSWIRComm 453

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