Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55
• Hearing dates: 12,13,14,15,16,19, 20,21 March 2012
• Decision date: 28 June 2012
• Jurisdiction: Industrial Court of NSW
• Before: Kavanagh J

Decision

Orders

In Matter No 1263 of 2010, the charge under s 8(1) of the Act, I find the defendant guilty.

In Matter No 1262 of 2010, the charge under s 8(2) of the Act, I find the defendant not guilty.

In Matter No 1260 of 2010, the charge under s 8(1) of the Act, empowered under s 26(1) deeming provision, I find the defendant guilty.

In Matter No 1261 of 2010, the charge under s 8(2) of the Act, empowered under s 26(1) deeming provision, I find the defendant not guilty.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Corporate defendant - breach of s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - judgment as to liability - roadside repair of B double truck - repair performed by another corporation's mechanic but employee driver of defendant corporation assists - engine left on and brakes left off to inflate airbags - chocks placed on wheels too small - truck rolls forward - unsafe system of work and exposure to risk from movement of B Double - employee and another - plea of not guilty - failure by corporate defendant to have in place safe system of work for repair of vehicle - failure to properly instruct employee driver not to take part in repair and to stand clear of vehicle while under repair - s 8(2) charge proven - other particulars relied upon by prosecutor re drug use and fatigue and management of fatigue policy dismissed.; Individual defendant - Director - charges under s 8(1) and s 8(2) against director of corporation brought under s 26(1) deeming provision of OHS Act - similar particulars relied upon against director - director failed to provide safe system of work for repair of vehicle - employee of corporate defendant placed at risk - director guilty of charge under s 8(1) - defendant not guilty of charge under s 8(2)
• Legislation Cited: Occupational Health and Safety Act 2000
• Cases Cited: Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270; Campbell v The Queen (1981) WAR 286; Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353; Cullen v State Rail Authority (1989) 31 IR 207; Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87; (2004) 135 IR 377; Inspector Hamilton v John Holland Pty Limited [2010] NSWIRComm 72; Inspector Kenneth John Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255; (2001) 109 IR 209; Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286; O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 74; (2003) 125 IR 361; R v Board of Trustees of the Science Museum [1993] IWLR 1171; Royall v R [1991] HCA 27; (1991) 172 CLR 378; State Transit Authority of NSW known as Sydney Ferries v Inspector Corrie Guillarte (2003) 123 IR 237; Theiss Pty Limited v Industrial Court of NSW [2010] NSWCA 252; Thorneloe v Filipowski [2001] NSWCCA 213 (revised); (2001) 52 NSWLR 60; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121; WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited [No 2] [2000] NSWIRComm 99; (2000) 100 IR 23; WorkCover Authority of NSW v CI & D Manufacturing Pty Ltd [1994] NSWIRComm 230; (1995) 60 IR 149
• Category: Principal judgment
• Parties: Inspector Ian John Batty (Prosecutor); Anthony Morfea (Individual Defendant); Intercoast Refrigerated Transport Pty Ltd (Corporate Defendant)
• Representation: S Crawshaw SC with A Mitchelmore of counsel (Prosecutor); M Kimber SC with M K Scott of counsel (Defendants); WorkCover Authority of NSW (Prosecutor); Lander and Rogers Lawyers (Defendants)
• File Number(s): IRC 1263 of 2010; IRC 1262 of 2010; IRC 1261 of 2010; IRC 1260 of 2010

Judgment (as to liability)

1 Four prosecutions are brought by Inspector Ian Batty of the WorkCover Authority of New South Wales, two against Intercoast Refrigerated Transport Pty Ltd ("the corporate defendant" or "Intercoast") and two against Anthony Francis Morfea ("the individual defendant") under the deeming provisions in s 26(1). They both are charged with breaches under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 ("the OHS Act" or "the Act") by way of Applications for Order.

2 It is alleged, in Matter No IRC 1263 of 2010, the corporate defendant (Intercoast) on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek, in the State of New South Wales ("the premises"), being an employer, contravened s 8(1) of the Act in that it failed to:

ensure the health, safety and welfare at work of all its employees and in particular, Gregory Keith Phillips, contrary to section 8(1) of the Act.

The particulars of the charge are:

Particulars of risk

1.As a consequence of the acts and omissions of the defendant, as particularised below, on 14 November 2008 Gregory Phillips was exposed to a risk of being struck by the heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility.

Particulars of the defendant's acts and omissions

Particulars of the defendant's failings in relation to systems of work with respect to the pre-employment screening of employees

2.The defendant failed to provide a system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul vehicles by persons employed by the defendant to drive, operate and manage those vehicles that was safe and without risk to health.

Measures the defendant should have taken but failed to take with respect to illicit drug management

3.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage those vehicles:

(a)The defendant should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers were to be assessed prior to employment for the purposes of identifying:

(i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations.

(b)The defendant should have identified criteria relating to drug usage which the traffic and criminal histories of applicants for employment as long haul drivers were to be assessed prior to employment for the purpose of identifying:

(i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for illicit drug use.

(c)The defendant should have assessed all long haul applicant driver traffic histories against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying:

(i)whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations.

(d)The defendant should have required all applicants for employment as long haul drivers to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage;

(e)The defendant should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug usage were to be assessed by the defendant for the purpose of identifying:

(i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for illicit drug use.

(f)The defendant should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the defendant's criteria for the purpose of identifying:

(i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for illicit drug usage.

(g)The defendant should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs for all persons employed by the defendant who were assigned to long haul driving duties.

(h)The defendant should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the defendant who were assigned to long haul driving duties for use of illicit drugs.

(j)The defendant should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the defendant as requiring additional monitoring for illicit drug usage.

(j)The defendant should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the defendant's long haul heavy combination vehicles.

(k)The defendant should have screened Gregory Phillips' traffic and criminal histories, as disclosed by Gregory Phillips at or about the time that Gregory Phillips commenced employment with the defendant for the purposes of ascertaining:

(i)whether Gregory Phillips was unsuitable for employment as a long haul heavy combination vehicle driver;

(ii)whether Gregory Phillips, if employed, would require additional monitoring for illicit drug use.

(l)The defendant should required Gregory Phillips to undergo a pre-employment medical examination, including screening for illicit drug use.

(m)The defendant, upon employing Gregory Phillips as a long haul driver, should have instituted a monitoring program for illicit drug usage which included:

(i)regular, scheduled screening tests for illicit drug usage;

(ii)random screening tests for illicit drug usage; and

(iii)a program of performance management, for the purposes of monitoring Phillips performance for signs of illicit drug usage.

(n)The defendant should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers would use illicit stimulants to offset fatigue.

Particulars of the defendant's failings in relation to systems of work with respect to fatigue management

4.The defendant failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, that obviated or otherwise minimised the risk to their health and safety.

Measures the Defendant should have taken but failed to take with respect to fatigue management

5.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage the defendant's long haul heavy combination vehicles:

(a) The defendant should have verified driver compliance with the defendant's Fatigue Management policies and systems, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips.

(b) The defendant should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips.

(c) The defendant should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the defendant's Daily Movement Sheets.

(d) The defendant should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips.

(e) The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips.

(f) The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip.

(g) The defendant should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1]

(h) The defendant should have developed and enforced Fatigue Management Control Procedures, including Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including:

(i)detailed employee induction to ensure that all drivers and employees involved in the defendant's fatigue management process were aware of relevant policies, requirements, systems and controls;

(ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that:

the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and

the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip;

(iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip;

(iv)maintenance of written, accurate dispatch records, such as the defendant's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours;

(v)monitoring by management of the allocation of long haul driving duties in accordance with a fatigue management checklist, such as the Checklist for NSW Basic Fatigue Management;

(vi)monitoring of driver fatigue management overnight, including the use of GPS tracking information, for the purpose of ensuring compliance with the defendant's Fatigue Management system and the relevant regulatory requirements governing working hours and mandatory rest periods.

(j)The defendant should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements.

Particulars of the defendant's failings in relation to systems of work with respect to the conduct of roadside repairs

6.The defendant failed to provide a system of work in relation to the performance of roadside service and/or repair of the defendant's long haul heavy combination vehicles that was safe and without risk to health.

Measures the defendant should have taken but failed to take with respect to the conduct of roadside repairs

7.The defendant should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the defendant's long haul heavy combination vehicles.

8.Further, the defendant should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted.

Particulars of the defendant's failings in relation to information, instruction and training re fatigue management

9.The defendant failed to provide such information and instruction regarding fatigue management to its employees as was necessary to ensure the health and safety of its employees whilst undertaking long haul driving duties, including the driving, operation and management of the defendant's long haul heavy combination vehicles.

Measures the defendant should have taken and failed to take with respect to information, instruction and training re fatigue management

10.The defendant should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees:

(a) The defendant should have provided its employees with detailed induction training in relation to an integrated fatigue management program;

(b) The defendant should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the defendant's GPs tracking of its long haul heavy combination vehicles;

(c) The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures;

(d) The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with relevant regulatory requirements governing working hours and mandatory rest periods;

(e) The defendant should have provided with the information necessary to enable its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including:

(i)dispatch sheets, such as the defendant's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and

(ii)information from the GPS tracking system, such as the GPS Activity Reports.

Particulars of the defendant's failings in relation to Supervision

11.The defendant failed to provide such supervision to its employees as was necessary to ensure their health and safety whilst undertaking long haul driving duties.

Measures the Defendant should have taken and failed to take in relation to Supervision

12.The defendant should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees engaged in long haul driving duties:

(a)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the defendant's fatigue management policies and systems by reference to:

(i)The driver's logbook;

(ii)The defendant's driver allocation records; and

(iii)The information available from the GPS tracking system.

(b)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the regulatory requirements governing working hours and mandatory rest periods by reference to:

(i)The driver's logbook;

(ii)The defendant's driver allocation records; and

(iii)The information available from the GPS tracking system.

(c)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the defendant's fatigue management policies and systems by reference to relevant records and information including:

(i)The defendant's driver allocation records; and

(ii)The information available from the GPS tracking system.

(d)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods.

13.As a consequence of the acts and omissions of the defendant, as particularised above, on 14 November 2008 Gregory Keith Phillips was exposed to a risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility.

14.Further, as a consequence of the acts and omissions of the defendant, as particularised above, on 14 November 2008 Gregory Keith Phillips sustained fatal injury when he was struck by the subject heavy combination vehicle whilst that vehicle was undergoing repair at RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales.

3 It is alleged, in Matter No IRC 1262 of 2010, the corporate defendant, on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek in the State of New South Wales ("the premises"), being an employer, contravened s 8(2) of the Act in that it failed to:

ensure that people other than the company's employees, in particular, Michael Webb, were not exposed to risks to their health and safety arising from the conduct of the company's undertaking whilst they were at the company's place of work contrary to section 8(2) of the Occupational Health and Safety Act, 2000.

The particulars of the charge are:

Particulars of risk

1.As a consequence of the acts and omissions of the company, as particularised below, on 14 November 2008 Gregory Phillips was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility.

The company's undertaking

2.At all material times the company undertook business as a transport company, including the provision of long haul, including interstate, freight transport services.

3.On 14 November 2008, as part of the undertaking of its business as a transport company providing long haul and interstate freight transport services, the company was the operator of a heavy combination vehicle consisting of:

a Kenworth K104 Model Prime Mover bearing Victorian registration no. VV29GZ;

Trailer A, being a Maxi-Tran ST3 refrigerated van bearing Queensland registration no. 215QHY; and

Trailer B, being a Maxi-Tran ST3 refrigerated van bearing Federal Interstate registration no. VT85IT. ("the heavy combination vehicle").

Employment

4.At all material times the company was an employer.

5.At all material times the company employed Gregory Keith Phillips as a driver to drive heavy combination vehicles.

6.On 14 November 2008, whilst in the course of his employment with the company, Gregory Phillips was the driver in charge of the heavy combination vehicle.

Place of work

7.At all material times, the heavy combination vehicle, including its immediate environs at the RTA Inspection Facility, was the company's place of work.

Particulars of the company's acts and omissions

Particulars of the company's failings in relation to systems of work with respect to the pre-employment screening of employees

8.The company failed to provide a system of work with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Gregory Phillips, in relation to the driving, operation and management of its long haul vehicles that obviated or otherwise minimised the risk to health and safety.

Measures the company should have taken but failed to take with respect to the use of illicit drugs by drivers in its employ

9.The company should have taken, but failed to take, the following measures with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Mr Phillips, in relation to the driving, operation and management of its long haul heavy combination vehicles:

(a)The company should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purposes of identifying:

(i) applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations.

(b)The company should have identified criteria relating to illicit drug usage against which the traffic and criminal histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purpose of identifying:

(i) applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for illicit drug use.

(c)The company should have assessed all long haul applicant driver traffic histories, including Gregory Phillips' history, against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying:

(i) whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations.

(d)The company should have required all applicants for employment as long haul drivers, including Gregory Phillips, to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage;

(e)The company should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use were to be assessed by the company for the purpose of identifying:

(i) whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for illicit drug usage.

(f)The company should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the company's criteria for the purpose of identifying:

(i) whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for illicit drug usage.

(g)The company should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for all persons employed by the company who were assigned to long haul driving duties.

(h)The company should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the company who were assigned to long haul driving duties for use of illicit drugs.

(j)The company should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the company as requiring additional monitoring for illicit drug usage.

(k)The company should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the company's long haul heavy combination vehicles.

(l)The company should have screened Gregory Phillips' traffic and criminal histories, as disclosed by Gregory Phillips at or about the time that Phillips commenced employment with the company for the purposes of ascertaining:

(i) whether Gregory Phillips was unsuitable for employment as a long haul heavy combination vehicle driver;

(ii) whether Gregory Phillips, if employed, would require additional monitoring for illicit drug use.

(m)The company should have required Gregory Phillips to undergo a pre-employment medical examination, including screening for illicit drug use, prior to Gregory Phillips being permitted by the company to commence work with the defendant as a driver assigned to long haul driving duties.

(n)The company, upon employing Gregory Phillips as long haul driver, should have instituted a monitoring program for illicit drug usage which included Mr Phillips undergoing:

(i)regular, scheduled screening tests for illicit drug usage;

(ii)random screening tests for illicit drug usage; and

(iii)a program of performance management, for the purpose of to monitoring Phillips' performance for signs of illicit drug usage.

(o)The company should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers, including Gregory Phillips, would use illicit stimulants to offset fatigue.

Particulars of the company's failings in relation to systems of work with respect to fatigue management

10.The company failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risk to their health and safety.

Measures the Company should have taken but failed to take with respect to fatigue management

11.The company should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by persons employed by the company to drive, operate and manage the company's long haul heavy combination vehicles:

(a)The company should have verified compliance with the company's Fatigue Management policies and systems prior to allocating long haul driving duties, including allocation of the subject journey to Gregory Phillips.

(b)The company should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips.

(c)The company should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the company's Daily Movement Sheets.

(d)The company should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips.

(e)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Mr Phillips.

(f)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip.

(g)The company should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1].

(h)The company should have developed and enforced Fatigue Management Control Procedures, including the Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including:

(i)detailed employment induction to ensure that all drivers and employees involved in the company's fatigue management process were aware of relevant policies, requirements, systems and controls;

(ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that:

the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and

the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip;

(iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip;

(iv)maintenance of written, accurate dispatch records, such as the company's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours;

(v)monitoring by management of the allocation of long haul driving duties in accordance with the Checklist for NSW Basic Fatigue Management;

(vi)monitoring of driver fatigue management overnight, including the usage of GPS Activity Reporting information for the purpose of ensuring compliance.

(j)The company should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements.

Particulars of the company's failings in relation to systems of work with respect to the conduct of roadside repairs

12.The company failed to provide a system of work in relation to the performance of roadside service and/or repair of the company's long haul heavy combination vehicles to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety.

Measures the company should have taken but failed to take with respect to the conduct of roadside repairs

13.The company should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the company's long haul heavy combination vehicles.

14.Further, the company should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted.

Particulars of the company's failings in relation to information, instruction and training re fatigue management

15.The company failed to provide such information and instruction regarding fatigue management to its employees undertaking long haul driving duties, including the driving, operation and management of the company's long haul heavy combination vehicles, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety.

Measures the company should have taken and failed to take with respect to information, instruction and training re fatigue management

16.The company should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees:

(a)The company should have provided its employees with detailed induction training in relation to an integrated fatigue management program;

(b)The company should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the company's GPs tracking of its long haul heavy combination vehicles;

(c)The company should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the company's fatigue management procedures;

(d)The company should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with relevant regulatory requirements governing working hours and mandatory rest periods;

(e)The company should have provided with the information necessary to enable its employees assigned to monitor long haul drivers overnight to verify driver compliance with the company's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including:

(i)dispatch sheets, such as the company's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and

(ii)information from the GPS tracking system, such as the GPS Activity Reports.

Particulars of the company's failings in relation to Supervision

17.The company failed to provide such supervision to its employees to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety

Measures the Company should have taken and failed to take in relation to Supervision

18.The company should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees engaged in long haul driving duties:

(a)The company should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the company's fatigue management policies and systems by reference to:

(i)The driver's logbook;

(ii)The company's driver allocation records; and

(iii)The information available from the GPS tracking system.

(b)The company should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the regulatory requirements governing working hours and mandatory rest periods by reference to:

(i)The driver's logbook;

(ii)The company's driver allocation records; and

(iii)The information available from the GPS tracking system.

(c)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the company's fatigue management policies and systems by reference to relevant records and information including:

(i)The company's driver allocation records; and

(ii)The information available from the GPS tracking system.

(d)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods.

19.As a consequence of the acts and omissions of the company, as particularised above, on 14 November 2008 Michael Webb was placed at risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility at Twelve Mile Creek near Raymond Terrace in the State of New South Wales.

4 It is alleged, in Matter No. IRC 1260 of 2010, the individual defendant, on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek in the State of New South Wales ("the premises), being an employer, contravened s 8(1) of the Act in that it failed to:

ensure by its acts and omissions as particularised below the health, safety and welfare at work of all its employees and in particular, Gregory Keith Phillips, contrary to section 8(1) of the Act.

The particulars of the charge are:

Particulars of risk

1.As a consequence of the acts and omissions of the company, as particularised below, on 14 November 2008 Gregory Phillips was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility.

Particulars of the company's acts and omissions

Particulars of the company's failings in relation to systems of work with respect to the pre-employment screening of employees

2.The company failed to provide a system of work with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Gregory Phillips, in relation to the driving, operation and management of its long haul vehicles that obviated or otherwise minimised the risk to health and safety.

Measures the company should have taken but failed to take with respect to the use of illicit drugs by drivers in its employ

3.The company should have taken, but failed to take, the following measures with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Mr Phillips, in relation to the driving, operation and management of its long haul heavy combination vehicles:

(a)The company should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purposes of identifying:

(i) applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations.

(b)The company should have identified criteria relating to illicit drug usage against which the traffic and criminal histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purpose of identifying:

(i) applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for illicit drug use.

(c)The company should have assessed all long haul applicant driver traffic histories, including Gregory Phillips' history, against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying:

(i) whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations.

(d)The company should have required all applicants for employment as long haul drivers, including Gregory Phillips, to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage;

(e)The company should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use were to be assessed by the company for the purpose of identifying:

(i) whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for illicit drug usage.

(f)The company should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the company's criteria for the purpose of identifying:

(i) whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii) applicants, who if employed, would require additional monitoring for illicit drug usage.

(g)The company should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for all persons employed by the company who were assigned to long haul driving duties.

(h)The company should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the company who were assigned to long haul driving duties for use of illicit drugs.

(j)The company should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the company as requiring additional monitoring for illicit drug usage.

(k)The company should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the company's long haul heavy combination vehicles.

(l)The company should have screened Gregory Phillips' traffic and criminal histories, as disclosed by Gregory Phillips at or about the time that Phillips commenced employment with the company for the purposes of ascertaining:

(i) whether Gregory Phillips was unsuitable for employment as a long haul heavy combination vehicle driver;

(ii) whether Gregory Phillips, if employed, would require additional monitoring for illicit drug use.

(m)The company should have required Gregory Phillips to undergo a pre-employment medical examination, including screening for illicit drug use, prior to Gregory Phillips being permitted by the company to commence work with the defendant as a driver assigned to long haul driving duties.

(n)The company, upon employing Gregory Phillips as long haul driver, should have instituted a monitoring program for illicit drug usage which included Mr Phillips undergoing:

(i)regular, scheduled screening tests for illicit drug usage;

(ii)random screening tests for illicit drug usage; and

(iii)a program of performance management, for the purpose of to monitoring Phillips' performance for signs of illicit drug usage.

(o)The company should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers, including Gregory Phillips, would use illicit stimulants to offset fatigue.

Particulars of the company's failings in relation to systems of work with respect to fatigue management

4.The company failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, that obviated or otherwise minimised the risk to their health and safety.

Measures the Company should have taken but failed to take with respect to fatigue management

5.The company should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by persons employed by the company to drive, operate and manage the company's long haul heavy combination vehicles:

(a)The company should have verified compliance with the company's Fatigue Management policies and systems prior to allocating long haul driving duties, including allocation of the subject journey to Gregory Phillips.

(b)The company should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips.

(c)The company should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the company's Daily Movement Sheets.

(d)The company should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips.

(e)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Mr Phillips.

(f)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip.

(g)The company should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1].

(h)The company should have developed and enforced Fatigue Management Control Procedures, including the Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including:

(i)detailed employment induction to ensure that all drivers and employees involved in the company's fatigue management process were aware of relevant policies, requirements, systems and controls;

(ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that:

the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and

the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip;

(iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip;

(iv)maintenance of written, accurate dispatch records, such as the company's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours;

(v)monitoring by management of the allocation of long haul driving duties in accordance with the Checklist for NSW Basic Fatigue Management;

(vi)monitoring of driver fatigue management overnight, including the usage of GPS Activity Reporting information for the purpose of ensuring compliance.

(j)The company should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements.

Particulars of the company's failings in relation to systems of work with respect to the conduct of roadside repairs

6.The company failed to provide a system of work in relation to the performance of roadside service and/or repair of the company's long haul heavy combination vehicles that was safe and without risk to health.

Measures the company should have taken but failed to take with respect to the conduct of roadside repairs

7.The company should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the company's long haul heavy combination vehicles.

8.Further, the company should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted.

Particulars of the company's failings in relation to information, instruction and training

9.The company failed to provide such information and instruction regarding fatigue management to its employees as was necessary to ensure the health and safety of its employees whilst undertaking long haul driving duties, including the driving, operation and management of the company's long haul heavy combination vehicles.

Measures the company should have taken but failed to take with respect to information, instruction and training

10.The company should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees in relation to fatigue management in the driving, operation and management of the company's long haul heavy combination vehicles, including:

(a)The company should have provided its employees with detailed induction training in relation to an integrated fatigue management program;

(b)The company should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the company's GPS tracking of its long haul heavy combination vehicles;

(c)The company should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the company's fatigue management procedures, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods;

(d)The company should have provided its employees assigned to monitor long haul drivers overnight the information and instructions necessary to verify driver compliance with the company's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including:

(i)dispatch sheets, such as the company's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and

(ii)information from the company's GPS tracking system, such as the GPS Activity Reports.

Particulars of the company's failings in relation to Supervision

11.The company failed to provide such supervision to its employees as was necessary to ensure the health and safety of its employees, in particular Gregory Phillips, whilst engaged in long haul driving duties.

Measures the Company should have taken and failed to take in relation to Supervision

12.The company should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees, in particular Gregory Phillips, when engaged in long haul driving duties including:

(a)The company should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the company's fatigue management policies and systems, by reference to relevant records and information including:

(i)The driver's logbook;

(ii)The company's driver allocation records; and

(iii)The information available from the GPS tracking system.

(b)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the company's fatigue management policies and systems, by reference to relevant information and records:

(i)The company's driver allocation records; and

(ii)The information available from the GPS tracking system.

(c)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods.

13.Further, as a consequence of the acts and omissions of the company, as particularised above, on 14 November 2008 Gregory Keith Phillips was exposed to a risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales.

14.As a consequence of the acts and omissions of the company, Gregory Keith Phillips was fatally injured when he was struck by the subject heavy combination vehicle whilst that vehicle was undergoing repair at the RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales.

5 It is alleged, in Matter No. IRC 1261 of 2010, the individual defendant, on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek in the State of New South Wales ("the premises), being an employer, contravened s 8(2) of the Act in that it failed to:

ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking whilst they were at the defendant's place of work contrary to section 8(2) of the Occupational Health and Safety Act, 2000.

The particulars of the charge are:

Particulars of risk

1.As a consequence of the acts and omissions of the defendant, as particularised below, on 14 November 2008 Michael Webb was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility.

The defendant's undertaking

2.At all material times the defendant undertook business as a transport company, including the provision of long haul interstate freight transport services.

3.On 14 November 2008 the defendant, as part of the undertaking of its business as transport company providing long haul and interstate freight transport services was the operator of a heavy combination vehicle consisting of:

A Kenworth K104 Model Prime Mover bearing Victorian registration no. VV29GZ;

Trailer A being a Maxi-Tran ST3 refrigerated van bearing Queensland registration no. 215QHY; and

Trailer B being a Maxi-Tran ST3 refrigerated van bearing Victorian registration no. VT85IT. [the heavy combination vehicle].

Employment

4.At all material times the defendant was an employer.

5.At all material times the defendant employed Gregory Keith Phillips as a driver to drive heavy combination vehicles.

6.On 14 November 2008, whilst in the course of his employment with the defendant, Phillips was the driver in charge of a heavy combination vehicle consisting of the heavy combination vehicle which was grounded and awaiting mechanical repairs at the RTA Inspection Facility, whilst course of a journey from Tingalpa in Queensland to Sydney.

Place of work

7.At all material times, the heavy combination vehicle, including its immediate environs at the RTA Inspection Facility, was the defendant's place of work.

Particulars of the defendant's acts and omissions

Particulars of the defendant's failings in relation to systems of work with respect to the pre-employment screening of employees

8.The defendant failed to provide a system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul vehicles by persons employed by the defendant to drive, operate and manage those vehicles to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety.

Measures the defendant should have taken but failed to take with respect to illicit drug management

9.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage those vehicles:

(a)The defendant should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers were to be assessed prior to employment for the purposes of identifying:

(i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations.

(b)The defendant should have identified criteria relating to drug usage which the traffic and criminal histories of applicant's for employment as long haul drivers were to be assessed prior to employment for the purpose of identifying:

(i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for illicit drug use.

(c)The defendant should have assessed all long haul applicant driver traffic histories against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying:

(i)whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations.

(d)The defendant should have required all applicants for employment as long haul drivers to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage;

(e)The defendant should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug usage were to be assessed by the defendant for the purpose of identifying:

(i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for illicit drug use.

(f)The defendant should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the defendant's criteria for the purpose of identifying:

(i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and

(ii)applicants, who if employed, would require additional monitoring for illicit drug usage.

(g)The defendant should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs for all persons employed by the defendant who were assigned to long haul driving duties.

(h)The defendant should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the defendant who were assigned to long haul driving duties for use of illicit drugs.

(j)The defendant should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the defendant as requiring additional monitoring for illicit drug usage.

(j)The defendant should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the defendant's long haul heavy combination vehicles.

(k)The defendant should have screened Phillips' traffic and criminal histories, as disclosed by Phillips at or about the time that Phillips commenced employment with the defendant for the purposes of ascertaining:

(i)whether Phillips was unsuitable for employment as a long haul heavy combination vehicle driver;

(ii)whether Phillips, if employed, would require additional monitoring for illicit drug use.

(l)The defendant should required Phillips to undergo a pre-employment medical examination, including screening for illicit drug use.

(m)The defendant, upon employing Phillips as long haul driver, should have instituted a monitoring program for illicit drug usage which included:

(i)regular, scheduled screening tests for illicit drug usage;

(ii)random screening tests for illicit drug usage; and

(iii)a program of performance management, for the purposes of monitoring Phillips performance for signs of illicit drug usage.

(n)The defendant should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers would use illicit stimulants to offset fatigue.

Particulars of the defendant's failings in relation to systems of work with respect to fatigue management

10.The defendant failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety.

Measures the Defendant should have taken but failed to take with respect to fatigue management

11.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage the defendant's long haul heavy combination vehicles:

(a) The defendant should have verified driver compliance with the defendant's Fatigue Management policies and systems, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips.

(b) The defendant should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Mr Phillips.

(c) The defendant should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the defendant's Daily Movement Sheets.

(d) The defendant should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips.

(e) The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips.

(f) The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip.

(g) The defendant should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1]

(h) The defendant should have developed and enforced Fatigue Management Control Procedures, including Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including:

(i)detailed employee induction to ensure that all drivers and employees involved in the defendant's fatigue management process were aware of relevant policies, requirements, systems and controls;

(ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that:

the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and

the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip;

(iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip;

(iv)maintenance of written, accurate dispatch records, such as the defendant's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours;

(v)monitoring by management of the allocation of long haul driving duties in accordance with a fatigue management checklist, such as the Checklist for NSW Basic Fatigue Management;

(vi)monitoring of driver fatigue management overnight, including the use of GPS tracking information, for the purpose of ensuring compliance with the defendant's Fatigue Management system and the relevant regulatory requirements governing working hours and mandatory rest periods.

(j)The defendant should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements.

Particulars of the defendant's failings in relation to systems of work with respect to the conduct of roadside repairs

12.The defendant failed to provide a system of work in relation to the performance of roadside service and/or repair of the defendant's long haul heavy combination vehicles to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety.

Measures the defendant should have taken but failed to take with respect to the conduct of roadside repairs

13.The defendant should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the defendant's long haul heavy combination vehicles.

14.Further, the defendant should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted.

Particulars of the defendant's failings in relation to information, instruction and training re fatigue management

15.The defendant failed to provide such information and instruction regarding fatigue management to its employees undertaking long haul driving duties, including the driving, operation and management of the defendant's long haul heavy combination vehicles, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety.

Measures the defendant should have taken and failed to take with respect to information, instruction and training re fatigue management

16.The defendant should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees:

(a) The defendant should have provided its employees with detailed induction training in relation to an integrated fatigue management program;

(b) The defendant should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the defendant's GPs tracking of its long haul heavy combination vehicles;

(c) The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures;

(d) The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with relevant regulatory requirements governing working hours and mandatory rest periods;

(e) The defendant should have provided with the information necessary to enable its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including:

(i)dispatch sheets, such as the defendant's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and

(ii)information from the GPS tracking system, such as the GPS Activity Reports.

Particulars of the defendant's failings in relation to Supervision

17.The defendant failed to provide such supervision to its employees undertaking long haul driving duties to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety.

Measures the Defendant should have taken and failed to take in relation to Supervision

18.The defendant should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees engaged in long haul driving duties:

(a)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the defendant's fatigue management policies and systems by reference to:

(i)The driver's logbook;

(ii)The defendant's driver allocation records; and

(iii)The information available from the GPS tracking system.

(b)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the regulatory requirements governing working hours and mandatory rest periods by reference to:

(i)The driver's logbook;

(ii)The defendant's driver allocation records; and

(iii)The information available from the GPS tracking system.

(c)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the defendant's fatigue management policies and systems by reference to relevant records and information including:

(i)The defendant's driver allocation records; and

(ii)The information available from the GPS tracking system.

(d)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods.

19.As a consequence of the acts and omissions of the defendant, as particularised above, on 14 November 2008 Michael Webb was exposed to a risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales.

6 Each defendant pleads not guilty to each charge.

7 Mr S Crawshaw SC with Ms A Mitchelmore of counsel appeared for the prosecution and Mr M Kimber SC with Mr M Scott of counsel, appeared for the defendant.

8 The prosecutor called a number of witnesses including Inspector Batty, Mr Glen Waddingham, Mr Tim Smith, Mr Michael Webb, Dr Peter Hart, Dr Robert Casey, Mr William Chapple, Mr Troy O'Brien, Dr Anup Desai, Dr Judith Perl and Mr David Unicomb. Much documentation was tendered by the prosecutor including the Inspector's Statement of 14 February 2009, Factual Inspection Report of Inspector Batty, photos of the incident, police reports, police statement taken after the incident, manuals, relevant emails, reports of Dr Hart, Dr Casey, Dr Desai and Dr Perl and a number of records of interview with other witnesses.

9 The defendants called Dr Graham Starmer as a witness. Much documentation was also tendered for the defendants including two wooden planks, a rubber chock, Mr Webb's statement to the police, a number of photographs, a record of an interview of 12 December 2008 with Mr Webb, reports of Dr Starmer and Dr Gilmore and a document entitled Driving Periods and Breaks.

Background

10 It is necessary to describe the events leading up to the alleged breaches of the Act. To a large part, the circumstances leading up to the incident are not controversial. Any contentions as to facts will then be addressed in order to determine whether there is a breach of the Occupational Health and Safety Act 2000.

11 On 14 November 2008, the corporate defendant was an employer of some 90 employees spread across a number of depots, variously located at Flemington NSW, Werribee Vic, Shepparton Vic, Tingalpa Qld and Bundaberg Qld. Of the 90 employees, approximately 40 to 50 were either full time or casual truck drivers, who were either local drivers or long haul drivers.

12 Some three months prior to the date of the alleged offences, the corporate defendant purchased a number of prime movers and trailers from another transport company, "Prime Haulage" ("Prime"). As part of that purchase the corporate defendant also employed some former employees of Prime, including Gregory Keith Phillips. Mr Phillips had been employed by Prime on a casual basis for a matter of months prior to the transfer of his employment from Prime to Intercoast. He commenced employment with the corporate defendant on 25 August 2008.

13 At the time of Mr Phillips' transfer from Prime to Intercoast, the defendant corporation screened applicants by requiring them to complete an Application for Employment and the Austbrokers Drivers' Declaration and to provide an applicant's Traffic Record for the five (5) year period immediately preceding their application. An applicant's completed forms and Traffic Record were then submitted to Intercoast's insurance broker for consideration. If the insurance broker approved cover for an applicant and the applicant held a valid licence for the relevant class of vehicle (in this case heavy combination vehicles) then, as with Mr Phillips, the corporate defendant employed the applicant as a truck driver on probation. Medical examinations were carried out within the first three months of employment. Mr Phillips was not required to undergo any medical examination nor any form of drug or alcohol screening between the date on which he commenced with Intercoast and the date of the alleged breaches of the Act.

14 Intercoast drivers were inducted using a Manual called the "Intercoast Refrigerated Transport Pty Ltd TruckSafe Drivers Maintenance Management & Systems Manual" (the "TruckSafe Manual"). The TruckSafe Manual contained a page titled "Fatigue Management Policy" which set out a general statement about what Intercoast, the corporate defendant, expected in terms of fatigue management.

15 Mr O'Brien, the Branch/Depot Manager at Tingalpa, to whom Mr Phillips reported, believed he conducted an induction for Mr Phillips. His evidence was the induction usually went for between half an hour and an hour and involved: supplying drivers with emergency contact numbers; showing drivers how to fill in their pay sheet, fuel sheet and time sheet; providing them with a pre-trip checklist and instructing them what they need to do before getting in the truck; telling them not to break the law and what to do in the event of a problem with the truck. Mr O'Brien explained he went through the TruckSafe Manual, focusing on the drug and alcohol policy and fault reporting; discussing facilities around the depot, the location of evacuation points, wash bays and fire extinguishers and, in relation to fatigue, taking them through the page of the TruckSafe Manual detailing the fatigue policy. It was Mr O'Brien's opinion, given Mr Phillips had had the induction, that he would have signed a one page induction checklist. Intercoast has produced no induction records signed by Mr Phillips.

16 On 12 November 2008, Mr Phillips was rostered to drive a B-Double carrying a load from Sydney to Brisbane. A B-Double is a heavy combination vehicle consisting of a prime mover and two trailers. The "B-Double" which Mr Phillips was relevantly driving consisted of a Kenworth K104 Model Prime Mover bearing Victorian registration no. VV29GZ and two trailers.

17 Each truck contains a GPS responder which records travel times and distance of the truck. The GPS transponders of Mr Phillips' prior trip revealed he drove a trip from Arndell Park, Sydney to Tingalpa, Queensland. It took approximately 18 hours of which approximately 11 and a half hours were driving time. He left Arndell Park, NSW at 7.09 am EST. He arrived at the depot at Tingalpa in Queensland at about 1.12 pm EST on Thursday 13 November 2008. Mr Phillips had a break of approximately two hours and 29 minutes, at the depot at Tingalpa in Queensland, from about 1.15 pm to about 3.44 pm EST on Thursday 13 November 2008.

18 Mr O'Brien then rostered Mr Phillips to drive the heavy combination B-Double to Coffs Harbour to collect the load of bananas for delivery to Melbourne via Sydney. In allocating the job to Mr Phillips, Mr O'Brien assumed that Mr Phillips had had a rest on the way up to Brisbane because he arrived at the depot half a day late. Mr Phillips on enquiry told Mr O'Brien he had four and a half hours of driving time left to remain within the regulations. Mr O'Brien took him at his word and did not look at his log book.

19 Mr Phillips was instructed to drive to Coffs Harbour to collect the load then have a sleep "until when he was back in hours". The total trip from Arndell Park to Tingalpa therefore took approximately 18 hours, of which approximately 11 and a half hours was driving time. If he had been aware that Mr Phillips had been driving for 11 and a half hours, Mr O'Brien stated he would not have chosen him to do the run to Coffs Harbour.

20 In giving Mr Phillips the job, Mr O'Brien told Mr Phillips to take the B-Double combination to Coffs, get it loaded and then to go to bed, only driving on to Sydney when he was back in hours. However, there was nothing on the Daily Movement Sheet that was sent to the nightshift on the afternoon of 13 November 2008 to say Mr Phillips should only travel to Coffs Harbour before taking a rest.

21 Again, the transporters reveal the trip to Coffs Harbour took six hours 20 minutes (approx) of which approximately four hours 40 minutes (approx) was driving time. By that time, Mr Phillips had been driving for over 13 hours in the last 24 hours.

22 At about 3:42 am (EST) on 14 November 2008, Mr Phillips was driving the heavy combination vehicle south on the Pacific Highway towards the NSW RTA Inspection Facility near Twelve Mile Creek (the "RTA Inspection Facility") which is close to Hexham near Newcastle. Sensors connected to the NSW RTA Truck Scan computer system) identified a vehicle weight discrepancy and an Optical Character Reader ("OCR") discrepancy with respect to his vehicle. He was directed at 3.45pm into the RTA Inspection Facility. He presented his licence and logbook. On inspection, the weights (vehicle and load) were confirmed as in accordance with regulations but three suspension airbags on the right side of the B-Trailer were deflated. A defect notice was issued on the vehicle.

23 The logbook examination by the RTA officer also revealed Mr Phillips had had insufficient rest breaks, he was exceeding driving hours and he had failed to make relevant entries for the 10 hour period preceding inspection. His GPS data later indicated he had been driving 15 and a half hours in the last 24 hours.

24 The Inspector, Mr Waddingham asked of Mr Philips:

Can you explain why you have exceeded your maximum 12 hours work in any 24 hour period for this 24 hour period and not had your minimum 7 hour continuous rest break for these two 24 hour periods?

Mr Phillips replied:

I didn't know I had, I'm still trying to get my head around logbooks, they don't use them in the Northern Territory, I just pull over when I get tired.

25 In accordance with Intercoast's instructions, as contained in the Trucksafe Manual and the oral instruction given by Mr O'Brien, Mr Phillips contacted the corporate defendant's overnight supervisors, based in Melbourne, and informed them that the heavy combination vehicle had been "grounded" and required repairs. Mr Phillips also informed the overnight supervisors that he was "out of hours" and was required by the RTA Inspectors to take a seven hour break. The corporate defendant's officers contacted Autopool at Hexham and arranged for Autopool to send a motor mechanic to the RTA Inspection Facility to inspect and repair the subject heavy combination vehicle.

26 Prior to departing Autopool's workshop Michael Webb, a repair mechanic, loaded an Autopool ute with the tools and equipment he believed he would require for an "airbag repair", including his toolbox, some wheel chocks and some stands. The chocks which Mr Webb loaded were blocks of timber. He could not find any of the purpose-designed rubber chocks designed for the purpose of chocking truck wheels. Mr Webb also loaded a replacement airbag.

27 Mr Webb said the two bits of timber were "the best" he could find in the workshop. The police inspection described the chocks as follows: "two pieces of timber stacked upon one another - oil dirty condition" and "single timber slab - oil, dirty condition".

28 On arrival at the Inspection Facility, Mr Webb observed Mr Phillips in the B double cabin. He knocked on the cabin door. He did not know whether Mr Phillips "was awake or not". Mr Phillips alighted. On examination of the vehicle Mr Webb determined another type of airbag was required. Both he and Mr Phillips then travelled to Hexham and returned. As they chattered, Mr Webb said in evidence that Mr Phillips said he had only a few hours sleep in a couple of days. This comment does not seem to appear in the parts of the WorkCover interview tendered nor in the Police statement. However, the defendant does not seem to press this point.

29 On arrival back at the RTA site, Mr Webb then placed the wooden chocks on the B double wheels, the thinner chock in front driver's side drive tyres on the prime mover and the two wooden blocks joined as one were placed in front of the driver's side steer tyre of the prime mover.

30 The front chock was approximately 90 mm wide, 45 mm high and 500 mm long. The second chock made up of the two wooden blocks had similar dimensions to the first but together were 90 mm high.

31 The repair to the three airbags was then completed by Mr Webb. Mr Webb said he then asked Mr Phillips to climb into the cabin of the prime mover, place his foot on the brake pedal and start the engine. The air built up the pressure in the airbags. Mr Webb then asked Mr Phillips to release the park brake and then the foot brake. Mr Webb stated he waited some two minutes after the park brake was off and the foot brake released to ensure the vehicle was secure. He saw the vehicle move forward hard up on to the chocks. He revealed as the airbags unfurl you expect some movement of the vehicle.

32 Mr Webb then left Mr Phillips sitting in the cabin of the prime mover and went to the B trailer where Mr Webb observed the brakes (lights) were off and he then heard an air leak. He returned underneath the back of the trailer and found a fitting that had not quite locked the air line in. Mr Webb tightened the fitting and fixed the air leak.

33 Once he had stopped the air leaking from the suspension system, Mr Webb moved back underneath the rear axle of the B trailer and watched the rear driver's side airbag unroll. Mr Webb then climbed out from underneath the B trailer before re-positioning himself under the driver's side of the B trailer in front of the first axle to observe the front airbag on the driver's side to make sure it was unrolling properly.

34 Whilst in that position he heard a vehicle leaving the area and he saw that Mr Phillips was out of the prime mover. He saw Mr Phillips was crouched down beside the B trailer with his hand on a valve attached on the side of the chassis rail. Mr Webb asked Mr Phillips what the valve was. Mr Phillips responded it was a docking valve that raised the airbag heights to allow easier access when loading and unloading the vehicle load at certain loading docks. Mr Webb then asked Mr Phillips if he had moved the valve and Mr Phillips said that he had. Mr Webb then asked Mr Phillips to put the valve back to its normal running position. Mr Phillips did this.

35 Mr Webb then looked around and saw that the rear axle airbags on the B trailer were "over-extended" and that the middle axle airbags were starting to overextend. According to Mr Webb, the front airbag then unrolled and a split second later, the trailer "bounced" slightly; a second or two after that the B double went over the chocks and began to roll forward. Mr Webb immediately got out from underneath the B trailer.

36 However, Mr Phillips sustained a fatal injury. It can be inferred that Mr Phillips ran after the vehicle to stop it. Mr Webb observed that Mr Phillips was trapped and jammed between the steel driver's door and the door sill of the prime mover with the door hard up against an adjacent steel light pole on the RTA site. The Autopsy Report dated 20 April 2009 indicates that Mr Phillips died as a consequence of traumatic asphyxia consistent with his entrapment between the driver's side door and the sill of the prime mover.

37 Mr Phillips placed himself between the cabin door of the vehicle and the vehicle in reaching for the brake in his effort to stop the rolling vehicle. The cabin door was forced shut by the movement of the vehicle past the steel pole on the RTA site.

38 Evidence indicates the B-trailer brake lights were observed on immediately after the accident. Further, all efforts to tow the truck backwards from the rear of the B-trailer with a view to releasing Mr Phillips were totally unsuccessful. The trailer brake had been successfully engaged by Mr Phillips. Mr Phillips had managed to stop the rolling vehicle by applying the brake, regrettably at the same instant that he was crushed to death.

The Conversation

39 The first issue of contention arises from the evidence of Mr Webb. Mr Webb contended he had told Mr Phillips to stay in the truck and keep his foot hovering over the brake. It is necessary to consider Mr Webb's evidence and the weight to be given to it. Mr Webb asserted in his evidence before he went to check on the airbags inflation, he instructed Mr Phillips to stay in the cabin of the truck with his foot hovering over the service brake (foot pedal).

40 Mr Webb's evidence was before leaving Mr Phillips in the cabin he said words to Mr Phillips to the effect of:

Stay in the cabin whilst I check the airbags. Keep your foot hovered over the brake in case the truck rolls.

41 Mr Webb was cross-examined as follows:

Q. I must say I thought earlier on in your evidence that you, in terms of your employer's policies, they don't really want you to involve the drivers at all, that's true, isn't it?

A. Yes.

Q. So, if you gave Mr Phillips a direction to do what you say, that was not consistent with what your employer would ordinarily suggest you should do, is that right?

A. That's a suggestion, but it's totally up to the mechanic if he wants to use the driver or not.

Q. ... Do you say that at the time in November 2008 you understood or believed that you were allowed or encouraged to ask drivers to help or that you were discouraged from asking drivers to help?

A. Work did not like us using drivers.

Q. So on your evidence on your oath you told the Court or told him to stay in the truck and keep his foot hovering over the service brake as a precaution in case the truck rolled, is that right?

A. Yes.

Q. So you say ... that he didn't abide by that instruction because he got out of the cabin and came along to the side and put his hand on the docking lever that we have been discussing?

A. Yes.

Q. So not only did he get out of the truck when he shouldn't have, then he touched the lever when he shouldn't have?

A. Yes.

Q. And your evidence is that he then, he moved the docking lever and, in your view, although you don't know how it happened as to the mechanics of it, you believe that his touching that lever caused the truck to bounce and then roll over the chocks, is that your evidence?

A. Yes.

Q. What I want to put to you, Mr Webb, I want to suggest to you that, in terms of those two propositions about what you now say on your oath is what occurred, that neither of those two propositions are what you told the police or the WorkCover Authority in December 2008 when you were interviewed, do you agree with that?

A. Yes.

Q. You didn't mention either of those two things?

A. I was never asked.

42 Therefore, before the court, Mr Webb reported a conversation not before recorded by him either to the police or the WorkCover inspector who had later, but on the same day, taken statements from him. Further, he now opined Mr Phillips, in his moving of the docking lever, caused the vehicle to "bounce".

43 Mr Webb was interviewed both by WorkCover Authority and by the Police on 12 December 2008 who were seeking to find out what had happened on 14 November 2008. Mr Webb was the only witness to the incident. Mr Webb had not told WorkCover or the Police that he had given Mr Phillips such an instruction and Mr Phillips had then climbed out of the truck. He was questioned at the hearing as to this failure:

Q. But what I want to suggest to you that you didn't tell them, look, it's very simple really, the driver was responsible for this accident because he didn't stay in the truck like I told him, and then quite foolishly he touched a lever on the side of the truck and that caused the truck to bounce and roll over the chocks, you didn't say that, did you?

A. No.

Q. Why didn't you if that was the truth?

A. I don't know.

44 It is necessary to consider these prior statements. In the interview with Mr Batty, an Inspector of the WorkCover Authority, Mr Webb said as follows:

A.He started the truck. I told him to build full air up.

Q101.How long does that normally take?

A.It had lost next to no air out of that system and only took about 30 seconds to build back up to where it should, and it blew off on the air dryer. Then I asked him, with the foot still on the footbrake, could he release the maxi-brakes or the park brake. He did this.

Q102.How'd he do that?

A.It's just a, a button on the dashboard.

Q103.Right?

A.You can lift up the lockout and then push it in and it releases all the brakes. I could see the air gauges went down. I said with your foot still firmly on the brake pedal wait until that builds air back up again. You could hear the air running through, through the trailers. I said to him can you slowly bring your foot very slowly off the brake pedal. He started doing this, the truck ...

Q104.You were standing where at that point in time?

A.I was standing directly next to the driver's side door at the time. The truck probably moved, not even an inch forward, just to come up and fully butt up against the chocks that I had under the wheels. I made sure that, you know, I could see them actually butt up against it. I said to the driver again, you know, just bring your foot up very, very, very slowly. He did this while I was watching and the truck did not move any further forward. Then I said to him, with your foot, just keep your foot hovering above the brake pedal, I want you to come right off. Just keep your foot hovering there so if it did roll he was able to stop the vehicle with the footbrake. He took his foot right off, the vehicle stayed stationary, didn't roll, didn't move or anything. I stood there next to the vehicle at the driver's side door for probably another two minutes just to make sure that all the brakes and everything had sorted itself out. Then I, then I left the driver in the cab of the vehicle, talking to another driver that had turned up. An I can ..., I walked up to the back of the vehicle, the back of the B trailer and stuck my head underneath and saw that the brakes had indeed come off.

...

Q108.Yep?

A. So then I got back from underneath the back of the B trailer, walked down the driver's side and got myself under, underneath the B trailer, but in front of the, the first axle, to have a look at that driver's side first axle airbag, to make sure it was unrolling properly and wasn't pinching the rubber. So it didn't pop and I'd have to replace that one as well. That's when I heard and saw the other, the other driver's truck move out and down the merging lane and out back onto the highway, and that's when I noticed that the driver had got out of the cab and he was crouched down at the side of the B trailer, just in front of the A trailer wheels. So the, the B trailer first set of wheels. And I could see that his hand or his arm was on a valve on the side of the chassis rail.

Q.109.Yep?

A. I asked the driver what valve did. He said it's a docking valve and it raises the ..., raises the airbag heights to allow easier access when you are loading and unloading at certain loading docks.

Q.110.Yep.

A. I asked him if he had moved that valve. And he goes ..., he indicated yes he had. And I asked him to put it back to its normal running position. By this time ...

Q.111Why did you ask him to do that?

A. Because I do not like playing with any valves that I do not understand fully what they do.

Q.112Right?

A. And I ..., there's ..., I just never would play with something like that.

Q113.Right?

A.Then I looked around and I realised that the back ..., the back axle airbags were over extended. The middle airbags, middle axle airbags were starting to overextend, and that's when the B trailer first axle driver's side airbag unrolled, bounced the trailer and, and the vehicle started to roll forwards.

In this statement he related the "bounce" of the vehicle to the unrolling of the B trailer first axle (driver's side) airbag unravelling.

45 He told the Police on the same day:

I have asked him to sit back up in the driver's seat of the truck and start the vehicle to build up full air. I have then told him to put his foot on the foot brake on the floor. I did this so if the vehicle was going to roll he could stop it as he would still be in the cab of the truck. When the truck driver has done this I have observed the truck to slowly roll forward and rest up against the wooden chocks. I have then got the truck driver to release his foot slowly before it was fully off the brake pedal.

At this point I have then waited for a minute or two to make sure the vehicle would not roll before proceeding to make my way back to the rear of the B trailer leaving the truck driver inside the cabin of his truck talking to a second truck driver who was standing on the ground at the driver's side door of the truck. I have observed that the brakes were off on the trailer and observed the rear airbag unroll itself before I have proceeded to get out from the rear of the truck and have walked down the driver's side of the B trailer and got myself underneath the front axle to observe the front airbag.

and then after he saw the driver with his hand on the valve:

I have asked the driver if he had touched the valve to which he told me he had. I have then told him to put it back into the normal run position, which he did. By that time I had observed that the rear axle airbags were over extended and I have also observed that the front airbag had unrolled as well causing the trailer to bounce and push forward.

46 In this statement he again linked the trailer bounce and the push forward of the vehicle at the time the front airbag unrolled.

47 Mr Webb therefore never mentioned to either the Police or WorkCover the conversation with Mr Phillips where he asserts he told him to stay in the truck cabin and keep his foot hovering on the brake.

48 Mr Webb proposed his memory had improved with the effluxion of time (after almost three and a half years) with respect of this critical matter.

49 An engineering expert was engaged by Autopool, Mr Webb's employer, (to assist it with its defence of the WorkCover prosecution brought against it). Dr Peter Hart prepared a report on 19 September 2011. It was in that report that it was first proposed the preferable and safest way of the conducting roadside repair to heavy vehicle airbags was to have the driver stay in the cabin with his foot hovering over the service brake at least at all times whilst the mechanic was under the truck. Dr Hart said:

It was unwise for driver Phillips to operate the control. Driver Phillips should have stayed in the cabin and lightly applied the service pedal to prevent any substantive movement of the vehicle whilst mechanic Webb was underneath it.

...

Whilst chocking of wheels is advisable when work is done with the park brakes released, the primary protection against roll-away is for the driver to stay in the cabin with his foot on the service brake pedal.

It is unacceptable practice to leave the engine running with the park brakes released whilst a person is underneath a truck without the service brake control being attended.

50 It was this view that was expressed by Mr Webb in evidence for the first time at the hearing. Further, the system of work which Mr Webb had been instructed to follow, as outlined by Mr Webb, was to perform the task as a one-man job. He revealed, to check the inflation of the airbag he would get into the cabin, turn the engine on and take off both brakes, then get out and check. Despite his employer's instruction, he would otherwise ask a driver.

51 Mr Webb, in cross-examination agreed, when he observed Mr Phillips crouching down at the side of the B-trailer with his hand on the docking lever, he did not say anything to Mr Phillips about the (asserted) instruction to stay in the truck with his foot hovering over the brake. He also did not express concern to Mr Phillips as to his being out of the truck.

52 Further, Mr Webb also stated that he was not really "relying" on Mr Phillips to stay in the cabin (and by this admission contradicted his earlier testimony) as the repair task was, in accordance with his instruction, a "one-man" job. Mr Webb gave evidence when he was checking the airbags at the rear of the vehicle that he noted the brakes (lights) were off. This did not cause him any concern and I infer that this was because it was the way he performed the checking of the airbags, that is, with the vehicle brakes off clearly relying on the chocks.

53 I am not persuaded Mr Webb gave a second direction to Mr Phillips to stay in the cabin with his foot hovering over the brakes after he had turned on the engine and taken the brakes off. The evidence satisfies Mr Phillips was asked to help and he was directed to turn on the engine and slowly take each brake off.

The Truck Movement

54 A second issue raised was the cause or possible cause of the movement of the truck. Evidence and opinion on this issue was given by Mr Webb and by three experts: Dr Peter Hart, Dr Robert Casey and Dr Duncan Gilmore.

55 As to the moving of the docking lever, Mr Webb's evidence was:

Q. Insofar as you believe or you suggest that somehow the movement on that lever back and forward in the way you've described insofar as you suggest that that had something to do with the bounce you really can't explain that, can you?

A. No.

Q. But what you have able to explain to Her Honour is that you're familiar with the idea that when airbags reinflate that it's common or normal for there to be some movement correct?

A. A little bit, yes.

Q. If that's the case whether the bag had been folded or deformed or even if they're working normally in the usual conventional way that on reinflation there's some sort of settling and some movement within the trailer?

A. A little bit, yes.

Q. Insofar as you've said to Her Honour today that you thought there was a connection or seemed to be a connection between him touching the lever and the bounce as you described it, you may well be completely wrong about that but you just simply don't know how the mechanism of that airbag system works, is that right?

A. Yes.

Q. So you just deduced that must have been cause of it?

A. From the height of the rear airbags and the middle airbags starting to overextend I put it down to that's what it was.

56 It is important here to note the evidence as to the use of the term "over-extension". Mr Webb was asked:

Q. When you talk about overextension it is not something going wrong, it is actually part and parcel of what airbags are supposed to do in certain circumstances?

A. Yes.

Q. So her Honour should not get the impression if you say the airbags were over extending that somehow the system was about to blow up or something was going wrong?

A. True.

Q. At this stage in the process that you were undertaking the airbags were reinflating because you had done your job and you were checking for leaks?

A. Yes.

57 Whilst Mr Webb had used the term "bounce", he explained in cross examination that he merely meant the trailer "moved a bit" and that he did not mean to suggest the tyres of the truck lifted up off the ground. Dr Hart was told Mr Webb had used the word "jumping".

58 Mr Webb's evidence was no higher than a suggestion that soon after Mr Phillips had moved the docking lever up and then back, the truck moved and then commenced to roll forward.

59 A review of the work procedures followed by Mr Webb at the time of the incident was conducted at the request of the prosecutor by Dr Robert Casey. Dr Casey is a mechanical engineer with expertise in automotive engineering including, but not limited to, the braking systems on heavy vehicles manufactured in America, such as the Kenworth prime mover involved in the subject incident and, as well, the pneumatics of the braking and suspension systems on Maxi-Trans trailers, such as the A and B trailers that were involved in the incident.

60 Dr Casey confirmed that having regard to the weight of the subject combination vehicle and the slope on which the vehicle was parked, the capacity of the blocks of wood used by Mr Webb to chock the wheels of the subject heavy combination vehicle to prevent the vehicle from rolling away was marginal, at best.

61 Further, Dr Casey has opined there were a number of alternative options available at the time of the incident that would have eliminated or reduced the risk of a roll-away:

the heavy combination vehicle could have been removed to a more appropriate site, such as an area of flat land where the risk of the vehicle rolling away would be reduce or eliminated.

the wheels of the vehicle could haven been chocked using purpose-manufactured wheel chocks, such as the rubber-triangle chocks supplied by the company prior to the incident or those supplied by Cox Engineering.

it was possible to test the operation of the replacement airbag fitted by Mr Webb to the B-trailer of the heavy vehicle without releasing the maxi-brakes on the heavy combination vehicle; and

it was possible to test the operation of the replacement airbag fitted by Mr Webb to the B-trailer of the heavy vehicle with the service brakes of the heavy combination vehicle engaged (that is, with the engine on, depressing the foot pedal in the prime mover so as to engage the service brakes).

62 Further, it was Dr Casey's view following the fitment of the new airbags, it was necessary for the air system to be charged and the maxi-brakes released. It was Dr Casey's view the task should have been performed on level ground with the support of purpose-manufactured chocks.

63 The evidence of Mr Webb was that the truck was hard up to the chocks after he had begun inflating the airbags. It had to move forward over the chocks before it rolled forward. When airbags are reinflated there is always a truck movement either forward or backward as the truck re-adjusted or settled in this new position cushioned by the airbags, according to Mr Webb and Dr Hart. Such movement is both the predictable and normal response when truck airbags are reinflating (as was occurring at the time). Mr Webb gave this evidence and in this regard it was corroborated by the engineering experts.

64 Dr Hart in his evidence explained:

Q. The wheel movement you're talking about is when the vehicle starts?

A. No, when the airbag is inflated upwards, it's not just a matter of lifting the vehicle, there is also a forward or aft movement on that wheel because the suspension is pivoted back here, so as it goes up, it tends to go on an arc and that means that the axle must go forwards and backwards. If the brakes are on, then the wheel will be dragged on the tarmac. If the brakes are off, the wheel would just rotate, so there's less jolt involved when the brakes are off.

65 Dr Duncan Gilmore provided an expert opinion to Mr Morfea, the Director of Intercoast, as to the effect of inflating the airbags. Dr Gilmore is a Mechanical Engineer with a special interest in engineering design. He opined:

93When inflating the airbag and all brakes were released, in my opinion either the trailer wheels must move forward, or the prime mover wheels must move backward. Whichever has the least resistance will occur, or a combination of both. The scenario is statically indeterminate (that is, the direction the vehicle will move cannot be predicted) as there (are) a number of contributing factors including:

Unknown turning resistance and brake drag of each wheel set

Unknown road surface quality (e.g. trailer wheels could have been in a pot-hole)

Heavier axle load on the trailer, compared to effective resistance of the prime mover wheel chocks.

94Further, expansion of an inflating airbag on a pivot arm can possibly cause fore-aft movement in either direction, depending on the start and end position of the pivot arm, such that the direction of motion is indeterminate, ...

66 Mr Webb was a young man. He revealed he had been taught that the airbag repair task was to be undertaken with all the brakes off. This was clearly incorrect as the expert evidence revealed the trailer brake (installed on the steering wheel console in the prime mover) could have been left on without causing any inhibition to the airbags refilling. Applying the separate trailer brake alone would have ensured the heavy vehicle was immobilised.

67 That raises the question, inferred by Mr Webb, that Mr Phillips' act in moving the docking lever was the precipitating event causing the truck to move over the chocks.

68 Dr Casey's evidence was, given the time line:

Q. ... and the airbags are still in the process of filling but are not yet filled

A. Yes.

Q. if you were to activate the dock levelling lever and move it to raise, would that have a discernible effect on what's happening to those airbags?

A. It would be essentially the same, similar.

Q. And if I then move it back to that docking lever back to normal or travel

A. Yes.

Q. a short time thereafter

A. Yes.

Q. what would be the effect upon the suspension airbags?

A. It would drop back down to its normal ride height.

Q. If I move those levers whilst the airbags are still filling, so they haven't yet got to the normal ride height?

A. I see, yes.

Q. What about the effect?

A. The bags would continue filling.

69 Dr Hart opined on 9 September 2011 in his report:

The initiating event that caused the truck to overcome the wooden wheel chocks was the operation of a dock-levelling control. This caused a jolt because of a well-known propensity for air suspension airbags to pull the axles forward as the airbags are inflated or movement backwards when the air pressure in the airbags are suddenly released.

70 The defendant corporation submits the weight of the evidence is Mr Phillips' act in moving the docking lever did not have any effect on a fully laden vehicle given the short movement of the lever from "raised" to "travel". The purpose of the lever was to raise the truck for docking access. It had the effect of raising the airbags beyond the normal ride height. All the expert evidence, I accept, was the "raise lower" process was a very slow process given the weight of the truck. It was the evidence of Dr Casey and Dr Gilmour that the normal inflation of the suspension airbags caused a force to be exerted on the wheels of the B Trailer and that was the force that caused the trailer to move over the chocks. I accept the evidence of Dr Casey and Dr Gilmore, which evidence reflects Dr Hart's view on this issue. Whether Mr Phillips' act added some force or movement, the job Mr Webb was performing just prior to the truck moving, that is, the re-inflation of the airbags, Mr Webb acknowledged was expected to cause some truck movement. The prosecutor places no reliance upon the act of Mr Phillips in touching the docking valve.

71 From the evidence, I am persuaded, given that the docking valve works in conjunction with the airbags in raising the level of the truck (for a loading dock), it would be commonsense for the driver to check its workings. Mr Crawshaw, the prosecutor, given the evidence of the experts, did not press that the acts of Mr Phillips in raising and quickly lowering the docking lever contributed to the movement of the vehicle.

72 Further, the evidence is the chocks were of such an unsatisfactory dimension that they could not hold back the vehicle. Dr Casey considered the effect of the thinner chock being placed in front of the drivers drive wheel:

Q. It is your opinion, is it not, that that is the least advantageous way to have those two pieces of wood?

A. Yes, it is.

Q. And that is because, is it not, that being of different heights, they will work independent of each other?

A. That's one reason but there's also another.

Q. Which is?

A. It's most advantageous to put the highest chock against the heaviest wheels and the steer tyre, which is the large chock, was against, is lighter than the drive tyre, so therefore it would have been more advantageous, offered more resistance if the taller chock was against the drive tyre and the smaller chock was against the steer tyre.

Q. If you take particularly that smaller chock placed in front of the drive wheels and you saw the vehicle move and come to rest, move a short distance but come to rest up against that chock with some flexing or deformation of the tyre as it comes to rest against it, would that cause you concern as to the adequacy?

A. Yes.

Q. You have the opinion, do you not, that the vehicle came to rest against those two pieces of wood in a maxi stasis, I think is the term you used?

A. Metastable.

Q. Metastable position. Now that means, does it not, that that is finely balanced?

A. Yes.

Q. And that fine balance could be upset by very little?

A. That's correct.

Q. Now where you have that, particularly looking at the smaller piece of wood acting as a chock and we have got the tyres butted up against it, either flexing or starting to deform, what is the process that you believe would then continue on from that with regard to the movement of the vehicle?

A. The tyres would continue to deform around especially the leading edges of each of the trucks, the square leading edges. The gravity would continue to act on the vehicle pulling it down the hill, the forces pulling it down the hill would eventually overcome the resistance of the chocks and cause it to continue rolling over the chocks. Importantly, the wheels sitting up against each of the chocks will reach the highest point of the chocks at different times and by the time the tyre sitting on the lowest chock is at the top of the low starting to go down the lowest chock, that chock is actually now would now cause that particular tyre to move down the hill even faster while the tyre up against the larger chock is still climbing up that particular chock. From that point onwards the two chocks would be working against each other, eventually that wheel would continue rolling over the other chock to the other side and at that point the truck would roll away.

73 I accept Dr Casey's analysis. Even if Mr Phillips' action with the docking lever caused any movement, the chocks were inadequate and given the placement of the chocks, the inclination of the site and the evidence the airbags were still inflating, that inflating process caused a further movement of the truck which rolled over the chocks. It is important to note the use of the word "over-extending" does not imply the process was untoward. As Mr Webb noted, it was a normal occurrence in the process. As Mr Webb explained it to WorkCover:

The middle airbags, middle axle airbags were starting to over-extend and that's when the B trailer first axle driver's side airbag unrolled, bounced the trailer and, and (sic) the vehicle started to roll forward.

and to the Police:

By that time I had observed the rear axle airbags were over-extended and ... the front airbag had unrolled as well causing the trailer to bounce and push forward.

74 Given this evidence, the prosecutor conceded there was not sufficient evidence to establish the fast raising and lowering of the docking lever caused any movement of the fully laden vehicle thereby contributing to the risk. On the evidence, I am satisfied the unfurling of the first axle driver's side airbag caused the second bounce and, on the expert evidence, given the B Double was already hard against the chocks and given the placement of the chocks, the bounce caused the vehicle to go over the chocks and to roll forward.

Risk

75 In these matters the risk alleged to have arisen with regard to both the s 8(1) and the s 8(2) prosecutions are in almost identical terms as follows:

As a consequence of the acts and omissions of the company, as particularised below, on 14 November 2008 Gregory Phillips (or Mr Webb with regard to the s.8(2)) was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-Double" consisting of a Kenworth Prime Mover bearing registration number VV-29-GZ; and E-trailer bearing registration number 215-QHY; and a B-trailer bearing registration number VT-85IP whilst repairs were being performed on that vehicle at the RTA Inspection Facility.

The defendants contend the risk arose (and could only have arisen) once Mr Webb, the repair man on site, directed Mr Phillips, the truck driver, to release all the brakes (that is, at or after 12.30 pm approx).

76 Mr Webb, in evidence, implied that had Mr Phillips stayed in the cabin as "instructed by him" then the truck would not have rolled away and Mr Phillips would not have been in a position to be hit by the moving vehicle. Furthermore, Mr Webb contended Mr Phillips, by moving the docking lever, had caused the chain of events that resulted in the truck rolling away.

77 The prosecutor alleges that the risk arose because the corporate defendant failed to put in place proper policies to manage illicit drug usage by its long haul drivers; failed to provide a system of work with respect to the management of fatigue associated with performance of long haul truck driving duties; failed to provide information and instruction regarding fatigue management to its employees undertaking long haul driving duties; failed to provide a safe system of work in relation to the performance of a road side service repair of the company's long haul heavy duty combination vehicle, and failed to provide such supervision to its employees to ensure that the defendants' employees and/or persons other than the defendants' employees were not exposed to the risk to their health and safety.

78 It is contended by the prosecution there are "layers" to a safe system of work. The prosecution contends the system of work of the defendant corporation for repair work was unsafe. It is submitted the corporate defendant failed to specifically instruct its drivers not to take part in the repair and to not be near the vehicle while repairs were being performed. If a driver was near a vehicle on 17 November 2008 the prosecutor submitted that there was a risk of being struck by the moving vehicle (and the risk became a reality).

79 The second layer of safety was identified by the prosecutor in the following manner:

[T]here was another layer of safety that applied and that was that if he was going to be involved in those operations, he should have been involved in a situation where he was not affected by drugs and/or fatigue.

80 The appropriate measures which should have been taken are pleaded by the prosecution under each alleged particular.

81 The allegations as contained in the particulars of the s 8(1) charge against each defendant, which acts or omissions it is alleged exposed their employee, Mr Phillips, to a risk to his safety, are repeated in the s 8(2) charge and it is alleged those same alleged failures (approximately) exposed Mr Webb, the repair mechanic, to take risks to his health and safety.

82 Both charges are similarly brought against Anthony Francis Morfea who was at all material times the sole director, managing director and the company secretary of the corporate defendant, Intercoast.

Legal Elements of Charges

83 The essential legal elements necessary to be proved by the prosecution beyond reasonable doubt with regard to s 8(1) of the Act are set out by the Full Court in Inspector Hamilton v John Holland Pty Limited [2010] NSWIRComm 72 at [103]:

1.The defendant was an employer at the time of the alleged breach ...

2. There was a risk to the health, safety or welfare of the defendant's employees ...

3. There was a causal nexus between the defendant's alleged breach and the risk to employees' health, safety or welfare ...

4. The risk was to employees at work ...

84 Further, at [104] the Full Court identified the legal elements of a charge pursuant to s 8(2) of the Act as follows:

1.The defendant was an employer ...

2.There were persons not employees of the defendant exposed to a risk to their health and safety ...

3. The risk arose from the conduct of the undertaking of the defendant. ...

4. The exposure to risk was at the defendant's place of work ...

85 Under s 8(1), the prosecutor, through witnesses such as Mr O'Brien, the Intercoast deputy manager at Tingalpa in Brisbane, has established the defendant corporation was the employer of Mr Phillips. Further evidence establishes that, given the circumstances, there was a risk to Mr Phillips' safety. The defendants submit under the charge brought under s 8(1), the essential consideration must be: is there a causal nexus between the alleged breaches and the identified risk?

86 Under s 8(2) it was established the corporate defendant was an employer and it was established Mr Webb, the repair mechanic on site, was exposed to the risk of the moving vehicle when he was underneath the vehicle during the repair. The question arises whether the exposure to the identified risk was at the defendant's place of work in the conduct of the defendant's undertaking.

87 In Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87; (2004) 135 IR 377, Walton J, Vice-President, dealt comprehensively with how a vehicle of a transport company is a place of work of an employer when it is on route and away from the employer's depot. His Honour said at [316] and following:

[316] ... The defendant accepted that the relevant work being performed at the time of the accident arose from the conduct of the Company's undertaking for the purposes of s16 of the Act, a concession which was plainly correct. Further, the performance of almost all of its work took place in or around the lorries, wherever they may be: from transporting goods from A to B and loading or unloading goods to the logistical aspects (drivers were directed to their next job remotely, while they were far from the depot, in their lorries). In a very real sense the Company depended upon work being carried out in the lorries: drivers would work for days at a time without visiting the depot and almost all of their work was performed elsewhere, in their lorries. Of course, it is the performance of work which may give rise to risks to members of the public (particularly where the performance of work involves driving on public highways in what may amount to a dangerous manner) and it is precisely those risks the Act seeks to counter.

...

[318] To find in this case that the lorry was not the Company's place of work would be to defeat the purposes of the Act in relation to members of the road haulage industry which operated their business in a manner similar to the Company despite the obvious risks to members of the public which arise from the undertakings of haulage companies at 'places of work' entirely dedicated to their undertakings

88 In adopting this reasoning the Court is satisfied that the RTA site and the vehicle was the place of work at the relevant time for the undertaking of Intercoast given the evidence of the connection of the repair to the Intercoast truck and the activity of Mr Phillips.

89 The prosecution relied upon Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 (1 August 1962) to press that Mr Phillips, after 10am, was at his place of work, even if it is held he was not at work. However, the defendant did not otherwise argue. I am satisfied, given Mr Phillips' activity on site, that the risk arose while Mr Phillips was at work on 14 November 2008.

90 The issues of contention that arose from the evidence need to be considered before the consideration of the particulars of the charge under s 8(1), namely, the failure of the corporate defendant to provide a safe system of work for roadside repair of its vehicle on 14 November 2008, for its employee Mr Phillips.

91 The first issue arises from Mr Webb's evidence where he recited, for the first time, a conversation he had with Mr Phillips after Mr Phillips had assisted him by climbing into the cabin and in turning the engine on and the brakes off. The defendants challenge the truth of that communication.

92 Secondly, the defendants contend it was Mr Phillips' act in leaving the cabin of the B double with the engine on and the brakes off that was the causal link to the risk: that is, it was this act which caused the vehicle to move. The prosecutor, rather, presses that these acts of Mr Phillips demonstrate the employer's failure to ensure Mr Phillips' safety.

Applicable Principles

93 The defendants contend that the evidence does not establish any act or omission on their part that contributed to the risk, faced by Mr Webb and Mr Phillips, when the Intercoast truck commenced to roll whilst being repaired at the RTA Station at Twelve Mile Creek.

94 It is necessary to consider the relevant principles. Mr Kimber, for the defendants, contends there is no causal connection by the acts or omissions of Intercoast that led to, or contributed to, the risk during the repair of the vehicle. The defendants submit the prosecution has failed to establish that:

There was a causal nexus between the defendants' alleged breach and the (pleaded) risk to employees' health, safety or welfare.

95 In support of the above submission, reliance is placed by the defendants on the views in Royall v R [1991] HCA 27; (1991) 172 CLR 378 (25 June 1991), where each of their Honours (with the exception of McHugh J) in separate judgments gave effect to and approved the statement of Burt CJ in Campbell v The Queen (1981) WAR 286 (at 290):

It is enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.

96 McHugh J stated the position somewhat differently but to the same general effect where his Honour held (at 440):

If his conduct in breaking open the door or attacking her in the bathroom induced the deceased to jump out the window so as to avoid further attack, it might be thought that 'but for' the attack the deceased would not have lost her life that the applicant therefore, had caused her death. But this Court has recently rejected the proposition that in the law of negligence the test of causation at common law is the 'but for' test; March v Stramare (E&MH) Pty Limited (1991) 171 CLR 506. In criminal cases the common law has also refused to apply the 'but for' test as the sole test of causation. Nevertheless, the 'but for' test is a useful tool in criminal law for determining whether a causal link existed between the accused act or omission and the relevant injury or damage. But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, i.e. legal responsibility, to that person.

97 The defendants, Intercoast and its sole Director, press that the causal act for the movement of the vehicle was the inadequate chocks provided by Mr Webb and therefore the breach was the sole responsibility of his employer, Autopool. The prosecution argues the Act has a wider philosophy than "fault". It puts an obligation on employers to, by their acts, care for the safety of their employees.

98 Further, under the Act, it has been held a mere exposure to risk can constitute a breach of the Act. Therefore, the mere exposure of persons to risks to their health and safety can give rise to a breach of the employer's duty of care for an employee's safety. In WorkCover Authority of NSW v CI & D Manufacturing Pty Ltd [1994] NSWIRComm 230; (1995) 60 IR 149, the Full Bench of the then Industrial Court of NSW said, in relation to the predecessors of ss 8(1) and 8(2), (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 ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident.

Therefore, "risk" has been held to encompass a situation of "potential danger to safety".

99 The "potential for danger" concept was developed by Chief Justice Spigelman (with whom Hulme and Howie JJ agreed) in Thorneloe v Filipowski [2001] NSWCCA 213 (revised); (2001) 52 NSWLR 60 said (at [143]-[144]):

[143] By reason of the extended application of the statutory prohibition to various kinds of 'risks', the potential for harm becomes a material consideration and has been so regarded in the case law: see e.g. WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 429-431; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at 32-33.

[144] Furthermore, s15 is not a result offence. Its focus is on a state or condition rather than a result or consequences. The potentiality for harm arises by reason of the existence of the state or condition.

100 The Court of Appeal in Theiss Pty Limited v Industrial Court of NSW [2010] NSWCA 252 through Spigelman CJ (with whom Beazley and Basten JA agreed) at [63] - [70] adopted the reasoning of Steyn LJ in R v Board of Trustees of the Science Museum [1993] IWLR 1171 where Steyn LJ concluded that the word "risk" connotates "the possibility of danger".

It is, therefore, the "possibility of danger" or the "potential for harm" which becomes the main consideration.

101 Further, as the prosecution contends, there can be both primary and secondary measures to meet known dangers. In WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited [No 2] [2000] NSWIRComm 99; (2000) 100 IR 23 Walton J said (at [40]):

The failure of the defendant to take the steps discussed above reveals a failure on the part of the defendant to implement what would have been desirable layers of safety to protect its employees: see WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 429. Even if the written policies and procedures of the defendant had been sufficiently clear and comprehensive, a prudent employer in its position would also have implemented secondary measures to ensure that its employees were not exposed to avoidable danger. Where measures exist which would ensure that even employees who do not comply with established work procedures are protected from a known danger or the extent of any danger is minimised, the obligations imposed by the Act make clear that such measures should be adopted. Here, regardless of the policies in place, Mr Burcher would have been in no danger when removing the valve had the mesh or proximity switches been installed in the outlets at the bottom of the mixer.

102 Similarly, in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 74; (2003) 125 IR 361, after referring to the judgment of Hungerford J in Police Service (No 2), Walton J said at [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? Although it was only pleaded by the prosecution in the charge relating to counselling, the assault by JB on 8 March 1999 was frequently used by the defendant in support of this argument. However, the fact that the assault by JB on 8 March may not have been preventable, or may not have been caused by a failure on the part of the defendant, is no answer to the charge that other assaults, by other students, could have been prevented and were caused by failures on the part of the defendant.

103 For the prosecutor to succeed it is therefore unnecessary to prove that the failure of Intercoast, as pleaded, would have eliminated the risk as opposed to only minimising or reducing the risk of potential danger or the potential for harm. A respondent employer has an obligation to ensure, through primary and secondary measures (see Walton J above), or, as the prosecutor referred to it as, an obligation to ensure "layers of safety" in meeting its obligations under the Act. The system of work must be comprehensive.

Particulars 2 and 3 - Pre-Event Failures of Defendant

104 It is contended the defendant failed to follow its own "Pre-employment screening of employees" and failed to take measures that would have resulted in the driver not being at the place of where the risk is pleaded.

105 The prosecutor presses that if Intercoast had taken the pre-employment measures set out in the charge, it would not have employed Mr Phillips because of his previous history. Such matters were fully declared by Mr Phillips to Intercoast in his employment application documents, eg. a DUI conviction. If Mr Phillips had not been employed, the prosecutor submitted, he would not have been in a position to be put at risk at the RTA Inspection Facility on 14 November 2008.

106 Further, it was contended, if Intercoast had taken the system of work measures, supervision measures and/or the training, information and instruction measures in relation to fatigue, Mr Phillips would not even have been at Twelve Mile Creek with his vehicle at the time of the alleged offence. If Mr O'Brien had checked Mr Phillips' log book or the GPS system, both of which were readily available, rather than rely on what Mr Phillips told him, he would never have rostered Mr Phillips for the trip to Coffs Harbour on 13 November 2008. Further, if the measures had been taken, the nightshift would have known that Mr Phillips was not to drive beyond Coffs Harbour without a 7 hour break and, once the non-compliance had been identified, the employer should have issued a direction to Mr Phillips to take the necessary break.

107 Therefore, it was contended, if Mr Phillips had not embarked on the trip, or if he had been stopped at Coffs Harbour, he would not have been in a position to be put at risk at the RTA Inspection Facility on 14 November 2008.

108 I dismiss these particulars. Even if there were such failures established, such omissions did not contribute to the identified risk, that is, the movement of the vehicle on 14 November 2008, during the repair work. It is necessary for a breach of the Act for there to be an employee exposed to an identified risk. On the pleaded charges, Mr Phillips was an employee of the corporate defendant and was at work at the RTA site where he was exposed to the risk. The question before the Court is whether, in that exposure, there was a failure by the defendant to ensure his safety.

109 The particulars are dismissed.

The Particulars 3, 4, 5, 9, 10 - Failure to Implement Drug/Fatigue Management Policies

110 These particulars relate to the failure of the defendant corporation to have in place a proper policy for the management of drug use (Particular 3), fatigue management (Particular 4), failed to implement the policy it did have in place (Particular 5), failed to properly inform and instruct its employees regarding fatigue management (Particular 9) and failed to properly train and inform its employees re fatigue management (Particular 10).

Drugs/Fatigue

111 It is contended by the prosecution the corporate defendant failed to provide a system of work with respect to the management of drug usage and the management of fatigue in relation to the driving, operation and management of its long haul vehicles by its employees to drive, operate and manage those vehicles that was safe and without risk to health. This is the second layer of safety referred to by the prosecutor. The prosecutor presses appropriate measures were not taken by the defendants and that failure created the identified risk.

112 The question then is whether fatigue and/or drugs "might have created the danger" of Mr Phillips being struck or, as the prosecutor posed the question, whether the results of drug/fatigue in Mr Phillips created the danger. The only way it was conceded by the prosecutor the risk manifested itself in the particular circumstance was the driver getting out of the cabin with the engine on and the brakes off. Mr Crawshaw, for the prosecution, opined saying:

[I]t is the potential danger from actions caused by Mr Phillips' fatigue and/or drug use that are also relevant or really what is relevant is the potential danger rather than the actual incident and Drs Perl and Desai will also opine that levels of sleep deprivation and methylamphetamine levels described were reported as giving rise to an additive effect on psychomotor performance at the time of the incident and those impairments would have included decreased alertness and diligence, increased reaction times and decreased motor coordination or increased clumsiness, decreased ability to concentrate and impaired perception, judgment and decision making.

113 The particulars and measures related to fatigue and/or drugs are relevant in so far as it is alleged the presence of fatigue and/or drugs created a risk of Mr Phillips, while being involved in the repair operation, acting in a way that would lead to the vehicle moving whilst the repairs were taking place. Risky acts or omissions that might arise from the effects of fatigue or drugs could be either acts or omissions by Mr Phillips carrying out tasks associated with roadside servicing and/or repair, or acts of interference with the vehicle while roadside servicing and/or repair was being carried out.

114 The prosecutor conceded in terms of the incident, the only behaviour established beyond reasonable doubt "in terms of the actual incident" was Mr Phillips getting out of the cabin with the engine running and leaving the brakes on in the knowledge there were chocks in place and he contends this act was indicative of fatigue as it was behaviour one would not normally expect of a truck driver.

The prosecutor submitted:

We put it in terms of the employer's responsibility, ... that once he took part in the repair, because they hadn't taken measures in relation to drugs or fatigue, that affected the repair operation because of his involvement, the way he acted or the way he could have acted, to use the terms of testing "potential danger".

In particular, the prosecution pressed, the failure of the proper implementation of the Intercoast Drugs and Fatigue policy allowed Mr Phillips to be so affected as to elect and to be involved in the roadside servicing and/or repair tasks which were not his work. It is alleged the defendants had systems of work regarding fatigue management but failed to properly inform, instruct and train its employees regarding fatigue management.

115 The prosecution, in support of those contentions, relied upon the autopsy report and expert evidence from Dr Desai and Dr Perl.

116 At the autopsy Mr Phillips was found to have both traces of cannabinoids and methylamphetamine in his blood stream. An analysis of femoral blood samples at the autopsy revealed the presence of delta-9-tetrahydrocannabinol less than 0.005mg/L, delta-9-THC acid 0.012mg/L and methylamphetamine 0.2mg/L.

117 Dr Judith Perl, a Consultant Pharmacologist, opined the traces of cannabinoids found in the blood samples were at levels which were unlikely to have played any role in the alleged offence. However, it was her view the level of methylamphetamine was significant. The reading of 0.2mg/L was, she revealed, four times the upper level of the therapeutic range (0.05mg/L) and within the reported toxic range for methylamphetamine.

118 There was a significant debate in the hearing as to the effect of the intoxication of the drug. In its acute phase, the evidence established, it gives persons a "high" whereas in its "withdrawal" phase it is associated with a depressive reaction.

119 Dr Perl opined on 14 September 2010:

... the substance used by the Deceased prior to the incident on the 14/11/2008, resulting in the presence of the methylamphetamine in his blood, did more probably than not impair his capacity to operate heavy machinery, such as a prime-mover and two trailers, on its own:

(a)I am unable to indicate whether it did more probably than not impair his ability to drive or operate a heavy vehicle at the time he commenced work about 6 pm EST on the 12/11/2008 or the 13/11/2008 but it is more probably than not that there was impairment of his capacity to operate heavy machinery at 3.45 am on the 14/11/2008 (assuming he did not use the drug between 3.45 am and 12.28 pm on the 14/11/2008.

(b)I am of the opinion it is more probably than not that the methylamphetamine alone impaired his capacity to operate heavy machinery, such as a prime-mover and two trailers, between 3.45 am and 12.28 pm.

14:(11) - It is more probably than not that there would have been impairment of the Deceased's capacity to operate heavy machinery, such as a prime-mover and trailers, between 3.45 am and 12.28 pm on the 14th November 2008 and at 12.28 pm on the 14/11/2008 due to methylamphetamine (see 14:10) but I cannot indicate either way if impairment was more likely than not at 6 pm on the 12/11/2008.

...

120 Dr Perl's first report therefore was directed towards answering questions, as requested by WorkCover, as to the effect of the established methamphetamine consumption on Mr Phillips' ability to operate a heavy vehicle. However, the question is rather was there an "impairment" such that his employer breached its obligations to ensure its driver employee's health and safety and that failure contributed to the identified risk.

121 Dr Perl's opinion was that the research and learning on the impact of methamphetamine on the psychomotor skills and the vigilance of truck drivers (and other heavy vehicle operators) whilst driving such vehicles or operating such machinery, could be readily translated to circumstances wherein the methamphetamine user was not driving a vehicle. Dr Perl assumed, incorrectly, that Mr Phillips had responsibility for ensuring the vehicle was immobilised and this wrong assumption, I accept, influenced her consideration as to the likely contribution of Mr Phillips' drug related "impairment" to the events that resulted in his death.

122 As indicative of the "impairment" she expected in Mr Phillips, given the level of methamphetamine, Dr Perl referred to Mr Phillips attempt to run and try to jump into the moving truck; that Mr Webb was underneath, rather than behind the truck when it started to roll. She opined that Mr Phillips behaviour in trying to "jump into" a moving truck was risk taking behaviour suggestive of the effect of drug related "impairment". Dr Perl suggested "a normal, prudent person would not expect to jump into a moving truck" hence this was an indication of risk taking or decreased perceptions and judgement suggestive of some form of impairment in his thinking processes and she expressed the belief such behaviour was indicative of poor judgement.

123 The premise on which Dr Perl based her opinions were not the established facts on the evidence.

124 The doctor when further instructed by solicitors as to the facts opined on 25 January 2012:

[T]he effects of methylamphetamine in either the acute stimulation phase or in a state of drug-induced depressive phase due to withdrawal, perceptions and judgement would most likely have been impaired at the blood concentration found in Mr Phillips. Furthermore assuming he was in the withdrawal state of reactive depression his consequent actions after the vehicle moved would have been impaired as a result of the effects of the drug.

125 It was also asserted by the prosecutor that the defendant corporation failed as to its management of fatigue in its long haul drivers and failed to properly inform, instruct and train its employees in the management of fatigue. Those failures re drug use and/or fatigue led to an unsafe system of work on 14 November 2008 and exposed Mr Phillips to the risk of being struck by the B-Double while it was under repair.

126 The question as to whether Mr Phillips was fatigued was an issue. The contemporaneous records of Mr Phillips' driving hours were revealed through his log book entries and the truck movement "activity" statements. The evidence establishes when Mr Phillips was stopped by the RTA officers at 3.45 am on 14 November 2008, he was beyond his permissible driving hours and hence in breach of the Road Transport (General) Regulations 2005 (in particular Regulation 64). This was conceded by the defendants. The RTA officials ordered him to take a seven hour break.

127 However, the defendant relies upon the fact that the RTA looked at the prior 24 hours which reveals, at the time of his death at 12.48 pm, Mr Phillips had had 14 hours and 40 minutes rest time in the immediate preceding 24 hours (that is, he had only driven nine hours and 20 minutes in the 24 hour period).

128 Under cl 57 of the Road Transport (General) Regulation 2005 (NSW), a driver is "driving" if he is in the driver's seat of his vehicle with the engine on and under cl 58 of the regulation "rest" time is defined as "not work time".

129 It appears from the various log books and GPS monitoring in the 24 hour period commencing 6pm on 12 November, therefore, to 6pm on 13 November, Mr Phillips' longest continuous break was 4.75 hours. Between 6pm on 13 November to 3.45 am on 14 November (at the RTA site) Mr Phillips longest break was 1 hour.

130 The evidence was Mr Phillips ceased driving at 3.45am. He went to the rest room for hot water then went into the vehicle cabin. Mr Webb from Autopool arrived at 10 am. The repair task, given both of them went to Hexham to get the correct airbags, did not start until approximately 12 noon.

131 Dr Anup Desai, a Sleep and Respiratory Specialist, was called by the prosecution. In his written report, he has expressed the following view:

[I]n summary, the medical literature suggests that sleep deprivation at the level that Mr Phillips would have experienced at the time of the subject incident affects alertness, mood, motor performance (including reaction time), cognitive performance, and risk taking behaviour. Impairment is comparable to that seen with alcohol intoxication above a level of blood alcohol concentration of 0.05% (paragraph 21). Such fatigue effects would impair capacity of a driver to drive, operate, and manage a heavy combination vehicle.

Dr Desai was also cross-examined.

Q. Doctor, you know the regulations bearing on the right to drive a truck in this State?

A. I do.

Q. After 7 hours rest you're allowed to drive a truck again, are you not?

A. I don't know the exact regulations but

Q. You do not know the regulations bearing upon rest periods?

A. I don't know the exact figure that you're quoting right now.

Q. If I suggest to you that if you have driven 12 hours in any 24hour period you then have to have a continuous break of 7 hours rest before you drive again; does that accord with what you understand to be the case?

A. Yes.

Q. If you had stayed up, hadn't slept a wink between 4am and 11am, at 11am the regulations in this State would have allowed him to get back into the truck if it hadn't been grounded and driven on to Sydney, do you understand that?

A. I understand that.

Q. The regulations in this State suggest that a rest period of 7 hours, even if not sleeping, is enough to overcome the effects of fatigue; do you accept that?

A. I accept that's what the regulations are, I don't accept that it's enough to overcome the effects of fatigue.

Q. I take it that's got to be a relativities statement in this sense, that he would have to have been better off having rested or slept for 6 hours than if he had not done so?

A. Yes.

Q. You just say it would have been better if he had slept for 10 hours, is that right?

A. His sleep deprivation was at least 10 hours probably, 10 to 12.

132 From the evidence Mr Phillips was at rest for at least for some if not all of the time, between 4 am and 10 am on 14 November 2008, noting that Inspector Waddingham and Inspector Smith indicated that they did not see Mr Phillips at all between 4 am and their finishing time at 8 am and that they had deduced that he was asleep in his truck. Mr Webb "knocked on the door" of the truck to get Mr Phillips' attention. Mr Webb said in evidence:

Q. You knocked on the door even though he could see you, if he was awake, that was my point?

A. (Witness nods)

Q. ... that you you believe that he was awake or you don't know whether he was awake or asleep?

A. I don't know whether he was awake or not.

Q. You knocked on the door?

A. I knocked on the door.

Q. And that got his attention?

A. Yes.

133 As to fatigue Dr Desai opined the time taken by Mr Phillips in the period between the commencement of driving duties at about 6 pm on 12 November 2008 and the time of the alleged offence, about 12.48 pm, on 14 November 2008 was insufficient to achieve a proper level of fatigue management for a person who was involved in the driving and management of a heavy combination vehicle. Dr Desai further opined that Mr Phillips was sleep deprived and this would have caused fatigue, which in turn was likely to have played a causative role in the events leading up to Mr Phillips' death.

134 Whilst he was not asked to assume that Mr Phillips had either sole or joint "responsibility" for ensuring that the vehicle was immobilised to avoid rolling and initially resisted that he had assumed that this was part of Mr Phillips' "responsibility", Dr Desai ultimately conceded that he had assumed that it was the "joint responsibility" of Phillips and Webb to ensure that the vehicle was immobilised to avoid rolling. On the basis of that erroneous assumption, he then concluded that because the heavy vehicle ultimately rolled, therefore, Mr Phillips had demonstrated a "lack of vigilance" and that such a lack of vigilance arose out of the additive effects of fatigue and methamphetamine.

135 Having considered the effect of fatigue (Dr Desai) and the effect of the level of an amphetamine (Dr Perl), the doctors then gave a joint opinion as to causation. That opinion was based upon some facts assumed (some of which facts were incorrect). However, the doctors were asked in the following context:

8.Question 4 - Having regard to the facts that you have been asked to assume regarding both:

the combination of driving and related duties and breaks from those duties taken in the period between about 6.09 pm on the 12 November 2008 and about the time of the subject incident (ie. between about 12.31 pm and 12.48 pm on the 14 November 2008); and

the subject incident;

are the facts you have been asked to assume consistent with a combination of fatigue and amphetamine, including methamphetamine playing a causative role in the events leading up to Mr Phillips' death?

and stated:

As indicated above, the effects of methylamphetamine would have resulted in impairment of psychomotor performance at the time of the alleged incident. This impairment would have included decreased alertness and vigilance, increased reaction times, decreased motor coordination or increased clumsiness, decreased ability to concentrate and impaired perception, judgement and decision-making processes. Similar impairment would have occurred due to fatigue alone. The additive effects of amphetamine and fatigue would therefore have contributed to Mr Phillips lack of vigilance in ensuring the vehicle was immobilized to avoid rolling and having failed to secure the vehicle, his ability to react and coordinate his skills.

136 Dr Perl and Dr Desai therefore in the joint report combining their opinions further opined that the effects of methylamphetamine "would" have resulted in impairment of psychomotor performance at the time of the alleged incident and that this impairment "would" have included decreased alertness and vigilance, increased reaction times, decreased motor co-ordination or increased clumsiness, decreased ability to concentrate and impaired perception, judgement and decision-making.

137 Dr Desai opined similar impairment "would" have occurred due to fatigue. Dr Perl and Dr. Desai jointly opined, therefore, that the additive effects of amphetamine and fatigue "would" therefore have contributed to Mr Phillips' lack of vigilance in ensuring the vehicle was immobilised to avoid rolling and, having failed to secure the vehicle, his ability to react and co-ordinate his skills.

138 In cross-examination, however, the doctors both made significant concessions. The word "would" was amended by Dr Desai to "could", and by Dr Perl to "would most likely".

139 The prosecution relied upon evidence from Dr Desai and Dr Perl that Mr Phillips was affected by fatigue and amphetamines such that his reactions were affected and contributed to the risk.

140 Dr Perl agreed assessments of the demeanour and behaviour of Mr Phillips by those persons that saw and spoke to him in the last 12-24 hours of his life were matters of relevance to her professional assessment of the likely contribution of the methamphetamine use to the events that led to the death of Mr Phillips.

141 Mr Phillips gave an interview with Inspector Waddingham of the RTA at 3.45 am. Neither Inspector Waddingham nor Mr Webb gave evidence of any lack of vigilance or any challenge to Mr Phillips' co-ordination. There is no evidence of any outward signs of fatigue in Mr Phillips. Importantly, once the truck moved and went over the chock, Mr Phillips' reaction in rushing straight to the cabin (common sense infers to reach for the brakes) was an instantaneous and proper reaction. He demonstrated no error of judgement in a crisis environment. Rather he was quick-witted. Further, he succeeded in putting on the truck's brake and, at a cost to his own life, it may be inferred he stopped a driverless B double vehicle from careering out of the RTA site onto the Pacific Highway.

142 The prosecutor presses that the particulars and measures related to fatigue and/or drugs are relevant in so far as the presence of fatigue and/or drugs created a risk of Mr Phillips, while being involved in the repair operation, acting in a way that would lead to the vehicle moving whilst the repairs were taking place. The prosecutor referred to the evidence of Associate Professor Graham Starmer, Pharmacologist, who considered that it would be difficult to suggest a direct causal link between the level of methylamphetamine found in Mr Phillips' blood and his actions in the time immediately prior to his death. However, the prosecutor submits, Dr Starmer's evidence only went to the effects of drugs and he did not opine on the connection as to the effect Mr Phillips' drug level and fatigue.

143 In considering the proposition of the prosecutor that the Court would find from the above evidence Mr Phillips acted in a way consistent with being affected by methylamphetamine and/or fatigue, the evidence of Dr Perl and Dr Desai must be weighted in light of the established facts. There was no evidence Mr Phillips showed any signs of impairment or fatigue. This fact, however, could not lead alone to a conclusion. Whilst the evidence satisfies Mr Phillips had not had sufficient breaks at the time he was pulled over by the RTA, this was a statement of fact up until the RTA grounded him. The RTA required he have a seven hour rest break. He had gone to the cabin of his truck at 3.45 am. Mr Webb did not arrive until 10am. He had six hours 15 minutes rest in his cabin. He then did not drive for at least another two hours while he both travelled to Hexham with Mr Webb and stood aside while the airbags were repaired. He was, therefore, at rest until he entered the vehicle's cabin and turned the engine on.

144 I do not accept the combined opinion of Dr Perl and Dr Desai that drugs and fatigue affected Mr Phillips acts. Given the concession of both doctors, the onus held by the prosecutor to prove Mr Phillips' asserted "impairment" was beyond reasonable doubt. The proper concession was made by the prosecutor that it had not established drug or fatigue beyond reasonable doubt. Their concessions were such as to lead to the conclusion it has not been established, on the evidence, any "impairment" was demonstrated by Mr Phillips either visually to other persons who saw him or through his actions during the repair procedure.

145 The evidence is against the weight of Dr Desai's opinion as to any impairment arising from fatigue. There was, however, a significant positive finding of a level of amphetamine in Mr Phillips' bloodstream. This raises the difficult question as to whether Mr Phillips had an impairment simply from the level of the illicit drug found in his bloodstream and whether that impairment contributed to the risk and whether the obligation of his employer to ensure safety was thereby breached.

146 While Mr Phillips had a high level of amphetamines in his system on death, he had had the minimum statutory rest break. All his actions I find indicated no "impairment". His actions were sensible in thinking to check the docking lever and quite acute in running for the brake. The simple reading of the level of amphetamines would create a view Mr Phillips was affected by amphetamines ingestion. However, Dr Perl did not give that evidence. She was of the opinion impairment was "most likely" rather than beyond reasonable doubt. I discount the effect on Mr Phillips of drugs causing an impairment. However, the act of Mr Phillips leaving his vehicle with the engine on and the brake off must be considered.

Particulars 6, 7, 8 - Failure to have a Safe System of Work for Roadside Repair

147 Particular 6 pleads the defendant failed to have in place a safe system of work for its employees during the conduct of roadside repair. Particular 7 pleads the corporate defendant should have instructed Mr Phillips that long haul drivers were not to participate in roadside servicing and/or the repair of the defendant's long haul heavy combination vehicle. Particular 8 pleads the defendant should have instructed Mr Phillips that he had to remain clear of his vehicle during repair.

148 In the application of the above principles, the evidence persuades beyond reasonable doubt Mr Webb was intending to leave the engine on and the brakes off during the time he was inspecting the inflation/deflation of the airbags. He satisfied himself in a 2-minute period that the chocks would hold the vehicle. After he directed the engine be turned on and the brakes off, he then got under the vehicle at various sites, the purpose of which was to check the airbags inflation and deflation. He had noted the brakes were still off yet continued to go about checking the unfurling of the airbags at the back of the vehicle. He then went to the front of the trailer and saw the front airbag on the trailer (which had been crunched) unfurled and the vehicle which was already pressed hard up upon the unsatisfactory chocks, he said, moved forward over the chocks and began to roll.

149 Mr Phillips had been in the cabin to assist in turning the engine on and the brakes off and then alighted from the cabin leaving the engine on and the brakes off.

150 Once I have dismissed that the second "instruction" of Mr Webb was not given, Mr Phillips was simply doing what was asked of him. The system of work followed by Mr Webb was unsafe and a major contributor to the incident.

151 However, Mr Phillips did leave the vehicle without the brakes on. The "second level" of safety required the brakes to be engaged. It matters not for the breach to be established whether Mr Phillips was drugged/fatigued. It was, I accept as Dr Hart said, "common sense" to apply the brakes on a B double vehicle before leaving the cabin. In the period between the act of inflating the bags and ensuring the chocks were holding the vehicle, there was time for both to consider applying the brakes before the checking process was undertaken.

152 Both went about the checking process. Mr Webb checked the function of the airbags and Mr Phillips went to check the workings of the docking mechanism (which is affected by the airbags). Both ignored the brakes were not engaged. The second level of safety was not in place.

153 I accept, therefore, there was a causal connection between Mr Phillips leaving the vehicle with the engine on and the brakes off and its movement. He created a "potential for danger".

154 The question becomes what obligation was held by Intercoast, his employer, for his action under the Act. Neither Mr Webb nor Mr Phillips would have been in danger had the brakes been applied. Mr Webb may have, had he performed the task he asked Mr Phillips to perform, continued to follow his unsafe system of work and I am satisfied he would have left the brakes off. Had this occurred the breach would have been solely a breach of the Act by Autopool for having in place an unsafe system of work.

155 Unfortunately, Mr Phillips did volunteer to assist. He performed the task as asked: leave the engine on and the brakes off. A prudent and experienced driver, as was Mr Phillips, would, however, have ensured the brakes were engaged again before alighting from the vehicle or there would/could have been a questioning of the procedure he was directed to follow by the repair mechanic by a prudent driver.

156 Mr O'Brien revealed that the only discussion in a single maximum 1½ hour training session he conducted with Mr Phillips was to instruct him in the performance of a repair job that the driver must notify the National Maintenance Manager. That instruction was followed by Mr Phillips. The further instruction Mr Phillips followed was to notify the overnight roster manager of his ordered rest period.

157 The failure of Intercoast to properly instruct Mr Phillips with respect to his conduct during the conduct of repairs by a third party was a failure that contributed to the risk. Mr O'Brien's oral instruction failed to address the issue. The Trucksafe Manual only provides contact numbers for management and states:

Any fault that the driver considers may compromise safety or be of serious nature should be reported to the National Maintenance Manager immediately. The driver is then to follow instructions given by the National Maintenance Manager to ensure that prompt repair is organised.

The National Maintenance Manager and/or the contract repairer must assess all faults reported.

Records must show what action has been taken in relation to each fault reported.

158 The training and system of work is silent on the driver's conduct during a repair.

159 In C I & D Manufacturing, the Full Court of the Industrial Court of NSW stated (at 181 - 182):

If responsible supervision were present at the time that would not have occurred since the system of work was obviously dangerous and amounted to an unsafe system with potentially dangerous risks.

160 Once Mr Phillips had become involved in the repair operation by sitting in the cabin with the engine on and all the brakes off, he acted entirely contrary to what would normally be expected of a prudent truck driver when he left the cabin with the engine on and the brakes off. The action of Mr Phillips in leaving the cabin was clearly inappropriate whether or not there was a request from Mr Webb to stay in the cabin in a position to apply the brakes.

161 Dr Hart said it is unacceptable practice to leave the engine running with the park brakes released whilst a person is underneath a truck without the service brake on.

162 In order to meet the requirements of s 8 of the Act, the corporate defendant's system of work for repairs of vehicles on the road needed to be "coherent and systematic" so that all drivers understood what was required of them during a roadside repair. In order to ensure such a system was safe as required by s 8, it was necessary for the defendants to lay down specific rules and procedures designed to guard against and prevent the type of failure which occurred in the present case: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121 at [78], [101(3)] per Walton J, with Wright J agreeing at [3], citing with approval Cullen v State Rail Authority (1989) 31 IR 207 (at 219). See also the Full Bench in State Transit Authority of NSW known as Sydney Ferries v Inspector Corrie Guillarte (2003) 123 IR 237.

163 Similarly, Peterson J in Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286 said at [29]:

One can understand a developed perception that experienced bushmen might be resistant to instructions relating to how their work is to be done safely but this cannot remove the absolute obligation imposed by the Act upon an employer or contractor or other relevant person on whom the duty is imposed to ensure work is carried out in a safe manner. It is simply insufficient to give general directions and to, effectively, hope for the best.

164 Likewise, Haylen J in Inspector Kenneth John Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255; (2001) 109 IR 209 said at [107]:

It is difficult to accept that a system that leaves it to employees, even trained employees, to look after themselves can be described as a safe system of work.

165 The defendant corporation submits the prosecutor failed to lead evidence as to whether such instruction should have been given. The defendant corporation presses that an instruction to keep clear of the vehicle could have had the most dangerous of consequences had the driver complied and not interfered to apply the brakes.

166 In the circumstances where Mr Phillips' instinctive act was to run to the vehicle to engage the brakes which he successfully did and which, I have no doubt was for the public good, it seems illogical to find the defendant should have instructed its drivers to keep clear of a vehicle while roadside repair was being conducted. However, notwithstanding the implications given the set of facts before the Court I am persuaded there was an obligation on Intercoast to give that instruction. Mr Phillips should have been instructed to stay clear of the vehicle when repairs were being conducted. He should have been directly instructed to take no role in any repair of his vehicle when on road. Such an instruction would have minimised the risk to Mr Phillips' safety.

167 The corporate defendant should have instructed Mr Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted (Particular 7).

168 I find the corporate defendant failed to instruct Mr Phillips not to participate in the roadside repair and failed to instruct Mr Phillips to remain clear of the vehicle during the repair. These failures are demonstrative of the unsafe system provided by the corporate defendant for roadside repair.

Particular 11 and 12 - The failure to Supervise

169 It is contended there was a failure to properly supervise Mr Phillips when he was sent out on the job and the corporate defendant's officers should have used their records (log books/GPS tracking) to properly monitor and supervise its employees. This charge is linked in the pleadings to fatigue management.

170 The prosecution submitted particularly that the corporate defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the corporate defendant's fatigue management policies and systems by reference to:

• The driver's logbook
• The corporate defendant's driver allocation records; and
• The information available from the GPS tracking system.

171 The company did have a clear fatigue management system. It revealed in its driver's manual a full awareness by the corporate defendant of the industry problem. It had the GPS equipment and it had daily run sheets to monitor its drivers' actions. It had the appropriate rules in place that recognised the applicable regulatory requirements.

172 The Trucksafe Manual had a comprehensive fatigue management policy which was given to Mr Phillips. Available to Mr Phillips was the following:

Intercoast Refrigerated Transport Pty Ltd - Drivers Maintenance Systems Manual

...

Purpose:

To manage the fatigue of all drivers associated with the operations of Intercoast Refrigerated Transport Pty Ltd in accordance with the driving laws applicable to the state laws and regulations where operating. The company recognises that "true sleep" is an important part of fatigue management.

The Policy:

1.The Depot Manager will allocate suitable driving timetables to allow the drivers to meet the legal requirements.

2.The company will take into account unexpected incidents including road accidents and roadworks.

3.Drivers are required to report any accidents or incidents on the forms supplied that may effect the compliance to this policy.

4.All drivers will be expected to complete and sign the Daily Pre-Trip Maintenance Check and comply with its contents.

5.The Depot Manager will allocate a route plan to drivers prior to their departure. In the case of regular routes the standard route plan will apply for all trips following that route.

6.The management of the company will not tolerate the use of illegal drugs as a replacement for sleep and therefore prohibits the use of such substances. This requirement is also documented in our Drug and Alcohol Policy attached.

7.Drivers are expected to be free of alcohol prior to any trips.

8.The Depot Manager will not knowingly allocate a route to a driver that breaches fatigue management and legal obligations.

173 Mr O'Brien in his evidence spoke of his safework instruction to Mr Phillips and taking him through the manual and especially detailing the fatigue policy. Mr Phillips spoke to the RTA of his coming from the Northern Territory and still trying to grasp all the NSW rules. He mentioned he thought he needed a six hour break not a seven hour break.

174 However, under these particulars, in linking the failure to supervise to the fatigue management, the defendants rely upon the acts of the RTA in grounding Mr Phillips from 3.45 am to 10 am, some 6 hours, and then, except for the time he was asked to turn on the engine and the period where he went to town with Mr Webb and watched Mr Webb perform the repair while not driving and therefore "at rest", to contend that Mr Phillips had the required "rest" break in accordance with both the legal requirements and the corporation's fatigue management policy. The defendants contended, were it not for the intervening repair, Mr Phillips would have been permitted by the RTA and under the relevant regulations to drive off at 11am. The prosecutor contends the regulation only recites minimum rest periods.

175 However, on the facts, there was a breach of the corporate defendant's fatigue management policy when it accepted Mr Webb's word as to how long he had been driving and in its failure to rely upon its independent records to verify the driver's time driving.

176 The defendants rely only on the 24 hour period before Mr Phillips was stopped. The prosecution relies on evidence that on 12 November the total trip from Arndell Park (NSW) to Tingalpa (Qld), which Mr Phillips began at 7pm on Wednesday, 12 November 2008, took some 18 hours of which 11 ½ hours of driving time.

177 Therefore, at the time Mr Phillips reached Coffs Harbour the trip had taken approximately six hours 20 minutes of which approximately four hours 40 minutes was driving time. By that time, Mr Phillips had been driving for over 13 hours in the last 24 hours.

178 The evidence establishes Intercoast had many ways to review drivers' driving hours. The company had GPS monitors but failed to use the information in "real time" especially related to fatigue requirements. The daily estimate of a trip sheet of 13 November, falsely recorded by prediction planning, showed Mr Phillips had had a seven hour break from his last trip when he was in fact still driving for five hours of the planned seven hour break. Mr O'Brien took Mr Phillips' word and did not ever consult other possible records.

179 I am satisfied from the evidence of its own officers, Intercoast left it largely to the driver to manage himself on his trip. The operations staff made the drivers aware that if there was a problem with completing a job the driver was to let them know. Operations proceeded on the basis of the driver providing correct information to the managers.

180 There was a failure of the corporate defendant to follow its own risk fatigue management policy by the time Mr Phillips was stopped by the RTA on 14 November 2009. Its policies indicated it well knew its industry had to be rigorous in the implementation of fatigue relief for its drivers.

181 However, the breach has to relate to the risk which has been identified as the movement of the vehicle when he was on site during the repair. The question becomes was there fatigue after a six hour rest and the time when Mr Phillips was not driving in the period 10am until about 12.45 pm in the afternoon and was he fatigued such as to explain his contribution to the risk. This is how the prosecution fashioned the particulars (with supervision of fatigue management policy).

182 Reliance is placed by the prosecution on the reasoning in Hitchcock, where Walton J dealt with the question of alleged fatigue of a truck driver due to over reliance on the discretion of an employee for safety at [281]:

[281] ... in this case, driving was a significant part of the employees' duties, but did not have to take place when they were fatigued: theoretically, they could stop and have a rest or structure their work in order to avoid fatigue. Nonetheless, in this case, as in Cullen, the employer is culpable under the Act for largely the same reasons (among others): the absence of a safe system of work due to over-reliance upon the discretion of employees in matters of safety. (See also the discussion of Cullen in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd at 138).

183 Similarly, the Full Court held in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 that such a submission confused "risk" which connotes "the possibility of danger" with "present danger", noting that the obligation imposed by the Act was to ensure against the former, not the latter.

184 While the authorities establish an employer has an obligation to be proactive to avoid the possibility of risk, here the corporate defendant had the policy for fatigue management and the employer did not ensure it met its obligation under that policy. However, it has not been established that on the relevant date Mr Phillips was fatigued.

185 The failure to ensure Mr Phillips had the appropriate rest breaks has been established. The corporate defendant had all the necessary equipment to properly monitor its drivers and it failed to so do. However, there is no finding that this failure led to fatigue at the relevant time to establish Mr Phillips' action was reflective of fatigue on 17 November 2008. The failure to ensure Mr Phillips was not suffering from fatigue is not the charge the defendants have been brought to answer. The failure to properly supervise its fatigue management policy has not been linked to either the potential for danger to Mr Phillips or for contributing to the "possibility of harm" in this set of circumstances. There was a failure to ensure that Mr Phillips was not in breach of the fatigue management policy but as it has not been established that he was fatigued, this particular failure did not provide on the relevant date "the possibility of danger" or "the possibility of harm".

Conclusions

The Corporate Defendant - Matter No IRC1263 of 2010

186 The corporate defendant has been found to have breached the Act under s 8(1) in its failure to have in place a safe system of work for its employees during roadside repair. The corporate defendant did not properly instruct Mr Phillips not to take part in a roadside repair and failed to instruct him to stay clear of his vehicle during such repair.

187 In Matter No IRC 1263 of 2010, I find the defendant therefore guilty of a breach of s 8(1) of the Act.

The Corporate Defendant - Matter No IRC1262 of 2010

188 In Matter No IRC 1262 of 2010, the corporate defendant is also charged under s 8(2) with similar particulars of the charge which put at risk Mr Webb.

189 It has already been established that the legal elements to the charge under s 8(2) are met (see [86] to [89] and [147] to [168]).

190 On 14 November 2008, the place of work of Intercoast included the vehicle, being Truck 60 and the two trailers forming the B-Double combination, and its immediate environs at the RTA Inspection facility where the vehicle was being repaired at the behest of Intercoast.

191 Mr Michael Webb, while not an employee of Intercoast was employed by Autopool and was also exposed to a risk of being struck by a heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility.

192 On the relevant date, Mr Webb was both underneath the vehicle and in the area adjacent to the vehicle whilst performing the repairs. If the vehicle moved he was at risk of being struck by the vehicle while he was carrying out repairs.

193 The prosecutor relies upon the same particulars alleged against the corporate defendant to assert as a consequence of the acts and omissions of the corporate defendant on 14 November 2008, Mr Webb was exposed to the risk of being struck by the vehicle whilst he was performing repairs on it at the RTA Inspection Facility.

194 The only particular found to contribute to the possibility of harm connected to the risk was the failure of Intercoast to give instructions to remain clear and to instruct there be no involvement in repairs/servicing.

195 The failure of Intercoast to give an instruction to Mr Phillips to either remain clear of the vehicle and not approach the vehicle or to not participate in the roadside servicing and/or repair would only be causally connected with the risk that arose to Mr Webb because Mr Webb relied on Mr Phillips to carry out the task of being ready to apply the brakes in the vehicle while Mr Webb was repairing it. If Mr Phillips had not made himself available for this task, Mr Webb would have had to adopt a work method that did not depend on another person being in a position to apply the brakes to ensure that the vehicle did not move.

196 The evidence established that Mr Webb would have carried out the task alone. Mr Webb, I am satisfied, would have carried out the task without the brakes on, thus, under his own system of work, putting himself at risk without any involvement of Mr Phillips. The objective to properly instruct Mr Webb was not an obligation on the corporate defendant. The prosecutor concluded it was unable to prove the requisite causal connection in relation to this failing.

Failure to take Fatigue and/or Drugs Measures and Causation

197 The prosecutor relied upon the evidence to establish the connection between the failure to take fatigue and/or drugs measures by the corporate defendant as leading to the risk to safety to which Mr Phillips was exposed. This allegation has been dismissed against the corporate defendant and therefore is not established under s 8(2).

198 The charge brought against the corporate defendant under s 8(2) is dismissed.

Individual Defendant - Mr Morfea - Matter Nos IRC 1260 and 1261 of 2010

199 Mr Anthony Morfea, the individual defendant, is and was at all material times, the sole Director, Managing Director and the Company Secretary of Intercoast. Mr Unicomb worked out of Mr Morfea's office at the time of the alleged offence. Mr Unicomb said Mr Morfea dealt with all facets of a business, including operational staff and employees, customers and creditors, and suppliers of equipment.

200 Mr Morfea, therefore, is liable under s 26(1) of the Act if the corporation is found in breach of the Act. He is charged through the deeming provision of s 26(1) of the Act for the same breach of the Act under s 8(1) and s 8(2) of the Act as is the corporate defendant.

201 The corporate defendant has been found to have breached the Act and contributed to the risk by its failure to have a comprehensive system in place for its drivers when there was a necessary road repair on a driver's vehicle. The defendant corporation is guilty under s 8(1) of failing to provide a safe system of work and given its failure to properly instruct Mr Phillips to not take part in a roadside repair and its failure to instruct Mr Phillips not to stand close to his vehicle when under repair.

202 Mr Morfea, as the controlling mind of the corporation, is therefore guilty of failing to provide a safe system of work under s 8(1) of the Act.

203 In Matter No IRC 1260 of 2010, I find the defendant guilty.

204 However, the charge against the corporate defendant under s 8(2) has been dismissed. The obligation to properly instruct an employee is not transferable to an obligation to properly instruct another employer's employee, such as Mr Webb.

205 The charge under s 8(2) in Matter No IRC 1261 of 2010 is, therefore, dismissed.

Orders

206 In Matter No 1263 of 2010, the charge under s 8(1) of the Act, I find the defendant guilty.

207 In Matter No 1262 of 2010, the charge under s 8(2) of the Act, I find the defendant not guilty.

208 In Matter No 1260 of 2010, the charge under s 8(1) of the Act, empowered under s 26(1) deeming provision, I find the defendant guilty.

209 In Matter No 1261 of 2010, the charge under s 8(2) of the Act, empowered under s 26(1) deeming provision, I find the defendant not guilty.

Decision last updated: 29 June 2012