WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor

PROSECUTOR: Mr J Agius of senior counsel Mr A Searle of counsel SOLICITOR: Ramya Panagoda WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr L Aitken of counsel Mr C Ward of counsel SOLICITOR: David Lardner (by his agent Lee Wunderlich)

JUDGMENT: - 73 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WALTON J, Vice President 9 August 2004

Matter No IRC 1730 of 2003 INSPECTOR BARRY CHILDS v KIRK GROUP HOLDINGS PTY LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 1731 of 2003 INSPECTOR BARRY CHILDS v KIRK GROUP HOLDINGS PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 1732 of 2003 INSPECTOR BARRY CHILDS v GRAEME JOSEPH KIRK Prosecution under section 50(1) of the Occupational Health and Safety Act 1983 Matter No IRC 1733 of 2003 INSPECTOR BARRY CHILDS v GRAEME JOSEPH KIRK Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

1 Upon the applications of Mr Barry Childs, as an Inspector of the WorkCover Authority of New South Wales ("the prosecutor"), Kirk Group Holdings Pty Limited ("the Company") and Mr Graeme Joseph Kirk were charged with offences under the Occupational Health & Safety Act 1983 ("the Act").

2 The alleged offences related to a fatal accident which occurred on 28 March 2001 at Mount Hercules Farm, a property owned by the Company, located at Razorback Mountain near Picton in the State's south ("the Farm"). On that day, Mr Graham Palmer, a part-time Farm Manager employed by the Company, died as a result of injuries he sustained when the Polaris All Terrain Vehicle ("ATV") he was driving on the Farm overturned.

3 The Company was prosecuted for alleged breaches of s15(1) and s16(1) of the Act, being Matter Nos. IRC 1730 and 1732 of 2003 respectively. The charge in Matter No. IRC 1730 of 2003 was as follows: The alleged offence is that [the Company], on 28 March 2001, at "Mount Hercules Farm", 340 Mount Hercules Road, Razorback in the State of New South Wales, a work place operated by [the Company] failed to ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer, contrary to s15(1) of the Occupational Health and Safety Act 1983.

4 The particulars of the charge were that the Company failed to: (a) provide or maintain systems of work that were safe and without risks to health in relation to the operation of the [ATV]; (b) provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the [ATV]; (c) to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health; (d) ensure that the [ATV] was only operated by persons with appropriate training; (e) adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.

5 The charge in Matter No. IRC 1732 of 2003 was as follows:

The alleged offence is that [the Company], being an employer, on 28 March 2001, at "Mount Hercules Farm", 340 Mount Hercules Road, Razorback in the State of New South Wales, a work place operated by [the Company] failed to ensure that non-employees, namely David Thorn, Jason McLeod and Craig Haden, were not exposed to risk of injury arising from the conduct of its undertaking while they were at "Mount Hercules Farm", contrary to s16(1) of the Occupational Health and Safety Act 1983.

6 The particulars of the charge were that the Company failed to: (a) ensure that persons not in the employer's employment were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work in relation to the operation of the [ATV]; (b) ensure that the [ATV] was only operated by persons with appropriate training; (c) adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.

7 Mr Kirk was prosecuted under s50(1) of the Act for deemed contraventions of s15(1) and s16(1) of the Act, being Matter Nos. IRC1731 and 1733 of 2003 respectively. The prosecutions in those matters recited the offences alleged under s15(1) and s16(1) (which are set out earlier) and, in relation to each offence, alleged as follows:

[Mr Kirk], being a person concerned in the management of [the Company], is deemed to have contravened the same section pursuant to s50(1) of [the Act].

8 The particulars of those offences were materially the same as those in Matters Nos. IRC 1730 and 1732 of 2003, applying to Mr Kirk as a person concerned in the management of the Company.

9 Sections 15 and 16 of the Act are in the following terms:

15. Employers to ensure health, safety and welfare of their employees

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

(2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work.

(3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section.

10 Section 50 of the Act is in the following terms:

(1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation which is a council of a local government area, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

11 The Company and Mr Kirk entered pleas of not guilty in relation to each of the respective charges against them.

12 Mr L Aitken of counsel, with whom Mr C Ward of counsel appeared for the defendants, initially submitted that the s50 charges against Mr Kirk should be heard separately to the charges laid against the Company, on the basis that the evidence given by Mr Kirk against the Company would incriminate himself. However, the parties ultimately agreed for the matters to be joined.

13 The defendants subsequently filed Notices of Motion in each matter seeking an order that each of the proceedings be dismissed on the basis that the proceedings were commenced after the expiry of the two year period prescribed by s107 of the Occupational Health and Safety Act 2000 and/or after the expiry of the two year period prescribed by s49 of the Act. It was the defendants' contention that, although the Application for Order was filed on 27 March 2003, one day before the expiry of the two year limitation period, the Order issued by the Court was not made until 7 April 2003, that is, after the expiry of the two year limitation period. In that regard, Mr Aitken submitted:

The key question is what is meant by "instituting proceedings". Are proceedings instituted by virtue of my friends making an application? We submit not. They are instituted by virtue of the Court issuing process requiring us to attend to answer serious charges laid against us.

14 On 29 August 2003, those contentions were not pressed and the Notices of Motion with respect to Matter Nos. 1730 and 1731 of 2003 (being the charge against the Company under s15(1) of the Act and the corresponding deemed charge against Mr Kirk under s50 of the Act) were discontinued with leave.

15 However, the defendants proceeded with the Notices of Motion in relation to Matter Nos. IRC 1732 and 1733 of 2003 (being the charge against the Company under s16(1) of the Act and the corresponding deemed charge against Mr Kirk under s50 of the Act). According to the summary of argument filed in support of each of the remaining Notices of Motion, the defendants pressed the Motions on the basis that there can be no liability under s16 (or deemed liability under s50) because, on the particular day, none of the sub-contractors were involved in the use of the ATV. The defendants did not seek to amend the Notices of Motion to enable them to pursue the Motions on that ground.

16 The Court granted the defendants liberty to apply in relation to the issues raised by the respective Notices of Motion in the proceedings, so that they may be activated at the appropriate juncture in the trial, allowing for the parties to further consider the matters raised. No such applications were made by the defendants, and the Motions were not pursued. I am not thereby required to determine the matters raised by the Notices of Motion filed in Matter Nos. IRC 1732 and 1733 of 2003. In any event, I note that a similar argument was raised in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121, where the defendant sought to argue that the offence with which it was charged was limited to a single day, and that an alleged failure of a system of work which involves checking "from time to time" the manner in which work was performed must fail with respect to any one single day. There was found to be no merit in that argument. Similarly, there can be no merit in any argument that there was no risk to contractors on 28 March 2001 because, on that day, they did not have "access" to the ATV because it was being used by Mr Palmer. As will be seen, the Company's failure in the present matter was clearly part of a failure of a system of work which was not limited to a failure to restrict access to the ATV. It should also be noted that I find later in this judgment that, save for Mr Thorn, access to the ATV was not restricted at any time up to and including the day of the incident. The fact that the ATV was not available for that part of the day of the incident that Mr Palmer used it does not obviate a finding that there existed a failure in the system of work concerning the use of the ATV.

17 The prosecution called as witnesses: Barry John Childs, a WorkCover inspector who inspected the site on 29 March 2001, the day after the accident, and conducted interviews with those who were present on the Farm at the time of the accident; Graeme Joseph Kirk, the managing director of the Company; Stephen Lloyd Austin, Senior Constable of Police stationed at Camden who attended the scene of the accident at about 4.45pm on the day of the accident; Jozsef Andras Garai, Constable of Police stationed at Camden who attended the accident scene with Senior Constable Austin on 28 March 2001; Jason Charles McLeod (also known as Jason Charles Barker), a fencing contractor engaged by the Company who discovered Mr Palmer trapped under the ATV on the day of the accident; Christopher Paul Jamison, fencing contractor, a sub-contractor to Mr McLeod who was with Mr McLeod when Mr Palmer was found; David Joseph Grech, the owner of Camden Machinery and Tractors who sold the ATV to the Company; Richard Stephen De Save, a farm worker employed by the Company; David John Thorn, a rural contractor engaged by the Company who was present on the farm on the day of the accident; and Wayne Kirk Carter, General Manager of Stay Upright Pty Limited, a company engaged in the training of motorcycle riders.

18 A witness statement was taken from Craig Rodney Haden, a fencing contractor engaged by the Company, however Mr Haden died before the matter was heard. Mr Haden's statement was admitted into evidence accompanied by a notice pursuant to s67 of the Evidence Act 1995.

19 The defendants cross-examined each witness called by the prosecutor and further adduced evidence from Mr Terrence John Donohoe, an earthmoving contractor, and Mr John Robert Jamieson, a traffic engineer.

20 I note that Mr Kirk was issued with a caution under s31N of the Act by Inspector Childs, however he chose not to claim privilege in respect of any of his statements to the Inspector.

21 There was no dispute between the parties that: (a) the Company owned the Farm; (b) Mr Kirk was the Managing Director of the Company; (c) Mr Palmer was employed by the Company as manager of the Farm, a position he held on 28 March 2001; (d) The Company engaged contractors to perform work on the Farm, who were so engaged at the time of the accident; (e) The Company owned the ATV; and (f) From time to time, Mr Palmer and the contractors engaged by the Company used the ATV to perform work on the Farm.

22 It was Mr Kirk's evidence that he held "total control" over the business activities of the Company. In the circumstances, I am satisfied that Mr Kirk was a person in a position to influence the conduct of the Company with respect to its duties under the Act. Having regard to the aforementioned undisputed facts, it follows that, if the charges against the Company relating to alleged contraventions of ss15 and 16 of the Act are proven, the charges against Mr Kirk pursuant to s50 of the Act will also be proven. It should be noted that Mr Kirk would not be guilty of an offence under s50 if he used all due diligence to prevent those contraventions by the Company. However, as Mr Kirk was effectively the mind and actor, and controlled the relevant actions of the Company at the Farm, no such issue arises. The defendants did not make any contrary submission.

23 The evidence given by the witnesses was for the most part consistent and uncontroversial.

24 The Company purchased the Farm about nine years ago. Mr Kirk and his wife intended operating the Farm as a hobby farm, however, that was not to be. Mr Kirk had no farming experience, and engaged Mr Palmer to manage the Farm, although Mr and Mrs Kirk continued to reside at the homestead on the Farm. Since the Company purchased the Farm, it has grown from about 80 acres to 620 acres, and the Company now runs about 2000 goats on the Farm as a commercial enterprise. A large portion of the Farm is native bush.

25 Mr Kirk first met Mr Palmer in about 1990, describing him as "a man of the street and ... a school of hard knocks person". Mr Palmer had worked in a range of jobs, including running a large property of his own. Mr Kirk formed the view that Mr Palmer could "turn his hand to anything". I note also that Mr Kirk considered that Mr Palmer had a forceful personality and "was not a person who took advice easily". Mr Palmer was engaged by the Company "on a handshake", in the position of part-time Farm Manager. Mr Palmer was paid for working 15 hours per week, but was present at the Farm virtually all the time. Mr Kirk considered Mr Palmer a close personal friend, for whom he had an enormous amount of trust and respect, which, in part, explains his decision to delegate almost total responsibility for the day to day running of the Farm to Mr Palmer.

26 Mr Palmer had control of the day to day operation of the Farm. Mr Kirk did not supervise Mr Palmer's work, but instructed him of his expectations to "maintain the property and to adhere to all safety regulations especially in regard to motorised vehicles". It was Mr Kirk's evidence that he held monthly meetings with Mr Palmer to discuss those expectations. Mr Kirk was questioned by the prosecutor about his evidence regarding such meetings. Mr Kirk stated that monthly health and safety meetings were held on the Farm with respect to another of Mr Kirk's companies, Kirk Engineering Pty Limited, and that on one occasion Mr Palmer sat in on one of those meetings. Whilst I accept that Mr Kirk and Mr Palmer had frequent discussions, which included discussions about what was happening on the Farm, I am not satisfied that they held regular or systematic meetings regarding occupational health and safety issues (and certainly not meetings of the kind that Mr Palmer attended on that one occasion).

27 In the course of performing his work, Mr Palmer had access to a range of farm machinery. There were a number of vehicles on the Farm, including a Mitsubishi Four Wheel Drive vehicle, a LandCruiser table top truck, a New Holland Caterpillar tracked bulldozer and the ATV.

28 The Company purchased the ATV on 26 June 1998. Mr Palmer was responsible for purchasing the ATV. Mr Kirk gave evidence that "Mr Palmer went and researched different brands and we sat there one morning over coffee and viewed videos of the different attributes. He pointed out the different attributes of each quad bike and he subsequently chose the Polaris". Mr Palmer was authorised to purchase the ATV on behalf of the Company.

29 The agreed description of the relevant features of the Farm (that is, the side of the hill where the ATV overturned on Mr Palmer) included the following: (a) The road was steep and had a hairpin bend downhill and to the right leading to the rear of the property; (b) At a point above the hairpin bend a track [or depression in the undergrowth] had been made by the passage of a New Holland caterpillar tracked bulldozer [on 27 March 2001]; (c) The track [or depression in the undergrowth] commenced on the right hand side of the dirt road and proceeded generally down the hill for a distance of approximately 75 metres where it ended at a deep culvert at the side of the same dirt road; (d) travel via this track [or depression in the undergrowth] avoided the hairpin bend described above. The track [or depression in the undergrowth] ran through heavy undergrowth which although depressed had not been cleared by the passage of the caterpillar tracked vehicle. The track [or depression in the undergrowth] was steep and slippery; (e) The slope had 3 components. The first component at the commencement of the track [or depression in the undergrowth] was comparatively steep. The second component was less steep than the first. The third component was considerably steeper than the first and ran for approximately 40 metres to the culvert and dirt road below. From the top of the second component one could not see the slope beyond the end of the second component; one could see however that the slope fell away sharply at the end of the second component from the top of that second component. Over all of this slope the surface was slippery and loose."

30 The Kirk's homestead was situated at the top of the hill, off the main road. Behind the homestead and down the hill was a large machinery/storage shed. The road described above commenced from the parking area in front of the storage shed. Access to the far back paddock of the property was via this road.

31 On the application of the parties, the Commission undertook a view of the site, at which time the steep slope of the hill was evident. However, any assessment of the nature of the track or depression which existed on 28 March 2001 was not possible, and that assessment depends on photographs that were taken shortly after the accident and the descriptions offered by witnesses.

32 Mr Donohoe, an earthmoving contractor, gave evidence regarding the construction of the road. In about mid-1999, Mr Donohoe was engaged by Mr Palmer, on behalf of the Company, to construct an access road to the lower half of the Farm. At that time, Mr Kirk was considering purchasing the adjacent property and safe access was required to enable that property to be surveyed. There was an existing road, or track, which was described by Mr Donohoe as "very steep and rough, badly eroded as well". It was evident from an aerial picture of the property, and the evidence of Mr Donohoe, that the existing road went in a different direction to the newly constructed road.

33 Mr Donohoe's evidence described the rationale behind the construction of the new road:

Q Why was the road put where it is? A Well, where the existing road was that it was too steep. You couldn't get enough length in it to get rid of a bit of the steepness. So what we had done here, to take it down in two stages so that it wasn't so steep. It's a safer road.

Q When you say in two stages, would you explain to the court what you mean by that? A When it comes down to the first hairpin bend, at that stage there is the drain, that's to carry the water off so the water doesn't continue down, all the way down the road, the existing road would have been a problem because it's very hard to drain to get the water off. In this way here, it lengthens the distance going down. It still ends up at the same point, but it's a longer road so it's not so steep.

Q Did you construct the hairpin bend? A Yes, I did.

Q Are there any features of that hairpin bend that was of significance? A Well, it was made wide, wide enough to get any sort of reasonable machine down there. It was just but a--

Q When you say it was made wide, I think you have given evidence that that is so reasonable machinery could get down? A Yes, the trailer - if you are pulling a trailer down there, you don't want to be in a three-point turn with a trailer on, so it is wide enough to get a vehicle down there with a reasonable length of trailer on the back of it.

34 Mr Donohoe returned to the Farm in about 2000 and undertook some minor maintenance on the road. At that time the road was "fine".

35 Inspector Childs measured the slope of the hill where the depression was. Based on those measurements, the overall average gradient was calculated as about 21 degrees. However, the gradient varied considerably over the three "components" of the hill. The initial slope was assessed to be about 22 degrees for a distance of about 23 metres. The slope then flattened out for a distance of about 16 metres, with a slope of about 16 degrees. The final 31 metres was assessed to be about 24 degrees. The gradient of the road constructed by Mr Donohoe was about 12 to 14 degrees.

36 At the time of the accident, fencing work was being performed on the Farm by Mr McLeod, a fencing contractor trading under the name Fineline Fencing. At about 5pm on 27 March 2001, the day before the accident, Mr Palmer delivered a bundle of steel to the paddock where the fencing work was being performed. The steel was stored on the ground adjacent to the machinery/storage shed. Mr Palmer dragged the steel (eight metre lengths of 75mm x 25mm) behind the Caterpillar tracked bulldozer. Mr De Save followed Mr Palmer on the ATV. He witnessed Mr Palmer leave the road and proceed down the hill, effectively cutting the corner and avoiding the hair-pin bend. Mr De Save did not follow him on this path, but continued on the road and met up with Mr Palmer again at the foot of the hill where Mr Palmer re-entered the road. Mr De Save had not seen Mr Palmer travel that particular route before and did not ask Mr Palmer why he took a short cut on this occasion. I accept Mr De Save's evidence that Mr Palmer was not attempting to cut a new road. In cross-examination by the defendants Mr De Save stated that Mr Palmer had the blade of the tractor up, and "you have to put the blade down and dig it in if you are attempting to dig a road".

37 There is some conflicting evidence as to whether Mr Palmer returned to the machinery shed in the bulldozer, or whether he left it at the back paddock. In any event, I do not consider it necessary to resolve that question. The absence of the bulldozer may shed some light on why Mr Palmer chose to use the ATV the following day to deliver more steel. However, whatever his reasons for driving the ATV, the location of the bulldozer is immaterial in these matters. There was no suggestion that the bulldozer was unavailable for use on 28 March 2001, only the possibility that it was not as readily accessible as the ATV.

38 On 28 March 2001, Mr McLeod, with his employee Craig Jamison and sub-contractor David Thorn, was installing a new boundary fence in "the far back paddock". They commenced work at about 7am. Mr Palmer delivered some welding leads to the fencing contractors at some time mid-morning.

39 At about 2pm, Mr Kirk spoke to Mr Palmer in front of the homestead. Mr De Save and Mr Thorn were in the vicinity having a late lunch under a tree. Mr Palmer drove up on the ATV, spoke briefly to Mr Kirk and Mr Thorn, and then left. As he reversed the ATV, Mr Kirk told him to slow down. Mr Kirk was cross-examined about this evidence:

Q Was there something about the way he reversed the vehicle that day or something else? A No, just generally maybe. I am a very cautious person. In my previous life I was running a large corporation so health and safety is always paramount in my view. I probably tell all sorts of people all sorts of things. On that occasion I said, like I tell my children, to drive carefully every time they leave the driveway. I told him to slow down.

40 Mr Thorn gave evidence that when Mr Palmer left, he was "standing up on the footrests and riding fairly quickly across the paddock". Mr De Save recalled Mr Kirk saying words to the effect "why is he always got to ride the bike like that". Mr De Save and Mr Thorn both gave evidence that they heard Mr Kirk tell Mr Palmer to slow down and be careful on "several occasions".

41 At about 3.40pm, Mr McLeod and Mr Jamison packed up their equipment and headed back to the machinery shed. On their way, they discovered Mr Palmer, pinned under the ATV. The ATV was upside down and on top of Mr Palmer, who was lying face down at the foot of the slope. Attached to the carry racks at the rear of the ATV were three lengths of steel tube, the same as those Mr Palmer dragged behind the bulldozer the previous day, tied together with 12mm nylon rope. Mr McLeod rang Mr De Save and instructed him to call an ambulance. Mr McLeod and Mr Jamison lifted the ATV off Mr Palmer, and rolled Mr Palmer onto his back. Mr Jamison cut the rope off the steel, threw the steel out of the way and pushed the ATV out of the way. Mr De Save arrived with some blankets, followed by Mr Thorn. The ambulance service spoke to Mr De Save on the telephone and gave instructions relating to resuscitation, including checking for a pulse and commencing mouth-to-mouth resuscitation. Mr McLeod could find no pulse, and Mr Thorn commenced CPR. Meanwhile, Mr Kirk was waiting in his vehicle on the main road to lead the ambulance to the accident site. The ambulance officers arrived, monitored Mr Palmer's condition, and then declared that he had died.

42 I find it proven, beyond reasonable doubt, that Mr Palmer used the ATV on 28 March 2001 to tow three lengths of steel which he intended delivering to the fencing contractors who were working in the far back paddock. It was possible to secure the steel to the ATV in one of two ways - either to the tow ball of the ATV or to the carry racks at the rear of the ATV. The evidence established that Mr Palmer secured the steel to the racks, rather than the tow bar. On his way, Mr Palmer left the formed road and proceeded down the side of the hill, following the route he took the previous day on the bulldozer.

43 There was some debate about whether there was a track, or merely a depression in the undergrowth, down the side of the hill. Constable Garai, who attended the accident scene, included in his statement that "there was a well worn track which was about 40 metres long on the grassy hill". Senior Constable Austin also included in his statement that "a well worn track led down to the deceased". In cross-examination, Senior Constable Austin gave the following evidence:

Q Yes, just to be clear, did you actually walk up the embankment, the slope? A No, I didn't walk up it.

Q So any comment in relation to it as being a track is simply based on the observation of what you could see from the lower part of the road where the deceased body was found? A That's correct, observation, and in my statement I have got "a well-worn track", but I mean I couldn't say whether, like, one vehicle going along that had put it down to, like, that depressed state it was, or whether it was numerous, I couldn't say.

Q Right, so is it fair to say that, although you talk about the deceased apparently traveling along it many times, you have got no basis apart from your observation? A That's correct.

44 Similarly, when cross-examined in relation to his evidence, Constable Garai said:

Q When you talk about a track you are simply saying what you observed from looking up at a point adjacent to the deceased, up the hill towards the upper part of the road in the shed? A Yes.

Q Did you observe any tyre or machine markings in the vicinity of the deceased at the bottom of the hill? A On the track?

Q Well, on the track or otherwise? A No.

Q I assume you looked for them, did you? A No, I didn't look for them at the crime scene. My offsider would have. What I saw was a track which has been worn in.

45 The following note was made in the Police Service job sheet:

I walked along the track and found no obvious signs of disturbance to the vegetation on the side of the track, consistent with the steel sliding away from the track of the vehicle. The track had been made by using a slightly larger grader style machine. Tracks left by the Quad bike were not distinct.

The quad bike appears to have followed the track made by the grader down the embankment.

46 Irrespective of the description, I am satisfied that the route taken by Mr Palmer on the day of the accident was not a formed track in the sense of either a constructed road or a depression created in the natural landscape by the regular passage of people on vehicles or foot. Further, his chosen route was unnecessary, given the existence of a road constructed by machinery leading to the back paddock.

47 Mr De Save, who was the only person to witness Mr Palmer travel down the side of the hill on the previous day, said:

The route he took on the ATV only appeared to be a track from the depression from the grass that he had created the afternoon before when he drove the crawler tractor on the same route dragging the 8m length of steel as a more direct route to save dragging the steel around the hairpin bend.

48 Nobody knew precisely why Mr Palmer elected to drive the ATV down the side of the hill on 28 March 2001. No witness saw him do it, and no person witnessed the accident. When asked about the path taken by Mr Palmer, Mr Kirk stated "I wouldn't call it a path. It's the side of a hill in my opinion and I was shocked to find that anybody would attempt to even walk down it let alone navigate a vehicle when there is a perfectly good road adjacent to it". Dynamics of the accident

49 Mr John Robert Jamieson, Traffic Engineer, was engaged by the Company to analyse, amongst other things, vehicle dynamics. Mr Jamieson's report contained an examination of the physics of the accident. He stated:

Based on the provided dimensions of the steel and the published density of steel, the resultant mass of each of the tubes was calculated to be about 94kg. Therefore, three of such tubes would have been about 282kg ... [The] published specifications of [the ATV] notes that its dry weight is about 307 kilograms. This vehicle's "hitch towing capacity" is specified as 556.8 kgs. It is presumed that the "hitch" is the tow ball ... Therefore, from a pure physics viewpoint, the towing/towed mass ratio would have been satisfactory, at least for flat ground, using the tow ball.

For any vehicle to maintain control on a steeply sloping surface the vehicle's speed needs to be controlled by retardation. This is almost always created by force applied form the vehicle's brakes, through its tyres onto the ground.

Theoretically, given the mass of the towed load was less than the published mass of the vehicle itself and the grade down was within the operational limitations of the vehicle (although it is not known whether this grade limit was in the context of towing), then the operation should have to be satisfactory - although close to the limits of safety.

This situation however, would only occur if the force supplied by the combined retardation systems was satisfactory to keep the vehicle and load down to a controllable speed on such a steep slope. If these systems did not do this, then one or two other outcomes would have taken place.

a) retardation systems were of insufficient power to retard the combination of the heavy towed structure of the towing vehicle, with the result that the vehicle would have speeded up (due to gravity) with the control of the vehicle being lost, or

b) the brakes were of sufficient power to actually lock the rubber tyres of the ATV because of the relatively low friction (due to the combination of the coefficient of friction and the grade) which similarly made the control of the vehicle difficult with a control loss resulting.

An additional element to take into consideration for this towing towed combination concerns the "pushing" effect of the 282 kg load... Attention is drawn to the bar on which the steel tubing was evidently tied. This bar was mounted to the rear of the rear axle. Thus any force acting in a downward direction on the bar would create a "lever arm". This had the potential to push the ATV's rear down and thus lift (or at least lighten) the front steer axle. This lightened front axle would thus have been prone to premature locking when under heavy braking.

In summary, while this discussion indicated that each individual element of the operation appeared to be within the "design specification" of the operation of the vehicle (at least in terms of towing capacity and terrain capability), when these elements were combined with the method of mounting of the steel on the top of the carry bar (rather than being towed using the tow ball provided), then such an operation would be hazardous.

50 In cross-examination by the prosecutor, Mr Jamieson gave the following evidence regarding towing lengths of steel behind the ATV:

Q Mr Jamieson, using all of your experience would you have regarded that as a safe practice, to tow lengths of steel fencing material behind the ATV going down the access road? A The constructed road?

Q Yes, that's right. A Yes, it would have been fine.

Q Would it be safe to tow it behind an all terrain vehicle? A Yes, on a bulldozer constructed road, yes.

Q Why is that? A Because the grades were moderate.

Q And you would have no concern about the capacity of the ATV to brake, to arrest itself and the load that it was dragging in those conditions? A Well, it would depend on the number of lengths of the fencing material towed. If you are asking if the load was the same as in this instance, then the grades were sufficiently moderate to allow the towing of the lengths.

Q By dragging them along the ground attached by ropes? A Yes.

Q Would you consider that to be a safe practice then on that road? A On that road there is nothing particularly unsafe about it as long as the ATV was kept on the road.

51 Mr Jamieson did not testify that the use of the ATV on the slope in question was inherently unsafe, or that the ATV was unsuitable for use on the slope. Rather, Mr Jamieson stated in his report that the "short cut" taken by Mr Palmer featured grades of between 16 degrees and 23 degrees which "approached the operational limits of an ATV (25 degree slopes)". Mr Jamieson also noted, in his calculation of the level of friction required to prevent an object sliding down a slope, that "the potential existed for the friction supply of the sloped ground to be insufficient for an ATV to descend". Mr Jamieson was not cross-examined in relation to this evidence. I accept Mr Jamieson's conclusion that:

In summary, while this discussion indicated that each individual element of the operation appeared to be within the "design specification" of the operation of the vehicle (at least in terms of towing capacity and terrain capability), when these elements were combined with the method of mounting of the steel on the top of the carry bar (rather than being towed using the tow ball provided), then such an operation would be hazardous.

52 There was no evidence of the speed at which Mr Palmer was operating the ATV at the time of the accident, or whether he was applying the correct braking technique for downhill riding. However, I am satisfied beyond reasonable doubt that the gradient of the terrain, the nature of the slope's surface, the total mass of the vehicle, and the improper hitching of the steel to the ATV's racks rather than to the tow bar were factors which, when combined, led to the ATV overturning on 28 March 2001.

53 The ATV came with an "Owner's Safety and Maintenance Manual". The Owner's Manual identified the various safety warnings and operation decals that were affixed to the ATV. According to the Owner's Manual, the following warning was stated on a decal which should have been found on both the front and rear racks of models which are supplied with racks, such as that purchased by the Company:

WARNING. DO NOT TOW FROM RACK OR BUMPER. Vehicle damage or tipover may result causing severe injury or death. Tow only from tow hooks or hitch.

54 Whilst the warning was stated in the Owner's Manual, there was no evidence of the existence of this particular decal on the ATV. No oral evidence was adduced regarding either the presence or removal of the decal, and the decal cannot be seen in photographs of the ATV, which clearly show the front and rear racks.

55 The Owner's Manual gave instructions in relation to "carrying loads", and using the ATV to tow a trailer. It stated:

Your ATV has been designed to carry a certain amount of load. CARGO WEIGHT should be evenly distributed (1/3 on the front and 2/3 on the rear) and mounted as low as possible. When operating over rough or hilly terrain, reduce speed and cargo to maintain stable driving conditions. Never exceed the following weights.

Model Total Load Capacity (includes driver & cargo) Front Rack Cargo Maximum Rear Rack Cargo Maximum Sportsman 500 213kg 41kg 82kg ...

Maximum trailer weight - 386kg ... Sportsman 500 may tow up to 568kg on level ground only.

Maximum grade while trailer towing - 15. Do not tow any trailer on a grade steeper than 15.

56 Mr Kirk gave evidence that it was not common practice to tow materials behind the ATV on the Farm and that he had never seen it done. He had never instructed Mr Palmer to not use the ATV to tow materials on the Farm, and the Company was unaware that the ATV would ever be used for towing. He also gave evidence that the Company did not have a system of work for materials being towed behind the ATV on the Farm "because it would be unacceptable to tow anything behind the ATV". When examined by the prosecutor, Mr Kirk stated that he considered it would be unacceptable to tow anything behind the ATV either on the road or off-road.

57 Mr Kirk gave evidence that the Company did not have a system in place to determine whether Mr Palmer was using the ATV in a safe manner.

58 Mr McLeod gave the following evidence in cross-examination by the defendants:

Q Mr McLeod, Mr Agius asked you whether there was anything to prevent you using the bike on 28 March 2001 and you said there was not but on that day, or any other day, would you have contemplated towing the steel which was being used in your construction work on the back of the Quad bike? A No, not at all.

Q Why is that? A Basically I believe and for the safety of my own workers and too dangerous and not practical. In my eyes it's an unsafe practice.

Q Is that something you know without having to read a manual about it? A For sure.

Q Why is this? A Because it is just not a safe work practice.

Q Are you saying to his Honour it is so self-evident you would not think about doing it? A No, I wouldn't think about it, I wouldn't contemplate it. And later in re-examination:

Q Was [the ATV] ever used to your knowledge for towing? A No, not that I'm aware. We used it for minor - it might be a breakdown in the electric fencing, electric fencing that somebody had to trace. Minor use, minor cartage, it wasn't a machine we used very regular[ly] due to carting my own truck with equipment, fencing tools and equipment.

59 Mr Jamison gave evidence that it was not common practice to tow materials behind the ATV on the Farm and that he was not aware of either having seen or known of such a practice. When cross-examined by the defendants in relation to his evidence, Mr Jamison stated that he would not have contemplated towing material behind the ATV because of "commonsense".

60 Similarly, Mr Thorn stated that it was not common practice to tow materials behind the ATV on the Farm and he had never seen it happen.

61 Mr De Save was the only witness who gave evidence that he had seen the ATV used to tow anything on the Farm. Whilst he had not seen the ATV used to tow steel (until 28 March 2001), it had been used "for things like dragging mesh harrows to spread manure in the paddocks".

62 I find that there was no system in place in relation to the use of the ATV with respect to towing. Despite Mr Kirk's evidence that he considered that it would be unacceptable to tow anything behind the ATV, no instruction was given to anybody in that respect. There was evidence that the ATV had in fact been used in the past to tow, albeit on a limited basis and not to the extent employed by Mr Palmer on the day of the accident.

63 Whilst the Owner's Manual included a warning regarding towing, and expressly stated not to tow from the carry racks, I saw no evidence that the ATV carried a decal specifying that warning as was suggested in the Owner's Manual. No instruction was issued directly to employees or contractors to that effect except to the extent that an employee may have been shown the manual (which, as I later note, was restricted to Mr Palmer receiving it at the time of purchase and Mr De Save finding it and reading it out of curiosity). Even then there was no further assertion by the Company by instruction, training or supervision as to the application of the Owner's Manual, and no particular instruction or training as to the use of the ATV on the Farm. I shall deal with the evidence that it was "obvious" or "commonsense" not to carry or tow steel later in this judgment.

64 It is not necessary that I determine whether or not it was a safe practice to use the ATV to tow lengths of steel, although I note that the ATV came fitted with a tow ball, and the Owner's Manual offered instructions in relation to safe towing practice.

65 Mr Kirk gave evidence in his statement that, to his knowledge, no person other than contractors or employees of the Company had access to the ATV, and that Mr Palmer was responsible for authorising access to the ATV.

66 Mr McLeod gave evidence in his statement that he had "occasionally" used the ATV for "general purposes" on the farm over the two years prior to the accident, such as looking at workplaces and to courier things back to the machinery shed. In relation to access to the ATV, Mr McLeod gave the following evidence:

Q Where was [the ATV kept]? A It was either in the big work shed on the bottom platform and occasionally kept in the container depending on how much other equipment was in there.

Q You would go there and would you have to ask anybody to get access to it? A No.

Q What about to actually get on it and use it, did you have to seek any special permission from anybody to use it? A No, we had our own keys to the front gate and shed. We were trusted with anything there. We didn't have to - no, we didn't.

Q So if it was there you could get on it and drive it away? A Yes.

67 Similarly, Mr Jamison gave evidence that he had used the ATV "several times" in the "several months" prior to Mr Palmer's accident in the course of working on the Farm. He deposed that:

Q Was there any particular procedure you needed to follow in order to get access to that bike when you needed to use it? A Not that I was aware of, it was just there available for the use of anyone that required the use of it.

Q When you say "just there", whereabouts was it? A It was in the machinery shed.

Q If you needed it on any particular day associated with your work what did you do? A Just go and get it from where ever it was located in the machinery shed.

Q And just ride it away and use it? A Pretty well, yeah.

68 Mr De Save gave evidence that he used the ATV on the Farm "possibly every day" during the three month period immediately prior to Mr Palmer's accident, when he started using it to feed the dogs that were kept on the Farm. In cross-examination by the defendants, Mr De Save said:

Q Were you given free access to that ATV as you wished to use it? A I guess you could say that, yes, but I very seldom did. I could probably recall using it prior to when I started to use it to feed the dogs.

69 It was Mr Thorn's evidence that he had used the ATV on the Farm about "half a dozen times" prior to Mr Palmer's accident. Mr Thorn was the only witness who stated that he did not have unrestricted access to the ATV. When cross-examined by the defendants, Mr Thorn gave the following evidence:

Q Where was the ATV kept, to your knowledge? A In a shipping container in the shed.

Q Did you have access to the ATV? A No. I didn't at that time, no.

Q Did you ride the ATV? A Yes.

Q How would you get access if you wished to use the vehicle? A Mr Palmer would have to unlock it and take it out for me.

70 I am satisfied that all of the employees and contractors who performed work on the Farm used the ATV from time to time. Other than with respect to Mr Thorn, I find that employees and contractors on the Farm had unrestricted access to the ATV. No explanation was offered by either party as to why Mr Thorn's access to the ATV was restricted, but that evidence does not detract, in my view, from a finding that the ATV was otherwise generally accessible.

71 Mr McLeod gave evidence in his statement to Inspector Childs that he was not given instructions relating to areas on the Farm that he should ride the ATV, but that "obviously you just stick to the tracks".

72 Mr McLeod stated that he had used the ATV in areas other than on roads. When asked in re-examination by the prosecutor about his use of the ATV off-road, Mr McLeod stated:

Occasionally if you had to cross a paddock to look at a new job site or for what ever reason, to check an electric fence, see where the new fence is going, cross on to a new track, but never at any time drive in a dangerous contour, et cetera.

73 Mr McLeod further stated that there were no limitations ever placed on him by anyone as to where on the Farm he could ride the ATV.

74 It was Mr Jamison and Mr De Save's evidence that they received no instructions as to any areas where the ATV should not be ridden. Mr Jamison gave evidence that he had not used the ATV in areas other than on the roads. Mr De Save gave evidence that he "very seldom, if ever" rode the ATV off-road.

75 Mr Haden, in his statement to Inspector Childs, stated that Mr Palmer told him "not to leave the track". Mr Thorn also gave evidence that he was told by Mr Palmer not to go off the roads. He further stated that he had not used the ATV in areas of the Farm other than on the roads.

76 Mr Thorn and Mr Haden were the only people who were instructed not to use the ATV off-road, although that instruction was issued by Mr Palmer for reasons that are not clear. No explanation was offered by the prosecutor or the defendants as to why no other employees or contractors were given that instruction. It should be noted that the submission of the defendants often blurred the distinction between the elements of ss15 and 16 of the Act and the defence available under s53. However, there is no evidence that the ATV was unsuitable for use off-road, or that it was an inherently unsafe practice to operate the ATV on the side of a hill (beyond the specified limits in the Owner's Manual). That is not to say that extreme caution should not have been exercised when riding the ATV off-road, particularly given the nature of the terrain at the Farm. However, the gradient was within the specified operational limits of the ATV, although it was certainly close to those limits.

77 Mr Grech, the Principal of Camden Machinery and Tractors, gave evidence that he sold the ATV to the Company on 1 December 1998, and that Mr Palmer took delivery of the ATV on behalf of the Company. At that time, Mr Palmer performed a test ride and signed a Pre-Delivery check list. The check list took "about 30 minutes" to complete. When asked about the delivery of the ATV to Mr Palmer during his interview with Inspector Childs, Mr Grech gave the following answers:

Q Can you tell me where these test rides are conducted? A The test ride was conducted on site up and down the back yard of the premises Camden Machinery and Tractors.

Q Can you tell me why these test rides are conducted? A Basically to acknowledge that the person taking delivery of the ATV can ride in a safe manner and is aware of the safety precautions when using the machine.

Q Can you tell me why the document shows a line through the box related to Rider Course? A I am not sure why because Graham Palmer was given a basic riders course at the time he picked up the ATV by us. We would have showed him the location and use of all controls on the ATV the warning stickers affixed to the machine related [to] the use and operation of the ATV. I myself demonstrated the operation of the machine to Graham Palmer and then let Graham operate the ATV to show that he was capable to operate the ATV in a safe manner.

78 When cross-examined about these answers, Mr Grech gave the following evidence:

Q You had not provided a safety training course for Mr Palmer? A In terms of safety training it is his ability to ride the machine. He has driven that. We took that as the safety training.

Q But the ability to turn it on and ride it across flat terrain at the back of your shop? A That is right, yes, together with all the information that we put forward in regards to delivery, outlining all the warnings on the machine. They are basically a machine easy to operate. Anybody with a bit of care and caution can sort of operate one safely.

79 There was some discussion of a safety video that was allegedly provided to Mr Palmer at the time of sale or delivery of the ATV. Mr Grech gave evidence that he believed the video consisted of two tapes, the first tape relating to promotional or product information, and the second relating to safety. There was some further discussion as to whether the safety video could not be viewed, as it originated in America and had been recorded in a format which was not able to be viewed using an Australian video machine. The first of those video tapes was in evidence. Whilst I am prepared to accept that the safety video existed at the time the Company purchased the ATV, I have some doubts as to whether it was given to Mr Palmer when he took delivery of the ATV. In any event, I find conclusively that no employee of, or contractor to, the Company had seen the safety video at the time of Mr Palmer's accident and there was no evidence as to its content.

80 I find that the instructions provided to Mr Palmer by Mr Grech was limited to demonstrating the basic skills required to operate the ATV, and was insufficient to ensure that Mr Palmer was able to use the ATV safely and without risk, particularly on rough, uneven or sloping terrain, or when carrying or towing objects.

81 Apart from Mr Palmer, Mr Kirk and Kay Kirk, Mr De Save was the only other employee of the Company. Mr De Save received no training as to how to operate the ATV.

82 Jason McLeod, Chris Jamison, David Thorn and Craig Haden were contractors, and present on the Farm on 28 March 2001. As to training, Mr McLeod spoke of "the general motor bike operations that were given to me by Graham Palmer". In cross-examination by counsel for the defendants, Mr McLeod gave the following evidence:

Q How long did Mr Palmer take in demonstrating to you its basic operation? A Not long. Basically said the basic stop, start, braking. Obviously I would like to think I'm an experienced bike rider. Commonsense, like, you check oils, fuels, fuel gauge ourselves, tyre pressure, so it was only basically the basic stop start.

Q Basic mechanics of use? A That's correct.

83 Similarly, Mr Thorn stated that he just got a "run over" by Graham Palmer, that is, "brakes, throttle, gear lever, fuel, oil, lights, that's about it". Mr Haden's statement was that he was given verbal training on how to put it into 4-wheel drive and safety. The information he was given regarding safety he described as "not to leave the track. Common sense". By common sense, Mr Haden stated that he meant "don't flog the bike, don't speed on the bike".

84 Inspector Childs gave evidence in cross-examination regarding the degree of instruction that he considered should have been given. He said:

Q What further information or instruction do you say should have been given by Mr Kirk or Kirk Group Holdings Pty Limited with respect to proper use of that vehicle to ensure safety? A To clarify the question, what instruction do I believe should have been given?

Q You are the informant and one of the particulars is we should have, either Mr Kirk or the Company should have given more explicit instructions. A I believe instructions along the lines that the bike under no circumstances was to be operated off undesignated roadways that had been assessed or identified for the suitability of the use of a bike, a clear instruction that in the vent of any failure to monitor the instruction or information contained in the manual could result in action in regards to the availability of further use of the ATV and possible danger and discontinued use of the ATV.

85 The prosecutor adduced evidence from Mr Carter regarding the availability of training at the time of the accident. It was Mr Carter's evidence that Stay Upright Pty Limited were offering training courses to ATV operators at the time the Company purchased the ATV, and at the time of Mr Palmer's accident. In cross-examination by the defendants, Mr Carter described the terrain on which the training is conducted as two "gently undulating" areas - a large grassed area and a small sand area - and stated that the majority of ATV training is conducted at the client's site. When the specific terrain at the Farm was described to him, Mr Carter acknowledged that he would not provide training for the use of an ATV on a hill such as that where Mr Palmer's accident occurred. Mr Carter expressed some hesitations, not being an ATV instructor, and not having seen the site himself, but stated "if it's that steep, we would probably say "No, don't drive there". He added "If there was a road there, why would a person drive it down a grassy slope?"

86 I find that none of the Company's employees or contractors engaged by the Company were instructed or trained in relation to the use of the ATV, beyond a demonstration of the basic functions of the vehicle. The fact that the Owner's Manual may have been available was not enough to provide such instruction or training, particularly in circumstances where the only people known to have seen the Owner's Manual were Mr Palmer and Mr De Save. Whilst the Owner's Manual contained important safety information, it was not accompanied by even a basic instruction that it must be interpreted having regard to the particular terrain at the Farm where the ATV was to be used.

87 Mr Kirk gave evidence that the Company provided helmet, gloves, safety boots and protective glasses for riding the ATV on the Farm. There was no evidence that any of the protective equipment was worn by employees or contractors when using the ATV prior to 28 March 2001.

88 The Owner's Manual contained extensive warnings regarding the potential hazards associated with operating the ATV. Inspector Childs acknowledged in cross-examination that it was "quite encompassing".

89 I find that Mr Palmer was aware of the existence of the Owner's Manual, having taken delivery of the ATV from Camden Machinery and Tractors, although there is no evidence as to whether Mr Palmer read the Owner's Manual or was in any way familiar with its contents. The Company did not give a copy of the Owner's Manual to any of the other employees or contractors to read prior to using the ATV, nor did it require them to have read it. None of the contractors had seen the Owner's Manual. Mr De Save gave evidence that he came across the Owner's Manual in the workshop about 6 months prior to the accident. Mr De Save read the Owner's Manual at that time "out of curiosity to see what was in it". As previously mentioned, the evidence revealed that no employee or contractor was given an instruction to comply with it. Nor was there any attempt to tailor the advice within it for use on the Farm by way of supplementary instructions as to how the Owner's Manual would be applied with respect to the use of the ATV on the Farm.

An ATV handles differently from other vehicles including motorcycles and cars. A collision or rollover can occur quickly, even during routine maneuvers such as turning and driving on hills or over obstacles if you fail to take proper precautions.

91 The Owner's Manual contained numerous operation warnings, including:

POTENTIAL HAZARD WHAT CAN HAPPEN HOW TO AVOID THE HAZARD Operating this ATV without proper instruction The risk of an accident is greatly increased if the operator does not know how to operate the ATV properly in different situations and on different types of terrain Beginning and inexperienced operators should complete the certified training course offered by Polaris Industries Inc. They should then regularly practice the skills learned in the course and the operating techniques described in the Owner's Manual Operating this ATV at excessive speeds Increases your chances of losing control of the ATV, which can result in an accident Always travel at a speed which is proper for the terrain, visibility and operating conditions; and your experience. Operating on excessively steep hills. The vehicle can overturn more easily on extremely steep hills than on level surfaces or small hills. Never operate the ATV on hills too steep for the ATV or for your abilities. Practice on smaller hills before attempting large hills. Never operate ATV on hills steeper than 25. Failure to use extra care when operating this ATV on unfamiliar terrain You can come upon hidden rocks, bumps, or holes, without enough time to react. Could result in the ATV overturning or going out of control. Go slowly and be extra careful when operating on unfamiliar terrain. Always be alert to changing terrain conditions when operating the ATV. Failure to use extra care when operating on excessively rough, slippery or loose terrain. Could cause loss of traction or vehicle control, which could result in an accident, including an overturn. Do not operate on excessively rough, slippery or loose terrain until you have learned and practiced the skills necessary to control the ATV on such terrain. Always be especially cautious on these kinds of terrain. Going down a hill improperly Could cause loss of control or cause ATV to overturn Always follow proper procedures for going down hills as described in the Owner's Manual.... NOTE: A special technique is required when braking as you go downhill. Always check the terrain carefully before you start down any hill. Shift your weight backward. Never go down a hill at high speed. Avoid going down a hill at an angle which would cause the vehicle to lean sharply to one side. Go straight down the hill where possible.

92 I am satisfied that the Owner's Manual does contain specific information about the hazards associated with the operation of the ATV, and in particular the risk of the ATV overturning. It states "Never operate an ATV without proper instruction. Take a training course. Beginners should receive training from a certified instructor". (emphasis added) But no one of those warnings can, of course, be explicit as to the particular hazards at the Farm or act as an instruction to employees without more. This requires further steps which were not taken.

93 Inspector Childs was questioned in cross-examination by the defendants about the adequacy of the Owner's Manual to provide a safe system of work for use of the ATV on the Farm. In his answer, the Inspector made abundantly clear the deficiency (in providing a safe system of work) that would arise from only reading the Owner's Manual. His evidence was as follows:

Q You do not say, do you, Mr Childs, that there was any further information which was required apart from that set out on page 25 and following of the manual which should have been given to ensure that Mr Palmer was aware of the [risks] inherent in the use of the quad bike? A Just paraphrasing to ensure that Mr Palmer was aware of the inherent hazards.

Q You do not say there was no further information apart from what is set out in almost words of one syllable in the document, you do not say that there was any further information that was necessary to be available to him or do you? A I believe that there is access for further information to be provided to operators or repairers of ATVs in the form of a hands-on instruction and training and clear instructions being in the form of a formalised and experienced training regime to ensure that there is a familiarisation of the type of hazards that can be encountered and the appropriate management or control procedures that need to be used in the event of the use of the bike on particular terrains and in certain circumstances. I believe that information could be provided in the form of after market training, seminar or session.

Q But assuming Mr Palmer had read and understood the explicit warnings contained about going down slopes, what further instruction by way of restatement or the like do you say should have been given about the use of the vehicle? A Obviously an instruction in regards to complete adherence to the operator's manual and safe procedures based on the potential risks of using the bike on that particular site.

94 Mr Kirk did not take an active role in the operation of the Farm due, at least in part, to his ill health and lack of farming experience. Mr Kirk effectively conferred the responsibility for all operational aspects of the Farm on Mr Palmer, including responsibilities for occupational health and safety. Mr Kirk gave evidence that he had provided occupational health and safety training to Mr Palmer. He stated:

I charged Mr Palmer with looking after all aspects of health and safety on the Razorback property. I had him in to our head office on numerous occasions, had him study the health and safety documentation provided by three outside consultants, issue him copies of these and asked him to formulate a specific plan for Razorback, but due to his untimely death he had not completed these. Because of the special nature of the Razorback property and there were only two employees I felt he'd be best carrying this out.

95 Although the documentation provided to Mr Palmer related to the operation of other businesses conducted by Mr Kirk, Mr Kirk considered that there were parallels that could be drawn between those businesses and the Farm. At the time of Mr Palmer's accident, a risk assessment of the Farm had not been conducted, nor was there a specific health and safety plan for the Farm. Mr Kirk gave the following evidence:

Mr Palmer was my personal friend and aide, so he was always asking me what I was doing. I was sitting there for weeks working on the health and safety policy for the Melbourne plant so he was constantly asking me what I was doing and I was constantly showing him what was involved. We never got around to doing it for the farm, we never got around to doing it until after his death.

96 In relation to the ATV, Mr Kirk stated that it was Mr Palmer's responsibility to develop a safe system of work for the operation of the ATV on the Farm and to arrange suitable training and, to carry out an assessment of the hazards associated with operating the ATV on the Farm. Mr Kirk stated:

The Company believed Mr Palmer in his role as Farm manager and as part of his duties was responsible for the safe operation of plant and equipment, had assessed the hazards, read the operation instructions which came with the equipment and used them accordingly and appropriately in carrying out his duties.

97 Mr Kirk gave evidence that the Company had never undertaken a risk assessment associated with the use of the ATV on the farm, had never asked Mr Palmer to conduct a risk assessment in relation to the use of the ATV on the Farm and had never determined whether Mr Palmer had the necessary skills or training to manage occupational health and safety on the Farm.

98 The thrust of the evidence was that it was not uncommon for Mr Palmer to ride the ATV quickly. Mr Kirk, on occasion, told Mr Palmer to slow down or be careful in relation to his use of the ATV. Mr Kirk gave evidence that he had counselled Mr Palmer in the past regarding his manner of riding the ATV:

Q You previously said you had to counsel him on occasions because of aggressive driving? A I had seen him drive in a manner which was too fast.

Q Including driving the ATV? A On one previous occasion I sat him down and had a chat to him on his driving the ATV.

Q What did you tell him on the occasion you sat down and told him about his driving of the ATV? A I said I felt he drove too fast and would like to see him drive it in a more sedate manner.

Q Did you tell him anything else about his driving of the ATV? A Not that I can recall.

Q Do you have a view as to whether or not, in relation to the use of the ATV on the property, it was sufficient to ensure the health and safety of Mr Palmer, if he had read and applied the operations manual? A Yes.

Q What is your view? A My view is, yes, he would have - it would have negated him having that type of accident.

Q Do you have that view, regardless of whether or not any risk assessment had been undertaken, as to the way in which that manual might operate on this property, given the particular exigencies of the property and so on? A Yes, I do and obviously, as I said earlier I subsequently read it afterwards, and if he followed the instructions in the manual the accident would not have happened.

100 Inspector Childs was asked in cross-examination about the further steps he considered Mr Kirk could have taken to ensure Mr Palmer's health and safety:

Q I suggest to you, having read the various matters, various explicit hazards outlined in the manual at pages 25, 26 and 27 and bearing in mind that Mr Kirk had said to you he told Mr Palmer to be careful about riding the bike and given that Mr Palmer was in charge of running the farm, I suggest there was nothing else Mr Kirk could have done to ensure the safety of Mr Palmer? A I disagree with that in the sense that there are further steps that can be taken by persons within the company in regards to ensuring that the employees of that company observe and administer the request or the instructions of their employer such as conducting observations of the work that is being undertaken, the manner it is being undertaken and obviously observing what actually took place in relation to the particular activity that is being undertaken.

Q That is in the context, I take it Mr Childs, of an employer being aware of a course of conduct or the like which comes to his attention which he then feels necessary to either approve or alert by some explicit instruction? A No, I do not believe that the employer needs to be aware that there is a non-compliance in a particular area. I think where the employer establishes a system or requires a particular work practice that the employer is required to ensure that the effectiveness of these systems or the requests that have been made are suitable to be able to satisfy the needs of what the intended purpose of the employer is.

101 Inspector Childs gave evidence that there are "inherent problems in [the ATV's] design and operation". It was Inspector Childs' evidence that, in addition to restricting access to the ATV, ensuring the driver of the ATV is competent and aware of how to operate the ATV, and knows not to speed, that in order for a system of work to be safe, the following further instructions would be required:

I would certainly be ensuring that no person who operated the ATV at the property until such time as the recommendations of the manual, contained within the manual, in regards to undertaking an accredited training course in the safe operation of the vehicle was conducted, that no persons operate the ATV until such time.

102 Such steps would be required, according to Inspector Childs, even in relation to use of the ATV on "some of the rough, loose and rocky terrain that was contained within the actual access roads on the property". Inspector Childs further stated that instructions should have been given to employees and contractors "along the lines that the bike under no circumstances was to be operated off undesignated roadways that had been assessed or identified for the suitable use of the bike".

103 I note that Inspector Childs holds a current Forklift Driver's Certificate of Competency and a Crane Operator's Certificate of Competency. Inspector Childs acknowledged in cross-examination by the defendants that he did not have any formal expertise in terms of the assessment of risk involved in using an off-road vehicle. However, I understood his evidence, given in cross-examination by the defendants' counsel, was as to a safe system of work for the Farm where such a vehicle may be used by employees, having regard to the duties imposed upon employers by the Act, and the dangers implicit in the use of such a vehicle as stated in the Owner's Manual.

104 Whilst Mr Kirk may have been generally aware of his health and safety obligations as an employer as a result of running other businesses, it is abundantly clear that he did not attend to those obligations with respect to the Farm in the same way. When questioned in relation to a previous accident involving the ATV, Mr Palmer gave the following evidence:

Q What incidents were you referring to there? A The fall that I had off the ATV.

Q The fall that you had yourself? A Yes.

Q When was that? A I can't exactly remember it, but I was riding the ATV and near a dam and slipped and it pinned me to the dam.

Q Was this before Mr Palmer died? A Yes, it was.

Q And as a result of that incident, and following it, before he died, did you do anything about occupational health and safety in relation to the ATV on the farm? A No, because it was his personal transport, so I believe he was the only one using it. I don't think I rode it after that.

Q That incident didn't cause you to do anything about occupational health and safety on the farm in relation to the ATV? A Well, it wasn't a farm, it wasn't a livelihood - if it was a workplace, I probably would have done something, but it's my personal home.

105 In my view, the evidence demonstrates, beyond reasonable doubt, that Mr Kirk (and therefore the Company, except in the case of (k)): (a) had not seen or read the Owner's Manual prior to Mr Palmer's accident; (b) did not supervise the daily activities of employees or contractors working on the Farm; (c) did not conduct a risk assessment, or request any other person to conduct a risk assessment, regarding the use of the ATV on the Farm; (d) did not take any steps to limit or restrict access to the ATV to only those employees and contractors who were suitably qualified and trained to ride the ATV; (e) did not ensure that employees or contractors read and understood the Owner's Manual;

(f) gave no instructions to any employee or contractor, including Mr Palmer, that conditions for use of the ATV specified in the Owner's Manual must be adhered to;

(g) gave no instructions to Mr Palmer to instruct employees and contractors only to use the ATV in accordance with the Owner's Manual;

(h) gave no particular instructions to any employee or contractor as to how the Owner's Manual would be applied at the Farm;

(i) gave no instructions to any employee or contractor that the ATV was not to be used off-road or on sloping terrain (either generally or of a particular gradient);

(j) relied on Mr Palmer to give instruction and training without equipping him with the knowledge or tools to undertake those duties, and without supervising or monitoring his performance of those duties;

(k) approached the creation of a safe system of work differently between two businesses he operated; and

(l) had no system in place to assess and determine whether or not employees of, or contractors to, the Company were trained in the use of the ATV, or were using the ATV in a manner which was safe and without risk to health.

106 Mr J Agius of senior counsel appeared for the prosecutor, assisted by Mr A Searle of counsel.

107 The prosecutor submitted that both s15 and s16 are concerned with the existence of a risk to health and safety, and that a risk to health or safety may exist if an employer's acts or omissions have created a situation of potential danger to the health or safety of persons in the workplace, even if no accident or injury occurs as a result of that risk: Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 and WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (No 1) (2000) 101 IR 239 .

108 The essence of the prosecutor's submission was that the use of the ATV on the Farm, including on the formed roads, in the absence of appropriate systems of work, instruction, training and supervision, constituted a risk to safety. This exposure to risk, according to the prosecutor, is amply demonstrated in the evidence, and in particular by the terms of the Owner's Manual which is "absolutely explicit about potential hazards to be avoided when using the ATV".

109 The prosecutor accepted that there must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: Kellogg (No 1) at 253.

110 It was the prosecutor's contention that the Company may not purport to confer all responsibility for health and safety in the workplace on Mr Palmer, and in particular in relation to the operation of the ATV, and then take no measures to ensure that Mr Palmer was properly carrying out those responsibilities, or indeed whether he had the skills necessary to undertake the tasks required. The prosecutor cited the following passage from WorkCover v Fletcher Constructions (at [40]-[42]) in support of this contention:

[40] I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely.

[41] However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with. I shall return to this consideration later in this judgment.

[42] To adopt what was stated by the Court in WorkCover Authority v Kellogg (No.1) (at 258), these are matters to which a 'managerial mind' should be directed. Whilst the content of such policies and procedures may well be the subject of appropriate advice, ensuring that such steps are taken is a matter for the employer; it is the employer, be it a natural person or corporation, upon whom the Act places the obligation to ensure a safe workplace.

111 The prosecutor submitted that the Act was intended to protect against human errors including inadvertence and even foolish disregard for personal safety. In that regard, the prosecutor cited the decision of Boland J in WorkCover v TRW [2001] NSWIRComm 52 at [13]-[14]: [13] However, the duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312.

[14] I respectfully agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 [at 15] as follows:

The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. 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."

112 The defendants' submissions were effectively twofold: firstly, there was no inherent risk associated with using the ATV on the Farm provided it was operated properly; and secondly, it was not foreseeable that Mr Palmer would ride the ATV down the side of the hill, without regard to the relevant information contained in the Owner's Manual and the safety decals affixed to the ATV.

113 The defendants submitted that, whilst the occurrence of an accident may provide an indication of the existence of a risk, it is not conclusive as to the existence of that risk. In the present matter, the defendants submitted that the accident resulting in Mr Palmer's death was not capable of providing any indication of the existence of a risk to health and safety, or the gravity of any such risk.

114 It was the defendants' submission that there was no risk associated with the proper use of the ATV, and therefore no breach of either s15 or s16 of the Act, and that there was no evidence to prove beyond reasonable doubt that such a risk existed. In that respect, the defendants submitted that: (a) the Owner's Manual contained instructions regarding the safe operation of the ATV. No evidence was led challenging the efficacy or adequacy of those instructions; (b) clear safety instructions were affixed to the side of the ATV in large and legible lettering; (c) when Mr Palmer took delivery of the ATV, Mr Grech, the owner of the machinery shop which sold the ATV to the Company, described the attributes of the ATV and showed Mr Palmer the relevant sections from the Owner's Manual. At that time, Mr Palmer demonstrated to Mr Grech his ability to operate the ATV; (d) at the time the ATV was purchased, there was no after-market training available with respect to the ATV; (e) no evidence was led to support the assertion that the terrain at the Farm required a greater level of training than was capable of being provided by the Owner's Manual; (f) there is no basis on which to conclude that Mr Palmer was less than fully conversant with the contents of the Owner's Manual; and (g) Mr Palmer was an experienced rider of the ATV who "knew full well its capabilities and inherent dangers".

115 The defendants further submitted that the evidence of Inspector Childs regarding the steps that should have been taken to avoid a risk to health or safety must be disregarded as pure speculation, as Inspector Child lacks any relevant qualifications to give such evidence.

116 It was the defendants' submission that "there was in place a practical and operational system of safety, which was adhered to at all times by its employees and contractors with the obvious exception of the actions of Mr Palmer on the day of the accident. There is simply no evidence to suggest that any of the employees or contractors who operated the ATV from time to time were exposed to any level of injury or risk as a result of that operation".

117 The defendants relied on the following passage from WorkCover v Fletcher Constructions (at [82]):

In making those observations, however, I would not wish to be taken as establishing a requirement that all businesses must develop extensive written documents setting out, in detail, every aspect of a particular task. What is required is dependent upon the particular circumstances and will be heavily influenced by the nature of the work and the exigencies of the particular work environment. It is inappropriate to attempt to spell out what is required in any given situation. However, one thing is clear. The method of work, as one component of a safe system of work, is a foundational element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend for their effective operation.

Although one can envisage additional measures, it is not reasonably practicable to guard against an unforeseeable risk. The evidence suggests that all foreseeable risks associated with the use of the ATV were the subject of appropriate risk management.

119 The defendants contended that Mr Palmer's conduct which led to the accident was so reckless as to be entirely unforeseeable, and that "Mr Palmer spontaneously decided to operate the ATV in contravention of the operator's manual, by traversing an extremely steep slope, bounded at its foot by a deep culvert, with heavy undergrowth. This was compounded by the towing of lengths of steel, that in combination with the steepness of the slope, exceeded the limitations of the machine". In those circumstances, there can be no causal connection between the accident and the existence of any risk to health or safety as alleged. The defendants noted that s15(3) of the Act provides that any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer.

120 The unforeseeable nature of Mr Palmer's conduct, is relevant to an assessment of the reasonableness of the measures taken by the Company to avoid a risk to health or safety. The defendants contended that a defence has been made out under s53 of the Act with respect to each of the charges. Section 53 of the Act is in the following terms:

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

121 The defendants cited the decision in Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at [87]:

[87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle.

122 Similarly, in Genner Constructions Pty Limited v Workcover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57, a Full Bench of the Commission held:

It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

123 The issues raised by this case and the manner in which the prosecution has been defended warrant a review of the legal principles which govern the operation of ss15 and 16 of the Act. The summary of authorities distilled by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 288 - 289 and endorsed recently by the Full Court in WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] 110 IR 447 at [16] provides an excellent overview: ... An extensive review of the nature of the liability created by s 15(1) was recently conducted by the Full Bench in Drake Industrial (90 IR at pp 449-453) by reference to the authorities as they had developed. In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at pp 288-289, Hungerford J had occasion to again review this general question and, after citing the main authorities concerned, drew the following propositions : (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence.

The Nature of the Duty: Absolute; Pro-active; Unable to be Delegated and owed to Careless Employees

124 As Hungerford J stated in his first two principles, the offence created by s15 is independent of fault: every leading authority describes the section as having created an absolute or strict duty; obligations; or liability. The absolute nature of liability under s15 was contrasted with "at fault" liability such as negligence by Fisher CJ in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209: In Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467, it was held that s 15(1) of the Act created an absolute liability in employers to conform with the terms of the section, but it is still necessary to prove that the employer failed in the language of the section in at least one of the many obligations laid upon him. It is correct to say that this failure is not the same as a failure of a duty to take care at common law where the standard of the duty is that of the reasonable and prudent man. Here, the standard is absolute. If there is a failure, subject to s 53 of the Act, however understandable the failure might be, liability is absolute.

125 The ramifications of such an absolute duty were discussed by the Full Court recently in Ridge Consolidated Pty Ltd v Mauger (2002) 115 IR 78 at [32]: [32] As has been frequently stated by this Court, the duty of employers under the Occupational Health and Safety Act is absolute. It is not confined to the taking of precautions only when there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires a remedy": Ferguson v Nelmac Pty Limited (1999) 92 IR 188. (See also Shannon v Comalco Aluminium Pty Ltd v Callaghan [1985] 11 IR 467 at 470; State Rail Authority v Dawson [1990] 37 IR 110 at 120 - 121; Kirkby v A & M I Hanson (1994) 55 IR 40 at 50; ABB Power Transmission Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (unreported, CT 1215 of 1996, 2 May 1997); Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432; Legge v Coffey at [16]; Police Service of New South Wales (No 2) at [20]; Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 and McMartin v The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, p7), (none of which distinguish between absolute liability and strict liability).

126 It follows from the exacting nature of the obligation and from the Full Court's observations in Ridge Consolidated v Meagher that, as the Courts have often held, employers must be proactive in securing the health, safety and welfare of employees and contractors. My decision in WorkCover v Fletcher Constructions (at [43]), with which Wright J, President, agreed, provides a recent statement of this principle:

[43] Further, the Full Bench in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 (at [32] - [33]), by reference to WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25, recently emphasised the extent of the duty cast upon an employer "in the strongest possible language" by the Occupational Health and Safety Act . The relevant passage from Schrader, adopted by the Full Bench was in the following terms:

[56] In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995 at p18) (approved recently by Full Benches of this Court in Profab at [37] and Riley v Australian Grader Hire (2000) 103 IR 143 at [15]): ... 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.

[57] Equally forceful observations have been made, an example of which includes the judgment of Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467, in which his Honour held (at 470): In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain.

[58] It is pertinent to observe also the comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.

[59] I would also concur with the observations of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 where, in the context of a s15 prosecution, his Honour observed that the Act imposed (at 209): ... an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.

127 It is clear, following WorkCover v Fletcher Constructions (which turned on this point), that the employer cannot discharge its duty by wholesale delegation of safety matters to a supervisor or manager (at [40] - [42]): [40] I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely. [41] However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with. I shall return to this consideration later in this judgment. [42] To adopt what was stated by the Court in WorkCover Authority v Kellogg (No.1) (at 258), these are matters to which a 'managerial mind' should be directed. Whilst the content of such policies and procedures may well be the subject of appropriate advice, ensuring that such steps are taken is a matter for the employer; it is the employer, be it a natural person or corporation, upon whom the Act places the obligation to ensure a safe workplace. 128 Finally, it is well settled that an employer's obligation under the Act to ensure the health and safety of its employees and contractors extends to the hasty, careless, inadvertent, inattentive or unreasonable employees and contractors. This is a facet of the pro-active nature of the duty, described in such forceful terms by Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 ("employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety") and by Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the majority held (at [45] - [46]):

[45] The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248.

[46] We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 [at 15] as follows:

The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. 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."

(See also WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722). And later (at [48]): [48] The employer must also guard against acts of inadvertence to the fullest extent practicable: Inspector Ankucic v Naomi Cotton Co-operative Ltd (unreported, 97/2251, 14 July 1998, Hill J). We note in this respect the observations of the Full Bench in Australian Grader Hire [at 16] as follows:

Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)."

129 I note that the statement of principle in Arbor Products appears to qualify the extent of the duty to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee to only that conduct which is "reasonably foreseeable". The use of the words "reasonably foreseeable" in that context should not be construed as introducing an element of foreseeability to the duty owed under s15, or to limit the risks to safety contemplated by s15 to only those that are foreseeable (as was proscribed by the majority in Drake Personnel). Rather, to the extent that the behaviour of careless or disobedient employees may not be reasonably foreseen, that is a matter which may properly be raised in relation to a defence under s53 of the Act. That is, the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against.

130 The duties imposed by ss15 and 16 are not limited to the prevention of injury: they require an employer to ensure that employees (and contractors) are not exposed to risks to their health and safety whilst at work (or whilst at the employer's place of work in the case of contractors). Section 15 of the Act does not refer to the word "risk" in the primary obligation placed upon employers, using it instead in subsection (2) to describe examples of contraventions, should employers fail to provide or maintain plants, systems, places of work or working environments which are "safe and without risks". The breadth and demanding nature of the duty has generated detailed judicial scrutiny of the concept of "risk" over the years, testing the boundaries of ss 15 and 16 of the Act. Clearly the risks to be guarded against must be to the health, safety or welfare of employees or contractors; but what are the limitations? Risks that arise independently of the employer and cannot be completely eliminated from a particular workplace, risks that are not reasonably foreseeable, and risks that are impossible to anticipate, unduly remote or speculative, have all been judicially considered in the context of liability under ss15 and 16 of the Act. In Haynes v C I & D Manufacturing, the Full Court of the Industrial Court of New South Wales (referring to earlier authorities) held at 157: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose ''(t)o secure the health, safety and welfare of persons at work'' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. The importance of this aspect of the OHS Act to the nature and scope of the offences it creates may be demonstrated by reference to the Minister's Second Reading Speech in introducing the Bill for the OHS Act in to Parliament: see Interpretation Act 1987 (NSW), s 34(2)(f). In that respect, the then Minister for Industrial Relations and Minister for Technology, the Hon Mr P D Hills, said (Legislative Assembly, Hansard , 1 December 1982, pp 3683-3684, 3687-3688): The purpose of this bill is, for the first time in New South Wales and indeed for the first time in any Australian State, to provide effectively for the safety, health and welfare of all persons in all workplaces, including those of the Crown, and those of self-employed persons, under the umbrella of one single piece of legislation. It is the most important measure of its kind ever to come before this House. This bill and its regulations will have wide-ranging provisions designed to embrace every area of the work environment, every hazardous occupation, and every used [sic] of dangerous substances and chemicals, and it will keep pace with technology in so far as it relates to the workplace. ... ... First, rapid changes in technology occurring in the workplace, and the use of new chemicals and substances, make it essential that the bulk of technical provisions related to this bill must be dealt with in regulations. They are far too many, too complex and too detailed to be incorporated in the main bill. Second, legislation and regulations, regardless of how carefully they are framed, will not of themselves improve safety in the workplace. Alongside the constructive means of ensuring that preventative measures are adopted, as advanced in this bill, is the foremost need for management and employees to adopt far higher conscious standards in their approach to workplace safety.

My studies of occupational health and safety in London and Washington made it clear to me that where enforcement and co-operation go together, substantial reduction in workplace fatalities and injuries results ... ...

Our Government, through the introduction of this bill, will achieve enormous reforms in worker safety, health and welfare. This measure covers all workers instead of only one-third under existing legislation. That coverage is fully in accord with precepts laid down by the International Labour Organisation and the World Health Organisation. These principles may be summarized as the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations; the protection of workers in their employment from all risks resulting from factors adverse to health; the placing and maintaining of the worker in an occupational environment adapted to physiological and psychological needs; and the protection of other persons who come into contact with the working environment and of persons using lifts, amusement devices, public stands and other specified devices. ... ... However, to enable the specific regulations to be prepared, it has been necessary to incorporate in this bill a unique division relating to general duties for safety, health and welfare at all workplaces. These general duties clauses are sufficiently broad to cover virtually every conceivable risk in a work situation. They will be supplemented in certain cases by regulations; for example, in the chemical industry. It will be necessary to devise regulations covering the use, handling, storage and risks to health of toxic materials and other hazardous substances. I am aware that the chemical industry is already preparing for that eventuality.

Though applying to employers, these general duties clauses impose a duty also on employees for safe working practices. Employers and the self-employed are required to ensure that those persons not in their employment are not exposed to risks arising from the conduct of the operation while they are at the place of work ... The bill will place the responsibility on employees [sic] to ensure that they operate in such a way as not to endanger their employees ...

... I do not believe that any essential aspect for improvement in workplace health and safety has been overlooked by the department and the tripartite committee's investigations. In the final analysis, no bill, no matter how perfect, will be a success unless there is engendered in the workplace a completely new spirit, a joint commitment, by employees and employers to bring to an end the frightening effects of occupational injuries. This bill is the impetus for that to happen; it is the means of ushering in a new era of safety and health consciousness in our State. I commend the bill.

The stated purpose of the OHS Act being ''to provide effectively for the safety, health and welfare of all persons in all workplaces'' in which ''enormous reforms in worker safety, health and welfare'' will be achieved in ''the protection of workers in their employment from all risks resulting from factors adverse to health'' by placing ''responsibility on employers to ensure that they operate in such a way as not to endanger their employees'' may only be seen in the manner stated by us. The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. …

131 It is worth stressing the frequently repeated principle that the duty is one to prevent risks to safety, not to prevent the risk of injury. This was vividly illustrated by Hill J's description in Atco Controls Pty Limited of the duty (quoted in WorkCover v Fletcher Constructions, extracted above): "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace" (emphasis added). As noted in Haynes v C I & D Manufacturing and subsequent authorities, it follows from the correct interpretation of the duty as one to prevent risks to safety, that (defences aside) liability will ensue if an employer's act or omission "created a situation of potential danger to the health and safety of people at its workplace".

132 The Court analysed the nature and meaning of risk and attendant issues of causation in detail in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 at 393, in the context of risks which arise independently of the defendant (in that case, aggressive or violent behaviour by a student) and which cannot be completely eliminated: [136] The legal issues raised by the two cases [ O'Sullivan and WorkCover Authority of New South Wales (Inspector Keelty) v Police Service of New South Wales (No 2) (2001) 104 IR 268] are similar. In this case (in addition to its temporal argument in relation to manifestation of risk), the defendant has argued that the violent acts of severely intellectually disabled students cannot be accurately predicted, cannot be completely eliminated and are due to unknown causes independent of the defendant. Accordingly, the defendant submitted, they cannot give rise to liability under s15 of the Act. In WorkCover v Police Service (No 2) the defendant put similar arguments based upon the unpredictability and uncontrollability of a violent, armed member of the public. The similarity of arguments and issues between the two cases (and consequently the relevance of his Honour's reasoning, with which I agree) is best illustrated by the defendant's formulation of the tests to establish liability in WorkCover v Police Service (No 2) at [8]:

· '' Would the act or omission alleged in each summons have ensured the health, safety and welfare at work of the officers? · Would the act or omission have provided plant or systems of work that were safe and without risks to health? · Did the acts or omissions alleged create a situation of potential danger to the health or safety of the officers? · What were the objective facts causing detriment to safety and was there a causal connection therewith of the employer? · Has the prosecution proved beyond reasonable doubt that the events were caused by the failure of the employer and not some other unrelated factor?''(Emphasis added.) and the prosecutor's response (at [12]): (1) The relevant failure by the defendant the subject of the charge in each summons was not the risk created by Mr McGowan but the risk arising from its various failures in a situation where the two police officers were working in an environment where they were at risk of being shot or experiencing physical harm; the relevant risk, therefore, was that brought into existence by the defendant. (2) Whilst the defendant was not aware Mr McGowan posed the specific risk which occurred, the defendant was well aware of the type of risk which could arise for police officers engaged on operational duties; it was not a question of the defendant being responsible for the actions of Mr McGowan. The defendant should be held responsible for its acts or omissions in circumstances where the type of risk posed by Mr McGowan was well known to it. (3) To interpret s 15, as did the defendant, as not extending to any risks to employees arising from the unlawful actions of third parties would be a mandate for employers to ignore such risks and there was no basis in the legislation for such a narrow approach. That was especially the case with police officers whose main role was to deal with unlawful activity and, given the intention of the statute to improve the safety of the working environment, no such narrow view should be accepted. (4) The defendant's submission that the prosecutor must prove that the absence of the act or omission allegedly creating the risk to safety would have ensured the health and safety of the two officers misapprehended the statutory duty on the employer pursuant to s 15(1) - rather, the duty was to show that the act or omission amounted to a failure by the employer to ensure or provide for the safety of the two officers; the prosecutor must show an act or omission which detracted to the relevant degree from the obligation to ensure safety in the workplace.

[137] Hungerford J considered Haynes v CI&D Manufacturing and the following passage from Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 (including the analysis in that case of Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467): We consider that this submission is misconceived. Firstly, the submission focuses on the foreseeability of the alleged risk to safety. The authorities cited above establish that in order to demonstrate a breach of s 15(1) the prosecutor is required to prove the existence of a failure on the part of the employer which is causally connected with the risk to safety. There can be no failure on the part of the employer in not taking steps to preclude a risk which was impossible to anticipate: see WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, Peterson J). However, the appellant goes further and submits that no breach of s 15(1) is committed where the employer does not know of the hazard and could not reasonably know about it. The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1). Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

[138] Hungerford J then rejected the defendant's general submissions in avoidance of all the charges that the relevant risk was created externally from the defendant by unpredictable and criminal conduct over which the defendant had no control, preferring instead the prosecutor's stance. Due to the importance of his Honour's analysis in this aspect of his judgment I shall set out in full the relevant passages (at [22]-[24]) as follows: [22] The general submission made by Mr Hastings on which his no-case application was based as to all charges was that the relevant risk to safety here was Mr McGowan over whose unpredictable and unlawful conduct the defendant had no control; and, so senior counsel submitted, there was no causal nexus of the defendant to the detriment to safety of the two officers. In my view, that submission cannot be sustained. Mr Hastings went further and submitted that the significance of Mr McGowan's role was such that there was nothing the defendant could have done to obviate the risk caused by Mr McGowan; as senior counsel said - "There is nothing to provide the employees with safety in those circumstances". Even given, which I think clearly was the case, that Mr McGowan presented as a risk to the officers' safety, that is not what any of the charges were directed to. The charges identified what were alleged to be risks existing to the safety of the two officers apart from the ultimate actions of Mr McGowan in causing their deaths. The answer to Mr Hastings' submission in this respect is simply that it concentrated on the incident itself, that is the fatal shooting of the two officers by Mr McGowan, rather than the situation in which the officers were placed while performing operational duties at the time and place of the incident in terms of risks to their health and safety occasioned by the particular detriments identified in each of the charges. In other words, the defendant's submission fell into the same vice by concentrating on the incident itself as the Full Court in Haynes v C I & D Manufacturing found occurred there at first instance.

[23] I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say, but as did Mr Hastings , that "the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of McGowan, with which there was no causal connection to the employer" and: it is impossible to guarantee or to ensure the health and safety of police officers, and you can provide them with all the equipment under the sun short of an armoured vehicle and they will always be exposed to risk. Even if you did all the things that the prosecution has alleged were not done here ... those things had absolutely no bearing on the safety of Senior Constable Spears because he was simply surprised and ambushed before any of these factors had any capacity to come into play.

Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees, the legislature has created the absolute duty on employers in s 15, subject to the s 53 defence, to ensure the health, safety and welfare of those employees at their place of work. ...

... In light of the general submission so forcefully put by the defendant here, it is perhaps timely to repeat the following comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85 :

This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.

[24] Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. In the same way, and notwithstanding the submissions of Mr Hastings to the contrary, comparable steps should be taken by employers in satisfying the statutory duty in respect of their employees liable to the effects of unlawful action by criminals, such as, as identified by Mr Hastings , those employees engaged in "service stations, pharmacies, shops, banks, cash delivery, cigarette trucks, buses and taxis". In identifying those occupations, Mr Hastings submitted as to them "there is a known history of violent and unlawful attacks by criminals, for which negligible precautions are provided by employers". Senior counsel added that in the emergency services (fire brigade, bush fire brigade and emergency services) the "employees are inevitably exposed to the risks of injury and death by the very nature of their duties" so that "employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken". There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety. The submission is no answer to the present charges. I reject it.

[139] His Honour also emphasised (at [27]) my comments on causation in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 253 which are equally relevant here: "the alleged failure must cause the detriment to the safety (the risk) of the person concerned". Of course, this pronouncement on causation necessitates correct identification of the risk.

[140] The distinction must be drawn between a risk, such as the violent behaviour of a member of the public or severely intellectually disabled student, occurring independently of the employer, the general nature of which may be known, and the risks which arise from the manner in which the employer exposes the employee to that risk. To put it another way, the employer fails to ensure the health, safety and welfare at work of its employees by failing to appropriately equip or protect them from risks inherent in their work (as opposed to risks which are merely speculative or unduly remote - see Drake at [145]), notwithstanding that such risks may be caused by external factors, known or unknown. As Hungerford J noted at paragraph 20 of WorkCover v Police Service (No 2) , the duty imposed upon the employer is directed at obviating risks where the circumstances create a potential danger to the health and safety of employees at the workplace. It is upon this distinction between a specific risk (the particular actions of an individual in a given context on a given day) and a general class of risk that analysis must concentrate, for focussing too closely on the specific risk immediately preceding the incident under scrutiny can lead to the error so frequently warned against: concentrating on the incident itself. Appreciation of this distinction also makes it clear that the defendant's preliminary submissions are based upon the wrong risk: when attention is focussed upon the risks which arise from the manner in which the employer exposes the employee to the risks, the defendant's submissions in this case, as in WorkCover v Police Service (No 2), fall away.

[141] Although it is implicit in the judgment of Hungerford J, and indeed in the forgoing analysis, I make it plain that I reject the defendant's submission in this case that the prosecutor must establish that the step required to have been taken by the defendant would have eliminated the entire risk. There is no justification for limiting the broad words of s15 of the Act in such a manner, particularly in the context of an Act which has the stated purpose of securing the health, safety and welfare of persons at work. To accept such a submission would virtually render s15 ineffective and belie almost every decided case, for what risk in an operating workplace can be eliminated entirely?

133 It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges: Police Service (No 2) and O'Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.

134 The Full Court stated clearly in Drake Personnel that the concept of "reasonable foreseeability" does not apply to the duty imposed by s15. What of risks which are impossible to anticipate, speculative or unduly remote? The decision of Peterson J in WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, CT 1247 of 1993, Peterson J, 24 July 1995) that there can be no failure on the part of an employer to obviate a risk which was impossible to anticipate may be characterised as an elaboration of the requirement to establish causation. The same could be said of risks which are merely speculative as distinct from those risks which are real and appreciable (see Drake Personnel at 452 - 453). If a risk is impossible to anticipate or is entirely speculative it will be very difficult to prove causation to the criminal standard.

135 The theoretical and authoritative bases for distinguishing "unduly remote" risks are somewhat unclear and may be examined by the Court at some later date. The distinction is difficult to reconcile with the forceful judicial pronouncements on the absolute, proactive nature of the duty extracted above, such as the Court's observation in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 that the duty is not confined to taking precautions only where there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen" and the observation of Hill J in Atco Controls Pty Limited that "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace" (emphasis added). "Remote" risks must fall within the duty imposed by the Act (otherwise, it would be meaningless to extend risks beyond those which are reasonably foreseeable) and the question then centres upon whether the word "unduly" introduces a qualitative difference to justify exclusion from the broad duties imposed by ss15 and 16 of the Act or alternatively whether, as anticipated in the previous paragraph, the issue would be decided on a case-by-case basis by reference to causation.

136 The authority cited in support of an exception to liability under ss15 and 16 of the Act for "unduly remote" risks is Kirkby v A & MI Hanson Pty Ltd, but the words do not appear in that judgment. The relevant passage is a summary of submissions made by counsel for the defendant, based on two High Court cases dealing with statutory culpable driving offences (at 49): Counsel for the defendant met the first element in issue, namely the risk to the health and safety of persons on the site, by the proposition that the "risk" had to be real or appreciable and not of a speculative kind": see McBride v The Queen (1966) 115 CLR 44 at 49-50 and Jiminiez v The Queen (1992) 173 CLR 572 at 579.

137 The question of whether an employer's duty under the Act extends to protecting employees and contractors against "unduly remote" risks does not fall to be determined in this case, but it must be regarded as an area of the law which remains to be crystallised.

138 One other matter should be referred to in any examination of "risk" and that is the phrase "detriment to safety", a phrase which has the potential to be more confusing than instructive, and should be used with caution. The phrase seems to derive from the following passage from McMartin v The Broken Hill Proprietary Company Ltd which, in context, equated "detriment to safety" with that which is proscribed by the Act: In an unrestricted sense it would appear inevitable then to conclude that the death of two men at work asphyxiated by gas escaping into the atmosphere, necessarily demonstrated that the employer had failed to ensure their safety. Although the terms of the section are wide, in conformity with generally applicable principles of criminal law, the prosecutor is required to make known with precision the charge that is brought against the defendant and in the present case this was done by the terms of the summons and the particulars which I have already set out [viz, failure to supervise]. Mr Stitt QC for the defendant argues that as the prosecutor has elected to rely upon a breach particularised as failure to provide supervision necessary to ensure adherence to the system laid down by the employer it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. Mr Stitt's approach is in principle correct but on the evidence in the present case I am satisfied that sufficient causal nexus is to be found in the circumstances that Mr Davey was required to supervise Mr Marjanovic, in which duty he manifestly failed. I reject the contention advanced on behalf of the prosecutor that he is entitled to rely upon an inference that the employer was in breach of duty to maintain the prescribed system of work by some means, exactly what in the practical sense was not particularized of enforcing compliance with the procedures laid down. The company did enforce maintenance of the system of work and the way it did it was to require a senior regulator to work on a one-man job in tandem with a second man.

139 An aspect of this conclusion was referred to with approval in State Rail v Dawson at 121 in a paragraph which again equated "detriment to safety" with that which is proscribed by the Act: Although s15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v The Broken Hill Proprietary Company Ltd ((1988) unreported) to the effect that "it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety".

140 However, in the passage quoted above from Haynes v C I & D Manufacturing, the context suggests that the "detriment to safety" is an over-arching state of affairs proscribed by the Act which, at one end of the scale, includes risks and, at the other end, (one presumes) certain accidents.

141 As stated clearly by Fisher J in Cullen v State Rail Authority (NSW), it is still necessary to prove that the employer failed in the language of the section in at least one of the many obligations placed upon him. The requirement to prove a causal connection between the actions or failures of an employer and the risk to health and safety is one of the most significant limitations on liability.

142 In Kellogg (No 1) at 253 - 4, the Court observed:

Many decisions of this Court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s15(1). It is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees: see McMartin; Drake at 34; Cullen at 209; Dawson at 120-121; Haynes at 156-157; and Kirkby at 49-50. There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: WorkCover Authority of NSW v Maitland City Council (1998) 83 IR 362 at 377.

However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety. In Drake at 39-40 the Full Bench stated:

The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

This consideration is carefully explained in the decision of the Full Court of the then Industrial Court of NSW in Haynes . Commenting on the reasoning of the trial judge, their Honours said (at 156-157): The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that "the occurrence of the accident itself does not however establish the commission of the alleged offence": see Dawson (at 120-121) and McMartin v The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, pp 7-8). But, her Honour then concluded, concerning the case against Manufacturing, that "(i)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was causally connected with the front end loader hitting Mr Chen. It seems to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the Defendant which failed to `ensure the health, safety and welfare at work' of Mr Chen and Mr Ding. The prosecution of Industrial was considered by her Honour according to "(m)any of the comments ... made in relation to the prosecution against Manufacturing"; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondent were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That overemphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objective drawn therefrom. Section 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title, indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that state purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident.

143 This statement of principle in Kellogg (No 1) has been adopted by the Full Bench in State Transit Authority Of New South Wales v Guillarte (2003) 123 IR 237 at 238.

144 The defendant made several submissions which referred to "reasonable foreseeability" but the context (as to liability or the availability of a defence) was never clearly delineated. Drake Personnel makes it clear that although foreseeability of a risk has no application to liability under ss 15 and 16, it is relevant when considering whether a defence has been established under s53.

145 It is well settled that to establish a defence under s53 of the Act, it must be proven, to a civil standard, that it was not reasonably practicable in the circumstances to have complied with the relevant duty, or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: Legge v Coffey ; Drake Personnel (at 457); and Cleary Bros.

146 The Court in Cleary Bros considered at length the meaning of the phrase "reasonably practicable" and concluded:

It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event : see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. (emphasis added)

147 I note that the reasonable foreseeability of an event is only one consideration relevant to establishing a defence under s53 and is not, of itself, conclusive.

148 For the purposes of this matter, these principles are applicable to the charges under both ss 15 and 16.

149 It is clear from the preceding review of authorities that in order to determine liability, the Court should identify the relevant risk; determine whether, as a matter of fact, there was a relevant failure by the defendants (by act or omission, as particularised in the charges); and, if so, determine whether there is a causal connection between the risk and the defendants' failures.

150 The defendants' submission that there was no inherent risk associated with using the ATV on the Farm provided it was operated "properly" does not greatly assist determination of those issues. A risk need not be inherent to fall within the scope of ss15 and 16 of the Act. Further, even if one were to accept the proposition (putting aside potential difficulties of circularity in defining "proper use" in the context of safety), the submission simply begs further questions: who ensured "proper use"? What system was put in place to ensure "proper use"? Was "proper use" defined or specified? How were employees instructed and trained in the practice of "proper use"? Having regard to the statutory obligations and circumstances of this case, these are vital questions. The submission suggests that, without "proper use", there is an inherent risk associated with the use of the ATV on the Farm. Leaving aside the use of the word "inherent", I would have to agree.

151 What, then, was the relevant risk to safety in the present matter? In my view, there was a clear risk, evident from Mr Kirk's own experience and from the express warnings in the Owner's Manual, that the ATV could overturn (or otherwise unbalance) in various circumstances: clearly a situation of potential danger to the health and safety of people at the Company's workplace. In this case, it is only necessary to consider two limited classes of such circumstances. First, off-road driving at the Farm, which, by its very nature, increased the likelihood of many of the precursors to overturning mentioned in the Owner's Manual: excessively steep hills (avoided on one steep hill by a hairpin road specifically built for safety), hidden rocks, bumps or holes, or excessively rough, slippery or loose surfaces. Secondly, towing from the ATV's rack. The existence of these risks required the exercise of a managerial mind to establish a safe system for a vehicle which, by its description and nature, may involve some off-road use or towing. The Act charged the defendants to eliminate these risks to health and safety; the prosecutor has charged that (through failures of systems, information, instruction, training, supervision and risk assessment) they failed to do so.

152 The Company's obligation under the Act to establish a system to eliminate the risk of the ATV overturning when driven off-road or when used for towing required it to assess the risks associated with the use of the ATV on the Farm, particularly having regard to the uneven terrain; to restrict access to the ATV to those employees and contractors who were sufficiently qualified and experienced to ride it; to instruct employees and contractors in relation to the safe use of the ATV; to provide information to employees and contractors regarding the safe operation of the ATV, for instance in the form of the Owner's Manual; to warn employees and contractors at least about the potential for the ATV to overturn; to provide suitable training in relation to the use of the ATV; and to supervise the use of the ATV on the Farm. Only two aspects of the evidence contradict (to a limited extent) the bald statement that none of these things were done. Although I have found that the ATV was generally accessible, it is true that Mr Thorn's access was restricted (although this restriction was not explained, and there was no evidence to suggest that it was a decision made on the basis of safety); I have also found that Mr De Save read the Owner's Manual (out of curiosity, having happened upon it); and, I am prepared to accept that Mr Palmer read it. Again, in view of my finding that no employee or contractor was given any instruction to comply with it, and no attempt was made to regulate its use at the Farm, this evidence does not amount to much in the defendants' favour. Nor, as I will discuss, does it excuse liability.

153 My findings at paragraph [105], in part based on Mr Kirk's unequivocal evidence that: (a) the Company did not have a system in place to determine whether or not Mr Palmer was using the ATV in a safe manner; (b) the Company had never undertaken a risk assessment associated with the use of the ATV on the farm; (c) the Company had never asked Mr Palmer to conduct a risk assessment in relation to the use of the ATV on the Farm; (d) the Company had never determined whether Mr Palmer had the necessary skills or training to manage occupational health and safety on the Farm, but nevertheless gave him the responsibility to develop a safe system of work for the operation of the ATV on the Farm; and (e) Mr Kirk did not take any steps in relation to health and safety on the Farm pertaining to the ATV following his own accident near a dam in which the ATV overturned; are sufficient, in my view, (in conjunction with the decision of WorkCover v Fletcher Constructions that an employer cannot discharge its duty by wholesale delegation of safety matters) to find that each of the failures particularised in the charges was established beyond reasonable doubt. Mr Kirk gave evidence that the Company had placed Mr Palmer "in charge" of the health and safety of employees and contractors on the Farm. It may well be that Mr Kirk was not in good health and that he placed enormous trust in his friend and employee, Mr Palmer. However, the duties imposed by ss15 and 16 of the Act fall squarely on the Company. By purporting to delegate all responsibility for health and safety to Mr Palmer, the Company has neglected those duties. However, the Company's failure does not end there. Having delegated total responsibility, the Company took no steps to ensure that Mr Palmer had the necessary skills to conduct a risk assessment, to provide or arrange training, to instruct others in the safe use of the ATV or to supervise the use of the ATV. Further, the Company took no steps to ensure that Mr Palmer carried out his duties, particularly with respect to health and safety. Consequently, it had no effective control over use of the ATV prohibited or warned against by the Owner's Manual.

154 The provision of the safety information contained in the Owner's Manual was fundamental to ensuring the health and safety of employees and contractors. The Company's duties under the Act required it to not only make the Owner's Manual available to all persons who used the ATV on the Farm, but also to actively promulgate the information in the Owner's Manual to ensure that it had been read, understood and applied. In my view, the Owner's Manual presented a clear and practicable means of conveying important safety information about the operation of the ATV. The Company failed entirely to take advantage of that means; indeed, Mr Kirk did not know of the existence of the Owner's Manual prior to Mr Palmer's accident. The Company took no steps to disseminate the information in the Owner's Manual to those who used the ATV on the Farm: it is plain on the evidence that no employee or contractor, other than Mr Palmer, had been given a copy of the Owner's Manual and Mr Palmer received it by dint of taking possession of the ATV, not due to any independent instruction by the Company to ensure that he read it and abided by its safety precepts.

155 Mr De Save is the only person known to have read the Owner's Manual (out of curiosity), having found it in the shed about six months prior to Mr Palmer's accident. I am prepared to infer that Mr Palmer did read the Owner's Manual but this, without more, could not satisfy the Company's obligations to actively promulgate the information in the Owner's Manual. In WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23, I discussed paper systems at [35]: 35 However, the occurrence of the accident in this case indicates these procedures were not sufficiently comprehensive or sufficiently communicated to and understood by the employees to ensure their safety. The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its ''paper systems'' are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214 par 26. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997, at p4), for example, Fisher P said: The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work.' Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant.

156 The Company's obligations were not circumscribed by dissemination and promulgation of the Owner's Manual. The Company was required to assess the risks associated with the ATV in the actual conditions applying at the Farm and the manner in which it was used on the Farm. It was required, in my view, not only to give instructions as to the application of the Owner's Manual at the Farm but to ensure that those instructions were consistent with the topographical and other conditions of the Farm and with the experience and capabilities of those employees who may drive the ATV. This was not done. Even the basic step, which may have been taken, to instruct employees to stay on roads (notwithstanding the labelling of this vehicle as an "All Terrain Vehicle" and references in the Owner's Manual to off-road use) was not taken by the Company. The fact that Mr Palmer gave such an instruction to two contractors is not evidence that he had the view that such an approach was generally applicable or that he enforced it as a general rule. In any event, the Company gave no such instruction to Mr Palmer or any other employee or contractor. Employees and contractors used it off-road. Nor were instructions given as to driving the ATV on slopes (of whatever gradient).

157 The ATV had been used on a limited basis for towing on the Farm before the accident. Despite a stark warning in capital letters in the Owner's Manual that users should not tow from the rack (as distinct from the tow hooks or hitch) because to do so may cause "vehicle damage or tipover" resulting in severe injury or death (a warning the manufacturers considered serious enough to include on decals designed to be affixed to racks) I have found that there was no system in place in relation to towing with the ATV and there was no evidence of the presence of the warning decal on the ATV. Mr Kirk gave evidence that he considered that it would be unacceptable to tow anything behind the ATV, but no instruction was given to anybody on the subject.

158 The provision of training was a simple step available to the Company to protect the health and safety of persons in the workplace. The Owner's Manual specifically stated that "[t]he risk of an accident is greatly increased if the operator does not know how to operate the ATV properly in different situations and on different types of terrain" and prescribed a certified training course combined with regular practice to avoid this hazard. However, I have found, as a matter of fact, that none of the Company's employees or contractors were instructed or trained in relation to the use of the ATV beyond an initial demonstration of the basic functions of the vehicle. This was despite evidence of an organisation which offered training courses to ATV operators at the time the Company purchased the ATV, and at the time of Mr Palmer's accident. Importantly, the majority of that available ATV training was conducted at clients' sites, thereby addressing the specific risks likely to be faced by users of an ATV at the place of use. Although the extent and standard of training required by the Act will vary depending upon the nature of the work performed and the associated risks, there is no way that the perfunctory introduction to the ATV provided to employees and contractors (including Mr Palmer) could be said to have fully equipped them to safely perform work (including towing) with the ATV (see Genner Constructions at paragraph [58]).

159 There is plainly a causal connection between the Company's failure to provide systems, information, instruction, training, supervision and risk assessment in relation to the use of the ATV (or the specific application of the Owner's Manual on the Farm) and the risk that the ATV may be misused in a manner contemplated by the Owner's Manual when driven off-road or when towing, causing it to overturn.

160 Two of the defendants' contentions require further comment. First I will deal with the defendants' submission that there can be no offence in the present case because Mr Palmer's behaviour leading to the accident was so aberrant and non-sensical that it was not capable of being foreseen and, as such, could not be within the contemplation of s15.

161 This submission falls into the error of focussing on the accident rather than on the risk. As the Court held in O'Sullivan, the distinction must be drawn between a specific risk (the particular actions of an individual in a given context on a given day) and a general class of risk. The general risk was that the failure to provide systems, information, instruction training, supervision and risk assessment could result in the use of the ATV (when driven off-road or when used for towing) in an unsafe manner, creating a situation where it was capable of overturning. The defendants, quite correctly, did not contend that this risk was incapable of being foreseen. Far from being unforeseeable, this risk was explicitly proclaimed in the Owner's Manual. It is not to the point whether the precise circumstances of Mr Palmer's accident (the specific risk) may or may not have been capable of being foreseen. There was a clear risk that Mr Palmer (or any other employee or contractor) could have driven an "All Terrain Vehicle" off-road, or towed things from the rack, or done both simultaneously, in any number of circumstances which may have caused the ATV to overturn. Mr Kirk's accident provides a useful example. In any event, the fact that Mr Palmer's actions may be described as careless, mistaken or even negligent does not assist the defendants (especially here, where no action was taken to advert the risk): the authorities have consistently held that an employer's duty extends to the hasty, careless, inadvertent, inattentive or unreasonable employees. See, for example, WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [45] - [46]; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248.

162 Secondly, the defendant's submission that "the evidence suggests that all foreseeable risks associated with the use of the ATV were the subject of appropriate risk management" cannot be sustained in the light of these conclusions and my findings at paragraph [105], particularly (c) and (l): that Mr Kirk, and therefore the Company, did not conduct a risk assessment or request any other person to conduct a risk assessment regarding the use of the ATV on the Farm, and had no system in place to assess and determine whether or not employees or contractors of the Company were trained in the use of the ATV, or were using the ATV in a manner which was safe and without risk to health. To speak even more plainly, and noting that the question of reasonable foreseeability does not arise in the assessment of liability, there was clearly a foreseeable risk (spelt out in the Owner's Manual) that the ATV would overturn when driven off-road or when used to tow things and yet nothing was done to ameliorate these risks.

163 In these circumstances, and having regard to the preceding application of the relevant legal principles, I find that the Company has failed to satisfy the requirements of ss15 and 16 of the Act and that the charges in Matter Nos. IRC 1730 and 1732 are proven, subject to any defence that is established. The defendants did not make any submission that, in the event that the charges against the Company were proven, ss50(b) or (c) should apply to exonerate Mr Kirk from liability. Given my earlier findings that Mr Kirk was effectively the mind and actor of the Company, who controlled the relevant actions of the Company at the Farm, and was effectively the instrument of the Company's failure, there is no basis for overturning the deemed contravention dictated by s50 and I find that the charges against Mr Kirk pursuant to s50 of the Act, being Matter Nos. IRC 1731 and 1733, are also proven, subject to the establishment of any defence under s53.

164 The Full Bench in Drake Personnel considered the nature of a defence under s53 and held (at 457):

A defendant who seeks to raise a defence under s53 bears a civil onus of proving either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Sydney City Council v Coulson (1987) 21 IR 477 at 480 and Italo Australian Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431.

165 In my view, even taking into account the lower standard of proof required to establish a defence under s53, the defence must fail.

166 The defendants submitted that the accident which occurred on 28 March 2001 was not foreseeable and, therefore, it was not practicable for the Company to guard against such a risk. I reject this submission for a number of reasons. First, it is the general risk of the use of the ATV (when driven off-road or when used for towing) in an unsafe manner, creating a situation where it was capable of overturning that is relevant, not the occurrence of the accident involving Mr Palmer which, as earlier stated, may represent one manifestation of the risk but is not determinative of the general class of risk. Secondly, it is reasonably foreseeable, in my view, that a failure to provide systems, information, instruction, training, supervision and risk assessment, either specifically as to the use of the ATV on the Farm or generally requiring adherence to the Owner's Manual, could result in the ATV (when off-road or towing) being used in a manner which would cause it to overturn. Thirdly, irrespective of whether Mr Palmer's actions which led to the accident were foreseeable, there remained at all times a risk associated with the operation of the ATV on the Farm against which no precautions were taken. Those risks were explicitly stated in the Owner's Manual and were known to Mr Kirk from his own personal experience.

167 There was no evidence to suggest that it was not reasonably practicable to take precautions against the known risks. At the most basic level, the Company could have instructed employees and contractors not to drive the ATV off-road and not to use the racks for towing. The Company could have undertaken a process of risk assessment and issued appropriate instructions to use the ATV in a manner consistent with that assessment and the Owner's Manual. These were steps Mr Kirk knew of, having undertaken them in the course of conducting other businesses. Further, training was available and could have been conducted on-site. There was no suggestion that such training was prohibitively expensive. Indeed, the evidence suggested that the Company adopted a "no expense spared" policy. Rather, there appears to have been no "managerial mind" turned to issues of risk assessment, instruction and training, or health and safety generally.

168 There was nothing to ground a defence given the complete failure by the Company to take any steps to ensure the health and safety of employees or contractors in relation to the use of the ATV on the Farm, in circumstances where there were simple, practicable steps available, and no reason why those steps could not have been taken.

169 I find the offences proven in relation to the prosecutions brought in Matter Nos. IRC 1730, 1731, 1732 and 1733 of 2003. The matter will be listed for directions at 9.30am on Monday, 23 August, 2004 for the purpose of programming a sentencing hearing.

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