WorkCover Authority of New South Wales (Inspector Burt) v Joseph Patrick Attard

WorkCover Authority of New South Wales (Inspector Burt) v Joseph Patrick Attard - [2006] NSWIRComm 359 - NSWIRComm 2005 case summary — Zoe

[34]

13 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 14 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 15 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added)

[38]

... S cam rollover on truck braking systems of this type can be avoided by routine inspection and maintenance. 21 The report from Tri-City also highlighted the deficiencies in the truck's braking system as follows: An International was towed to our premises on Friday 28th November 2003. The vehicle is identified as rego # VRB387. ... The vehicle had been defected with brake faults. On initial inspection it was found that both front and rear axle failed brake test. This test was carried out prior to any adjustment or any mechanical repairs to the vehicle. Both steer wheels were worn to wear limits. It appears possible that the brakes could have jumped the brake-actuating cam, however at time of inspection this had not happened. All wheels were removed and linings replaced. The 1/h steer required stub axle replacement due to excess wear on the outer bearing surface area. The steer drums were replaced due to excessive glazing. All brake components were reassembled and brake test carried out (see brake test report attached). The maxi brakes operated prior to all repairs however failed brake test due to poor efficiency. The dual brake circuit on the vehicle is operational. And complies with ADR35A, prior to any repairs. All these observations were made impartially by qualified tradesmen. ... 22 It seems abundantly clear to me, given the above assessment of the truck's braking system, it was entirely foreseeable that braking problems would emerge while the truck was being used by the defendant's employees. What is not clear is the exact extent of the problem that would arise and the circumstances in which it would, although, as Senior Constable Mason reported: On closer inspection of the offside brake assembly, I saw shiny scratch marks on the surface of the S cam. These were consistent with an attempt to move or lever the S cam with a screwdriver or similar tool. The purpose for this kind of action would be to dislodge the S cam from a state of 'rollover'. Rollover occurs when due to brake wear, the S cam continues to rotate on its axis past its normal applied position. The brake shoe rollers will ride past the peak of the S cam lobe and travel down the opposite side. The brake shoes will then remain in contact with the brake drum, locking the wheel. The brake shoe springs that normally pull the brake shoes back into a seated position are now keeping the S cam in a state of rollover. In worse cases of brake wear, the S cam will rollover and fail to even apply the brake. The brake will then be rendered useless and the wheel will continue to turn . (emphasis added) 23 For a braking system to fail on a vehicle while being driven, the consequences that could arise and the attendant risk to safety arising are obvious. As stated by the Full Bench in Capral at 650, 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'.

[39]

24 Further, as was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 25 Both Senior Constable Mason's investigation and a post-accident assessment of the truck by Tri-City Trucks Pty Ltd revealed that the truck was suffering from brake wear. Tri-City Truck's assessment of the state of the brakes also identified the risk of the brakes "jumping" the S-cam as a result of brake wear. 26 It is apparent, in my view, that the safety of the International Acco Truck was compromised by the absence of regular maintenance of trucks by qualified mechanics. It is impossible to come to any other conclusion given the Tri-City and Senior Constable Mason's reports. Clearly, had there been routine and systematic servicing of the brakes, the faulty brakes could have been addressed prior to the accident. 27 Mr Stairmand's main trade qualification for the job he had with the defendant was that he had held a HR (heavy rigid) vehicle license for about twelve years at the time of the incident. 28 As earlier indicated, there is factual disagreement between the defendant and Mr Stairmand as to Mr Stairmand's assertion, as a truck driver/roustabout, it was an accepted part of his work that he would undertake minor maintenance and mechanical work on the trucks. He explained that the type of activities such an expression covered involved 'greasing grease nipples and adjusting brakes and washing trucks' and that, prior to the incident involving himself and Mr Audsley on 27 November 2003, he had adjusted the brakes on the particular truck involved on a 'dozen' occasions. In order to make such an adjustment, he had to get underneath the truck. Mr Stairmand also gave evidence that he had seen Mr Audsley adjust the brakes on trucks prior to the accident on 27 November 2003. 29 The defendant disputed his employees were under any obligation to undertake mechanical maintenance work on the trucks. While there was no written direction to that effect, he stated in evidence as follows: Q. In paragraph 11 of your affidavit you say this: "At the time of the accident there were no written procedures in place dealing with truck breakdowns. However, I am told every employee that drove trucks or equipment, they were not to conduct repairs, they were to contact me or Sid Jackson our mechanic." You refer to every employee, does that include Mr Stairmand? A. Yes.

[46]

Q. About minor maintenance work on international VRB.387? A. To check the tyres. There was a policy there before a vehicle started by a driver the first thing that is checked is water and oil before the key is inserted. That is the first thing - the truck has to be checked for water. Second check would be tyre inflation and blinkers and brake lights before the truck is actually moved. They are the normal procedures that has been in place there since I have had trucks. You do not jump in a truck or vehicle without checking - especially blinkers, lights et cetera as that would ... 31 Further Mr Attard said, Mr Sid Jackson, a qualified mechanic, was responsible for on-site maintenance. He did concede Mr Jackson was only employed on a casual basis and was not always available to attend to repairs or maintenance. Further, he stated, if substantial repairs or maintenance was required on the trucks, he arranged for external subcontractors to carry out that work. Whether that was done routinely is unclear, but if the state of the brakes on the Acco International truck involved in the incident is any indication, it was unlikely. 32 Having considered the evidence from Mr Attard as well as that of Mr Stairmand on this issue, I have difficulty in accepting Mr Attard gave verbal directions that employees were not to undertake mechanical repairs in the explicit terms that he now asserts. I also believe there is a lack of clarity on his part as to what he meant when he said he told Mr Stairmand and Mr Audsley not to carry out any 'mechanical repairs' in a vehicle breakdown situation. I am not persuaded that minor maintenance work undertaken by employees on his trucks did not involve adjusting the brakes in the manner described by Mr Stairmand. 33 In other words, I accept Mr Stairmand's evidence on this issue that, prior to the accident involving he and Mr Audsley and the International truck, he and Mr Audsley did, from time to time and as part of what he described as minor maintenance work, adjust the brakes on the truck in question as well as others in the way he described. 34 Whether such an activity was something Mr Attard was actively aware of is not the issue in my view. In accepting Mr Stairmand's evidence on this issue, I have significant difficulty in coming to a conclusion that this minor maintenance work was going on around Mr Attard and he did not know about it. Mr Stairmand said he did not know if Mr Attard knew about such activity on the part of his employees. Whether Mr Attard subjectively knew is not the test but whether, in all the circumstances, as the employer, he should have known. If he did give the verbal directions in the terms he now says he did, then Mr Attard failed to ensure they were adhered to and simply turned a blind eye and a deaf ear to the way in which his business operated on a day to day basis as far as the work practices of his employees were concerned. 35 In short, whatever he now unequivocally asserts, Mr Attard permitted his employees to undertake work such as adjusting brakes on his trucks as part of the minor maintenance work they were expected to perform. In doing so, Mr Attard presided over an overall unsafe system of work by his essentially unskilled employees adjusting truck brakes in circumstances that were inherently dangerous. 36 In coming to that view, it is apparent I am not satisfied that Mr Attard directed Mr Audsley to go to Mr Stairmand's assistance simply to assess whether or not the truck could be driven or whether it had to be towed. Mr Stairmand had already conveyed the information that the truck could not be driven. It is incompatible with logic and commonsense that Mr Audsley would be sent out simply to do something that Mr Stairmand had already done over the telephone which was to assess the truck was not moving, that it would appear to be an issue with the brakes and "What do we do now?" In other words, why did it need a second employee to perform what Mr Stairmand was directly capable of performing unless there was something more to it as far as trying to get the truck back on the road. 37 Further, as Mr Stairmand gave evidence, as soon as he arrived at the site where the truck had broken down, Mr Audsley got under the truck and tried to free the brakes. This was not the action of a person who, according to Mr Attard, was simply sent out to assess the truck could be driven simply by looking at the truck and talking to Mr Stairmand. It is apparent that 'assessing if the truck could be driven' required some action on Mr Audsley's part. Clearly, as he perceived, that required him to get under the truck to examine and free the brakes. 38 In considering all of the evidence on this point, I believe the inference is overwhelming that Mr Audsley was sent out to the truck to assess the situation and that assessment included, as he understood, that, if possible, he was to effect minor mechanical work on the truck's braking system in order to try and get the truck to be moved and/or driven. I also accept that if his attempts failed, steps would have had to be taken to have the vehicle towed. 39 As I understand his submission, counsel for Mr Attard contended that the entry of the plea of guilty does not establish of causal connection between the failures particularised and the specific incident as it occurred. In my view, such a submission is misconceived.

[47]

40 For the purposes of the offence now before me, there needs to be established a causal relationship linking the defendant to the safety detriments particularised and the consequent risk to health and safety arising to the defendant's employees. By entering a plea of guilty, the defendant has done that. The issue of causation goes directly to the guilt of the defendant to the offence to which it has entered its plea of guilty. By entering its plea, the defendant has embraced without demur its failures as pleaded and, in doing so, has accepted the causal link between them and risks to the health and safety of its employees that arise as a result of the failures particularised. As was stated by Walton J Vice-President in WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325 at para [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident. 41 Counsel for Mr Attard further contended there was no evidence to suggest, by reference to the particularised failure going to risk assessment, that if a risk assessment had been undertaken, it would have prevented the accident from occurring or the likelihood the accident would have occurred. 42 In my view, such a submission also misapprehends the nub of the offence and the principle established by the entry by the defendant of his plea of guilty. That is, the entry of the plea of guilty acknowledges the failure of the defendant to undertake a risk assessment in the work circumstances identified and that that failure caused a risk to the safety of the employees concerned. 43 The actions of Mr Stairmand in attempting to adjust the rear brakes prior to Mr Audsley's arrival by use of common house bricks as chocks and while the truck was on a slope was clearly dangerous. Senior Constable Mason noted in his report that the chocks were "doing little to secure the truck, the vehicle was still being held in position by the locked front wheel" and that: Conducting any type of repairs or maintenance on a motor vehicle in an inclined position is dangerous and to be avoided if possible, however qualified persons using proper truck wheel chocks and the utilisation of the vehicle's parking/emergency brake, would have made the situation much safer. 44 While I accept that the actions of Mr Stairmand and Mr Audsley in climbing under the truck in the circumstances that they did was clearly evident of a foolish disregard for their own safety, their actions have to be viewed against the actions of the defendant in allowing the system of work that prevailed on the day to develop as it did, including the absence of a proper risk assessment of the task at hand. The defendant cannot avoid his obligations to provide a workplace free of risks to safety by simply pointing to the foolish and careless acts of his employees. As was said by Bauer J in WorkCover v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: ... The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. ... 45 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

[50]

50 Additionally, the new safety guidelines require truck drivers to perform a safety check of the truck before it leaves the yard. Items such as water, oil and truck lights are checked to ensure they function properly. Truck maintenance is now carried out by contractors to ensure that they are roadworthy and in good condition. 51 By all accounts, Mr Attard has endeavoured to ensure that the new safety procedures are followed and understood by his employees. However, these were steps that could have been easily implemented prior to the accident. 52 Taking into account all of the above matters, I assess the offence as being in the mid to upper range of seriousness and will assess penalty on that basis. 53 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 54 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

[53]

(b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 61 Apart from the limited evidence elicited in his evidence, particularly in cross examination, there was no documentary evidence by way of business or personal financial statements or tax returns to corroborate the defendant's evidence as to his financial affairs. 62 In WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [51] the Full Bench said: ... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion. 63 According to the limited oral evidence received, Mr Attard earns approximately $500 per week gross from his business. His home at Narellan is mortgaged in the sum of $40,000 to $50,000 but Mr Attard is not aware of it's current value. He has some additional assets by way of a truck and a front end loader but he is unsure as to their value. 64 Curiously for a person who would, on the face of his evidence, have relatively limited financial means, Mr Attard is negotiating to buy the yard where he operates his business. The approximate purchase price is $400,000 to $500,000. He stated he was proposing to take out a loan for that entire amount. 65 Overall, I found Mr Attard's evidence as to his financial circumstances unsatisfactory in a number of respects and of no real assistance to the Court. The course I propose to adopt is as cited by the Full Bench, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 66 The defendant is entitled to have his early plea of guilty taken into account in determination of penalty. In assessing the impact of the plea, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I award a discount in favour of the defendant of twenty five per cent.

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