Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 PROSECUTOR Inspector Stephen Campbell PARTIES : DEFENDANT James Gordon Hitchcock FILE NUMBER: IRC 5660 & 5661 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - s50 Occupational Health and Safety Act 1983 - deemed offence - fatal truck accident - charges as to failures in relation to fatigue management systems - rest-stops - driving hours - driving rosters - warnings of the hazards of fatigue - warnings of the hazards of taking drugs - information, instruction, training and supervision - plea of not guilty - circumstantial evidence - findings of fact - risk of fatigue whilst driving - effects of night driving on fatigue - fatigue alleviated only by adequate sleep - driver fatigue a risk to health and safety - assumptions made in favour of defendant - actual fatigue on several occasions including date of accident - accident caused by fatigue - log-book regulations - payment structure encouraged excessive driving - pressure to meet delivery deadlines - relevant general principles - contention "risk of a risk" not sufficient to found a charge under Occupational Health and Safety Act 1983 - nature of risk - distinguish present and potential danger - speculative or unduly remote risks - causal nexus - risk caused by employer's failures - meaning of "employer's place of work" in s16(1) Occupational Health and Safety Act 1983 - defences - offences in Matter Nos. IRC5660 and 5661 of 2001 proven - matter to be set down for sentence. LEGISLATION CITED : Coroners Act 1980 Occupational Health and Safety Act 1983 Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 Chamberlain v. The Queen (No. 2) (1984) 153 CLR 521 Craig Andrew Corbett v Raymond Borg (unreported, Hungerford J, 29 March 1996) Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 Haynes v C I & D Manufacturing (1994) 60 IR 149 at 152 Inspector Clarke v W L Meinhardt & Partners Pty Limited (unreported, Fisher CJ, 30 June 1992) Insp Hardman v Allied Construction Pty Ltd (Fisher P, unreported, 21 December 1990) Inspector McColl v Combined Crane Rigging & Arthur Didovich [2004] NSWIRComm 48 Insp Mobbs v Air Liquide Australia Ltd (Fisher P, unreported, 9 April 1998) Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators (unreported, 8 August 1996) Insp Plowright v Peter J Davis (Newcastle) Pty Limited [2001] NSWIRComm 269 Inspector Stephen Campbell v James Gordon Hitchcock [2003] NSWIRComm 148 CASES CITED : Inspector Stephen Campell v James Gordon Hitchcock [2003] NSWIRComm 436 Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 Martin v.Osborne (1936) 55 CLR 367 O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 Shepherd v The Queen (1990) 170 CLR 573 WorkCover Authority of New South Wales (Inspector Barry Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 WorkCover Authority of NSW (Inspector Dubois) v Concrete Constructions Group Ltd (No 1) (1999) 98 IR 362 WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997) WorkCover Authority of NSW (Inspector Keenan) v Technical & Further Education Commission (1999) 92 IR 251 WorkCover Authority of NSW (Inspector Page) v Woolworths Ltd (unreported, Peterson J, 9 September 1994) WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 HEARING DATES: 10/28/2002; 10/29/2002; 10/30/2002; 10/31/2002; 12/09/2002; 06/10/2003; 06/11/2003; 06/12/2003; 06/18/2003; 06/19/2003; 06/24/2003; 06/25/2003; 06/26/2003; 06/30/2003; 07/01/2003; 07/02/2003; 07/03/2003; 12/10/2003; 12/11/2003; 02/04/2004; 02/05/2004; 02/06/2004; 03/09/2004; 03/25/2004; 03/30/2004; 04/02/2004 DATE OF JUDGMENT: 10/21/2004 PROSECUTOR Mr P Skinner of counsel SOLICITOR Ms M Lagana WorkCovery Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson, SC Mr A Moses of counsel SOLICITOR Mr J Catanzariti Clayton Utz JUDGMENT: - 144 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Walton J, Vice-President 21 OCTOBER 2004 Matter No. IRC 5660 of 2001 INSPECTOR STEPHEN CAMPBELL V JAMES GORDON HITCHCOCK Prosecution under s16(1) and s50(1) of the Occupational Health and Safety Act 1983. Matter No. IRC 5661 of 2001 INSPECTOR STEPHEN CAMPBELL V JAMES GORDON HITCHCOCK Prosecution under s15(1) and s50(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2004] NSWIRComm87 1 These proceedings concern two prosecutions brought under ss 15, 16 and 50 of the Occupational Health and Safety Act 1983 ("the Act"). The charges, which concern the risks of fatigue in the long-haul trucking industry, follow a fatal accident involving two articulated lorries on the Pacific Highway near Tyndale (outside Grafton) near midnight on 1 September 1999. Mr Darri Dennis Haynes, the driver of one of the lorries (prime mover registration number TWW240), died in the accident. Mr Neville Walker, the other driver, was uninjured. 2 For approximately eight weeks immediately preceding his death, Mr Haynes (a driver of some 17 years experience in the transport industry) worked for the haulage company Sayogi Pty Ltd trading as "Jim Hitchcock Haulage" ("the Company"). Mr James Gordon Hitchcock ("the defendant") and his wife, Mrs Ida Hitchcock were the sole directors of the Company (and had been since its creation in 1984). 3 The evidence painted a sobering picture of the risk for long distance truck drivers of driving when fatigued, the very real danger attendant upon that risk and of a haulage company which paid little (if any) heed to the risk either to its employed drivers or to anyone else at risk of an accident due to proximity to a fatigued truck driver. On the contrary, as I later find, instead of ensuring against the risk, as it was legally obliged to do under the Act, the systems of work operated by the Company (which did not include any effective fatigue management measures) exacerbated them. A significant part of the defendant's answer to the overwhelming evidence of failures in the Company's systems of work, supported by both the evidence relating to Mr Haynes and the evidence given by other drivers employed by the Company at the time of the accident, was that a risk of fatigue, albeit caused by a failure of the Company, was not enough: the prosecution had failed if it could not establish that Mr Haynes was actually fatigued at the time of the accident. As I discuss later, this contention was wrong in law and principle. Moreover, the evidence ultimately disclosed beyond reasonable doubt that Mr Haynes was fatigued at the time of the accident. THE CHARGES 4 In Matter No. IRC 5660 of 2001 the prosecutor charged that: On or about 1 September 1999 ("the said date") along the Pacific Highway at Tyndale in the State of New South Wales ("the said location"), James Gordon Hitchcock ("the Defendant") of 4 Woorin Close Bomaderry in the State of New South Wales, being a director of Sayogi Pty Limited [ACN: 002 732 345] a corporation which contravened section 16(1) Occupational Health and Safety Act, 1983, on the said date at the said location in that being an employer it DID FAIL to ensure that persons not in its employment, and in particular, Neville Walker, were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely the carriage of freight, while they were at its place of work, the Defendant IS DEEMED to have contravened the same section pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983. 5 The particulars of that charge were: 1. The defendant was at all material times a director of Sayogi Pty Limited (ACN: 002 732 345), a corporation whose registered office was at Arthur B Booth & Co, 52 Osborne Street Nowra in the State of New South Wales ("the said corporation"). 2. At all material times the said corporation conducted business at 15 Concorde Way Bomaderry in the State of New South Wales as a road freight transport contractor under the name or style "Jim Hitchcock Haulage". 3. At all material times the said corporation carried on business in its undertaking of the carriage of freight within Australia for fee or reward. 4. At all material times Darri Haynes was an employee of the said corporation. 5. On or about 1 September 1999, ("the said date"), Darri Haynes was driving a semi-trailer registration number TWW-240 along the Pacific Highway at Tyndale in the State of New South Wales ("the said location") when it collided with a semi-trailer driven by Neville Walker. Mr Haynes was killed when the cabin of his truck ignited following the crash. Mr Walker escaped injury, but was placed in risk of injury. 6. On the said date at the said location the said corporation did contravene Section 16(1) of the Occupational Health and Safety Act 1983 ("the said Act") in that being an employer, it failed to ensure that persons not in its employment using the said Pacific Highway, and in particular, Neville Walker, were not exposed to risks to their health or safety arising from the conduct of its undertaking, namely the carriage of freight, while they were at its place of work, in that it: (a) Failed to ensure that long haul truck drivers in its employ took sufficient rest stops whilst they were driving to counter fatigue, lack of alertness or drowsy driving. (b) Failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation in respect of the conduct of the employer's undertaking of road freight haulage. (c) Failed to ensure that driving hours of employees were properly recorded and audited to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. (d) Failed to adequately warn employees of the hazards of fatigue involved in long haul truck driving. (e) Failed to adequately warn employees of the hazards of taking drugs to counter fatigue whilst involved in long haul truck driving. (f) Failed to provide such information, instruction, training and supervision of its employees as may be necessary to ensure the health and safety of other persons not in its employment. (g) Failed to provide a safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. As a result of the said failures, Neville Walker was placed at risk of injury. 7. The defendant, being a director of the said corporation, is deemed to have contravened section 16(1) of the said Act pursuant to Section 50(1) of the said Act. 6 In Matter No. IRC 5661 of 2001 the prosecutor charged that: On or about 1 September 1999 ("the said date") along the Pacific Highway at Tyndale in the State of New South Wales ("the said location"), James Gordon Hitchcock ("the Defendant") of 4 Woorin Close, Bomaderry in the State of New South Wales, being a director of Sayogi Pty Limited [ACN: 002 732 345] a corporation which contravened section 15(1) Occupational Health and Safety Act, 1983, on the said date at the said location in that being an employer it DID FAIL to ensure the health, safety and welfare of its employees at work and in particular, Darri Haynes, the Defendant IS DEEMED to have contravened the same section pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983. 7 The particulars of that charge were: 1. At all material times the defendant was a director of Sayogi Pty Limited (ACN: 002 732 345), a corporation whose registered office was at Arthur B Booth & Co, 52 Osborne Street Nowra in the State of New South Wales ("the said corporation"). 2. At all material times the said corporation conducted business at 15 Concorde Way Bomaderry in the State of New South Wales as a road freight transport contractor under the name or style "Jim Hitchcock Haulage". 3. At all material times the said corporation carried on Business [sic] in its undertaking of the carriage of freight within Australia for fee or reward. 4. At all material times Darri Haynes was an employee of the said corporation. 5. On or about 1 September 1999, ("the said date"), Darri Haynes was driving a semi-trailer registration number TWW-240 along the Pacific Highway at Tyndale in the State of New South Wales ("the said location") when it collided with a semi-trailer driven by Neville Walker. Mr Haynes was killed when the cabin of his truck ignited following the crash. Mr Walker escaped injury, but was placed in risk of injury. 6. On the said date at the said location the said corporation did contravene Section 15(1) of the Occupational Health and Safety Act 1983 ("the said Act") in that being an employer, it did fail to ensure the health safety and welfare at work of its employees at work and in particular, Darri Haynes, in that it: (a) Failed to ensure that long haul truck drivers in its employ took sufficient rest stops whilst they were driving to counter fatigue, lack of alertness or drowsy driving. (b) Failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation in respect of the conduct of the employer's undertaking of road freight haulage. (c) Failed to ensure that driving hours of employees were properly recorded and audited to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. (d) Failed to adequately warn employees of the hazards of fatigue involved in long haul truck driving. (e) Failed to adequately warn employees of the hazards of taking drugs to counter fatigue whilst involved in long haul truck driving. (f) Failed to provide such information, instruction, training and supervision of its employees as may be necessary to ensure the health and safety at work of its employees. (g) Failed to provide a safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. As a result of the said failures, Darri Haynes was placed at risk of injury. 7. The defendant, being a director of the said corporation, is deemed to have contravened section 15(1) of the said Act pursuant to Section 50(1) of the said Act. 8 On 30 April 2002 the defendant pleaded not guilty to each of the charges and, on 28 October 2002, agreed to the prosecutor's application that both charges be heard in a joint trial. The defendant relied upon s53 of the Act but did not raise any defence under s 50(1) of the Act. 9 The prosecutor's opening submissions proceeded on the basis that the defendant was charged with exposing not only Mr Walker and Mr Haynes to risk, but also (in relation to the charge under s 16) other users of the highway, and (in relation to the charge under s 15) other employees. The defendant disputed this interpretation of the charges and sought a ruling that the allegations within the charges be confined to Messrs Walker and Haynes. I directed the defendant to plead in writing the precise basis for the application, including legal authority for such an application. This was never done. The matter was not raised again until closing submissions, where Counsel for the defendant, Mr B Hodgkinson SC, contended that, even if his limiting construction of the charges was wrong, there was no evidence to establish that on or about 1 September 1999 anyone other than Messrs Haynes and Walker was exposed to the risk alleged. He did not fully develop this preliminary point, notwithstanding the evidence as to the systems of work operated by the Company and their application to other drivers at the time of the accident. 10 There was no issue as to the first five particulars of each charge. I am satisfied that they have been proved beyond reasonable doubt. I also note Mr Hodgkinson's agreement in closing submissions that, if the charge under s15 in matter number 5661 of 2001 was established, the charge under s16 in matter number 5660 of 2001 would also be established (subject to the jurisdictional "employer's place of work" requirement imposed by that section); and that if the charge under s15 failed, the charge under s16 must also fail. In my view, this concession was correctly made. 11 It follows that the issues requiring determination are: the scope of the charges; the particulars of failure (a) - (g) in paragraphs 6 of the charges; the assertion of a defence under s53 of the Act; and, if necessary, whether Mr Haynes's articulated lorry was the Company's "place of work" within the meaning of s16 of the Act. THE EVIDENCE 12 The court received evidence from four long haul truck drivers (Mr Walker and three former employees of the Company: Messrs McLennan, Jones and Everingham); three police officers (Messrs McFarlane, Clarke and Fennell); Inspector Templeton of the WorkCover Authority of New South Wales ("WorkCover"); four officers of the Roads and Traffic Authority (Messrs O'Neill, Martin, Montgomery and May); Mr Haynes's partner of nineteen years, Ms Campbell; a depot manager, Mr Cooper, of Scotts Transport Industries; and three experts: Dr Judith Perl, consultant pharmacologist; Mr Dick van den Dool, traffic engineer; and Associate Professor Ann Williamson, fatigue expert. 13 Despite the parties' original estimate of a five-day hearing (including submissions), and the original allocation in 2002 of four consecutive days, the Court sat on twenty-six days, adjourning part-heard on many occasions due to incomplete or unavailable evidence and extensive interlocutory argument. The poor estimate (in view of the actual length of the hearing), WorkCover's failure to organise witnesses, the extensive interlocutory evidentiary arguments brought on behalf of the defendant, and the need to accommodate the available dates (amidst substantial unavailable periods) of counsel for both parties in a protracted, part-heard criminal matter, resulted in the hearing spanning a very substantial period. It is obviously desirable for counsel to provide more accurate estimates. Moreover, the Court may be required to sit continuously in criminal hearings of this nature to avoid similar protractions: counsel should be prepared for this. 14 The Court made three interlocutory evidentiary findings in the course of the proceedings. I do not intend to repeat or elaborate my reasons for the decisions, which have been published. In the first decision, on 30 October 2002, I overruled the defendant's objection to the tender of the transcript of his interview with Ms Templeton ("the WorkCover interview"). 15 There was considerable argument about the admissibility of "Safe-T-Cam" records (compiled by the Roads and Traffic Authority of New South Wales) of the movements of Mr Haynes's prime mover registration number TWW240. On 3 June 2003, in Inspector Stephen Campbell v James Gordon Hitchcock [2003] NSWIRComm 148, I determined that the following evidence would be admitted provisionally, subject to later debate as to relevance and the exercise of discretion to exclude it: 1. The entries for 2 April 1999 and 10 July 1999 to 1 September 1999 of the Safe-T-Cam Sightings Reports for Vehicle Registration Number TWW240; 2. The Safe-T-Cam Incident Report relating to an alleged infringement of the road rules by the driver of TWW240 on 2 April 1999, including two images of the vehicle; and 3. A photocopy of an image of the vehicle TWW240 taken by the Safe-T-Cam at Harwood on 1 September 1999. In closing oral submissions, the defendant abandoned his objection to the admissibility of these exhibits, submitting instead that, as a matter of weight, this evidence should be regarded as if it were irrelevant. 16 Finally, on 2 July 2003, following numerous objections by the defendant, I admitted sections of the deposition given by Mr Leonard McKellar, an interstate truck driver, to the coronial inquest into Mr Haynes's death and excluded others. Mr McKellar was a long-standing friend of Mr Haynes who was himself tragically killed in a motor vehicle accident on 21 April 2003 before he could give evidence in these proceedings. My reasons for that decision were published on 9 December 2003 in Inspector Stephen Campbell v James Gordon Hitchcock [2003] NSWIRComm 436. 17 In closing submissions the defendant confirmed that there were no residual evidentiary matters for determination: exhibits 7, 8, 12 and 56A were admitted without objection; exhibits 65, 66 and 67 should be dealt with in terms of weight, rather than admissibility; and the defendant did not press his reserved objection to the expert evidence of Mr van den Dool. SUBMISSIONS 18 Both parties prepared lengthy written and oral submissions to assist the Court which I summarise below. Submissions for the Prosecutor 19 According to the prosecutor, the relevant risk to safety was the risk that Mr Haynes would "fall asleep while driving a heavy vehicle at speed on the highway". In summary, the prosecutor made the following submissions concerning the particulars in the charges: 1 Rest-Stops It is a matter of common and industry knowledge, substantiated by the expert evidence of Dr Williamson, that long driving hours, particularly at night, cause fatigue. Mr Haynes had been driving for long hours over long distances during his employment with the Company, particularly in the final week, and was almost certainly fatigued at the time of the accident. Long-haul truck drivers need to counter fatigue by taking sufficient rest-stops. The Company failed to ensure that its employed drivers did so. On the contrary, the drivers employed by the Company worked to delivery and pick-up times. Mr Haynes was under pressure to deliver his final load at a particular time and this prevented him from taking an urgently needed sleep. The Company did not monitor its drivers' log-books. There was no evidence that the Company monitored rest periods in any way. 2 Rosters The evidence established that the Company's allocation of jobs was piecemeal. There was no evidence to suggest that the Company prepared any kind of roster, let alone a roster to manage driver fatigue. 3 Driving Hours The only system used to monitor driving hours was the completion by drivers of their log-books. On the defendant's own case, the Company did not even collect duplicate copies of log-books (in breach of a clear legislative requirement that it do so); other evidence suggested that it did collect the duplicates, and not only knew that they were falsified but regularly caused them to be falsified. 4 Warning of the Hazards of Fatigue It is beyond doubt that fatigue is a hazard in long haul truck driving, but there was no evidence that the Company warned, let alone trained, any of its drivers to manage fatigue. 5 Warning of the Hazards of Drugs to Counter Fatigue The Company was aware (through the defendant at least) of the widespread use in Australia of illegal amphetamines by long distance truck drivers and that there was a high risk that its drivers would follow suit. However, it did not pursue Mr Haynes's failure to answer a question about drug charges on its employment application form. In fact, Mr Haynes used amphetamines and drugs were found in his remains. Notwithstanding the defendant's assertion that drug use was "totally against company policy" there was no evidence of any education or warnings provided by the Company. 6 Training On the evidence of drivers employed by the Company, the training provided was not documented and only related to a particular system of business operations; tying down loads; and tyre maintenance. There was no training for fatigue management, Mr Haynes had no supervisor, and no-one from the Company ever discussed with him the length of time he spent driving. 7 System of Work The only review of the drivers' work conducted by the Company was a weekly kilometre check. At best, this was a broad review of driving distances, assessed a week at a time, and gave no indication of rest-stops or driving time. Further, it was conducted in the context of a clear monetary incentive to drive for excessive hours (drivers were paid by the kilometre); excessive workloads and directed delivery and pick-up times; and the Company's negligent attitude to log-books. Although the prosecutor need not prove what system should have been in place, he submitted that a safe system should have ensured the proper recording of working hours (including driving, loading, unloading and truck washing); those records should have been reviewed by the Company; and the Company should have used appropriate measures to prevent excessive driving and work times. Additionally, the Company could have sought accreditation through the professional fatigue management system. In fact, it did none of these things. 20 The prosecutor submitted that it was beyond reasonable doubt that the failures relating to rest-stops, driving rosters and driving hours separately and together contributed to the risk of injury to Messrs Haynes and Walker. At the time of the accident, Mr Haynes was chronically fatigued; using illegal drugs to stay awake; and pushing himself to be in Sydney, some eight hours away, the following morning. 21 In relation to the Company's failures to warn employees of the hazards of fatigue and drugs, or to provide training, the prosecutor submitted that when the workplace is removed from the employer's direct control, an employer has a special responsibility to ensure the health, safety and welfare of its employees. 22 In relation to the charge under s 16 of the Act, mobility should not preclude the lorry being the Company's place of work. The definition of "place of work" in s4 of Act (which includes "premises" and "premises" includes "any vehicle") clearly contemplates mobile places of work. 23 The defendant's submission that the Company could not ensure that Mr Haynes slept during a rest period (and therefore could assert a defence under s 53 of the Act) was beside the point. The charges allege that Mr Haynes was placed at risk of fatigue due to insufficient opportunities for rest. It was reasonably practicable (and would have been easy) for the Company to have created reasonable driving rosters, ensured that drivers took sufficient rest-stops and to have recorded and audited the driving hours of its employees. Submissions for the Defendant 24 The defendant sought to differentiate the relevant risk. According to the defendant, there was no basis upon which the Court could conclude that being at risk of fatigue per se constituted a risk to the health and safety of Mr Haynes under the Act. Consequently, the prosecution had to establish (to the criminal standard) that Mr Haynes was fatigued at the time of the accident, and that this created the necessary risk to health and safety (viz, the risk of an accident). The defendant elaborated, in oral submissions, that the allegation embodied in the charges was a failure to take some step to stop someone driving after they had become fatigued. 25 On the defendant's submissions, the evidence did not establish beyond reasonable doubt that Mr Haynes was fatigued at the time of the accident. Specifically: 1 On 1 September 1999, between leaving the Coca-Cola depot at 3.28pm and being recorded by the Safe-T-Cam at Harwood at 11.35pm, there was approximately "4 plus hours" of non-driving time during which Mr Haynes could have rested; 2 There was no evidence of Mr Haynes's actions during this time. If he did not rest, there was no basis for the suggestion that consequent fatigue was caused by his employer; 3 Even if one reviewed Mr Haynes's driving schedule in the days before the accident to assess whether he was fatigued, such a review could not precede 28 August 1999 because it was clear that Mr Haynes was at home that weekend before the accident and had substantial periods available for rest. Between the weekend and the accident, he had "more than sufficient time during which he was able to rest" in periods which were "significant in number and length"; 4 The evidence of Mr Haynes's activities in the days preceding the accident is too disjointed for the Court to infer that, cumulatively, he was suffering from fatigue. To establish fatigue, the prosecution has relied upon hearsay evidence of Ms Campbell and Mr McKellar which is contradicted by other evidence and in the latter case was unable to be tested; and 5 The Court cannot conclude beyond reasonable doubt that the accident was caused by fatigue. Mr Anthony Martin, Inspector in the Vehicle Regulation division of the Roads and Traffic Authority ("the RTA"), who inspected the accident site at the time, could not determine what caused the vehicle to swerve across the road. Associate Professor Williamson conceded that there were circumstances other than fatigue that could result in a similar crash. Moreover, there were other reasonable possibilities: Mr Haynes may have been distracted or suffered from some incapacitating medical problem. Alternatively, there may have been some mechanical failure of the truck. 26 As to the particulars of each charge: 1 Rest-stops The WorkCover interview established that the Company did monitor driving distances (the weekly kilometre check) and Mr Haynes's wages sheet showed that his average kilometres were not excessive. In fact, the evidence disclosed that the working arrangements provided Mr Haynes with ample rest periods in the days before the accident. Whether or not "long driving hours, particularly at night, cause fatigue" is a matter to be proved on the evidence, not merely asserted. The phrase "long driving hours" is uncertain and the effect of breaks during "long driving hours" has not been established. A proper analysis of Mr van den Dool's evidence (including concessions under cross-examination) reveals the following opportunities for Mr Haynes to have had "substantial" rest periods: · 26 August 1999 - 13 hour rest period; · 27 August 1999 - 13.63 - 16.74 hours of rest period; · 28 August 1999 - 8 hour sleep (at least); · 29 August 1999 - non-driving time of approximately 38.3 hours between Kew on 28 August 1999 and Harwood 9.24pm on 29 August 1999 (but this includes the 8 hour sleep referred to above); · 30 August 1999 - between 12.71 and 15.1 hours of rest; · 31 August 1999 - 10.29 non-driving hours; and · 1 September 1999 - approximately 10.64 non-driving hours. Professor Williamson's evidence must be regarded with caution. She failed to include a number of significant rest periods in her analysis of the days before the accident without justification, apparently on the basis that the only opportunity for rest during these periods was in the sleeping quarters attached to the truck. 2 Rosters Mr Haynes had ample opportunities for rest periods in the week preceding the accident, and the Court may infer from this that, in the allocation of work, the Company took into account the effect of sleep deprivation and fatigue. 3 Driving Hours The Company required Mr Haynes to record driving time in his log-book and reviewed daily work sheets each week to see if the kilometres were "within limits". There was no evidence to suggest that Mr Haynes did not keep an accurate log-book, nor that it did not accurately reflect the periods of rest available to him. Given that trips were allocated to drivers one at a time, the log-books are not relevant to the questions raised in this prosecution, regardless of whether they were collected by the Company. 4 Warning of the hazards of fatigue When he started work with the Company, Mr Haynes was directed to comply with his log-book. 5 Warning of the Hazards of Drugs to Counter Fatigue The Company had a "no drugs policy" and there was evidence that this was communicated to employees (in Mr Haynes's case, by his application for enrolment form). Dr Perl could not determine whether methamphetamine played any particular role in Mr Haynes's accident and the Court could not conclude that Mr Haynes took methamphetamine proximate to 1 September 1999. In any event, the prosecution did not establish that the taking of the drug was caused by an act or omission of the Company or that the alleged failure was causally related to the alleged detriment to safety suffered by Mr Haynes on 1 September 1999. 6 Training The Company had an Occupational Health and Safety Management System in place at the time of the accident and there was no evidence to suggest that the system was inadequate. 7 System of Work There was a system of work (the weekly checking of daily work sheets) and the evidence showed that Mr Haynes had appropriate rest periods. It was appropriate for the Company to rely upon the fact that its employees were required by clause 60 of the Motor Traffic Regulations 1935 (NSW) to keep accurate log-books. There was no evidence upon which the Court could conclude that the Company set delivery and pick up times thereby putting Mr Haynes under pressure on 1 September 1999 to keep driving overnight rather than to take needed sleep breaks. In particular, there was no evidence that Mr Haynes had to deliver his final load to the Coca-Cola depot in Sydney the next morning. In fact, under cross-examination Mr Everingham gave evidence that on one occasion, when he "was tired and the freight had to be in", the defendant advised him to go to bed. 27 Although the defendant accepted that the accident arose during the conduct of the Company's undertaking, he disputed that Mr Haynes's lorry, as it moved along the highway, was the Company's place of work for the purposes of s16(1) of the Act. The defendant stressed the difficulty of defining an appropriate boundary for such a moving "place of work" and noted that obligations to other users of the highway were imposed by other statutory schemes which create specific offences, such as dangerous driving. I note that dangerous driving is an offence under the Crimes Act 1900. 28 There were defences available under both subsections (a) and (b) of s53 of the Act in that the defendant could not (nor would it be practicable to) "police" an employee's actions during a rest period. I note that notwithstanding these submissions, the actual matter for determination is whether a defence is available under the Act to the Company, not to the defendant. The Court has considered the matter in that light. CIRCUMSTANTIAL EVIDENCE 29 The circumstantial nature of this prosecution warrants a brief summary of the evidentiary law relating to circumstantial evidence and the burden of proof in criminal proceedings. 30 The leading authority on circumstantial evidence is the decision of Dawson J in Shepherd v The Queen (1990) 170 CLR 573 (in the context of directions to juries), with which Mason CJ, Toohey and Gaudron JJ concurred. That decision was a detailed clarification of the joint judgment of Gibbs CJ and Mason J (as he then was) in Chamberlain v. The Queen (No. 2) (1984) 153 CLR 521, a decision which, in turn, referred with approval to the well known passage of Dixon J in Martin v.Osborne (1936) 55 CLR 367, at p 375. In Shepherd v The Queen, Dawson J held (at pp 579 - 580): Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately. [Appl Druett v The Queen (1994) 123 FLR 249; Appl Kenneally v New Zealand (1999) 166 ALR 625; Foll R v Kotzmann (1999) 105 A Crim R 243; Foll Wedd v The Queen (2000)115 A Crim R 205; Appl Mazzitelli v The Queen (2002) 135 A Crim R 132; Appl R v Whelan (2003) 56 NSWLR 454.] 31 Shepherd v The Queen has also been applied by this Court on several occasions, including by Hungerford J in WorkCover Authority of New South Wales (Inspector Peter Hannan) v Bitupave Limited, trading as Boral Asphalt [2000] NSWIRComm 50. In the following passage from Haynes v C I & D Manufacturing (1994) 60 IR 149 at 152, the Full Court of the Industrial Court of New South Wales referred with approval to the judgment of Dixon J in Martin v Osborne: Her Honour approached the assessment of such evidence [circumstantial evidence], correctly in our view, by reference to what was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne (1936) 55 CLR 367 at 375 - "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference." For ourselves, we would only add what Dixon J further said in that respect in the same passage (at 375): "In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued . The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed ." [Emphasis added] 32 Finally, the following admonition by the Full Court in Haynes v C I & D Manufacturing (at page 162) warns against the mistakes which can be made in cases which depend upon circumstantial evidence: Her Honour, as we observed earlier, made the critical finding the appellants had not established that the front end loader was parked on the hill and that the handbrake was either not applied, or only partially applied, thus allowing it to roll down the hill. Her Honour made the finding on the basis that those facts did not follow as a "rational inference" from the physical evidence, the circumstantial evidence in this case, which itself allowed various possibilities. Her Honour, in our view, in considering the circumstantial evidence, failed to make findings on that evidence as to what the circumstances were and from those circumstances so found to draw inferences as to what rationally followed; rather, her Honour drew inferences from the various pieces of circumstantial evidence, conflicting as some of it was but absent findings as to what evidence was accepted, and then concluded that that mix of circumstantial evidence did not make out the offences to the requisite standard. We have to say that in so doing her Honour misapplied what we see as the proper approach to the use of circumstantial evidence. FINDINGS Fatigue 33 Driving when fatigued is dangerous and can cause accidents: this assertion is often made but the physiological underpinnings are less frequently examined. In fact, this potentially fatal risk in the trucking industry in Australia has given rise to numerous governmental studies and regulatory initiatives in various jurisdictions over the years to protect long distance truck drivers and other users of public roads. I discuss one such scheme in New South Wales - the RTA network of Safe-T-Cams and the log-book regime - in detail later in this judgment. 34 Associate Professor Williamson's curriculum vitae included current research (funded by the Federal Office of Road Safety and the National Road Transport Commission) and major reports into strategies to counter fatigue in the long distance road transport industry; major consultancy projects concerning fatigue management programmes and practices for the National Road Transport Commission and NSW RTA and Australian Transportation Safety Board; reports on driver fatigue compliance regimes; and a demonstration project for fatigue management programmes in the road transport industry. She gave evidence explaining the development of fatigue, including chronic fatigue; the nature and quantity of rest required to countermand fatigue; and the effects of fatigue on driving. 35 Associate Professor Williamson explained that fatigue is most likely to occur following long hours of work. This is especially the case with night work. Chronic fatigue can develop over a series of long work days in the absence of adequate time for rest. In her report she stated: It is well-known that night work is likely to increase fatigue as it requires the person to work through the period in the daily rhythm (circadian rhythm) during which the body is most prepared for sleep, usually between midnight and 6am, and especially 2am to 6am. Working during this period typically requires much more effort to maintain adequate performance. Driving is particularly at risk during this period, as it requires high levels of sustained attention, yet sustained attention is one of the performance functions most affected during night work. Requiring high levels of effort in itself will also contribute to fatigue. Night work is also a problem as recovery sleep is taken during the daytime when the body is least ready for sleep. As a consequence, day time sleep is typically of shorter duration and poorer quality than night time sleep. This will also increase the likelihood of fatigue. 36 Associate Professor Williamson's evidence in chief reinforced her report: sleep is the only way to alleviate fatigue, and it takes longer periods of day sleep (as opposed to night sleep) to reduce a build-up of fatigue. Day-time sleep can be even less restorative for truck drivers in particular: Associate Professor Williamson stated that surveys of "two-up" drivers (drivers working in pairs) revealed that sleeping in a truck sleeper berth during the day did not provide ideal conditions for sleep, due to factors such as heat and noise. Nor will fragmented sleep be particularly restorative: an hour here or there would not restore someone who had been awake all night - it was important that sleep be taken in the longest continuous periods possible. 37 Associate Professor Williamson gave further evidence about the shortcomings of day-time sleep, or the reliance upon long recovery rest periods during the day: it does not coincide with our circadian rhythm. In particular, people find it very difficult to get to sleep in the morning (even if they have been up all night and are tired) and what sleep they do get at that time is very disrupted and comparatively short. Under cross-examination, she stated: Q. When you say the most important period, the question is whether or not he's got the opportunity to rest, isn't that it? A. I'm talking physiologically, it is between midnight and dawn at which your circadian rhythm is at your low point at which period you gain the most benefit from the rest and it's the period in which you are most likely to obtain rest. Just because you want to sleep at ten o'clock in the morning, doesn't mean that you will. In fact, in terms of what we know about propensity to sleep, it isn't uniform across a 24 hour period. We know there are periods of times when you're mostly going to sleep and the sleep is of a better quality and that's mostly 11, midnight and dawn, later in the evening. Somewhere between 8 pm to 12 am also is a high time when people are likely to sleep, but people are very unlikely to sleep at say 10 am, 8 am, 11 am, that period in the morning where most people find it very difficult to sleep unless you're very tired, and even when you do obtain sleep, it tends to be more much poorer quality and shorter duration. Q. But it depends also [on] your own capacity? A. Unfortunately it depends on being a human being. It's a physiological phenomena, we're not talking about what we want to do at will. Everyone will have a problem trying to get to sleep in the early morning, that is, when I say the mid morning period of 6 am to 12 pm period, no-one one [sic] sleeps it isn't what we're made to do. Even shift workers who've been on night shift, they will sleep because they're tired and it's been a long time since they've slept. Night shift workers are chronically unslept-undersleeped [sic]. They also tend to need longer to get the same amount of sleep, and the sleep they obtain is of poorer quality. So shift workers really do have sleep problems. 38 Further, under cross-examination Associate Professor Williamson stated that the only way to really restore an overnight deficit of sleep (either through lack of sleep or broken sleep) would be to have a consolidated restorative sleep, which she described as "8 to 10 hours of sufficient rest". In the context of cross-examination about Mr Haynes's work activities on 10 August 1999, Associate Professor Williamson stated that a consolidated, restorative sleep for Mr Haynes (assuming no sleep during the previous core period) would need be "somewhere between 6 or 7 hours of day sleep". Indeed, this need for a long continuous block of sleep every 24 hours is reflected in the daily six-hour continuous rest-break prescribed since the 1930s by regulation (discussed later) for long distance truck drivers. I infer from this evidence that the rest necessary to recover from a night-time sleep deficit must be a lengthy uninterrupted period of rest, longer than what would normally be understood to be a good night's sleep given the poorer quality of day-time sleep and the difficulties of getting to sleep during the day, notwithstanding the presence of fatigue. 39 Under cross-examination, Associate Professor Williamson repeatedly stressed the corollary to her evidence in chief that night work increases fatigue: sleep between midnight and 6am affords the maximum benefit. The fact that the daily six-hour continuous rest-break prescribed by regulation did not have to be taken at a particular time did not detract from her evidence: if a person was experiencing "a build-up of fatigue", ideally the restorative break would be taken between midnight and dawn. In fact, Associate Professor Williamson emphasised that regardless of the regulation's omission to specify the timing of the six-hour break, in her opinion the basic minimum needed to manage fatigue appropriately was a six-hour rest-break at night during the core period from midnight to dawn. Associate Professor Williamson stressed that this allowance was the bare minimum: it was something people could live with, but would nonetheless result in a build up of fatigue over a period of time if sleep was restricted to that amount (at that time) too often, or for too long a period without respite. 40 Associate Professor Williamson made it clear that a driver suffering from fatigue risks having an accident, and should not, as a matter of safety, be driving. She gave the following evidence under cross-examination: Q. Are you really suggesting that any time you spend when you haven't had in the immediate 24 hour preceding period appropriate sleep you shouldn't be doing anything, is that what you--? A. You should be sleeping. If you have been awake between midnight and dawn and working then the first available time is when you should at least attempt to sleep and you need a longer period of that daytime sleep in order to restore yourself and certainly a job like driving is the last thing that you should be doing when you are in that state of being fatigued. We know also - I mean, driving is a task which we don't do very well when you are tired unfortunately because of the nature of the task and because of the nature of what fatigue does to us. Driving requires us to pay attention, it's very boring, it's very monotonous. It requires us to pay attention moment by moment because we're steering the wheel and watching for things happening on the road, other vehicles, things jumping out onto the road, et cetera. What fatigue does to us, we know this for sure, it slows our reaction time and it impairs our ability to pay attention at all periods of time, the exact things that you need when you are driving, so a tired person should not be driving. Q. Well, you say that under ever [sic] circumstance, do you? A. Yes, I do. Q. So if a long distance truck driver has six hours midnight to 6am sleep--? A. Mmm. Q. -- every night but one during the week they shouldn't be driving the next day? A. I think it increases the likelihood that they will not cope with the task of driving. I mean, it depends to some extent how long they are driving and what time of day it is when they are driving, when they are tired and how long after they have been driving, but certainly someone who is tired and particularly someone who hasn't slept and is tired is at greater risk of not completing the task successfully and that is crashing. Q. Or somebody who is distracted by thoughts or problems at home? A. Well, we are talking about a different phenomenon entirely. Q. But it's the same type of problem distracted from driving, isn't it? A. A distraction is something that you can - you're aroused and alert whilst you might be distracted. Fatigue is a physiological state in which your ability to pay attention, be aroused, becomes diminished and you don't have volition or control over it. You can't control it and that's why people fall asleep at the wheel typically. They don't even know they've done it. Many people had this experience and have woken up and gone: Oh, my goodness, they hid [sic] the strip on the side of the road and suddenly realised they've been asleep. It's not a state you can will yourself out of so that's what makes it so dangerous because we can't tell when we are actually going to fall asleep and, furthermore, the state of being fatigued can impair your function even when you are not actually frankly asleep, that the task of having to pay attention starts to be diminished and you are just not as attentive, not as able - you don't have the capacity to pay attention at the level you need for doing the task so there's almost certainly a period before you actually fall asleep at the wheel when you're actually not doing as well as you should be if you were aroused and alert and this is unfortunate for us because our society assumes that we can just, by wanting to be able to do a task like driving but we can't and that's what's so dangerous about it. Q. Are you saying then that fatigue, no matter how created, just shouldn't drive if you are fatigued? A. Yes, in a similar way you shouldn't be drinking alcohol and driving. It has similar - it has affects on performance which are at the same level as alcohol once - certainly we know for sure now because there have been like four studies that have consistently showed that up to 18 hours without sleep is equivalent to on some performance measures and significantly they are things like how quickly you react and whether or not you can pay attention over long periods, about 18 to 19 hours, without sleep is equivalent to about a .05 blood alcohol reading. Q. Doctor, there's no 18 hour period here where you can say that Mr Haynes didn't get sleep? A. That's a good question. I'm not - I'd have to go back and look at that. That's something I didn't do. I can't say that for sure. Q. And the fact is that provided he's getting rest breaks if the rest breaks are sufficient they are restorative in terms of fatigue? A. The reason I mention that alcohol and sleep deprivation equivalent studies is more to demonstrate that the fatigue effect is important, that it's important at the same level as we consider alcohol and driving is important. So that the point is that fatigue can produce effects that are as significant as we acknowledge alcohol's effects on performance to be. That's the reason. Now there are lots of ways not just being awake for 18 hours that one can accumulate fatigue. and later under cross-examination: Q. You can't assert that just because he worked one particular occasion that the fact that he was on the road would mean he was likely to have a crash? A. You're not going to crash if you're not on the road. The point is that when you're tired and you venture on the road you have a higher risk of crashing and we have to face that. 41 Even more dangerous is the effect that fatigue has on drivers' abilities to recognise that they are engaging in a risky activity and that they should stop: A. [Associate Professor Williamson under cross-examination] We have a difficulty, we human beings, about dealing with fatigue because the more tired you become the less likely it is that you will be able to report and respond to that increasing fatigue. We know this very well. We see it when we ask people to rate their own fatigue and you find, as we have now with hundreds of truck drivers measured their self-estimated fatigue and we find out a number of things happen. You can see a truck driver who has just done many hours of truck driving without a break and he is still on a scale of zero to a hundred with the hundred being as tiredest as you possibly can be. You can still get many truck drivers who only count themselves at around 60 for example and lose the ability to differentiate that I am really much much tireder than I was before. It seems, and I am emphasising here, it seems that people, as they get more tired, sort of start to not really use the scale if you like. They will acknowledge that I am tired but I can continue. They lose the ability to really respond appropriately to the amount of fatigue that is warranted, so the more tired you become the less reliable you are as someone who can respond safely to that fatigue and do things like stop and take a break and quite often what people will do, because it's aversive, it's not a pleasant experience to be very tired, you want it to finish. What often happens is that people try harder and go a little further despite the fact they are fatigued, thinking they can manage, whereas because they are fatigued we know they can't. 42 It is clear from Associate Professor Williamson's expert evidence, and I have no hesitation in finding beyond reasonable doubt, that driving whilst fatigued is a risk to health and safety. In particular, I find that: (a) Long hours of working, especially at night, lead to fatigue; (b) Six hours of sleep during the core period of midnight to 6am (or an equivalent restorative sleep during day time, which may take longer due to the deficiencies of day time sleep) is the bare minimum to manage fatigue appropriately; (c) The high levels of attention required for driving will also contribute to fatigue; (d) Chronic fatigue can develop over a series of long work days in the absence of adequate rest; (e) Sleep is the only way to effectively alleviate fatigue; (f) The most beneficial, restorative sleep is taken between midnight and 6am. Longer periods of day-time sleep are necessary to reduce a build-up of fatigue; (g) Driving when fatigued is extremely dangerous because the skills necessary for driving - paying attention moment by moment - are significantly impaired by fatigue; (h) The nature of fatigue makes this situation even more dangerous: the more tired a driver becomes, the less able they are to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop; and (i) Fatigued drivers have a higher risk of crashing. Mr Haynes's last week: preliminary observations 43 Having examined the expert evidence relating to the general risks of driving when fatigued, I will review the evidence of Mr Haynes's work activities during his last week. Such a review serves a dual purpose. First, the defendant conducted his case forcefully on the basis that if the prosecution could not establish to the criminal standard that Mr Haynes was fatigued at the time of the accident, it must fail. Although I disagree with this proposition as a matter of law for several reasons (as mentioned at the beginning of the judgment) I will examine the factual question in deference to the defendant's insistence on its importance. Such an examination will also resolve what I consider to be the relevant factual issue: whether Mr Haynes was at risk of being fatigued. 44 It is clear from the evidence of Associate Professor Williamson that Mr Haynes's work and rest over some days must be examined in order to determine whether or not he was fatigued on 1 September 1999. The defendant contended that such an examination could not go further back than the weekend of 28/29 August 1999, given the substantial period of rest available during that weekend which would nullify any fatigue arising from the previous week's work. 45 I partially agree with the defendant's submission in this respect. The analysis of Mr Haynes's last week of employment supports the conclusion that in the period immediately preceding Saturday, 28 August, 1999, he was fatigued. However, there was no dispute that Mr Haynes had an uninterrupted rest period of 24 hours from Saturday morning to Sunday morning. On the evidence, there is no reason to doubt that this rest period could have been sufficient to negate that fatigue. Accordingly, any analysis of Mr Haynes's activities to determine whether Mr Haynes was actually fatigued at the time of the accident should commence after that time. However, the examination of the period of work immediately prior to the Saturday is relevant to an overall examination as to whether the pattern of work undertaken by Mr Haynes under the Company's systems of work was such as to create a risk of fatigue. 46 Secondly, in view of the charges brought in this matter, it is vital to develop a clear picture of the Company's working operations, particularly in a case such as this where the evidence supports a conclusion that there was no effective system to ensure against the risk of fatigue (noting the perfunctory nature of such systems as there were). A clear analysis of the day-to-day work of Mr Haynes reveals both the operation of the "system" in practice, and its manifest failures. More general evidence in the proceedings results in the same conclusion. Thus, following this detailed analysis of the manner in which work was actually performed for the Company by Mr Haynes, I will examine the safety procedures and systems which were in place at the time by reference to the evidence of other drivers concerning the relevant policies, practices, procedures and ultimately the systems operated by the Company during Mr Haynes's employment. 47 In order to reconstruct Mr Haynes's last week in what is essentially a circumstantial case, in addition to relying on direct evidence such as daily worksheets, load manifests and fuel records, it is appropriate to draw certain inferences and rely on evidence which requires explanation: Safe-T-Cam records; Mr van den Dool's expert report; telephone records; evidence relating to loading, unloading, queuing and washing the truck; and evidence explaining the log book regulations at the time. Safe-T-Cam Records 48 The RTA has established a system of cameras, called "Safe-T-Cams", along the main traffic routes of New South Wales to monitor the speeding and rest-breaks of heavy vehicle drivers. Mr Richard O'Neill, Safe-T-Cam Co-ordinator for the RTA, gave evidence that the location of the camera sites is such that it would be very time-consuming for any vehicle travelling interstate to avoid two or more camera sites. The system automatically identifies vehicles over 4.5 tonnes at each camera site and is designed to record a digital image of the vehicle, plus its registration number, date, time and direction of travel. It also automatically calculates the time that the vehicle took to travel between any two camera sites and compares this with "allowable travel times" based on the fastest route (taking speed limits into account) and the half-hour break required by the log-book system for any journey longer than five hours. If the vehicle has travelled between two sites faster than the allowable travel time, an infringement notice is issued. 49 The RTA calculates the "fastest route" for the purposes of the Safe-T-Cam system by conducting regular trials with a Holden Commodore Sedan (which can maintain nominated speed limits more accurately than a heavy vehicle) fitted with cruise control, calibrated speedometers, an independently calibrated odometer and travel meters and a global positioning system. The car is driven along a variety of routes at the maximum legal speed on cruise control in ideal conditions. The route relied upon to determine the allowable travel time is the quickest, but not necessarily the shortest as measured by distance. Mr O'Neill gave evidence under cross-examination of the following allowable travel times (excluding seconds) between Safe-T-Cam sites: · Tweed Heads to Harwood - 1 hour, 57 minutes; · Harwood to Kew - 3 hours, 7 minutes; · Kew to Wyong - 2 hours, 38 minutes; · Bargo to Marulan - 42 minutes; · Marulan to Gundagai - 2 hours; · Gundagai to Albury - 1 hour, 35 minutes 50 Mr O'Neill was cross-examined about the procedure adopted by the RTA before issuing an infringement notice: once the Safe-T-Cam has identified a transgression, images of the vehicle are manually inspected to rule out inaccuracies or errors such as the misreading of a number plate. Only then does the RTA issue an infringement notice. Mr O'Neill agreed that he had not manually checked the images relating to the Safe-T-Cam sightings of TWW-240 produced to the Court (other than two relating to the accident), and nor had anyone on his behalf. Accordingly, he conceded that "on the face of it, without further analysis", he could not say that the entries of the movements of TWW-240 were accurate. 51 Without more, Mr O'Neill's concession would significantly reduce the weight to be attached to the Safe-T-Cam sightings of TWW240. However, I have the benefit of further analysis and corroborative evidence and am satisfied of the accuracy of the records produced to the Court indicating the times that Mr Haynes's prime mover registration number TWW240 passed through various Safe-T-Cam sites in the week preceding his death. These records accord with the destinations and dates recorded in Mr Haynes's daily worksheets, which in turn are supported by mobile telephone records, fuel records and load manifests. There was no evidence to suggest that any of the Safe-T-Cam sightings in Mr Haynes's last week were inaccurate, or inconsistent with the journeys he made in that week, not one of which was challenged by the defendant. In fact, the defendant relied extensively on the Safe-T-Cam sightings times in submissions. Mr van den Dool's Evidence: Distance Travelled And Time Taken 52 Mr van den Dool prepared a report summarising Mr Haynes's work activities during the eight weeks he worked for the Company, and estimating the time spent performing these activities. I do not propose to rely upon Mr van den Dool's evidence relating to work activities such as washing the truck, loading or unloading which do not properly fall within his area of expertise. However, Mr van den Dool's expertise as a traffic engineer (which was not challenged by the defendant) directly relates to the distances travelled by Mr Haynes and the time taken to drive such distances. Consequently, I intend to focus on this aspect of Mr van den Dool's evidence. 53 Mr van den Dool found that a comparison of odometer readings, the distances recorded by Mr Haynes on daily worksheets, and the distances recorded on Mr Haynes's Employee Earnings Record yielded remarkably similar results: over the eight week period (during which Mr Haynes drove approximately 36,000km), the differences between the odometer readings, daily work sheets and Employee Earnings Records were no greater than 0.2%, or 86km. This is not surprising, given that these three measurements all derived from the information Mr Haynes recorded on his daily worksheets. The distance measured on a map (using a detailed road atlas) of the most likely travel route (based on evidence placing Mr Haynes at various locations such as refuelling dockets, load manifests and Safe-T-Cam sightings) also provided a similar result, which varied by 1.8% over the eight week period (showing 642km less than the daily work sheets). 54 Mr van den Dool explained this difference on the basis that the precise routes taken by Mr Haynes, particularly in urban areas, were not known. Mr Hodgkinson suggested to Mr van den Dool in cross-examination that the difference might be ascribed to driving which was not related to work (for example, a short trip taken by someone to check the brakes). Mr van den Dool conceded that this was possible, but reiterated the statement in his report that in his expert opinion the odometer reading was the most simple, reliable measure. There was no evidence to contradict Mr van den Dool's expert opinion that the odometer was the most reliable record of distance, nor his expert opinion on the reason for the disparity between the odometer readings and the map-measured distance based on most likely routes, nor did the defendant make any such submission. I further note that Mr Hodgkinson's suggestion that the additional 642km shown on the odometer could be explained by driving unrelated to work does not tally with the close correlation between the odometer readings and the work-related kilometres for which Mr Haynes was paid, recorded in the daily worksheets (which varied by only 0.2% (or 86km) over approximately 36,000km). For these reasons, I accept Mr van den Dool's expert opinion on these points. 55 As discussed, Mr van den Dool concluded that the most reliable measure of distance travelled was the odometer reading: the data was the most simple and reliable, and less prone to error. The odometer reading, however, was not as informative as the distance measured on the map to assess journeys on a day to day basis (because the reading was not recorded that frequently). Accordingly, Mr van den Dool scaled each map-based distance measurement up by 2% so that the total equalled the total odometer analysis, while still providing the greater level of detail afforded by the map-based distance measurements. Mr van den Dool called this the "Best Estimate Travel Distance" which he used as the basis for his analysis of Mr Haynes's travel times. I am satisfied beyond reasonable doubt that this estimate, calculated as it was by Mr van den Dool over an eight-week period in order to maximise the strengths of both the odometer readings (reliability) and the map-based measurements (level of detail), provides a reliable description of the distances driven by Mr Haynes during the final week of his employment with the Company. 56 Armed with a reliable calculation of distance, Mr van den Dool estimated the time it would have taken Mr Haynes to drive that distance by assuming speeds of 100km/h on freeways; 90km/h on highways; and 50km/h on urban roads. He adopted the classification of the roads from the large scale road maps he used to calculate distance. This travel time estimate was then cross-checked against Safe-T-Cam records and allowable travel times. 57 Mr van den Dool then subjected the time estimates to sensitivity analysis, to indicate the effect of three key assumptions on travel times: (a) eliminate the scaling which he applied to reach the Best Estimate Travel Distances (thereby reducing the distance to the map-based measurement); (b) halve the estimated urban travel distances (allocating half of the urban travel distance as freeway distance instead); and (c) reduce the speed in each category of road by 10km/h. The first two sensitivity analyses would reduce the total travel time; the last would increase it. The second sensitivity analysis was chosen, as Mr van den Dool explained in cross-examination, to allow for variations and uncertainties in urban travel (which distances he described as "very small" compared to the highway and freeway distances travelled by Mr Haynes): the routes taken in urban areas were not known, nor was every destination address, and urban areas contain many data points. The effects of each of these variables were calculated as a single figure across the eight-week period (not in relation to individual journeys or days), which was then calculated as an average variation for week. Hence, application of the first sensitivity test reduced the driving hours by one hour per week; and application of the second reduced the driving hours by two hours per week. In view of Mr Haynes's average weekly driving hours calculated by Mr van den Dool over the eight week period (66.44) it is apparent that the two sensitivity tests which reduce driving time are relatively insignificant. Application of the third test, which increased the average weekly driving hours by 7.5 hours, was somewhat more significant. However, neither party advanced any reason to deviate from the assumptions preferred by Mr van den Dool in his detailed calculations of Mr Haynes's journeys (which were made without the application of any of the sensitivity tests) and it would therefore be inappropriate to do so. Telephone Records 58 The telephone records for several telephones were produced to the Court: Mr Haynes's truck telephone (014 610 531); Mr Haynes's private mobile telephone (0413 726 764); Ms Campbell's fixed telephone (02 6642 4031); the Company's fixed telephone (02 4421 7111); Mr McKellar's mobile telephone (018 669 122) (although his employer, who produced the records to Inspector Templeton, did not know whether Mr McKellar was using it for the entire period for which records were produced, viz 6 July to 6 September 1999, the defendant never raised this issue); and the number (02 6732 4801). Mr Skinner attested from the bar table that although the records for this last number were in someone else's name, it was Mr McKellar's fixed home telephone and the defendant never suggested otherwise. The records for Mr Haynes's truck telephone described the location of the telephone when calls were made from it. Loading, Unloading, Queuing and Washing the Truck 59 The prosecution tendered a copy of the Company's "Loading and or Unloading Agreement" signed by Mr Haynes fixing the claimable hours to load or unload as follows: General 1 hour Bricks to or form a yard .5 hour Bricks to a building site 1 hour Tipper .5 hour Container .5 hour Tanker 1 hour Parcel Pickup 1.5 hours 60 The defendant stated in the WorkCover interview that: ...the loading and unloading done at our depot or other depot is done usually by yard staff and forklift drivers. When a driver comes to our yard at Bomaderry our yard staff unload and reload the truck as there is a drivers room available with beds, shower facilities and toilet, a stocked fridge and a quantity of cereals milk and bread facilities. They can go there and have a sleep and something to eat at no cost to them. 61 The evidence established that, in fact, loading or unloading often took longer than the claimable hours allowed by the Company: Mr McLennan estimated that it could take from one hour to four hours each time. Although he agreed that in order to load he did not have to drive the fork lift or put the cargo on the truck, Mr McLennan stated that he had to do whatever was required to ensure that the load was safe: tie it down, put the gates in place and "close the curtains". To unload the truck, he performed the same actions in reverse, noting that "a lot of forklift drivers won't get off it to do anything". There was direct evidence that the time allowed in the agreement for loading bricks from a yard was insufficient: both Mr Jones and Mr Everingham agreed that "if you knew what you were doing", this would take an hour. 62 Mr Hodgkinson suggested to Mr McLennan in cross-examination that unloading at the Company premises at Bomaderry was not as time-consuming, because of the Company yardsmen, but Mr McLennan replied that the yardsmen would not unload by themselves, and that on occasion he had driven a forklift at the Company's yard. Mr Jones stated under cross-examination that it was only on very few occasions that the yardsmen would assist with the truck washing, but he was not questioned as to their assistance loading and unloading. 63 Ms Campbell gave evidence that she accompanied Mr Haynes in the truck to Brisbane (while he was employed by the Company) six or seven times, and on "many occasions" observed "unloading" taking hours, because each truck had to keep its place in the queue: if the driver slept, and failed to move forward, he would be overtaken (a manoeuvre known in the industry as "duck-shoving"). This evidence suggests that Ms Campbell did not distinguish between loading or unloading and queuing. Ms Campbell was unable to describe the particular depots or dates upon which this lengthy unloading occurred and conceded under cross-examination that "there would have been times" when he could drive straight into the depot, although she could not remember such a time. In relation to queuing to load, Ms Campbell gave this evidence: Q. I was referring you to the unloading situation; did you make any observation in relation to waiting to load the truck, was there a queue system then as well? A. Yeah, I think - I don't know how to answer. He had to wait around till trucks loaded unless he loads it himself too, so. 64 In evidence which reinforced the evidence of the truck drivers that loading and unloading were time-consuming tasks, Associate Professor Williamson stated under cross-examination that two national surveys of 1,000 truck drivers concluded that they spend on average between five to nine hours a day loading and unloading. 65 As indicated by Ms Campbell's evidence referred to above, queuing could also be time-consuming, and was inimical to rest. Mr McLennan gave evidence that at some large warehouses drivers had to queue to unload, which necessitated staying awake in the truck to ensure that they did not lose their place. In his evidence in chief, Mr McLennan estimated that at some depots queuing could take eight hours; in cross-examination, he advised that queuing time varied depending upon whether the depot was unloading quickly, how many forklifts were being used and how much storage was available. 66 Clearly, without direct evidence, it is not possible to estimate with any certainty the length of time spent queuing, loading and unloading by Mr Haynes in his last week. What can be stated with confidence is that in his last week (ending 1 September 1999) 5468km were recorded in Mr Haynes's Employee Earnings Record and it appears that he was attributed (and paid for) 8.5 hours of loading or unloading in accordance with the "Loading and or Unloading Agreement". This is supported by his pay slip for the week ending 1 September 1999 which recorded 5468km, seven "general" loads, one "bricks to yard" load and one "bricks to site" load. It is also consistent with the number of loads described in the detailed analysis below, but the evidence suggests that there were in fact five "general" loads, three "bricks to site" loads and one "bricks to yard" load. The discrepancy does not affect the claimable hours allowed by the Company, and I have adopted these time estimates (in the absence of direct evidence to the contrary) in calculating Mr Haynes's working hours although it is almost certain that he spent considerably more time loading, unloading and queuing. There was direct evidence on the time taken to load bricks (see below) which I have preferred to the Company allowance. 67 Mr McLennan gave evidence that truck-washing was also time-consuming: the Company required the trucks to be cleaned so that they appeared "brand new as if it had just come off the showroom" and it could take "all day if you do it properly". Under cross-examination Mr McLennan confirmed that he was not happy about the requirement to keep the truck in "showroom condition" all the time: "I don't mind washing the truck, but keeping it in showroom condition all the time as well as driving, taking the amount of time it takes to keep them like that - it takes a long time". 68 The importance to the Company of truck washing (and the corresponding unimportance of drivers' rest) was highlighted by further evidence of Mr McLennan and Mr Jones under cross-examination and in re-examination that the truck had to be washed whenever a driver was in the Company's Bomaderry yard and that the drivers were woken at 7am (or, according to Mr Jones, 6am), regardless of when they had arrived and fallen asleep so that they could help unload or wash the truck. Mr McLennan rejected Mr Hodgkinson's suggestion in cross-examination that the requirement to wash the truck in the yard was only on the basis that it be washed once a week, replying that "it was washed as much as you could wash it". Mr Everingham corroborated this evidence, stating that the trucks had to be washed thoroughly once a week, and had to be kept spotless in the meantime. Mr Everingham rejected Mr Hodgkinson's suggestion in cross-examination that this would only take two to three hours, insisting that it would take no less than six hours, and further advising that they were required to black the tyres: there was a 44 gallon drum of tyre black in the Bomaderry yard for this very purpose. Ms Campbell's evidence (discussed under the heading 29 August 1999) also estimated that it would take six hours, and refers to the requirement to black the tyres. 69 Mr McLennan's evidence about being woken was corroborated by the following evidence in chief of Mr Jones: Q. If you got there [to the Bomaderry yard] then between 7 o'clock at night or whenever they shut and six o'clock in the morning, some time in the night, did you have access to the drivers' room? A. Yes. Q. And if you went in there and went to sleep, were you allowed to sleep on until you wished to get up? A. No. All the drivers were woken up at six o'clock in the morning to unload the truck. Q. What if you had only got there at five in the morning? A. You would still get out of bed at six in the morning. Q. What if you said "I have only got here an hour ago"? A. It was never discussed. It was unload, reload and get going. Q. Did you have to wash the truck? A. Yes. Q. How frequently? A. Every weekend and every time we went to the yard the truck was washed. Mr Jones agreed that the truck had to be washed to "showroom" condition and stated that this took between four to five hours. Under cross-examination, Mr Jones insisted that he was woken at 6am, not 7am; although the yard may have "opened" at 7am, the defendant and his son arrived at 6am. 70 I accept the evidence that the drivers were required to wash the truck once a week and each time they were in the yard at Bomaderry and that this task took approximately six hours. I further accept that drivers who slept in the yard were woken no later than 7am, regardless of how long they had slept, so that they could help unload or wash the truck. The Log-Book Regulations 71 Mr Montgomery, Vehicle Inspector for the RTA, gave evidence of the RTA regulations in force in September 1999 relating to log-books. Drivers of heavy vehicles were obliged to carry and complete each day a log-book recording journeys of more than 100km from their base including driving and non-driving work activities and rest periods. Drivers were required to send the duplicate yellow pages of their log-books to their employer within 21 days. Employers committed an offence under Division 5 of the Motor Traffic Regulations 1935 (NSW) if they failed to keep these driving records for at least 12 months. The regulation of rest and work periods was described by the following tables in the front of each log-book: Truck Drivers In any period of … … a driver must not drive and work for more than a total of … … and must have a rest period of no less than … 6 hours and 30 minutes 6 hours 30 minutes, either as one period or two periods of 15 minutes each 24 hours 14 hours (maximum 12 hours driving) 10 hours including one continuous period of 6 hours (see note 2) (see note 1) 168 hours 72 hours 96 hours including one continuous period of 24 hours (see note 3) Notes for tables: 1. The 24 hour period means any period of 24 hours. It does not necessarily mean midnight to midnight. 2. These continuous rest periods must be taken away from the vehicle unless the vehicle is fitted with an approved sleeper berth. 3. Rest periods of 24 hours or more must be taken away from the vehicle. 72 Each log-book contained the following definitions of work and rest: Working Working is the time spent driving a commercial bus or heavy truck and includes: (a) loading or unloading a commercial bus or heavy truck; or (b) inspecting, servicing or repairing a commercial bus or heavy truck, inspecting or attending to the load on a commercial bus or heavy truck, or attending to the passengers of a commercial bus; or (c) cleaning or refuelling a commercial bus or heavy truck; or (d) performing marketing tasks in relation to the operation of a commercial bus or heavy truck or; (e) helping with or supervising, an activity mentioned in paragraphs (a) to (d); or (f) recording information or completing a document in accordance with the Regulations or in relation to the operation of a commercial bus or heavy truck. Rest Rest is a continuous period of time of at least 15 minutes where a driver is not working. Rest periods of 5 hours 30 minutes or more must be taken away from the commercial bus or heavy truck unless the commercial bus or heavy truck is fitted with an approved sleeper berth. Rest periods of 24 hours or more must be taken away from the commercial bus or heavy truck. 73 There was an exception to the log-book regime called the "fatigue management" scheme which permitted drivers to drive for 14 hours in a 24 hour period, provided that the employer and the driver had satisfied various requirements. Mr McLennan gave evidence that in September 1999 the Company was not accredited under the "fatigue management" scheme and the defendant did not contend otherwise. Mr Haynes's last week Thursday 26 August 1999 74 Mr Haynes was in Melbourne on Wednesday 25 August 1999 and remained there at the start of 26 August 1999. His daily worksheet for 25 August 1999 reads "Held over to [sic] late to load" and there is no evidence that he performed any work between midnight and 8.12am. Accordingly, in accordance with the defendant's submissions, I am prepared to assume that he rested during these 8 hours, including the entire core sleep period described by Associate Professor Williamson (between midnight and 6am). Associate Professor Williamson also made this assumption in her report. 75 Mr Haynes's daily work sheet recorded: · "M/T to Bendigo Brick" (168km) · Bendigo Brick: load 1 x load of Brick/[Purs] · (put on Sydney load) · (Maroneys T/sport) · Travel to Blacktown (890km) 76 Mrs Hitchcock sent a facsimile dated 2 September 1999 to "Brenton" at Scotts Transport Industries (the Brenton Facsimile) describing Mr Haynes's trips in his last week. Her description of 26 August 1999 was consistent with Mr Haynes's worksheet: she wrote that he loaded at Bendigo and travelled to Sydney. 77 Mr Haynes's truck telephone records for this day show telephone calls to the Company's Bomaderry office at 8.12am from Somerton (I take judicial notice of the fact that this is an outer suburb of Melbourne) and at 1.18pm from Bendigo. The Company loading document completed by Mr Haynes on this date records the consignment of a load of bricks from Bendigo Bricks, Bendigo to Amber, 98 Richmond Road, Blacktown. Messrs Jones, Everingham and McLennan gave consistent evidence that a drivers' work in loading bricks from a brickyard would take an hour "if you knew what you were doing". 78 The Company's Shell invoice for August 1999 shows that Mr Haynes bought 518.45L of diesel on 26 August 1999 at South Gundagai and that the purchase was approved at 9.57pm. Mr Jones gave unchallenged evidence, which I accept, that refuelling usually took half an hour. The Safe-T-Cam camera at Gundagai recorded Mr Haynes's prime mover registration number TWW240 heading north at 10:55pm. 79 According to Mr van den Dool's estimates, Mr Haynes's journey from Melbourne to Bendigo comprised 151km (which would have taken two hours to drive) and his journey from Bendigo to Gundagai comprised 491km (which would have taken 5 hours 20 minutes to drive). 80 At 4.03pm a call was made from the Company's fixed telephone line to Mr Haynes's truck telephone. The telephone records show the following additional calls involving Mr Haynes on this day: · From Mr Haynes's mobile telephone: calls to Ms Campbell at 7.32am, 11.04am and 11.37am; and calls at 1.18pm, 1.35pm, 4.04pm, 6.25pm (two calls), 7.51pm and 9.58pm; · From Ms Campbell's fixed telephone to Mr Haynes: calls at 7.34am (3 minutes); 11.07am (2 minutes 32 seconds); 11.40am (2 minutes 39 seconds); and 9.07pm (1 minute 32 seconds); and · From Mr McKellar's fixed telephone to Mr Haynes's truck telephone, a call at 9.09am (4 minutes 20 seconds). 81 I am satisfied beyond reasonable doubt that in the 14 hours 43 minutes between 8.12am and 10.55pm on 27 August 1999 Mr Haynes spent a minimum of 8 hours 50 minutes working, broken down as follows: 7 hours 20 minutes driving; 1 hour loading bricks; and 30 minutes refuelling. This leaves a maximum of 5 hours and 53 minutes available for potential rest: when added to my acceptance of the defendant's proposition that Mr Haynes may have rested for a full 8 hours from midnight, I accept the defendant's written submission that Mr Haynes could have had approximately 13 hours' rest on this day and in fact find that there was a maximum of 13 hours and 53 minutes available for rest. However, the defendant's description of rest time in such a lump sum is misleading: after the unbroken 8 hour rest from midnight, it is clear that the remaining 5 hours 53 minutes of potential rest between (approximately) 8am and 11pm yielded at most one maximum continuous period (circumscribed purely by work activities) of 3 hours - either in the morning, if Mr Haynes loaded the bricks after the telephone call at 1.18pm or 3 hours in the afternoon/early evening, if he loaded the bricks before the telephone call at 1.18pm - and one continuous period of two hours. Of course, Mr Haynes would have had to allow time for lunch and dinner during these rest periods. Friday 27 August 1999 82 The Safe-T-Cam camera at Bargo recorded Mr Haynes's prime mover registration number TWW240 heading north at 2.41am. Mr van den Dool estimated the distance between the two Safe-T-Cam sightings as 299km, and estimated the travel time to be 3 hours. This suggests that Mr Haynes may have had a truncated rest period of 46 minutes between Safe-T-Cam sightings. 83 Mr Haynes's truck telephone records for this day show telephone calls to the Company's Bomaderry office at 7.22am, 8.28am and 8.56am from Blacktown. Calls were also made to a different number at 10.53am from Blacktown and at 2.21pm from Penrith. A call was made from the Company's fixed telephone number to Mr Haynes's truck telephone at 10.28am. 84 The telephone records show the following calls for this day, in addition to those listed above: · From Mr Haynes's mobile telephone: calls at 1.14am, 6.51am, 6.53am, 8.58am, 9.02am, 1.11pm (to Ms Campbell), 3.56pm (to Ms Campbell), 4.30pm (to Ms Campbell), 4.31pm (to Ms Campbell), 6.03pm, 6.06pm, 6.10pm, 6.11pm, 6.15pm, 8.40pm, 8.41pm, 8.42pm, 9.17pm, 9.31pm, 9.33pm, 9.35pm, 9.36pm, and 9.37pm; · From Ms Campbell's fixed telephone to Mr Haynes's truck telephone: calls at 7.18am (3 minutes 54 seconds); 1.13pm (8 minutes 54 seconds); 4.33pm (9 minutes 32 seconds) and 9.58pm (17 minutes 48 seconds); and · From Mr McKellar's fixed telephone to Mr Haynes's truck telephone, calls at 4.09pm (5 minutes 38 seconds) and 4.18pm (8 minutes 9 seconds). 85 Mr van den Dool estimated the distance between Bargo and Blacktown as 82km, and estimated the travel time to be 57 minutes. Accordingly, between the Safe-T-Cam sighting at Bargo at 2.41am and Mr Haynes's telephone call to the Company at 7.22am, Mr Haynes had the opportunity for a maximum of 3 hours and 44 minutes rest (which was available for sleep), assuming he did not unload his bricks before the telephone call at 7.22am. Combined with the potential 46 minutes' rest between Safe-T-Cam sightings, it is apparent that the maximum available period for sleep during the core period described by Associate Professor Williamson between midnight and 6am was 4 hours 30 minutes. However, as Associate Professor Williamson noted in her report, the two periods were separated by the Safe-T-Cam sighting at Bargo at 2.41am: the maximum unbroken sleep available to Mr Haynes in the core period, having worked a minimum of 12 hours 47 minutes in the preceding 24 hours, was 3 hours 44 minutes. It is clear that, in breach of the log-book requirements, Mr Haynes could not have had a continuous rest period of 6 hours in the 24 hour period commencing 8am Thursday 26 August 1999. I would also make the obvious comment at this point that these times make no allowance for the fact that it takes time to fall asleep, and time to wake up before the recommencement of work duties or that the capacity to sleep may be affected by a variety of factors including the time sleep is attempted and other factors associated with the environment in which it is taken by a truck driver, such as heat or surrounding noise. It is unlikely that every minute of these periods could have been spent sleeping. 86 In the Brenton Facsimile, Mrs Hitchcock wrote that Mr Haynes unloaded and "reloaded ex Scotts and travelled to Grafton". Mr Haynes's daily work sheet recorded a total of 730km with the following entries: · "unload ex Bendigo at Blacktown Sydney" · M-T to Scotts Sydney (33km) · Scotts load 1x load of [general] · Travel to Grafton (697km) 87 The Company loading document completed by Mr Haynes on this date records one general load from Kasar Packaging 132-134 Andrews Road, Penrith, to Kasar Packaging, 24 Kanilpa St, West End, Queensland. Mr van den Dool estimated the distance between Blacktown and Scott's depot at Penrith to be 20km with a travel time of 24 minutes. 88 Mr van den Dool estimated the distance between Scotts depot at Penrith and Wyong to be 92 kilometres, which he estimated would take 1 hour and 13 minutes to drive. Mr Haynes was again recorded by Safe-T-Cam heading north at Wyong at 5.56pm. 89 Based on the assumption that Mr Haynes unloaded at Blacktown after 7.22am (to assume, in the defendant's favour, the maximum amount of rest available during the core hours between midnight and 6am) I am satisfied beyond reasonable doubt that during the 10 hours and 34 minutes between 7.22am and 5.56pm Mr Haynes performed the following minimum amount of work: 3 hours 37 minutes comprising 1 hour 37 minutes driving; 1 hour unloading; and 1 hour loading at Penrith. Of course, without any evidence of the exact periods of queuing at the depots attended by Mr Haynes, this allows no time for queuing. However, the consistent, uncontradicted evidence of the truck drivers, corroborated by Ms Campbell, that queuing could be (and frequently was) time-consuming, and the absence of any evidence to the contrary, suggests that it would be reasonable to infer that Mr Haynes would have spent some time during this period queuing. 90 Making no allowance for queuing, there were 6 hours and 57 minutes of potential rest but I note that this time was necessarily broken by work duties: Mr Haynes was at Penrith at 2.21pm. Even assuming, in favour of the defendant, that he loaded at Penrith after 2.21pm (to allow the maximum unbroken period of rest), the evidence of telephone calls makes it clear that this time would not have been available for sleep: there were work-related telephone calls during this period at 8.28am, 8.56am, 10.28am and 10.53am. The maximum period uninterrupted by work duties would have been 3 hours and 28 minutes between 10.53am and 2.21pm. In fact, this period coincided with lunch-time and was interrupted by a telephone conversation with Ms Campbell at 1.13pm (8 minutes 54 seconds). Realistically, the maximum potential recuperative day-time sleep was in the order of two hours: less than a quarter of the "8-10 hours of sufficient [day-time] rest" Associate Professor Williamson described as necessary to restore broken sleep overnight to prevent the build-up of fatigue. 91 Again, although the defendant's calculations for this day agree with my own (and I therefore accept his submission that Mr Haynes worked for a minimum of 7 hours 16 minutes up to the Safe-T-Cam sighting at Wyong at 5.56pm), the ensuing bald statement in written submissions that "Mr Haynes could therefore have had between approximately 13.63 hours and 16.74 hours rest period, depending on whether the 3.11 hours driving period between Wyong and Kew is allocated to 27 or 28 August 1999" is misleading. It takes no account of how the time was divided up into broken segments; the length of continuous rest breaks and when they may have occurred (necessarily, on Associate-Professor Williamson's evidence, affecting the likelihood and quality of sleep); whether it coincided with necessary meal times (which would interfere with sleep); nor of any sleep deficit during the core period which would need unbroken restorative rest: all critical to any assessment of fatigue. In fact, by the time Mr Haynes reached Wyong, the longest continuous break taken by him in the 34 hours since 8am Thursday 26 August 1999 was 3 hours 44 minutes: substantially less than a continuous 6 hours in 24. It is clear that, at this point, Mr Haynes was at risk of driving when fatigued. What is more, I am satisfied beyond reasonable doubt that, at the time Mr Haynes drove through the Wyong Safe-T-Cam at 5.56pm, he was actually fatigued, and this significantly impaired his ability to drive safely and his ability to respond safely to that fatigue by electing to take appropriate rest breaks, or to stop, as described by Associate Professor Williamson. Mr Haynes was exposed to present danger on this occasion, as distinct from potential danger. Saturday 28 August 1999 92 The records for Mr Haynes's truck telephone and his mobile telephone do not show any calls made this day. This is described as a "day off" in the Brenton Facsimile and Mr Haynes did not complete a Daily Work Sheet. 93 The Safe-T-Cam camera at Kew recorded Mr Haynes's prime mover registration number TWW240 heading north at 3.32am. Mr van den Dool estimated that the distance between Wyong and Kew was 286km, which he estimated would take 3 hours 6 minutes to drive. Accordingly, Mr Haynes may have had a continuous rest period of 6 hours and 30 minutes between Wyong and Kew, with a maximum period of 3 hours 30 minutes sleep during the core period of midnight to 6am. Mr McKellar's fixed telephone records show a call to Mr Haynes's truck telephone at 1.23am for 11 seconds. The brevity of the call suggests that Mr Haynes's telephone may have been turned off during a sleep period. 94 Mr van den Dool estimated the distance between Kew and Grafton to be 273km, which he estimated would take 3 hours 2 minutes to drive. Accordingly, the earliest Mr Haynes could have arrived home at Grafton would have been 6.34am. Ms Campbell could not remember what time he came home. In fact, telephone calls from Ms Campbell's fixed telephone to Mr Haynes's truck telephone at 8.05am (2 minutes 59 seconds) and from Mr McKellar at 8.13am (9 minutes 44 seconds) suggest that he did not get home until later. 95 I am satisfied beyond reasonable doubt that between 5.56pm 27 August 1999 and his arrival at home on the morning of 28 August 1999 Mr Haynes performed a minimum of 6 hours 8 minutes work. Although it is not necessary to make this finding in order to determine the critical issues in this case, I am also satisfied beyond reasonable doubt that Mr Haynes would have had a maximum of 3 hours 30 minutes sleep during the core period of sleep described by Associate Professor Williamson. Although it is theoretically possible that he drove for an hour after Kew, then stopped between 4.30am and 6am to have 1.5 hour sleep in core period, and then continued again, no-one suggested this and it seems extremely unlikely, given that he had already interrupted his journey for a break and would almost certainly have been anxious to get home for the weekend. 96 According to Ms Campbell, Mr Haynes slept on Saturday 28 August 1999; this was not unusual. When asked by the prosecutor whether Mr Haynes was tired that weekend, Ms Campbell replied: A. Um, he was tired but he had done many hours the week prior to. So having a good night's sleep the night before more or less even all day he was catching up. 97 Associate Professor Williamson stated in her report that chronic fatigue can develop over a series of long work days without adequate time for rest and recuperation. However, she was not questioned about whether Mr Haynes may have suffered chronic fatigue (although the evidence of his last working week shows two distinct periods of long work days without adequate time for rest and recuperation, the first of which I have just described). Nor did she give direct evidence as to the difference between chronic fatigue and fatigue, or the measures required to recover from chronic fatigue: it may be that once a person has developed chronic fatigue, longer periods of rest (such as an uninterrupted two-day weekend) are necessary for recovery. This is certainly suggested by her following comment in cross-examination about the continuing effects of a night without sleep in the core period: No but one must remember that if you've had a night without sleep it takes some time to get over it. If earlier in the week you have a night without sleep and then it's another five or six days before you get your two days off, then you are starting to, working into a period of chronic build up of fatigue. In the absence of further evidence of the cause and effects of chronic fatigue, I am prepared to accept, in favour of the defendant and consistently with his submission that Mr Haynes may have slept for more than 8 hours on Saturday 28 August 1999, that Mr Haynes obtained sufficient rest in the 24 hours following his arrival home in the morning and before he recommenced work on Sunday to allow him to recover from the previous week's work. In other words, I accept that by the time Mr Haynes recommenced work on Sunday morning, he was not suffering from fatigue or chronic fatigue. Sunday 29 August 1999 98 Mr Haynes's truck telephone records do not show any calls made this day but his daily worksheet recorded: · Travel from Grafton to Brisbane (358km) 99 Mr Haynes's disruption of his journey with a load from Penrith to West End, Brisbane, over the weekend was consistent with the evidence of Mr McLennan, who also lived in the Grafton area, on the Company's main route from Brisbane to Sydney. According to Mr McLennan, regardless of which direction you were heading on the Friday, there was little point continuing to your destination because most places were not open on the weekend, and it would not be possible to unload. Thus, Mr McLennan regularly left his loaded truck parked in Grafton (at a service station, for convenience) over the weekend. 100 Ms Campbell gave evidence that on Sunday 29 August 1999, before leaving for Brisbane in the evening, Mr Haynes washed the truck: Q. What did he do on the Sunday, 29 August? A. Washed the truck. Q. How long did that take him? A. It could take up to five or six hours, as well as me cleaning inside and then polish the wheels, yes. Q. Was that unusual that he wash the truck on the Sunday? A. No, at Hitchcock's it was a natural thing. We did it on Sundays because they had it clean to go again. Ms Campbell denied the suggestion in cross-examination that it took between two and three hours to wash the truck that Sunday, reiterating that it took longer. I accept Ms Campbell's evidence that Mr Haynes washed the truck on Sunday and that, based on my earlier finding following the other truck drivers' evidence, this took him approximately six hours. 101 This date was described as a "day off" in the Brenton Facsimile, although Mrs Hitchcock also recorded the following entry which is difficult to reconcile with a rest day: "Sunday evening travel to Brisbane". 102 Although Ms Campbell gave evidence that Mr Haynes left at 9:30pm, the Safe-T-Cam camera at Harwood recorded Mr Haynes's prime mover registration number TWW240 heading north at 9.24pm. Mr Hodgkinson suggested to Ms Campbell that if Mr Haynes was at Harwood, some 50km north of Grafton, at 9.24pm, he must have left earlier than 9.30pm, such as 8.30pm or 8.40pm. Mr Haynes's mobile telephone records show telephone calls made at 8.36pm (to Ms Campbell), 8.49pm and 10.52pm. 103 Although Ms Campbell maintained that she was not mistaken as to his departure time, I think it is more likely (in view of the telephone call to her at 8.36pm and the Safe-T-Cam sighting at 9.24pm) that Mr Haynes left earlier. The exact departure time is not important, and the defendant did not raise any issue as to Ms Campbell's credibility (correctly, in my view). I found Ms Campbell to be a witness of credit, whose memory of events which were significant to her was clear and unaffected even if some of the details (such as exact departure times) were inexact. 104 Mr van den Dool estimated the distance between Grafton and Harwood as 48km (with a travel time of 32 minutes) and between Harwood and West End, Brisbane, as 303km (with a travel time of 3 hours 34 minutes). I am satisfied beyond reasonable doubt that Mr Haynes worked 10 hours and 6 minutes on Sunday, 29 August 1999 (noting below that one of these hours must in fact have been worked in the early hours of Monday morning but allocating it to Sunday for convenience): 6 hours washing the truck and 4 hours 6 minutes driving. 105 If Mr Haynes drove directly to West End without stopping, taking into account the Safe-T-Cam sighting at Harwood, he would have left home at approximately 8.52pm and arrived at 12.58am. There is nothing to suggest that he did otherwise, and I am prepared to make this assumption in favour of the defendant in order to maximise Mr Haynes's night-time rest. In this case the maximum amount of unbroken rest period for Mr Haynes roughly corresponds to the core period described by Associate Professor Williamson: 6 hours and 30 minutes between 12.58am and his call to the Company at 7.28am the next morning. This was noted in Associate Professor Williamson's report. Monday 30 August 1999 106 Mr Haynes's truck telephone records show calls made to the Company's office in Bomaderry at 7.28am and 8.35am from Brisbane; and at 3.51pm and 4.28pm from Kempsey. There was a telephone call from the Company's fixed telephone to Mr Haynes's truck telephone at 7.55am. 107 Additionally, the telephone records show the following calls: · From Ms Campbell's fixed telephone to Mr Haynes's truck telephone: 7.24am (3 minutes 2 seconds); 2.57pm (4 minutes 58 seconds); and 9.17pm (2 minutes and 9 seconds) · From Mr Haynes's mobile telephone: calls at 9.13am, 9.21am, 12.24pm, 12.26pm, 1.33pm, 1.38pm (to Ms Campbell), 2.49pm (to Ms Campbell), 6.58pm, 9.12pm (two calls), 9.13pm, 9.14pm, 9.15pm and 11.47pm · From Mr McKellar's mobile telephone to Mr Haynes's truck telephone: 3.08pm (1 minute 57 seconds); 3.24pm (6 minutes 9 seconds); at 6.30pm (17 minutes 52 seconds) and at 9.56pm (13 minutes 4 seconds). 108 The Brenton Facsimile recorded that Mr Haynes unloaded in Brisbane and travelled to Kempsey empty, where he loaded and travelled to Nowra. Mr Haynes's daily work sheet recorded a total of 1123km (which corresponds with the entry for 30 August 1999 on the Employee Earnings Record) and the following activities: · Unload ex Scotts at Brisbane then · M/T to Boral Kempsey (535km) · Boral Kempsey [indecipherable] · Travel to Nowra (588km) 109 The Safe-T-Cam camera at Casino recorded Mr Haynes's prime mover registration number TWW240 heading south at 12.35pm. Mr van den Dool estimated a distance of 234km from West End to Casino (with a travel time of 3 hours 5 minutes). Allowing 1 hour to unload and no queuing time, I am satisfied beyond reasonable doubt that between 7.28am and 12.35pm Mr Haynes worked 4 hours 5 minutes, leaving 1 hour 2 minutes potential rest period. In all likelihood this was spent queuing, unloading or in traffic. 110 Mr van den Dool estimated the distance between Casino and Kempsey to be 300km with a travel estimate of 3 hours 25 minutes. The record of a call from the truck telephone in Kempsey at 3.51pm indicates that Mr Haynes drove directly to Kempsey to load the bricks. Either he got there 10 minutes ahead of the estimated travel time or it took him 10 minutes to drive through the Kempsey mobile network grid. 111 Mr McLennan gave evidence under cross-examination that the bricks at Boral Bricks, Kempsey, were on pallets which were loaded by a forklift. The driver's work in securing the load in this case would take about an hour. Mr Jones agreed, in cross-examination, that the actual process of loading bricks (in his example, from Brisbane) would take an hour: twice the time designated in the Company's Loading and or Unloading Agreement. 112 Mr Everingham also gave evidence about loading bricks at Boral, Kempsey: Q. What loads out of Kempsey would you cart? A. Bricks. Q. From a particular place? A. I think it's Boral. Q. And how long would it take to you load or unload? A. That was a bit of thing. If you got there later you would have to go inside. We were showed what to do and how to do it, Where the key was. We would go and get our own forklift out and load ourselves. The company would leave what bricks had to go at the front with a note and we knew what we had to load and we would load that ourselves and then come on to our designation. Q. How long would that take? A. All depends how good a forklift driver you was. If you were a pretty hopeless forklift driver it would take all night but if you knew what you were doing you would be in and out no trouble at all. Q. How long? A. An hour. 113 A delivery docket on the letterhead of Boral Bricks Pty Ltd dated 31 August 1999 recorded the delivery of 24,000kg of a product called "Drysdale". Mr Haynes signed as driver, and recorded the registration number TWW-240. Under the heading "site contact name" the handwritten words "night load" are transcribed. Inspector Templeton made enquiries of Boral Bricks Pty Ltd to ascertain that this load had been placed in the company's night bay area, which meant that it was loaded by the driver, although they could not determine when. The night bay was open from 3.30pm to 6am. Although the delivery docket was dated 31 August 1999, Mr Haynes did not visit the Boral Bricks yard at Kempsey on 31 August 1999 and I infer that the docket was dated the next day because the load to be collected was placed in the night bay area: the yard had closed for business on 30 August 1999 by the time Mr Haynes arrived in Kempsey (no earlier than 3.51pm). 114 The Company's Shell invoice for August 1999 shows that Mr Haynes bought 922.39L of diesel at Port Macquarie on this day, and the sale was approved at 7.38pm. Mr Haynes was recorded heading south at Kew Safe-T-Cam at 9.36pm, en route to Callala Beach, near Nowra. Mr van den Dool estimated the distance between Kempsey and Kew to be 74km, with an estimated travel time of 55 minutes. 115 I am satisfied beyond reasonable doubt that in the 5 hours and 36 minutes between 4pm and 9.36pm Mr Haynes performed the following minimum amount of work: 1 hour loading bricks; 55 minutes driving; and 30 minutes refuelling. This would allow Mr Haynes a maximum of 3 hours 10 minutes rest period, but again, rather than being continuous, it was broken by work duties. The maximum unbroken period would have been approximately 2 hours between 5pm (after loading) and 7pm (before refuelling), which coincided with dinner time. 116 The defendant's written submissions in relation to this day centred solely upon a distinction between driving and non-driving hours, the significance of which was not explained. Although I accept the defendant's summary of driving hours (taken from Mr van den Dool's report) and his consequent calculation of non-driving hours (every hour not spent driving) I do not accept that this, by itself, (without taking into account the time Mr Haynes spent performing other duties such as loading, unloading, and refuelling) may be relevant to assessing the frequency and length of Mr Haynes's rest periods and his exposure to fatigue. 117 Ms Campbell gave evidence in chief that when she spoke to Mr Haynes on 30 August 1999, he told her where he was; she thought that it was at Albion Park. Given the Safe-T-Cam sighting at Wyong at 3.48am the following day (see below) it appears that Ms Campbell's recollection as to Mr Haynes's location may not, in this respect, be accurate. As I have noted before, there was no suggestion by either party that discrepancies of this nature reflected adversely on Ms Campbell's credit, and I have found her to be a sincere and believable witness whose memory of details which were unimportant to her may have been (and in this case almost certainly was) mistaken. Tuesday 31 August 1999 118 The Safe-T-Cam camera at Wyong recorded Mr Haynes's prime mover registration number TWW240 heading south at 3.48am. Mr van den Dool estimated the distance between Kew and Wyong to be 286km, with an estimated travel time of 3 hours 7 minutes. Accordingly, between 9.36pm at Kew and 3.48am at Wyong, Mr Haynes had the opportunity for a maximum continuous rest period of 3 hours and 5 minutes. In fact, Mr Haynes spoke to Mr McKellar for 13 minutes at 9.56pm and made calls from his mobile telephone at 11.47pm and 12.41am. Regardless of whether these calls were related to work or not (the irrelevance of which I will discuss in my later conclusions), they provide clear evidence that Mr Haynes was not sleeping at the time. It seems reasonable to infer, from the timing of the calls and the availability of 3 hours and 5 minutes of continuous rest period, that Mr Haynes drove directly to Wyong, arriving at approximately 12.40am; made a quick telephone call; and then slept for just under 3 hours before recommencing his drive south, passing through the Wyong Safe-T-Cam at 3.48am. Associate Professor Williamson noted this maximum sleep period of 3 hours 5 minutes during the core period in her report. 119 It is also reasonable to infer, from the fact that Mr Haynes was driving through Wyong at 3.48am and had already had a continuous rest-break, that having recommenced driving he continued driving directly to Nowra: an additional 255km, taking 3 hours 20 minutes (according to Mr van den Dool) from Wyong. On that basis, Mr Haynes would have arrived at Callala Beach at approximately 7.08am. 120 This is the second period in the space of a week (which no-one suggested was out of the ordinary in terms of workload or patterns of work) where it was impossible for Mr Haynes to have had the requisite 6 hour continuous break in a 24 hour period: the maximum continuous break available to Mr Haynes between his telephone call to the Company at 7.28am the previous morning in Brisbane and his arrival at Callala Beach was 3 hours and 5 minutes. To reiterate the evidence of Associate Professor Williamson, this sleep deficit in the core period would have necessitated a lengthy period of consolidated rest the next day (taking into account difficulties in getting to sleep and the inferior quality of day-time sleep) to overcome the resultant fatigue (a period of rest estimated by Associate Professor Williamson to be normally 8 - 10 hours). In fact, Mr Haynes had no opportunity for anything like sufficient unbroken rest on Tuesday 30 August 1999: as I explain below, the maximum period of rest (which may have been continuous) between 3.48am 31 August and 1.12am 1 September was 2 hours and 37 minutes. 121 There was a call from the Company's fixed telephone to Mr Haynes's truck telephone at 6.59am. Mr Haynes's truck telephone records show no calls this day. 122 Additionally, the telephone records showed the following calls: · From Mr Haynes's mobile telephone: calls at 12.41am; 1.23pm; 6.26pm, 7.00pm (two calls) and 8.32pm; · From Ms Campbell's fixed telephone line to Mr Haynes's truck telephone: 7.08am (9 minutes); 3.16pm (47 seconds) and 9.31pm (3 minutes 23 seconds); · From Mr McKellar's mobile telephone to Mr Haynes's truck telephone: 6.39pm (8 minutes 27 seconds); 8.40pm (17 minutes 50 seconds); 9.07pm (1 minute 34 seconds); 10.02pm (3 minutes 50 seconds). 123 According to the Brenton Facsimile, Mr Haynes travelled to Brisbane (presumably from Nowra). Mr Haynes's daily work sheet recorded the following entries: · Unload ex Boral Kempsey (25km) · M/T to yard (drop Moffitt) (25km) · M/T to Manildra (3km) · Manildra load 22 Bulka [illegible] bags starch · Travel to Brisbane Visy Paper Gibson Island (1146km) 124 The Company loading document completed by Mr Haynes on this date records 22 x 1000kg bags of wheat starch from Manildra, Bomaderry, to Visy Paper, Gibson Island. 125 Mr Haynes's daily worksheet recorded the delivery of his load of bricks to Callala Beach (near Nowra), whence he proceeded empty to the Company's Bomaderry yard. Mr van den Dool has estimated the distance travelled between Wyong and the yard as 315km, with a travel time estimate of 4 hours 11 minutes. I am satisfied, based on the evidence of the truck drivers employed by the Company at the time, that Mr Haynes would have been expected to wash, and would have washed the truck once he reached the yard, and that this task would have taken him six hours. Mr Haynes then travelled to Manildra, Bomaderry, to load starch: Mr van den Dool estimated a 3km trip taking 4 minutes and then estimated the distance to Wyong (where Mr Haynes was recorded by the Safe-T-Cam at 10pm heading north en route to Brisbane) as 255km, which would take 3 hours 20 minutes to drive. 126 Thus, in the 18 hours 12 minutes between the two Wyong Safe-T-Cam sightings at 3.48am and 10pm, allowing Mr Haynes 1 hour to load the bags of starch at Manildra, I am satisfied beyond reasonable doubt that Mr Haynes worked a minimum of 15 hours 35 minutes: 7 hours 35 minutes driving; 6 hours washing the truck; 1 hour unloading; and 1 hour loading. This would leave only 2 hours 37 minutes available for rest (which may have been taken continuously) without making any allowance for time spent eating breakfast, lunch and dinner and attending to other personal necessities, (which would obviously reduce the already slim opportunity for sleep). The defendant made only one written submission in relation to this day: that there was 10 hours 17 minutes of non-driving time on this day. This submission not only obscures the fact that Mr Haynes spent a considerable number of hours working when he was not driving; it also ignores every factor described by the expert, Associate Professor Williamson, as relevant to assessing fatigue and whether it has been overcome by sufficient consolidated rest. Wednesday 1 September 1999 127 The Safe-T-Cam camera at Kew recorded Mr Haynes's prime mover registration number TWW240 heading north at 1.12am. According to Mr van den Dool, the distance between Wyong and Kew is 286km (which would take 3 hours 7 minutes to drive): Mr Haynes clearly drove directly from Wyong to Kew. Accordingly, in the 21 hours 24 minutes between 3.48am 31 August and 1.12am 1 September, Mr Haynes had the opportunity for only 2 hours 37 minutes rest. 128 The Company's Shell invoice for 1 September 1999 shows that Mr Haynes bought 627.53L of diesel at Port Macquarie. Ms Campbell gave evidence that at approximately 5.30am Mr Haynes rang Ms Campbell to ask for money. Their son met Mr Haynes at a hill in Grafton and gave him some money; Mr Haynes then dropped his son at work at the local abattoir, and continued driving to Brisbane. The Safe-T-Cam camera at Harwood recorded Mr Haynes's prime mover registration number TWW240 heading north at 6.38am. 129 Mr van den Dool estimated the distance between Kew and Harwood to be 321km, and estimated the travel time to be 3 hours 34 minutes. Accordingly, in the 5 hours 26 minutes between 1.12am at Kew and 6.38am at Harwood, Mr Haynes worked a minimum of 4 hours 4 minutes (allowing 30 minutes to refuel the truck). Hence, he may have had 1 hour 22 minutes available for rest in that period. I reject the defendant's written submission that there was a potential rest period of 1 hour 48 minutes (or 1.8 hours) between these Safe-T-Cam sightings and note that it fails to take the refuelling into account. Mr Hodgkinson incorrectly referred to the transcript of his cross-examination of Mr van den Dool in support of this submission: in fact, Mr van den Dool explicitly allowed 1 hour 18 minutes (or 1.3 hours). 130 According to the Brenton Facsimile, Mr Haynes unloaded and reloaded in Brisbane and then travelled south to the accident site near Grafton. Mr Haynes's daily work sheet recorded: · Unload ex Manildra at Visy Paper Gibson Island Brisbane · MT to Scotts · Load 1 x load Coke ex Brisbane · Travel to Sydney 131 From Harwood, Mr Haynes travelled to Visy Paper at Gibson Island, Brisbane, to deliver the starch. Mr van den Dool estimated the distance and travel times as 303km and 3 hours 35 minutes. Mr Haynes's telephone call to the Company at 10.55am shows that he was in Brisbane at that time: accordingly, in the 4 hours 17 minutes between 6.38am and 10.55am Mr Haynes had a maximum opportunity of 42 minutes' rest (based on the assumption that he did not unload the starch until after 10.55am). 132 By this time, Mr Haynes was in the following ominous position: in the 47 hours and 10 minutes since 7.28am in Brisbane on Monday he had had a maximum continuous break of 3 hours and 5 minutes. If any contrast be needed to emphasise the invidiousness of his position (in terms of his health and well-being), one need only consider the RTA regulations which required two continuous six-hour breaks over the same period and Associate Professor Williamson's evidence that two such continuous sleeps over that time period constitute the bare minimum for fatigue management. It is patent that his sleep during the two preceding core periods was inadequate: a maximum of 3 hours 5 minutes during one of them - Monday night. Again, it is certain that at this point, Mr Haynes was at risk of driving when fatigued and should not, as a matter of safety, have been driving. 133 To recover from the fatigue engendered by the sleep deficit created during the previous two core periods, Mr Haynes needed two stretches of lengthy, consolidated rest. Instead, he had a maximum break of 2 hours 37 minutes (which was also the only time available for breakfast, lunch, dinner and other personal necessities between 3.48am and 10.00pm on Tuesday) and proceeded to work through the following core sleep period (Tuesday night), alleviated only by a maximum potential break of 1 hour and 18 minutes. I am satisfied, beyond reasonable doubt, that at this point Mr Haynes was not merely at risk: he was actually fatigued and thereby exposed to present danger, as distinct from potential danger. I am further satisfied, beyond reasonable doubt, (based on the expert evidence of Associate Professor Williamson) that Mr Haynes required at least 8-10 hours of sufficient rest to alleviate that fatigue; and that (as I shall describe below) Mr Haynes did not get sufficient rest between 10.55am and his death some 13 hours later to alleviate his fatigue. 134 After unloading the starch at Gibson Island which I estimate took 1 hour, Mr Haynes travelled to Scotts Transport Industries for his next consignment. Mr Cooper of Scotts Transport Industries gave evidence that he met Mr Haynes at 1pm or 2pm at the Brisbane depot of Scotts Transport Industries on 1 September 1999 to "allocate" a load of Coca Cola. This allocation involved giving Mr Haynes paperwork detailing the load (in this case, 22 pallets of Coca-Cola bottles); where to pick it up from (in this case, Coca Cola Amatil Qld Ltd, Richlands); and where to deliver it (in this case, Coca Cola Amatil in Smithfield, Sydney). The paperwork included at estimated time of departure (from the Coca-Cola depot) of "1 September 1999" and an estimated time of delivery of "2 September 1999" but did not dictate a particular route to be taken. 135 Mr Cooper estimated that Mr Haynes left the Scotts depot 10-15 minutes after he arrived there at "2-ish". Based on his experience, Mr Cooper estimated that it would have taken Mr Haynes about 15 minutes to drive to Coca-Cola Amatil in Richlands to pick up the load. Mr Cooper advised that the pallets of bottles would have been shrink-wrapped in advance, and loaded on to the trucks by forklift. Mr van den Dool estimated this distance to be 20km, and allowed a travel time of 24 minutes. I prefer Mr van den Dool's estimate, based as it was on his area of proven expertise. There was no suggestion in cross-examination that his estimate was incorrect. 136 An invoice produced by Coca-Cola Amatil (Qld) showed an electronic time recording "1 Sep'99 15:28". Constable Clarke gave evidence that in the course of his duties assisting the coronial enquiry into the accident Coca-Cola Amatil (Qld) sent him a facsimile explaining that the registered time was the time of departure from their premises. Mr Cooper gave evidence that he was familiar with the system used at the Coca-Cola depot at Richlands for the departure of loads and confirmed that the electronic recording "15:28" would have been the time Mr Haynes's truck left the depot. 137 Mr Everingham was familiar with the Coca-Cola depot at Richlands and gave the following evidence: Q. Was there a Coca-Cola place in Brisbane you used to go to? A. Richlands. Q. And how long would it take to load or unload at those two places, Coca Cola places? A. Richlands is a pretty big place and a lot of freight comes out of there so this gives you a lot of trucks. So you would have a sleep there. There is an area to sleep and you park the truck, go to sleep and wait your turn and the gatehouse would wake you up when it's your turn to load and you would go and load and pull out. Secure the load and then head off. Q. How long would that take you, that process? A. To load? Q. By the time you got there to the time you got away? A. The time you got on and had a load it would probably take you know more than an hour. 138 There were calls from the Company's fixed telephone to Mr Haynes's truck telephone at 7.36am, 7.48am and 12.07pm. Mr Haynes's truck telephone records show calls made to the Company's office in Bomaderry at 10.55am and 11.29am from Brisbane. 139 Mr Haynes made calls at the following times from his mobile telephone on 1 September 1999: 1.35am, 5.38am (to Ms Campbell), 7.36am (to Ms Campbell), 10.44am (to Ms Campbell), 4.28pm, 4.48pm (to Ms Campbell), 7.09pm, and 7.10pm (to Ms Campbell). Ms Campbell called Mr Haynes's truck telephone at 5.44am (36 seconds); 7.39am (5 minutes 29 seconds); 4.50pm (14 minutes 27 seconds); 7.12pm (9 minutes 11 seconds); and 9.33pm (1 minute 51 seconds). 140 The following calls were made from Mr McKellar's mobile telephone to Mr Haynes's truck telephone: 1.30am (6 minutes 1 second); 3.47am (5 minutes 52 seconds) and 5.41am (1 minute 34 seconds); and from Mr McKellar's fixed telephone line, a call at 5.11pm (11 minutes 15 seconds). 141 Mr McKellar gave the following statement dated 3 September 1999 concerning 1 September 1999 to the Grafton police which was read to the coronial inquest into Mr Haynes's death: He didn't leave Coca Cola until about 4pm. I rang him at 6.30pm that afternoon and he was - and he was fuelling up at Beenleigh. We talked for about twenty minutes. He said he had no sleep all that day and the night before. I rang him about 11pm and he was at Ballina having a cup of coffee. We talked a couple of minutes and he said he was coming home to Grafton and then he had to be in Sydney in the morning. At 3am on Thursday morning, 2 September 1999, I was contacted by Vicki Campbell, Darri's de facto, and she told me that he had been killed in the accident. (A map of Brisbane suburbs tendered by the prosecution shows Beenleigh as an outer suburb of Brisbane, 55km east-south-east of Richlands, just south of where the Logan Motorway meets the Pacific Highway.) 142 This statement formed the basis for the following evidence in chief given by Mr McKellar in the coronial inquiry nearly three years later on 12 June, 2002: Q. And when did he tell you that? A. Monday morning I was talking to him. I knew he left Sunday night to go to Brisbane. I talked to him Monday morning in Brisbane and I was talking to him when he was going to Kempsey to load bricks and I talked to him - actually I rang - I was talking to him Tuesday to when he was in Nowra - oh actually he was at the top of Mount Ousley half past ten Tuesday night to go to Brisbane. .... Q. Now he indicated to you, did he, that he had - he was going to Coca Cola to load up - - A. Yeah. Q. - - for a trip back to Sydney? A. Yeah. Q. And in fact you talked for 20 minutes and he said he had no sleep all that day and the night before? A. Well the Tuesday and the Monday, yes. Q. What did you say to him about that? A. Particularly oh well - I knew what Darri was like and what he did but he - there was one, one part of the statement he, he told me he was talking to himself. Like was tired and he had a big week the week before and the week before that, like what he actually done them weeks I, I know he worked hard but he was talking to himself and he asked me did I ever get in that situation and I said as a joke, "As long as you don't answer yourself back." or - we had them kind of jokes but - and I, and I wasn't working that week at the time and I said, because I knew he was tired, I said come by - because I was going to go down with him for a week and I said come by - Q. Down, where's that? A. With him in the truck. Q. Down to Sydney or - - A. Yeah and I said "Come by Glen Innes.", he said "No I'm already at Ben Lea, I said "I'll pick you up on the way back." and oh no he's, he was tired and I said "Just go to bed." and he said "No I can't go to bed because Jim's going load me Coca-Cola back out of Sydney in the morning and I've got to me in.", yeah and I said "Well just go to bed.". .... Q. Now did he say anything about traffic conditions at the time, did he say what the - - A. Conditions? Q. Yeah, the traffic at the - - A. No, no, no conditions. Q. No, didn't talk about that sort of thing? A. No. .... Q. So when you spoke to Darri, you tried to convince him to have a sleep-- A. Yeah. Q. --is that the case on this particular evening? A. Yeah, yep. Q. And what did he say about that? A. [...]..and to try and tell Darri just go to bed, if you wake up you wake up, like the Coca-Colas are going to get put in the storage room, there's no hurry for it, you know, but Darri, Darri didn't know nothing about that kind of stuff and the more you told Darri to do something, like he'd go, he'd work harder. [...] I got up him, he'd work harder just to prove a point, you know. He had a lot of pride and I think that pride just got him in trouble, you know, in my opinion. 143 When questioned by counsel for the defendant at the coronial inquest, Mr McKellar reiterated that he had spoken to Mr Haynes at approximately 11pm on 1 September 1999 and that at the time Mr Haynes had stopped at Ballina to have a cup of coffee before continuing to Grafton to stop at home, see Ms Campbell and have a shower. Mr McKellar estimated that the drive from Ballina to Grafton would take approximately one hour, or one hour and fifteen minutes, (after initially estimating 4 to 4.5 hours, and then correcting his estimate). This estimate agrees with the estimate in Mr van den Dool's report of 1 hour 14 minutes, and I accept it. Mr Hodgkinson, correctly in my view, did not seek to make anything of Mr McKellar's mistaken estimate of 4 to 4.5 hours: it seems clear that Mr McKellar was estimating the time it would take to drive from Brisbane to Grafton, and then corrected his estimate when he realised the question related to Ballina. 144 I agree with the defendant's submissions that Mr McKellar's evidence, untested by cross-examination in these proceedings (although questioned by counsel for the defendant in the coronial inquiry), and (in the case of his oral evidence to the coronial inquiry) at times inconsistent with other evidence, must be treated with great caution and that the weight to be attached to it depends upon whether it is supported (or contradicted) by some other evidence. In this case, Mr McKellar's evidence of Mr Haynes's movements on 1 September 1999 is partly corroborated by other evidence and, to the extent that it is not, it is consistent with other evidence in such a way as to make it likely: the telephone records show an 11 minute conversation between Mr McKellar and Mr Haynes at 5.11pm (I infer, from the lack of any other telephone calls at that time that this is the telephone conversation Mr McKellar described as having taken place at 6.30pm); Mr van den Dool estimated the distance between Richlands and Beenleigh to be 55km; and Beenleigh was on a convenient route from Sydney to Brisbane. Using Mr van den Dool's estimate for this travel time (1 hour 3 minutes), if, as Mr McKellar stated, Mr Haynes in fact left Coca-Cola at 4pm, he would have arrived at Beenleigh at approximately 5pm in time to refuel between 5pm and 5.30pm: the time of his telephone conversation with Mr McKellar. I further note that Mr McKellar's statement, which contains this evidence, was made within two days' of the death of his best friend: as in the case of Ms Campbell (which I discuss below), one would expect him to have a clear memory at that time of the relevant aspects of any lengthy conversations he had with Mr Haynes in the hours preceding the accident. The contemporaneous nature of the evidence lends it some greater weight (although not so much as to displace my general view of Mr McKellar's evidence in the absence of corroboration). I accept, on the balance of probabilities, (despite the absence of a refuelling record) that Mr Haynes left Coca-Cola and drove to Beenleigh where he refuelled and spoke to Mr McKellar for some time. However, I note that the question of whether Mr Haynes left Richlands at 3.30pm or 4pm is immaterial to my ultimate findings in this case: according to Associate Professor Williamson, the fatigue necessarily attained by Mr Haynes at this point would not have been affected by an additional half hour of rest. Indeed, in this vein, neither does the additional half hour of work represented by the refuelling make any difference: Associate Professor Williamson gave clear evidence (which I discuss below) that, assuming a departure of 3.30pm and making no allowance for refuelling, the resultant 4 hours 30 minutes available for rest would not have been sufficient to overcome Mr Haynes's fatigue. 145 Even assuming that Mr Haynes left the Coca-Cola depot at Richlands at 3.28pm, in preference to Mr McKellar's evidence that he left at "about 4pm", I am satisfied beyond reasonable doubt that Mr Haynes performed a minimum of 2 hours 24 minutes work in the 4 hours and 33 minutes between 10.55am and 3.28pm: unloading starch (1 hour); driving (24 minutes); and loading coca-cola (1 hour). This would leave a maximum of 2 hours 9 minutes available for rest, making no allowance for queuing. This may have been taken as a continuous break between 11.55am and 2pm, but it is unlikely to have been used for anything more than a short nap, punctuated as it was by a telephone call from the Company at 12.07pm, and coinciding as it did with lunch time. 146 I turn to Mr McKellar's evidence that Mr Haynes told him during their conversation at Beenleigh that he had had "no" sleep "all that day and the night before". I have already found that Mr Haynes had a maximum break of 2 hours 37 minutes on Monday 30 August 1999 and then proceeded to work through the following core sleep period on Tuesday night, alleviated only by a maximum potential break of 1 hour and 18 minutes. Noting my discussion above of the maximum potential break between 11.55am and 2pm, and noting that even if Mr Haynes left Richlands at 3.28pm he still faced a 54 minute drive to Beenleigh and 30 minutes of work to refuel, (leaving no time for any beneficial rest-break before their conversation), Mr McKellar's evidence is persuasive. With a maximum of four short naps over the preceding two days and intermediate night, Mr Haynes may well have said (and felt) that he had had "no sleep all that day and the night before". In any event, regardless of whether Mr Haynes's expression was intended literally or figuratively, I accept Mr McKellar's evidence, which is consistent with my earlier finding that Mr Haynes was not only at risk of being fatigued at this point, but was in fact fatigued, and consistent with Ms Campbell's evidence that during their conversation that final evening (see below) Mr Haynes was tired. Although I note Dr Perl's evidence that behaviour such as a driver talking to himself was consistent with the effects of amphetamine usage (so much so that she described it as her "first thought"), I do not propose to attach any weight to that aspect of Mr McKellar's evidence, given that it derives from his oral evidence to the coronial inquiry some time after the conversation and that it is uncorroborated. 147 The evidence of Mr McKellar that Mr Haynes stopped at Ballina for a cup of coffee at approximately 11pm accords with Ms Campbell's evidence (discussed below) that she expected Mr Haynes at approximately midnight. Mr van den Dool estimated that it would have taken Mr Haynes 1 hour 14 minutes to drive from Ballina to Tyndale: working backwards from the time of the accident at approximately 11.50pm, I accept that Mr Haynes took a break at Ballina some time earlier, and that he left Ballina at approximately 10.30pm and drove directly to Tyndale. There were no telephone records of this call to enable an accurate determination of the time of the telephone conversation between Mr McKellar and Mr Haynes. 148 The last Safe-T-Cam recording of Mr Haynes's prime mover registration number TWW240 was at Harwood, heading south at 11.35pm. In the 8 hours 7 minutes between leaving Brisbane at 3.28pm and arriving at Harwood at 11.35pm, Mr van den Dool estimated that Mr Haynes travelled 303km (taking 3 hours 42 minutes to do so). Mr McKellar gave evidence that Mr Haynes had refuelled at Beenleigh, meaning that Mr Haynes performed 4 hours 12 minutes of work in that period (allowing 30 minutes to refuel). This means (and I find to the criminal standard) that Mr Haynes had a maximum available rest period of 3 hours 55 minutes. Again, the defendant's written submission that between the two Safe-T-Cam sightings at Harwood (at 6.38am and 11.35pm) there were 9 hours 17 minutes of rest available does not accurately reflect the non-working time available, nor adequately deal with the issue of fatigue in this context. I note that the defendant cited the cross-examination of Mr van den Dool in support of this submission but again, Mr van den Dool explicitly stated that there were 9 hours and 17 minutes of non-driving time, not rest time. Allowance must be made from that time for unloading, loading and refuelling, leaving a potential of 6 hours 47 minutes rest (again, assuming no queuing time, and making no allowance for work-related telephone calls or paperwork) in broken periods throughout the day, as I have noted. 149 The final stretch of Mr Haynes's journey was from Harwood to the crash site at Tyndale: a distance of 20km which Mr van den Dool estimated would have taken him 14 minutes to drive. 150 Ms Campbell had several telephone conversations with Mr Haynes that day, and agreed under cross-examination that he did not mention anything abnormal, relating to the traffic or otherwise. She could not recall speaking to him at about 4.50pm (as indicated by her telephone bill), or at any time when he was leaving or had just left Brisbane, and the only break he told her about was the break at Tweed Heads (discussed below) although she thought that he had said that "he had to wait around to see if he was loading next", but that she did not know how long he had to wait. 151 Ms Campbell appeared to be surprised at the suggestion, put to her in cross-examination, that Mr Haynes had left the depot in Brisbane at 3.28pm. She agreed that he had not told her he went anywhere else, and, if he did leave Brisbane at 3.28pm, and he did not get to the Grafton area until after 11pm (a four or four and a half hour drive), he had "plenty of time for a sleep". This proposition was put to Ms Campbell in the absence of any evidence as to the manner in which the available rest time was broken by work activities, (which I discuss below) and I therefore do not attach any weight to her answer, based as it was upon the false premise that 4 hours 30 minutes were available (in fact, the maximum aggregate period available was 3 hours 55 minutes, as I discuss below), and the implication that this was available for an uninterrupted sleep. 152 This 4 hours (or 4 hours 30 minutes) formed an essential element of the defendant's case: Mr Hodgkinson submitted that the prosecution did not deal with this 4 hour break and that there was no evidence before the Commission as to whether or not such a 4 hour break would be sufficient to overcome any fatigue Mr Haynes may have been suffering. Indeed, the defendant considered this 4 hour break to be so important that Mr Hodgkinson submitted, as a primary submission, that it was unnecessary to consider Mr Haynes's work or sleep patterns at any time before he left Richlands at 3.28pm. These submissions are insupportable in view of the expert evidence, and of my findings. 153 In fact, Associate Professor Williamson was cross-examined at length as to the value of this potential rest (on Mr Hodgkinson's proposition, which failed to take into account Mr Haynes's work refuelling), that four and a half hours were available to Mr Haynes. Even on these incorrect assumptions, Associate Professor Williamson gave clear evidence that 4 hours and 30 minutes would not have been enough to overcome the fatigue Mr Haynes would have experienced as a result of his lack of sleep during the core period on Tuesday night: Q. And we do therefore know that there is 4 hours 30 unexplained in that time? A. That is true. Q. And that's a rest period that is really very important, isn't it? A. It would certainly help because he had only had one hour between 1am and 6am, midnight, sorry, I am getting tired myself, midnight and 6am, because the man hadn't slept much over the vulnerable night hour period. Q. Over this midnight to 6 hour period? A. So the 4 hours and 30 minutes would have helped. Q. You would have to factor that in if you are looking at fatigue? A. Yes. Q. Because if he had that available to him, then he quite clearly had an opportunity to gain some very valuable rest at a very relevant time to the question of fatigue at the time of the accident? A. Um, yes, but in that time also he needed to, I am sure, to do things like eat and personal hygiene and so on, so 4 hours 30 would be eroded by those needs as well, especially at that time of night. Q. But it's very important, isn't it, to try and work out what time he did have a rest at that time, isn't it, because the closer the period of rest to the actual time that you are trying to work out whether he was fatigued or not, the more impact that rest is likely to have? A. Not necessarily, someone who hasn't had sufficient sleep, at least has not slept over that night period is likely to be, and especially around about 12 hours later or more, is likely to be very tired and short bursts of sleep will not help to alleviate that. What you really need is to have a long sleep. In fact somebody who has short naps; a nap may in fact actually be detrimental if taken at the wrong time. Now naps in the afternoon and sort of early evening such as Mr Haynes, if he had a nap, that would have been, would certainly be of benefit one would assume, but the point is that he is still very tired and those brief sleeps would not be enough to overcome the fatigue he would have experienced as a result of not having that midnight to dawn period of sleep. 154 Further, the defendant's submissions as to the decisive value of this potential 4 hours or 4 hours 30 minutes fail to take into account the expert evidence of Associate Professor Williamson, which I have accepted, that drivers suffering from fatigue lose their ability to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop. Rather, as Professor Williamson explained, drivers may be motivated, perversely, to continue in an effort to end the journey sooner. Even if 4 hours had the potential to alleviate Mr Haynes's fatigue (which I have found it did not), the evidence shows that at that point he is unlikely to have been capable of responding appropriately. 155 Ms Campbell gave detailed evidence of the conversation she had with Mr Haynes at 7.30pm during which he said that he was at Tweed Heads. The telephone records show a telephone call of 9 minutes at 7.12pm and a call of 1 minute 51 seconds at 9.33pm and I infer that these are the calls Ms Campbell referred to. The location of Tweed Heads, a 40 minute drive from Beenleigh, is consistent with Mr Haynes having a one hour break, coinciding with dinner time, at either Beenleigh or Tweed Heads, and I accept on the balance of probabilities that this is what happened. I also note that although Ms Campbell was unsure whether Mr Haynes was at Tweed Heads during their conversation at 9.33pm (see her answers below: in fact, this would be inconsistent with her certain evidence that at 9.33pm the truck was moving), she did not qualify her evidence that he was at Tweed Heads during the first conversation, and she later volunteered, in cross-examination, that Mr Haynes told her he had a break at Tweed Heads. Her evidence as to the two conversations continued: Q. Did he tell you anything about how he felt? A. He was tired. … Q. Was there something you observed in relation to the way in which he was talking to you as well which allowed you to form an opinion as to whether he was tired or not? [Objection] A. Just the way he was acting, he was just - well, he said he was tired but. Q. Did you say anything to him about that topic? A. I told him to go to sleep. Q. Why did you say that? A. Because he was tired; that was it, "Go to sleep". Q. Did he respond to you when you said that, when you told him to have a sleep? A. Yes, "The load has to be there otherwise I'll get the sack". Q. Do you remember anything else you said to him or he said to you about that topic about him having a sleep? A. I don't think so, I can't remember. Q. Was that the last telephone conversation you had with him or did you speak to him again that evening? A. Um, 7.30; another one at 9.30. Q. In that conversation did he say to you anything about his state of tiredness? A. Um, he was supposed to have a sleep. He said to me he was going to have an hour's sleep. I was supposed to wake him up at 9.30 but when I woke him up I could hear the truck going. I told him, "Haven't you been to sleep?" He said, "No, I can't go to sleep, I have to get down there." I just abused him, I told him he had to have a sleep. Q. Did he tell you where he was at that time? A. Tweed Heads, I think Tweed Heads. I'm not real sure. At the time I don't think he really said. … Q. Did he say anything else in that conversation that you can recall about how he felt at the time? A. Not how he felt, no, but he was coming home for a cup of coffee. Q. When did you expect him? A. Around midnight. 156 In cross-examination, Ms Campbell gave the following additional evidence about her conversations with Mr Haynes late on 1 September 1999: Q. Did Darri tell you where he had stopped for a break on the trip back from Brisbane? A. He just said Tweed Heads. Q. He stopped there he said? A. Yes I do not know where but there was a coffee shop somewhere. Q. He did not tell you for how long? A. I presumed he was going because I told him to have a sleep and that's what I thought, see, and I was supposed to ring him back at 9.30 so that's what I did and when I heard the truck going that is when I did and I abused him because he didn't have a sleep. 157 I accept this critical evidence of Ms Campbell that she spoke to Mr Haynes at approximately 7.30pm and 9.30pm and that he said he was tired. I also accept her evidence that he did not have a sleep between 7.30pm and 9.30pm. In oral submissions Mr Hodgkinson observed, and I concur, that one would expect Ms Campbell to remember any aspects of her last conversations with Mr Haynes which may relate to his death. This would obviously include any discussions as to whether or not he was tired or had slept, as arranged. Further, her evidence that he was tired is consistent with my findings as to the patent inadequacy of the maximum rest periods available to Mr Haynes over the preceding days (in terms of unbroken length, frequency and timing) and Mr McKellar's evidence that Mr Haynes was tired. Ms Campbell was sufficiently concerned to insist that Mr Haynes stop and sleep; they arranged for her to wake him up by calling at 9.30pm, which she did, to discover (by the sound of the truck and his own admission) that he had not, in fact slept: the result was a short, terse telephone call of 1 minute 51 seconds, as she described in her evidence. 158 I have already found, on the evidence of Associate Professor Williamson, that the maximum aggregate period available for rest between 3.28pm and 11.50pm of 3 hours 55 minutes was clearly insufficient, (even if taken in one continuous break), to overcome Mr Haynes's fatigue. Although it is, strictly speaking, unnecessary to consider how this rest time may have been interspersed with work duties, it is nonetheless instructive. It is clear from the telephone records, Mr McKellar's evidence that Mr Haynes took a break at Ballina (which I have found must have ended at approximately 10.30pm), and Ms Campbell's evidence that Mr Haynes was at Tweed Heads, 40 minutes south of Beenleigh, at 7.12pm and that he was driving at 9.33pm that this time was interrupted. Approximately 30 minutes of rest must have been taken sometime before Mr Haynes left Beenleigh, and one hour must have been taken by the time Mr Haynes was in Tweed Heads at 7.12pm. As I have already noted, this one hour probably coincided with dinner time and, in view of Ms Campbell's evidence in chief and cross-examination, was probably taken at Tweed Heads for a meal. In the 4 hours 38 minutes between 7.12pm at Tweed Heads and 11.50pm at Tyndale, Mr van den Dool calculated that Mr Haynes spent 2 hours 8 minutes driving, leaving 2 hours 30 minutes available for rest. The evidence that Mr Haynes was driving at 9.33pm (having forsaken a short sleep between 7.30pm and 9.30pm) and that he stopped for coffee at Ballina preclude the possibility that Mr Haynes had the remainder of his rest time (after the 30 minutes before Beenleigh) in one unbroken period. A break of 3 hours 25 minutes at Tweed Heads would have necessitated continuous driving from Tweed Heads to Tyndale between 9.42pm and 11.50pm. Assuming a minimum break at Ballina of 30 minutes, the maximum continuous break would have been 3 hours at Tweed Heads, from 6.12pm to 9.12pm, encompassing dinner. 159 It is clear upon the evidence of limited potential rest periods available to Mr Haynes and the system of work in which he was operating (including pay incentives to keep driving; pressure under threat of ramifications to keep driving; the complete absence of supervision or any fatigue management measures which may have effected his actions) that at 11.50pm, Mr Haynes was at risk of driving when fatigued. But the evidence in this case compels a stronger finding. I am satisfied beyond reasonable doubt, on the basis of the indisputable risk to Mr Haynes, the lack of sufficient time for Mr Haynes to have had a lengthy consolidated rest in order to overcome the risk of fatigue, and the evidence of Mr McKellar and Ms Campbell that Mr Haynes himself stated he was tired at approximately 5pm and 7.30pm (respectively) on 1 September 1999, that Mr Haynes was not only at risk of driving when fatigued at 11.50pm on 1 September 1999: he was, in fact, driving when fatigued. This fatigue significantly impaired his ability to drive safely and his ability to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop, as described by Associate Professor Williamson. Tragically, this existing danger cost Mr Haynes his life. Overview of fatigue during the last week 160 It is important to realise that, during the preceding analysis of Mr Haynes's last week, every assumption was made in favour of the defendant to maximise the calculation of Mr Haynes's opportunities for rest. No allowance was made for queuing (despite the consistent evidence of three other drivers employed by the Company that this was a frequent, time-consuming part of their work during which sleep was not possible), nor was anything other than the minimum (the time nominated by the Company, except in the case of bricks from a yard) allowed for loading and unloading, despite the evidence of Associate Professor Williamson, based on two national surveys of 1,000 truck drivers, that drivers spend on average between five to nine hours a day loading and unloading. No allowance was made for other necessary work, such as time spent making or receiving work telephone calls, completing paperwork, and inspecting the truck. Finally, no allowance was made for necessary personal activities such as eating, grooming, washing, and, given the weekly long absences from home, talking to family and friends from time to time. I reject the suggestion in the defendant's submissions that such telephone calls were a luxury that should never have been given precedence over sleep and note that many of them appear to have been made or received while Mr Haynes was driving. 161 Notwithstanding these unrealistic assumptions (when applied unremittingly over seven days), and despite my acceptance that Mr Haynes's rest period of 24 hours on Saturday 28 August 1999 cancelled all fatigue which may have accrued, in my detailed analysis of one week of Mr Haynes's employment with the Company (which no-one suggested was anything other than typical in terms of work loads and practices), I have found (at paragraphs [91], [132] and [133]) beyond reasonable doubt that on two occasions it was impossible for Mr Haynes to have had the requisite 6 hour continuous break in every 24 hour period. Quite the contrary: in both instances, I have found, to the criminal standard, that Mr Haynes was not only at risk of driving when fatigued: he was in fact fatigued and that this significantly impaired both his ability to drive safely, and his ability to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop. 162 This fatigue arose due to a combination of sleep deficit during the core period and the absence of consolidated, lengthy recovery sleep the following day or days before Mr Haynes recommenced driving, both of which were caused by patterns of driving and systems of work employed by the Company, which I discuss in a later section of the judgment. Although only one instance of actual fatigue occurred on the date specified in the charge (1 September 1999), they are both highly relevant to the charges, in that they provide a striking illustration of the failures of the system which was operating (with the same deficiencies) on 1 September 1999. (See WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 and O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 on the generic relevance of a day (whether specified by date or not) in a systems-based charge). I find that the risk alleged in the charges was real, and present. 163 Similarly, Associate Professor Williamson, operating on more conservative assumptions (for example she did not allocate specific time for tasks such as loading or unloading, and hence did not specifically exclude this time from sleep opportunities), concluded in her report that: Clearly, the available time for rest in the three days leading to the crash was inadequate for effective fatigue management. Mr Haynes would have been extremely fatigued at the time of the crash at Tyndale and this would have played a major role in causing the crash. 164 Consonant with my findings relating to one week of Mr Haynes's employment, and my comments above in relation to the unchanging operation of the Company's systems over time, the expert evidence of Associate Professor Williamson makes it clear that Mr Haynes was exposed to risk to his health and safety on several occasions during his employment: Any time - I mean, one could argue that any time Mr Haynes had been working without any night sleep and with little sleep in the next 24 hours and there are a few of those throughout the period that I looked at in addition to just immediately before the crash, he was more vulnerable to having a crash so that my argument would be there should be none of them because a person working needs to have enough sleep in order to do the work and despite, you know, a truck driver or anybody, and the fact that there are some of them in there I think is of concern and we're talking about just simply all of them adding up to a build up. The fact that the crash happened at a particular time is certainly related to what he did just before that time but I would suggest that there are other periods in the week leading up to it where a similar crash could have happened because this man would have been tired. 165 Ultimately, of course, the Court must determine whether there was a risk to Mr Haynes's health and safety: I have found (at paragraphs [91] and [132]) that it is indisputable that there was such a risk (the risk of driving when fatigued) on several occasions including at the time of the accident. Moreover, I have found to the criminal standard that Mr Haynes was exposed to danger, not merely a risk: he was in fact fatigued at the time of the accident (at paragraph [159]), and this fatigue could not have been alleviated by four hours of rest that afternoon, even if they were taken without interruption. Whether or not the fatal accident was directly caused by Mr Haynes's fatigue is not determinative of the charges. Nonetheless, having examined the matter in such detail, I will record my conclusions following an overview of the evidence concerning the accident. The Accident 166 Mr Walker, the only witness to the accident, gave evidence. At approximately midnight, having delivered a load of fuel, he was driving an articulated lorry north along the Pacific Highway, approaching road work just outside Tynedale, a small town 20 minutes north of Grafton. There was a half-moon, some fog, and Mr Walker was travelling at approximately 90km per hour. Detective Senior Constable McFarlane, who attended the crash scene at approximately 12.30am, and Senior Constable Clarke, who attended the crash scene at approximately 1.40am, gave evidence that the road was in good condition and damp from heavy dew. 167 When Mr Walker first saw Mr Haynes's headlights, the lorries were approximately 300 metres apart and Mr Haynes would have just travelled through the road work. At this point, the highway consisted of two lanes, each 3.5 metres wide, separated by double unbroken centre lines and there was no fog obscuring the space between the two lorries. Mr Walker was not cross-examined as to the absence of fog between the converging trucks and I accept his evidence. Mr Haynes was driving on his side of the road in a normal manner at an "average" speed. 168 Mr Walker then described the prelude to the accident: Q. When you observed him first at 300 metres, I mean the truck is driving normally, what happened then? A. He just started to veer on to my side, the side road, and then went on the double yellow line, the centre line and just gradually came to my side of the road. Q. When the other truck came over your side of the road, about how far away were the 2 trucks at that point? A. Probably when he first started correcting over the middle line, probably a couple of hundred metres. Q. When you say veering or gradually, is there some over [sic] way you can describe that matter? A. Just it was a slight bend to the right and his directions was just, just a gradual movement. There was no sudden movements. 169 I note that although Mr Walker used the word "correcting" to describe Mr Haynes's passage over the middle line, suggesting some abrupt, decisive act, this connotation is inconsistent with his unequivocal evidence immediately before that Mr Haynes gradually came over to his side of the road and immediately afterwards that there were no sudden movements. (In fact, the word is also inconsistent with the act of leaving the right side of the road to drive on the wrong side of the road: one would expect a driver to "correct" over the middle line back to the designated side of the road). It does not appear that Mr Walker meant anything by it, other than to indicate a progression from one side of the road to the other. 170 Mr Walker moved as far to the left as he could (approximately six feet) before the lorries crashed. The trailer was ripped from Mr Walker's prime mover and, about 100 metres south of Mr Walker's truck, the cabin of Mr Haynes's prime mover was "well and truly on fire". From his first sight of Mr Haynes's headlights to the crash approximately 6 or 7 seconds passed. At no time was Mr Walker able to see inside Mr Haynes's cabin. A few minutes after the crash, a passer-by spoke to Mr Walker and then called the emergency services. Investigations after the Accident 171 Detective Senior Constable McFarlane's opinion (based on his observations of tyre marks, gouge marks, debris and other physical evidence at the scene, and his experience which included attendance at more than 300 serious or fatal motor vehicle crashes) accorded with Mr Walker's description of the accident: Mr Haynes's prime mover had veered into the northbound lane and collided with the front driver's side of Mr Walker's prime mover. Senior Constable Clarke reached the same conclusion, based on his experience (attendance at many hundreds of fatal vehicle accidents) and observations. Neither Detective Senior Constable McFarlane nor Senior Constable Clarke was cross-examined on this point. Senior Constable Clarke estimated the point of impact to be one metre east from the "fog-line" (the white line which marks the edge of the highway) of the northbound lane. Mr Walker, who physically pointed out the point of impact to Senior Constable Clarke later that morning, confirmed Senior Constable Clarke's estimate. Neither Senior Constable Clarke nor Mr Walker was cross-examined as to the point of impact. 172 Mr Martin attended the accident scene at approximately 4.00am primarily to inspect the trucks to see whether they had been road-worthy before the accident. Mr Martin subsequently prepared a report in which he noted that both vehicles were so severely damaged that it was difficult to carry out a thorough inspection of them. Under cross-examination, Mr Martin agreed that he was not able to determine whether Mr Haynes's brakes, suspension or systems applying to the trailer were "good or bad" before the accident. 173 Mr Montgomery (whose duties included the inspection of heavy vehicles and enforcement of heavy vehicle regulations) attended the Company premises at Bomaderry on 30 November 1999 with a colleague, Mr May, and with Detective Sergeant Savage of the New South Wales Police Service, and presented the defendant with an Order for Production under the Coroners Act 1980 seeking the production of all records relating to Mr Haynes and to any vehicle driven by Mr Haynes, including prime mover registration number TWW-240. The order for production specifically referred to duplicate pages of log-books and vehicle maintenance records. No duplicate log-book pages were produced, and nothing was produced to indicate any mechanical fault with TWW-240. Mr May gave evidence that the defendant stated that he did not have duplicate copies of log-books for any of his drivers. This unequivocal evidence of the apparent commission of an offence was not challenged in cross-examination by counsel for the defendant and I discuss the implications in relation to the Company's systems of work later. 174 The defendant advised Mr Montgomery that the vehicles were serviced regularly; Mr Montgomery thought the defendant said each 20,000km. The Company provided a drivers' defect reporting book in the drivers' room at Bomaderry for the drivers to request repairs in between regular service checks, or should they wish to report anything. Mr Montgomery inspected the book to see whether anything had been reported in relation to TWW-240. The only entry he found was dated 16 July 1999 and related to a minor defect to the trailer (Mr Montgomery thought it was a ripped curtain) which had been repaired. He found nothing to indicate any repairs to the prime mover or the trailer for the vehicle TWW-240. I note that Mr Haynes was in the Company's yard the day before the accident and would have had the opportunity to report anything remiss. 175 Mr Montgomery also gave this evidence in chief: Q. Did you ask Mr Hitchcock, or Mrs Hitchcock in his hearing, whether the drivers were required to do any maintenance or repairs on their vehicles? A. Yes I did ask, I think it was Mrs Hitchcock and I think Mr Hitchcock was there at the time, whether the drivers were required to carry out any maintenance on the vehicles or anything to that effect. Q. What was the reply? A. No they don't, they get their maintenance carried on by their own mechanical staff or certain sections might, wherever the truck was based at; but some drivers did do their own brake adjustments. Q. Were you told anything about drivers doing any maintenance otherwise than that to their vehicles? A. The only thing I think was that they were required to be washed and cleaned once a week. 176 Mr Montgomery later stated in cross-examination: Q. I think I understood your evidence but I want to make sure. Is it your evidence that you were told that drivers were required to change flat tyres but not to perform any other maintenance…? A. That's correct. Q. …on the truck or trailer? A. Yes, that's right. Q. You were told that? A. That's right. Q. You were also told that some drivers adjusted their brakes? A. That's correct. Q. Was it your understanding from the conversation that you had that it was only a driver who chose themselves to adjust their brakes who would do it? A. Yes, I think so, yes. 177 Messrs Montgomery and May included the following paragraph in a report dated 9 December 1999 made following the production of documents by the Company and their visit to the Company premises at Bomaderry: Maintenance Records An inspection of maintenance records for vehicles driven by Darri Haynes shows regular servicing at approximately 20,000 km's intervals. The vehicle that was driven by Darri Haynes (registration no. TWU-240 ) had travelled approximately 12,000 km's since its last service, on 13 August & had been in the workshop for minor repairs only once in this time. South-Star Trucks at Bomaderry & approved dealerships carry out all servicing & repairs. The vehicle in question had passed its annual, full roadworthiness, R.T.A. inspection on Monday 2nd August 1999 with no faults found. I note that although Mr Haynes's registration number (TWW-240) has been mistyped, no-one suggested that this report referred to any other truck. 178 Mr Martin's report contained the following description of the movement of the vehicles following impact: The two vehicles came into contact on the drivers' sides of both Prime Movers and the contact continued along the length of both Prime Movers and Trailers. Vehicle FAB-608 was stopped almost immediately and pushed of [sic] the highway by the impact but vehicle TWW-240 continued along the highway. TWW-240 after impact crossed back onto the correct side of the road and then swerved back onto the incorrect side of the road again before leaving the highway and running of [sic] into a drain. TWW-240 came to rest against the bank of a lane-way and it is here that it is thought to have caught fire. Under cross-examination Mr Martin advised that he had written that paragraph of his report based on his observations of tyre marks at the accident scene. He was not able to determine what caused the described movements of Mr Haynes's truck. 179 The remains of Mr Haynes's liver were examined by the Institute of Clinical Pathology and Medical Research and found to contain methamphetamine. Dr Perl gave evidence that the only way Mr Haynes's liver could contain methamphetamine was if he had ingested the illegal drug: the result could not be explained by any legitimate prescription or over-the-counter medication. It was impossible to tell from the pathology results when Mr Haynes had ingested methamphetamine, or how much he had ingested. 180 Dr Perl, a member of the National Drug/Driving Task Force whose many years of experience in dealing with drug-impaired or fatally injured truck drivers and researching the effects of drugs on driving were not challenged, gave evidence that truck drivers use stimulant drugs to temporarily delay the onset of fatigue and sleepiness, and they use them in response to occupational pressures to meet unreasonable driving hours, rather than for recreational reasons (such as to alter their mood). When questioned in cross-examination as to the circumstances in which truck drivers use methamphetamines, Dr Perl gave the following evidence: Q. It's possible that they chose to drive in circumstances where they have done something which has kept them awake and active at a time when they otherwise could have gone to sleep? A. Yes, that's possible. Q. Unless you knew the actual facts and circumstances of an individual case, you wouldn't know whether those were factors? A. No, I wouldn't know in any individual case, but as I said, my experience is that they generally use stimulants only when they tend to work excessive hours. Q. Or when they are fatigued and they want to keep up to hours that in other circumstances weren't excessive? A. They might use excessive caffeine for those sorts of purposes and that's quite common - that they have five or six cups of coffee, but by the time they turn to amphetamines which are illicit and more expensive than simply buying caffeine or low-dose tablets at the pharmacy, by that stage they have got a major problem with fatigue and they tend to use amphetamines only when they have been working long, excessive hours. Q. Or when they have developed a psychological dependency and consider that they need the stimulant? A. Yes. 181 Under cross-examination, Dr Perl agreed that methamphetamine was psychologically addictive, and that a long-term user may believe that they had to take the drug in order to stay awake when in fact this may not be the case. 182 According to Dr Perl, during the acute stimulant phase following use of amphetamines there is a marked increase in wakefulness, alertness and euphoria: perceptions and judgements are altered and there is commonly an increase in risk-taking behaviours. High doses lead to hyper-reflexia, restlessness, talkativeness, sleep disturbance and insomnia, headache, hypertension and palpitations. The user may experience hallucinations and paranoid thoughts. When the over-stimulation of the brain wears off there is a reactive depressive stage referred to as "crashing", the most common symptoms of which include extreme fatigue, sleepiness and depression. 183 Methamphetamine can impair driving abilities in two different ways: by impairing judgement and increasing risk-taking behaviour, or due to the fatigue and hypersomnolence as a result of withdrawal. Often, this second stage impairs driving ability to a greater extent than the initial stimulation. The drug-induced fatigue or depression is exacerbated by the natural fatigue the driver was masking in the first place. Like all stimulants, it produces physiological effects such as palpitations and hypertension, thereby increasing the risk of a cardiovascular accident (such as a cardiac arrest or stroke). 184 Dr Perl agreed under cross-examination that even low doses of methamphetamine in some individuals could produce a stroke or some form of a heart attack, and agreed that, given the presence of methamphetamine in Mr Haynes's liver, a cardiovascular accident may have been a factor in the crash. 185 Mr McKellar gave evidence to the coronial inquest into Mr Haynes's death about Mr Haynes's amphetamine usage which was consistent with Dr Perl's evidence of truck drivers' usage patterns, and I accept it. In particular, Mr McKellar stated that Mr Haynes did not take amphetamines for recreational purposes, but only to stay awake when he was driving the truck, mainly after he had been "awake for two or three days". This is consistent with Dr Perl's evidence that stimulants were used, generally, only when the drivers were worked excessive hours: caffeine was used for lesser levels of fatigue. 186 Associate Professor Williamson gave evidence that the accident (a gradual deviation into oncoming traffic, with no attempt to correct it or to brake) was consistent with an accident caused by driver fatigue: indeed, she stated in her report that it fell within the RTA's definition of fatigue-related crashes. Associate Professor Williamson agreed under cross-examination that a medical problem could disrupt a driver's attention and give rise to the same type of crash; as would a major distraction which lasted for more than a second, such as a driver spilling a drink over his lap and attempting to mop it up. However, she later clarified that a driver suffering from a major distraction would be sufficiently awake or alert to be aware of the vehicle's movements and would be likely to respond to the impending accident (albeit, perhaps, too late). In this case, there was no evidence of any response, which is consistent with the accident having been due to fatigue, which reduces the driver's ability to pay attention. Associate Professor Williamson considered that although there may have been other explanations, it was likely that the accident was due to fatigue. 187 In conclusion, I do not accept that the idea of mechanical fault raises a reasonable doubt to a conclusion that the accident was caused by fatigue. The truck had been serviced two and a half weeks earlier and was approximately half way between services (which happened approximately every 20,000km). There was no suggestion that it needed any major repairs and it had recently passed its annual RTA inspection which assessed full roadworthiness. Finally, there were no entries in the Company's drivers' defect reporting book, despite the fact that Mr Haynes (an experienced, professional truck driver) was in the yard (where the book was kept) the day before the accident. 188 There was some evidence that fatal accidents can be caused by significant distractions other than fatigue (such as the driver spilling a drink over his lap), but Associate Professor Williamson gave evidence in cross-examination, which I accept, that in such a case, were the driver sufficiently awake or alert to be aware of the vehicle's movements, he would be likely to respond to the impending accident (albeit, perhaps, too late). In this case, there was no evidence of any attempt to correct the truck's gradual path over the centre lines into oncoming traffic, which is consistent with the accident having been due to fatigue, which (unlike distractions) reduces the driver's ability to pay attention or react. Associate Professor Williamson considered that although there may have been other explanations, it was likely that the accident was due to fatigue. In short, (subject to my comments below), I do not consider that it would be reasonable to infer, on the basis of the evidence that there was no attempt at correction, that a major distraction (other than fatigue) may have caused the accident. 189 Finally, both Associate Professor Williamson and Dr Perl were cross-examined about the possibility that the accident may have been caused by a medical problem which may itself have been fatal. Both agreed that this was possible. There was no evidence that Mr Haynes had any history of heart disease or high blood pressure (the two possibilities consistently suggested by the defendant) and the only manner in which I think that these considerations rise to the level of reasonable possibilities, rather than mere speculations, is the link suggested by Dr Perl between the ingestion of even low doses of methamphetamine and a stroke or some form of cardiovascular accident. Mr Haynes had ingested methamphetamine some time before the accident, although it was impossible to say when, or how much, and this fact, together with the evidence of Associate Professor Williamson and Dr Perl referred to above and Dr Perl's evidence that methamphetamine impairs driving abilities, makes it impossible to exclude the reasonable possibility that this type of medical problem, induced by Mr Haynes's use of methamphetamine, may have contributed to the accident. 190 Having said that, the evidence established that Mr Haynes (following the usual pattern of long distance truck drivers) did not take methamphetamine for leisure, but rather for work purposes (to stay awake when driving) when he had worked excessive hours, resulting in a level of fatigue that required a stimulant greater than caffeine. In a very real sense, any contribution to the accident as a result of methamphetamine (whether by its normal, direct effect, or by a related medical problem) itself derived from fatigue. It is also clear, from the evidence of Dr Perl, that during the withdrawal stage of methamphetamine usage the drug-induced fatigue is exacerbated by the natural fatigue the driver was masking in the first place. General Work Patterns 191 The evidence of three former employees of the Company, in conjunction with the preceding detailed analysis of Mr Haynes's last week, provided a comprehensive overview of the life of a long distance truck driver working for that business. At the time of Mr Haynes's fatal accident, Mr McLennan, a long distance truck driver of thirteen years' experience, had worked for the Company for approximately six months; Mr Jones, a long distance truck driver of seven years' experience, had worked for the Company for approximately one month (mainly along the Sydney to Brisbane route); and Mr Everingham, a long distance truck driver of thirty years' experience, had worked for the Company for approximately twelve months. 192 I found the truck drivers to be frank and honest in their evidence, notwithstanding that it was given at times against their interest (in relation to breaches of the log-book regulations) and at times (in the case of Mr Everingham) brusquely or somewhat argumentatively. The defendant did not make any submission impugning their credit, nor did I consider that there was anything in their evidence to warrant such a submission. The fact that they had breached the log-book regulations in the course of their work for the Company did not alter my impression of their honesty in giving evidence before the Court and I will issue the witnesses with certificates as required by s 128 of the Evidence Act 1995 in order that the evidence cannot be used against them in any criminal proceedings which may arise from those breaches. 193 The drivers gave consistent undisputed evidence that, like Mr Haynes, (who worked on five of his eight weekends with the Company), they often worked on weekends, arriving home on Saturday, leaving on Sunday, and washing the truck in between. It appears that this break may have been enforced by circumstance: Mr McLennan gave evidence that most depots were not open on weekends, making it impossible to unload on Saturday or Sunday mornings. Such a pattern accorded drivers with the requisite weekly break of 24 hours away from the truck dictated by the log-book regulations and there was nothing in the evidence to suggest that this work practice of working on Friday nights through to Saturday morning, and then on Sundays, necessarily impeded the management of fatigue. 194 Associate Professor Williamson's evidence left no doubt (as I have found) that night work increases fatigue, and driving, in particular, is a task which is likely to exacerbate such fatigue, given the high levels of effort required to sustain the attention necessary to drive at night. It is clear that, like Mr Haynes, each of the drivers routinely drove at night. A simple, repetitive pattern of work emerged distinctly from the evidence (although obviously this was not inflexible): generally, the drivers loaded in the afternoons; drove at night to arrive "early in the morning" (I discuss this requirement later); unloaded in the morning; drove to the next loading destination; and then repeated the pattern until they arrived home on Saturday morning and took a 24 hour break before washing the truck and starting again on Sunday afternoon or night. Mr Haynes's last week followed this pattern. I extract some of the evidence tending to show this pattern in relation to the other drivers below and discuss further relevant evidence later in the context of so-called "slot times": [Mr McLennan, under cross-examination, on when journeys began] It was very rarely that we loaded of a morning. A lot of the jobs - a lot of the companies that we subbied out to we subcontracted the loads from other companies and they would have to wait for the afternoon for the freight to get there from the little trucks running round and picking up the freight and taking it back to the depot and they go through it and sort it out and load it on the trucks in the afternoon. That's generally how it works. [Mr McLennan, under cross-examination, on sleep] The idea of sleep is that one hour or six hours or - see, the general person, their idea of sleep might be six hours a night. You're lucky if you get six hours a night, driving a truck, when you are constantly driving. 195 Indeed, the Company's employment application form (which was completed by Mr Haynes) included the following questions, clearly anticipating and expecting night driving and weekend work: WILL YOU WORK OVERTIME? WILL YOU WORK WEEKENDS? WILL YOU WORK SHIFT WORK? 196 Finally, the evidence as to the drivers' payment structure was not disputed. They were not paid for washing the truck, queuing to load or to unload, nor for other necessary work activities such as filling up with fuel, inspecting the truck, making telephone calls or completing paperwork. They were paid a fixed rate for each kilometre driven and a pre-determined sum for loading and unloading each load, regardless of how long it actually took. The system provided a clear incentive for drivers to maximise kilometres (this was the only way to increase income) thereby extending driving hours; but little scope for reducing the time taken to perform other necessary work for which they were not paid. Loading, unloading, refuelling and washing the truck necessarily took a certain, substantial, amount of time. Indeed, the only real scope for drivers to reduce this "unpaid" time was to arrive at depots as early as possible to minimise the time spent queuing behind other trucks, thus reinforcing the pattern of driving at night. There was an obvious temptation for drivers to increase their driving hours by reducing their rest hours. Mr McLennan's evidence below illustrates the point well. 197 Mr McLennan gave this evidence under cross-examination as to the rest available to a truck-driver in his sleeper-berth when he was driving to a time-table: Q. And when you decided, for whatever reason, that you wanted to have a sleep, you would pull over to a suitable spot and have a sleep? A. Depending on the time. There may be - you've got to get to your destination and depending on the time frame, depending on whether you had time to pull over and sleep or whether you had time to have a half hour sleep over the steering wheel or whether you just kept going - there's lots of different reasons why you have to get there or you don't have to get there. If you are time-slotted you've got to get there in the time frame. Q. If you are not, you don't? A. If you are not you could end up at the back of the queue so if you know you are going there, say from Sydney to Brisbane and you are loading in Brisbane tomorrow, the earlier you can get to Brisbane to fill out your log book, the earlier you can come back out tomorrow. See, the log book isn't just a twenty four hour thing that runs for today. It runs today, tomorrow and every hour that you are going and the later you get there the further behind you are so by the end of the week you are out of hours. and: Q. You also had to be present during times when the various destination receiving docks were open, didn't you? A. Yes, it would have been. Q. It was no good trying to get into a place at 6am in the morning if they don't open till 7.30 in the morning? A. You could be there so you are first in line and you would get in the gate. It's no good getting there at 7.30o [sic] with five other blokes already there at 6 o'clock and then you have to wait for two hours for them to unload. Q. That is if that happens at all? A. That happens all the time. 198 It follows that any system of effective fatigue management employed by the Company would have to record and frequently review the hours spent by drivers working (including driving) and those spent resting, indicating when each task was performed or rest-break was taken; take into account the regular practice of driving at night; the manner in which this increased drivers' fatigue; the necessity for a lengthy, unbroken rest the following day to countermand fatigue produced by driving during the core sleep period; and the fact that the payment structure provided an incentive to drive longer hours than sensible fatigue management (or the log-book regulations) would allow. It would also have to take into account the personal necessities which follow from a long distance truck driver's lengthy absences from home: such an employee will have to spend time eating, maintaining personal hygiene, and keeping in contact with his (or her) social network. It is to be expected (and should be taken into account) that drivers who are away from their families and friends almost all week, every week, will keep in contact by telephone calls. Importantly, it would also have to take into account the fact that drivers suffering from fatigue have a diminished ability to make sensible safety decisions about stopping or taking rest-breaks. 199 In fact, as I find below, the Company did not have any real system of fatigue management in place. At its highest, the Company's system could be described as one in which drivers were told that they were expected to comply with the log-book regulations but were essentially left to their own devices. This is inadequate at law: see (for example) WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 at [35] to the effect that a system on paper alone is clearly inadequate and WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 on the importance of pro-active supervision: the employer must ensure that procedures and instructions are actively and positively complied with by employees. It is also patently inadequate in fact, given the evidence of Associate Professor Williamson that fatigue reduces drivers' abilities to make sensible safety decisions. At its lowest, it may be said (as I will discuss later) that the Company's system actively contributed to driver fatigue by requiring the log-book regulations (which Associate Professor Williamson described as the minimum for effective fatigue management) to be breached. The System 200 Although one particular in the charges alleges that the Company failed to provide a safe system of work to minimise fatigue, other particulars relate to specific aspects of any effective fatigue management system and I will consider them together: namely, the particulars relating to rest-stops, driving hours, and driving rosters. There are two aspects to the examination of any system: first, the Company's policies on these topics and communication of these policies to its employed drivers; and secondly, the monitoring or practical enforcement of these policies: written or oral information collected by the Company on actual driving hours and rest-breaks and any action taken to ensure compliance with Company policy. Rest-stops and driving hours 201 The evidence established that the Company did not have any policy in relation to driving hours or rest-stops distinct from the log-book regime. Mr Jones gave the following evidence in relation to Company policy on rest-times: Q. Were you advised of any policies Jim Hitchcock Haulage had in relation to drivers' work and rest times? A. No, not really, just stick by the log book regulations at the start. Q. Were you ever given any instructions by the business about drivers' work and rest times? A. No, not really. Q. Were you ever given any sort of manual or other documents in relation to safety issues in respect of your driving duties for Jim Hitchcock Haulage? A. No. 202 Mr Jones further stated that although (as a professional driver) he knew about the legal requirement to have a log-book, the Company did not give him any instruction or training in relation to the requirements and reasons for keeping a log-book nor how to complete it. 203 Mr Jones's evidence was echoed by Mr McLennan (who stated that he was not aware of any Company policies on driving, or driving work and rest-times, was never given any instructions about them, and could not recall ever having been given any booklet containing the Company policy) and by Mr Everingham, a long distance driver of 30 years' experience, in the following passage of his evidence in chief: Q. When you started work there were you advised of any driving policies that the business had in place? A. No. Q. Well, when you started did you fill out some forms or anything? A. Yes the basics and had a driving test and then just filled out just the normal sheet, like name and address, bank accounts and that sort of stuff. Q. Were you ever given any instructions about doing the work or rest times with Jim Hitchcock Haulage? A. No, we were employed as interstate drivers. Q. And what do you mean by that? A. Well, if you didn't know the job, well what you were doing you shouldn't have been there, well you wouldn't have been there anyhow. So that was the understanding that that was the job. ... Q. Were you given any sort of documents, manual, booklet something like that containing rules or policies that Jim Hitchcock Haulage expected you to comply with? A. No, not at that time. There was letters coming all the time but there was different things but not at the time, no. Q. What letters are you referring to? A. Used to get letters from the company all the time, like the dos and don'ts, what you should do and what you shouldn't do. What you have been doing and what you haven't been doing. Q. In what way were they addressed. Do you remember anything specifically in those letters? A. Not really, not that many. I used to throw them in the bin in the finish. Just pretty much a waste of time. If you did something wrong you would get that letter for it. Just petty stuff really. Q. What sort of things would you get a letter over? A. If you just done something wrong, run late or if you did something they didn't like or whatever they would send you a letter. And it was three strikes and you're out type thing, you know. 204 Under cross-examination Mr Everingham elaborated that the letters related to "every little thing" for which he could get a "slap on the wrist", including matters relating to driving, loading and unloading. No further evidence was led about these letters and there was no evidence to suggest that driving outside regulation hours was one of the misdemeanours referred to by Mr Everingham: in fact, the drivers' evidence (discussed below) about falsified log-books suggest that it was not. 205 It appears from the defendant's reference to "the correct driving hours" and "the correct breaks" in the WorkCover interview that the log-book regime effectively constituted Company driving policy: [Discussing Mr Haynes's application for employment form] Q47. I now refer you to the fifth page of that document. The third point on this page states "Abide by the rules and regulations of the company and the fifth point states "Drive according to company policy and government regulations. Can you tell me what rules and regulations are being referred to here? A47. The correct driving hours in particular and the correct breaks. Q48. Can you tell me what company policy is being referred to? A.48. Just what I said. Q.49 Are the rules and regulations and company policy documented? A.49. Yes. Q50. Are you able to supply me with copies of these rules and regulations and company policy within 3 days? A.50. Yes. Q.51. Were copies of these rules and regulations and company policy supplied to Darri when he commenced employment with Sayogi Pty Ltd? A.51 Yes they would have been they are displayed in the amenities room. 206 I am prepared to accept, on the basis of Mr Jones's evidence, Mr Haynes's employment application form and the defendant's evidence in the WorkCover interview, that upon the commencement of his employment Mr Haynes was advised to comply with the log-book regime and may have been advised that a copy of the regulations could be found in the amenities room. 207 Five days after the WorkCover interview the defendant sent Inspector Templeton the RTA Heavy Vehicle Driver's Handbook (which may or may not have included information on the log-book regime - no copy was produced to the Court); a Load Restraint Guide; and a Company-styled Professional Drivers' Manual dated 1 February 2001 which bears no relevance to the charges in this matter, post-dating the accident by more than a year. 208 In view of the defendant's production of a policy manual which post-dated the accident in answer to Inspector Templeton's request; in the absence of any evidence to the contrary (such as a policy manual in force at the relevant date); and in the light of the uniform evidence of the three employed drivers (together with the evidence on delivery times discussed later) I find that at the time of Mr Haynes's employment there was no distinct Company policy on driving hours and rest-breaks other than ostensible compliance with the RTA log-book regulations. I further find that this requirement was perfunctorily communicated to the drivers (if at all - Messrs McLennan and Everingham gave evidence that in their case, it was not) at the commencement of their employment, and thereafter not mentioned. I describe the expectation of compliance as ostensible in view of the evidence relating to the lack of reliance on the duplicate pages of log-books and the breaches of regulation driving hours, both of which I discuss below. 209 The Company's failures to enforce the log-book regime (and/or put in place an alternative system of fatigue management based on the regulation of driving hours and rest hours) make it unnecessary for me to consider whether the regulation system, by itself, would have been sufficient to effectively manage fatigue and discharge the Company's obligations under the Act. Associate Professor Williamson's evidence suggests that it may not have been. 210 Log-books were designed specifically for the purpose of monitoring driving hours and ensuring appropriate rest-breaks and the regulations particularly provided for employer retention of these important documents. I noted earlier in the judgment that the regulations required drivers to send the duplicate yellow pages of their log-books to their employer within 21 days. Employers committed an offence under Division 5 of the regulations if they failed to keep these driving records for at least 12 months. 211 Despite: (a) the obvious importance of protecting long distance drivers against fatigue; (b) the evident purpose of log-books; (c) the defendant's admission that the log-books were the only record of the hours drivers spent driving; and (d) the fact that the regulations not only carried the force of law but also effectively constituted Company policy the evidence established that, although the drivers provided these pages to the Company, they were never reviewed or discussed. It is open, on the evidence, to conclude that they were not even kept, but it is not necessary for me to make that finding in order to determine the charges. 212 The three former employees of the Company gave evidence that they provided their yellow duplicate log-book pages to the Company at least weekly (as required by the Motor Traffic Regulations 1935). Mr McLennan stated that when he was in the Company yard (which happened at least once a week), he would hand in the completed yellow pages of his log-book, and that was the "last you saw of them": no-one from the Company ever discussed the driving record they contained. Mr Jones concurred that he was required to (and did) hand in his log-book sheets to the office. If he was in the yard, he would hand them in; if not, he would mail them in with his "running sheets" (daily worksheets). Mr Jones gave evidence that there was no system to check the duplicate pages of log-books to see whether the drivers were complying with driving and rest times. Mr Everingham reinforced his evidence that he gave the Company his duplicate log-book pages by stating that it was of particular concern to him because "around the time" that Mr Haynes died, the RTA was enforcing the handing in of duplicate log-book pages. As with the other drivers, Mr Everingham stated that no-one from the Company ever discussed his log-book pages with him. The defendant stated (in the WorkCover interview, extracted below) that Mr Haynes was expected to hand in his duplicate log-book sheets and no evidence was produced to suggest that he failed to do so. Accordingly, I am prepared to infer that he did. 213 Mr Hodgkinson challenged (to little effect) Mr Jones's evidence that he handed in his log-book pages but did not challenge the equivalent evidence of Messrs McLennan or Everingham. 214 The defendant was asked about log-books in the WorkCover interview: Q.65. Was there a system in place that recorded the time Darri Haynes spent at the wheel each day driving for Sayogi Pty Ltd during his employment with the company? A.65. Yes he was to abide by the driving rules that professional driver [sic] would use and as per his log book. Q.66. Was this recorded anywhere other than his log book? Q.66. No. and: Q.87. Did Sayogi Pty Ltd have any system to review these log books kept by Darri Haynes? A.87. He was supposed to hadn [sic] his log book copies in at the office or mail them. Q.88. Did he do this? A.88. I would have to check our records or the records that have been handed in to the police. Q.89. What system did Sayogi Pty Ltd have in place for checking the log book records submitted by Darri? A.89. We checked the log books either when they are handed in or posted to us to see if they are in their required hours as recorded by the driver and signed by the driver. and: Q.100. Did anyone from Sayogi Pty Ltd ever have to speak to Darri about not taking adequate breaks whilst driving for Sayogi Pty Ltd? A.100. He was directed at all times to abide by his log book which clearly states the driving times in the log book. Q.101. Was this direction given to Darri about abiding by the log book as a result of observing that he had not taken adequate breaks? A.102. On commencement of employment he would have been directed about abiding by the log books and the total kilometres show that he would have had plenty of times for breaks. Q.103. (John Patton) What do you consider excessive driving hours A.103. Well if they are outside the log books hours he is definitely going to get caught at some stage and when he crosses weigh bridges his log book should have been checked and if he is outside his hours I am sure the RTA would do something about him. 215 The defendant's answer at A.89 to the effect that he checked log-books to monitor whether driving hours were within the RTA limits is clearly inconsistent with his answers to questions 76, 99 and 150 of the WorkCover interview (extracted later in this judgment), and with his answer to question 103 above, which suggests that (as far as the defendant was concerned) the only consequence of a driver breaching the log-book hours would be that "the RTA would do something about him", provided of course that they caught him. It is implicit in the answers to questions 76, 99, 103 and 150 and the defendant's evasive responses to questions 100 and 101 that the defendant did not check the log-books, or monitor whether the drivers complied with the log-book regulations. In short, I do not accept the defendant's answer to question A89, and note that despite its obvious utility (were it believable) in answering the particulars of the charges, it was never referred to in the defendant's submissions which referred exclusively to the Company's review of the daily worksheets. In fact, in written submissions the defendant asserted that "there can be no suggestion that the log-books required to be kept by the driver were relevant to the questions raised in this prosecution" and failed to address the Court at all on whether or not duplicate pages were handed in, or whether or not they were reviewed by the defendant or any other officer or employee of the Company. 216 I have already noted that the defendant did not produce any duplicate log-book pages in answer to an Order for Production under the Coroners Act 1980 (despite the fact that it specifically compelled the production of these particular documents) and that according to Mr May's evidence the defendant stated that he did not have duplicate copies of log-books for any of his drivers. Nor were any log-book pages ever produced to Inspector Templeton, despite the defendant's comment in the WorkCover interview that he would check whether Mr Haynes in fact handed in his duplicate log-book pages as required, and despite a letter from the defendant to Inspector Templeton purporting to enclose the information requested by the Inspector as a result of incomplete answers given in the interview, which the defendant asserted would "fully answer the questions". 217 Unlike the legally required log-book pages, which (according to Mr May's evidence, which I have no reason to disbelieve) the defendant stated he did not have, the defendant was able to produce Mr Haynes's daily work sheets for the entire period of his employment in response to the Order for Production in the coronial proceedings, and Mr Haynes's daily work sheets were admitted as evidence in these proceedings. Similarly, other business records from the same period which were tendered in evidence had obviously been meticulously kept: fuel records, load manifests, telephone records and applications for employment. It is curious to say the least that the only records which were apparently not kept were those which directly related to drivers' safety. 218 In conclusion, I am satisfied beyond reasonable doubt that drivers employed by the Company provided the duplicate pages of their log-books to the Company, as required by regulation and directed by the Company. I am further satisfied beyond reasonable doubt that the defendant did not review or monitor these pages at all, and nor did any other employee or officer of the Company. 219 I have found that the Company did not review the drivers' log-books, despite the defendant's acknowledgement that these were the only records of the hours spent actually driving. On the defendant's submissions, the only information about the drivers' actual work reviewed by the Company were the daily work sheets which recorded destinations, loads and the total number of kilometres driven each day, but did not record the time taken for any work-related activity (driving or otherwise) or of any rest-stop. Certainly, there was no review of any oral information: the drivers gave consistent evidence (which I accept) that no-one from the Company discussed with them their driving hours, how much sleep they were getting, or whether it was enough and there was no evidence to suggest that Mr Haynes's experience was any different. In fact, in the WorkCover interview (extracted above) the defendant stated that no-one from the Company ever discussed with Mr Haynes his driving hours. I find beyond reasonable doubt that the Company (by its managers or officers) did not discuss with the drivers (including Mr Haynes) their driving hours, rest-breaks, sleep, or whether they were getting adequate rest. 220 The total kilometres from the work sheets were recorded on an Employee Earnings Record for each driver by Mrs Hitchcock, but not necessarily on the correct date: according to the WorkCover interview, Mrs Hitchcock recorded any kilometres driven on a weekend on the following Monday. The defendant explained that this was because Mrs Hitchcock did not work on weekends. A cursory comparison of Mr Haynes's Employee Earnings Record and his daily work sheets shows that this weekend carry-over was not the only inaccuracy in relation to dates: thousands of kilometres were recorded on the two days following Mr Haynes's death. 221 The defendant contended, in the WorkCover interview and in submissions, that the aggregation of total kilometres in Employee Earnings Records enabled the Company to monitor driving hours and rest-stops, and that the total kilometres were reviewed each week to check that the kilometres were "within limits". The following extracts from the WorkCover interview illustrate the defendant's submission that the Company purported to rely on this information (exclusively) to "monitor" driving hours and rest-stops, but in fact the real approach was self-regulation by the drivers: Q.76 Did anyone from Sayogi Pty Ltd ever discuss with Darri Haynes the time he spent at the wheel driving for Sayogi Pty Ltd? A.76. No because he was supposed to drive within the regulations of his log books and safety cams he had to cross weighbridges on every trip where his log book would have been stamped either correct or incorrect. We do record the total kilometres travelled for each week when doing the pays at the end of the pay week and notate [sic] if they are high or appear to be higher than average and will not allow the driver to load until we feel the kilometre rates are within our parameters. Also if you check his wages sheet you will find that his average kilometres are far from excessive. Q.77. Did anyone at Sayogi Pty Ltd have an occasion to speak to Darri Haynes because they had observed a high amount of kilometres? A.77. No there was no high amount of kilometres observed. and Q.98 Did Sayogi Pty Ltd consider the need for Darri Haynes to take adequate rest breaks during his driving schedules? A.98. Drivers are directed as per their log books to take the correct rest breaks at all times. Q.99. How were the rest breaks, kilometres travelled and hours driving [sic] considered when the scheduling of jobs for Darri was done by Sayogi Pty Ltd? A.99. By the total amount of kilometres for the week. and Q.150 What procedures did Sayogi Pty Ltd have in place to minimise driver fatigue? A.150. Well the checking of weekly kilometres and the despatch being notified from the pay office on a weekly basis on the total kilometres for each month. 222 The parameters mentioned by the defendant were never explained, and there was no evidence of the Company preventing any driver from loading for that reason, nor, indeed, of any driver being advised of such parameters. Mr Everingham stated that the Company never stopped him from driving because his driving hours were excessive. One thing is clear: weekly totals of more than 5000km (recorded on Mr Haynes's Employee Earnings Record on several occasions) did not breach the Company's unspecified parameters (assuming, of course, they existed). 223 The defendant stated once in the WorkCover interview that the daily worksheets were reviewed "every few days or weekly" and this was mentioned in submissions. However, I find, from the defendant's frequent mention of "weekly checks" throughout the interview (extracted above), that the actual practice at the Company was to review them weekly, at the end of each pay week. 224 The proposition that a weekly total of the distance travelled by a driver, with no more accurate level of detail than one figure of kilometres for the entire seven days (given Mrs Hitchcock's recording practices) could yield any information at all about the actual time spent driving, let alone information about the timing, frequency and length of rest-stops sufficient to monitor fatigue, strains credulity. It is equally difficult to accept that any company would purport to rely on such unsatisfactory information when direct evidence of driving hours and rest-breaks (in the form of duplicate pages of log-books) was compulsorily available. Such a practice seems absurd. Furthermore, the evidence of Associate Professor Williamson about the dangers of driving after even one night without sleep during the core period (until sufficient recovery rest has been taken) and that fatigue can develop over a series of long work days makes it clear that a weekly check is insufficient. The uselessness of the worksheets in assessing driving hours is implicit in the defendant's answers in the WorkCover interview in which he accepted that the log-book was the only accurate record of driving hours and rest-breaks. 225 I am satisfied beyond reasonable doubt that, during the period that Mr Haynes worked for the Company, the only written material relating to work performed by any of the drivers reviewed by the Company were the drivers' daily work sheets (which were necessarily reviewed for pay purposes), which provided no information as to rest-breaks and were manifestly inadequate to assess driving hours or working hours, comprising as they did a bare record of kilometres driven without any record of the time spent driving or performing other work duties such as loading, unloading, queuing or refuelling. I do not accept the defendant's contention that these records were reviewed for the purpose of minimising driver fatigue. I further find, beyond reasonable doubt, that the Company never discussed driving hours or rest-breaks with any of the drivers (apart from the possible perfunctory mention of "policy" at the inception of employment already mentioned). Driving Rosters 226 My earlier findings to the effect that the Company never discussed driving hours, rest-breaks or sleep with any of its employed drivers; had no information as to their working or driving hours or rest-breaks other than the duplicate log-book pages; and that it did not review these pages, compel a finding that this particular, as drafted, has been established: without any relevant information to enable it to assess fatigue, or the risk of fatigue, there was simply no way the Company could take into account the effects of fatigue and sleep deprivation when preparing rosters. In addition, there was direct evidence on the subject. 227 The evidence painted a clear picture of how drivers at the Company were allocated work: upon arriving at a destination and unloading, they would call the despatch office to confirm delivery of the previous load and obtain instructions as to the next. Mr McLennan gave the following evidence under cross-examination: Q. And the system was that you would get a load and you would take it to its delivery point and you would deliver that load? A. That's right. Q. And depending what time it was, you would ring up and say, "I've finished that load. What do I do next?" A. That's right. Q. And if there was a job you would be allocated a job straight away and if there wasn't a job they would ring you back as quickly as they could? A. That's right. Q. And tell you what the next job was? A. That's right. 228 Mr Jones's evidence was the same: he would ring the office each morning and they would assign the next job to him. Mr Everingham gave evidence that he only had to call the office "when he wanted a load". Nothing in the drivers' evidence suggested that fatigue was taken into account in this process; indeed, as I have noted, their evidence (and the defendant's evidence) that sleep, rest-breaks and driving hours were not discussed contradicts such an assertion. 229 The defendant was asked in the WorkCover interview about the manner in which work was allocated, and whether fatigue indicators were taken into account: Q.145. What system did the company have in place for rostering on drivers at the time of the accident? A.143 [sic: should be A.145] When they get to their destination they indicate to us that they are unloaded, they ring us and we tell them where to go and load, they load and go to their destination or their arrival point and they're allowed the time that's necessary by regulations to do so. Q.79. How did Darri Haynes receive his work instructions for his driving schedules? A.79. He was contacted by phone and given the point where he was to load from usually in a capital city and when he had loaded he then travelled to his destination and unless there was a break down or any problems where he needed to contact us he did not or did not have to contact us until he reached his destination and unloaded. He did not have to abide or was given time slots. Q.99 How were the rest breaks, kilometres travelled and hours driving considered when the scheduling of jobs for Darri was done by Sayogi Pty Ltd? A.99 By the total amount of kilometres for the week. Q.100. Who's [sic] task was it to schedule the jobs for the drivers including Darri? A.100 The despatch clerks. 230 Two points highlight the inadequacy of the Company's "weekly kilometre check" as a method of taking fatigue into account when preparing driving rosters: (a) as already discussed, the weekly summary of kilometres provided no evidence of hours spent driving (let alone working) nor of rest-breaks taken, and (b) the information was out of date: jobs were allocated daily, but the drivers' kilometres were only reviewed at the end of each week. 231 The following two passages of the WorkCover interview further highlight the ineffectiveness of the "weekly kilometre check" in the context of arranging driving rosters and in fact suggest that, inadequate as it was, it was seldom applied (the Company instead relying on the drivers' self-regulation) and that if it was applied, it was patently ineffective: Q.125 [Showing the defendant Mr Haynes's daily work sheets for 2 and 3 August 1999] If I provide you with a calculator do you agree that the total kilometres travelled [by Mr Haynes] on Monday 2/8/99 and through to and including Tuesday 3/8/99 as indicated on the sheets add up to 2286? A.123 [sic: should be A.125] Yes. Q.126 You earlier estimated that Darri would have arrived back in Nowra on Monday 2/8/99 having completed a trip from Grafton recorded as 781km. A.124 [sic: should be A.126] He should have been at Nowra on Sunday I would presume Sunday afternoon. According to the safety cam information you have just given me he didn't leave Grafton until late Sunday. Q.127. When I asked you earlier to estimate the arrival time of Darri at Nowra given he was sighted by safety cam at Kew at 8.26pm you estimated it would take approximately 10 hours minimum. Is that correct? A.125 [sic: should be A.127] His travel time from Grafton to Nowra would have been 10 hours or less. Q.128. If he was sighted at Kew at 8:26pm what would your estimate be for his arrival time at Nowra? A.126 [sic: should be A.128] About 1.30am but I would have presumed that he would have left home a lot earlier than he indicates. I [sic] indicates that he didn't leave until late on Sunday. Q.129. Given that he completed a trip of 781km on the Sunday evening and into the early hours of Monday was it then in accordance with RTA regulations for Darri to be scheduled to then complete a further 2286km over that Monday 2/8/99 and Tuesday 3/8/99? A.127 [sic: should be A.129] No. Q.130 Who gave Darri the instructions and information relating to the job he was undertaking at the time of his accident? A.128 [sic: should be A.130] Our despatch office. Q.131. Do you know who that was? A.129 [sic: should be A.131] I think ti [sic] would have been Allan Turner. Q.132. When was Darri informed about this job? A.130 [sic: should be A.132] I guess about 10am on 1/9/99. Q.133. How was a reasonable assessment of the hours worked by Darri undertaken by Sayogi Pty Ltd if all the information relating to the days and hours travelled was not recorded on the daily working sheets? A.131. [sic: should be A.133] We presumed that the driver was working with the log book hours and if he wasn't he should tell us. We do not direct our drivers to work out of log book hours. 232 The first passage shows that the Company directed Mr Haynes, on at least one occasion, to complete work duties which would breach RTA rest regulations: either the alleged system was not applied or it was manifestly ineffective. The second passage indicated that the defendant did not really expect a weekly review of kilometres to be an effective safeguard against fatigue: to the extent that this issue concerned the Company, it was delegated to the drivers in its entirety. As far as the Company was concerned, it was the drivers' responsibility to work within the confines of the log-book and the onus was on the driver to raise any fatigue-related issue with the Company. 233 In conclusion, I am satisfied beyond reasonable doubt that the Company failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation. I reject the defendant's submission that "the driving duties of Mr Haynes gave him ample opportunities for rest" and that "the court may infer from this that it is implied that the effect of sleep deprivation and fatigue was taken into account". This submission is incorrect for several reasons, some of which I will mention here (noting that my later observations in relation to delivery times also put paid to it): first, it is limited to driving duties - the evidence clearly established that drivers had other, time-consuming work duties (such as loading, unloading, queuing, washing the truck) which must be taken into account when assessing fatigue. So much is apparent from the log-book definition of "work", even without the combined evidence of the drivers and Associate Professor Williamson. Secondly, it is not pertinent whether Mr Haynes had "ample opportunities for rest" (which I do not accept, based on my earlier findings in relation to his last week): the Company could not discharge its duties simply by expecting the drivers to manage their own affairs in compliance with the log-book regime, as I have discussed earlier. Apart from the fact that this proposition is inconsistent with employers' duties for proactive management and supervision of health and safety under the Act, (and I have already noted and accepted Associate Professor Williamson's evidence that fatigued drivers cannot be relied upon to make sensible decisions in relation to rest-breaks), the overwhelming evidence that Mr Haynes was dangerously fatigued on two occasions in a period of just one week shows that whatever the theoretical flaws of self-regulation (which are themselves persuasive), it patently did not work in practice. Rest-breaks were not taken in a manner to prevent or cure fatigue (nor indeed were they required by the supervision or enforcement of an appropriate system) and each driver gave evidence of regularly flouting the breaks prescribed by the log-book regime, as I discuss below. Delivery Times 234 The evidence suggested that the Company's culpability (and therefore the defendant's) exceeded its manifest failure to monitor driving hours and rest-breaks; enforce the log-book regime; adopt an alternative system of fatigue management based on the regulation of driving hours and rest hours; or take fatigue into account when allocating work. At the very least, the Company's system of work at the time of Mr Haynes's accident impeded effective fatigue management by leaving matters wholly in the hands of the drivers at the same time as providing incentives to drive for longer hours at the expense of rest hours. However, there was persuasive evidence that the Company's contribution to driver fatigue was more than omission. 235 I have already provided one example of such conduct: the evidence of Mr McLennan and Mr Jones under cross-examination and in re-examination (which I have accepted) that drivers in the Company's yard were woken at 7am (or, according to Mr Jones, 6am), regardless of when they had arrived and fallen asleep so that they could help unload or wash the truck. More significant was the evidence relating to driving in breach of log-book hours. The drivers' evidence extracted below, which I accept, painted a clear picture of explicit instructions to drivers to breach the log-book regime, and of the imposition of excessive workloads which required the log-book regime to be breached in order to be met. 236 The defendant's evidence in the WorkCover interview in relation to Mr Haynes's daily work sheets for 2 and 3 August 1999, extracted above, provided a clear illustration of one occasion when Mr Haynes was directed by the Company to breach the log-book regime. Lest there be any doubt, the defendant volunteered during the WorkCover interview that Mr Haynes breached permissible driving hours during his employment with the Company: Q.56. Did Darri Haynes drive for Sayogi Pty Ltd at weekends? A.56. Yes not all the time abiding by the correct driving hours. Q.57. (John Patton). Can you tell me what the correct driving hours were? A.57 He is allowed to drive 12 hours with his correct breaks for the 12 hour period. 237 The evidence of the other drivers corroborated this practice and indicated that it was an inherent aspect of the Company's system of work. 238 Mr Jones gave the following evidence in chief which was unchallenged in cross-examination (except as to the meaning of "morning", discussed below): Q. In the period before Darri Haynes died did you ever exceed your log book hours? A. Yes. Q. Why was that? A. To cover the work. To do it because I was instructed to do it. And also to make sure that if I got the job completed then I could get the next job. So I didn't get work taken off me. Q. Did you ever raise this issue with anyone at Jim Hitchcock Haulage? ... In that period, that month? Did you ever raise this issue with anyone? A. No. Q. Did anyone ever speak to you about this driving outside the allowed hours was not evident from the yellow pages you handed in [sic]. In driving outside the hours was that in the yellow pages you filled out? A. No. Q. How was that? A. Well, I doctored a lot of books so it won't be on the yellow pages. ... Q. Was it possible to do the jobs you were allocated without doctoring the log book? A. No. Q. Why is that? A. The length of the jobs was just too great to cover in that time. Nowra to Brisbane is roughly about 15 hours. Even fatigue management you're only allowed to do 14. Q. Why didn't you stop and take a rest? A. Because we were told to be there in the morning. and: Q. How did you doctor the log books? A. Well, it was quite simple. If you were coming out of Brisbane back to Sydney and you went to Nowra you would book off at Sydney and when you went on your return trip back up you would book back on at Sydney or if you didn't have a mark in your book the day before and you left Nowra, you would book it to Sydney the day before and then have a 12 hour break and when you went through Sydney you would book back on and keep going. Q. When you say you would "book back on" what do you mean by that? A. Book back on as driving. Q. So in the example you have given what would be reflected in the log book in the period of driving from Sydney to Nowra and back to Sydney? ...[Interjection] Q. For the moment would you - as I thought you were - did you understand my questions to be referring to the period before Darri Haynes' death? A. To a certain degree, yes. Q. On that basis I was asking you if you doctored the book and you said something and it got to a point and I asked you how was the period of driving from Sydney to Nowra and back to Sydney from Nowra reflected in the log book, if at all? A. It wasn't. Q. What would have been shown in the log book for that passage of time? A. That I was on a rest break. Q. Were you aware of any checks that could be conducted as to the accuracy of log books if you were pulled over by the RTA? A. Yes. Q. Did you have a view as to whether it could be checked whether you were not taking a rest break going from Sydney to Nowra and back? A. Yes. Q. What was your view about whether that would have been checked or not? A. All the trucks are equipped with UHS and if the RTA was there you would fill out the log book. Q. What is the UHS? A. CB, the same thing. The same thing as the police use. Q. Were there any Safe-T-cam cameras -- A. No. Q. -- for example between Sydney and Nowra? A. No. Q. Were log books to your knowledge checked against the Safe-T-cam camera sitings [sic]? A. Yes. Q. Was that something you had in mind when you were filling them out? A. Yes. Q. If there were no Safe-T-cam cameras between point A and point B, was it your view that that gave you greater leeway to doctor your log books? A. Yes. Q. In the period before Darri Haynes died when you worked for Jim Hitchcock Haulage, did you ever hand in the yellow pages to Jim Hitchcock Haulage being the rest period between Sydney and Nowra and back from Nowra to Sydney when in fact you had been driving? A. Yes, I would say so. Q. Did anyone ever inquire of you why that was so? A. No. Q. Did anyone every [sic] query at all that entry? A. No. 239 Mr Hodgkinson cross-examined Mr Jones about the imperative to "be there in the morning" to suggest that the time-scales were not overly stringent - "the morning" could be until midday, in which case regulation rest-times could still be accommodated. This line of cross-examination accepted that there was in fact a requirement to "be there in the morning" and simply challenged the terms. I infer from Mr Jones's answers below that arriving at midday would not in fact have been acceptable. Moreover, Mr Jones was confident in his evidence that by the time he unloaded, reloaded and filled the truck with fuel, he would be leaving Brisbane at "about 12 as a rule". The drive to Nowra was a 15 hour drive; even assuming (contrary to his unchallenged evidence of what actually happened) that he left Brisbane at 10am and that the drive was only a fourteen hour drive (which was unlikely; in Mr Jones's terms, "you would have a pretty quick truck"), taking the requisite breaks would mean that he would not arrive at Nowra until 11am or 12am the next day: Q. Even so you arrive down there 11 o'clock the next day, you were told to be down there the next morning, that's the next morning, isn't it? A. I suppose technically it is. 240 I do not accept, on Mr Jones's evidence, the intimation in this line of cross-examination that the requirement to "be there in the morning" (which was not disputed) could have been met without breaching the log-book regime. I accept Mr Jones's evidence that he would ordinarily leave Brisbane at about midday and that he then faced a 15 hour drive to Nowra. It would not have been possible for Mr Jones to "be there in the morning" (even accepting that this meant any time before midday, which I do not, given Mr Jones's reticent acceptance of the proposition as "technically" correct) without breaching the regulations which prohibited more than 12 hours' driving in any 24 hour period. It is also important to note (as foreshadowed above) that Mr Jones's assertions that he falsified his log-books to conceal excessive driving hours and that he handed in to the Company duplicate log-book pages which showed fabricated rest-breaks (when in fact Mr Jones had been driving from Sydney to Nowra and back to Sydney) were not challenged in cross-examination. Furthermore, the other drivers corroborated his evidence. 241 Mr Everingham also gave evidence about delivery times and the expectation that he would drive in breach of the regulations. Again, this evidence was not questioned in cross-examination: Q. When you had to deliver a load somewhere were you given times in which it had to be there? A. Yes. Q. What if you weren't in on time? A. Got into trouble. and: Q. Were you ever required to drive in the period before 1 September 1999 by Jim Hitchcock Haulage when you knew you would be expected to exceed your allowable driving hours within the log book section? A. Yes. ...[Objection overruled] Q. How were you required to drive in that manner for Jim Hitchcock Haulage? What method was the requirement put upon you? A. Just get in the truck and go and be there by morning. Q. What if you said "no", for example? A. Well you wouldn't have a job. The freight has to go through. It has got to go that is the job. Q. Did you ever say that you couldn't drive because you were outside the log book hours? A. No I have been driving trucks for 30 years. Q. I don't understand? A. Either you can do the job or you can't, that is it. If you can't do it don't be there. If you can't ride the horse don't get on it. Q. What if it goes outside your log books hours? A. Well that is part of the job. That is the freight has got to go you have got to get through. 242 As with the other drivers, Mr Everingham explained that in such a situation, he would "bodge his books": Q. On that trip from Nowra to Brisbane or Brisbane to Nowra would you on occasion have to falsify your log books? A. All the time. It's an occupational hazard, you have to do it. It's an occupational hazard. If you don't get the job done, the idea is if you're an experienced operator you go out, you do the job to get the job done. 243 Mr Everingham agreed, under cross-examination, that if he was too tired to drive, he could pull over and have a sleep, and stated that on one occasion he notified the Company that he had to do just that: Q. You could decide when you wanted to pull over? A. I have rung Jim when I was tired and the freight had to be in and I said, "Look I, can't hold me head up" and I said "what do I do" and he said "go to bed". Q. In that circumstance you told us about you were tired, you rang Mr Hitchcock and said "I need to have some sleep" and he just said "go to bed"? A. Simple as that. 244 The defendant contended that this evidence of Mr Everingham supported the inference that "there was no pressure placed on employees by their employer to "keep driving and not take an urgently needed sleep"". To the extent that it is relevant, I reject this contention. In my view, the evidence of the drivers (Mr Everingham included) clearly established that drivers working for the Company were under pressure to keep driving in breach of the regulation rest-breaks - rest-breaks described by Associate Professor Williamson as the minimum needed to forestall fatigue. This uniform evidence was not contradicted by Mr Everingham's description of one instance when he was so exhausted he rang the Company to seek its imprimatur for a sleep. One can infer from his earlier evidence that if "the freight doesn't go through" you "wouldn't have a job" just how desperate he must have been to take this step. Indeed, I infer that he put it as being exceptional. It is unnecessary for me to consider some more stringent criterion for permitted sleep such as "urgently needed" sleep (assuming of course, contrary to Associate Professor Williamson's evidence, that the fatigued driver would be sensitive to this need) which may have been permitted by the Company to usurp driving schedules. 245 Mr McLennan gave the following evidence in chief which was not challenged during his extensive cross-examination: Q. What sort of details were you given - I think you said you phoned them when you were on the road about where to go for the commencement of the next job? A. Some places you go at a time that is slotted, like you load say in Sydney and have to be in Brisbane by say 5 in the morning or 7; and that is your time slot; you have to be there to unload or to be early so you're there and unloaded and you can then go somewhere else. Places that are not time slotted you have to just be in the place early. Q. Did anyone from Jim Hitchcock Haulage ensure that you got to those places at those times or not? A. No-one was there to - you sort of rung up after you had unloaded so if you left early you rang up early so they knew you were there. Q. If you were not there on time was there any feed back? A. Just that you rang up late to let them know you were late. and: Q. Were you ever required to drive for Hitchcock Haulage when you knew you would be exceeding your driving hours as prescribed by the RTA and required by the log book? A. Yeah. Q. When was that? A. At this time before Jim Hitchcock Haulage was accredited the driving allowed for driving time was 12 hours. Q. From where to where? A. It was 12 hours per 24 hours. This is before the company was accredited. Q. Accredited with whom? A The RTA management accreditation which gives them 14 hours. I finished before the company got accredited so from Nowra to Brisbane or Brisbane to Nowra you couldn't do that legally in 12 hours. 246 In cross-examination, Mr McLennan gave evidence of an trip he made for the Company from Adelaide to Sydney during which he approached a weigh-station and learned through two-way radio communication that it was open, and that they were checking each truck driver's log-book. Mr McLennan had been recording his hours accurately in his log-book, and if he had proceeded he would have incurred a fine for driving more than the maximum permitted hours without sufficient rest-stops. He telephoned the Company to advise that he had "run out of hours" and would be fined if he proceeded. Mr McLennan insisted that the Company representative asked him when he would be able to go, and no more, notwithstanding extensive cross-examination to the effect that he was directed to stay where he was until he had had the rest required by the RTA. Mr McLennan denied this suggestion and advised that if the weighbridge had been closed, he would have kept going. I accept that Mr McLennan would have done so. 247 Mr McLennan agreed under cross-examination that this was the only occasion he had to call the Company to advise them that he had run out of driving hours and explained that it was because he had not been forewarned of the log-book check on the drive from Adelaide to Sydney. In contrast, Mr McLennan stated that: A. On all the other routes from Sydney or Nowra to Brisbane when you are driving you talk to other drivers that are going the other way. You know what is going on. That is why I probably put up at Maitland just before the weighbridge because I knew what was going on. When you are coming into Sydney or Brisbane you know what is going on. You know what is going on all up and down the road. … If there is something going on half an hour up the road I know about it because I talk to other blokes. If there is something going on you fill your log book out. If there is not you wouldn't. Q. The only time you raised a problem with your hours, that is this trip from Adelaide to Sydney for Hitchcock Haulage, all they asked is when you were going to leave in accordance with the legal hours requirements? A. That is right. Q. You thought it was probably so that they could notify the client. Is that right? A. I would imagine that they would have to let someone know that I was not going to be there or I was going to be late or whatever. 248 Earlier, Mr McLennan had stated during the same passage of cross-examination: A. The freight that I had on was supposed to be in Brisbane, in Sydney sorry, I would have been in Sydney if the weighbridge was not open. 249 Again, as with Mr Everingham, I consider that this evidence of Mr McLennan illustrates the exception which proves the rule. Mr McLennan telephoned the Company because he risked being caught exceeding his log-book hours, (and this only happened because he had not been forewarned of the RTA check by other drivers, as he would have been on the Company's main route from Sydney to Brisbane) not because he determined that he was fatigued and needed a rest-break. On the contrary, were it not for the unanticipated RTA check, he would have continued thereby breaching the log-book conditions. Similarly, on Mr McLennan's evidence (which I accept), the Company was not concerned about his fatigue: it was only concerned about the earliest time he could legally depart. Several matters can be inferred from this example: first, that the Company was anxious to know when Mr McLennan could leave so that they could advise the client (as Mr McLennan surmised); secondly, that there was, in fact, an expected time of arrival (otherwise why would the Company feel compelled to notify the client of a delay which could, at most, be six hours?); and thirdly, it was necessary for Mr McLennan to breach his log-book regime in order to meet the expected delivery time. 250 There is an alternative explanation, which is equally problematic for the defendant: that the Company was concerned about the delivery time not because of client expectations (although this may have played a part) but because of work load management throughout the week: Mr McLennan was expected to be at Adelaide at a certain time to allow him to deliver his next load on time, or to enable the Company to deliver a certain number of loads per week. This explanation is supported by Mr Jones's evidence that it was important to meet delivery deadlines in order to "get the next job". Either way, Mr McLennan's evidence of this particular journey supports the drivers' general, consistent evidence that they were required to exceed their log-book hours in order to meet delivery deadlines. 251 Mr McLennan elaborated under cross-examination (in evidence which directly corroborated the evidence of Mr Jones): Q. The idea of the log book, you told us, was to record both your driving and resting hours? A. That's the RTA regulation, to record it. Q. And that is of course what you did on that trip from Adelaide when you decided you had run out of hours? A. That's right. If you could get the yellow pages out of my log book there - it's not very many times that the truck ever went to Nowra. The log book usually stopped at Sydney on any trip down because that's where the twelve hours ran out. 252 And in re-examination: Q. You were giving an answer about most of your log books would be running out at Sydney or the Brisbane run to Nowra. What did you mean by that? A. At the time before the accreditations you could only drive initially twelve hours in every twenty-four hours so coming from Brisbane to Sydney and stopping your log book at Sydney, you go from Sydney to Nowra and each trip you had to be loaded or reloaded and come back to Sydney before you started your log book again so it showed the leg back to Brisbane, the next time. Q. Would Sydney to Nowra and Nowra to Sydney be recorded in the log book? A. Not in the log book, no. 253 Each driver gave unequivocal evidence that they were required by the Company to exceed their log-book hours and that they routinely falsified their log-books to conceal such excesses, typically by omitting to record the southern-most leg of Brisbane to Nowra journeys (which did not have a Safe-T-Cam site), so that according to the log-book the journey ended at Sydney. In this way, it would appear that the drivers were driving from Brisbane to Sydney and back again (thereby not exceeding their permitted 12 hours of driving in every 24) when in fact they were driving from Brisbane to Nowra and back again, a journey of some 15 hours each way. According to the defendant's evidence, Mr Haynes had also been required to exceed his log-book hours by the imposition of work impossible to perform within them. 254 Each driver also gave evidence that they were required to exceed their log-book hours in order to meet delivery deadlines: Mr McLennan gave several examples (in evidence extracted earlier in the judgment). Either the drivers had to deliver their loads at a certain time (to conform with a specific time slot) or they had to be there "early" in order to deliver their load and go to their next destination. If they were not there "early", they would lose time waiting hours for other drivers to unload before them. According to Mr McLennan, this happened all the time. Mr Jones and Mr Everingham gave consistent evidence that they had to be there "in the morning" and I infer from Mr Jones's evidence that this meant early in the morning. In any event, as Mr McLennan described, the drivers were under pressure to be there as early as they could to minimise queuing time. 255 Each driver gave evidence that they were under pressure by the Company to follow this work practice. The consequences of failure to meet the delivery times were enunciated in Mr Everingham's evidence extracted above: three such instances and he would be fired. This was corroborated by Ms Campbell's evidence that on his last day, Mr Haynes refused to take a much-needed rest-break because he had to deliver the load on time or risk losing his job. Similarly, Mr Jones's evidence above made it clear that, even if their job was not immediately threatened by a late delivery, the drivers' livelihood was: their workload would be reduced. To an extent, the question of whether the Company actively required its drivers to breach the log-book regime (as I have found) does not matter (in relation to liability): I have already noted the indirect pressure on the drivers to exceed the log-book regime as a consequence of the Company's payment structure. In the system operated by the Company (tantamount to self-regulation of rest-breaks by the drivers with no supervision at all), fatigue levels through excessive driving were not controlled and could be reasonably expected to escalate in the absence of effective management. 256 In stark contrast to the drivers' evidence, the defendant insisted three times in the WorkCover interview that the drivers did not have set delivery times (although once he contradicted himself) and were not directed to drive in breach of permitted log-book hours: Q.72. Was any information provided during these calls in relation to times for starting and finishing driving or having breaks? A.72. No a driver is never directed as to what time he has to be at any destination. and Q.79. How did Darri Haynes receive his work instructions for his driving schedules? A.79. He was contacted by phone and given the point where he was to load from usually in a capital city and when he had loaded he then travelled to his destination and unless there was a break down or any problems where he needed to contact us he did not or did not have to contact us until he reached his destination and unloaded. He did not have to abide or was given time slots. and: Q.156. At the time of the accident to Dari what was Sayogi Pty Ltd doing to ensure they were meeting their duty of care obligations under the Occupational Health and Safety Act 1983? A.156. ... We don't have ETA or time slots, we do not stipulate that in any way. Our company policy is if the driver is given a time slot the driver does not have to abide by that, we want the load there in one piece not a situation. and Q.133 How was a reasonable assessment of the hours worked by Darri undertaken by Sayogi Pty Ltd if all the information relating to the days and hours travelled was not recorded on the daily working sheets? A.133. We presumed that the driver was working with the log book hours and if he wasn't he should tell us. We do not direct our drivers to work out of log book hours. 257 I accept the uniform, consistent, unwavering evidence of the drivers, given in one sense against their own interests, which was not traversed in cross-examination, in preference to the self-serving statements of the defendant in the WorkCover interview. 258 Finally I note that the defendant was asked, in the WorkCover interview, about the Company's occupational health and safety management system: Q.27. Did Sayogi Pty Ltd have an OHS Management system in place at the time of the accident to Darri? A.27. Yes we had training in place. Q.28. Can you tell me about the systems that were in place to manage OHS? A28. Normal driver training of safe loading and safe practices. Q.29. Did Sayogi Pty Ltd have a documented OHS management system in place? A.29. I will have to advise you of what we had in 1999. Q.30. Can you advise me of this by close of business today and provide copies of any documented evidence within 3 working days? A30. Yes I should be able to. and later: Q.156. At the time of the accident to Darri what was Sayogi Pty Ltd doing to ensure they were meeting their duty of care obligations under the Occupational Health and Safety Act 1983? A.156 It is company policy that there is no drugs, no thongs, work boots must be worn and uniforms must be worn, they are to abide by all government and RTA regulations, we offer fatigue management, all drivers are currently being assessed by DECA, they are shown how to tarp and correct securing of loads and it is company policy that we like to see all drivers with dangerous goods licensed and we take them out on the road before we employ them and if they don't drive the vehicle the way we want using the correct clutch and gear box usage and how to read the road. We monitor their total kilometres weekly. We don't have ETA or time slots, we do not stipulate that in any way. Our company policy is if the driver is given a time slot the driver does not have to abide by that, we want the load there in one piece not a situation. 259 No elaboration was forthcoming. I have already noted at paragraph [206] the documents the defendant subsequently provided to WorkCover: the RTA Heavy Vehicle Driver's Handbook (which may or may not have included information on the log-book regime); a Load Restraint Guide; and a Company styled Professional Drivers' Manual dated 1 February 2001 which bears no relevance to the charges in this matter, post-dating the accident by more than a year. I infer from the drivers' evidence, and the defendant's failure to provide a copy of one, that there was not, in fact, a documented occupational health and safety system. I note that the defendant's answers, taken at their highest, allege a safety system comprising of driver training (which I discuss later) predominately relating to the securing of loads and truck maintenance; an "expectation" that the drivers would abide by "all government and RTA regulations" (which I have already found was not genuinely held); a weekly check of kilometres (which I have found was not performed for the purpose of managing fatigue and in any event was incapable of assisting such an inquiry); and a denial that drivers were expected to comply with delivery deadlines, which I have rejected. 260 In summary, I have made the following findings beyond reasonable doubt as to the Company's work practices: that there was no Company policy on driving hours or rest-breaks distinct from the log-book regime; that such policy as there was ("to abide by the log-book") may not have been communicated to the drivers (and if it was, it was in a perfunctory manner at the commencement of employment); that the "policy" was not enforced or supervised; that the Company did not collect any oral information pertaining to driving hours or rest-breaks and did not conduct any review of the relevant written information (the duplicate log-book pages); and that "compliance" with the "policy" such as it was on rest-breaks and limited driving hours was left totally to the drivers in a system which provided incentives (through pay) to increase driving hours. I have further found, beyond reasonable doubt, that the Company did not take into account the effects of fatigue and sleep deprivation when preparing rosters. Finally, I have found that the Company pressured its drivers to meet delivery deadlines resulting in breaches of the log-book regime - either due to specific time slots for particular depots, as mentioned by Mr McLennan, or to Company imposed deadlines to be there early "in the morning" - and that they risked their jobs or income if they failed to comply. This pressure may have been to meet client expectations, or to manage excessive workloads, or a combination of the two; the result was the same. Needless to say, even the most superficial fatigue management system would have picked up the falsified log-books handed in by the drivers, which could not have tallied with kilometres recorded on their daily worksheets or with the deliveries they were directed to make. Clearly, the failures alleged in the particulars relating to rest-stops, driving hours, driving rosters and the Company's system of work have been made out to the requisite criminal standard of proof. 261 There was no evidence to suggest that the Company's system of work did not apply to Mr Haynes, or applied to him in a different manner and nor was this suggested by the defendant: on the contrary, the defendant agreed in the WorkCover interview that the Company had directed Mr Haynes to breach his log-book hours by allocating an excessive work load and Ms Campbell gave evidence which I have accepted that on the night he died Mr Haynes told her, in response to her urging that he have a sleep, that "The load has to be there otherwise I'll get the sack" (a concern he reiterated in their second conversation at 9.30pm). Nothing about the pattern of work in his last week is different to the system described by the other drivers as operating at the time of Mr Haynes's employment and death. I find that Mr Haynes worked under the system of work described by the other drivers and summarised above. The defendant's submission that there was no evidence of a "slot-time" for Mr Haynes's last journey (based on the Coca-Cola load manifest which recorded the delivery time as "2 September 1999) misses the point: it is clear that the drivers were under pressure to deliver loads within particular time-frames (for the Company's purposes), whether or not this was actually specified as a time slot at a particular depot or by a particular client. I would be remiss to infer, on the basis of this load manifest alone, in contradiction to the drivers' uniform evidence of a practice of delivery times and in contradiction to Mr Haynes's own statement to his wife that night that he feared losing his job, that there was no expected delivery time for that last load. Furthermore, this submission relies to heavily on the accident and, by itself, in the face of overwhelming evidence to the contrary, is no answer to a systems-based charge. 262 In order to establish liability on these grounds, it remains to consider causation (subject to any defence). I am satisfied beyond reasonable doubt that the Company's failures to ensure that its drivers took sufficient rest-stops; to record and audit driving hours properly; to provide a safe system of work to minimise the risk of fatigue and sleep deprivation; and to take fatigue into account when preparing driving rosters caused the risk to Mr Haynes's health and safety of driving whilst fatigued. The defendant only raised causation in relation to one of these particulars - rosters - in his written submissions, but in my view the causal nexus is obvious. Had the Company taken into account the effects of fatigue and sleep deprivation (armed with accurate information of driving hours and rest-breaks) in accordance with its statutory obligations it would not have allocated work to fatigued drivers. Indeed, this would have been the most effective means of minimising the risk of its employed drivers driving whilst fatigued: withholding work until appropriate rest-breaks had been taken. As Associate Professor Williamson so graphically stated in cross-examination, "You're not going to crash if you're not on the road". Information, Instruction, Training And Supervision 263 According to this particular, which was drafted in very broad terms, the Company failed to provide "such information, instruction, training and supervision of its employees as may be necessary to ensure the health and safety at work of its employees". The prosecution's written submissions suggested a narrower scope (by acknowledging training in relation to the tying of loads and tyre maintenance) based on fatigue management training and this is the approach I shall adopt in determining whether this failure has been established. Although it is true that a failure to provide training and instruction in relation to tyre maintenance or the securing of loads (for example) may adversely affect employees' health, safety or welfare, there was no evidence to suggest that the training provided in these areas was inadequate. 264 I have already reviewed the evidence (particularly the defendant's WorkCover interview) which demonstrated overwhelmingly that the Company expected the drivers to take care of themselves: it is incontrovertible that the Company failed to provide any (let alone adequate) supervision and I find that this particularised failure has been established. 265 The defendant made these comments in the WorkCover interview in relation to training: Q.149. What training or instruction is provided to drivers with regard to recognising and dealing with fatigue? A.149. They have done fatigues [sic] management courses. And we encourage drivers to take 6 weeks leave a year instead of four. Q.150. Did Darri Haynes undertake the training in driver fatigue management? A.151. No because of the short period of time he'd been there. Q.152. Prior to the 1st September 1999, had Darri Haynes received any safety or any other training provided by Sayogi Pty Ltd? A.152. The correct procedures in tying down loads and the correct procedures in tyre maintenance and on several occasions he had been taken for driver refreshments when he was at the depot. 266 Mr McLennan stated that the Company never gave him any training; the only thing he could recall reminiscent of training was driving the truck around the town as part of the job interview. In particular, he stated that he was not given any training in fatigue management. Under cross-examination, Mr McLennan agreed that he had completed a fatigue management course before he started work with the Company and that he had told the Company this. The course covered the requirements for truck drivers to drive only for certain periods; their rest requirements; and the enforcement mechanisms used to police rest. There was no evidence to suggest that Mr McLennan's course was inadequate, or that the Company should have provided some form of follow-up training. 267 Under cross-examination, Mr McLennan stated that he might have seen the RTA heavy vehicle drivers' manual, the Hitchcock Drivers' Manual, and a Load Restraint Guide, when he started work with the Company, and may have been asked to read them, but he did not remember them. He agreed that when he started work, he was instructed how the Company expected him to unload. 268 Mr Jones stated that the only training he was given was spending two weeks in the yard learning how to load general trailers as distinct from livestock. Mr Everingham stated that he was not given any training at all by the Company, let alone specific instructions relating to occupational health and safety policies. Under cross-examination, Mr Everingham stated that he did not consider that he needed any training in how to drive trucks, complete log-books, or take breaks. 269 Except in the case of Mr McLennan, there was no evidence to support the defendant's assertion that the drivers had "done fatigue management courses". On the contrary, Messrs Jones and Everingham stated that they had not been given any such training and the defendant stated that Mr Haynes had not. When this evidence is combined with my previous finding that no-one from the Company ever discussed with the drivers sleep, rest periods, or whether they were getting adequate rest, I find beyond reasonable doubt that, as alleged, the Company failed to provide its drivers with any information, instruction, or training in relation to fatigue management. The defendant resisted this particular by relying on its repeated assertion (which I have already dealt with) that Mr Haynes had sufficient rest opportunities in his last week (in this context, as well as being factually incorrect, it is a non-sequitur); and by relying on the defendant's assertion in the WorkCover interview that the Company conducted "normal driver training of safe loading and safe practices". Although this is consistent with the evidence of Messrs Jones and Everingham that they were instructed on loading and unloading, it does not provide any basis for rejecting the drivers' evidence that they were given no training, instruction or information in relation to fatigue management. 270 I am satisfied beyond reasonable doubt that the Company's failures to provide information, instruction, training and supervision of its employees (as discussed above) caused the risk to Mr Haynes's health and safety of driving when fatigued. The evidence of Associate Professor Williamson made it clear that drivers suffering from fatigue could not be relied upon to make decision necessary for their safety: it follows that supervision was essential. It was also apparent from her evidence of the manner in which fatigue develops (reaching dangerous levels after just one night of no sleep or interrupted sleep during the core period) and of the effects of fatigue on driving, that training, information and instruction were necessary to impress upon drivers the seriousness of the risk, the importance of taking appropriate rest-breaks to avoid it, and how best to do so. Matters relating to circadian rhythms; optimum times for falling asleep; the varying quality of sleep depending upon when it is taken; and the consequences when driving in the absence of sleep for 18 hours tantamount to driving with a blood-alcohol level of 0.05 are not matters of common knowledge and yet are critical to long distance truck drivers. It may be said to be even more critical for the Company's drivers, who commonly drove a 15 hour route (from Brisbane to Nowra). Warnings in relation to Fatigue 271 There was no evidence that the Company warned any of its drivers of the dangers of fatigue in the context of long haul truck driving. On the contrary, my findings that the Company never discussed with the drivers whether they had had adequate sleep; their rest-breaks or driving hours; and that they were not given any training, instruction or information in relation to fatigue management, compel a finding beyond reasonable doubt that the Company did not adequately warn employees of the hazards of fatigue in the context of long haul truck driving. 272 However, I am not satisfied that this failure could be said to have caused the risk to Mr Haynes of driving whilst fatigued. Had the Company provided a safe system, monitored driving and working hours and rest-breaks and provided adequate training, information, supervision and instruction and taken fatigue into account when allocating work loads, I do not consider that the evidence demonstrates to the criminal standard that this failure, in isolation, would have caused the risk. Consequently, I find that this particular has not been proved to the requisite standard. Warnings in relation to drug-taking 273 The evidence established that Mr Haynes took methamphetamines for work purposes (but not for recreation) and, according to Dr Perl's evidence, which I accept, that this practice is widespread in the long haul trucking industry in Australia. I infer on the basis of Dr Perl's evidence, the Company's Employee Application Form (which contained a question about drug offences) and the defendant's experience in the industry of more than 15 years that the Company, and the defendant in particular, were well aware of this industry-wide hazard. 274 The defendant stated in the WorkCover interview that drug-taking or the use of stimulants was "totally against company policy" and that any driver found using such a substance would be dismissed immediately. Notwithstanding the prosecutor's submission (which I accept) that there was no evidence of any such warnings; notices; or internal bulletins on the subject, the evidence of the drivers tended to support the existence of such a policy. 275 Under cross-examination as to his commencement of employment with the Company, Mr McLennan insisted that nothing was ever said about driving and drinking or taking drugs. Mr Jones however gave different evidence: he stated that when he first started working for the Company, he was advised of the following driver-related policies: "no drug taking, sticking by the log book regulations, that type of thing". Similarly, Mr Everingham agreed under cross-examination that when he started work at the Company he was aware of its policy that no drugs were to be used by the drivers. 276 In his Employment Application Form, Mr Haynes was asked whether he had any convictions for offences relating to the use of drugs; this question was left unanswered and the defendant stated in the WorkCover interview that he could not recall why this was so. I do not consider that it can be inferred from this evidence, without more, that the Company did not follow the matter up with Mr Haynes. 277 In summary, I accept that the Company probably communicated to its drivers when they started work that drug-taking or the use of stimulants was against the Company's policy. Although there was no evidence of any specific warning in relation to the hazards of driving whilst taking stimulant drugs, there was evidence that the matter was discussed, and that the drivers were advised not to take such drugs while in the employ of the Company. I do not believe that there is sufficient evidence to find beyond reasonable doubt (as I have in relation to rest-breaks and driving hours) that the Company condoned or contributed to a practice which contradicted its directions to drivers upon the commencement of their employment. Nor did the prosecutor submit this. There is in my mind a reasonable doubt as to whether the particular has been established and I therefore find that it has not. I might add that the particular, as drafted, alleges a simple failure to warn: a failure to enforce a policy prohibiting the use of drugs and to supervise such a policy would have raised different issues. CONCLUSIONS 278 The defendant placed great significance on his submission that the prosecutor could not establish the charges in these proceedings unless he was able to prove beyond reasonable doubt that Mr Haynes was fatigued at the time of the accident. According to the defendant, if this could not be proved, the prosecution would be relying upon a "risk of a risk" which could not be sufficient to found a charge under the Act. As I discuss below, this submission was misconceived. 279 According to the prosecutor (and to the charges), the relevant risk to safety was the risk that Mr Haynes would "fall asleep while driving a heavy vehicle at speed on the highway", posing an obvious risk to health and safety (viz, a motor vehicle accident). I reject the defendant's oral submission that the sole allegation embodied in the charges was a failure to take some steps to stop someone driving after they had become fatigued. Such an interpretation may describe one aspect of one particular (preparing rosters taking fatigue into account), but is obviously inconsistent with the pro-active nature of the duties under the Act and the allegations in the charges of failures to take pro-active steps, such as to train, instruct, audit and to warn and create systems of work (and enforce them) which would prevent fatigued employees from driving in the first place. 280 According to the defendant, the prosecutor's interpretation of the risk would not do: such an allegation involved two contingencies (falling asleep and driving) neither of which were alleged, in themselves, to have exposed Mr Haynes to risk. The defendant concluded his argument by stating that it was impermissible to combine two events to establish a risk under the Act (in Mr Hodgkinson's terms, a "risk" of a "risk" is insufficient to found a charge under the Act). 281 I do not see how the defendant's argument can be substantiated. A brief application to the facts in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 demonstrates the fallacy: no-one suggested that the removal of tree limbs (of itself) constituted a risk to health and safety; nor that mere proximity to live transmission lines breached the Act. The decisions of the Full Court necessarily assumed the existence of an actionable risk under the Act based on the combination of these two events: lopping branches near live transmission lines constituted a risk to health and safety (viz, electrocution). In fact, the analogy between Cullen and the present case can be developed further: in Cullen, tree-lopping was a significant part of the employees' duties but did not have to take place near live wires: the senior linesman could call for the power to be turned off if he had any reason to consider that there would be a risk of contact between the tree limb and the conductor. Similarly, 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). 282 I also note that the defendant's submission suffers from the mistake discussed recently by the Full Court in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270. In that case, which concerned two gas explosions during the upgrade of Kogarah railway station, the second of three issues on appeal was solely concerned with the determination of what constituted a relevant risk for the purposes of ss15 and 16 of the Act. The appellant submitted that there could not be a finding of a risk to health and safety on 10 November 1995 because (a) the charged gas supply was covered with pavers and not subject to construction work and (b) although it was a building site, demolition work involving machinery and equipment (which may come into contact with a charged gas supply under pavers) was not scheduled to take place at the time. The Full Bench held 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. In the present case, the defendant's insistence that the prosecution establish that Mr Haynes was fatigued at the time of the accident is in reality an insistence that the prosecution establish present danger. This submission would, if accepted, unjustifiably restrict the operation of ss15 and 16 of the Act, contrary to the principles established in Abigroup v WorkCover. 283 I do not consider that it is necessary to discuss the submission further in order to dispense with it, other than to note that the concept of risk under the Act has been examined at length recently in WorkCover Authority of New South Wales (Inspector Barry Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207, a case which concerned the risks of driving an "all terrain vehicle" off-road and in which liability was established. I adopt the discussion of principle in WorkCover v Kirk Group Holdings Pty Limited in relation to risk and causation (notably paragraphs [141]-[143]) and draw particular attention to paragraphs [131] and [133] in relation to risk: [131] It is worth stressing the frequently repeated principle that the duty is one to prevent risks to safety, not to prevent the risk of injury. This was vividly illustrated by Hill J's description in Atco Controls Pty Limited of the duty (quoted in WorkCover v Fletcher Constructions , extracted above): "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace" (emphasis added). As noted in Haynes v C I & D Manufacturin g and subsequent authorities, it follows from the correct interpretation of the duty as one to prevent risks to safety, that (defences aside) liability will ensue if an employer's act or omission "created a situation of potential danger to the health and safety of people at its workplace". [132]The Court analysed the nature and meaning of risk and attendant issues of causation in detail in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 at 393, in the context of risks which arise independently of the defendant (in that case, aggressive or violent behaviour by a student) and which cannot be completely eliminated: [136] The legal issues raised by the two cases [ O'Sullivan and WorkCover Authority of New South Wales (Inspector Keelty) v Police Service of New South Wales (No 2) (2001) 104 IR 268] are similar. In this case (in addition to its temporal argument in relation to manifestation of risk), the defendant has argued that the violent acts of severely intellectually disabled students cannot be accurately predicted, cannot be completely eliminated and are due to unknown causes independent of the defendant. Accordingly, the defendant submitted, they cannot give rise to liability under s15 of the Act. In WorkCover v Police Service (No 2) the defendant put similar arguments based upon the unpredictability and uncontrollability of a violent, armed member of the public. The similarity of arguments and issues between the two cases (and consequently the relevance of his Honour's reasoning, with which I agree) is best illustrated by the defendant's formulation of the tests to establish liability in WorkCover v Police Service (No 2) at [8]: · '' Would the act or omission alleged in each summons have ensured the health, safety and welfare at work of the officers? · Would the act or omission have provided plant or systems of work that were safe and without risks to health? · Did the acts or omissions alleged create a situation of potential danger to the health or safety of the officers? · What were the objective facts causing detriment to safety and was there a causal connection therewith of the employer? · Has the prosecution proved beyond reasonable doubt that the events were caused by the failure of the employer and not some other unrelated factor?''(Emphasis added.) and the prosecutor's response (at [12]): (1) The relevant failure by the defendant the subject of the charge in each summons was not the risk created by Mr McGowan but the risk arising from its various failures in a situation where the two police officers were working in an environment where they were at risk of being shot or experiencing physical harm; the relevant risk, therefore, was that brought into existence by the defendant. (2) Whilst the defendant was not aware Mr McGowan posed the specific risk which occurred, the defendant was well aware of the type of risk which could arise for police officers engaged on operational duties; it was not a question of the defendant being responsible for the actions of Mr McGowan. The defendant should be held responsible for its acts or omissions in circumstances where the type of risk posed by Mr McGowan was well known to it. (3) To interpret s 15, as did the defendant, as not extending to any risks to employees arising from the unlawful actions of third parties would be a mandate for employers to ignore such risks and there was no basis in the legislation for such a narrow approach. That was especially the case with police officers whose main role was to deal with unlawful activity and, given the intention of the statute to improve the safety of the working environment, no such narrow view should be accepted. (4) The defendant's submission that the prosecutor must prove that the absence of the act or omission allegedly creating the risk to safety would have ensured the health and safety of the two officers misapprehended the statutory duty on the employer pursuant to s 15(1) — rather, the duty was to show that the act or omission amounted to a failure by the employer to ensure or provide for the safety of the two officers; the prosecutor must show an act or omission which detracted to the relevant degree from the obligation to ensure safety in the workplace. [137] Hungerford J considered Haynes v CI&D Manufacturing and the following passage from Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 (including the analysis in that case of Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467): We consider that this submission is misconceived. Firstly, the submission focuses on the foreseeability of the alleged risk to safety. The authorities cited above establish that in order to demonstrate a breach of s 15(1) the prosecutor is required to prove the existence of a failure on the part of the employer which is causally connected with the risk to safety. There can be no failure on the part of the employer in not taking steps to preclude a risk which was impossible to anticipate: see WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, Peterson J). However, the appellant goes further and submits that no breach of s 15(1) is committed where the employer does not know of the hazard and could not reasonably know about it. The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1). Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. [138] Hungerford J then rejected the defendant's general submissions in avoidance of all the charges that the relevant risk was created externally from the defendant by unpredictable and criminal conduct over which the defendant had no control, preferring instead the prosecutor's stance. Due to the importance of his Honour's analysis in this aspect of his judgment I shall set out in full the relevant passages (at [22]-[24]) as follows: [22] The general submission made by Mr Hastings on which his no-case application was based as to all charges was that the relevant risk to safety here was Mr McGowan over whose unpredictable and unlawful conduct the defendant had no control; and, so senior counsel submitted, there was no causal nexus of the defendant to the detriment to safety of the two officers. In my view, that submission cannot be sustained. Mr Hastings went further and submitted that the significance of Mr McGowan's role was such that there was nothing the defendant could have done to obviate the risk caused by Mr McGowan; as senior counsel said - "There is nothing to provide the employees with safety in those circumstances". Even given, which I think clearly was the case, that Mr McGowan presented as a risk to the officers' safety, that is not what any of the charges were directed to. The charges identified what were alleged to be risks existing to the safety of the two officers apart from the ultimate actions of Mr McGowan in causing their deaths. The answer to Mr Hastings' submission in this respect is simply that it concentrated on the incident itself, that is the fatal shooting of the two officers by Mr McGowan, rather than the situation in which the officers were placed while performing operational duties at the time and place of the incident in terms of risks to their health and safety occasioned by the particular detriments identified in each of the charges. In other words, the defendant's submission fell into the same vice by concentrating on the incident itself as the Full Court in Haynes v C I & D Manufacturing found occurred there at first instance. [23] I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say, but as did Mr Hastings , that "the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of McGowan, with which there was no causal connection to the employer" and: it is impossible to guarantee or to ensure the health and safety of police officers, and you can provide them with all the equipment under the sun short of an armoured vehicle and they will always be exposed to risk. Even if you did all the things that the prosecution has alleged were not done here ... those things had absolutely no bearing on the safety of Senior Constable Spears because he was simply surprised and ambushed before any of these factors had any capacity to come into play. Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees, the legislature has created the absolute duty on employers in s 15, subject to the s 53 defence, to ensure the health, safety and welfare of those employees at their place of work. ... ... In light of the general submission so forcefully put by the defendant here, it is perhaps timely to repeat the following comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85 : This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. [24] Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. In the same way, and notwithstanding the submissions of Mr Hastings to the contrary, comparable steps should be taken by employers in satisfying the statutory duty in respect of their employees liable to the effects of unlawful action by criminals, such as, as identified by Mr Hastings , those employees engaged in "service stations, pharmacies, shops, banks, cash delivery, cigarette trucks, buses and taxis". In identifying those occupations, Mr Hastings submitted as to them "there is a known history of violent and unlawful attacks by criminals, for which negligible precautions are provided by employers". Senior counsel added that in the emergency services (fire brigade, bush fire brigade and emergency services) the "employees are inevitably exposed to the risks of injury and death by the very nature of their duties" so that "employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken". There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety. The submission is no answer to the present charges. I reject it. [139] His Honour also emphasised (at [27]) my comments on causation in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 253 which are equally relevant here: "the alleged failure must cause the detriment to the safety (the risk) of the person concerned". Of course, this pronouncement on causation necessitates correct identification of the risk. [140] The distinction must be drawn between a risk, such as the violent behaviour of a member of the public or severely intellectually disabled student, occurring independently of the employer, the general nature of which may be known, and the risks which arise from the manner in which the employer exposes the employee to that risk. To put it another way, the employer fails to ensure the health, safety and welfare at work of its employees by failing to appropriately equip or protect them from risks inherent in their work (as opposed to risks which are merely speculative or unduly remote - see Drake at [145]), notwithstanding that such risks may be caused by external factors, known or unknown. As Hungerford J noted at paragraph 20 of WorkCover v Police Service (No 2) , the duty imposed upon the employer is directed at obviating risks where the circumstances create a potential danger to the health and safety of employees at the workplace. It is upon this distinction between a specific risk (the particular actions of an individual in a given context on a given day) and a general class of risk that analysis must concentrate, for focussing too closely on the specific risk immediately preceding the incident under scrutiny can lead to the error so frequently warned against: concentrating on the incident itself. Appreciation of this distinction also makes it clear that the defendant's preliminary submissions are based upon the wrong risk: when attention is focussed upon the risks which arise from the manner in which the employer exposes the employee to the risks, the defendant's submissions in this case, as in WorkCover v Police Service (No 2), fall away. [141] Although it is implicit in the judgment of Hungerford J, and indeed in the forgoing analysis, I make it plain that I reject the defendant's submission in this case that the prosecutor must establish that the step required to have been taken by the defendant would have eliminated the entire risk. There is no justification for limiting the broad words of s15 of the Act in such a manner, particularly in the context of an Act which has the stated purpose of securing the health, safety and welfare of persons at work. To accept such a submission would virtually render s15 ineffective and belie almost every decided case, for what risk in an operating workplace can be eliminated entirely? [133] It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges: Police Service (No 2) and O'Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation. 284 WorkCover v Kirk Group Holdings Pty Limited provides another useful (and particularly apt) illustration of the fallacy of the defendant's submission, concerning as it did the risk of an accident (overturning or unbalancing) when the vehicle was driven in certain circumstances: notably when driven off-road on the farm or when used for towing. However, the circumstances were not limited to those matters: they also included key driver attributes, such as experience, capability and qualification. The parallels with the present case are obvious: this case also concerned the risk to the safety of employees when vehicles were driven in certain circumstances - under a system of work which created the risk of driver fatigue. 285 The defendant submitted, on the basis of Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 at 49, that employers are not liable under the Act for risks which are merely speculative or unduly remote. There is certainly a line of authorities to this effect. The Court noted in WorkCover v Kirk Group Holdings Pty Limited at [135] that the theoretical and authoritative bases for distinguishing "unduly remote" risks were somewhat unclear, and that it was difficult to reconcile such a distinction with the many forceful judicial pronouncements on the absolute, proactive nature of the duty imposed by ss15(1) and 16(1). It may be that such a distinction is really an elaboration of the requirement to establish causation. The precise boundaries are yet to be explored, as the facts in this case (which do not support the bare premise) do not require detailed examination of these concepts. 286 The defendant's submission was not developed beyond bare assertion to demonstrate how, in the face of Associate Professor Williamson's uncontradicted evidence to the contrary, the risk to safety represented by the risk of driver fatigue could be described as "merely speculative or unduly remote" and I reject it. Associate Professor Williamson considered the risk to safety to be so real and pressing that in her view, "driving is the last thing that you should be doing" when fatigued. The defendant's submission also flies in the face of decades of regulatory attempts to manage or control precisely such a risk. 287 Detailed examination of Mr Haynes's work pattern over a sample week established beyond reasonable doubt that Mr Haynes was regularly exposed to the risk of driving when fatigued. In fact, on several occasions (including the day of the accident) this risk materialised: he was fatigued. He also failed by a significant margin to satisfy the bare minimum requirements to manage fatigue appropriately but nonetheless kept driving (and indeed was expected to keep driving). 288 Mr Haynes was exposed to this risk of driving when fatigued by an employer guilty of numerous serious failures. There was no Company policy on driving hours or rest-breaks distinct from the log-book regime; such policy as there was ("to abide by the log-book") may not have been communicated to the drivers (and if it was, it was in a perfunctory manner at the commencement of employment); the "policy" was not enforced or supervised; the Company did not collect any oral information pertaining to driving hours or rest-breaks and did not conduct any review of the relevant written information (the duplicate log-book pages); and "compliance" with the "policy" such as it was on rest-breaks and limited driving hours was left totally to the drivers in a system which provided incentives (through pay) to increase driving hours. The most superficial fatigue management system would have picked up the falsified log-books handed in by the drivers, which could not have tallied with kilometres recorded on their daily worksheets or with the deliveries they were directed to make. 289 Furthermore, the Company failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation. It also failed to provide any (let alone any adequate) supervision so as to ensure its employees did not become fatigued, or did not drive when fatigued and failed to provide its drivers with any information, instruction, or training in relation to fatigue and its management. 290 I have found that the Company's transgressions were not limited to failures: the system it operated had the effect of increasing the risk to Mr Haynes. The Company pressured its drivers to meet delivery deadlines resulting in breaches of the log-book regime, either due to specific time slots for particular depots, as Mr McLennan mentioned, or to Company imposed deadlines to be there early "in the morning". Drivers risked their jobs or income if they failed to comply. 291 The facts of this case do not permit a reasonable doubt as to the causal connection between the risk to Mr Haynes of driving when fatigued and the Company's proven failures. The Company's failures to ensure that its drivers (including Mr Haynes) took sufficient rest-stops; to record and audit driving hours properly; to provide a safe system of work; and to take fatigue into account when preparing driving rosters caused the risk to Mr Haynes's health and safety of driving when fatigued in the manner discussed by the Court in WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust.) Pty Ltd (No 1) (1999) 101 IR 239 at 253. Implementation of any one of these measures would have had some considerable effect in reducing the risk, and the absence of all of them, in the context of incentives and pressure to drive without appropriate rest-breaks, guaranteed that drivers, including Mr Haynes, worked under the shadow of this risk. Inter-state truck drivers, driving long distances (frequently at night, with the consequences for fatigue described by Associate-Professor Williamson), were necessarily exposed to the risk of becoming fatigued (and therefore the risk of driving when fatigued) in the absence of appropriate fatigue management systems. 292 Similarly, the Company's failures to provide information, instruction, training and supervision of its employees caused the risk to Mr Haynes's safety of driving when fatigued. As above, the Company's actions in allowing drivers to drive long distances, without any information, instruction, or training as to fatigue, its effects, the importance of managing it and how best to do so, and without any supervision, in the face of clear incentives to drive regardless, clearly resulted in this risk. 293 These findings necessarily culminate in a finding that the Company is liable for its failures under the Act (subject to any defences, which I discuss below). However, in this case, it is possible to go further: not only was the risk present on several occasions; it materialised on the day of Mr Haynes's accident. I have found beyond reasonable doubt that Mr Haynes was, in fact, fatigued at the time of his accident and consequent death and that this fatigue significantly impaired his ability to drive safely and his ability to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop, as described by Associate Professor Williamson. 294 Although it is not necessary to demonstrate a causal connection between the conduct of the Company and the precise circumstances of the accident (see WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust.) Pty Ltd at 253), such a connection is patent in this case. There was a causal connection between the Company's failures and the fatigue which Mr Haynes experienced on the day of the accident: any one of the alleged failures, by itself, could have caused Mr Haynes's fatigue, two of the most obvious examples being the Company's failure to take the risk of fatigue into account when allocating work and its failure to provide any supervision of its drivers, including Mr Haynes. 295 In summary, I have found beyond reasonable doubt that (i) Mr Haynes was at risk of driving whilst fatigued on several occasions including the day of his death; (ii) that this risk represented a risk to his health and safety; (iii) that the Company's failures alleged in the particulars in sub-paragraphs (a), (b), (c), (f) and (g) of paragraphs 6 of the charges relating to rest-stops; driving rosters; driving hours; information, instruction, training and supervision; and system of work have been established to the criminal standard; (iv) that those failures were causally related to the risk; and (v) that, in any event, there was a causal connection between these failures and Mr Haynes driving whilst actually fatigued on the day of the accident (with the attendant risk to his health and safety). 296 It remains to discuss the defendant's submissions as to the application (or otherwise) of "the employer's place of work" under s16 of the Act and, finally, whether there is a defence under s53 of the Act available to the Company which may excuse the defendant's liability. "The Company's Place of Work" under s16 297 I have already noted Mr Hodgkinson's agreement in closing submissions that, if the charge under s15 in matter number IRC 5661 of 2001 was established, the charge under s16 in matter number IRC 5660 of 2001 would also be established, subject to whether the prosecution could prove beyond reasonable doubt that Mr Walker was exposed to risk at "the Company's place of work". 298 The defendant (while agreeing that the Company's undertaking included the carriage of goods by truck) disputed that the articulated lorry registration number TWW240, as it moved along the highway, was the Company's place of work for the purposes of s16(1) of the Act. Each of the defendant's submissions had the effect of constraining the operation of s16(1), but a close analysis of the section itself (in combination with the Act's definitions), relevant authorities, and the purposes of the Act, reveals no real justification for limiting the operation of s16 in the manner contended. 299 The Act clearly anticipates that a lorry may constitute a "place of work". Section 16(1) provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 300 Section 4 of the Act includes the following relevant definitions: 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: employer means a corporation which, or an individual who, employs persons under contracts of employment or apprenticeship. place of work means premises, or any other place, where persons work. premises includes: (a) any land, building or part of any building, (b) any vehicle , vessel or aircraft, (c) any installation on land, on the bed of any waters or floating on any waters, and (d) any tent or movable structure. (Emphasis added). 301 The Company was clearly an "employer" and the articulated lorry driven by Mr Haynes on the day of the accident was clearly a "place of work" as defined in s4: it was a vehicle (falling within the definition of premises) where persons (viz, the driver) performed work. There was no suggestion that Mr Haynes, while driving the lorry, did not perform work. However, s16 imposes an additional requirement: the relevant exposure to risk must be at the employer's place of work. I agree with the defendant's submission that there is a distinction between being "at work" in s15 and being "at the employer's place of work" in s16 which works to limit the operation of s16. 302 The meaning of "employer's place of work" has been explored by a number of authorities, each rejecting limitations which are unsupported by the broad terms of the Act. One such limitation is the submission that an employer's place of work should be limited to its central or general office and should not include (for example) construction sites or locations of field work where employees work from time to time. Many decisions have rejected (or are inconsistent with) such a limitation: Inspector Clarke v W L Meinhardt & Partners Pty Limited (unreported, Fisher CJ, 30 June 1992); WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325; Insp Plowright v Peter J Davis (Newcastle) Pty Limited [2001] NSWIRComm 269 and Inspector McColl v Combined Crane Rigging & Arthur Didovich [2004] NSWIRComm 48 to name a few. Indeed, the Full Bench specifically rejected such a proposition in WorkCover Authority of NSW (Inspector Keenan) v Technical & Further Education Commission (1999) 92 IR 251 at 262. These decisions, and the definition of "place of work" (which includes such mobile places as vehicles, vessels and aircraft), make it clear that "the employer's place of work" was not necessarily intended to be confined to a geographically fixed or central office location. Accordingly, as a matter of principle, I reject the defendant's submission that "the Company's place of work" should be limited to its depot. 303 Nor is it necessary for the employer to "own" the premises where work is performed. In Insp Hardman v Allied Construction Pty Ltd (Fisher P, unreported, 21 December 1990), his Honour rejected a submission that a building site was not the defendant's "place of work" because the defendant, as head contractor, did not have a proprietary interest in the land (at page 7): I do not accept that by the language of the Act it is open to infer that rights analogous to an estate in land need be found within the definition of "premises" for the Act to have application. The emphasis of the Act seems always upon the place of work , whether the work is being done by direct employees or persons employed by others. The building site was such a place within the definition of premises in Section 4 of the Act. 304 The decision of Maidment J in Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators (unreported, 8 August 1996) is a case in point on the flexible, transient nature of employers' places of work and effectively endorses the comment of Fisher P, quoted above, that the emphasis of the Act always seems upon the place where work is being done. From time to time the defendant performed maintenance and repair work on an inclinator, but employees of the defendant were not at the premises either at the time of the accident or between the times specified in the summons. The sole question for the Court was whether the inclinator was the defendant's place of work within the meaning of s16. Maidment J held that it was not, on the basis that the Act was not directed at general product liability, and did not require employers such as (for example) boat repairers to ensure the safety of the end product of their work as a boat, as opposed to as a place of work. However, his Honour considered that during maintenance, the inclinator would have been the employer's place of work (at page 9): Thus it is with an employer engaged in lift maintenance. Under s.16 he is required to conduct that maintenance work such that persons, not in his employment, are safe from risk whilst they are at his place of work. In the present case this includes ensuring that residents are not put at risk by the conduct of his undertaking while they were at his place of work as a place of work. This legislation does not require the employer to ensure that the product of his work is devoid of hazard. Thus, in my view, the obligation cast upon the defendant by s.16 is confined to the periods during which maintenance work is being conducted. 305 This decision was approved by Peterson J in WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997), a case which dealt with the concept of "employer's place of work", again focussing attention (in keeping with the approach of Fisher P) on the performance of work. In that case, the defendant contracted with A.V. Jennings Limited to supply and fix roof tiles to a new residence under construction. The defendant sub-contracted this work to another roofing company, GC & C Meyne Roofing Pty Limited, who carried out the work without incident but without any fall restraints. His Honour held that the case was analogous to lift maintenance in Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators and found that the building site of A.V. Jennings Limited was the defendant's place of work while the roof tiling work was being performed. It follows from this case that not only is it unnecessary for the defendant to own the premises, the defendant need not even be present at the premises while work is performed in furtherance of the defendant's undertaking. 306 The decisions in Inspector Clarke v W L Meinhardt & Partners Pty Limited, WorkCover Authority of NSW (Inspector Page) v Woolworths Ltd (unreported, Peterson J, 9 September 1994) and Craig Andrew Corbett v Raymond Borg (unreported, Hungerford J, 29 March 1996) extend the meaning of "employer's place of work" in a different direction, establishing that a place of work includes peripheral areas (such as adjacent public footpaths or roads) which may be affected by the work being done. In Inspector Clarke v W L Meinhardt, (in a passage which was approved in WorkCover v Woolworths and Corbett v Borg) Fisher CJ held at 12: With respect to the duty under s16(1) I consider the employer's conduct of his undertaking includes here the design of the façade retention structures, the safe retention of the façade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the site collapsed. 307 Again, the underlying importance of the performance of work (and the effect such performance may have on others) is clear. In the light of these decisions, which pose a clear test capable of straightforward application, and which contain obvious parallels to the present case (in that public roads or footpaths are included in the definition of "employer's place of work" when they may be affected by work being done) I reject the defendant's submission that it is too difficult to determine, in the case of a moving lorry, where the place of work begins and ends. In any event, this mistakes the issue. The issue is not, in a conceptual sense, where the place of work begins or ends but whether the place in question was in fact the employer's place of work at the time of the accident. 308 This consistent focus, in the authorities, on the place of the performance of work (at the time of its performance) serves two purposes. Most importantly, it gives effect to the objects and purpose of the Act, one of which is stated in s5(1)(b): to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work 309 In Insp Mobbs v Air Liquide Australia Ltd (Fisher P, unreported, 9 April 1998), Fisher P made the following observations as to the purposes of the Act, with particular regard to ss15 and 16: The Act seeks to demonstrate and draw attention to the deficiencies in safe working practice in the interest of safety in industry. It is designed to persuade industrial parties to review their positions relating to safety and to reduce the dangers that arise within industry and affecting people working in and about industry, or people who, while not working in industry, may nevertheless be affected by dangerous errors or omissions. 310 Secondly, however, it also gives meaning to the distinction found in s16 between an employer's undertaking and an employer's place of work. Although there are obvious connections (indeed, an employer's place of work will always be part of its undertaking), the two concepts do not always overlap. An employer's undertaking may be present at a place which is not the employer's place of work and the key to the distinction lies in the examination of performance of work in the circumstances of a particular case. 311 It remains to apply the principles explored above to the facts of this case in order to determine whether, at the time of the accident, the lorry was the Company's place of work. As the defendant submitted, and as the Full Bench held in WorkCover Authority of NSW (Inspector Keenan) v Technical & Further Education Commission (1999) 92 IR 251 at 261: The decided cases on this issue make it plain that the question of whether the "employer's place of work" ingredient in s16(1) is made out is a question of fact notwithstanding any broad construction of the provision that is appropriate (see, for example Inspector Clarke v W L Meinhardt & Partners P/L (unreported, Fisher CJ, 30 June 1992) and Inspector Page v Woolworths Ltd ). 312 The defendant submitted that the application of WorkCover Authority of NSW (Inspector Keenan) v Technical & Further Education Commission would result in a finding that the lorry was not the Company's place of work. That case concerned the actions of Mr Jones, a student enrolled in the Job Train Landscape course at the Ballina Campus of TAFE. As part of that course, Mr Jones undertook work experience at Ballina High School which included the operation of a tractor to mow a playing field. Mr Jones lost control of the tractor, causing severe injuries to the school groundsman who had attempted to help him. 313 On appeal the Full Bench of the Commission sitting in Court Session agreed with Kavanagh J's decision at first instance that the high school where Mr Jones performed work experience was not the respondent's "place of work" within the meaning of the Act, but specifically left open the possibility that an employer may have a "place of work" remote from its principal or primary place of operation (which is consistent with the authorities referred to above) and emphasised that each case must be determined on its own facts. The Court held at 261: We have come to the conclusion that the appellant cannot make out his contentions on appeal that her Honour should have found that the relevant risk to health and safety occurred at the respondent's place of work. The decided cases on this issue make it plain that the question of whether the "employer's place of work" ingredient in s16(1) is made out is a question of fact notwithstanding any broad construction of the provision that is appropriate (see, for example Inspector Clarke v W L Meinhardt & Partners P/L (unreported, Fisher CJ, 30 June 1992) and Inspector Page v Woolworths Limited ). A consideration of the factual circumstances of this matter enables the following factual summary to be assembled. Mr Jones was, during a period of unemployment, a student in a job trainee course conducted by the respondent at its Ballina campus. The course involved a one week work experience rotation which was planned by persons in the employ of the respondent responsible for the course being undertaken by Mr Jones. As part of their responsibility, they arranged for the one week work experience to occur at the nearby Ballina High School. During the period of placement for the purpose of work experience, Mr Jones worked in conjunction with Mr Piggott, who was an employee of the Department of School Education, which was the employer in respect of persons employed at the Ballina High School. (It is to be observed that reference to both Mr Jones and Mr Piggott occurs in the charge laid which has been earlier set out.) On the relevant date, whilst Mr Jones and Mr Piggott were working in conjunction one with the other, a significant accident occurred which arose from either lack of experience on the part of Mr Jones in operating a tractor with a slasher attachment to mow a playing field, or failures on the part of either or both the defendant or the Department of School Education in ensuring that Mr Jones was properly trained in the operation of that equipment. In our view, neither the facts as so summarised, nor the facts as elaborated in the detailed statement of facts before her Honour, or as further elaborated in the evidence before her Honour, can justify a finding that the Ballina High School was a place of work of the respondent. This is not to conclude that, for the purpose of s16 of the OH&S Act, an employer may not carry out its undertaking remote from its principal or primary place of operation. However, each case under the section raising an issue as to the "place of work" must be determined upon its own facts and circumstances. [Emphasis added]. 314 While acknowledging that this aspect of these proceedings is not without difficulty, I have come to the view that this case should be distinguished from Inspector Keenan v TAFE on the facts, and properly falls within the example given by the Full Bench in that case of an employer's place of work which is remote from its "principal" place of operation. There is a world of difference between a place of work which is owned and maintained by the employer in question and dedicated to the undertaking of that employer - indeed, which is integral to that employer's operations and revenue and could be said to have no other purpose - and a place of work with minimal connection to the employer and which has (and continued to have at the time of the exposure to risk) a wholly independent operation in furtherance of another employer's undertaking: in Inspector Keenan v TAFE, the operation of a high school. 315 I have already found that it is incontrovertible that lorries (and any area which may be affected by the work undertaken in them) are places of work: no other conclusion could be supported in the light of the Act's definitions and decided cases such as Inspector Clarke v W L Meinhardt. 316 If one considers the purposes of the Act in the context of this case, it becomes clear that those purposes would be subverted by a finding that the lorry was not the Company's place of work. The Company's undertaking encompassed transport of goods by lorries, and little, if anything, else. 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. 317 The matter argued before the Court was whether the lorry (and every area which may be affected by the work being performed in it) was the Company's place of work: despite suggestions in oral submissions by the defendant that such a finding would include the highway in its entirety, this was not argued, nor seriously contended, and does not follow from the application of the principles discussed above. 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. I do not accept that a decision which would defeat a stated purpose of the Act in relation to the very activities of such a significant industry, which not only pose the greatest risks to members of the public but also constitute the raison d'être of the industry, should be made on the basis of an assertion that the lorry was not the Company's place of work despite its overwhelming connection to both the Company and the Company's undertaking. Moreover, I consider that a finding in this case that Mr Haynes's lorry was the Company's place of work is more limited in factual scope and principle than the accepted obiter of Maidment J in Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators in relation to lift maintenance workers. 319 In conclusion, and having regard to the concession made by Mr Hodgkinson SC as to my findings in relation to the charge under s15, I find that it is beyond reasonable doubt that at the time of the accident the lorry was the Company's place of work for the purposes of s16 of the Act and I therefore find that the offence has been proven in Matter No. IRC 5660 of 2001, subject to the availability of any defence under s53 of the Act. Defence 320 The defendant submitted that defences were available to him under subsections (a) and (b) of s53 of the Act on the basis that: · Sufficient rest periods were available to Mr Haynes; · It was not practicable for an employer to police what an employee does during rest periods; and · It was not possible in any practical sense for the defendant to make Mr Haynes sleep at any time. 321 I note that, strictly speaking, these submissions misconstrue the Act: the relevant question is whether a defence is available to the Company. If so, the defendant will reap the benefit: he cannot be found guilty in the absence of a contravention by the Company. 322 I have rejected the first submission in my findings of fact. The second and third submissions provide no answer to the established charges which relate to the failure to institute and enforce a safe system of work and to provide adequate information, instruction, training and supervision. At no stage did the defendant develop this submission to describe just how it could be said to be impracticable, or beyond the Company's control, to establish and maintain a safe system of fatigue management; to ensure compliance with an appropriate schedule of rest-stops and driving hours (such as, for argument's sake, a system which included auditing the log-book regime and comparing kilometres recorded there with those actually paid for); to take fatigue management into account when allocating work to drivers; or to provide instruction, information, training and supervision. Nor was there any evidence to substantiate such a submission. 323 I find that the defendant has failed to establish, on the balance of probabilities, a defence available to the Company under sub-sections 53(a) or (b) of the Act to either of the charges in these proceedings. 324 I make the following findings and determinations: (a) the offences against the Company and the defendant have been proven in Matter No. IRC 5661 of 2001, although the prosecutor did not sustain the charge in relation to particulars (d) and (e). Failure to establish a particular is not fatal to a prosecution: Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 at 484. (See also WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 134; WorkCover Authority of NSW (Inspector Dubois) v Concrete Constructions Group Ltd (No 1) (1999) 98 IR 362 at 374; and WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [55] - [56]); (b) the offences against the Company and the defendant have been proven in Matter No. IRC 5660 of 2001; and (c) In relation to Matters No. IRC 5661 and 5660 of 2001, I find that no defence is available to the Company under s53 of the Act. Orders 325 The Court makes the following orders: 1. The offence alleged against the defendant in Matter No. IRC 5661 of 2001 is proven; and 2. The offence alleged against the defendant in Matter No. IRC 5660 of 2001 is proven. 326 The matter will be listed for directions at 9.30am on Monday, 1 November, 2004 for the purpose of scheduling a sentencing hearing. 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